CHAUDHARY MUHAMMAD TAJ, J.---This appeal has been filed against the judgment and order passed by the Shariat Court on November 25, 2002.
2. The facts precisely stated are that the respondent is facing trial before the District Court of Criminal Jurisdiction Kotli under sections 302, 377 and 34, A.P.C. She filed bail application which was rejected by the trial Court. A revision petition for her bail was lodged before the Shariat Court of Azad Jammu and Kashmir which was dismissed by the learned Judge in the Shariat Court (Mr. Justice Iftikhar Hussain Butt). The respondent after some time moved for the bail before the trial Court which was again refused. The order was challenged in a revision petition before the Shariat Court wherein an objection was raised on behalf of the complainant (appellant herein) that the revision petition may be heard by the Bench which had disposed of the earlier petition. On which the learned Judge in the Shariat Court (Mr. Justice Hussain Mazhar Kaleem) referred the matter to the Chief Justice of the Shariat Court for further orders. The learned Chief Justice after hearing the parties did not agree with the learned Judge and referred the matter to him for disposal. The aforesaid order is challenged through this appeal.
3. Ch. Ali Muhammad, the learned counsel for the appellant, contended that the order passed by the learned Chief Justice in the Shariat Court is illegal and is also against the accepted principles of law. It was argued by him that previous bail application of the respondent was heard by a Bench consisting of Mr. Justice Iftikhar Hussain Butt and in its second round the same was placed before Mr. Justice Hussain Mazhar Kaleem who referred the matter to the Chief Justice for placing the same before the Bench which had already dealt with the matter. It was forcefully argued that in the presence of a Judge on the Bench who had previously decided the matter, the bail matter could not be entrusted to another Judge for disposal. The learned counsel referred to the following authorities in support of his contentions:--
(1) Karamat Hussain v. Faraqat Hussain and 4 others [PLD 1987 SC (AJ&K) 27].
(2) The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others [PLD 1986 SC 1731.
(3) Khan Beg v. Sajawal and another [PLD 1984 SC 341].
(4) Haroon Khan and another v. The State [1986 PCr.LJ 2991].
4. Mr. Muzaffar Ali Zaffar, who appeared on behalf of the respondent, though did not seriously dispute the legal position, however, submitted that the appellant is making effort to prolong the matter. It was also asserted that the present revision petition filed by the respondent before the Shariat Court cannot be termed as successive bail application, therefore, can be heard by any Judge available in the circuit. The learned counsel referred a case reported as Muhammad Tasleem Khan v. The State [1996 PCr.LJ 580] in support of the arguments.
6. We have heard the learned counsel for the parties and also gone through the record. It is not disputed between the parties that the previous bail matter was disposed of by the learned Judge Mr. Justice Iftikhar Hussain Butt and the present revision petition for bail against the order of District Court of Criminal Jurisdiction Kotli was placed before the learned Judge Mr. Justice Hussain Mazhar Kaleem who referred the matter to the learned Chief Justice for re-constitution of the Bench. The learned Chief Justice in the order impugned herein, maintained that the Judge who had previously dealt with the matter was at Headquarters as such sent back the revision petition to the Judge sitting at Kotli Circuit (Mr. Justice Hussain Mazhar Kaleem) for disposal.
7. By now it is a settled proposition of law, that where a Judge of the High Court/Shariat Court has heard bail application of an accused person, the subsequent petition for bail by the same accused or co-accused in the same case should be referred to the same Bench which had disposed of earlier application. The proposition came under consideration before this Court in a case reported as Karamat Hussain v. Faraqat Hussain and 4 others [PLD 1987 SC (AJ&K) 27] wherein the same was resolved in the following words:-- "(a) .....................................
(b) With profound respect of Mr. Justice Muhammad Akram, who dealt with second bail application, we notice that a solitary and well-established principle hitherto followed by the superior Courts in Pakistan relating to the hearing of successive bail applications filed by the accused persons in the same case has been violated in this case. The general practice which has been established by a series of judgments delivered by Supreme Court of Pakistan and the Pakistan High Courts during the last about 24 years, namely, that where a bail application of one or more accused is heard by a learned Single Judge of the High Court/Shariat Court, it is he alone who should hear all the subsequent bail applications filed by the same or the other accused in the same case or cross-case especially when no new grounds are available. The order thus in spirit amounts to have a' review of the judgment earlier passed by Mr. Justice Sardar Muhammad Ashraf which is not permissible. No doubt, on general principles, a Judge having once expressed his opinion on a lis should ordinarily decline to hear the same matter again directly or collaterally.
