ISLAM-UD-DIN Versus State

ORDER

MALIK HAQ NAWAZ, J.--- The petitioner has booked for the offence under Articles 3/4, E.H.O. (4 of 1979) by local Police of Police Station Gupis.

2. The precise facts of the case as highlighted in the FIR No.05/2017 dated 01-02-2017 are that on the day of occurrence the local police on "Naka" was carrying surprise checking of the vehicles, and they stopped the present petitioner, driving an Alto Car. On checking of the car nothing was recovered, however, on personal search of the petitioner 10 gram charas was recovered from his pocket. The petitioner/accused disclosed during investigation that he has concealed 700 grams of charas underneath a bridge, which was also recovered on his pointation.

3. After completion of investigation the petitioner was committed to judicial lock up. The petitioner applied for post arrest bail in the Court of learned Judicial Magistrate, which was turned down vide order dated 13-03-2017. The petitioner/accused filed a bail application in the Court of learned Sessions Judge Ghizer, which was also declined vide order dated 27-04-2017. Now the petitioner has approached this Court for concession of bail on many fold grounds.

4. The learned counsel for the petitioner Mr. Rehman Ali, Advocate submitted at bar that orders/judgments of both the Courts below are devoid of any legal and justified reasoning. The learned counsel vehemently contended that the offence under Article 3, E.H.O., 1979 provides a punishment of 05 years, while offence under Article 4, E.H.O., 1979 is bailable and carries only 02 years' RI. The learned counsel on the strength of PLD 1995 SC 34 contends that bail in the offences not falling within prohibitory clauses of section 497, Cr.P.C. is a rule and refusal is an exception, but both the Courts below have ignored this golden rule of law and refused bail to the petitioner. Moreover the provisions of the section 103, Cr.P.C. have been violated.

5. On the other hand the learned Deputy Advocate General opposed the petition as usual and stated that the act of the petitioner has harsh impact on the society.

6. Heard the adversaries at length.

7. The contention of the learned counsel for the petitioner that mandatory provisions of section 103, Cr.P.C. have been violated are not legally tenable, as these provisions are not applicable, when a recovery is effected from a vehicle during Nakahbandi. However, the contention of the learned counsel that offence with which the petitioner is charged does not fall within prohibitory clauses of section 497, Cr.P.C., carries legal weight. Bail cannot be refused to an accused as a measure of advance punishment. Grant of bail to an accused booked for the offences, which carries less than 10 years' RI is a rule and refusal is an exception and there exhists no such exception in the instant case. The petitioner is behind the bars since last over 03 months and no useful purpose would be served by keeping him in custody for an indefinite period.

8. As result of above discussion, the petitioner is admitted to bail subject to furnishing of bail bonds of Rs. 500000/- (Five lac) with two sureties each in the like amount to the satisfaction of trial Court.

WA/177/GB Bail granted.