' The petitioners have approached this Court for the grant of pre-arrest bail in case F.I.R. No.846 dated 5-11-2004 under sections 10 and 18 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 registered at Police Station Sadar Jhang on the complaint of Muhammad Ramzan son of Muhammad Siddique on the allegation that they were privy to the main accused for the abduction of Mst. Bashiran Bibi.
2. It is contended that there is unexplained 4 days' delay in lodging the F.I.R. And the petitioners have been falsely implicated. It has further been contended that petitioners Nos.2 and 3 having suckling babies in their laps whereas petitioner No.1 is an old lady aged more than 60 years and the case of the petitioners falls in the ambit of section 497(1), Cr.P.C. It is further contended that the petitioners have no visiting terms at the house of the complainant, so there was no question of having privy with Asif Sultan main accused of helping him in the commission of the above- mentioned offence. It is further contended that the petitioners were implicated maliciously.
3. The petitioners had approached the learned Sessions Judge Jhang for their pre-arrest bail which was entrusted to a learned Additional Sessions Judge Jhang who vide his order dated 29-11-2004 declined pre-arrest bail mainly on the ground that the petitioners did not join the investigation of the police. The petitioners were admitted to ad-interim pre-arrest bail by this Court vide order dated 2-12-2004.
4. The parties are present with their counsel. Record of the case has been perused.
5. The Investigating Officer states that Asif Sultan who allegedly attempted to commit Zina Bil Jabr with the victim Mst. Bashiran was arrested on 28-11-2004 and has been sent to judicial lock-up. He further states that the petitioners have joined the investigation, that the investigation of the case has been completed and that the challan of the case is going to be submitted in the Court of competent jurisdiction.
6. Proviso (1) to section 497, Cr.P.C. Reads as under:-- "that the Court may direct that any person under the age of sixteen years or any woman or any sick or inform person accused of such an offence be released on bail."
It is the settled law that heinousness of the offence by itself is not sufficient for refusal of the bail and the bail is not to be withheld as a punishment and there is no moral or legal compulsion to keep a person in jail.
7. During the investigation, it has transpired that the petitioners prima facie do not appear to have committed the offence and the case of the petitioners is based on malice and falls in proviso (1) to section 497, Cr.P.C. The petitioners deserve to be granted bail.. They are on ad-interim pre-arrest bail and their pre-arrest bail is hereby confirmed.
8. This order shall not affect the merits of the case.
Pre-arrest .