' The common question arising for consideration in these four Bail Applications is whether the rule laid down in the case of State v. Zubair PLD 1986 SC 173 and cognate dicta apply to these proceedings and such bail applications can he heard only by the specific Judge of this Court, who has applied his mind to the same or similar controversies, howsoever, remotely and none other or others. The rule in re: Zuhair ibid. Is that if one Honourable Judge of a High Court has heard and decided the hail application of an accused person, one way or the other, subsequent hail applications of the same or other accused in the case or those for cancellation, if that learned Judge is available in the Court, should be placed, considered and disposed of by him alone and none other or others. This rule has been read by Naimuddin, J., (as he then was), in Muhammad Saleh v. The State PLD 1987 Kar. 236 to extend even to those situations where the Judge concerned is no longer sitting on the same Bench but is exercising jurisdiction in another Bench of the same Court.
2. The cited rule, which is one of long standing, is based on an entirely wholesome course of practice, approved and followed by superior Courts. It is founded on a principle, deduced to ensure consistency and harmony or to ward off conflicting orders and is a rule of propriety, common sense and fair play guaranteeing that the same or similarly placed persons, in a case, are meted out the same or similar treatment, subject of course to a different view, if any, in the higher forum of the Supreme Court of Pakistan. In consonance with this rule counsel are required to state the factum and outcome of previous bail applications in the case, if any, and even to produce relevant orders, so that consistency, harmony and propriety can be maintained and deviations have been declared to constitute professional misconduct. There are a large number of authorities that have sprung up on the subject, supportive of the foregoing analysis. Reference, conveniently, may be made to the following:-
(1) Muhammad Aslam v. The State 1968 P Cr. L J 152.
(2) Farid v. Ghulam Hussain 1968 SCMR 924.
(3) Muhammad Khan v. Sanaullah PLD 1971 SC 324.
(4) Muhammad Khan v. Muhammad Aslam 1971 SCMR 789.
(5) Abdul Ghafoor v. The State PLD 1975 Lah.
754.
(6) State v. Muhammad Yousif alias Yousifi 1979 P Cr. L J 665.
(7) Ghulam Hussain v. Karim Bux 1987 P Cr. L J 852.
(8) Khan Baig v. Sujawal PLD 1984 SC 341.
(9) Muhammad Saleh v. The State PLD 1987 Kar.
236. Bulk of the dicta referred here has been cited in re: Zubair ibid.
3. The precise question in these applications is whether the rule aforesaid would be attracted even in those cases in which a learned Judge of the High Court has passed an interim order of bail, whether of a regular nature, releasing an accused under arrest, or one of an anticipatory or protective connotations, before arrest. In other words, where such interim order has been passed, subject to notice, is it incumbent and supported on practice or dicta that the matter should be placed before the same Judge for confirmation and that other connected matters of co-accused are required to be dealt with likewise. Learned A.A.-G. Has urged that the principle in Zubair's case aforesaid applies even in such situations and irrespective of the question whether the Judge concerned is available at the same Bench of the Court or not, the matters for confirmation and those of other accused persons in the same case, must be placed before the same learned Judge.
Correspondingly, the advocates for accused/applicants in these cases maintain that it is not necessary that such course should be adopted and that the contention of the learned A.A.-G. Is neither supported on practice nor on any dicta, binding or otherwise.
4. I have given my anxious consideration to these matters. The argument of the learned A.A.-G., Mr. Syed Sarfraz Ahmed, is founded on an assertion that since the learned Judge concerned, who granted interim bail, subject to notice, applied his mind to the case, howsoever tentatively, the rule of propriety and harmony requires that such matters he placed before such Honourable Judge alone and none other. To this I pointed out to the learned counsel that such could, at best, be a provisional application of mind and even expression of opinion and that no final view, one way or the other, could have been taken in such cases and besides there can be no likelihood whatever of any inconsistency or conflict arising, if the rule in re: Zubair is not applied. It was further pointed out to the learned A.A.-G. That in so far as application of mind is concerned, that would also be implied in situations, where at the stage of preliminary hearing of bail in a High Court, the Judge concerned, without saying so, declines to grant interim bail, subject to notice, but prefers to issue a mere notice to the State for consideration of the plea. If the rule be applicable in cases of interim bail, subject to notice, it should also apply in the category last mentioned but it was conceded, at the Bar, that in such cases no such requirement emerges. I cannot see as to how the two situations can, on principle, have different incidents.
5. No authority in support of the proposition was cited. On the contrary, so far as I have been able to assess, the rule of practice is that if interim bail, subject to notice, is granted by one Judge and, according to Roster sittings, such Judge is not available at the stage of confirmation, being administratively assigned a different set of responsibilities, Roster is not obliged to place the case before the same Judge.
