2019 Y L R Note 105

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

SHEHBAZ AHMAD and another—Petitioners

Versus

The STATE and another—Respondents

Criminal Miscellaneous No. 1150-B of 2019, decided on 5th April, 2019.

(a) Criminal Procedure Code (V of 1898)—

—-Ss. 497 & 103—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4—Manufacture of intoxicants—Owning or possessing intoxicant—Bail, grant of—Search to be made in presence of witnesses—Scope—Petitioners along with their co-accused were found preparing liquor and they after perceiving the police party fled away, however, local brew and ethanol was recovered from the place of occurrence—Validity—Local brew was allegedly recovered from a room outside the house of the petitioners which was not in the exclusive possession of the petitioners as other co-accused were also present in the said room at the time of raid for the recovery of contraband liquor, as such liquor was not recovered from the exclusive possession of the petitioners—Recovery proceedings were conducted in the absence of the petitioners—Petitioners were not selling or transporting any intoxicant, as prosecution for the purpose of proving charge of selling of intoxicant/local wine was bound to procure the purchaser and purchased intoxicant—No allegation of selling of the liquor was made in the FIR, hence Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 prima facie did not attract to the case of the petitioners—Offence under Art. 4 of Prohibition (Enforcement of Hadd) Order, 1979 was bailable—Investigating officer was bound to have made efforts for securing independent person from vicinity of crime to act as recovery witness but he failed to do so, hence the mandatory provisions of S. 103, Cr.P.C. were violated—Investigation had been finalized and the allegations against petitioners were yet to be proved—Petitioners were previous non-convicts—Trial had not seen any fruitful progress—Prosecution had not produced any material to prove extraordinary and exceptional circumstances to refuse bail to the petitioners—Petition for grant of bail was accepted, in circumstances. (b) Criminal Procedure Code (V of 1898)—

—-S. 497—Bail—Minimum sentence—Scope—Court should, while dealing with the question of bail, consider the minimum aspect of the sentence provided for the alleged offence in the schedule.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

—-S. 497—Bail—Offence punishable for imprisonment of less than ten years—Principles—Section 497, Cr.P.C. divided non-bailable offence into two categories; Firstly, offence punishable with death, imprisonment for life or imprisonment for ten years; Secondly, offence punishable for imprisonment of less than ten years—Principle to be deduced from said provision of law is that in cases of non-bailable offence falling in the second category, the grant of bail is a rule and refusal an exception—Bail will be declined only in extraordinary and exceptional cases, for example (a) where there is likelihood of absconsion of the accused; (b) where there is apprehension of the accused to tamper with the prosecution evidence; (c) where there is danger of the offence being repeated if the accused is released on bail; and (d) where the accused is a previous convict.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 and Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 ref.

Malik Aamir Manzoor Awan for Petitioner.

Adnan Latif, Deputy District Public Prosecutor with Yaseen, A.S.I. for Respondents.

ORDER

SADIQ MAHMUD KHURRAM, J.—Through the petition filed under section 497, Cr.P.C., the petitioners namely Shehbaz Ahmad and Muhammad Zafar are seeking post-arrest bail in the case FIR No.29 of 2019, dated 17.01.2019, registered at Police Station Kot Mithan District Rajanpur, in respect of offences under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979.

2. The allegation as against the petitioners, as culled from the evidentiary material produced before the Court is that the petitioners along with their co-accused were found preparing liquor and after seeing the police party fled away, however, seven plastic cans filled with local brew, each containing thirty litres of local brew and three drums of ethanol measuring twelve hundred litres was recovered from the place of occurrence.

3. I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance.

4. From perusal of contents of FIR it transpires that the local brew was allegedly recovered from a room outside the house of the petitioners which was not in the exclusive possession of the present petitioners as other co-accused of the petitioner were also present in the said room at the time of raid for the recovery of contraband liquor, as such liquor was not recovered from the exclusive possession of the petitioners. Additionally all the recovery proceedings were conducted in absence of the petitioners. Admittedly, the petitioners were not selling or transporting any intoxicant, as prosecution, for the purpose of proving charge of sell of intoxicant/local wine is bound to procure the purchaser, and purchased intoxicant and there is also no allegation of selling of the liquor in the FIR, hence Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 prima facie does not attract to the case of the petitioner and offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 is bailable. Furthermore, the Investigating Officer was duty bound to have made efforts for securing independent person from vicinity of crime to act as recovery witness but the concerned Investigating Officer failed to do so, hence the mandatory provision of section 103, Cr.P.C. were violated. Besides, no exceptional circumstances appear in this case to withhold bail to the petitioner. The petitioners are behind the bars since their arrest on 17.01.2019 and the investigation has been finalized, and the allegations against them are yet to be proved through evidence in the court, as such, further detention of the accused persons in this case at this stage would not serve any fruitful purpose. Admittedly, the petitioners are previous non-convicts. The trial has not seen any fruitful progress as yet. It is settled that while dealing with the question of bail, court should consider the minimum aspect of the sentence provided for the alleged offence in the schedule. In this respect, I am supported with the case of “Tariq Bashir and 5 others v. The State” reported as PLD 1995 SC 34, wherein it has been mentioned that Section 497, Cr.P.C. divided non-bailable offences into two categories (1) offences punishable with death, imprisonment of life or imprisonment for ten years (2) offences punishable for imprisonment of less than ten years, the principle to be deduced from this provision of law is that non- bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example:–

(a) Whether there is likelihood of abscondence of the accused;

(b) Where there is apprehension of the accused tampering with the prosecution evidence;

(d) Where the accused is a previous convict.

This principle has also been reiterated in the case of “Zafar Iqbal v. Muhammad Anwar and others” (2009 SCMR 1488), Riaz Jafar Natiq v. Muhammad Nadeem Dar and others (2011 SCMR 1708). The prosecution has not produced any material to prove extraordinary and exceptional circumstances to refuse bail to the petitioners.

5. For the foregoing reasons the petition in hand is accepted and the petitioners are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs.100,000/- (rupees one hundred thousand only) each with two sureties each, in the like amount, to the satisfaction of learned trial court.

6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court.

SA/S-59/L Bail granted.

Prohibition (Enforcement of Hadd) Order, 1979 2019 Y L R Note 105

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