SHERA Versus THE STATE

ORDER

Persistent in action, obdurate in performance, reluctant to repent, the petitioner, with all these characteristics to his score, has knocked the door of this Court for grant of concession of bail after‑arrest in case F.I.R. No.423 of 2003, registered on 16‑9‑2003 with Police Station City Sadiqabad under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 197‑9, after, having failed to get the concession from the learned Magistrate on 4‑10‑2003 and from the learned Additional Sessions Judge, Sadiqabad on 15‑10‑2003.

2. The learned counsel for the petitioner submits that the petitioner was involved in the case on the basis of alleged confession made by him before the police in connection with interrogation in another case in which he was involved by the police. According to the learned counsel, the alleged confession before the police was inadmissible. He has further argued that the offence under section 3 of Prohibition (Enforcement Hadd) Order, 1979, is not applicable to the accused in case, while the offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, is bailable, therefore, the petitioner is entitled to bail. Supporting the case of bail, the learned counsel for the petitioner submits that no report from the Chemical Examiner was released and reached to the police with regard to the test and analysis to the sample of the alleged wine and the liberty of human being is involved. There is no prospect of near future conclusion' of the case, so the petitioner arrested on 16‑9‑2003 may be granted bail.

3. The bail has been vehemently opposed by the learned counsel for the State. It has been stated that the petitioner was involved in many cases and was a previous convict, therefore, not entitled to the grant of bail.

4. After considering the facts, and the arguments of the learned counsel, it has been found from the record that the petitioner' is a habitual offender and is involved in so many cases, the number of which have reached to the extent of more than 11 cases. Maximum of the cases had related to the commission of the offence under Articles 314 of Prohibition (Enforcement of Hadd) Order, 1979. Out of these large number of cases, in case F.I.R. No. 150 of 1992 the petitioner was convicted under Articles 3/4 of Prohibition (Enforcement of Hadd) Order,, 1979 for one year and in another case of F.I.‑R. No.276 of 1991, registered under sections 379, 411, P.P.C. he was sentenced to undergo the imprisonment of one year. The bare perusal of the F.I.R. of the instant case reveals that the petitioner was already involved in case F.I.R, No.408 of 2003 registered on 15‑9‑2003 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, when he led to the recovery of 20 litres of wine prepared by him for the purpose of sale inside the city of Sadiqabad. The paraphernalia .for the, preparation and storage of the wine was also recovered at his pointation. After having been involved in 11 cases, since 1991, the petitioner has not left this profession and has continued with the preparation, supply and sale of liquor. His incessant efforts and obstinate conduct display the intentional violation of law of the land. In spite of involvement in many cases of such nature, he has refused to let loose the profession and has continuously indulging himself in the increasing number of cases. So he has been found a habitual and desperate offender in this regard. The stress in the arguments of the learned counsel as to the offence being bailable and the petitioner, therefore, entitled to bail has not impressed me much in this case, because as pronounced by the apex Court, of this country, the Honourable Supreme Court of Pakistan in Afzaal Ahmad v. The State 2003 SCMR 573, which has expounded that the bail in the offences not falling within the prohibitory clause does not compel the Court to exercise its discretion always in favour of the accused. The facts and circumstances of each case have to decide its fate. Even in the offences which do not fall within the prohibitory clause of section 497, Cr.P.C. and are bailable, the concerned Court has jurisdiction to refuse the bail if such course of action is of compulsive in nature and requires to be adopted in such case. The repetition of the offence has marred the fate of this case. Accordingly, he is held not entitled to the grant of bail. Grant of bail is a concession, which cannot be extended to a person having bad record to his score especially in those cases where the concession of bail is going to be misused. I cannot grant him the concession of bail. Accordingly, the bail application of the petitioner is rejected.

N.H.Q./S‑809/L Bail refused.