1997 PLP 2522 (MLD)

Malik Muhammad Akram Khan Awan for Petitioner. Miss Farzana Imtiaz for the Complainant. Irshad Ahmad for the State. The petitioner seeks bail in a case registered against him vide F.I.R. No.242 dated 10‑9‑1996 for an offence under section 10/18 of Ordinance VII of 1979 at P.S. Mianwali City. Earlier, he had filed a bail petition (Cr.M.No.4634‑B of 1996) which was dismissed as withdrawn vide order dated 17‑10‑1996.

2. As per the allegations made in the F.I.R., the petitioner had committed Zina with Mst. Iram Shahzad aged 5/6 years, niece of Ahmad Hasnain Shah, complainant. During the course of investigation, it was found that the petitioner had merely attempted to commit the act and had fingered the minor child. The challan was submitted against the petitioner under section 10/18 of Ordinance VII of 1979 and section 452 of the P.P.C.

3. The petitioner's learned counsel submits that the present bail petition is maintainable on new grounds; that the challan was submitted in the Court after withdrawal of the first bail petition and in the report under section 173 of the Cr.P‑.C., it has been stated that Zina was not committed with Mst. Iram Shahzad but the petitioner had merely fingered the child; that even an attempt to commit Zina is not made out; that the offence, if any, falls under section 354 of the P.P.C.; that the petitioner is a minor aged about 16 years and 7‑months and that the offences under sections 452 and 354 of the P.P.C. do not fall within the prohibition of section 497 of the Cr.P.C. The learned State Counsel has opposed bail on the ground that the petitioner attempted to commit Zina with a minor girl aged about 5/6 years and that the report under section 173 of the Cr.P.C. was finalized on 20‑9‑1996 and the challan submitted before the Judicial Magistrate on 3‑10‑1996 much before withdrawal of the first bail petition; that all the grounds now being agitated by the petitioner's learned counsel could have been raised at the time of withdrawal of the first bail petition and that no new ground was made out for grant of bail at this stage.

4. The rule that after dismissal of the first bail petition another petition can be filed on fresh grounds is firmly established. In the case of "Muhammad Khan v. Muhammad Aslam and 3 others" (1971 SCMR 789), it was held that after refusal of bail by one Judge of High Court, the second application for bail on fresh grounds would be competent but the same should be disposed of by the Judge who had decided the earlier bail petition. In the case of "Saleh Muhammad v. The State and another" (1983 SCMR 341), it was held that after rejection of a bail petition on merits a fresh petition was not to be entertained except on a ground which was not available at the time of filing of the first bail application. In the case of "Sabz Ali and 3 others v. The State" (PLD 1993 Quetta 66), it was held as under:‑‑ "It is settled principle of law that if the grounds urged in the bail application have been considered and rejected in the first application, the second would only be competent if fresh material has come on record, which indicated new development on the facts, relevant for disposal of bail matter, or any other ground which was not available at the time of hearing of earlier application. " In the oft‑quoted Zubair's case reported as "The State through Advocate General, N.‑W.F.P. v. Zubair and 4 others" PLD 1986 SC 173 it was held as under:‑‑ "It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed it cannot be considered as a fresh and made the basis of any subsequent bail application." The dictum laid down by the Hon'ble Supreme Court in Zubair's case makes it abundantly clear that if a ground was available to an accused but he failed to take the same in his bail petition or press it at the time of hearing of the first bail petition then the same could not be considered as a fresh one to justify institution of another bail petition. The above rule can be safely applied to cases of withdrawal of first bail petition and institution of another one thereafter. Very often when a counsel finds during the course of arguments that the Court was not inclined or pursuaded to allow bail he prays for withdrawal of a bail petition to avoid any possible observation on merits emanating from a tentative appraisal of the material on the record. Hence, after dismissal of a bail petition as having been withdrawn, a fresh bail petition can be filed on a new ground which was not available earlier. Any other view will not only promote mil practice but also result in wasting valuable time of Courts. It is a time‑honoured principle of administration of justice that justice should not only be done but it should be shown to have been done. If after withdrawal or dismissal of the first bail petition, the second one is entertained on the same grounds, particularly, a petition filed by another counsel, it would offend against the above‑referred principle and might even cast aspersions on the Court.

