P L D 1986 Karachi 437
Before Sajjad Ali Shah, J
MUHAMMAD HANIF‑Applicant
versus
THE STATE‑Respondent
Criminal Bail Application No. 481 of 1986
decided or 8th May, 1986.
(a) Criminal Procedure Code (V of 1898)‑
‑‑ S. 497(1), fourth proviso‑Bail‑Accused whether
desperate a td dangerous criminal, opinion could be formed by Court when there
are no pending cases at all against accused, on basis of mater al in that very
case available with prosecution to connect accused with commission of crime.
Rahim Bux and others v. State y L D 1986 Kar.
224 and Nazir Hussain v. Ziaul Hag and others 1983 S C M R 72 ref.
(b) Criminal Procedure Code (V of 1898)‑
S. 497(1), fourth proviso [as added by Code of
Criminal Procedure (Second Amendment) Ordinance (XXXII of 1983)] ‑ Bail‑Nonbailable
offence‑Amendment of S. 497, Criminal Procedure Code adding fourth proviso‑Competence
of Legislature with regard to such amendment could not be called in question ‑Legislature
always amended law keeping in view practical ‑difficulties encountered in
course of time.
(c) Criminal Procedure Code (V of 1898)‑
S. 497(1), third and fourth provisos‑Bail ‑
Statutory delay Restrictions put on Court to grant bail on ground of statutory
delay, if accused was hardened, desperate or dangerous criminal It was for
prosecution to produce material which should be sufficient for Court to form an
opinion that person was hardened, desperate or dangerous criminal.
(d) Criminal Procedure Code (V of 1898)‑
--S. 497(1), fourth proviso‑"Opinion of
Court" mentioned in fourth proviso to S. 497(1), Criminal Procedure Code,
1898 is tentative in nature and confined to disposal of bail application only‑Such
opinion is akin to appearance of reasonable grounds to believe that accused had
been guilty of offence as was contemplated in subsection (1) of S. 497 ‑
Opinion could be formed by Court on basis of material collected in that very
case by prosecution to connect accused with crime alleged against him and in
addition to that any other material would do, which could be produced by
prosecution to help Court in formation of such opinion.
(e) Criminal Procedure Code (V of 1898)‑
S. 497(1), fourth proviso‑Word
"criminal" used in fourth proviso to be understood in ordinary sense.‑[Interpretation
of statutes].
(f) Criminal Procedure Code (V of 1898)‑
‑‑ S. 497(1), fourth proviso‑`Criminal'‑Meaning‑A
person can be called criminal if he indulges in or associates himself with
crime even if not caught in process and convicted‑There are some very heinous
crimes which are being repeatedly committed spin and again without their
perpetrators being caught‑If in one such case accused is caught, he would be
covered by mischief of `criminal' as contemplated to fourth proviso, provided
there is material to warrant such opinion by Court even if he has no record of
previous convictions‑To put any other special meaning on word `criminal' in
that proviso to mean as a person who is previously convicted of crime, would
tantamount to rendering second half of proviso as completely redundant and
meaningless particularly when previously convicted . offenders are specifically
covered in first part of proviso.‑[Words and phrases].
(g) Interpretation of statutes‑
‑‑ Legislation‑Function of Legislature is to
legislate and amend laws and function of Courts to interpret such laws as to
make them practicable‑Courts lean against a construction which reduce statute
to a futility‑Such construction should be made which would carry out intention
of Legislature without doing least violence to language used‑A statute or any
enacting provision therein must be construed so as to make it effective and
operative and construction placed on language should not render any words as
superfluous, nugatory or wholly redundant.
Pentiah and others v. Muddala Veeramaullapa
and others A I R 1961 S.C 1107; Rup Devi v. Matwal Chand P L D 1968 Lah. 800
and Messrs Hamdard Daivpkhana v. Commissioner of Income‑tax, Karachi P L D 1980
S C 84 eel.
(h) Interpretation of statutes‑
‑‑ Construction‑Court cannot depart from plain
meaning of words employed in statute because of its historical background and
is always under obligation to adhere to plain meaning of words employed All
harts of enactments to be read together and given due effect and that effect
must be made to harmonise seemingly inconsistent provisions.
