' The applicants are aggrieved by the order of the learned IIIrd Additional Sessions Judge, Sukkur, who has dismissed their bail application on the ground that they had earlier filed an application No, 582 of 1987 before this Court but the same had been rejected by my learned brother, Abdul Rasool Agha, J vide order passed by him, dated 21-9-1987. The order passed by my learned brother shows that the applicant's request for bail was rejected by him as admittedly they had been absconders and according to my learned brother an absconder was not entitled to the concession of bail. It is pertinent to point out that the applicants at that time had not yet completed two years in custody as is evident from the order passed by my learned brother.
2. In the present bail application, the applicants have invoked the provisions of the third proviso to section 497, Cr.P.C. As according to them, they have now completed two years in custody and the delay in the conclusion of the trial has not been occasioned on account of any act or omission on their part. Admittedly, the case of the applicants does not fall within the purview of any exception to the third proviso. However, the only question that requires determination is, whether the present bail application can be entertained by me in view of the fact that the earlier bail application filed by the applicants had been dealt with by my learned brother Abdul Rasool Agha, J while he was at Sukkur. Reference in this respect may be made to the case of State v. Zubair and 4 others PLD 1986 SC 173 wherein their Lordships of the Supreme Court have held that the subsequent bail application filed by the same accused should also be heard by the same Judge who had dealt with the previous bail application of the accused. It was further held in that case that the order passed by another Judge would tantamount to review of the order of the learned Judge, who had earlier dealt with the first bail application.
3. However, after carefully going through the order, I have reached the conclusion that the observations made by their Lordships of the Supreme Court in the case are not attracted to the facts of the present case. The facts of the reported case clearly indicate that a bail application was moved before one of the learned Judges of the High Court of Lahore, who rejected the application of the accused on merits. Thereafter, a second bail application was moved by the same accused, which was heard by another learned Judge of the same Court and on reconsideration of the merits of the case, the bail application was decided in favour of the accused. The matter thereafter went before the Hon'ble Supreme Court which while cancelling the bail of the accused made the following observations:- "We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observations 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 the 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 when he earlier dismissed the first bail application."
4. The above observations of the Supreme Court make it amply clear that the subsequent bail application filed by the same accused should not be heard by another Judge if the grounds raised in the two applications are such that the order passed on the second bail application would tantamount to review of the order passed on the first bail application. Such clearly is not the case in the present case as the bail has been sought only on the statutory ground of delay in the trial as envisaged by the third proviso to section 497, Cr.P.C. And as is evident from the order passed by my learned brother on bail application No, 482 of 1987, such ground was not available to the applicants at the time when the first bail application was made by them before this Court. It is also pertinent to point out that bail can be sought by an accused as of right under the third proviso unless it is shown that his case falls within the purview of any of the exceptions to such proviso. In that case, the Court normally is not called upon to consider the merits of the case and has only to come to an independent conclusion, whether the case of the accused falls within the purview of the third proviso. I am, therefore, of the view that the Honorable Supreme Court could not have intended to make the above observations applicable to cases of this nature.
5. Under the circumstances, bail is granted to the applicants in the sum of Rs,50,000 with one surety each in the like amount to the satisfaction of the learned trial Court.