1. SHAFIUR RAHMAN, J.-On a reference two Miscellaneous applications, Cr. M. 34-R/83 in Cr. P. 14-R (S)/83 and Cr. Misc. 21-10983 in Cr. P. 15-R(S1/1983, seeking interim suspension of sentence of whipping pending hearing of petitions for leave to appeal against conviction and sentence, have come up for decision before Shariat Appellate Bench of five Judges.
2. Ghulam Sarwar, the petitioner in Criminal Petition 14-R(S) of 1983 stands convicted by the Federal Shariat Court under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to five years' rigorous imprisonment and 15 stripes. He has sought leave to appeal against the judgment of the Federal Shariat Court. With the petition for leave to appeal be filed an application under Order XXIII, rule 8 of the Supreme Court Rules, 1980, for suspension of the sentence of imprisonment, fine and whipping. When the application for suspension of sentence came up for hearing in chamber before the learned Chairman of the Sbariat Appellate Bench, the application was not pressed in so far as sentence of imprisonment and fine was concerned (fine no longer remained a part of the sentence after Federal Shariat Court's appellate judgment) but the application in so far as suspension of sentence of whipping was concerned was pressed.
3. Additional grounds in support of this application were filed contending that the. Sentence of whipping was not being executed by jail authorities in accordance with the Execution of Punishment of Whipping Ordinance (IX of 1979) read with the Punjab Execution of the Punishment of Whipping Rules, 1979. The departures from the law of whipping were enumerated in para. 2 of the additional grounds filed by the petitioner. The comments of the Inspector-General, Prisons, Punjab were obtained on it, and the matter referred to the Full Bench.
4. Ashiq Hussain in Criminal Petition No, 15-R(S) 1983 stands convicted under section 10 (2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 5 years' R.
5. 1., fifteen stripes and a fine of rupees one thousand by the Federal Shariat Court. With the petition for leave to appeal the petitioner Ashiq Hussain moved a petition for suspension of conviction and sentence and for his admission to bail. This application was referred to the Shariat Appellate Bench of five Judges to examine whether it will advance the interest of justice if the sentence of whipping (which is not very severe now) is not suspended.
6. So far as the power of procedure of the Shariat Appellate Bench or a Judge thereof in respect of such applications for interim suspension of sentence of whipping is concerned, it is provided in Order XXXV, rule 1 of the Supreme Court Rules that "Subject to the provisions of this Order, the provisions contained in the other Orders of these Rules relating to civil and criminal appeals, petitions, review petitions and jail petitions and other petitions applications and proceedings and all orders or instructions from time to time issue relating to praction and procedure of the Court shall, mutat mutandis, apply to appeals petitions, review petitions and jail petitions and other petitions, applications and proceedings filed under or in respect of jurisdiction conferred by Article 203-F of the Constitution." Rule 2, Order V of the Supreme Court Rules empowers a Single Judge, sitting in chambers to exercise the powers of the Court inter alia, in relation to application for stay of execution of a sentence or order in criminal proceedings, subject to its reconsideration at the instance of any aggrieved party by a Bench of not less than three Judges.
7. The sentence of whipping is a distinct specie of sentences which can be passed on conviction for certain offences. It has been so treated and provided for in section 391 of the Criminal Procedure Code which provides as follows: "391. Execution of sentence of whipping, in addition to imprisonment.-(1) When the accused-
(a) is sentenced to whipping only and furnished bail to the satisfaction of the Court for his appearance at such time and place as the Court may direct or
(b) is sentenced to whipping in addition to imprisonment, the whipping shall not be inflicted until fifteen days from the date of the sentence, or, if an appeal is made within that time, until the sentence is confirmed by the appellate Court, but the whipping shall be inflicted as soon as practicable after the expiry of the fifteen days, or, in case of an appeal, as soon as practicable after the receipt of the order of the Appellate Court confirming the sentence.
(2) The whipping shall be inflicted in the presence of the officer in charge of the jail, unless the Judge or Magistate orders it to be inflicted in his own presence.
8. There being present, apart from the physical pain or agony of the punishment of whipping, an element of social disgrace and notoriety, and the loss to the convict even on his success in his appeal being irreversible and irreparable, there is ample justification for suspending in appropriate case even the modified form of sentence of whipping.
9. As regards the objection to the manner of infliction of the sentence of whipping and violation of the law on the subject we have before us the report of the Inspector-General, Prisons. Mr. Rashid Aziz, Additional Advocate General, also confirms that the sentence of whipping is being administered in accordance with the law on the subject. We are satisfied from these reports that by and large the law is being observed. If any individual still feels aggrieved of its violation, he will be free to seek his legal remedies against those who violate the law.
10. The sentence of whipping in both the petitions is suspended pending the bearing of the petitions for leave to appeal which shall now come up before Petition Bench of the Shariat Appellate Bench.