1. This is the second bail application filed on behalf of the present applicant/accused, who is facing trial before the Court of Vth Additional Sessions Judge, Karachi (South) in Sessions Case No,380 of 1998, arising out of F.I.R. No,98 of 1998 of Preedy Police Station, Karachi, in the offences under section 363/342/377/34, P.P.C. His earlier bail application bearing Criminal Bail No,1143 of 1998 was dismissed by this Court on 23-11-1998 for non-prosecution.
2. Mr. Arshad Lodhi, A.A.-G., Sindh, has objected to placing this bail application before me as according to the rule laid down by the Honourable Supreme Court in the case of the State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 it is to be placed before the same Judge, if available on the Bench, who has dealt with the earlier bail application. Mr. Azmat Shah has contended that the Zubair case is not applicable in the instant case as the first bail application was not considered on merits and was rejected for non-prosecution. He has placed reliance on the cases of Muhammad Tasleem Khan v. The State 1996 PCr.LJ 580 and Karamat Hussain v. Faraqat Hussain and 4 others PLD 1987 SC (AJ&K)
27. Mr. Arshad Lodhi has referred to the case of Khan Beg v. Sujawal and others PLD 1984 SC 341 in addition to the case of Zubair (supra).
3. The above said question was earlier considered in the year 1968 when it was held by a Full Bench of Honourable Supreme Court in the case of Farid v. Ghulam Hussain and others 1968 SCM R 924 that the rule of propriety requires that the subsequent bail application should be placed before the same Judge, who had earlier dealt with the said case. The view was followed by another Full Bench of Honourable Supreme Court in the case of Zubair (supra). The case of Khan Beg (supra) cited by Mr. Arshad Lodhi was also considered in the case of Zubair. In this view of the matter it is now well- settled that all subsequent bail applications arising out of the same offence are to be placed before the same Judge, if available on the Bench, who has dealt with the earlier bail application in the same case. However, exception was laid down by the Supreme Court in the case of Zubair (supra) that where it is "absolutely impossible" to place the second or the subsequent bail application before the same Judge, the learned Chief Justice of the concerned High Court may order for fixing such bail application for disposal before any other Judge of that Court. In the circumstances of the present case it could not be said that it is absolutely impossible to place this case before the same Judge who had earlier dealt with the bail application as my learned brother is still available on the Bench at the Principal seat.
4. I would like to mention here that the scope of the rule laid down in the Zubair case (supra) was extended by the Supreme Court in the case of Muhammad Taj v. Muhammad Aktar and another 1997 SCM R 1336 where it was held that in the matter of pre-arrest bail when the interim bail is granted by one Judge it is to be fixed before the same Judge for confirmation or otherwise of the earlier order. In that case after granting interim bail the concerned Judge of the Lahore High Court was not available at the principal seat at Lahore at the relevant time and the pre-arrest bail was dealt with by another Judge. The petition was accepted and the matter was remanded by the Honourable Supreme Court to the Lahore High Court with the direction to place the said matter before the same Judge, who had earlier granted interim pre-arrest bail. In the instant case the earlier bail application was dismissed for non-prosecution without touching merits of the case.
5. Thus, it was argued by the learned counsel for the applicant/accused that it could be placed before any other Judge, who is seized of the criminal roster.
6. Here, I would like to refer to a decision of the Division Bench of Lahore High Court in the case of Shaikh Rasheed Ahmed v. The State 1996 PCr.LJ 370 where the earlier bail application v, dismissed dismissed as withdrawn by an earlier Division Bench while the subsequent bail application was placed before another Division Bench. It was held by the learned Division Bench of the Lahore High Court that even in such circumstances where the bail application was not pressed and was dismissed as withdrawn the rule laid down in the case of Zubair (supra) is fully attracted and subsequent bail applications are to be placed before the same Division Bench. I am conscious of the decision of this Court in the case of Shamsuddin Mirjat v. The State PLD 1996 Kar. 382 where the second bail application was not referred to the Judge, who had dealt with the first bail application on the ground that it was not considered on merits. In that case the rule laid down in the abovementioned cases was not discussed.
7. There may arise some occasion where an applicant/accused may choose not to proceed before one particular Judge and thereby allow his bail application to be dismissed for non-prosecution.
8. He may wait thereafter and repeat his subsequent bail application before another Judge for his convenience sake. In order to suppress such mischief on the part of an applicant/accused, I am inclined to hold that even where a bail application was not pressed or withdrawn or when it was dismissed for non-prosecution, it is to be placed before the same Judge, if available on the Bench, except in absolutely impossible circumstances, for which the Honourable Chief Justice is authorised, as per Zubair's case to place the same before another Bench. Nonetheless, I would like to express my reservation on the point that a bail application is liable to be dismissed on the ground of non-prosecution.
9. As a result of above discussion, on 14-1-1999 through a short order, this bail application was ordered to be placed before my learned brother Mr. Abdul Ghani Shaikh, J. Who had passed the earlier order. Above are the reasons.