' CH. MUSHTAQ AHMAD KHAN, J.--- This order shall dispose of preliminary objection regarding competency of this Division Bench, to hear and decide the following bail applications:--
(i) Sh. Rashid Ahmad v. The State Criminal Miscellaneous No,61/B of 1995.
(ii) Sardar Muhammad Naeem Khan v. The State Criminal Miscellaneous No,308/B of 1995.
(iii) Abid Hussain v. The State Criminal Miscellaneous No,293/B of 1995.
(iv) Umar Hayat and another v. The State Criminal Miscellaneous No,346/B of 1995.
2. Briefly stated facts out of which the bail matters have arisen, are as under:--
(I) Criminal Miscellaneous No,61/B of 1995 and Criminal Miscellaneous No,308/B of 1995 arise out of case F.I.R. No,449/94, dated 20-9-1994, registered at Police Station Waris Khan, Rawalpindi, under section 324/353/ 186/188/148/149/109, -P.P.C. And under section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960. Allegations against both the petitioners as levelled in the FIR., are that Sheikh Rashid Ahmad petitioner had conspired with others in "Lal Haveli, that there should be a successful strike against the Government and in order to achieve the aforementioned and, he alongwith Badshah Mir Khan Afridi, M.NA., Ch. Tanvir Khan, M.PA., Muhammad Basharat Raja, M.PA., Akhtar Mahmood, Advocate, Munawar Khan and others, decided to force the Traders to close their shops on 20-91994, and further to put public property on fire; that in furtherance of the aforementioned conspiracy/decision, various processions were taken out from various localities of the city, some of which became violent and the incidents of firing also took place, when Sardar Muhammad Naseem Khan petitioner alongwith one hundred processionists attacked the police station, with firearms and stones, as a result of which attack, Iftikhar Ahmad S.I., Muhammad Iqbal S.I., Muhammad Sarfraz F.C. And Muhammad Taj F.C. Were injured; that old tyres were also put on fire in Chowk Urdu Bazar to block the road and stop the traffic.
' Sheikh Rashid Ahmad petitioner as well as Sardar Muhammad Naseem Khan petitioner have been arrested in the said case. Sheikh Rashid Ahmad petitioner has been convicted and sentenced in case F.I.R. No,469, dated 9-10-1994, under section 13 of the West Pakistan Arms Ordinance (XX of 1965) and is presently undergoing his sentence in Central Jail, Bahawalpur, whereas Sardar Muhammad Naseem Khan petitioner is presently confined in Central Jail, Adiala, Rawalpindi. Some of the co-accused of the petitioners, who had been arrested, moved applications for grant of bail in the Court of Ch. Abdul Majid, Magistrate section 30, Rawalpindi, which were dismissed by the said learned Magistrate. They filed a similar petition in the Court of learned Sessions Judge, Rawalpindi, who were allowed bail by learned Additional Sessions Judge, Rawalpindi vide order, dated 29-9- 1994. The other accused applied for bail after arrest in the Court of Ch. Abdul Majid, Magistrate Section 30, Rawalpindi, who allowed them bail vide order, dated 2-10-1994. The petitioners, who had not as yet been arrested in the case, filed an application for grant of pre-arrest bail in the Court of learned Sessions Judge, Rawalpindi which was entrusted to a learned Additional Sessions Judge, who initially admitted them to ad interim pre-arrest bail, but ultimately dismissed the application vide order, dated 30-10-1994 for want of jurisdiction, on the ground that klashnikov, which had been used in this case was recovered from Sheikh Rashid Ahmad petitioner, on the basis of which recovery a separate F.I.R. Has been registered against him, hence, the petitioners should move the application for grant of bail before the Special Court (Suppression of Terrorist Activities), Rawalpindi. Legality and vires of the aforementioned order was challenged in re: Writ Petition No,1224 of 1994, which was heard by a Division of this Court and was referred to be heard at the Principal Seat of this Court at Lahore by a Full Bench comprising of their Lordships Mr. Justice Ijaz Nisar, J., Mr. Justice Raja Afrasiab Khan, J., Mr. Justice Ch. Mushtaq Ahmad Khan J., Mr. Justice Muhammad Aqil Mirza, J. And Mr. Justice Sharif Hussain Bokhary, J.
