AHMAD RAZA vs THE STATE
The applicant sought post-arrest bail in a case registered under sections 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, following the recovery of a large quantity of wine bottles and capping equipment from a house. The core legal question was whether reasonable grounds existed to connect the accused to the alleged offenses under the Prohibition Order, considering the applicability of section 103 of the Code of Criminal Procedure 1898 and the lack of forensic evidence. The Peshawar High Court held that the prosecution failed to establish exclusive possession or ownership of the premises by the applicant, noted gross violations of search procedures, and observed the absence of a chemical report confirming the nature of the recovered substance. Consequently, the court allowed the bail application, laying down that tentative assessment of record pointing towards lack of exclusive possession and procedural lapses in search warrant granting bail.
- Whether recovery of liquor from a premises without proof of exclusive possession justifies post-arrest bail?
- Does non-availability of an FSL report at the bail stage make the case one of further inquiry?
- Whether violation of section 103 of the Code of Criminal Procedure 1898 casts doubt on the prosecution's recovery?
- Section 103, Code of Criminal Procedure 1898
- Article 3, Prohibition (Enforcement of Hadd) Order, 1979
- Article 4, Prohibition (Enforcement of Hadd) Order, 1979
- Article 22, Prohibition (Enforcement of Hadd) Order, 1979
1. ' IMTIAZ ALI, J.---Applicant seeks his release on bail in case F.I.R. No,218 dated 16-2-2010 under section 3/4 P.O. Registered at Police Station Pahari Pura, Peshawar.
2. ' Brief facts of the case are that on information S.H.O. Along with other police contingent raided the house of accused/ applicant and on search they recovered 24 cartons containing wine bottles numbering 803 of different brand from the room of the said house. From the said room a machine through which the said bottle were caped along with empty bottles were also recovered.
3. ' It is contended by the learned counsel for the applicant that alleged recovery being in violation of provision of section 103, Cr.P.C. Was highly doubtful. Applicant was not the owner of the house but was living as a tenant in the upper portion of the house while recovery has been made from a room at ground flour. He further submitted that FSL report is not available on record to support the prosecution case vis-a-vis identity of material contained in the bottles. He placed reliance upon PLD 2008 Lahore page 368.
4. ' Learned counsel for the State, however, opposed the application on the ground that huge quantity of liquor was recovered and applicant has been arrested red-handed.
5. Learned counsel for the applicant and State heard and record perused. There is no evidence to support the charge under Article 3 against the accused/applicant as to manufacture, import or export of the liquor. The machines to cap the bottles or empty bottles can hardly be termed as evidence of manufacturing the liquor while Article 4 of Prohibition Order which was bailable was also not made out against accused/applicant as he was not transporting the said material to anywhere else. There has also been gross violation of section 103, Cr.P.C. Read with Article 22 of Prohibition (Enforcement of Hadd) Order, 1979. Prosecution has not collected any evidence that either the accused/ applicant was owner of the house or in exclusive possession of the portion of the house from where the recovery had been made. Besides, at present even FSL report is not available on file to show that what was recovered was in fact liquor/intoxicant.
6. ' In view of the above, I allow this bail application direct that applicant Ahmad Raza be released on bail subject to his furnishing sureties in the sum of Rs,2,00,000 (Rupees two lacks only) in the like amount to the satisfaction of the trial Court.
7. ' Above are the detailed reasons for short order dated 31-3-2010 in the present petition.
Cited by 1 case
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