2013 PLP 1286 (YLR)

SARDAR M. SHAHZAD KHAN, J.

The above captioned revision petition is directed against the order of District Court of Criminal Jurisdiction Muzaffarabad dated 16-11-2012 whereby, the bail application of the accused-petitioner was disallowed by the said Court.

2. Brief facts forming the background of the instant revision petition are that a case under sections 3/4. The Prohibition (Enforcement of Hadd) Act, 1985 was registered against the accused-petitioner and co-accused at Police Station City Muzaffarabad on 3-11-2012. After registration of the case, the accused-petitioner was apprehended by the police. After having been arrested, he moved an application for bail before Tehsil Criminal Court Muzaffarabad on 10-11-2012. The said Court after hearing the parties disallowed the same vide its order dated 12-11-2012. The accused-petitioner moved his second bail application before District Criminal Court Muzaffarabad on 13-11-2012, which also met with the same fate vide its order dated 16-11-2012, hence the above titled revision petition.

3. Miss Kokab-Sabah-Rohi, Advocate the learned Counsel for the accused-petitioner argued that the lower Courts committed an error while recording the impugned orders. The learned counsel further contended that the lower Courts have failed to appreciate the facts of the case and guidelines laid down by the Apex Court with regard to grant and refusal of bail which is not warranted by law, therefore, the impugned orders are not tenable in the eye of law, thus the same may be set aside. According to the learned counsel the investigating agency has clearly violated the requirements of section 103, Cr.P.C., therefore, the case of the accused-petitioner falls within the ambit of further inquiry, as such he is entitled to the concession of bail. Finally, the learned counsel prayed that by accepting the, revision petition, the impugned orders may be set aside and the accused-petitioner may also be released on bail. In support of her contentions, the learned counsel cited the following case-law:-- (1) 1999 PCr.LJ 493; (2) 2000 Cr.L.J. 1278 (sic); (3) 2001 Cr.Cases 34 (sic); (4) Unreported judgment of this Court titled "Muhamamd Pervaiz and others v. The State" decided on 12-5-2010.

4. On the other hand, the learned A.A.-G. appearing on behalf of the State opposed the petition and submitted that the accused-petition is involved in a heinous offence, therefore, the lower Courts have rightly declined the concession of bail to him. The learned State counsel further contended that the accused-petitioner is also involved in many other cases of the same nature, therefore, he being habitual offender is not entitled to any concession like bail. The learned State counsel defended the impugned orders on all counts.

5. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

6. It appears from the perusal of the record that the accused-petitioner was arrested from Tariqabad on 3-11-2012 on the allegation of possessing eighty one bottles of liquor from the garage which was hired on rent by him. No member of the locality has been cited in the process of recovery rather no explanation has been given by the police for not associating any member. It is settled principle of law that two members of the public should be associated in the process of recovery and the same is mandatory requirement under section 103, Cr.P.C. unless it is shown by the prosecution that it was not possible under the circumstances. In the present case, no such explanation is available on record.

7. A thorough perusal of the record reveals that the accused-petitioner is alleged to have committed the offence under section 3/4, The Prohibition (Enforcement of Hadd) Act, 1985. Section 3 speaks of prohibition of manufacture intoxicant along with import, export and selling of the intoxicant, while section 4 speaks of owning or possessing of intoxicant. It also reveals from the plain reading of the aforesaid sections that a separate punishment cannot be awarded on the commission of offences under these sections, because section 3 indicates the transportation and sale which include its possession also and the same is to be punished under section 4 of the Prohibition (Enforcement of Hadd) Act, 1985. The punishment provided for the commission of aforesaid offences is 5 and 12 years only therefore, the case of the accused-petitioner does not fall within the prohibitory clause of section 497, Cr.P.C.

8. It will be relevant to note here that the alleged recovery of liquor from garage prima facie is not a public place. It also appears from the record that the police recovered 81 bottles of liquor and out of which only one bottle has been sent for Chemical Examination by mixing 10/10 ML from the aforesaid bottles and the report of the chemical examiner has not yet been received, therefore, it is yet to be established that the seized material was liquor or not. The investigation has been completed and incomplete challan has been presented by the police against the accused-petitioner and there is no need of his person for further investigation therefore, the case of the accused-petitioner falls within the ambit of further probe.

9. So far as the next objection of the learned State counsel, with regard to habitual offender is concerned, there is no any F.I.R or conviction order of the accused-petitioner is available on record therefore, this objection of the learned State counsel is repelled. Even otherwise the bail cannot be withheld as a punishment.

10. The accused-petitioner is behind the bars from the date of arrest i.e. 3-11-2012 and no useful purpose would be served by keeping him behind the bars. The case of the accused-petitioner does not fall within prohibitory clause of section 497, Cr.P.C., as such he is entitled to the concession of bail.

11. It will be worthwhile to mention here that the case-law referred to and relied upon by the learned counsel for the petitioner have no relevance with the facts and circumstances of the present case therefore, need not to be discussed. The only unreported Judgment of this court titled "Muhammad Pervaiz and others v. The State" seems to be relevant with the facts and circumstances of the present case.

12. In the light of what has been stated above, I accept this revision petition by setting aside the impugned orders and it is ordered that the accused-petitioner shall be released forthwith on furnishing bail bond in sum of Rs.500,000 (Five Lac) and personal bond in the like amount to the satisfaction of any member of Tehsil Criminal Court Muzaffarabad, if not required or involved in any other case or offence. MWA/1/Sh.C(AJ&K) Petition allowed.