MUHAMMAD YAQOOB Versus State

ORDER

KHURSHID ANWAR BHINDER, J .--- The petitioner seeks post-arrest bail in case F.I.R. No.53 of 2008, dated 21-4-2008, registered under Articles 3/4, 4/79, P.H.O. at Police Station Kot Nainan, District Narowal.

2. Precise allegations against the petitioner are that he was apprehended by the police on 21-4-2008 while selling local made liquor in the Bazar and 25 bottles of liquor were also recovered from him.

3. Learned counsel for the petitioner submits that the petitioner was arrested from the Bazar and no independent witness was associated in the recovery process, whereas it was not much difficult to associate any body from the public place. He further submits that Article 3 of P.H.O. is not made out against the petitioner, as the Police has not been able to recover any watteck money from him. As regards Article 4 of P.H.O., it is a bailable offence. He has relied upon Tariq Bashir and 5 others v. The State PLD 1995 SC 34, Abid Ali v. The State 2007 PCr.LJ 611 and Ghulam Abbas v. The State 1997 MLD 1743. Under the circumstances petitioner's case is that of further inquiry into his guilt.

4. Learned D.P.-G. opposes bail application of the petitioner and submits that it is promptly lodged F.I.R. He further submits that huge quantity of liquor is recovered from him and police has no previous enmity against the petitioner to falsely implicate him in the-instant case. He adds that the petitioner is involved in such-like cases prior to this occurrence as well.

5. I have heard the learned counsel for the petitioner as well as learned D.P.-G. and have also perused the record. First thing which is to be established before passing any order in the bail application is as to whether offence under which accused person is liable to be tried is made out or not. In the instant case, the petitioner is liable to be tried under Articles 3/4, 4/79, P.H.O.. As per facts and circumstances, it is established that police has not been able to recover any watteck money from the petitioner and the very spirit of Article 3 of P.H.O. is that whatsoever buys and sells liquor is liable to be tried under this provision of law. Secondly, it does not appeal to one's mind that a person carrying 25 bottles of liquor in a bag would sell them in the open Bazar. It seems highly unlikely, irrational, implausible and unbelievable, because it is not a market commodity which is to be sold in open market and every one knows that it is a heinous offence of selling liquor in the open market. No person would dare selling liquor in the open market, when people also become offensive on the sale of liquor publicly. Strictly speaking Article 3 of P.H.O. is not made out against the petitioner as per facts and circumstances of the case.

6. As regards, Article 4, it is not established as to whether he was transporting the liquor from one place to the other. In the instant case, he was moving around in the Bazar, as it is alleged by the prosecution, therefore, Article 4, P..H.O. is also not attracted in the instant case. Otherwise, Article 4, P.H.O. is a bailable offence.

7. As far as the argument of the learned D.P.-G. regarding associating independent witness from the locality is concerned, it is mentioned in the F.I.R. that police did make an effort to associate public witness in the recovery process, but nobody came forward as a witness, therefore, his argument regarding credible evidence adduced by the police witnesses is trustworthy, cannot be relied upon, for the reason that it is in the narcotic sale cases where it has been held by the apex Court of the country that the police witnesses are as good witnesses as any body else. But here police could have easily associated public witnesses as the sale of liquor was being done in the main Bazar where thousands of people were available to be associated as witnesses. Learned D.P.-G. has also pointed out that the petitioner is a habitual offender and has previously been involved in such like cases prior to this occurrence. In this context, it has been held by the apex Court of the Country, especially in the case of Ghulam Abbas (ibid), relied upon by the learned counsel for the petitioner, that nobody can be held guilty unless and until his guilt is proved.

8. Under the circumstances, petitioner's case is that of further inquiry into his guilt. I, therefore, admit the petitioner to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the learned trial Court/Illaqa Magistrate.

Petition stands disposed of.

N.H.Q./M-167/L Bail allowed.