' Muhammad Basharat Raja, another co-accused who was a petitioner in the writ petition, separately applied for pre-arrest bail vide Criminal Miscellaneous No,3922/B of 1994 before the Full Bench at Lahore and was allowed interim bail and the petition was ordered to be heard alongwith Writ Petition No,122 of 1994, which matters were ultimately disposed of by the Full Bench vide order, dated 15-12-1994. With the direction that objection of jurisdiction of Special Court should first be raised before the said learned Court, wherein a first move for grant of bail may be made.
Paragraphs Nos.3 and 4 of the order are reproduced as under:-
(3) Learned counsel for the petitioners have not been able to controvert the above legal proposition. In consequence, we direct the petitioners to raise objection as to the jurisdiction of the Special Court before the said Court, if they so desire. If any such objection is raised before the Special Court (Suppression of Terrorist Activities), it shall dispose of the same in accordance with law. The petition is disposed of accordingly.
(4) Sardar Muhammad Tariq and Raja Muhammad Hafeez petitioners who had been granted pre- arrest interim bail by a Division Bench of this Court on 2-11-1994, are given the protective bail in the sum of Rs, Fifty thousand with two sureties each in the like amount to the satisfaction of the learned trial Court till 26-12-1994 to enable them to move that Court for bail. They shall furnish surety bonds within five days. This concession is, however, not being extended to Sh. Rashid Ahmad, M.NA.
Petitioner, for, he stands detained under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960."
' Application for grant of post-arrest bail filed by Sheikh Rashid Ahmad as well as Sardar Muhammad Naseem Khan petitioners in the Court of learned Special Judge (Suppression of Terrorist Activities), Rawalpindi was dismissed vide order, dated 15-1-1995.
' Sardar Muhammad Naseem Khan filed an application for grant of post-arrest bail Criminal Miscellaneous No,43/B of 1995 before this Court, which was heard by a Division Bench comprising of our learned brothers Mr. Justice Raja Abdul Aziz Bhatti and Mr. Justice Iftikhar Hussain Chaudhry, JJ.
On 9-4-1995 and was dismissed as withdrawn. Criminal Miscellaneous Nos.61/B and 308/B of 1995 for grant of post-arrest bail have now been filed by Sheikh Rashid Ahmad and Sardar Muhammad Naseem Khan, respectively, which have been placed before us.
(II) Bail application of Abid Hussain i,e, Criminal Miscellaneous No,293/B of 1995, has arisen out of a case F.I.R. No,76, dated 13-7-1994, registered at Police Station Attock Khurd, District Attock under section 13 of West Pakistan Arms Ordinance (XX of 1965). The petitioner applied for grant of post- arrest bail before the learned Special Court (Suppression of Terrorist Activities) No,1, Rawalpindi, which was dismissed. He filed bail application (Criminal Miscellaneous No,844/B of 1994) before this Court, which was dismissed as withdrawn by a Division Bench comprising of our learned brothers Mr. Justice Muhammad Arif and Mr. Justice Raja Abdul Aziz Bhatti, JJ. Vide order, dated 29- 1-1995. He again applied for grant of bail as the trial was not concluded within the time fixed by the learned Division Bench, who had dismissed the earlier bail application (Criminal Miscellaneous No,234/B of 1995) as withdrawn. This petition too was dismissed as withdrawn by a Division Bench of this Court comprising of our learned brothers Mr. Justice Raja Abdul Aziz Bhatti and Mr. Justice Iftikhar Hussain Chaudhry, JJ. Vide order, dated 22-3-1995. This third application has been filed by the petitioner, which has been placed for hearing before us.
(III) Bail Application (Criminal Miscellaneous No,346/B of 1995) of Umar Hayat and Inayatullah arises out of case F.I.R. No,209/93, dated 30-12-1993 registered at Police Station Pind Dadan Khan, District Jhelum under section 395, P.P.C. Read with section 17 of the Offences Against Property- (Enforcement of Hudood) Ordinance, 1979. The petitioner having failed to get the bail from the learned trial Court applied for grant of post-arrest bail (Criminal Miscellaneous No304/B of 1995) before this Court, which was dismissed as withdrawn by a Division Bench of this Court comprising of our learned brothers Mr. Justice Raja Abdul Aziz Bhatti and Mr. Justice Iftikhar Hussain Chaudhry, JJ. Vide order, dated 24-4-1995. This second application has been filed by the petitioners before this Court, which has now been placed before us.
