2018 PLP 1909 (MLD)

ALI BAIG, J.

Through this petition the petitioner namely Mst. Shukoor Bi wife of Arman Shah seeks post arrest bail in case FIR No.56/2018 dated 01-7-2018 registered under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 at Police Station City, Skardu.

2. Precisely stated facts forming the background of the instant bail petition as disclosed in the FIR No.56/2018 dated 01-7-2018 of Police Station City Skardu are that on receipt spy information the police, Police Station City raided the house of the present petitioner after obtaining search warrant from the Court of Sessions Judge Skardu and recovered about 40 litres local wine from a bath room, of the present petitioner and out of said recovered local wine the police separated one litre wine as sample for sending the same to Forensic Science Laboratory for examination/analysis and after recovery of aforesaid local wine from the house of the present petitioner/accused, she was arrested by the police.

3. Previously the petitioner/accused had filed bail petition before the learned Judicial Magistrate Skardu which was dismissed by the learned Judicial Magistrate Skardu vide order dated 09-7-2018. Thereafter the petitioner/accused filed second bail petition before the learned vacations Sessions Judge Skardu and the same was also dismissed by the Learned Sessions Judge Skardu vide order dated 13-7-2018, hence this petition.

4. The learned counsel appearing on behalf of the petitioner contended that the petitioner/accused is innocent and police have falsely implicated the petitioner/ accused in the case. The learned counsel for the petitioner further argued that no any respectable inhabitant of the locality was present at the time of search of house of the petitioner/ accused and recovery of contraband local wine; hence the police have violated the mandatory provisions of section 103, Cr.P.C. The learned counsel for the petitioner further argued that section 3 of Prohibition (Enforcement of Hadd) Order, 1979 does not attract to the case of the petitioner, whereas section 4 of Prohibition (Enforcement of Hadd) Order, 1979 is bailable. The learned counsel for the petitioner/accused further argued that FIR against the petitioner was lodged on 01-7-2018, but despite lapse of more than one month the Prosecution has failed to submit challan/charge sheet against the petitioner in the court as such the Prosecution has violated mandatory provisions of section 173, Cr.P.C. The learned counsel for the petitioner/accused further argued that report of Forensic Science Laboratory is also not available on the record, hence case of the petitioner requires further inquiry. Concluding his arguments the learned counsel for the petitioner/accused argued that since the petitioner/accused is a woman, therefore, she is entitled for concession of bail under first proviso of section 497(1), Cr.P.C.

5. On the other hand the learned State counsel/Dy. Advocate General vehemently opposed this bail petition by contending that the local wine was recovered from the house of the present petitioner which was in exclusive possession of the petitioner/accused. The learned Dy. Advocate General further argued that the petitioner and her husband were found involved in such like crimes previously, therefore, the petitioner is not entitled for concession of bail. The learned Dy. Advocate General further argued that the petitioner/accused has committed an offence which is against the society at large.

6. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the available record with their able assistance.

7. From perusal of contents of FIR it transpires that the local wine was allegedly recovered from a bath room of house of the petitioner/accused which was not in the exclusive possession of the present petitioner as other family members of the petitioner were also residing in the said house at the time of recovery of contraband wine, as such liquor/wine was not recovered from the exclusive possession of the petitioner. Admittedly, the petitioner/ accused was not selling/transporting any intoxicant/wine, as prosecution for the purpose of proving charge of sell of intoxicant/local wine is bound to procure the purchaser, and purchased intoxicant and there is also no allegation of selling of wine in the FIR, hence section 3 of Prohibition (Enforcement of Hadd) Order, 1979 prima facie does not attract to the case of the petitioner and offence 4 of Prohibition (Enforcement of Hadd) Order, 1979 is bailable. Moreover, the petitioner/accused is a woman and she is also entitled for concession of bail under the first proviso of section 497(1), Cr.P.C. Furthermore, the Police/I.O. is duty bound to have made efforts for securing independent person from vicinity of crime to act as recovery witness/masher but the concerned I.O. has failed to do so, hence he has violated the mandatory provision of section 103, Cr.P.C. and recovery of liquor from the house of the petitioner/accused has become doubtful.

8. For the reasons discussed above, this petition is allowed and the petitioner/accused is admitted to post arrest bail subject to her furnishing bail bonds in the sum of Rs.200,000/- (two lacs) with two sureties each in the like amount to the satisfaction of the learned trial court and the learned trial court shall ensure that the sureties are local, reliable and men of means. File. MQ/183/GB Bail granted.