ATTIYA-TUL-QADDUS Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

ORDER

This is a petition for grant of pre-arrest bail on behalf of Shamsher Ali, petitioner, in case F.I.R. No.14/93 dated 2-7-1993, under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, registered at Police Station C.I.A. Kahna, Lahore.

2. The petitioner was allowed interim pre-arrest bail by me on 3-11-1993. This order be read in continuation to said order.

3. The.S.I. who is present in Court says that the petitioner joined the investigation on 17-7-1993 and today. He further says that on his part the investigation is complete and the petitioner is no more required for the purpose of investigation/interrogation.

4. Learned counsel appearing on behalf of the petitioner argued that it is a fit case has been registered mala fidely inasmuch as the recovery of alleged intoxicant (Charas) had not been effected from the person of the petitioner rather it was found lying outside his house and that no witness from public had been associated to witness the recovery and thus the provisions of section 103, Cr.P.C. have been violated. Further submitted that the petitioner has a dispute about the office of "Mutwalli" of the shrine of Syed Faqir Ali Shah, situate in village Jahman, with his younger brother Shabbir Haider-Shah who dubbin him as "Shia" wants to grab the whole income of the shrine dishonestly and for that purpose in view he in conspiracy with the local police wants him to be involved in this case to pressurize him. Lastly he submitted that the alleged offence is punishable with two years' R.I. plus whipping under Article 4 of the Prohibition Order and since this offence has not been made non-bailable under the said Order, therefore, under the general formula given in Schedule II the offence is bailable being an offence punishable with less than 3 years' R.I. plus whipping. Learned counsel for State has opposed the petition saying that the Police Officers are competent witnesses like other citizens of Pakistan; that a great quantity of intoxicant was seen by the witnesses being thrown by petitioner at the spot, therefore, he is not entitled to grant of pre- arrest bail. He however, could not effectively meet the objection that the offence allegedly committed by the petitioner, has not been made non-bailable under Schedule 11 of the Code of Criminal Procedure'or the Prohibition Order, 1979.

5. Considering the facts and circumstances of the case in the 'light of contentions raised by learned counsel for the parties, I am of the view that not only the existence of element of mala fide on the part of the police cannot be ruled out but the offence appears to be bailable. Furthermore, according to the police the petitioner is no more required for the purpose of investigation/interrogation. In the above circumstances, the interim pre-arrest bail granted to the petitioner earlier is hereby confirmed. The petition is disposed of.

N.H.Q./S-406/L Pre-arrest bail allowed.