3. Syed Shabbar Raza Rizvi, learned Additional Advocate-General, Punjab and Syed Sajjad Hussain Shah, learned Assistant Advocate-General, Punjab have raised a preliminary objection to the effect that in view of the law declared in case of the State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173, as the bail application filed by Sardar Muhammad Naseem Khan petition had earlier been dismissed as withdrawn by a Division Bench comprising of our learned brothers Mr. Justice Raja Abdul Aziz Bhatti and Mr. Justice Iftikhar Hussain Chaudhry, JJ., this Bench cannot hear and decide this petition, and the same had to be placed before the same learned Division Bench. Similar objection has been raised in the other two petitions, referred to above. In support of their arguments, learned Law Officers have placed further reliance on the cases of The State v. Muhammad Yousaf and 3 others 1979 PCr.LJ 665; Ghulam Hussain v. Karim Bakhsh etc. 1987 PCr.LJ 852; Khan Beg v. Sajawal and others PLD 1984 SC 341; Mst. Neelam Mawaz v. The State PLD 1991 SC 640; Asif All Zardari v. The State 1991 PCr.LJ 595; Shafiullah v. The State 1987 MLD 1229 and Abdul Qayyum Khan v. Government of Punjab through Secretary, Local Government and Rural Development Department and another PLD-1995 Lah.
205.
4. Messrs Muhammad Akram Sheikh, Z. Muhammad Babar Awan and Muhammad Ilyas Siddiqui, Advocates, learned counsel for the petitioners, have vehemently controverted the objection being raised by the learned Law Officers and have contended that ratio of Zubair's case is not at all attracted in these cases and that the present Division Bench is quite competent to decide the bail applications on merits. Learned counsel for the petitioners have contended that in order to attract the applicability of ratio of Zubair's case, it is necessary that there should be a hearing of the bail applications; there should be a judicious application of mind to the facts and circumstances of the cases; there should be a judgment rendered in the case by a learned Single Judge of this Court and not by a Division Bench and as in these cases, the petitions have not been decided on merits after hearing and after judicious application of mind to the merits of the cases, nor any judgment has been rendered therein, ratio of Zubair's case is not at all applicable to the cases in hand, as such, the objection being raised by the learned Law Officers is liable to be overruled and the applications are liable to be decided on merits by this Division Bench. In support of their contentions, learned counsel for the petitioners have placed reliance on the cases of Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335; Saleem Akhtar v. The State PLD 1980 Lah. 127; and Shahid Iqbal and another v. The State 1992 PCr.LJ 1928.
5. Further elaborating their arguments, learned counsel have contended that when the judgment in Zubair's case was rendered by their Lordships of the Supreme Court, the cases of Gulzar Hassan Shah and Saleem Akhtar (supra) were not brought to the notice of their Lordships and, therefore, the concept of "review" which has been made as a basis for holding that it is the same learned Judge or the Bench who should hear the subsequent bail applications, being not applicable to the orders passed in bail applications, which are not "judgments", hence, the ratio as laid down in Zubair's case will not apply to the cases in hand, as such, there is no jurisdictional bar for the present Division Bench to hear and decide these bail applications; that the judgment rendered in Zubair's case does not lay down a principle of law which could be said to be binding on this Court as per Article 189 of the Constitution of Islamic Republic of Pakistan, 1973; that as the principle laid down in the judgment is not a principle of law but is a principle pertaining to the regulation of the Court proceedings and is a principle of propriety, therefore, it is not necessary to follow the ratio laid down therein while 'taking the decision in these bail applications, which require to be decided expeditiously and that as one of the learned Judges who was member of the previous Division Bench is presently out of the country and is not available and the petitioners, who are public representatives, are in the jail, although there is absolutely no incriminating material against them, on the basis whereof they could be kept in the lock-up, therefore, it is of no use to refer the cases to the same Bench which is presently not available; that ratio of Zubair's case is applicable to those cases only where previous applications are decided by a learned Single Judge of this Court, as in the judgment reference is made to "a Judge" or "a Bench" and not to "Judges" or "Division Benches" of this Court; that the bail matters in these cases are to be dealt with under the provisions of section 5-A(8) of the Suppression of Terrorist Activities Act and not under section 497, Cr.P.C. As the said provisions are specifically excluded and are not applicable in the said case in hand, hence, ratio of the case decided with reference to bail applications filed under section 497/498, Cr.P.C. Is not applicable to these petitions, and that the objection raised by the learned State Counsel is baseless and is nothing but a device to prolong the agony of the petitioners by keeping them in jail for a long period of time, on political considerations, hence, the same may be repelled as being without any substance.
