NAZAR HUSSAIN vs STATE
This matter arises from a petition for pre-arrest bail filed by Nazar Hussain in respect of FIR No. 629 dated 26.12.2004 registered under Sections 272, 273, and 420 of the Pakistan Penal Code 1860, along with Sections 5(a) and 6(1)(a)(b)(c) of the Pure Food Ordinance 1960 and Rules 1965 at Police Station City Burewala, District Vehari, on allegations of selling sub-standard sweets unfit for human consumption. The core legal question was whether the petitioner was entitled to pre-arrest bail considering that he had already been fined for the same occurrence under a previously filed complaint, raising issues of double jeopardy under Article 13 of the Constitution of Pakistan 1973, and whether the offences involved bailable categories or fell within the prohibitory clause. The Lahore High Court held that since the petitioner had already paid the fine in the prior proceedings arising from the same occurrence, and the offences—except for Section 23(c) of the Pure Food Ordinance, which did not apply absent repetition or large-scale adulteration—were bailable, a case for further inquiry was made out. The court confirmed the ad-interim pre-arrest bail, establishing the principle that bail in bailable offences is a right and that repeated punishment or prosecution for the same occurrence is impermissible.
- Is bail in bailable offences to be granted as a right rather than grace?
- Whether a second FIR for the same occurrence is permissible when the accused has already been fined in a previous complaint?
- Does Section 23(c) of the Pure Food Ordinance 1960 apply without proof of repetition or large-scale adulteration?
- Section 272, Pakistan Penal Code 1860
- Section 273, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 5(a), Pure Food Ordinance 1960
- Section 6(1)(a)(b)(c), Pure Food Ordinance 1960
- Article 13, Constitution of Pakistan 1973
- Section 269, Pakistan Penal Code 1860
- Section 23(c), Pure Food Ordinance 1960
ORDER
Petitioner Nazar Hussain S/O Hakim Ali seeks pre-arrest bail in case FIR No, 629 dated 26.12.2004 u/Ss. 272, 273, 420 PPC Ss. 5(a), 6(1)(a)(b)(c) Pure Food Ordinance, 1960 and Rules 1965 registered at the P.S. City Burewala District Vehari.
2. The allegation against the petitioner is that on 11.11.2004, the complainant Zulfiqar Ali alongwith Sanitary Inspector raided the Sweets shop of the petitioner (Tariq Sweets) situated at Lari Adda Burewala and took samples of sweets which were sent to the Laboratory. It is alleged in the FIR that according to the Laboratory Report, the sweets which were being sold by the present petitioner were sub-standard and where not fit for human consumption.
3. It has been submitted by the learned counsel for the petitioner that for the same occurrence the petitioner was fined Rs, 500/- which were paid by him and he cannot be punished twice for the same offence and this amounts to violation of rights as guaranteed under Article-13 of the Constitution of Islamic Republic of Pakistan, 1973 that all the offences are bailable, therefore, prays for bail.
4. The petition has been vehemently opposed by the learned State Counsel.
5. Complainant under Sections 269 & 273 PPC had been filed before the learned Special Judicial Magistrate, Burewala, of this occurrence, in which the petitioner was fined Rs, 500/- which is alleged to have been deposited. The present FIR appears to be outcome of the same occurrence which is not permissible under the law. The petitioner having deposited Rs, 500/- is not liable to be punished again. All the offences mentioned above except Section 23(c) of the Pure Food Ordinance are bailable and in bailable offence, as held by the Hon'ble Supreme Court of Pakistan in PLD 1995 SC 34 that bail is to be granted as a right and not as a grace. Section 23(c) of the Pure Food Ordinance is applicable only when there is a repetition of an offence or for offence of large scale adulteration. The punishment for the above-said section is not less than three years and not more than 5 years and that fine ranging from Rs, 5,000/- to Rs, 1,00,000/-. It has not been alleged in the FIR that petitioner has repeated these offences. Needless to add that even this offence does not fall within the prohibitory clause. Even otherwise case of further inquiry has been made out.
6. Under" the circumstances ad-interim pre-arrest bail granted to the petitioner on 13.4.2005 is hereby confirmed subject to his furnishing fresh bail bonds it the sum of Rs, 50,000/- with one surety in the like amount to the satisfaction of learned trial Court..
7. However, it is made clear that any observation made above shall not affect the merits of the case.