1. ' This is fourth application for bail in 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 17/18 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.
2. ' 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after which bail was granted to the woman accused but on behalf of applicant Muhammad Hanif, bail application was withdrawn and dismissed as such vide order dated 27-9-1984. Second application was filed as Criminal Bail No, 113 of 1985, which was withdrawn for the reason that applicant had already filed third Application No, 1179 of 1985 on the grounds of merits as well as statutory delay.
3. Merits were not allowed to be agitated on the ground that previous bail application was withdrawn after discussion of merits and secondly bail plea on the ground of statutory delay was rejected by invocation of fourth proviso to subsection (1) of section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Petition No, 58-K of 1985 was filed in the Supreme Court of Pakistan for leave to appeal, which was not pressed and withdrawn vide order dated 20-2-1986 on the ground that since evidence was being recorded in the trial Court, applicant would apply for bail in the trial Court.
4. ' 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, if any, was committed at Hyderabad as such Karachi Court had 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 1986, which has been admitted to regular hearing 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 Couit and that Cana 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 had 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 Mst. Shahnaz has explained that Muhammad Hanif compelled her to lead A 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.
5. ' 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), Cr. 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 oases 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 ,B 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.
6. ' Mr. Muhammad Ali Shaikh 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 the 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 (1). I have very carefully gone through this order and with utmost deference to my learned brother I say that I
(1) PLD 1986 Nal.. 224 have not been able to persuade myself to subscribe to the view expressed therein elating 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 Hussain v. Ziaul Hari and others (I), 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 497(1), 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).
7. ' The question that arises for consideration is how to interpret fourth proviso to section 497(1), Cr. P.
8. 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 g 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.
9. Competence of Legislature to legislate and amend th law cannot be 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, 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 im-posed 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.
10. 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 ur 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
(1) 1983 SCM R 72 been added by the Code of Criminal Procedure (Second Amendment) Ordinance (XXXII of 1983) enacted on 26-12-1983.
11. ' It would be pertinent at this stage to reproduce fount' proviso in txtens) as under so that its impact and implication could be easily understood : "Provided further that the provisions of third provision to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, cesperate or dangerous criminal."
12. 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 he 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 and dangerous criminals. Previous convicts as a class are separated and for 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 under third prevision. In the ether class are included persons who are hardened, desperate or dangerous criminals and to identify them to be labeled as 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.
13. ' Opinion mentioned in fourth proviso is tentative 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 of such opinion.
14. ' 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 secondly 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 F 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 there 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.
15. ' It is for the Legislature to legislate and amend the laws and it is for the Courts to interpret such laws as to make them practicable. The Courts lean against a construction which reduces the statute to a futility. Such construction should be made which, would carry out the intention Legislature without doing least violence to the language used. Reference can be made to the case of Pentiah and others v. Muddala Veeramallaja an others (1). 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 words as superfluous, nugatory or wholly redundant. Reference can be made to the case of Rup Devi v. Matwal Chand (2) It is held by the Supreme Court of Pakistan in the case of Messrs Hamdard Dawakhana v. Commissioner of Income-tax, Karachi (3) that the Courts cannot 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 (4) that all parts of ehactment 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.
16. ' Coming back to the instant case for the facts and reasons mentioned above, may opinion as contemplated under fourth proviso to section 497(1), Cr. P. C. Is that applicant Muhammad Hanif is desperate and dangerous criminal in site 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.