1. ' This is suo motu revision registered in consequence of order passed by my learned brother Abdul Razzak A. Thahim, J., on 26-5-1986. In the said revision question is for consideration whether in charge Judge can entertain and dispose of bail application during the temporary absence of the concerned Judge. Who is seized of the matter. In the instant case the case in question was pending before First Additional Sessions Judge (Mr. Munir Ahmed Khawaja) who was on casual leave for one day and during his absence bail application was disposed of by in charge Judge (Mr. Mirza Saeed Beg) who was in fact Second Additional Sessions Judge, Kandhkot.
2. ' Complex legal point involved in this revision and several other similar suo motu revisions is that if Presiding Officer of the Court, who is seized of the case, is temporarily absent, then another Judge who is in charge or acting in his place, can dispose of bail application on the ground of urgency or not. There is case-law for and against the proposition. Against the proposition is cited case of Muhammad Nabi and others v. Muhammad Munir and others reported in 1986 SCM R 1321. It is held by the Supreme Court in the reported case that High Court was fully justified in setting aside order of bail granted by Sessions Judge who was not trying the case but merely attending the urgent matters during the vacation. There is further observation made by the Supreme Court which is to the effect that the trial Judge was directed to dispose of the case, which was at the defence stage, expeditiously before year was out. Order passed by the Supreme Court is very brief. It is submitted before me by the learned counsel that in the reported case petition for leave to appeal was filed against the order of Lahore High Court in Criminal Miscellaneous No,2081/B of 1985 which is unreported decision. Photostat copy of this order has been produced before me. This order was passed on 2-10-1985 by Mr. Justice Khalilur Rehman of Lahore High Court on application filed before him under section 497(5), Cr.P.C. For cancellation of bail allowed to respondents 1 to 6 in a case under sections 302, 379, 148 and 149, P.P.C. This is a very detailed and elaborate order running into 9 pages in which all the relevant facts of the case are mentioned graphically. One factual aspect of the case worth noticing is that accused persons in that case were arrested on 29-1-1983, charge was framed against them, prosecution had closed its case on 3-6-1985 and thereafter the case was fixed for recording of defense evidence on 29-6-1985. An application under section 540, Cr.P.C. For summoning some witnesses was also filed on 3-6-1985 which was posted for hearing on 29-6-1985. Thereafter on several dates case could not proceed for one reason or the other in spite of the fact that defence witnesses were in attendance. In the meantime Mr. Safdar Ali Khan, Additional Sessions Judge, Gujrat in whose Court the case was pending proceeded on summer vacation from 6th August to 28th August, 1985. Respondents 1 to 6 on 10-8-1985 submitted an application for bail on the statutory ground of delay and that application came up for hearing before Mr. Muhammad Aslam Sumra Additional Sessions Judge, Gujrat who was Duty Judge during those days. Learned Additional Sessions Judge went deep into the merits of delay and after noticing the fact that the prosecution evidence was closed and the case was fixed for examination of defence witnesses, came to the conclusion that delay was not due to any act or omission on the part of theaccused, as such he granted the bail. The relevant paragraph from the order of the High Court is reproduced as under:- "In the instant case, the accused respondents on the date when the application was made cannot be heard to say that they were not responsible for non-completion of the trial. In fact since 3-6- 1985 it was they who are solely responsible for non-conclusion of the trial. Even now the accused/respondents can bring the trial to an end early by producing their evidence. It is pertinent to note that after their release on bail, they failed to produce their evidence on 2nd of September, 1985 as they got yet another adjournment on the plea that their counsel was busy before a Military Court. On account of the repeated adjourments obtained, it is obvious that the accused/respondents are hampering the progress of the trial by adopting dilatory tactics and they in the circumstances were responsible for non-conclusion of the trial. In this view of the matter the respondents are not entitled to remain on bail."
3. ' The paragraph quoted above pertains to and reflects the merits relating to the delay in view of the peculiar facts of that case. On the point which is relevant before me relevant paragraph from the order of the Lahore High Court is reproduced as under:-- "It is unfortunate that the learned Additional Sessions Judge (Mr. Muhammad Aslam Sumra) while granting bail failed to consider that this delay occurred mainly due to fault of the counsel for the accused. He also failed to follow the salutary rule of propriety. During summer vacation the learned Additional Sessions Judge was looking after the urgent work. In view of the fact that the application for bail was made in a pending case in which the defence evidence could not be recorded due to the fault of the defence counsel the learned Additional Sessions Judge should have left the matter of grant of bail to be decided by the learned trial Court on return from summer vacation. The respondents had failed to seek bail on the statutory ground which had become available to them even before the commencement of the trial but at the time when the bail petition was moved the responsibility for delay squarely lay on the accused themselves as at this stage it was for them to bring the trial to an end as early as they wished. In the aforenoted circumstances it was highly improper for the learned Additional Sessions Judge (Mr. Muhammad Aslam Sumra) to hear and dispose of the bail matter while attending to urgent work during August vacation and then to pass the bail order without attending to the cause of non-conclusion of the trial. Such conduct is bound to create serious misgiving in the public mind against Judicial Officers."
