ALI HASSAN Versus THE STATE

JAVED IQBAL, J. ---This appeal by leave of this Court is directed against the order dated 1-8-2000 passed by learned Division Bench of Lahore High Court, Lahore, whereby the bail application preferred on behalf of petitioner has been dismissed in view of the dictum as laid down in case titled The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173. The operative portion of the impugned judgment is reproduced hereinbelow for ready reference:--

"2. In the present case, the first petition of Ali Hassan-petitioner before this Court, i.e. the one bearing Criminal Miscellaneous No.4130-B of 1999 was disposed of by this Court on 18-8-1999 with the following order:--

'Learned counsel for the petitioner after arguing the case at some length, does not press the instant petition for the time being. .

2. Dismissed as not pressed.'

The second petition brought by Ali Hassan bearing Criminal Miscellaneous No.4550-B of 1999 was dismissed as withdrawn when a prayer for the said purpose was made through Criminal Miscellaneous No. 1803-M of 1999 and the said order dated 20-10-1999 reads as under:--

'This application is allowed. Criminal Miscellaneous No.4550-B of 1999 is dismissed as withdrawn.'

3. The present petition of Ali Hassan-petitioner bearing Criminal Miscellaneous No.75-B of 2000 is thus, hit by the dictum laid down in the abovementioned Zubair's case. This petition is, therefore, dismissed. "

2. Leave to appeal was granted vide this Court's order dated 31-10-2000 which runs as follows:--

"Leave is granted to consider the effect of withdrawing the bail application with the permission of the court and subsequently filing.

The same application on the same grounds. The learned High Court disallowed the petitioner to agitate the point in the earlier application which was withdrawn without getting any decision on merit. "

3. It is urged emphatically by Khawaja Sultan Ahmad, learned Senior Advocate Supreme Court on behalf of petitioner that the bail applications moved by the petitioner were never dilated upon on merits and thus the dictum as laid down in Zubair's case (supra) cannot be made applicable being distinguishable. It is further argued that the law laid down in the said case has been misconstrued and misinterpreted which resulted in serious miscarriage of justice and bail application has been dismissed without considering its merits.

4. Ch. Muhammad Akram, learned Advocate Supreme Court appearing for State supported the view point as canvassed by Khawaja Sultan Ahmad, learned Senior Advocate Supreme Court for petitioner and contended that the bail application should have been decided on merits as the law laid down in Zubair's case (supra) cannot be made application.

5. We have carefully examined the respective contentions as agitated on behalf of the parties. We have gone through the impugned judgment. The controversy revolves around the interpretation of the dictum as laid down in Zubair's case (supra) which has already been interpreted/clarified recently by this Court in Criminal Appeal No.458 of 2000 (Muhammad Riaz v. The State) and relevant portion whereof is reproduced hereinbelow:--

"We have heard the learned counsel for the petitioner, complainant and the State at length. This Court while delivering the judgment in Zubair's case (ibid) made the following observations:--

'The second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was tiled and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application. The mere fact that the Judge who had rejected the first bail application with the observation that as far as the remaining petitioners are concerned no case had been made out for their release on bail does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant's counsel before him and the same had not found favour with him. The notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reasoning is totally misconceived.'

The case in hand is distinguishable to the facts and circumstances of Zubair's case. In fact Zubair's case laid emphasis on vital issues that subsequent bail applications must be placed before same Judge who had dealt with first bail application. It was also laid down that it was the duty of the counsel to mention in a bail application filed by him the fact of having filed previous application and to state the result thereof. Needless to emphasise that the judgment was delivered to avoid the conflicting decisions in the bail applications. While delivering the judgment in Zubair's case, this Court also considered the judgments delivered by it reported as Farid v. Ghulam Hussain 1968 SCMR 924 and Khan Beg v. Sajawal PLD 1984 SC 341. The practice of withdrawing the petition from one Judge and then making a fresh application soon thereafter so that the same may be dealt with by another Judge was also disapproved. In Zubair's' case 'the principle enunciated was based upon salutary principle inasmuch as the practice of filing the 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 mal practice by 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 considerations."

The other vital issue was about the scope of the second bail application and the observations of this Court have been reproduced (supra). In the instant case, the earlier bail application Criminal Miscellaneous No. 4101-B of 2000 was disposed of by a learned Division Bench of the Lahore High Court comprising Mr. Justice Khalil-ur-Rehman Ramday and Mr. Justice Dr. Munir Ahmad Mughal and the order passed therein dated 24-7-2000 reads as under:--

'Having argued the matter at some length, prays for permission to withdraw this petition. Dismissed as withdrawn'."

(Sd).

Judges

A bare reading of the above order clearly shows that decision on merit was not at all pressed and the counsel in his own wisdom or on the instructions of his client desired to withdraw the first bail application. In such like cases it cannot be said that the case had been decided on merits, nor it can be asserted that certain rounds were raised but were revelled or had found favour with the learned Judges as the case may be.

The extract from Zubair's case reproduced in the preceding paragraph of this judgment, shows that the case had been heard at length and ail grounds which were available were pressed because the first bail application was, rejected with the observation that 'As far as rest of the petitioners are concerned, no case has been made out for their release on bail'. It was further held that it did not mean that the application had been disposed of on merits and further that it must be assumed that the learned Judge had considered all the pleas or grounds raised by applicant's counsel before him that the same had not found favour with him. It was further laid down that notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reason was totally misconceived.

We are, therefore, of the view that withdrawal of a bail application would not mean that its disposal was on merits or the ground had been taken into consideration, therefore, in our view there is no bar in moving a second bail application after withdrawal of the first one but inevitably the second bail application should be heard by the same Judge or the Judges who had allowed the withdrawal of the first application. In the present case, the first bail application was allowed to be withdrawn by a learned Division Bench of the Lahore High Court consisting of Mr. Justice Khalil-ur-Rehman Ramday and Mr. Justice Munir Ahmad Mughal but the judgment impugned was delivered by a different Bench comprising Mr. Justice Khalil-ur Rehman Ramday and Mr. Justice Zafar Pasha Chaudhri. On the touchstone and criteria laid down in Zubair's case in our view the second bail application ought to have been heard by the same learned Bench who had permitted the withdrawal of the earlier bail application.

For the foregoing reasons, we hold that withdrawal of an application simpliciter does not mean that the same was dealt with on merits or on the ground pressed. However, the situation would be different if the earlier bail application was decided on merits and in such case while deciding the subsequent bail application, of course the ground C which was not urged although the same was available would not constitute a fresh ground justifying the filing of second bail application. Secondly, propriety requires that the bail application dismissed in terms or order impugned be heard by the same learned Bench who had earlier allowed the withdrawal of the first bail application.

6. It transpires from the scrutiny of record that Criminal Miscellaneous Appeal No.4130-B and Criminal Miscellaneous Appeal No. 18133-M of 19991 were not pressed and withdrawn which makes it abundant clear that the same . were not disposed of on merits and in view of the interpretation/clarification of Zubair's case (supra) as mentioned hereinabove, Criminal Miscellaneous Appeal No.75-B of 2000 is not hit by the dictum laid down in Zubair's case (supra). In such view of the matter the appeal is accepted and the impugned order is set aside and case is remanded back to learned Lahore High Court and Criminal Miscellaneous Appeal No.75-B of 2000 shall be treated as pending and decided in accordance with law and merits after affording proper opportunity of hearing to all concerned

N.H.Q./A-137/S Case remanded.