Tahir vs State.

2010 Y L R 1337

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No. 1600 of 2009, decided on 2nd November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Manufacturing, owning or possessing intoxicant---Bail, grant of---Further inquiry---No doubt, a huge quantity of liquor had allegedly been recovered from accused, but the prosecution had failed to confirm it with its chemical analysis that the alleged recovery was in fact alcohol, possession and use of which was prohibited under the law---One could not presume the alleged recovery to be liquor which would make the case of accused as that of further inquiry entitling him to concession of bail---Refusal of grant of bail would amount to punishment before the trial which was against the settled principles---Accused was released on bail, in circumstances.

Qaisar Zaman for the Petitioner.

Fazalur Rehman Khan, A.-A.G. for the State.

Date of hearing: 2nd November, 2009.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The present petitioner seeks his release on bail in

case F.I.R. No.787 dated 25-9-2009 under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 registered at Police Station Hayatabad on the ground that huge quantity of liquor (local made alcohol) was recovered from his car and the petitioner was apprehended at the spot by the police.

After refusal of concession of bail, the accused petitioner has moved the instant application.

2.Learned counsel appearing on behalf of the petitioner submitted that nothing incriminating was recovered from the immediate possession of the petitioner and from the date of alleged recovery, no F.S.L. report confirming the alleged recovery to be liquor has yet been made available by the prosecution. He was further of the view that there was no independent witness to the alleged recovery which makes the case of the accused petitioner as that of further inquiry and the punishment provided for the offence does not fail within the prohibitory clause of section 497, Cr.P.C. thus, the accused petitioner is entitled to the concession of bail.

3.The learned Additional Advocate General, Mr. Fazalur Rehman Khan, submitted that the offence for which the accused has been charged is a heinous offence badly affecting the society at large. The recovery was made from the car of the accused which amounts to recovery from his immediate possession. So, in the circumstances, the accused petitioner is not entitled to any leniency.

4.Perusal of the record reveals that no doubt, a huge quantity of liquor has allegedly been recovered from the accused petitioner but till date, the prosecution has failed to confirm it with its chemical analysis that the alleged recovery was in fact alcohol, possession and use of which is prohibited under the law and at this stage, one cannot presume the alleged recovery to be liquor which makes the case of the accused petitioner as that of further inquiry entitling him to the concession of bail. In the circumstances of the case, the refusal of grant of bail would amount to punishment before the trial which is against the principles laid down by the judicial system of the country.

5.Hence, for the reasons recorded above, this bail petition is allowed and the petitioner shall be released on bail if he furnishes bail bond in the sum of Rs.100,000 (Rupees one lac) with two sureties, each in the like amount, to the satisfaction of Illaqa Judicial Magistrate/ Magistrate on Duty.

However, being tentative assessment as per record available today before this Court, this order may not prejudice the mind of the trial Court.

H.B.T./87/P Bail granted.