P L D 2008 Lahore 368 (PLP)

KHURSHID ANWAR BHINDER, J.

The petitioners seek post arrest bail in case F.I.R. No.129/08 dated 25-3-2008, registered under Articles 3 & 4 of Prohibition (Enforcement of Hadd) Order (No.4) of 1979 at Police Station Saddar Kasur.

2. Precise allegations against the petitioners are that both of them were fermenting local made liquor at their house. The police party had raided their house and had recovered huge quantity of local made liquor from them along with fermenting material.

3. Learned counsel for the petitioners submits that there is no direct evidence except for the police officials to connect the present petitioners with the commission of said offence, therefore, it is violation of section 103, Cr. P.C. for not associating anybody from the locality as witnesses. The raid, conducted by the police party at the private residence of the petitioners without any search warrant, is not warranted by law. He further submits that Article 4 of PEHO is a bailable offence and as regards Article 3 of PEHO, which is a non-bailable offence, is not made out as per facts and circumstances of the present case, because it was not established as to whether the petitioners were fermenting liquor or manufacturing it. He also submits that mala fide on the part of police is established by not associating anybody from the locality in the recovery process. He has relied upon the cases reported as Sabir Masih and another v. The State 1986 PCr.LJ 2027, Muhammad Hashim v. The State 1995 PCr.LJ 1594, Muhammad Malik alias Maloo v. The State 1989 PCr.LJ 599, Muhammad Bashir alias Doba v. The State PLD 1988 Lahore 574 and Muhammad Shafi v. The State PLD 1987 FSC 16.

4. Learned D.P.G. while opposing bail application of the petitioners submits that it is a promptly lodged F.I.R., both the petitioners have been caught red handed while manufacturing liquor and huge quantity of liquor has been recovered from them, therefore, Article 3 of PEHO is very much attracted in the present case.

5. I have heard the learned counsel for the petitioners as well as learned D.P.-G. and have also perused the record. There is no denying the fact that both the petitioners are nominated in the F.I.R. with specific role of manufacturing liquor at their residence. The police has grossly violated the law by entering into their house without any search warrant. It is a mandatory requirement of law under Article 22 of Prohibition (Enforcement of Hadd) Order (4 of 1979) to seek search warrants to enter into the private residence. It would be appropriate to reproduce Article 22 of PEHO, which reads as under:-- "

22. Issue of Search-Warrants.

If any collector, prohibition officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still, utensil, implement of apparatus in respect of which the alleged offence has been committed." Search of place is permissible only if search warrants have been issued by Collector, Prohibition Officer or a Magistrate and that too only by a person authorized by the search warrants. Reference can be made to Abdul Sattar v. The State 1985 PCr.LJ 1594.

6. The raiding party had also violated the provision of section 103, Cr.P.C. for not associating independent witnesses of the locality in the recovery process, therefore, the entire recovery process is' illegal as mandatory requirement of law as provided in section 103, Cr.P.C. is not fulfilled. House search without associating two respectables of locality-Legal infirmity-May vitiate search proceedings. Reference can be made to Muhammad Mansha v. The State 1995 SCMR 1414. The raiding party of police did not associate any witness from the locality to prove the manufacturing of liquor. The raiding party had also violated the provision of Article 14 of the Constitution of Islamic Republic of Pakistan, which provides sanctity and privacy of the private house. Reference can be made to Muhammad Bilal and another v. Superintendent of Police, Dera Ghazi Khan and another PLD 1999 Lahore

297. Provisions of Section 105, Cr.P.C. were also violated by the raiding party while conducting raid at the residence of the petitioners. Permission from the Illaqa Magistrate before raiding private residence is mandatory requirement of law. Reference can be made to 1993 SCMR 2059.

7. I am convinced that the articles recovered by the police through which the petitioners Were manufacturing liquor seem planted and fabricated because none of the articles recovered are useable for fermentation process, therefore, Article 3 of PEHO is not attracted in the instant case and in order to hold the petitioners liable to be tried under Article 3 of PEHO, it is necessary to establish that the recovered material is useable for the fermentation process.

8. As far as Article 4 of PEHO, which is a bailable offence, is concerned, the same is also not made out against the petitioners, as they were not transporting the said material to any where else.

9. Islam has attached much importance to the sanctity and maintenance of privacy of the house and nobody is allowed to violate the privacy of the house irrespective of the business being done inside the house. I am, hence, much persuaded by following Hadith; Abu Sa'id Al-Khudri, may Allah be pleased with him, reported: "I was sitting in Medina in the company of the Ansar when Abu Musa came trembling with fear. We said to him: What is the matter? He said: `Umar (may Allah be pleased with him) sent for me. I went to him and paid him salutation thrice at (his) door but he did not respond, so I came back. Thereupon he (Umar) aid: What prevented you from turning up? I said: I did come to you and paid salutation at your door three times but I was not given any response, so I came back as Allah's Messenger (may peace be upon him) has said: When anyone of you seeks permission thrice aftd he is not granted permission, he should come back." Hadith number in Sahih Muslim [Arbic only]:4006

10. Police has all the justification in the world to raid any place where reports of the commission of crime is received, but that does necessarily mean that police misuses its powers and raid any place without adopting proper legal course. In order to keep checks and balances on the atrocities and unfettered powers of police, the legislature has framed certain laws and rules to check the powers of police. Therefore, the legislature has empowered the judicial officers and Magistrates to keep constant check on the illegal acts and deeds of the police. The legislature has incorporated necessary laws in Criminal Procedure Code and Prohibition (Enforcement of Hadd) Order, 1979. Section 105, Cr.P.C. and Article 22 of PEHO empowers the Magistrate to issue search warrants before conducting raid at any private place.

11. Hence the case is that of further inquiry into the guilt of the petitioners. I, 'admit both the petitioners to post arrest bail subject to their furnishing bail bonds in the sum of Rs.50,000, each with two sureties in the like amount each to the satisfaction of the learned trial Court/Illaqa Magistrate. Petition stands disposed of. M.B.A./A-112/L Bail granted.