Abdul Hadi v. Ali Haider and others P L D 1983
S C 342 eel.
(i) Criminal Procedure Code (V of 1898)‑
‑‑ S. 497(1), fourth proviso‑Finding in regard
to an accused person being hardened, desperate or dangerous criminal can be
given by Court by reference to facts of bail application or .by reference to
other extraneous matters which may be brought to notice of Court.
Criminal Procedure
Code (V of 1898)‑
‑‑ S 497(1)‑Bail ‑ Statutory delay ‑ Accused a
desperate and dangerous criminal‑Number of pending cases, which were seven in
number when his last application for grant of ball was rejected, was reduced to
three‑Accused raped daughters of' his own sister and subjected them to
prostitution‑Victim girl supporting prosecution case‑Bail plea on ground of
statutory delay rejected in circumstances.
Muhammad Ali Shaikh for Applicant.
A. A. Mohammadally and A. G. Mangi, A. A.‑G.
for the State.
Dates of bearing: 22nd and 23rd April, 1986.
JUDGMENT
This is fourth application for bail to the
series filed in the High Court. On three occasions in the past, bail
applications have been dismissed. Applicant Muhammad Hanif and his wife Mst.
Maqbool Begum alias Rani, who is now on bail, are being tried alongwith two
others for offences under sections 11, 13 and 14 of Zina (Enforcement of
Hudood) Ordinance, 1979. It is alleged by the prosecution that applicant and
his wife kidnapped three daughters of complainant, who is sister of applicant
Muhammad Hanif and out of them two are minors. Eldest daughter Mst. Shahnaz,
who is 17,118 years old and married, when recovered, stated in her 161 and 164,
Cr. P. C. statements that on numerous occasions she was raped by her maternal
uncle applicant Muhammad Hanif, who also used her for the purpose of
prostitution. Sections of Zina Ordinance for which applicant and others are
being tried are punishable with life imprisonment.
First application in the High Court was
Criminal Bail No. 931 of 1984 which was heard on merits after which bail was
granted to the woman accused but on behalf of applicant Muhammad Hanif, bail
application was withdrawn and dismissed as such vide order dated 27‑9‑1984.
Second application was filed as Criminal Bail No. 113 of 1985, which was withdrawn
for the reason that applicant had already filed third Application No. 1179 of
1985 on the grounds of merits as well as statutory delay. Merits were not
allowed to be agitated on the ground that previous bail application was
withdrawn after discussion of merits and secondly bail plea on the ground of
statutory delay was rejected by invocation of fourth proviso to subsection (t)
of section 497, Cr. P. C. vide a detailed order dated 27‑10‑1985 passed by this
Court. Against this Order, Criminal Petition No. 58‑K of 1985 was filed in the
Supreme Court of Pakistan for leave to appeal, which was not pressed and
withdrawn vide order dated 20‑2‑1386 on the ground that since evidence was
being recorded in the trial Court, applicant would apply for bail in the trial
Court.
After not pressing petition in the Supreme
Court as stated above, trial Court was moved afresh for bail and certified copy
of memorandum of bail application and order passed thereupon by trial Court
rejecting bail is produced in this Court. It appears from the contents of the
application that bail plea was urged on the ground that Mst. Shahnaz has stated
in her deposition that offence, it' any, was committed at Hyderabad as such
Karachi Court bad no jurisdiction. Such order passed by the trial Court on this
application is to the effect that applicant had applied for acquittal (under
section 265‑K, Cr. P. C.) on the ground of lack of jurisdiction, which has been
dismissed as such bail application on the same ground is also dismissed. Mr.
Muhammad Ali Shaikh, Advocate has further submitted that against the order of
dismissal of application under section 265‑K, Cr. P. C., he has filed
application under section 561‑A, Cr: P C. in the High Court for quashment of
proceedings pending in the trial Court as Criminal Miscellaneous No. 386 of
198e, which has been admitted to regular bearing vide order dated 25‑3‑1986
Alongwith main application was filed miscellaneous application with prayers for
interim relief in the shape of stay of proceedings in the trial Court and
release of Muhammad Hanif from custody. Mr. Muhammad Ali Shaikh did not press
this application for interim relief which came to be dismissed as such vide
order dated 2‑4‑1986. Main application for quashment of proceedings is still
pending.
