2017 PLP 2170 (YLR)

MUHAMMAD SHERAZ KAYANI, J.

The above titled revision petition has been directed against the order of Additional District Court of Criminal Jurisdiction, Mirpur dated 24.02.2017, whereby, bail application of accused petitioners were refused and the order passed by Additional Tehsil Court of Criminal Jurisdiction, dated 17.02.2017 has been maintained.

2. Brief facts forming background of the revision petition are that a case under Sections 3/4, 14/26 of The Prohibition (Enforcement of Hadd) Act, 1985 was registered against the accused petitioners at City Police Station, Mirpur on 24.01.2017 on the allegation of possessing of 296 bottles of Alcohol of different brands and 60 sealed packet of alcoholic bear canes. After having been arrested, they moved application before Additional Tehsil Court of Criminal Jurisdiction, No. II Mirpur on 14.02.2017. The said Court after hearing the learned counsel for the parties rejected the same vide its order dated 17.02.2017. The accused petitioners moved second bail application before Additional District Court of Criminal Jurisdiction, Mirpur on 20.02.2017, which also met with the same fate vide impugned order dated 24.02.2017, hence this revision petition.

4. Zulfiqar Ahmad Raja, the learned counsel for the accused-petitioners argued that the Courts below committed grave illegality 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 or refusal of bail, therefore, the impugned orders are not maintainable in the eye of law, thus, the same may be set aside. The learned counsel zealously contended that Truck did not fall in the definition of public property and place recoveries were made in the absence of Magistrate. It is further argued that all the witnesses are police officials and no independent witness from the locality was involved at the time of recovery proceedings which creates heavy cloud of doubt on recovery process. It is argued that petitioners are the driver and conductor of that Truck who were told that recovered material was mobil oil as it was not visible in bag or cartons and booking receipts of the cartons are also attached with the bail application. The learned counsel further contended that only five bottles were sent for report of Chemical Examiner which creates doubt on the prosecution story. The learned counsel contended that the case of the accused petitioners falls within the ambit of further inquiry, as such they are entitled to the concession of bail. It is further contended that petitioners did not have any criminal history and the investigation has been completed and they are not required furthermore by Police. In support of his arguments the learned counsel referred the case reported as "Abdul Haleem v. The State", PLD 1992 Peshawar 94, PLD 1988 SC (AJ&K) 14 and PLD 1988 Lahore

574. The learned counsel prayed that by accepting the revision petition, the impugned orders may be set aside and the accused petitioners may also be released on bail.

5. Conversely, Hafiz Fazal-ur-Rehman Dar, the learned Assistant Advocate- General opposed the application and submitted that the accused are habitual intoxicant sellers and are found involved in a heinous offence as they are nominated in the FIR. A huge quantity of intoxicant has been recovered from them, therefore, the lower Courts have rightly declined them concession of bail. The learned State counsel defended the impugned order and lastly prayed for dismissal of the revision petition.

6. I have heard the learned Advocates for the parties and have gone through the record of the case.

7. As stated earlier that the accused-petitioner seeks bail after arrest which was declined to him by Additional Tehsil Court of Criminal Jurisdiction, Mirpur and Additional District Court of Criminal Jurisdiction, Dadyal and it is, now, well settled principle of law governing the bail matters that at bail stage a tentative assessment of the record has to be taken into consideration and deeper scrutiny of the evidence is neither permissible nor desirable, but at the same time, the Courts are not expected to pass a bail order in vacuum or in arbitrary manner.

8. In the instant case from perusal of the record reveals that allegedly the police apprehended the accused-petitioners, and 296 bottles and 60 sealed packed alcoholic bear canes recovered from search of a truck. The accused petitioners are driver and conductor of the Truck No. LES-5599 and a receipt of Qasoor-Karachi Goods Transport Company has been attached with the application wherein it was shown that 22 Cartons of Mobil oil were booked by one M.Rasheed to Zia-ul-Hassan (Bismillah Auto mobil oil) Mirpur from Qasoor. So it is a matter of further inquiry as it is yet to be determined whether the accused petitioners were in knowledge that the transported material contained intoxicant? As these accused persons were arrested at the same time, so it is also yet to be determined that who was the real owner of transporter of the alleged intoxicant. To the extent of offence under section 3 of The Prohibition (Enforcement of Hadd) Act, 1985, the case of the accused petitioner is matter of further inquiry and offence under section 4 of the Act is bailable as only punishment of 2 years imprisonment has been provided in law. Even otherwise if it is presumed that the accused petitioners are involved in both the offences, even then their case does not come within the Prohibitory Clause of section 497, Cr.P.C. Quantity of recovered Alcohol does not make any difference in both the eventualities whether the quantity is less or much, punishment provided in law remains the same (Maximum two years imprisonment under section 4 of the Act and five years imprisonment under section 3 of the Act). So according to said punishment, the case of the accused does not come within the prohibition contained in section 497, Cr.P.C. In such cases bail is a rule and its refusal is an exception. No exceptional circumstance has been brought on record against the accused petitioners. As the investigation has been completed from the petitioners, they are no more required for investigation purpose and if they are found guilty of the offence after recording the evidence in the trial Court, they shall have to face the consequences otherwise there would be no compensation of their detention. They are previously non-convict. Moreover, according to established principle of law bail cannot be withheld as a punishment. These aspects of the case have not been considered by the Court below. The epitome of above discussion is that, I accept this revision petition by setting aside the impugned order dated 24.02.2017 and allow bail to the accused-petitioners on furnishing bail bonds in sum of Rs.2,00,000/-(two lac) each with one surety each and personal bonds in the like amount to the satisfaction of any member of Tehsil Court of Criminal Jurisdiction, Mirpur. The accused-petitioners shall be set at liberty forthwith provided not required in any other case or offence. HBT/15/Sh.C.(AJ&K) Bail granted.