MUHAMMAD SIDDIQUE vs IMTIAZ BEGUM - and 2 others

' MIAN MUHAMMAD AJMAL, J.---This review petition is directed against the judgment of this Court dated 26-2-2001, whereby bail granted to Muhammad Siddique petitioner and his co-accused Muhammad Khan by the High Court, was cancelled.

2. Facts of the case have already been given in the judgment under review; hence the same need not to be recapitulated.

3. Learned counsel for the petitioner contended that section 342, P.P.C. Is bailable whereas section 452, P.P.C. Is non-bailable but carries a punishment of 7 years which does not fall within the prohibitory clause of section 497, Cr.P.C. And that section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 provides punishment of one-half of the longest term provided for that offence i.e, Zina-bil-Jabr which entails punishment of 25 years. He further submitted that there was no evidence that even preparation to commit Zina-bil-Jabr was made by the accused. He emphasised that the bail of the petitioner and his co-accused was cancelled by this Court on the ground that the same was allowed by the High Court on the basis of concessional statement of the learned State Counsel and according to him, in such an eventuality, the case should have been remanded to the High Court for this decision on merits. He argued that in view of the divergent opinions of the Investigating Officers, the benefit of doubt should have been given to the accused.

4. After hearing the learned counsel for the petitioner at quite some length, we do not find any substance in this review petition, for, the offences under section 452, P.P.C. And section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are non-bailable, therefore, none can claim bail as of right in non-bailable offences even though the same do not fall under the prohibitory clause of section 497, Cr.P.C. This Court has ample power to pass any appropriate order on bail cancellation application after taking into account the relevant material on record and need not remit the case to the Court whose order is impugned before it. As far divergence of opinion of the two Investigating Officers is concerned, suffice it to say that in view of the report of the second Investigating Officer a prima facie case connecting the accused with the crime has been made out, therefore, the question of doubt at this stage cannot be entertained.

5. Learned counsel could not refer to any error apparent on the face of the record, he rather discussed the merits of the case which, in our view, was not permissible in review jurisdiction as in review neither the merits can be re-agitated nor re-argued, therefore, finding no merits in this review petition, we dismiss the same. However, the prosecution is directed to expeditiously put in the challan in the Court of competent jurisdiction who shall decide the case as early as possible.