4. Reproduction of pertinent paragraphs from the orders of Lahore High Court as stated above clearly shows that in the peculiar facts and circumstances of the case including the stage of the trial, which was for examination of defence witnesses and hesitation for examining the defence witnesses and seeking adjournments in that context for one reason or the other, grant of bail by the Additional Sessions Judge who was acting during the absence of the trial Judge was disapproved for two reasons mainly; firstly that delay was attributable to the defence was not appreciated and secondly that in such circumstances of the case , question of grant or not of bail should have been left to the trial Court particularly when the trial Judge was away for a short time. Against the cancellation of bail by Lahore High Court petition was filed in the Supreme Court which was dismissed on the short ground that Supreme Court was satisfied that the High Court was fully justified in setting aside the order of bail granted by Sessions Judge who was not trying the case but was merely attending to urgent matters during the vacation. Not only that but observation was made by the Supreme Court additionally to the following effect:- "We also feel that the learned trial Judge should make every effort to dispose of their trial, which is at the defence stage, very expeditiously. He should do the needful before the year is out, namely, before 31-12-1985."
5. ' If the order of the Supreme Court is read in juxtaposition with or in conjunction with order passed by Lahore High Court, it becomes very clear that cancellation of bail by the High Court has been approved by the Supreme Court for valid reasons given in the order of the High Court keeping in view peculiar and concomitant circumstances of that case particularly the stage of the trial, delay attributable to the defense and desirability that in such circumstances bail application should have been disposed of by the trial Judge who was temporarily away for a very short time. He was away from 6th August to 28th August, 1985 which was for 22 days and bail was granted on 15-8- 1985 and if this application for bail was not heard for another 13 days, the same trial Judge, who was seized of the matter, could have returned and he could have disposed of the bail application on the ground of statutory delay. Having examined in sufficient detail both these orders, one passed by the Supreme Court and the other passed by the Lahore High Court, I am of the view that it was not the intention of the Supreme Court to lay down a rule that during the vacation in the absence of the trial Judge the bail application cannot be heard and disposed of by the in charge or acting Judge who in looking after the work of the trial Judge but it was held so keeping in view the special and peculiar circumstances of that particular case.
6. ' It is held by the Supreme Court in the case of Sanatta and others v. State 1982 SCMR 208 that decision given in a criminal matter is always with reference to peculiar facts of that case and is to be confined to the facts of that case and the rule laid down is not to be made applicable universally and invariably in all the cases.
7. ' In support of the view that during the vacation urgent work including bail applications can be disposed of by any Judge in the absence of the Judge who is trial Judge or seized of the case, reference could be made to section 17(4) of Criminal Procedure Code which envisages that the Sessions Judge may also when he himself is unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge or if there be no Additional or Assistant Sessions Judge, by the District Magistrate and such Judge or Magistrate shall have jurisdiction to deal with any such application. Reference can also be made to Chapter 10 Rule 5 of High Court Rules and Orders which relate to bail and recognizance. Rule 5 of Chapter 10 of the Rules and Orders mentioned above contemplates that bail is to be granted promptly because it would be a hardship to detain under-trial prisoner in prison an hour longer than the law requires. Rule 7 further requires that bail applications can be presented before the Judge even during the holidays at his residence. Rule 8 further provides that bail application in the absence of Sessions Judge, who is unavoidably absent from station can be heard and disposed of as urgent application, as contemplated under section 17(4), Cr.P.C. Rule 15 further provides that all applications for bail in criminal cases including appeals should be treated as urgent.
8. ' In the case of Ghulam Muhammad and others v. State 1971 P Cr. L J 4 Muhammad Gul, J (as he then was) has held that Additional Sessions Judge during temporary absence of Sessions Judge could hear urgent applications including bail applications but not applications for cancellation of bail and in consequence order of grant of bail by Additional District Magistrate was restored.