5. In reply to the arguments addressed by the learned counsel for the petitioners, learned Law Officers contended that ratio of Zubair's case is fully applicable to the cases in hand as both the learned Judges, who had dealt with the earlier bail applications are available in the High Court.
Merely because one of the Honourable Judges is temporarily out of Pakistan during summer vacations, is not a ground sufficient for hearing of the bail applications by another Division Bench of this Court. It is further contended that word "Judge" as used in the judgment rendered in Zubair's case will in fact mean the "Bench" which includes a Division Bench as well, as each Judge of the High Court, is a Bench of the Court. Therefore, for application of the ratio it will not make any difference whether earlier application was decided by a Single Judge or by two Judges constituting a Division Bench. According to them previous applications were heard, dealt with and dismissed as withdrawn, hence, all these cases are covered by Zubair's case, which enunciates a principle of law which is binding on this Court as per provisions of Article 189 of the Constitutipn of Islamic Republic of Pakistan, 1973 and is bound to be followed, therefore, these petitions have to be placed before the same Division Bench, who had earlier dealt with the same.
6. Before embarking upon discussion and decision of the issue involved in this matter, it will be advantageous to keep in view the law declared in cases cited at the bar. In case of Gulzar Hassan Shah (supra), where the question arose as to whether the High Court in its inherent jurisdiction can recall or reverse an order passed by it, in a bail matter, it has been held that the provisions of section 369, Cr.P.C. Which curtail the power of the High Court, to review its judgment does not control and orders passed under section 498, Cr.P.C., as it is not a judgment within the meaning of section 369, Cr.P.C., hence, the High Court is competent to recall a bail order in exercise of its powers under section 561-A, Cr.P.C.
' In case of Saleem Akhtar (supra), it has been held that section 369, Cr.P.C. Does not control the orders passed in bail applications, therefore, if a petition for grant of bail is rejected, the subsequent petition for grant of the same relief is maintainable.
' In case of The State v. Muhammad Yousaf (supra), wherein bail application of a co-accused was dismissed by one learned Judge of the High Court, but was allowed by another learned Judge without ascertaining or mentioning the fact of another accused in the same case having earlier been refused bail by another Bench, ratio as laid down in Abdul Ghafoor alias Ghafoori v. The State PLD 1975 Lah. 754 was held necessary to be followed, keeping in view the rule of propriety and harmony, which requires that the application should have been referred to the same learned Judge who had heard and dismissed the bail application of co-accused. The bail granted to the accused was, hence, cancelled.
' In case of Abdul Ghafoor alias Ghafoori v. The State PLD 1975 Lah. 754 at page 761 of the report in a similar situation it was held as under:-- "It is regretfully put on record that there is a growing tendency to conceal the fact of dismissal of earlier petitions. We need not quote instances. There are so many. The litigants do not approach the Courts with clean hands. Where a petitioner does not approach the Court with clean hands, he is not entitled to the concession of bail and the discretion cannot be exercised in his favour. It is not difficult for a counsel to find out the truth as to whether an accused or co-accused had made any bail petition previously or not. Where a counsel makes a genuine effort to find out if the accused had previously moved bail petition and the litigant conceals it intentionally, the counsel is not to be blamed. Sometimes an accused succeeds in obtaining bail order from a different Bench by concealment of dismissal of his earlier bail petition or bail petition moved by the co-accused. In order to avoid such situation, it has been held by Supreme Court in Muhammad Khan v.
