2007 PLP 1146 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

Learned counsel for the petitioners, in support of this bail before arrest petition, submits that a co-accused, namely, Rashid, who was son-in-law of the complainant and son of the petitioner No.1 Ashraf was allowed bail after arrest by the learned Additional Sessions Judge Mr. Ghaffar Jalil vide order dated 6-12-2004 in terms of the affidavit tendered by the complainant; that an application for cancellation of above bail of Rashid was moved which was dismissed by the learned Additional Sessions Judge Narowal Mr. Mansab Ali Joyia vide order dated 17-11-2005, that the petitioners have falsely been implicated in this case, that in two earlier investigations petitioners were found to be innocent; that the investigation ordered by DPO was illegal as he has no authority to do so as the same is violative to the mandatory provision of Article 18(6) of the Police Order, 2002.

2. On the other hand, learned counsel for the complainant submits that the petitioners are named in the FIR. the offence is heinous one considerations for the grant of bail before arrest and bail after arrest are altogether different and it is not a case of bail before arrest. In addition to the above submissions, the learned Additional Advocate-General Punjab submits that till the case is proved by the prosecution against the petitioners, it is a case of further inquiry.

3. I have heard counsel for the parties, have given consideration to the submissions made at the bar and have also gone through the record. Both the petitioners are present in Court in person. Petitioner No.1 Muhammad Ashraf appears to be an old man while petitioner No.2 Mst. Uzma Bibi is a lady. A co-accused of the petitioner, namely, Rashid, who was son-in-law of the complainant and son of the petitioner No.1 Ashraf, was allowed bail after arrest by the learned Additional Sessions Judge, Narowal Mr. Ghaffar Jalil vide order dated 6-12-2004 in terms of the affidavit tendered by the complainant. An application for cancellation of above bail of Rashid was moved which was dismissed by the learned Additional Sessions Judge, Narowal Mr. Mansab Ali Joyia vide order dated 17-11-2005. Petitioners were found innocent during the course of two investigations discharge report was prepared and even the case was recommended for cancellation. The sentence provided for the alleged offence is eighty stripes. It is cardinal principle of the criminal justice that a person is presumed to be innocent in the eye of law and it is bounden duty of the prosecution to prove its case against the accused to the hilt. It is imperative to quote section 7 of the Ordinance which stipulates as under:- "

7. Punishment of Qazf liable to Hadd.

(1) Whoever commits Qazf liable to Hadd shall be punished with whipping numbering eighty stripes. (2)

(3) A punishment awarded under subsection (1) shall not be executed until it has been confirmed by the Court to which an appeal from the Court awarding the punishment lies, and, until the punishment is confirmed and executed, the convict shall, subject to the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) relating to the grant of bail or suspension of sentence, be dealt within the same manner as if sentenced to simple imprisonment."

4. In the afore-referred circumstances, in view of the fact that-the offence does not fall within the prohibitory clause of section 497(1), Cr.P.C. coupled with the fact that no sentence of imprisonment is provided under the said provision of law and sentence of stripes cannot be inflicted in anticipation, the interim pre-arrest bail already allowed to the petitioners vide this Court's order dated 22-11-2005 is hereby confirmed. H.B.T./M-697/L Bail confirmed.