NAZAR HUSSAIN vs THE STATE
This matter arises from a petition for pre-arrest bail filed by Nazar Hussain in relation to F.I.R. 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. The core legal question concerns whether the petitioner is entitled to pre-arrest bail given that he was previously fined for the same occurrence, raising issues of double jeopardy under Article 13 of the Constitution of Pakistan 1973, and whether the offences involved fall within the prohibitory clause. The Lahore High Court held that the petitioner, having been fined in a prior complaint for the same occurrence, could not be punished twice, that most offences were bailable where bail is granted as of right, and that the non-bailable section invoked did not apply as there was no repetition of the offence nor did it fall within the prohibitory clause, making it a case of further inquiry. Consequently, the court confirmed the pre-arrest bail.
- Whether a person can be subjected to a criminal F.I.R. after having been fined for the same occurrence?
- Is bail in bailable offences to be granted as a matter of right?
- Does section 23(c) of the Pure Food Ordinance 1960 apply in the absence of a repetition of the offence or large-scale adulteration?
- Does an offence under section 23(c) of the Pure Food Ordinance 1960 fall within the prohibitory clause?
- Section 272, Pakistan Penal Code 1860
- Section 273, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 269, Pakistan Penal Code 1860
- Section 5(a), Pure Food Ordinance 1960
- Section 6(1)(a)(b)(c), Pure Food Ordinance 1960
- Section 23(c), Pure Food Ordinance 1960
- Article 13, Constitution of Pakistan 1973
ORDER
' SH. JAVAID SARFRAZ, J.--- Petitioner Nazar Hussain son of Hakim Ali seeks pre-arrest bail in case F.I.R. No, 629 dated 26-12-2004 under sections 272, 273, 420, P.P.C. Sections 5(a), 6(1)(a)(b)(c), Pure Food Ordinance, 1960 and Rules, 1965 registered at the Police Station City Burewala District Vehari.
2. The allegation against the petitioner is that on 11-11-2004, the complainant Zulfiqar Ali along with 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 F.I.R.
That according to the Laboratory Report, the sweets which were being sold by the present petitioner were substandard and were 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. Complaint under sections 269 and 273, P.P.C. 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 F.I.R. 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 Honourable 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,5000 to Rs,1,00,000. It has not been alleged in the F.I.R.
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 in 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.