Against the order of dismissal of bail
application by the trial Court as stated above, once again High Court has been
approached for bail and this is fourth time. In the Supreme Court bail
application was withdrawn for the reason that evidence was being recorded in
the Trial Court and that Court had to be approached. In the Trial Court bail
plea was urged on the ground that it had no jurisdiction. How could one apply
for bail on the ground of lack of jurisdiction. If the Court has no
jurisdiction to try the case, it has no jurisdiction to grant the bail. The
question whether forum of trial Court suffers from jurisdictional defect is
pending adjudication in the High Court in separate competent proceedings. There
is no stay order in that case and application for interim relief has been
withdrawn as stated above. Bail plea cannot be urged on the ground of lack of
jurisdiction of the trial Court. When confronted with this position, Mr. Shaikh
stated that he has repeated bail plea in the High Court this time on merits in
the light of deposition of Mst. Shahnaz recorded in the trial Court. According
to the learned counsel she bad admitted being sent up for offence of soliciting
under section 294, P. P. C. and also being convicted once for such offence.
Further, she went to Punjab but did not complain to any person against Muhammad
Hanif. Mr. Khawaja Naveed, Advocate for the complainant stated that Ms:.'
Shahnaz has explained that Muhammad Hanif compelled her to lead immoral life. I
find that Mst. Shahnaz has supported the prosecution case and that is enough
for the time being. It is for the trial Court to evaluate the evidence. No case
for bail is made out on this ground.
Mr. Shaikh has submitted that previously on
the ground of statutory delay bail plea was rejected by this Court for the
reason that there were seven cases pending against applicant as such opinion
was formed as contemplated under fourth proviso to section 497(1), Gr. P. C.
that applicant was desperate and dangerous criminal but now as the position
stands there are only three cases pending against the applicant, out of which
one is of theft and the other two are cases of abduction and Zina. In this
context, it can be said that number of pending cases is not sole criterion for
formation of requisite opinion. I have perused my previous order dated 27‑10‑1985.
Apart: from seven cases I had also considered the fact that not only Mst.
Shehnaz but her other sister Mst. Razia both claimed that they were raped by
their maternal uncle Muhammad Hanif, who also subjected them to prostitution.
With decrease in the number of pending cases the opinion still remains the
same. As a matter of fact opinion can be formed by the Court even when there
are no pending cases at all. Such opinion can be formed by the Court on the
basis of material in that very case available with prosecution to connect the
accused with commission of crime.
Mr. Muhammad Ali Sheikh contended that in view
of fourth proviso to section 497(1). Cr. P. C. bail cannot be refused to a
person on the ground that in tar opinion of the Court, he is hardened,
desperate or dangerous criminal for the reason that a person cannot be equated
with a criminal on the basis of pending cases, unless he is adjudged so as
guilty of the offence by the Court. In support of this proposition reliance has
been placed by the learned counsel on the order passed by my learned brother
Saeeduzzaman Siddiqui, J. in Criminal Bail application entitled Rahim Bux and
others v. State (P L D. 1986 Kar. 224). I have very carefully gone through this
order and with utmost deference to my learned brother T say that I have not
been able to persuade myself to subscribe to the view expressed therein
relating to interpretation of fourth proviso to section 497(1), Cr.P.C. In the
reported case under reference reliance is placed on the case of Nazir Hassain
v. Ziaul Haq and others (19835CMR72), in which Supreme Court has reemphasized
mandatory nature of third proviso to section 497(1), Cr. P. C. in respect of
grant of bail on the ground of statutory delay as contemplated therein. Now
firstly there is absolutely no cavil or confusion about the legal position laid
down by the Supreme Court regarding grant of bail on the ground of statutory
delay. Secondly Supreme Court announced this decision on 4th July, 1982, when
fourth proviso to section 4970), Cr. P. C. was not in existence at all and
which was added on 26‑12‑1983 by Code of Criminal Procedure (Second Amendment)
Ordinance (XXXII of 1983).
