THE STATE THROUGH ADVOCATEGENERAL, N.W. F. P. Petitioner vs ZUBAIR AND 4 OTHERS

ORDER

' ASLAM RIAZ HUSSAIN, J.-This petition by the State for leave to appeal is directed against the judgment of the High Court whereby the respondents were ordered to be released on bail. The petitioner seeks the cancellation of their bail.

2. The allegation against the accused respondents is that they have committed murder of Zafar Shah and made a murderous assault on Sher Shah and some others, with fire-arms. They were, therefore, arrested for offence under sections 148 and 302/307/149, P. P. C All of them made an application for bail before the trial Court, which was rejected. Thereafter they applied for bail before the High Court. Raja Muhammad Arshad (co-accused) was allowed bail by a learned Single Judge of the High Court on medical grounds while the application of the other accused persons (i. e. The respondents herein) was dismissed by him, vide the impugned order, dated 24-3-1985, with the observation that :- "As far as rest of the petitioners are concerned no case has been made out for their release on bail."

' Sometime later the respondents filed another bail application before the High Court which was placed before the same learned Judge who had dismissed their earlier bail application. That learned Judge, however, declined to deal with the second application for the reason that "had already expressed his opinion".

3. The bail application was, therefore, placed before another learned Judge who after noticing that the respondents' case had not been considered by the learned Judge who had heard their previous bail application, accepted the contentions of the counsel for the accused (petitioners before him) observing that "the question of their bail should (now) be dealt with on merits". He then proceeded to consider the grounds of bail on 'merits' and accepted the same on 27-7-1985, with the following observation :- "In view of the material available in the case, it cannot be said at this stage that there are reasonable grounds for believing that the petitioners had committed a non-bailable offence although there are sufficient grounds for further inquiry against them."

4. The State has filed the present petition for the cancellation of the respondent's bail.

The petition is barred by 66 days. But the question involved in this case i. e. The propriety of second or subsequent bail application by the same accused, being heard or dealt with by a learned Judge other that the one who had heard their previous bail application, is of considerable importance. .We, therefore, accept the application for condonation o delay filed by the State and condone the delay.

5. We have heard the learned counsel for the parties at length and have also gone through the case-law on the subject.

With profound respect to the learned Judges of the High Court who dealt with second bail application, we notice that a salutary and well established principle relating to the hearing of successive bail applications filed by the accused persons in the.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 principle, 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 application where-ever 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 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 application filed by the same or other accused in the same case, or the cross- case. The following authorities may be referred to in this connection :-

(1) Farid v. Ghulam Hussain 1968 SCMR 924.

(2) Muhammad Khan v. Sanaullah PLD 1971 SC 324.

(3) Muhammad Khan v. Muhammad Aslam 1971 SCMR 789.

(4) Khan Beg v. Sajawal PLD 1984 SC 341.

(5) Muhammad Aslam v. The State 1968 P Cr. L J 152.

(6) The State v. Muhammad Yousaf 1979 P Cr. L J 665.

(7) Ghulam Hussain v. Karim Bakhsh NLR 1980 Criminal 248.

6. It is held in. Some of these judgments that if a Judge of the High Court has heard the bail application by an accused person. All subsequent petitions for bail by the same accused or in the same case should be referred to the same Bench wnich had disposed of the earlier petition.

7. Another principle enunciated in some of the rulings is that it is the duty of the counsel to mention in a bail application filed by him the fact of having filed an earlier bail application, also stating the result thereof. Failure on the part of the counsel to do so would, in fact, amount to professional misconduct because the concealment of the fact of the dismissal of the earlier bail application of the accused or the co-accused and getting a subsequent bail application decided by another Judge of the same Court may result in conflicting judgments and disharmony in the Court. It was held in the case of Farid v. Ghulam Hussain (1) 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 bad already dealt with the matter earlier in order to avoid contradictory order. The latest ruling on the subject is Khan Beg v. Sajawal (2) 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.

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 considerations. It is mainly to avoid this that this Court has emphasized, over and over again, that 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. It is regrettable that this salutary rule was overlooked by the learned Judges who dealt with the second bail application in the present case.

8. It might be useful to mention here that the second or the sub sequent 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

(1) 1968 SCM R 924 (2) D 1984 SC 341 the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge, who dealt with the second bait application that the mere fact that the learned Judge who had rejected toe first but application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) 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 that toe same had not found favour with him. It may be pointed out, with great respect. That 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. We are of the view that in the present, case the learned Judge who dealt with the second bail application had, in fact, embarked on a review of the order of the learned Judge who had earlier dismissed the first bail application.

9, If at the relevant time the first Judge is holding Court at a Bench other than the one where the first bail application was filed, it can always be transferred to that learned Judge, wherever he is sitting. There would, of course, be cases where it is absolutely impossible to place the second or the subsequent bail application before the same learned Judge who had dealt with the earlier bail application of the same accused, or in toe same case, In such cases, the learned Chief Justice of the concerned High Court, may order that it be fixed for disposal before any other learned Judge of that Court.

10. In the light of the above discussion it is not possible for us to uphold the impugned judgment.

Petition for leave to appeal is accordingly converted into appeal and allowed and the bail granted by the learned Judge on 27th of July, 1985, to respondents Nos. 1 to 5 is consequently cancelled.

They shall surrender to lawful custody in pursuance of this order failing which they shall be taken into custody and put under arrest by the law enforcing agency.