1. ' WAJIHUDDIN AHMED, J.---This criminal petition for leave to appeal is directed against an order dated 21-10-1998, passed by a learned Single Judge of the High Court of Sindh, whereby bail before arrest was declined to the petitioner and correspondingly Criminal Bail Application 2030 of 1998 stood dismissed.
2. ' F.I.R. No,17 of 1997 was lodged by one Abdul Karim and registered at Police Station Jhol for an offence under section 302 read with sections 147, 148 and 149, P.P.C. The first informant in such F.I.R.
3. Alleged that he alongwith his uncle Allah Bachayo and cousins Ghulam Nabi, Mumtaz and Ghulam Ali was residing on Government land in Deh Dhamarki for the past five years. Ali Nawaz Jalani, (on the one hand) and Allah Bachayo (uncle of the first informant) and Ghulam Ali (cousin) etc. (on the other) had submitted applications(s) to the Colonization Officer, Sukkur Barrage for allotment of such land, Fifteen days prior to the incident the Colonization Officer had allotted the land in question to Ali Nawaz Jalani and against the allotment, Allah Bachayo and Ghulam Ali, etc., aforesaid, had filed appeal before the Additional Commissioner, Mirpurkhas, which was pending.
4. On the day of the incident viz. 23-3-1997 the first informant heard fire-arm reports from the eastern side of the said house whereupon he, Ghulam Karim, Jamal, Muhammad Bux and Ghulam Nabi went out of the house and, the time being 6-00 a.m., saw Ali Gul, Mithal, Ibrahim and Dodo Shar, armed with guns and Ali Sher, having a revolver in his hand, standing near the house. The complainant party enquired from them as to why they had fired at such house. At this juncture, Ali Gul fired a gunshot, which directly hit Ghulam Karim, who fell down on the spot. In the meantime, the co-accused also fired directly at the complainant party, which had given Hakals and moved towards the culprits. Then, the accused party ran away firing towards the eastern side. A Suzuki Mehran white car was standing at a distance of two acres and Mir Laskani was allegedly standing nearby. The accused, except Ibrahim, fled in the above car towards the northern side. Ibrahim was caught with a single-barrel gun by the complainant party on the spot. The complainant party took Ibrahim to the place where the injured Ghulam Karim was lying. The latter had sustained fire-arm injury on his left flank and his intestines had resultantly come out. The complainant left behind Anwar, Jamal and other neighbours and, making arrangement of a vehicle, took Ghulam Karim to the Civil Hospital, Sanghar where, on reaching, Ghulam Karim died. Muhammad Bux and Ghulam Nabi were left with the dead body in the hospital and the first informant proceeded to lodge his F.I.R., alleging that with a common object the accused, while rioting and firing, had murdered his cousin Ghulam Karim.
5. ' It would appear from the record that petitioner Mir. Khan filed a criminal bail application for pre- arrest bail at the Hyderabad Bench of the High Court of Sindh on 28-4-1997. Such on 29-4-1997 came up before a learned Judge of the High Court posted at the Bench, who admitted the applicant to interim bail. The said application was forwarded for further hearing before the same learned Judge when he resumed duties at Karachi. However, on 21-3-1998 the learned Judge was informed that Criminal Bail Application No,897 of 1997 had, in the meantime, been filed at the Principal Seat of the High Court on 12-6-1997. That was dismissed by another learned Judge of the Court on 4-9-1997 and leave Petition bearing No,59-K of 1997 (Ali Sher and others v. State) was, in turn, dismissed by this Court on 26-11-1997, through a short order, observing that no valid ground for interference had been made out. In such circumstances and referring to Sate v. Zubair, PLD 1986 SC 173 and Muhammad Taj v. Muhammad Akhtar, 1997 SCM R 1336, the learned Judge before whom the first bail application in the case was put up at the Hyderabad Seat directed the office that the matter be placed before the Chief Justice of the High Court for such orders as be deemed fit.
6. Evidently, the bail application was then placed before the learned Judge who had declined bail in Criminal Bail Appellation No,897 of 1998, the same result following on 21-10-1998 and the interim bail coming to be recalled in the process.
7. ' A number of authorities have since emerged on the subject of the rule of consistency, demanding that the second and subsequent bail applications of the same or other accused in the case are dealt with only by the same Judge in the High Court who had disposed of the first, if such Judge be available. The rule has been held to include also such cases where bail, having been cancelled by one learned High Court Judge, such is, on a later day sought before another, the requirement spelled out to be that, subject to availability, pleas for bail in such circumstances should also come up before the same Judge who, earlier on, cancelled it. The applicable cases, which can readily be referred from this jurisdiction, are cited below:--
(1) Farid v. Ghulam Hassan, 1968 SCM R 924.
