2022 PLP 2064 (YLR)

TARIQ MEHMOOD JAHANGIRI, J.

Through the instant petition, the petitioners seek bail after arrest in a case FIR No. 168/2021, dated 20.03.2021, offence under Articles 3/4 Prohibition (Enforcement of Hadd), Order, 1979 registered at Police Station Karachi Company, Islamabad.

2. According to facts of the case, it is alleged that on 20.03.2021, the police party intercepted a vehicle bearing No. TW-967, the petitioners were found carrying a sealed wooden box in the said vehicle; on search it was found that the box was containing 552 bottles of liquor; hence the FIR was registered.

3. Learned counsel for the accused/ petitioners contends that time accused/ petitioners are innocent and have falsely been implicated in this case; that the recovered articles were diplomatic consignment, which was imported for the High Commission of the Democratic Socialist Republic of Sri Lanka, by adopting all the legal and codal formalities; the petitioners were only the driver and loader of the Goods Forwarding Agency and have not committed any offence; hence are entitled for grant of bail after arrest.

4. Conversely, Learned State Counsel has vehemently controverted the arguments advanced by Learned Counsel for the Petitioners and stated that the petitioners/accused have committed a heinous crime; hence are not entitled for grant of bail.

5. I have heard the arguments advanced by learned counsel for the petitioners/accused, Learned State Counsel and perused the record with their able assistance.

6. The learned Counsel for the Petitioners/accused has annexed all the relevant documents/permissions etc. obtained from the concerned Authorities, in support of his contentions, showing that recovered articles/consignment was imported for High Commission of the Democratic Socialist Republic of Sri Lanka, Islamabad and it was exempted from payments of Provincial, District or any other government duties and taxes. Receipt of Goods Forwarding Agency for carrying the said consignment has also been enclosed. In this regard Writ Petition bearing No. 1177 Q-FIR of 2021 for quashment of the FIR has also been filed which is pending adjudication in this Court.

7. The offence under section 3/4 Prohibition (Enforcement of Hadd), Order, 1979 does not fall under the prohibitory clause of section 497 Cr.P.C; investigation in the case has been completed and the petitioners/accused are no more required for the purpose of investigation; the petitioners/ accused are behind the bars; Challan/ Report under section 173, Cr.P.C. has not been submitted in the Court; there is no chance of early conclusion of trial; report of Chemical Examiner is yet to be received.

8. In this regard law has been laid down by the Hon'ble Supreme Court of Pakistan in judgment reported as "PLD 1995 Supreme Court 34 titled as "Tariq Bashir and others v. The State", wherein, it is held that "in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment for life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example:- (a) where there is likelihood of abscondance of the accused; (b) where there is apprehension of the accused tampering with the prosecution evidence; (c) where there is danger of the offence being repeated if the accused is released on bail; and (d) where the accused is a previous convict".

9. The same principle has been laid down in a case reported as "PLD 2017 Supreme Court 733 titled as Muhammad Tanveer v. The State and another" wherein it is held that "once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of Section 497, Cr.P.C. shall be a rule and refusal shall be an exception then, the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding on all Courts throughout the country including the Special Tribunals and Special Courts". It has further been held that "We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in Section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions.' (Emphasis added). The same principle has been laid down by the Hon'ble Supreme Court, in cases reported as 2011 SCMR 1708, 2016 SCMR 1439 2020 SCMR 1258 and 2020 SCMR 717, wherein it is held that "where a case fell within non prohibitory clause of section 497, Cr. P. C. the concession of granting bail must be favorably considered and should only denied in the exceptional circumstances".

10. It is well settled principle of law that while deciding the bail application, before recording of evidence in the trial Court, only tentative assessment is to be made by the Court and it is not permissible to go into details of evidence in one way or the other that might prejudice the case of either party. In this regard reliance is placed upon PLD 1994 Supreme Court 65, PLD 1994 Supreme Court 88, 2021 SCMR 111 and 2020 SCMR 937.

11. I do not find this to be a case where bail should be refused as an exception. Ultimate conviction can repair the wrong caused by mistaken relief of bail after arrest but no satisfactory reparation can be offered to the accused for his unjustified incarceration if he is acquitted ultimately.

12. A tentative assessment of record shows that present petitioners have made out a case of further inquiry as envisaged under section 497(2), Cr.P.C.

13. In view of above, instant petition is accepted and the petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs. 200,000/- (Two Hundred Thousand only) each with one surety each in the like amount to the satisfaction of learned trial Court.

14. Needless to mention that, this is a tentative assessment which shall not affect the trial of case in any manner. SA/127/Isl. Bail granted.