The question that arises for consideration is
bow to interpret fourth proviso to section 4970), Cr. P. C. and what is the
intention of Legislature behind this amendment. Policy of the Legislature can
be gathered and best understood by perusal of whole section 497, Cr. P. C. It
provides as to when bail can be taken in case of non‑bailable offence. First
precondition laid down in subsection (1) is that bail is not be granted to the
accused in a case of non‑bailable offence, if there are reasonable grounds for
believing that he has been guilty of an offence punishable with death or
imprisonment for life or ten years. Subsection (1) is followed by four
provisos. First proviso was inserted in the year 1923 empowering the Court to
release any person on bail if that person is under 16 years of age or is woman
or is sick or infirm person. This power can be exercised by the Court
notwithstanding restriction imposed in subsection (1) as stated above.
Competence of Legislature to legislate and
amend the law cannot b called in question and Legislature always amends the law
keeping it view practical difficulties encountered in the course of time. It appeals
that in order to forestall any such situation where this facility could be
abused, C second proviso was added in the year 1974 by Code of Criminal
Procedure, (Amendment) Act (XXV of 1974) and this time in a way restriction was
imposed on the power of the Court not to grant bail unless prosecution is given
notice of hearing. .Subsequently in the conduct of trial. drastic procedural
changes were made and committal proceedings were abolished, in consequence of
which Sessions cases got piled up in Sessions Courts and due to shortage of
Judges disposal was delayed, hence Legislature enacted third proviso, which was
added by Criminal Procedure (Second Amendment') Ordinance (LXXI of 1979). This
proviso empowers the Court to grant bail on the ground of statutory delay on
the terms stated therein: In a case punishable not with death if accused is
detained for more than a year and trial has not concluded, he can be released
on bail. Likewise in ~ a case punishable with death, if accused is detained for
more than two years and trial has not concluded, he can be released on bail.
This proviso is mandatory in nature and word "shall" is used for
grant of bail .on the ground of statutory delay. Realising that this facility
may be availed by each and every accused after the expiry of the stipulated
period regardless of the fact how heinous the offence is or what is the
character or nature of the accused, Legislature has thought fit and proper to
introduce fourth proviso empowering the Court not to grant bail on the ground
of statutory delay to such persons so described specifically. This fourth
proviso has been added by the Code of Criminal Procedure (Second Amendment)
Ordinance (XXXII of 1983) enacted on 26‑12‑1983.
It would be pertinent at this stage to
reproduce fourth proviso in extenso‑as under to that its impact and implication
could be easily understood
"Provided further that the provisions of
third ,proviso to this sub‑ , section shall not apply to a previously convicted
offender or to a person who, in the opinion of the Court, is a hardened,
Desperate or dangerous criminal."
Now the intention of Legislature is crystal
clear Language used in the fourth proviso as stated above is very simple and
completely free from any ambiguity or equivocation. Legislature has empowered
the Court to refuse bail on the ground of statutory delay as contemplated under
third proviso to a person who is either a previous convict or is, in the
opinion of the Court, a hardened, desperate or dangerous criminal. It is very
apparent that this has been done on purpose to stop indiscriminate grant of
bail under third proviso on the ground of statutory delay after expiry of
stipulated time. Persons, who are intended not to receive this facility are
properly and specifically described as previous convicts and hardened,
desperate anal dangerous criminals. Previous convicts as a class are separated
and fort that some material is to be shown by the prosecution that accused is a
previous convict, which will be sufficient to disentitle him to bail uncle
third proviso. In the ether class are included persons who are hardened,
desperate or dangerous criminals and to identify them to be labelled such the
requirement is that prosecution is to produce material which should be
sufficient for the Court to form an opinion that the person is hardened,
desperate or dangerous criminal.
Opinion mentioned it fourth proviso is
tentative in nature and is confined to the disposal of bail application only.
