BASHIR AHMAD Versus State
The petitioners sought post-arrest bail in a case registered under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, relating to the alleged manufacture of liquor and recovery of twenty litres of liquor from their house. The core legal question was whether the petitioners were entitled to bail given that the offences did not fall within the prohibitory clause and the Chemical Examiner's report was still awaited. The Lahore High Court held that since the offence under Article 4 is bailable and the punishment under Article 3(1) is five years which does not fall within the prohibitory clause, and considering the absence of the Chemical Examiner report making the case one of further inquiry under section 497(2) of the Code of Criminal Procedure 1898, the petitioners were entitled to bail as a matter of right and rule. The court laid down the principle that in bailable offences bail is a right, and for offences not falling within the prohibitory clause, grant of bail is the rule while refusal is the exception.
- Whether an accused is entitled to bail as a right in a bailable offence under the Prohibition (Enforcement of Hadd) Order, 1979?
- Does an offence carrying a punishment of five years imprisonment fall within the prohibitory clause?
- Does the failure to obtain a Chemical Examiner report on alleged recovered liquor make a case one of further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Articles 3/4, Prohibition (Enforcement of Hadd) Order 1979
- Article 3(1), Prohibition (Enforcement of Hadd) Order 1979
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Petitioners Bashir Ahmad son of Budha Khan, Munir Ahmad and Shabbir sons of Bashir Ahmad seek, post-arrest bail in case F.I.R. No.372 of 2004, dated 16-12-2004 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 registered, at Police Station Dajal District Rajanpur.
2. The allegations as contained in the F.I.R. are that on the pointation of Munir Ahmad and Nazim, a raid was conducted at the house of Bashir Ahmad, where it was found that the petitioners were busy in manufacturing of liquor. The raiding team also recovered 20 litres liquor and other articles where were being used for the said purpose.
3. Learned counsel for the petitioners submits that the offence under Article 3(1) of the Prohibition (Enforcement of Hadd) Order, 1979 is punishable with five years imprisonment and does not fall within the prohibitory clause; while Article 4 of the said Order provides punishment of two years which is a bailable offence, that the petitioners are innocent and have been falsely involved due to political rivalry as one of the sons of Bashir Ahmad namely Abdul Rasheed is a Councillor, who has political differences with some other parties.
4. Learned State Counsel has vehemently opposed the bail petition by submitting that huge quantity of liquor has been recovered from the petitioners who were arrested on the spot.
5. I have heard the learned counsel for the petitioner as well as State and perused the record.
6. The case was registered on 16-12-2004 and since then the police has not been able to obtain Chemical Examiner Report regarding liquor which is alleged to have been recovered from the petitioners, thus, making the case of the petitioners of further enquiry, within the purview of section 497(2) of the Code of Criminal Procedure. Admittedly under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, punishment of 2 years' R.I. has been provided, which is bailable. Under Article 3(1) of the Order, the punishment prescribed is 5 years which does not fall within the prohibitory clause. In cases where the offence is bailable, accused is entitled to bail as a right, while when the offences do not fall within the prohibitory clause, then grant of bail is a rule and refusal thereto is an exception. Respectfully reliance is placed upon PLD 1995 SC 34. I feel that there are no grounds to deny bail to the petitioners.
7. In the light of above, this petition is allowed the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of learned trial Court.
N.H.Q./B-95/L Bail granted.
Cited by 1 case
- FARYAD ANJUM MASIH vs THE STATE 2006 P Cr. L J 1884