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UMED ALI‑‑Applicant
versus
THE STATE‑‑Respondent
Criminal Bail Application No. 201 of 1987, decided on 12th March, 1987.
(a) Criminal Procedure Code (V of 1898)‑‑
‑‑‑Ss. 497 & 498‑‑Bail application of accused wherein interim order was passed without discussing merits can be placed before another Judge but it should normally' be placed before the same Judge, if available, who passed the interim order; where interim bail was granted on consideration of some merits, it should invariably be placed before the same Judge if and when or where available.
Bail application of co‑accused where interim order was passed without discussing the merits can be placed before another Judge but it should normally be placed before the same Judge, if available, who passed the interim order. In a case where interim bail has been granted on consideration of some merits it should invariably be placed before the same Judge if and when or where available, for the principle enunciated by the Supreme Court in P L D 1986 S C 173; 1968 S C M R 924 and P L D 1984 S C 341 would not be applicable in the first case but it would be applicable in the second case as in the second case another Judge at the time when the interim order comes up before him might review the earlier order on consideration of additional facts or arguments or new facts that might be brought to his notice by the State or other side, therefore, it would be proper that application should be heard by the same Judge. It is all the more necessary to avoid any conflicting orders.
Farid v. Ghulam Hussain 1968 S C M R 924 and Khan Beg v. Sajawal P L D 1984 S C 341 ref.
(b) Criminal Procedure Code (V of 1898)‑‑
‑‑‑Ss. 497 & 498‑‑Bail application‑‑Where a Judge granted interim bail without stating the reasons at that stage in his order, application for confirmation of bail could be heard by another Judge, but if the Judge had discussed merits of the case while granting interim bail, application for confirmation should be heard by the same Judge‑‑If interim bail was confirmed by another Judge without further going into the merits of case, any subsequent application should be placed before the Judge who granted interim bail.
---‑Ss. 497 & 498‑‑Bail before arrest‑‑Specific provision for interim bail though not contained in Ss. 497 & 498, Cr.P.C. yet where Court has power to finally grant relief it has also ancillary or incidental power to grant interim relief unless it is expressly prohibited by law.
A The State v. Zubair and 4 others P L D 1986 S C 173; Muhammad Saleh v. The State Cr. Bail Application No. 1718 of 1986; Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 S C 32; Muhammad Aslam v. The State P L D 1974 Lah. 493; Muhammad Naeem v. The State 1980 P Cr. L J 377 and Sheikh Muhammad Rashid v. The State P L D 1981 Lah. 26 ref.
A.Q. Halepota for Applicant.
A.A. Mohomedally Addl. A.‑---G.(Sind) for the State on Court Notice.
By the present application under section 561‑A, Cr.P.C., the applicant prays for a direction that the bail application may be placed before Mr. Justice Mamoon Kazi in the following circumstances. The bail application of co‑accused Darya Khan came up before Mr. Justice Mamoon Kazi, who after considering the merits granted interim bail but the bail was subsequently confirmed by Mr. Justice Nasir Aslam Zahid by a short order, dated 14‑9‑1986 which reads as follows:‑‑-----
"Mr. M.I. Memon, Additional Advocate‑General, for the State has no objection to the confirmation of interim bail granted to the applicant by this Court.
For the reasons mentioned in the order, dated 16‑6‑1986 and as no objection is raised by the learned Additional A.‑G., the interim bail granted to the applicant by order, dated 16‑6‑1986, is hereby confirmed. Criminal Bail No. 809 of 1986 is disposed of."
Therefore, the question has arisen who should hear the subsequent application of co‑accused in such case. There may also be cases where interim bail might have been granted by one judge without recording reasons and it is confirmed or rejected by another judge on merits.
In view of the decision of the Supreme Court in the case of The State v. Zubair and 4 others P L D 1986 S C 173 wherein it was held that the subsequent application of the accused in the same case or even bail application in a cross case should be fixed for hearing before the same Judge. In another case Criminal Bail Application No. 1718 of 1986 (Muhammad Saleh v. The State) on an office reference question arose in view of the aforesaid judgment whether the application of a co‑accused in the same case should be heard by the same Judge who had earlier disposed of the application of one of the accused or it can be heard by another Judge. It was held that application of co‑accused is to be placed before the same Judge who had earlier considered the application of another accused in the same case.