6. Mr. Ghulam Haider Baloch, appearing in Cr.BA. No,2 of 1990, has referred me to a Full Bench order of the Lahore High Court, reported as Shabir Ahmed v. The State PLD 198l Lah. 599, where Shamim Hussain Qadri, Acting Chic f Justice, speaking for the Full Bench, on examining a number of authorities, was of the view that the expression 'ad interim bail' was a misnomer and an order to that effect only prohibits the arrest of an accused person, until the Court hears the prosecutor, goes into the nature of the charge against him and passes a final order granting or refusing the hail, after considering the merits and demerits. Subscribing, respectfully, to the opinion, the same principle applies to regular interim bails subject to notice to the prosecution. Such matters, as observed above, are not placed before the same learned Judge who passed the so-called ad- interim orders of bail and need to be placed. There is no final expression of opinion in such matters and no inconsistency or lack of harmony can possibly arise. Even the same Judge can take a different view at the stage of confirmation. On the other hand, unnecessary extension of the rule in re: Zubair in such cases can result in foreseeable administrative bottlenecks, particularly when Judges, frequently, are assigned duties in more Benches than one. Taking note of such administrative constraints, in cases falling under the third proviso to section 497(1), Cr.P.C. It has been held in Roshan and another v. The State 1989 P Cr. L J 609 and, respectfully followed by me in Badal and another v. The State 1990 P Cr. L J 31 that bails sought on grounds of statutory delay do not involve adjudication on merits and the doctrine in Zubair's case need not be extended to the same. Similar approach appears to be warranted for the matters on hand. It is thus not possible to apply the rule in re: Zubair to interim bails, subject to notice, and those applications can, according to administrative exigencies, be laid before and heard by any available Judge competent to hear the same.
7. There are, however, some exceptions to the proposition and such exceptions are based on binding dicta of the Supreme Court.
' Thus in Farid v. Ghulam Hussain (1968 SCM R 924), a case wherein one learned Judge had expressed an opinion strongly against the grant of bail recalling order of grant at the level of Sessions, and another Judge of the then Lahore Bench of the High Court of West Pakistan, granted ad interim bail, such order, even though tentative, was set aside by the Supreme Court, on grounds of propriety and consistency in orders of a Superior Court, since the matter should have been placed before the same learned Judge who had earlier declined that relief.
' Likewise, in Muhammad Khan v. Sanaullah PLD 1971 SC 324, where a Bail Application had been dismissed by a learned Judge of the Lahore High Court and such Judge was not available at the time when another application came up before another Judge of the same Court and interim bail, conditional upon notice, was granted, the Supreme Court interfered against its confirmation by the same Judge, observing that as soon as, at the stage of confirmation, the first learned Judge was available, the case should have been transferred and set down for consideration before him.
' The further proposition thus worked out, in the context of interim bails, conditional upon notice, is that where such an order is passed in relation to a previously disposed of bail application, in circumstances that the relevant Judge before whom the matter ought to have been placed in compliance with the rule in Zubair's case is not available in the Court, mere grant of interim bail by another Judge would neither preclude the hearing of the plea of bail before the first Judge nor ensure its continuity before the successor if the first, in the meantime, becomes available.
8. The rule in Zubair's case, also, does not apply in matters in which an earlier bail application is dismissed for non-prosecution and such order does not involve any application of mind. In such- like matters there would be no bar of the subsequent bail application being placed before another Judge of the same Court. This approach is also supported by an administrative order of the Honourable Chief Justice of this Court dated 12-9-1989. But even this does not seem to be an absolute rule, as opined in Khan Baig v. Sujawal PLD 1984 SC 341. In that case it was observed by the Supreme Court that withdrawing of a bail application before one particular Judge, apparently, with a view to have a subsequent bail petition placed before another Judge of the same High Court, would entail adherence to the rule in the case of Zuhair above and the subsequent bail application should be placed before the same learned Judge from whom the earlier petition was withdrawn. A priori it is be observed that where an application involving hail or its cancellation is mala fide got dismissed for non-prosecution before a particular Judge of a High Court, then notwithstanding that the dismissal did not entail an application of mind, the matter of a subsequent such order would require to be placed before the same Judge.
9. So far as Criminal Bail Applications Nos.1 of 1990, and 2 of 1990 are concerned, in such cases only interim bails, subject to the incidence of notices, have been granted by a learned Judge of this Court and, as a result of what is discussed above, there would not be any bar for hearing of such bail applications A by another Judge. Bail Application No,3/90 is connected with such applications and if the bar does not apply to the latter, none applies to the same either. These bail applications, accordingly, would now be fixed on a date to he obtained from the office before another Judge of this Court who may be available at this seat at the time when the same come up for consideration.
10. The case involved in Criminal Bail Application No,631 of 1989 is somewhat different. In that case question of bail was, finally, considered in a connected matter by another learned Judge of this Court. The cases as regards offences under sections 307, 323 and 34, P.P.C. And under section 13(d) of the Arms Ordinance, 1965, have been registered separately. While the F.I.Rs, are different, the incident is the same. The prosecution version is also common. As referred, order passed in Criminal Bail Application No,632 of 1989 pertaining to the offence under section 13(d) of the Arms Ordinance was dealt with by a learned Judge of this Court and such learned Judge passed a final order on merits. Normally, a connected case pertaining to the other F.I.R. Should be placed before the same Judge who passed the earlier order, for the rule in Zuhair's case has been applied also to connected criminal cases. In support, may be cited, with respect, the order of a Division Bench of the Lahore High Court in Abdul Ghafoor alias Ghafoori v. The State PLD 1975 Lah. 754 the Bench consisting of Muhammad Afzal Zullah and Gulbaz Khan, JJ., where, after an exhaustive review of case-law, these were the observations:--- "In view of the above authorities the petition by other accused, or petitions for cancellation of bail, or petitions for bail/cancellation of bail in the cross/connected cases are ordinarily to be disposed of by the same Bench, if available."
' The above opinion is squarely applicable to Criminal Bail Application No,631 of 1989 and that would be liable to be placed before the same learned Judge who, on 3-1-1990, disposed of Criminal Bail Application No,632/89, connected therewith.