Muhammad Aslam and 3 others 1971 SCMR 789 that when one Judge of High Court refused bail, the rule of propriety and harmony required that subsequent applications made in the same case be referred to the same Judge who had earlier refused bail. This can be achieved only when the Judges is informed about the other petition. We need not remind the lawyers their status and duties towards their clients, opponents, Courts, and themselves. Lawyers are the `Custodians of Civilisation; than which there can be no higher aim and no nobler duty'. These words have been borrowed from the speech delivered by Mr. Justice Maugham, in Canada in or about the year 1967.
Every one taking part in the administration of justice is engaged in a task of importance to the welfare of the community. Lawyer is trained to observe and weigh facts, and to learn their values.
Maintenance of intellectual honesty is a matter of first importance. It is the duty of the lawyers to ascertain facts before putting up a case in a Court of law. The Code of honour of the Bar is at once its most cherished possession and the most valued safeguard of the public. In the discharge of his office, the Advocate has a duty to his client, a duty to his opponent, a duty to Court and a .Duty to himself. The whole foundation and structure of the administration of justice depends on mutual confidence of the Bench and the Bar. The life of one at the Bar who may not be trusted by the Court, must indeed be an unhappy one. Counsel may not know the law or he may be completely mistaken as to an interpretation of law. These are the things which can happen to anyone. But the Court is entitled to rely on him and consequently it is the duty of the counsel to draw the attention of the Court to any ruling which is contrary to his contention. It has been laid down in Faiz Ullah Khan v. Pir Mukamal Shah PLD 1961 SC 34 that Advocate's duty as Officer of Court is to do nothing consciously by act or omission which might mislead Court. It is hardly necessary to point out that the duty of the counsel in this regard is in complete accord with the interest of his client and his own interest. A counsel should remember that he is incharge of the case; he has to exercise his own judgment and discretion as to the conduct of the ease; no hope of immediate gain should lead him to depart from the traditions of the Bar. Members of the Bar belong to a great profession which has a far-reaching influence on the welfare of the country. Judges are appointed to administer justice. Without the help of counsel, they cannot succeed. Every member of the Bar is a helper in the administration of justice and he owes a duty not only to his client, but to the Court and that duty is fulfilled by this using of his power to bring before the Court the relevant facts and decisions to the end that a proper result may be obtained. If the members of the Bar act in the aforesaid manner, they would be fulfilling their duties to their clients, opponents, Courts and themselves.
' Copies of the orders passed by this Court on the bail petitions of Abdul Ghafoor alias Ghafoori, dated 21st May, 1973 and 17th September 1973, were sent to the District Magistrate, Lahore. Copy of the order, dated 17th September, 1973, is a part of the judicial file. Muhammad Sharif had moved bail petition after the rejection of the second bail petition of Abdul Ghafoor alias Ghafoori. The bail petition of Muhammad Sharif, was accepted on 25th October, 1973. It is not understood as to how the learned counsel for Muhammad Sharif did not know the filing and dismissal in limine of two petitions of Abdul Ghafoor, by this Court. But in view of the statement of Mr. RA. Awan, Advocate, at the Bar, who appeared on behalf of Muhammad Sharif in bail petition (Criminal Miscellaneous No,3783/B of 1973), we have no other option except to deem it as correct. We cannot, however, help observing that to say the least, he was not diligent in the performance of his professional duties. If he had cared to examine the file, he could have gained knowledge about the dismissal of the two bail petitions filed earlier by co-accused Abdul Ghafoor alias Ghafoori. In order to avoid such like situations, following suggestions are made:--
(i) That copies of orders passed by this Court on every bail petition, whether for bail before arrest or after arrest, should be forwarded to the Enquiry Magistrate/trial Court and the S.H.O., Police Station concerned;
(ii) That the S.H.O. Should place a copy of that order on the police file;
(iii) That the Enquiry Magistrate/trial Court should maintain a separate file for each police station and place the copies of the bail orders in the file during the investigation of the case, which should be open to inspection by the counsel and after the challah is submitted in Court, the copies of the bail orders should be placed on the judicial file;
(iv) That separate registers for each Sub-Division/Tehsil should be maintained in the High Court for entry of every bail petition with result thereof and it should be open to inspection by the counsel:
(v) Counsel should give his own certificate on every bail petition that the accused or the co- accused had not moved a bail petition earlier and other relevant information qua cancellation of bail petition in the same and/or cross-cases;
(vi) The above procedure/mechanism should be applicable mutatis mutandis to bail proceedings before the Sessions and Additional Sessions Judges.
