MUHAMMAD RIAZ vs THE STATE

ORDER

1. ' SH. RIAZ AHMED, J.--This appeal by leave of this Court calls in question the order dated 26-10-2000 whereby learned Judges of the Lahore High Court dismissed the second bail application of the petitioner arising out of case F.I.R. No, 76 dated 29-1-1999 registered with Police Station Ghulam Muhammad Abad on charges under sections 302, 324, 148, 149, 427, Pakistan Penal Code.

2. ' The first bail application of the petitioner Muhammad Riaz (Criminal Miscellaneous 4101-B-2000) came up for hearing on 24-7-2000 and the learned counsel representing the petitioner having argued the matter at some length sought the permission to withdraw the same which consequently stood dismissed as withdrawn and thereafter second bail application (Criminal Miscellaneous 5709-B-2000) was filed seeking the same relief which was dismissed vide the order impugned dated 26-10-2000 on the ground that the same was not maintainable in view of the ratio of the case decided by this Court reported as PLD 1986 SC 173 (The State through Advocate- General, N.-W.F.P. v. Zubair and 4 others).

3. ' The learned counsel for the petitioner has argued that the learned Judges in the Lahore High Court have misconstrued the principle enunciated in Zubair's case by holding that if a bail petition is moved and then withdrawn after or without making any submissions, then the same is hit by the dictum laid down by this Court in Zubair's case.

4. On 21-11-2000 this Court granted leave to appeal to consider whether second application after withdrawal of the first petition was maintainable or not.

5. ' 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 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. 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 h 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."

6. 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 SCM R 924; 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 malpractice 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".

7. ' 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-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.

8. Dismissed as withdrawn."

9. (Sd.) Judges.

10. ' A 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 grounds were raised but were repelled or had found favour with the learned Judges as the case may be.

11. ' The extract from Zubair's case reproduced in the preceding paragraph of this judgment, shows that the case had been heard at length and all 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.

12. 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, therefbre, 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.

13. ' 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 which was not urged although the same was available would not constitute a fresh ground justifying the filing of second bail application.

14. 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. In this view of the matter, we allow this appeal and remand this case to the learned Lahore High Court for re-hearing of the bail application by the same learned Bench who had permitted to withdraw the first application in terms of order dated 24-7-2000.