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.