(2) Muhammad Khan v. Muhammad Aslam 1971 SCM R 789.
(3) Muhammad Khan v. Sanaullah, PLD 1971 SC 324
(4) Khan Beg v. Sajawal, PLD 1984 SC 341.
(5) State v. Zubair, PLD 1986 SC 173 and
(6) Muhammad Taj v. Muhammad Akhtar, 1997 SCM R 1336.
8. ' Such cases, and in particular Zubair's case, have been interpreted and applied in the High Courts, of which Roshan v. State, 1989 PCr.LJ 609, Badal v. State, 1990 PCr.LJ 31 and Muhammad Mustaqeem v. State, 1990 PCr.LJ 1216, where two of us were parties, may be noted here. In the first two of these cases it was observed that Zubair's case did not strictly extend to matters, where, an earlier bail application having been rejected on merits, a subsequent one was filed purely on the ground of stutory delay and the Judge who disposed of the earlier application was not available at the Bench where the first application was disposed of. The third case, viz. That of Muhammad Mustaqeem, contemplated a situation where no earlier application was disposed of by another Judge of the High Court but only a notice was ordered or interim bail, subject to notice, was allowed, the learned Judge no longer remaining available at the Bench where notice or interim relief, subject to notice was ordered or accorded or roster sittings did not permit him to deal with the same. Exceptions to the conclusion having been duly enumerated, it was found there that such a case, unless shown otherwise, could later be placed, according to roster, before another Judge available at the Bench.
9. The reason is obvious. While the rule of propriety, harmony, consistency and just or fair disposal of bail matters, as inter alia enshrined in Zubair's case, is a salutary one, to be observed as far as practicable, the superior Courts cannot make a fetish of technicalities to an extent, where the object of the rule is relegated, to the background and mere technicalities are allowed to rule the situation. It is in this perspective that subsequent bail applications, purely on the ground of statutory delay and the same bail applications, where mere notice or interim relief is ordered or accorded and which are still required to be heard at a Bench other than the Principal Seat of the High Court concerned or vice versa, are to be viewed. Similar would be the approach where a Judge, still adorning the High Court, is away on leave or otherwise non-available for a reasonable period of time, for keeping such a bail matter, which of necessity is an urgent one, awaiting the availability of the Judge concerned, can obviously result not only in avoidable inconvenience but even to misery. Such exigencies are already contemplated in the applicable precedents. Thus, their lordships in Muhammad Khan v. Sanaullah, PLD 1971 SC 324 (329) recorded as below:- "We fail to see why the rule laid down in Farid v. Ghulam Hussain and others which must have been brought to the notice of the learned Judge was not followed in the present case. We were told that when interim bail was granted the first Judge was not available. But having granted interim bail to the respondent No,1 he should have stayed his hand and sent the case back to the first Judge who had in the first instance refused bail ' Having said as much, we should not be construed to exclude from the operation of the rule in Re Zubair, a case where, even though only notice has been ordered or interim bail is allowed yet the order passed, comes to reveal a situation, warranting that the matter be heard by the same Judge of the same Court. Such a situation is possibly exemplified by Muhammad Taj v. Muhammad Akhtar, 1997 SCM R 1336, (supra)-Based on the foregoing discussing, we are of the view that the learned Single Judge, who had, a good deal earlier, allowed interim bail before arrest to the present petitioner, when apprised of a subsequent filing and disposal of another bail application finally by another learned Judge of the High Court acted correctly and in consonance with the principles discussed, when he desired the case to be put up for being dealt with by the second Judge aforesaid. In doing so, even though the learned Judge did not strictly conform with the opinion in Zubair's case, (supra), he did apply the spirit underlying that decision Taking up the merits of the case now, while the learned counsel appearing for the petitioner insists that no overt act or specific role has been assigned to the petitioner in the F.I.R., it has been conceded at the bar that the car in which the other accused fled from the scene of the crime did at one time belong to him. In the circumstances, the present accused cannot be said to be a mere bystander in the incident. Other considerations, also, peculiar to pre-arrest matters, are not established. We would, therefore, dismiss this criminal petition for leave to appeal but in doing so expect that nothing which has been said by us here or by the learned Judge of the High Court in Chambers would affect the merits of the case as and when the same are taken up. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.