SHEHBAZ AHMAD and another vs STATE & another
This petition for post-arrest bail arises from FIR No. 29 of 2019, involving allegations of manufacturing liquor under the Prohibition (Enforcement of Hadd) Order, 1979. The core legal question was whether the petitioners were entitled to bail given the nature of the recovery and the statutory provisions involved. The Court held that the petitioners were entitled to bail, noting that the contraband was recovered from a room not in their exclusive possession, and the prosecution failed to establish the charge of selling intoxicants. Furthermore, the Court observed that the mandatory requirements of Section 103 of the Code of Criminal Procedure 1898 regarding independent recovery witnesses were violated. Relying on the principle established in Tariq Bashir v. The State, the Court emphasized that for offences punishable by less than ten years, the grant of bail is the rule and refusal the exception. As the investigation was complete, the petitioners were non-convicts, and no exceptional circumstances existed to justify continued detention, the Court granted post-arrest bail.
- Is the grant of bail the rule and refusal the exception for offences punishable by imprisonment of less than ten years?
- Does the failure to associate independent witnesses during recovery proceedings violate the mandatory provisions of the Code of Criminal Procedure 1898?
- Can bail be refused in the absence of exceptional circumstances such as likelihood of abscondence or tampering with evidence?
- Section 497, Code of Criminal Procedure 1898
- Article 3, Prohibition (Enforcement of Hadd) Order 1979
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 103, Code of Criminal Procedure 1898
ORDER
Through the petition filed under section 497 Cr.P.C. the petitioners namely Shehbaz Ahmad, and Muhammad Zafar are seeking post-arrest bail in the case FIR No.29 of 2019, dated 17.1.2019, registered at Police Station Kot Mithan District Rajanpur , in respect of offences under Article 3 and 4 of Prohibition (Enforcement of Hadd) Ordinance, 1979.
2. The allegation as-against the petitioners, as culled from the evidentiary material produced before the Court is that the petitioners along with their co-accused were found preparing liquor and after seeing the police party fled away , however , seven plastic cans filled with local brew , each containing thirty litres of local brew and three drums of ethanol measuring twelve hundred litres was recovered from the place of occurrence.
3. I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance.
4. From perusal of contents' of FIR it transpires that the local brew was allegedly recovered from a room outside the house of the petitioners which was not in the exclusive possession of the present petitioners as other co- accused of the petitioner were also present in the said room at the time of raid for the recovery of contraband liquor , as such liquor was not recovered from the exclusive possession of the petitioners. Additionally all the recovery proceedings were conducted in absence of the petitioners. Admittedly , the petitioners were not selling or transporting any intoxicant, as prosecution for the purpose of proving charge of sell of intoxicant/local wine is bound to procure the purchaser , and purchased intoxicant and there is also no allegation of selling of the liquor in the. FIR, hence Article 3 of Prohibition (Enforceme nt of Hadd) Order , 1979 prima facie does riot attract to the case of the petitioner and offence under article 4 of Prohibition (Enforcement of Hadd) Order , 1979 is bailable. Furthermore, the Investigating Officer was duty bound to have made efforts for securing independent person from vicinity of crime, to act as recovery witness but the concerned Investigating Officer failed to do so, hence the mandatory provision of section 103, Cr.P.C. were violated. Besides, no exceptional circum stances appear in this case to withhold bail to the petitioner . The petitioners are behind the bars since their arrest on I 17.1.2019 and the investigation has been finalized, and the allegations against them are yet to be proved through evidence in the court, as such, further detention of the accused persons in this case at this stage would not serve any fruitful purpose. Admittedly , the petitioners are previous non-convicts. The trial has not seen any fruitful progress as yet. It is settled that while dealing with the ques tion of bail, Court should consider the minimum aspect of the sentence provided for the alleged offence in the schedule. In this respect, I am supported with the case of Tariq Bashir and 5 others v. The State " reported as PLD 1995 SC 34, wherein it has been mentioned that Section 497, Cr.P.C. divided non-bailable offences into two categories (1) offences punishable with death, imprisonment of life or imprisonment for ten year's (2) offences punishable for imprisonment of less than ten years, the principle to be deduced from this provision of law is that non-bailable offences jailing in the second category (punishable with imprisonment for less than ten years) the grant of hail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example:-
(a) Whether there is likelihood of abscondence of the accused;
(b) Where there is apprehension of the accused tampering with the prosecution evidence;
(c) Where that is danger of the of fence being repeated if the accused is released on bail; and
(d) Where the accused is a previous convict.
This principle has also been reiterated in the case of "Zafar Iqbal v. Muhammad Anwar and others " (2009 SCMR 1488 ). Riaz Jafar Natiq v. Muhammad Nadeem Dar and others (2011 SCMR 1708 ). The prosecution has not produced any material to prove extraordinary and exceptional circumstances to refuse bail to the petitioners.
5. For the foregoing reasons the petition in hand is accepted and the petitioners are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs. 100,000/- (rupees one hundr ed thousand only) each with two sureties each, in the like amount, to the satisfaction of learned trial court.
6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court.