2007 PLP 2854 (YLR)

ABDUL SHAKOOR PARACHA, J.

Tariq Mehmood petitioner seeks his post arrest bail in a case registered vide F.I.R. No.588 dated 21-11-2005 under Articles 3/4 Prohibition (Enforcement of Hadd) Order, 1979 at Police Station Waris Khan Rawalpindi.

2. As per the prosecution story the allegation against the petitioner is that he was apprehended along with his co-accused while transporting of liquor in a huge quantity from Faisalabad to Rawalpindi and on Naka Bandi of the car No.LZL-3838, 20 bags containing 60-cuppies each of liquor were recovered from the DIGGI of the vehicle, hence the aforesaid case was registered against the petitioner and his co-accused. The bail petition moved by the petitioner and his co-accused have been declined by the Courts below hence, this petition.

3. Learned counsel for petitioner states that allegation levelled against the petitioner is false and in F.I.R. 20 bags each containing 60-cuppies of liquor were alleged to have been recovered from the vehicle whereas in the report under section 173, Cr.P.C, 20 bags each containing 50-cuppies of liquor has been noted, that the case against the petitioner is of mere possession, therefore, the provisions of Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 is attracted which is bailable that there was no allegation of selling the liquor therefore, Article 3 of the said order does not apply to the case of present petitioner. Petitioner is previous non-convict and is behind the bars for the last about 5 1/2 months. The offence does not fall under the prohibitory clause of section 497, Cr.P.C. therefore, he is entitled to the grant of bail.

4. The bail has been opposed by the learned counsel for the State by contending that the petitioner has been selling a huge quantity of liquor which has been recovered from his possession therefore, the provisions of Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 are attracted.

5. I have heard the arguments of the learned counsel for parties and perused the record with, their assistance.

6. In the complaint and the F.I.R. 60-cuppies of liquor in each bag which were twenty in number were recovered from the possession of the petitioner when he was driving vehicle No.LZL-3838 but in the. report under section 173, Cr.P.C. it has 1 been mentioned that 50-cuppies from each .bag were recovered. The learned counsel for the State could not reconcile with this position and asserts that some liquor had been mis-appropriated by the Police officials when it was lying in Mal Khana for which a separate case F.I.R. No.588 dated , 2-11-2005 has been registered at Police Station Waris Khan.

7. Mere possession of liquor attracts the provisions of Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 which is bailable. Even the case of the prosecution is taken to its extreme and it is considered to be a case of transportation of liquor and if keeping the same in view for the purpose of selling a huge quantity of liquor it would attract Article 3 of Order ibid which offence also does not fall under the pro?hibitory clause of Section 497, Cr.P.C. Bail is a rule and refusal is an exception. The petitioner is behind the bars for about 5-1/2 months. He is previous non-convict. He might have been used as a carrier by some other person who is indulged in the business of preparing and selling the liquor.

8. In this view of the matter, I am inclined to allow this petition. Resultantly, the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 with one surety of the like amount to the satisfaction of the learned trial Court/Duty Judge. H.B.T./T-13/L????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.