ABDUL WAHEED Versus State
This matter concerns a petition for post-arrest bail filed by an accused charged under sections 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, following his arrest for allegedly fermenting liquor at his residence. The core legal question was whether the prosecution had established a prima facie case sufficient to deny bail, specifically regarding the applicability of the charged sections given the circumstances of the recovery. The Court held that the prosecution's narrative—that the accused was caught red-handed fermenting liquor in an open, accessible backyard—was implausible. Furthermore, the Court observed that while utensils were recovered, the essential raw materials required for the fermentation process were absent, rendering the charge under section 3 of the Prohibition (Enforcement of Hadd) Order, 1979, inapplicable. Regarding section 4, the Court noted it is a bailable offence. Consequently, the Court determined the case required further inquiry and granted bail. The key principle laid down is that for an offence of manufacturing liquor to be established, the recovery of both the necessary utensils and the essential raw materials is required.
- Is the recovery of both utensils and raw materials necessary to establish an offence under section 3 of the Prohibition (Enforcement of Hadd) Order, 1979?
- Does the absence of raw materials for fermentation render a case one of further inquiry for the purpose of bail?
- Is an offence under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979, bailable?
- Section 3, Prohibition (Enforcement of Hadd) Order, 1979
- Section 4, Prohibition (Enforcement of Hadd) Order, 1979
ORDER
KHURSHID ANWAR BHINDER, J .--- The petitioner seeks post-arrest bail in case F.I.R No.10 of 2009 dated 13-1-2009 registered under sections 3/4 Prohibition (Enforcement of Hadd) Order, 1979 at Police Station Maclod Gunj District Bahawalnagar.
2. Precise allegations against the petitioner as per narration of F.I.R are that he was caught red handed by the police raiding party while fermenting local made liquor.
3. Learned counsel for the petitioner submits that as per allegation levelled against the petitioner in the F.I.R that he was fermenting liquor at the backyard of his house is absolutely implausible because open place of the house is accessible to every one, therefore, there was no reason for him to ferment liquor at an open place. He further submits that no independent witnesses of the locality have been associated in the search process. The petitioner is a non-record holder and prior to this occurrence, no criminal case stood registered against him. He lastly submits that the petitioner is behind the bars for the last four months for an offence which he has not committed, therefore, he is entitled to be released on bail.
4. Learned A.P.-G. opposes bail application of the petitioner and submits that the petitioner has committed an offence against the society which is absolutely unpardonable. He further argues that he was caught' red handed while fermenting local made liquor which is hazardous to the health of people. He lastly submits that huge quantity of liquor has been recovered from him, therefore, he is not entitled to be released on bail.
5. I have heard the learned counsel for the petitioner, as well as learned A.P.-G. and have also perused the record. There is no denying the fact that the petitioner is nominated in the F.I.R. With specific role of fermenting liquor but at the same time this Court has to' see as to whether provisions of law under which the present petitioner is liable to be tried are attracted in the instant case or not. One aspect of the case seems absolutely implausible, irrational and unbelievable that police raiding party had caught the petitioner red handed while he was fermenting liquor at the backyard of his house especially when that place is accessible to every one, therefore, I am not convinced that he was caught red handed from the backyard of the house, especially when he could have fermented liquor at a hidden place and it is also not possible for any person to commit any crime at an open place where he is being seen by public at large. Moreover, police raiding party had no doubt recovered necessary utensils which were used in fermenting liquor but I am afraid they have not been able to recover any material by which liquor is fermented. In order to constitute an offence under section 3 of PEHO it is all the more necessary that recovery of material as well as utensils used are to be effected but in the instant case police raiding party had not been able to recover material used in the preparation- of the liquor,, therefore, to the extent of manufacturing liquor is not established, hence section 3 of PEHO is not attracted in the instant case. As far as section 4 of PEHO is concerned, it is a bailable offence. It has also been brought to the notice of this Court that previously the petitioner is a non-record holder, therefore, possibility of false implication of the petitioner in this case cannot be ruled out. Moreover, the offences under which the present petitioner is liable to be tried are not attracted in the instant case.
6. 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 (rupees fifty thousand), with two sureties in the like amount each to the satisfaction of learned trial Court/Illaqa Magistrate. However, observations made by this Court shall not prejudice the case of either party in the trial Court.
Petition stands disposed of.
H.B.T./A.127/L Bail granted.