9. For the facts and reasons stated above I am of the view that no hard and fast rule can be laid down to say that bail application cannot be disposed of by acting or incharge Judge during the temporary absence of the trial Judge or the Judge who is seized of the matter during vacation or for that matter for any other reason. This question is to be decided in view of the attending circumstnaces of the case alongwith other important factors such as duration of the absence and how long it would take and secondly whether grounds on which the bail is sought are such that they were better to be left to be appreciated by the trial Judge who is seized of the matter particularly when he is likely to return shortly. If the absence is very short and for a couple of days as for exemple the Presiding Officer has not come and has taken casual leave for one or two days then during that such short absence bail application should not be disposed of by acting or incharge Judge who looks after the work of that Judge who has proceeded on leave. If the Presiding Officer is on long leave or is on vacation and is supposed to return after a long delay and during that time bail application is moved which is to be disposed of on urgent basis and if the facts of the case are such and the grounds urged in support of the bail are such that no prejudice is caused to any side, if that application is disposed of by the acting or in charge Judge then there is no legal impediment in the way of disposal of that application as stated above. Needless to say again or reiterate that if bail application is once rejected on merits by one Judge, and if it is repeated, then the second application is also to be heard by the same Judge.
10. ' In the instant case Sessions Case No,357 of 1986 arising from Crime No,/F.I.R. No,156/86 registered at Police Station Kandhkot for offence under section 302/148/149, P.P.C. And 13-D Arms Ordinance is pending before 1st Additional Sessions Judge, Kandhkot. Challan was presented on 23-11-1986. Bail application was filed on behalf of respondent Ali Akbar Sabzoi on 22-4-1987 on which notice was ordered for the following day along with police papers. On the next day i,e, 23-4-1987 when the bail application came up for hearing Presiding Officer Mr. Munir Ahmed Khawaja was on casual leave for one day i,e, 23-4-1987 and in his absence bail application came up before Mr. Mirza Saeed Beg, Second Additional Sessions Judge who became in charge Judge to dispose of urgent work relating to the Court of First Additional Sessions Judge. He has disposed of bail application after going into merits while granting bail. I have seen the relevant record in this context. From the date of presentation of challan in the Court of First Additional Sessions Judge which was 23-11-1986 nearly five months elapsed and no attempt was made to file bail application on merits and it was done for the first time on 22-4-1987 on which order was passed by Mr. Munir Ahmed Khawaja for hearing on the following day i,e, 23-4-1987. I have sent for the record from District Judge with regard to request of the learned Judge for obtaining casual leave. I have seen application submitted by Mr. Khawaja for casual leave on 23-4-1987. This application is dated 20-4-1987 in which request is made for grant of casual leave for one day i,e, 23-4-1987 with permission to suffix 24-4-1987 being Friday. On this application there is order from the District Judge passed on 21-4-1987 showing only that casual leave is granted. In the papers there is office letter of intimation sent by C.M.O. District Court, Jacobabad to First Additional District and Sessions Judge, Kandhkot. This letter appears to have been sent on 22-4-1987. It is stated in this letter that casual leave as requested is granted and urgent work of that Court for 23-4-1987 was to be looked after by learned Second Additional District and Sessions Judge, Kandhkot. I am told that there is distance of about 60 miles from Jacobabad to Kandhkot. It is not clear whether this order passed on 22-4-1987 sent by post was received at Kandhkot on the following day. Even if it be assumed that such intimation was conveyed on telephone, then too it is still open for consideration whether it was proper for the incharge Judge to have disposed of bail application when the concerned Judge was on casual leave for one day only. I have sent for cause list of Second Additional Sessions Judge for 23-4-1987 and it appears that there were 12 Sessions cases fixed before him for regular hearing and two other Sessions cases which are shown as formal cases. It appears from the list which is signed by Serishtedar of that Court that all those cases were adjourned. Learned counsel who is appearing before me for respondent was not able to show me as to what was the urgency for disposal of bail application on 23-4-1987 by incharge Judge when the concerned Judge, who was seized of the matter was on casual leave for one day. He is unable to do that particularly in view of the fact that no step was taken to apply for bail on merits for about 5 months from the date of presentation of challan in the Court. No doubt that Mr. Khawaja himself on bail application had passed order for issuance of notice and posting hearing on 23-4-1987 when this fact was within his knowledge that on 23-4- 1987 he would be on casual leave because he had already sent application to the learned Sessions Judge for grant of that leave. Even if he had passed that order on the insistence of counsel who had applied for bail, the in charge Judge could have easily given some other date for hearing of bail application for the reason that the concerned Judge was on casual leave for one day only and such short postponement would not hurt the party which had not applied for bail for the last five months. I am, therefore, satisfied that in this of bail was not proper and in the attending circumstances of this case, in charge Judge should have given a date for hearing before the concerned Judge who was temporarily away for one day only.
11. ' For the facts and reasons stated above I set aside the impugned order of grant of bail and in consequence cancel the bail. The trial Court shall take steps to effect arrest of the respondent. It is open to the trial Judge to entertain bail application if and when filed subsequently on merits and law and order passed by High Court in respect of cancellation of bail is not intended to come in the way of the trial Court.
12. Bail cancelled.