KHADIM HUSSAIN Versus THE STATE
The petitioner sought confirmation of ad-interim pre-arrest bail in a criminal matter. A preliminary objection was raised regarding whether the matter should be heard by the same judge who granted the interim bail, given that the said judge was currently sitting at the principal seat rather than the bench. Relying on the precedent in Mir Khan v. The State, the court held that where the judge who granted interim relief is not available at the relevant bench for a reasonable period, exigencies permit another judge to hear and dispose of the matter to avoid unnecessary inconvenience. On merits, the court observed that the F.I.R. was lodged with an unexplained delay of four months, and pending civil litigation between the parties alongside allegations against the local S.H.O. prima facie pointed towards mala fides. Consequently, the court confirmed the pre-arrest bail.
- Whether a bail petition can be heard by a judge other than the one who granted ad-interim pre-arrest bail when the original judge is not available at the same bench?
- Does pending civil litigation between the parties render an F.I.R. prima facie mala fide for the purpose of pre-arrest bail?
- Is an unexplained four-month delay in lodging an F.I.R. a ground for confirming pre-arrest bail?
ORDER
The petitioner was admitted to ad -interim pre‑arrest bail vide order dated 25‑5‑1999 passed by my learned brother Dr. Munir Ahmad Mughal, Judge. Learned counsel for the petitioner has submitted that in view of the dictum laid down in Muhammad Taj v. Muhammad Akhtar and another (1997 SCMR 1336) the case should have been fixed before the same learned Judge. The relevant para in the above case is reproduced below: -
"The interim bail in the case was granted by Ijaz Nasir, J. by order dated 25‑7‑1994 while adjourning the hearing of Criminal Miscellaneous No.304/B of 1994 to 26‑9‑1994. However, thereafter Criminal Miscellaneous No.340/B of 1992 was fixed before another learned Judge of that Court (Raja Abdul Aziz Bhatti, J.) who disposed of the same by order dated 18‑10 1994. It is stated before us that on 18‑10‑1994 when Criminal Miscellaneous 340/B of 1994 was fixed in Court, Ijaz Nisar, was working at the principal seat of the Court at Lahore, therefore, the Criminal Miscellaneous was fixed before another Judge (Raja Abdul Aziz Bhatti, J.) at Rawalpindi Bench. Since, Ijaz Nisar, J. was available as a Judge of that Court on 18‑10‑1994, the application should have been fixed before him for disposal as he had admitted the respondent as he had admitted the respondent No.1 to the interim bail in the case, in view of the decision of this Court in the case of State v. Zubair (PLD 1986 SC 173). We, accordingly, allow the appeal and set aside the subsequent order confirming the interim bail passed on 18‑10‑1994 by Raja Abdul Aziz Bhatti, J. The case is remanded to the Lahore High Court with the direction that Criminal Miscellaneous No.340/B of 1994 will be placed before Ijaz Nisar, J. for disposal according to law."
2. Learned Assistant Advocate‑General, Punjab who has entered appearance on Court's call has submitted that where mere notice or interim relief is ordered or accorded and which are still required to be heard at a Bench other than principal seat of the High Court concerned or, vice versa are to be viewed arid it is not necessary that the case be heard by the same Judge. He relied on Mir Khan v. The State (1999 SCMR 790). The relevant para. is reproduced below:‑
While the rule of propriety harmony, consistency and just or fair disposal of bail matters, as inter alia enstrined in Zubair's case, is a salutary one, to be observed as far as practicable, the superior Courts cannot make a fetish of technicalities to an extent, where the object of the rule is relegated to the background and mere technicalities are allowed to rule the situation. It is in this perspective that subsequent bail applications, purely on the ground of statutory delay and the same bail applications, where mere notice or interim relief is ordered or accorded and which are still required to be heard at a Bench other than the Principal Seat of the High Court concerned or vice verse, are to be viewed. Similar would be toe approach where a Judge, still adorning the High Court, is away on leave or otherwise non‑available for a reasonable period of times, for keeping such a bail matter, which of necessity is an urgent one, awaiting the availability of the Judge concerned, can obviously result not only in‑avoidable inconvenience but even to misery. Such exigencies are already contemplated in the applicable precedents."
3. Mr. Justice Dr. Munir Ahmad Mughal is at present not available at this Bench and working at principal seat. Keeping in view the judgment referred to above by the learned Assistant Advocate‑General, Punjab in Mir Khan's case (1999 SCMR. 790), I have decided to proceed with the case.
4. Learned counsel for the petitioner contended that the F.I.R. has been lodged with a delay of four months as civil litigation against the complainant of the F.I.R. as well as against the S.H.O Police Station Burj wals, District Sahiwal is still pending and the present F.I.R. is tainted with mala fide.
5. Conversely learned counsel for the State contended that the petitioner's pre‑arrest bail was dismissed by the learned Sessions Judge, Sahiwal for non‑prosecution as he did not appear before him, therefore, he is not entitled for the concession of pre‑arrest bail.
6. I have heard the learned counsel for the petitioner and as well as State and also perused the record. Without going deep into the merits of the case, since the litigation between the parties is pending the Civil Court about the same cause of action, which is subject‑matter of the present F.I.R. and the petitioner has also levelled allegations against the S.H.O, thus, prima facie it appears that the F.I.R. is based on mala fide. F.I.R. has also been longed after a delay of four months which has not been explained.
7. In view of above, ad interim pre -arrest bail already granted to the petitioner on 25‑5‑1999 is hereby confirmed. This petition is disposed of.
N.H.Q./K‑111/L
Bail confirmed.