1986 PLP 1912 (MLD)

Applicant Muhammad Haneef and his wife Mst. Rani are facing trial for offences under sections 11, 13 and 14 of Zina (Enforcement of Hudood) Ordinance, 1979. Bail was granted to Mst. Rani but was rejected in respect of applicant Muhammad Haneef. Plea of bail of Muhammad Haneef has chequered history. It appears from the record that originally bail was granted to Mst. Rani by this Court vide order, dated 27‑9‑1984 but so far applicant Muhammad Hanif was concerned, in respect of him bail application was withdrawn by Mr. Muhammad Ali Shaikh, Advocate and in the result the same was dismissed. Subsequently, second application was filed on behalf of applicant Muhammad Haneef in January, 1985 and the same came up for hearing on 15‑10‑1985 when once again Mr. Muhammad Ali Shaikh, Advocate moved a formal application for withdrawal of bail application which was allowed vide order, dated 15‑10‑1985. On the same day another bail application filed by Mr. Muhammad Ali Shaikh in respect of same applicant was also fixed in the Court for hearing and this application was filed on the grounds of merits as well as statutory delay. Mr. Sheikh states that on that day he had withdrawn bail application which was filed a long time ago on .the ground of merits and ordinary delay. It is submitted by Mr. Shaikh that under the law, there is no bar for filing of fresh application on merits when application filed earlier on merits has been withdrawn and dismissed in result thereof. In support of the proposition, he has stated that in Criminal Procedure there is only one section available on the subject which is section 369 and that speaks of final judgment. In support of the proposition he has cited before me the case of Muhammad Ramzan v. Allah Ditta 1982 S C M R

215. In the reported case revision application was dismissed for default and it was held that order of dismissing revision application in default is not covered by section 369, Cr.P.C. as it is not a final judgment when merits have not been touched. This decision is not helpful to Mr. Muhammad Ali Shaikh for the reason that it pertains to dismissal of revision application in default and is not a case of withdrawal of bail application. Perusal of the record shows that previously when the first order was being passed on the bail application jointly filed by applicant Muhammad Haneef and his wife Mst. Rani, in the first paragraph of the order merits were considered and at that stage Mr. Muhammad Ali Shaikh requested for withdrawal of bail application in respect of Muhammad Haneef against whom there was allegation that not only he and his wife abducted minor daughters of his own real sister but he had raped eldest daughter Mst. Shahnaz and used her for the purpose of prostitution. This was the stage when bail application on behalf of applicant Muhammad Haneef was withdrawn and the same was dismissed on that ground and further bail was granted to the woman accused on the ground that the was woman and previously bail was granted to her but she was not in a position to furnish security. It was in the circumstances stated above that the learned counsel for the applicant felt impelled to withdraw bail application, which was allowed to be dismissed. Withdrawal of bail application is to be considered in conjunction with attending circumstances in which request is made for withdrawal of application. It can be said that in the instant case the learned counsel knew that merits were discussed and it was not a good case for bail on merits as such anticipating fate of the bail application, he withdrew the same. In such circumstances he should not be allowed to agitate bail application again on merits on the ground that previously it was withdrawn and merits were not touched. Mr. Shaikh has further stated that now he has come before the High Court after approaching the trial Court for bail on the statutory ground of delay which has been dismissed particularly for the reason that observations have been made as contemplated under proviso 4 to section 497, Cr.P,.C. and there is‑ no material available to justify those observations. It appears that the trial Court has considered the ground of statutory delay but has refused bail invoking the proviso 4 to section 497, Cr.P.C. This proviso clearly contemplates that facility of rant of bail on the ground of statutory delay is not to be allowed if in the opinion of the Court the person who has applied for bail on that ground is either a hardened, desperate or dangerous criminal. This clearly shows that it is in the discretion of the Court not to allow bail on the ground of statutory delay, if such observation can be made as is allowed under the law. Mr. Muhammad Ibrahim Memon, A.A.‑G. has stated before me that 161, Cr.P.C. statements of the abducted girls namely Mst. Razia and Shahnaz have been recorded and they have alleged rape against Muhammad Haneef, who is their maternal‑uncle and have stated that they were confined and subjected to prostitution also by applicant Muhammad Haneef. Apart from this there is note from S.H.O., Police Station, Sanghar according to which applicant Muhammad Haneef is involved in as many as seven cases lodged at different Police Stations, particulars of which are also given therein. One such case is under sections 11 and 12 of Zina Ordinance, the other is under Crimes Control Act and the third is for offence under sections 380, 457 and 411, P.P.C. Legislature has allowed refusal of grant of bail on the ground of statutory delay at the stage of bail application and 'it goes without saying that whatever material is available with the prosecution at that stage on that the Court is allowed to make an observation: On the basis of material stated above, I say that applicant is a desperate and dangerous criminal, particularly when there is allegation against him for abduction of his own nieces and rape against them. He is not entitled to bail and his bail application is, therefore, dismissed. M.Y.H. Petition dismissed