This opinion is akin to appearance of reasonable grounds to believe that
accused has been guilty of offence as is contemplated in subsection (1) of
section 497, Cr. P. C. Such opinion can be formed by the Court on the basis of
material collected in that very case by the prosecution to connect the accused
with crime alleged against him and in addition to that any other material would
do, which could be produced by the prosecution to help the Court in the
formation o fl such opinion.
Word "criminal' used in the fourth
proviso is to be understood in the ordinary sense. In the Concise Oxford
Dictionary this word "criminal" has been given two meanings, firstly
of the nature of crime and second guilty of crime. In Ballentine's Law
Dictionary as an adjective it is defined to mean relating to or having the
character of crime and as a noun it is' defined to mean a person who has
committed a crime. In Stroud's Judicial Dictionary 'Crime' is defined but
"criminal" as such is ‑not separately, defined but prefixing it as an
adjective several resultant words such as 'Criminal act', Criminal Case',
'Criminal Law' and so on are defined. Now when fourth proviso was being
drafted, the Draftsman had in view both ordinary meanings In the first class
previously convicted offenders as persons guilty of crime were excluded, from
benefit of bail and in the second class, hardened, desperate or dangerous
criminals as persons, who are connected with crime (although not convicted
previously) have been excluded. A person can be called criminal if he indulges
in or associates himself with crime even if not caught in the process and
convicted. There are some very heinous crimes which are being repeatedly
committed again and again without their perpetrators being, caught. Now in one
such case if accused is caught, he would be covered in the mischief of "criminal"
as contemplated in the fourth proviso provided here is material to warrant such
opinion by the Court even if he has no record of previous convictions„ To put
any other special meaning on the word "criminal" in that proviso to
mean as a person who is previously convicted of the crime would tentamount to
rendering second half of the proviso as completely redundant and meaningless
particularly when previously convicted offenders are specifically covered in
the first part of the proviso.
It is for the Legislature to legislate and
amend the laws and it is for the Courts to interpret such law, as to make them
practicable. The Court lean against a construction which reduces the statute to
a futility. Such construction should be made which would carry out the
intention o Legislature without doing least violence to the language used.
Reference can be made to the case of Pentiah and others v. Muddala Veeramallapa
an others (AIR 1961 SC 1107). A statute or any enacting provision therein must
be construe so as to make it effective and operative,. Construction placed on
language should not render any word as superfluous, nugatory or wholly
redundant. Reference can be made to the case of Rup Devi v. Matwal Chand (P L D
1968 Lah. 800) It is held by the Supreme Court of Pakistan in the case of
Messrs Hamdard Dawakhana v. Commissioner of Income‑tax, Karachi (P L D 1980 S C
84) that the Courts can not depart from plain meaning of the words employed in
statute because of its historical background and are always under obligation.
to adhere to plain meaning of words employed. It is held by the Supreme Court
of Pakistan in the case of Abdul Hadi v. Ali Haider and others (P L D 1983 S C
342) that all parts of enactment are to be read together and given due effect
and that effect must be made to harmonize seemingly inconsistent provisions.
In the context of fourth proviso to section
497(1), Cr. P. C. on the question whether finding in regard to an accused
person being hardened, desperate or dangerous criminal can be given by the
Court by reference to the facts of bail application or by reference to other
extraneous matters Division Bench of our High Court in Criminal Bail
Application No. 444 of 1985 (Haji v. State) has answered that Court can form
the opinion on the basis of record or the extraneous circumstances, which may
be brought to the notice of the Court.
Coming back to the instant case for the facts
and reasons mentioned above, may opinion as contemplated under fourth proviso
to section 497(I )J Cr. P. C. is that applicant Muhammad Hanif is desperate and
dangerous criminal in suite of the fact that number of pending cases against
him, is reduced to three as admitted by his counsel. Another factor against
him. which fortifies such opinion is that it is alleged that he has raped
daughters of his own sister and subjected them to prostitution. Bail plea on
the ground of statutory delay is, therefore, rejected.
M. Y. H. Bail refused.
No comments:
Post a Comment