BASHIR AHMAD and 2 others vs THE STATE
This matter concerns a petition for post-arrest bail filed by three accused persons, Bashir Ahmad, Munir Ahmad, and Shabbir, who were charged under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, following the alleged recovery of 20 litres of liquor from their residence. The core legal question was whether the petitioners were entitled to bail given the nature of the offences and the status of the investigation. The Court held that the petitioners were entitled to bail, primarily because the prosecution had failed to obtain a Chemical Examiner's report regarding the recovered substance since the registration of the case, thereby bringing the matter within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. Furthermore, the Court noted that the offences charged did not fall within the prohibitory clause of the relevant statute. The key principle laid down is that where an offence is bailable, bail is a right, and where an offence does not fall within the prohibitory clause, the grant of bail is the rule, while refusal remains an exception.
- Does the offence under Article 3(1) of the Prohibition (Enforcement of Hadd) Order, 1979 fall within the prohibitory clause of Section 497, Code of Criminal Procedure 1898?
- Is the failure of the prosecution to obtain a Chemical Examiner's report sufficient grounds to grant bail under the principle of further inquiry?
- Is an accused entitled to bail as a matter of right in cases where the alleged offence is bailable?
- Article 3, Prohibition (Enforcement of Hadd) Order, 1979
- Article 4, Prohibition (Enforcement of Hadd) Order, 1979
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Petitioners Bashir Ahmad son of Budha Khan, Munir Ahmad and Shabbir sons of Bashir Ahmad seek post-arrest bail in case F.I.R. No,372 of 2004, dated 16-12-2004 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 registered at Police Station Dajal District Rajanpur.
2. The allegations as contained in the F.I.R. Are that on the pointation of Munir Ahmad and Nazim, a raid was conducted at the house of Bashir Ahmad, where it was found that the petitioners were busy in manufacturing of liquor. The raiding team also recovered 20 litres liquor and other articles where were being used for the said purpose.
3. Learned counsel for the petitioners submits that the offence under Article 3(1) of the Prohibition (Enforcement of Hadd) Order, 1979 is punishable with five years imprisonment and does not fall within the prohibitory clause; while Article 4 of the said Order provides punishment of two years which is a bailable offence, that the petitioners are innocent and have been falsely involved due to political rivalry as one of the sons of Bashir Ahmad namely Abdul Rasheed is a Councillor, who has political differences, with some other parties.
4. Learned State Counsel has vehemently opposed the bail petition by submitting that huge quantity of liquor has been recovered from the petitioners who were arrested on the spot.
5. I have heard the learned counsel for the petitioner as well as State and perused the record.
6. The case was registered on 16-12-2004 and since then the police has not been able to obtain Chemical Examiner Report regarding liquor which is alleged to have been recovered from the petitioners, thus, making the case of the petitioners of further enquiry, within the purview of section 497(2) of the Code of Criminal Procedure. Admittedly under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, punishment of 2 years' R.I. Has been provided, which is bailable. Under Article 3(1) of the Order, the punishment prescribed is 5 years which does not fall within the prohibitory clause.
In cases where the offence is bailable, accused is entitled to bail as a right, while when the offences do not fall within the prohibitory clause, then grant of bail is a rule and refusal thereto is an exception. Respectfully reliance is placed upon PLD 1995 SC 34. I feel that there are no grounds to deny bail to the petitioners.
7. In the light of above, this petition is allowed the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of learned trial Court.