It, therefore, follows that where one Judge of the Shariat Court/High Court has expressed himself against grant of bail, another learned Judge of the Shariat Court/High Court in accordance with the long established practice of superior Courts in Pakistan and rule of propriety, with which we respectfully concur, when moved afresh for bail on 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 in order to avoid contradictory order. It was so held in the case of Farid v. Ghulam Hussain 1968 SCM R 924. The latest ruling on the subject is Khan Beg v. Sajawal and others PLD 1984 SC 341 wherein apart from holding that all subsequent bail applications in the case should be placed before the same learned Judge who had dealt with the earlier bail application, practice of withdrawing a petition from one Judge and then making a fresh bail application soon thereafter was also disapproved.
The case-law on the point is based on the solitary principle to the effect that 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 likely to encourage malpractice by the accused persons and to bring the judicial system into disrepute because in the event of conflicting orders being given by another, yearned Judge in a subsequent application (as is being one in this case) an impression though false, may be created that the second order was based on extraneous considerations. It is mainly to avoid this that the Supreme Court of Pakistan has emphasized over and 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 counsel must disclose the fact of having filed a previous application and to state the result thereof. We fully endorse the view of the Supreme Court of Pakistan."
This view was reiterated by this Court in a subsequent case reported as Muhammad Tasleem Khan v. The State [1996 PCr.LJ 580], wherein relying upon the above-referred authority and the other case---law, the following verdict was given:-- "The Shariat Court is bound to follow the dictum of this Court in Karamat Hussain's case which escaped the attention of the learned Judge. Since the order under appeal has been passed in violation of the dictum we are constrained to hold that the said order is not sustainable in law.
We therefore, accept the appeal and set aside the order under appeal. It is directed that Shariat Court will treat the revision petition filed by the appellant as pending and should be disposed of afresh in light of the observations made in this judgment."
The Supreme Court of Pakistan while dealing with the matter in a case reported as Khan Beg v.
Sajawal and another [PLD 1984 SC 341] observed as follows:- Normally a bail petition should be placed before the same Judge who had dealt with the earlier petition. We are told that the learned Judge who had dealt with the earlier petition had returned to Lahore. Even so, the petition could have been sent to Lahore for hearing by the same learned Judge. The practice of withdrawing a petition from before one Judge and then making a fresh petition soon thereafter so that the same be dealt with by another Judge cannot be approved. We are satisfied that no proper or fresh ground existed for making or entertaining the second bail petition. We, therefore, convert this petition into appeal and allow it. The impugned order granting bail to respondents 1 to 7 is set aside."
PLD 1986 SC 173] the similar view was expressed by the Supreme Court of Pakistan. The relevant observations are reproduced as follows:-- "5. With profound respect to the learned Judges of the High Court who dealt with second bail application, we notice that a salutary and well-established principle relating to the hearing of successive bail applications filed by the accused persons in the same case (or in the cross-case), has been violated in this case. As already mentioned the learned Judge who heard the first bail application declined to hear their subsequent bail application on the ground that he had already expressed his opinion thereon. No doubt, on general principle, a Judge having once expressed his opinion of a lis should, ordinarily, decline to hear the same matter again directly or collaterally.
There are, however, well-known exceptions to this rule, one of which is hearing of a review application wherever this power is given by statute. The other is the general practice which has been established by series of judgments delivered by this Court as well as by the High Courts during the last about 20 years, namely, that when a bail application of one or more accused is heard by a learned Single Judge of the High Court, it is he alone who should also hear all the subsequent bail applications filed by the same or other accused in the same case, or the cross- case. The following authorities may be referred to in this connection:--
(1) Farid v. Ghulam Hussain [1968 SCM R 924].
(2) Muhammad Khan v. Sanaullah [PLD 1971 SC 324]
(3) Muhammad Khan v. Muhammad Aslam [1971 SCM R 789].
(4) Khan Beg v. Sajawal [PLD 1984 SC 341].
(5) Muhammad Aslam v. The State [1968 PCr.LJ 152].
(6) The State v. Muhammad Yousaf [1979 PCr.LJ 665].
(7) Ghulam Hussain v. Karim Bakhsh [1987 PCr. LJ 852].
8. Relying upon the aforesaid case-law we are of the view that the revision petition before the Shariat Court should be heard by a Judge who had already disposed of the matter. Therefore, we have arrived at the conclusion that the order passed by the learned Chief Justice, impugned herein, was not in accordance with the law as such is not maintainable and is set aside by accepting the appeal. Therefore, it is directed that the matter shall be placed before the same Judge (Mr. Justice Iftikhar Hussain Butt) who has previously dealt with the matter.
9. Before parting with the order it would be useful to mention to avoid any confusion that in unavoidable circumstances when a Judge who had previously heard the matter was not on the Bench the matter can be entrusted to another Bench.