The provisions for bail or bail before arrest in a case are contained under sections 497 and 498, Cr.P.C. These provisions do not contain any specific provision for interim bail. In my opinion where Court has power to finally grant relief it has also ancillary or A incidental powers to grant interim relief unless it is expressly prohibited by law. Reliance is placed on Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. P L D 1975 S C 32. It may also be granted on the principle of Ex debito justitiae. Further, there is a long and well‑established practice for granting interim bail, I may refer to some cases here.
(1) Muhammad Aslam v. The State P L D 1974 Lah. 493; (2) Muhammad Naeem v. The State 1980 P Cr. L J 377 and (3) Sheikh Muhammad Rashid v. The State P L D 1981 Lah. 26.
In the first named case Aslam Riaz Hussain, J. (as he then was), observed that once an application for bail before arrest is 'admitted' by a Court for regular hearing, it should, in fitness of things, grant interim bail to the petitioner so that he is not arrested in the meanwhile, because otherwise there is no point in entertaining and admitting his application.
In the second mentioned case Rustam S. Sidhwa, J., observed that the powers of this Court under Article 203 of the Constitution of Pakistan can be invoked to grant interim bail to the petitioner ex-debito justitiae. Now, considering the question whether the case should be placed before the Judge who grants interim bail or there can be an exception, I am of the opinion that if a Judge granted interim bail without stating the reasons at that stage in his order then it can be heard by another Judge but if he has discussed the merits of the case while granting interim bail it should he heard by him. I am further of B the opinion that if interim bail has been confirmed by another Judge without further going into the merits of the case, any subsequent application should be placed before the Judge who granted interim bail. The Supreme Court in the case of The State v. Zubair and 4 others P L D 1986 S C 173 has observed as follows:‑‑
"The aforementioned principle enunciated by these judgments are based on the salutary principles, inasmuch as the practice of filing successive bail applications in the same case by the same person or his co‑accused and getting it fixed before a different Judge, is not only likely to result in conflicting judgments but also tends to encourage malpractice by the accused persons and to bring the judicial system into disrepute, because in the event of a conflicting order being given by another learned Judge in a subsequent application, an impression, though false, may be created that the second order was based on extraneous consideration. It is mainly 'to avoid this that this Court has emphasized, over and over again, the subsequent bail application must be placed for disposal before the same learned Judge who had dealt with the first bail application and also that the counsel must disclose the fact of having filed a previous application and to state the result thereof."
The above principle was deduced from the two earlier judgments of the Supreme Court in (1) Farid v. Ghulam Hussain 1968 SCMR 924 and (2 ) Khan Beg v. Sajawal P L D 1984 S C 341.
In the first named case it was held that "where one Judge of the High Court has expressed himself against the grant of bail, another learned Judge of the same High Court in accordance with the long established practice and rule of propriety, when moved for bail of an accused or his co‑accused in the same case should transfer such bail application for disposal to the same Judge who had already dealt with the matter earlier in order to avoid contradictory order."
In the second named case, it was held that "where, apart from holding that all subsequent bail applications in the same case should be placed before the same learned Judge who had dealt with the earlier bail application, this Court also disapproved the practice of withdrawing a petition from one Judge and then making a fresh bail application, soon thereafter, so that same may be dealt with by another Judge."
In view of the aforesaid decisions of the Supreme Court, I am of the view that the bail application of co‑accused where interim order was passed without discussing the merits can be placed before another Judge but it should normally be placed before the same Judge, if available, who passed the interim order. In a case where interim bail has been granted on consideration of some merits, it should invariably be‑ placed before the same Judge if and when or where available, for I am of the view that the principle initiated by the Supreme Court in the above‑mentioned cases would not be applicable in the first case but it would be applicable in the second case as in the second case another Judge at the time when the interim order comes up before him might review the earlier order on consideration of additional facts or arguments or new facts that might be brought to his notice by the State or other side, therefore, it would be proper that the application should be heard by the same Judge. It is all the more necessary to avoid any conflicting orders.
In the light of above discussion, I would direct that the bail application of the co‑accused may be placed before Mr. Justice Mamoon Kazi.
Order accordingly. M.B.A.IU‑4/K
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