5. Now, I will proceed to examine whether the grounds urged by the petitioner's learned counsel are really fresh ones or not. As mentioned above, the petitioner's learned counsel had withdrawn the first bail petition on 17‑10‑1996. The report under section 173 of the Cr.P.C. was finalized on 20‑9‑1996 and a complete challan submitted in the Court of the Judicial Magistrate, Mianwali on 3‑10‑1996. On that date, the accused/petitioner appeared in the Court in police custody but the case was adjourned for 6‑10‑1996 with the following order:‑‑ "It has been found that the offence is triable by the learned Sessions Judge. Hence, the accused is directed to appear before said Court for further proceedings on 20‑10‑1996." . In pursuance of the said order, the case was put, up before the learned Sessions Judge, Mianwali who ordered that the case be registered and fixed for hearing on its turn. Obviously, the complete challan had been submitted on 3‑10‑1996 before withdrawal of the first bail petition. Therefore, all the grounds for grant of bail on merits raised by the petitioner's learned counsel could have been raised at the time of withdrawal of the first bail petition. The claim for bail on the ground of the petitioner's minority was specifically made in the earlier bail petition. At the end of ground ' D' of the first bail petition, it was stated, "As the petitioner is not "adult" hence the case does not fall under the prohibitory clause". Therefore, after withdrawal of the first bail petition, the petitioner would be deemed to have abandoned his claim for grant of bail on all the grounds now being raised by his learned counsel.

6. The petitioner's learned counsel has emphasised that offences under sections 452 and 354 of the P.P.C. did not fall under the prohibitory clause of section 497 of the Cr.P.C. Hence, the petitioner deserved concession of bail. It is true that the above‑referred offences do not fall under the prohibition of section 497 of the Cr.P.C., but the petitioner cannot claim bail as of right. His presence at the spot is, prima facie, established through the statements of the complainant and the other P.Ws. The complainant and the P.Ws. had claimed that the petitioner was committing Zina‑bil‑Jabr with the minor but the police found after investigation of the case that he had entered the complainant's house and merely fingered the innocent child. Moreover, at the time of occurrence, the minor was raising hue and cry which was fairly indicative of the fact that the petitioner was doing something highly objectionable. Prima facie, the material on the record shows that the petitioner had committed the abhorrent act of outraging the modesty of the minor female child aged about six years. It my be mentioned that the word "woman" has been defined under section 10 of the P.P.C. as denoting a female human being of any age. It is not essential to bring the offence within the purview of section 354 of the P.P.C. to prove that the woman had really developed a sense of modesty. Hence, if the ingredients of the offence under section 354 of the P.P.C. are made out, then an accused person can be convicted and sentenced under the said provisions of law irrespective of age of the female victim. What amounts to an indecent assault or outraging modesty of a woman so as to attract the provision of section 354 of the P.P.C., largely depends upon the customs, habits and popular notions of modesty, purity and piety prevalent in a society. In Pakistan, Islamic values of purity and piety are imbibed in minor children, particularly females who develop a sense of modesty even at the tender age of 5/6 years. Hence, even if it is presumed that awareness or proof of development of sense of modesty is essential, a minor girl aged about six years is sufficiently conscious of her honour and modesty. The above view finds support from the judgment in the case of "Emperor v. Tatia Mahadev" (1912 Cr.L.J. 858) in which the victim was a female child of six years old who was taken by the accused to his room, made her lie down and he lay on her. The girl screamed and ran away. It was held that a girl though young, was a woman for the purposes of section 354 of the Penal Code and that the very fact that she had screamed was clear indication that she felt her modesty to be outraged by the accused's conduct. In the case of "Girdhar Gopal v. State" (AIR 1953 M.B. 147), the victim was nine years old girl who was asked by the accused to remove her clothes but she refused to do so and shouted for help. The Court was pleased to hold that refusal on the part of the girl to remove her clothes and shouts for help showed her sense of modesty to be developed. In the present case as mentioned above, the minor was raising hue and cry when the petitioner was either fingering her or attempting to commit sexual intercourse with her. This act on the part of the minor, prima facie, was indicative of a developed sense of honour and modesty.

7. For the foregoing discussion, no valid ground is made out for the petitioner's release on bail. However, I direct the learned Sessions Judge, Mianwali to fix the petitioner's trial within one and a half month. There are only seven prosecution witnesses including two doctors and formal witnesses. The trial can be concluded within a short period. The trial Court shall make every effort to conclude the trial expeditiously preferably within a period of four months from the date of commencement. The petition is dismissed with the above direction. N.H.Q./Z‑22/L Bail refused.