' If these suggestions are accepted and acted upon, then it would be easy for a counsel to find out whether any party had moved any bail matter earlier in the same/connected case. And he would come to know of it even if his client was not prepared to divulge the truth. Thus, the law laid in above cited ruling 1971 SCMR 789 would be complied with in letter and spirit."
' In case of Ghulam Hussain (supra) at page 249 of the report, it has been held that all the bail applications arising out of the same case should be heard by the same learned Judge to avoid conflicting orders. Bail granted, which had been obtained by concealment of the factum of filing of a previous application was cancelled. Reliance was placed on the case of Farid v. Ghulam Hussain 1968 PCr.LJ 1424 and Muhammad Khan v. Sana Ulah PLD 1971 SC 324 to hold that a bail application should be heard by the same Judge who has once considered the matter in order to avoid conflicting orders.
' In case of Khan Beg (supra), it has been held that bail petition should be placed before the same Judge, who had dealt with earlier petition. It has been further held that withdrawing a petition from before one Judge and then making a fresh petition soon thereafter so that same be dealt with by another Judge is disapproved by Supreme Court.
In Zubair's case (supra), it has been held that the subsequent bail application should be referred to the same Judge/Bench, which has dealt with the earlier petition. Paragraphs 6 to 9 of the judgment are reproduced as under:-- "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 which 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 1968 SCMR 924 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 had already dealt with the matter earlier in order to avoid contradictory order. The latest ruling on the subject is Khan Beg, v. Sajawal PLD 1984 SC 341 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 afore-mentioned 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 council 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 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. 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 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 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 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, in the 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."
' In case of Shafiullah (supra), it has been held that if a previous application filed on behalf of accused person is dismissed as not pressed, bail granted on a fresh application by another Bench, is liable to be cancelled. At page 1230 of the judgment, it has been held as under:-- "This is a second bail application before me by the applicant Shafiullah. It was pointed out on previous dates of hearings to the learned counsel that in view of the judgment of the Supreme Court of Pakistan in the case of State v. Zubair reported in PLD 1986 SC 173, a second bail application is not maintainable before this Court inasmuch as previous bail application had not been perused and had been dismissed as such Mr. Muhammad Amin Mange, learned counsel for the applicant, submitted that according to his reading of the aforesaid judgment of the Supreme Court of Pakistan, a subsequent bail application by an accused to a Court is only barred in case his earlier bail application has been dismissed on merits. The submission of the learned counsel does not appear to be correct. I may reproduce here para. 8 of the judgment of the Supreme Court in the case of the State v. Zubair PLD 1986 SC 173:- `8. It might be useful to mention here that 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 passed, 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 bail application that the mere fact that the learned Judge who had rejected the first bail 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 the same had not found favor 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'.
' As the previous bail application on behalf of the applicant Shafiullah had not been pressed and was dismissed as such, in my view, the present bail application is not maintainable as there is no fresh ground taken in the present bail application. Criminal Bail Application No,1750 of 1986 accordingly dismissed."
' In case of Mst. Neelam Mawaz (supra), it 'has been held that High Court in appeals against orders passed by Special Courts of Suppression of Terrorist Activities, is ,competent to suspend the sentence passed by the said Courts, under the provisions of section 561-A read with section 426, Cr.P.C., in cases where the conviction is corm non juice as in such a case the bar as contained in section 7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, would not apply.
' In case of Asif Ali Zardari (supra), it has been held that by virtue of the provisions of section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the powers of the High Court under the provisions of sections 426, 491 and 498, Cr.P.C. Have been taken away. It has, however, been held that power of the High Court under section 497, Cr.P.C. To grant bail to a person, accused of scheduled offences and facing trial before a Special Court has not been taken away completely and can be exercised in appropriate cases in terms of section 497, Cr.P.C. Subject to the restrictions contained in section 5-A(8) of the Act.
' In case of Shahid Iqbal (supra), ratio as laid down in Zubair's case was not followed and the subsequent bail application for grant of post-arrest bail was entertained and decided by another learned Single Judge of this Court on the ground that the previous application which had been dealt with by another learned Single Judge was a pre-arrest bail decision whereof involves different legal principles and grounds.
