JIANDAL SHAH Versus State
This matter comes before the High Court through an application for pre-arrest bail in respect of Crime No. 69 of 2004 registered at Police Station Bhan under sections 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The core legal question concerns the applicability of the said provisions and the bailable nature of the offence where no recovery is effected and the accused allegedly escaped from the raiding party. The court held that Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 was prima facie inapplicable and Article 4 was bailable, while noting the implausibility of the escape from a large raiding party and the concession of the State counsel. Consequently, the court confirmed the pre-arrest bail already granted to the applicants. The key principle laid down is that where penal provisions are prima facie inapplicable or bailable and the prosecution's version regarding escape lacks-prudent credibility, pre-arrest bail is rightly confirmed.
- Whether Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 is applicable when no recovery is effected from the accused?
- Whether offences under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 are bailable?
- Can pre-arrest bail be confirmed when the State concedes the factual and legal position?
- Section 3, Prohibition (Enforcement of Hadd) Order 1979
- Section 4, Prohibition (Enforcement of Hadd) Order 1979
ORDER
1. Through this application applicants seek pre‑arrest bail in Crime No.69 of 2004 in an offence punishable under sections 3/4, Prohibition (Enforcement of Hadd) Order, 1979 registered at Police Station Bhan on 23‑8‑2004. The applicants approached the Court of Sessions Judge, Dadu by filing Cr.B.A. No.870 of 2004, but their bail application was dismissed vide order, dated 7‑9‑2004 by learned Sessions Judge, Dadu, the applicants have filed application before this Court for seeking pre- arrest bail In the above‑mentioned crime.
2. On 20‑10‑2004 interim pre‑arrest bail was granted subject to their furnishing surety in the sum of Rs.50,000 each and P.R. Bond in the like amount. Mr. Qureshi submits that Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 was not applicable against the accused whereas Article 4 of the said order is bailable as no recovery was effected from the applicants/accused as the applicants succeeded in escaping from the clutches of the raiding party as disclosed in the F. I. R.
3. Learned Assistant Advocate‑General has conceded the factual as well as legal position.
4. I have heard the arguments of learned counsel for the respective parties. Admittedly Article. 3 of the aforesaid order prima facie is not applicable against the applicants/accused whereas Article 4 is bailable one. The contention raised by learned counsel for the applicants carry weight. The raiding party was consisted of 7 persons and it does not appeal to the man of prudent mind that applicants succeeded in escaping from the clutches of the raiding party on the relevant time.
5. In view of the above and no objection of the learned State Counsel pre‑arrest bail already granted to the applicants vide order, dated 19‑10‑2004 by this Court is hereby confirmed on the same terms and conditions.
6. The applicants are directed to join the trial Court. They are also required to furnish the surety in the same Court.
7. H.B.T./J‑12/K Pre‑arrest bail confirmed.
Cited by 1 case
- ABDUL MAJEED vs THE STATE 2009 P Cr. L J 1439