1984 PLP 185 (SCMR)

M. S. H.QURAISHI, J.‑The case has come up before the Full Bench for consideration of a reference made by the Chairman of the Bench, as also for the hearing of the main petition itself.

2. During the hearing in Chambers before the Chairman on 11‑6‑1983, of the petitioners, Cr. M. P. No. 29‑ft of 1983 for suspension of their sentence and grant of bail to them pending disposal of the main petition which, according to the office report, was barred by 48 days, the following question arose which is subject of the reference: "Whether a Single Bench in Chamber cannot deal with the question of interim relief, if the petition is prima facie time‑barred and the applica tion for condonation of delay is yet to be heard and disposed of."

3. Learned counsel for the petitioners submits that in view of the provi sion of rule 2(1.4) of Order V of this Court's rules, a Single Bench could enlarge or abridge time or condone delay in filing petitions for leave to appeal. The rule reads: "

2. The powers of the Court in relation to the following matters may be exercised by a Single Judge, sitting in Chambers, but subject to re consideration, at the instance of any aggrieved party by a Bench of not less than three Judges; Which may include the Judge who dealt with the matter:‑‑ (14) Application for enlargement or abridgement of time except those covered by item 7 of rule 1 and application for condonation of delay in filing petition for leave to appeal:" The interpretation put by learned counsel is possible only if the word "and" be read disjunctively. But this does not appear to be the intention of the rule: As a petition for leave to appeal can be heard and decided by a Bench of not less than two Judges, it will embarrass that. Bench if they come to the view that there was not sufficient ground for condoning the delay and the ‑petition was accordingly liable to dismissal on the ground of limitation, whereas the delay had already been condoned by a Judge in Chambers. In such situation, a Bench of two Judges would be helpless because the order of the Single Judge can be re‑considered by a Bench of not less than three Judges. Moreover, since the power of condonation implies also the power to refuse condonation, the refusal by a Single Bench to condone the delay in filing a petition for leave to appeal would amount to its dismissal which is not within the competence of the Single Bench. . The word "and" has, therefore, to be read conjunctively so that the power to condone delay in filing a petition for leave‑to appeal is included in the exceptions in clause 14.

4. However, the power of a Single Bench to pass an interim order on an application for stay of execution of a sentence or order in criminal proceedings (clause 19) and an application for grant of bail (clause 20) is not clogged by any rule on account of the main petition being apparently filed beyond the prescribed time. The answer to the reference, therefore, is that the Single Bench is competent to pass an appropriate interim order under clauses (19), and (20) of rule 2 even if an application for condonation of delay in filing the main petition which is prima facie barred by time is yet to be heard and disposed of.

5. As regards the main petition, the prosecution had been launched against Muhammad Ashraf and Mst. Rukhsana petitioners and Talib Hussain acquitted co‑accused and Abdul Waheed absconding co‑accused as they had been found inside the house of Talib Hussain co‑accused at 4‑30 p.m. when the petitioners were seen in the act of committing Zina with each other while the other two co‑accused were sitting there in a naked condition. The raid had been made by‑a police party headed by Ghularn Ahmad A. S. I. (P. W. 7) which included two public witnesses, viz., Muhammad Latif (P. W. 2) and Jaffar Khan (P. W. 6). During the trial Muhammad Latif P. W. did not support the prosecution and was treated as a hostile witness. Jaffar Khan appeared to be an unwilling witness so much so that a warrant of arrest had to be issued to compel his appearance. Moreover, he was not only found to have been a member of police raiding party on at least eight occasions but also when he was arrested in execution of the warrant issued by the Court; Ghulam Ahmad A. S. I. had stood surety for him. The trial Court had, in the circumstance, not relied on his evidence but the Federal Shariat Court had done. Mst. Rukhsana bad not only denied the allegations but had alleged enmity with the police who as stated had reg1stered a case against her husband in order to get a quarter in his possession vacated but he had been acquitted, though after the acquittal he and Mst. Rukhsana had been threatened with involvement in a false case. The three bruise injuries found on her person were explained by her to have been the result of beating given to her by the police at the police station where she had been forcibly brought on the pretext that her husband had been detained there. On these facts, learned counsel contends that the public witnesses having either resiled or being noteworthy of reliance, the conviction of the petitioner on the sole testimony of Ghulam Ahmad A. S. I would not be proper particularly in view of enmity established against the police and contradictions brought out in his evidence. The points raised, in our view, require consideration. Subject to a decision on the question of limitation in filing this petition, leave to appeal is granted b to re‑apparise the evidence and to examine if the principles of law laid down for safe dispensation of justice have been observed in this case by the Federal Shariat Court. The execution of the sentence of the stripes shall continue to remain suspended. S. Q. Leave granted.