7. We have given our anxious consideration to the arguments addressed at the bar, have gone through the relevant statutory provisions on the subject and case-law cited at the bar.
8. In order to attract the application of ratio as laid down in Zubair's case as well as other similar cases referred to above, it has to be shown that the previous application was heard and decided by the learned Judge/Bench. On perusal of the record of each case, we find that in all these matters, the bail applications have been heard and dismissed as withdrawn by the Division Bench of this Court comprising of Mr. Justice Raja Abdul Aziz Bhatti and Mr. Justice Iftikhar Hussain Chaudhry, JJ. It has been specifically held in case of Khan Beg and Zubair (supra) that an order of dismissal of application as withdrawn will be sufficient to attract the ratio of the said cases. .
9. As regards the argument based upon the provisions of section 369, Cr.P.C., law declared in cases of Gulzar Hussain Shah and Saleem Akhtar (supra) does not in any manner support the argument of the learned counsel for the petitioners. It rather goes against them as it has been held in both the cases that a bail order is liable to be recalled/rescinded, hence, the concept of review is very much attracted in the case, as such, it cannot be said that their Lordships of the Supreme Court while deciding the Zubair's case were either not conscious of the provisions of section 369, Cr.P.C.
Or law declared in the above cases., Hence the argument is misconceived and, hence is repelled.
10. As regards the argument of the learned counsel for the petitioners to the effect that ratio of Zubair's case applies to those cases alone which are heard by a learned Single Judge of this Court, the same is also misconceived. As per provisions of Rules 1, 4-A and 5, Chapter 3-B, Volume V of the High Court Rules, this Court functions in Single Benches as well as in Division and full Benches.
Decision rendered by a Bench is to be that of the High Court, whatever may be the number of the Honourable Judges sitting in a Bench, as each Bench of this Court represents the High Court. A similar question carne up for consideration before one of us (Mr. Justice Ch. Mushtaq Ahmad Khan) in C.M.. No,346 of 1993 in Writ Petition 5268 of 1992, wherein the matter had been remitted back to be heard by the learned Judge in Chamber who had earlier decided the C.M. By their Lordships of the Supreme Court of Pakistan in C.P.S.L.A. No,644/L of 1994. As the learned Judge in Chambers (Mr. Justice Malik Muhammad Qayyum, J.), was not available, under the orders passed by the senior Vacation Judge, it was placed for hearing before one of us (Ch. Mushtaq Ahmad Khan, J.). An objection was raised that it is the same learned Judge (Mr. Justice Malik Muhammad Qayyum, J.), who has earlier decided the matter, who can hear the case and not any other Judge of the High Court). The objection was repelled vide order, dated 5-9-1994. It was held that as each Judge of the High Court represents the High Court itself, therefore, the matter can be heard by any learned Judge of this Court. When the main writ petition came up for hearing before a Full Bench of this Court, the objection was again repeated by Dr. A. Basit, learned counsel for the petitioner but was repelled and the order, dated 5-9-1994 referred to above was approved by the learned Full Bench of this Court, in case of Abdul Qayyum Khan v. Government of Punjab through Secretary, Local Government and Rural Development Department and another PLD 1995 Lah.
205. At page 215 of the report, it has held as under:-- "Besides, the argument that no learned Judge other than my brother (Malik Muhammad Qayyum, J.), could hear the case after remand in terms of the judgment of the Supreme Court has already been repelled through order, dated 1-9-1994 passed by my learned brother (Mushtaq Ahmad Khan, J.), before whom at one stage the case was fixed for hearing in which it was held that the term 'Judge in Chamber' used in the judgment of the Supreme Court did not mean the same learned.
Judge who earlier dealt with the case but any Judge of this Court. This order admittedly remained unchallenged. The objections raised by Dr. A. Basit, Advocate, learned counsel for the petitioner are, therefore, repelled."
