' All the four applicants/accused present in Court are involved in Crime No,4 of 1998, Police Station Mangli, arising cut of sections 10(3), 11 and 16 of Offences of Zina (Enforcement of Hudood)
Ordinance, 1979 for which they have applied for protective bail in order to approach the Sessions Judge, Sanghar and to avail pre-arrest bail.
2. On 23-9-1998 when this matter was taken up, Mr. Mian Khan Malik, learned Additional Advocate- General who was present in some other cases was put to notice, who waived notice and raised a preliminary legal objection that Since in this matter, three co-accused were granted bail by another learned Single Judge of this Court Amanullah Abbasi, J., this hail application is also to be placed before him as per rule laid down in the case The State through Advocate-General, N.-W.F.P., v. Zubair and 4 others (PLD 1986 SC 173). As such the matter was adjourned for 24-9-1998 for hearing of this objection as well as for hearing of protective bail application.
3. I have heard Mr. Nisar Ahmed Rana, Advocate who contended that since in grant of protective bail the question of merits are not considered, therefore, the rule laid down in the Zubair's case (supra) is not attracted. In support, he has placed reliance on the case Shamsuddin Mir Jat v. The State (PLD 1996 Karachi 382), where it was held by a learned Single Judge of this Court that where previous order in the bail application was not passed on merits, it is not necessary to place the subsequent bail application before the same Judge for disposal. On the other hand, learned Additional Advocate-General in addition to the case of Zubair (supra) has also referred to the case of Sheikh Rashid Ahmed v. The State (1996 PCr.LJ 370) where a learned Division Bench of Lahore High Court, while following the rule laid down in the Zubair's case, held, inter alia, that in order to attract the application of ratio as laid down in Zubair's case, it has to be shown that the previous application was heard and decided by another Judge. It was further held that an order of dismissal of application as withdrawn will be sufficient to attract the ratio of said cases. In this case, on three different occasions bail before arrest were granted to the co-accused by my learned brother Amanullah Abbasi, J. Firstly, ad interim bail was granted to co-accused Muhammad Younus in Criminal Bail Application No,207 of 1998 by the said Judge while sitting at Circuit Bench Hyderabad which was confirmed subsequently. As a result of such order the subsequent bail application of co-accused Raja Salim Akhtar was placed before the same learned Judge at Karachi, when again on 25-8-1998, pre-arrest bail was granted to co-accused Raja Salim Akhtar in Criminal Bail Application No,351 of 1998. Lastly on 1-9-1998 again interim pre-arrest bail has been granted to co- accused Javed Shafi, which is fixed for final hearing on 5-10-1998 at Karachi before the same Judge. In these circumstances it was argued by the learned Additional Advocate-General that this bail application may also be placed before him as he has dealt with the earlier bail applications.
4. According to Roster, Amanullah Abbasi, J. Is presently at Larkana Circuit Court and is likely to join the Principal seat from 5-10-1998. It was held, inter alia, by a Full Bench of Honourable Supreme Court in the case Zubair (supra) that:- ' "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 plan he second or the subsequent bail application before the same learned Judge who had dealt with the earlier application of the same accused, or in the same case. In such cases, the learned Chief Justice of the concerned High Court may order that it he fixed for disposal before any other learned Judge of that Court".
5. In my view, the instant case is a case of hardship. The applicants/accused are apprehending their arrest at the hands of Police and, with all sincerity, are making attempts to obtain pre-arrest bail. If it is held that in such circumstances even the protective hail is to be heard by the same Judge who has dealt with the earlier bail application, then the entire purpose of granting protective bail shall stand frustrated. High Courts of all the four Provinces are granting protective bails to the accused to enable him to approach the concerned Court of other Provinces for the purpose of obtaining pre-arrest bail. If it is to be held that the rule of Zuabir's case is applicable in hearing protective bail applications then no other High Court would be competent to grant protective bail, in case any of the co-accused has been granted bail earlier by the Court of that Province. The grant of protective bails without touching merits of the case have become established practice of the Superior Courts. If any reference is needed see Muhammad Amin v. The State (1973 PCr.LJ 661), Ch. Allah Dittav. The State (1989 PCr.LJ 2152), Haji Ghani v. The State (PLD 1988 Lahore 507).
6. From the facts of the case Haji Ghani (ibid) it appears that the applicant in that case was granted protective bail by this Court in order to obtain pre-arrest bail from the Sessions Judge, Lahore but the same was declined by the Sessions Judge, Lahore and again in order to enable him to appear before the Lahore High Court he was granted protective bail by this Court. All the above mentioned reported cases alongwith several other unreported cases were considered by the former Chief Justice of this Court Ajmal Mian, C.J. (as his Lordship then was) in the case Malik Mukhtar Ahmed Awan v. The State (1990 PCr.LJ 617) where it was held, inter alia, that High Court can grant interim protective bail in order to enable the applicant to approach the Sessions Judge or other competent Court situated even outside the territorial limits. It was also observed, inter alia, by his Lordship that the Court is "always slow to deviate to disturb a practice which may be beneficial to accused persons". If any further reference is needed see Abdul Rehman and others v. The State (1990 MLD 1522) and Ghulam Sarwar v. The State (1989 MLD 4646).
7. In the case of The State v. Malik Mukhtar Ahmed Awan (1991 SCMR 322) a pre-arrest bail was granted to the respondent by the Lahore High Court against which the State went into appeal before the Honourable Supreme Court. The petition as dismissed by a Full Bench of Honourable Supreme Court while observing, inter alia, that "It is a matter essentially of a propriety and not of law that a person accused of an offence should in the first instance move the Court of Sessions for pre-arrest bail before approaching the High Court." It has become an established practice for the High Courts to grant protective bails to accused persons to enable them to approach the trial Court/Court of Sessions for obtaining pre-arrest bail irrespective of the fact, whether he is involved in any heinous or other crime. Orders for grant of protective bails are tentative in nature. It expires the moment period of protection is lapsed. Admission of an accused on protective bail for a given period does not entitle him for pre-arrest bail as a matter of right. It is for this reason that merits of the case are not discussed while admitting an accused to protective bail. This is done in order not to prejudice findings of the concerned Court which will be granting or refusing applications for pre- arrest bail. Such practice is adopted for the reason to encourage accused to surrender himself to the custody of the Court and to seek justice on the merits of the case. In case a protective bail is refused this will force an accused person to become fugitive from justice which is neither the intention of law nor of the Courts. In this view of the matter, I am inclined to hold that the grant of protective bail is not covered by the ratio of Zubair's case, as held by another Judge of this Court in the case Shamsuddin Mir Jat (supra).
8. In view of the above facts, vide short order dated 24-9-1998 all the applicants/accused were admitted to protective bail for a period of ten days upon furnishing solvent surety of Rs,100,000 (Rupees one lac) each with P.R. Bond of the like amount to the satisfaction of Additional Registrar of this Court. Above are the reasons for the said short order.