1. ' SARDAR MUHAMMAD SHARIF KHAN, J,-This is a reference made by the learned Sessions Judge, Kotli on the bail applications which were made to the District Criminal Court, Kotli to let the accused- applicants admit to bail. These were pre-arrest bail applications under section 498, Cr. P. C. The applicants were granted interim bail for the offences allegedly committed by them under section 494, P. C. And section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. ' The counsel for the parties were heard. It may be noted that the bail applications were heard by the District Criminal Court consisting of Sessions Judge and the District Qazi. The learned Sessions Judge vide his Order dated 17-6-1979 found himself not in favour of confirming the interim bail granted to the accused-applicants on the ground that as the offence of adultery has recently been brought in conformity with the injunctions of Islam, it would not be proper to let the accused go on bail as against public policy. The case-law in relation to the rule of grant of bail was also elaborately discussed by the learned Sessions Judge which in a way had a more leaning towards grant of bail to the accused-applicants but for his being impressed on the point of public policy, refused confirmation of bail to the applicants. On the other hand, the learned District Qazi, another member of the Court, did not agree with the learned Sessions Judge and as such he confirmed the interim bail granted to the accused-applicants. It was thus that a reference was made to this Court either to confirm or not to confirm the interim bail granted to the accused-applicants in view of the difference of opinion between the members of the said Court. The case has not yet been challaned before the trial Court and as such it cannot be said that there was any difference of opinion between the members of the District Criminal Court while trying the case. The case is still under investigation of the Police and so it cannot be held that there had been a difference of opinion between the Presiding Officers of the District Criminal Court while trying the accused. It was a simple matter of bail to be looked into before the accused could be brought before the Court for their trial according to law. Under section 498, Cr. P. C., it is the High Court or the Court of Sessions which may direct that any person accused of an offence be admitted to bail. The District Qazi does not come in under section 498, A Cr. P. C. Presently at the stage of this case during the investigation. Therefore, the Sessions Judge alone was competent to go into the question of bail matter. It may be at the stage of trial of an accused person that the District Qazi while sitting with the Sessions Judge comprising, the District Criminal Court could have considered the bail of accused person in custody along with his colleague and not otherwise. However, I have very deeply considered the bail applications of the applicants. I was in the month of June 1979, that the instant bail applications were disposed of by the learned Sessions Judge and the District Qazi but the case still remains to be presented before the Court for its trial according to law. Thus it stands protracted without trial of the accused in the hands of Police. Such an inordinate delay in putting in the Challan before the Court by the Police, if so advised, does not warranty that the accused should be sent to custody to suffer the rigour on lock-up without a trial. Moreover, the plea of the accused applicants that Mst. Mashwar Jan is lawfully married to Raj Muhammad accused and that there is no truth in the allegation of the complainant that she was ever married to him. At this juncture of the case, we are not in a position to say as to which way the wind blows, that is to say, no opinion can be expressed with regard to the version of either party and in such a circumstance of the case, it will not be proper to send the accused to custody especially when the case has not yet been placed before the trial Court and there is an inordinate delay in presentation of the case on the part of the Police for trial of the same by a Court of competent jurisdiction. The Police will be doing well if I could expediate the completion of investigation and put in the challan before the trial Court, if so advised, as quickly as possible so that the purpose of law is accordingly served and the controversy with regard to `Nikah' between the disputants comes to an end.
3. ' With the above remarks, this reference made by the learned Session, Judge, Kotli is rejected and the interim bails granted to the accused-applicant are hereby confirmed.