11. Examined the argument from another angle, the same results are bound to follow. The reasons for taking the view in Zubair's case that the bail application in the same case should be heard by the same learned Judge, will remain to be common, even if, the previous application had been heard by a larger Bench, therefore, it will not make any difference whether the case is heard by a learned Single Judge or by a larger Bench to attract the applicability of law declared in Zubair's case. Therefore, we hold that ratio of Zubair's case is not only applicable to the matters which are decided by the learned Single Judge but is also applicable to all the cases decided by any Bench irrespective of the number of Judges sitting in the Bench, which interpretation further finds support from the words used in paragraph 6 of the judgment, wherein besides the word "Judge" the word "Bench" is also used.
12. As regards the argument of learned counsel for the petitioners that if the ratio of Zubair's case is applied also to the bail application earlier dealt with by a larger Bench, the expeditious hearing and disposal of the said applications, which are always of urgent nature, will not be possible, as the constitution of Benches goes on changing and, hence, will cause a great inconvenience to the people, suffice it to say that the argument stands answered in Zubair's case itself in paragraph 9 thereof, which has been reproduced in earlier part of this order. Hence, in cases of impossibility the Honorable Chief Justice can constitute another Bench to hear the subsequent bail application, as such, there will be absolutely no difficulty in expeditious disposal thereof. Even otherwise the vices and malpractices which are sought to be eliminated to achieve transparency of justice by following the law declared in Zubair's case, are much higher in necessity and values, than the delay of a day or so, which may occur for waiting for or constitution of another Bench for decision of the subsequent bail petition. In the case in hand, as both the Honorable Member judges of the Bench, who had decided the earlier applications, shall work even during summer vacations as per Roster issued by .The Honorable Chief Justice, argument of the learned counsel is just conjectural and ethereal, hence, is repelled.
13. As regards the argument of the learned counsel for the petitioners that the law declared in Zubair's case cannot be said to be a law declared as per provisions of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 is just a principle of regulation of the Court proceedings, is not binding on Courts, hence, need not be followed, suffice it to say that the argument is misconceived and is based upon incorrect reading of the plain provisions of Article 189 of the Constitution, which is reproduced as under:-- "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan."
14. A plain reading of the aforementioned Article clearly shows that decision of the Supreme Court is binding on all other Courts in Pakistan to the extent it decides a question of law or is based upon or enunciates a principle of law. The judgment as rendered in Zubair's case does enunciate a principle of law and, therefore, is binding on all the Courts in Pakistan. In the precedent cases decided by their Lordships of the Supreme Court of Pakistan, rule of propriety has been declared/enunciated as a rule of law, as the precedents are also a source of the law making, which rule is binding on all the Courts. We hold accordingly and, hence, repel the argument of learned counsel for the petitioners.
15. The view taken in the case of Shahid lqbal (supra) decided by a learned Single Judge of this Court is contrary to the law declared by the Supreme Court is contrary to the law declared by the Supreme Court of Pakistan in Zubair's case as well as cases of Ghulam Hussain; Muhammad Yousaf; Farid; Muhammad Khan; Abdul Ghafoor, Shafiullah and Khan Beg (supra), hence, the same is overruled.
16. As regards the argument that ratio of Zubair's case will not apply to the case in hand as the bail application has been moved under a special law and not Criminal Procedure Code, the same is also misconceived and is based upon incorrect reading and wrong interpretation of the provisions of special law and Code of Criminal Procedure. Section 497, Cr.P.C. Has not been completely excluded from application and as held in cases of Mst. Neelam Mawaz and Asif Ali Zardari (supra), provisions of sections 561-A, 426 and 497, Cr.P.C. Can be resorted to for suspension of cases/grant of bail in given circumstances, in appeals/cases arising out of orders passed by Special Courts of Suppression of Terrorist Activities. Even otherwise except the provisions of law where under bail applications in questions are being dealt with, there is absolutely no other distinguishing feature which may justify a departure from the ratio of Zubair's case, in the case in hand. Hence, the argument being without any legal force is repelled.
17. Resultantly, we uphold the objection raised by the learned counsel appearing for the State and hold that all these petitions are governed by the ratio of Zubair's case, hence, shall be placed before the Division Bench comprising of the same learned Judges, who have disposed of/decided the earlier bail matter in all these cases.
18. The office, hence, is directed to fix these matters before the said learned Benches at their earlier availability. However, in case of impossibility, necessary orders shall be obtained from the Honorable Chief Justice.