' ZAHID KURBAN ALAVI, J.--- We had before us several bail applications in which interim orders had been passed. At the very outset a technical point was raised that since the interim pre-arrest bail was granted by another Single Judge, therefore, the matter should be referred back to the same Judge. Counsel appearing on behalf of the accused, however, wanted that this matter should be heard as they were of the opinion that there existed justifiable reasons by which the principles of Zubair's case could be distinguished.
2. Since this matter was of considerable importance a Division Bench was constituted to hear this matter.
3. The counsel appearing on behalf of various accused conceded to the fact that the decision of Honourable Supreme Court in the case of The State v. Zubair and 4 others PLD 1986 SC 173 did not take into consideration the fact that hardship was being caused to the accused when matters were being transferred from one Circuit Bench to another depending on where the Judge who had passed the interim order was sitting. This hardship was felt more by the accused who were not in a position to afford the expenses of travel from Circuit Benches especially in Sukkur and Larkana to Karachi.
4. Those counsel, who represented the State, were of the, opinion that the settled law was that in any matter where one Judge had passed an interim order then for the purposes of final order the matter had to be placed before the same Judge. The same principle was applicable in respect of a bail that was granted to one of the accused and the co-accused then moved a bail application.
The application of the co-accused was also to be heard by the Judge who had granted or refused the bail application of the main accused. Learned counsel relied on the famous case of The State v.
Zubair and 4 others PLD 1986 SC 173. We would like to reproduce the relevant portion of this judgment where the Honourable Supreme Court has discussed the various points where the bail application is to be disposed of by the same Judge and yet have given a flexibility in their opinion:- - "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, or 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."
5. It would be appreciated that the points/principles upon which the case of Zubair has been relied upon needs to be associated with the case of Muhammad Taj v. Muhammad Akhtar and another 1997 SCMR 1336; hence the principles of Zubair's case and Muhammad Taj's case would be applicable to all those cases which are directly identical to those that were discussed. However, what has not been looked at and needs to be appreciated is the concept of providing fast, efficacious and inexpensive justice to the doorstep of an individual. The High Courts all over Pakistan originated in one city of each Province. With the passage of time and keeping in mind the increase in work Circuit Benches were created to facilitate and dispose of matters that needed the attention of Judges of the High Courts. More Circuit Benches were created subsequently, and in effect today in the Province of Sindh the High Court is functioning at Karachi, Hyderabad, Sukkur and Larkana. Whilst the Judges in Sukkur High Court Bench are expected to remain for a period of one year, the roster in respect of Hyderabad and Larkana keeps on changing every month. The roster even in Karachi changes. This change in roster perforce makes the availability of a particular Judge in a given month in any of the three Courts sitting in Sindh. If, therefore, an interim order is passed by a Judge sitting in Larkana Circuit Bench where a bail is granted to an accused and on the change of roster the Judge is shifted to Hyderabad then based upon the principles of Zubair's case and Muhammad Taj's case either the accused and/or the co-accused for the confirmation of his bail or otherwise shall have to move an application before the same Judge sitting at Hyderabad. System being as it stands the chances are that by the time the matter is fixed in Hyderabad the roster of sitting changes again. Ultimately, the looser in this entire exercise is the accused. Surely, that is not the objective of law. A person is entitled to ID get his matter heard and disposed of instead of chasing a Judge all over a Province.
6. In the case of Umed Ali v. The State PLD 1987 Kar. 372, it was held as follows:-- "Bail application of accused wherein interim order was passed without discussing merits, can be placed before another Judge but it should normally be placed before the same Judge, if available, who passed the interim order; where interim bail was granted on consideration of same merits, it should invariably be placed before the same Judge if and when or where available.
' Bail application of co-accused where interim order was passed without discussing the merits can be placed before another Judge but it should normally be placed before the same Judge, if available, who passed the interim order. In a case where interim bail has been granted on consideration of some merits it should invariably be placed before the same Judge if and when or where available, for the principle enunciated by the Supreme Court in PLD 1986 SC 173, 1968 SCMR 924 and PLD 1984 SC 341 would not be applicable in the first case but it would be applicable in the second case as in the second case another Judge at the time when the interim order comes up before him might review the earlier order on consideration of additional facts or arguments or new facts that might be brought to his notice by the State or other side, therefore, it would be proper that application should be heard by the same Judge. It is all the more necessary to avoid any conflicting orders."
7. In the case of Shamsuddin and another v. The State PLD 1996 Kar. 382, it was held as follows:-- "Successive bail applications---Previous order in the bail application having not been passed on merits, it was not necessary to send the subsequent bail application to the same Judge for disposal."
8. In the case of Muhammad Taj v. Muhammad Akhtar and another 1997 SCMR 1336, it was held as follows:-- "Constitution of Islamic Republic of Pakistan, 1973, Article 185(3)---Interim bail confirmed by another Judge---Interim bail granted to accused by a Judge of Lahore High Court, Rawalpindi Bench, was confirmed by another Judge of that Court, although the former Judge on that date was working at the principal seat of the Court at Lahore---Since the Judge who had admitted the accused to interim bail was available as a Judge of that Court, bail application should have been fixed before him for disposal in view of the decision of the Supreme Court in the case of the State v.
Muhammad Zubair PLD 1986 SC 173---Petition for Leave to Appeal was converted into appeal in circumstances, order confirming the interim bail was set aside and the bail application was directed to be placed before the Judge who had allowed interim bail to the accused for disposal according to law."
9. In the case of Mir Khan v. The State 1999 SCMR page 790 it was held as follows:-- "Bail---Subsequent bail applications---Rule of propriety for disposal---Rule of propriety, harmony, consistency for just or fair disposal of bail matters as, inter alia, enshrined in Muhammad Zubair's case reported as PLD 1986 SC 173, is a salutary one and is to be observed as far as practicable--- Superior Courts cannot make a fetish of technicalities to an extent where object of said rule is relegated to the background and mere technicalities are allowed to rule the situation and 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."
10. Even in Mir Khan's case Mr. Justice Wjihuddin Ahmad, J., (as his Lordship then was) held that the principles of Zubair's case may be observed as far as it was practicable. But superior Courts should not make a fetish of technicalities to the extent where the object is relegated to the background and mere technicalities are allowed to rule the situation. These observations were made by him where the bail was sought on the grounds of statutory delay. He was rightly of the view that any Judge could look into such a bail application and pass orders according to law.
11. In the order, dated 24-9-2001 passed in suo motu Criminal Review No,9 of 2001 a Full Bench of Honourable Supreme Court, headed by Irshad Hasan Khan, C.J., while discussing the case of the State v. Zubair PLD 1986 SC 173, come to the conclusion as follows:-- "4. It appears that the spirit underlying Zubair (supra) which still holds the field was not intended to create difficulties/ bottlenecks or to work prejudicially to the interest of all concerned. If it is so, it is for the learned Chief Justice concerned to examine whether in any of the given case, due to non- availability of the Bench/Judge who had earlier dealt with the bail application owing to exigencies of service or any other sufficient cause, departure has to be made in the larger interest of justice and refer the cause to another Bench/Judge for reasons to be recorded in writing. The same procedure should be followed at the Benches where similar orders may be passed by the Senior Judge."
12. We are, therefore, going to fix these matters for hearing of the bail applications. However, before they are fixed necessary permission of the Honourable Chief Justice should be obtained by the office.