MUSHTAQ ALI vs THE STATE
This petition for post-arrest bail arises from F.I.R. No. 680 of 2006, registered under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, involving the alleged recovery of 16 kuppies of liquor. The petitioner contended that the recovery violated Section 103, Code of Criminal Procedure 1898 due to the absence of private witnesses, and argued that the offence under Article 4 is bailable, carrying a maximum sentence of two years. The State opposed the bail, citing the petitioner's nomination in the F.I.R. and the recovery at the spot. The Court held that the provisions of Section 103, Code of Criminal Procedure 1898 are not applicable to such cases. Furthermore, the Court observed that the offence under Article 4 is bailable, and the offence under Article 3 does not fall within the prohibitory clause of Section 497, Code of Criminal Procedure 1898. Given that the investigation was complete and the Chemical Examiner's report was pending, the Court granted bail, emphasizing that the observations made were tentative and should not prejudice the trial.
- Are the provisions of Section 103, Code of Criminal Procedure 1898 applicable to recoveries made under the Prohibition (Enforcement of Hadd) Order 1979?
- Does an offence under Article 3 of the Prohibition (Enforcement of Hadd) Order 1979 fall within the prohibitory clause of Section 497, Code of Criminal Procedure 1898?
- Is an offence under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 considered a bailable offence?
- Article 3, Prohibition (Enforcement of Hadd) Order 1979
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 103, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' SH. JAVED SARFRAZ, J. Through this petition, the petitioner seeks bail after arrest in case F.I.R. No.680 of 2006, dated 7-9-2006 for offences under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 registered at Police Station Jhang Bazar, District Faisalabad.
2. Learned counsel for the petitioner contends that the recovery was allegedly made at busy place and no private witness had been associated hence the same was in violation of provisions of section 103, Cr.P.C., that the samples were sent to Chemical Examiner, but the report had not been received; that no allegation of selling "Liquor" was levelled against the petitioner hence the case of the petitioner fell under Article 4 of Prohibition (Enforcement of Hadd) Order 4 of 1979 which was punishable with an imprisonment of two years hence bailable; that the petitioner is neither a previous convict nor is required by the police for investigation therefore, he is entitled to the concession of bail.
3. On the other hand, the learned counsel appearing on behalf of the State contends that the petitioner had been nominated in the F.I.R. And had been apprehended at the spot; that 16 kuppies of liquor having been recovered from the petitioner the offence fell under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order 4 of 1979 hence, the petitioner is not entitled to the concession of bail.
4. I have heard the learned counsel for the parties and perused the record.
5. The arguments of the learned cbunsel for the petitioner is that there is violation of section 103, Cr.P.C. Has no substance, the provisions of section 103, Cr.P.C. Are not applicable in such-like cases, Article 4 of the Prohibition (Enforcement of Hadd) Order 4 of 1979 entails a maximum sentence of two years is a bailable offence while Article 3 does not fall within the prohibitory clause of section 497, Cr.P.C. The investigation is complete and the petitioner is no more required by the police for any purpose. The sample was sent to the Chemical Examiner for analysis however, that report has not been received back and it cannot be said at this stage as to whether the material recovered from the petitioner was liquor or not.
6. Resultantly, this petition is allowed and the petitioner is admitted to bail subject to his finishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court.
7. The learned trial Court shall decide the case strictly on the evidence so produced, without being prejudiced by the above observations which are only tentative in nature.