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Before Naimuddin, J
MUHAMMAD SALEH---Application
versus
THE STATE--Respondent
Criminal Bail Application No. 1718 of 1986, decided on 13th January 1987.
-- Ss. 497 & 498-Bail--Bail application by another accused in the same case in which High Court had granted bail to co-accused-- Judge who granted bail to co-accused has to hear all subsequent bail applications filed by same or other accused in same case or the cross-case-Practice and procedure where question of impossi bility to fix case before same Judge by the office arises or where the Judge had either gone to Circuit Bench or had returned to the main Seat of the High Court, detailed.-[Practice and procedure].
The State v. Zubair P L D 1986 S C 173 and Khan Beg v. Sajawal and others P L D 1984 S C 341 ref.
Muhammad Saleem for Applicant.
A. R. Kazi Addl.-A. G. (Sind).for the State.
This is a reference made by the Superintendent Cause Roster, wherein it is stated that a learned Single Judge of this Court has directed that the bail application filed by co-accused Ali Bux alias Ali Beg son of Raza Muhammad in the case be placed before the Chief Justice for orders whether the bail application should be heard by Mr. Justice Syed Abdur Rehman who had heard the bail application of another accused.
Reliance is placed by the office on the Supreme Court case of The State v. Zubair (PLD1986SC173).
I directed notice of this reference to the Advocate for the applicant. The Additional Advocate-General Mr. A. R. Kazi is also present. I have heard the learned counsel for the applicant as well as Mr. A. R. Kazi, Additional Advocate-General (Sind).
It is submitted by the learned Additional Advocate-General that even the bail application of a co-accused is to be heard by the same Judge. He particularly referred the following observation made in the case of The State v. Zubair (supra):
"As already mentioned the learned Judge who heard the first bail application declined to hear their subsequent bail application on the ground that he had already expressed his opinion thereon. No doubt, on general principles, a Judge having once expressed his opinion of a lis should, ordinarily, decline to hear the same matter again directly or collaterally. There are, however, well-known exceptions to this rule, one of which is hearing of a review applica tion wherever this power is given by statute. The other is the general practice which has been established by series of judgments delivered by this Court as well as by, the High Courts during the last about 20 years, namely, that when a bail application of one or more accused is heard by a learned Single Judge of the High Court, it is he alone who should also hear all the subsequent bail applications filed by the same or other accused in the same case, or the cross-case.
Reference was made to the following cases decided by the Supreme Court and Lahore High Court earlier.-
(1) Farid v. Ghulam Hussain 1968 S C M R 924.
(2) Muhammad Khan v. Sanaullah P L D 1971 S C 324.
(3) Muhammad Khan v. Muhammad Aslam 1971 S C M R 789.
(4) Khan Beg v. Sajawal P L D 1984 S C 341.
(5) Muhammad Aslam v. The State 1968 P Cr. L J 152.
(6) The State v. Muhammad Yusaf 1979 P Cr. L 1665.
(7) Ghulam Hussain v. Karim Bakhsh N L R 1980 Criminal 248."
The present bait application is by another accused in the same case in which Mr. Justice Syed Abdur Rehman had granted bail to co-accused , therefore, the above observations will apply to the present case with full force.
However, it is submitted by Mr. Muhammad Saleem the learned counsel for the applicant that Mr. Justice Syed Abdur Rehman is now sitting at the Circuit Bench Sukkur, and therefore, this case cannot be heard by him. But in the case of khan Beg v. Sajawal and others (P L D 1984 S C 341), it was observe d by the Supreme Court that normally a bail petition be placed before the same Judge who had dealt with the earlier petition.
On being pointed out that the learned Judge who had dealt with the earlier application in that case at the Circuit Bench had returned to the main seat of the Lahore High Court, the Hon'ble Judges of the Supreme Court observed as follows:
"Even so, the petition could have been sent to Lahore for hearing by the same learned Judge,"
Therefore, I find no impediment in directing that this bail application shall be placed before the same Judge namely, Mr. Justice Syed Abdur Rehman who had earlier heard the application of co-accused in the same case. The dictum of the Hon'ble Supreme Court would apply not only to the second or subsequent application of the same accused but also to the application of co-accused for the Supreme Court has ruled that application for bail in a cross-case should also be heard by the same Judge who heard the earlier application.
The present bail application may be sent to Sukkur if the learned counsel for the applicant so desires. Otherwise, it shall be kept pending till the time the learned Judge resumes sittings at the main seat of this High Court.
I would take this opportunity to also direct the office that in future if a bail application of one of the accused persons is heard by a Judge all subsequent applications relating to the same case or cross-case, should be placed before the same Judge wherever he may be sitting, except in cases where it is absolutely impossible as observed by the Supreme Court, to place the subsequent bail application before the same learned Judge who had dealt with the earlier bail application of the same accused or co- accused in the same case or cross-case. I may state the question of impossibility will arise in cases like one where a Judge has retired or is elevated to the Supreme Court. In the latter situation the office should make a reference to the Chief Justice, for placing it before another Judge, stating the reasons why it is absolutely impossible to fix the case before the same Judge.
Office should however, ask the counsel for the applicant whether he desires that the bail application should be placed before the learned Judge at the seat where he is presently sitting or it should be kept pending till the learned Judge resumes sittings at the seat where he had heard the first application and act accordingly.
In the present case I asked Mr. Muhammad Saleem the learned counsel for the applicant whether he would wait till the learned Judge resumes sitting here or whether he would like the application be sent to the Judge at Sukkur Bench. Mr. Muhammad Saleem informed me that he would consult his client and let the office know about it. I would therefore, direct the office to act as it may be informed by the Advocate for the applicant.
M. B, A./M-9/K. Order accordingly.
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