PLJ 2013 Cr.C. (Lahore
Present: Sardar Tariq Masood, J.
MUHAMMAD AJMAL KHAN--Petitioner
versus
STATE, etc.--Respondents
Crl. Misc. No. 1510-B of 2013, decided on 13.2.2013.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Prohibition (Enforcement of Hadd) Order, 1979, Art. 4--Bail, grant of--Further inquiry--Petitioner was not apprehended by the police at the spot and his name was disclosed to the police by the informer who was not a witness in this case--No identification parade to his extent was conducted after his arrest--Therefore, case of petitioner called for further inquiry falling under sub-section (2) of Section 497, Cr.P.C.--Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 is bailable, whereas, Article 3 of the Prohibition Order (ibid) does not fall within the prohibitory clause of Section 497 Cr.P.C.--In such like cases bail is a rule and refusal is an exception--Exceptions mentioned in the said judgment were not available in the present case as petitioners were previously non-convict--Petitioner was aged about 65 years and was behind the bars--Both the petitioners had no previous criminal record and they cannot be kept in jail for an indefinite period in the offences, which do not fall with the prohibitory clause of Section 497 Cr.P.C.--Bail accepted. [P. 712] A & B
PLD 1995 SC 34, ref.
Mr. Muhammad Ahmad Dhoon, Advocate for Petitioner.
Mr. Muhammad Akram Tahir, DDPP for the State.
Date of hearing: 13.2.2013.
Order
This single order shall dispose of instant as well as Criminal Miscellaneous No. 1511-B-2013 titled "Muhammad Nadeem Khan vs. The State" arising out of the same FIR.
Through these petitions under Section 497 Cr.P.C. the petitioners Muhammad Ajmal Khan and Muhammad Nadeem Khan seek post-arrest bail in case FIR No. 354/12 dated 22.11.2012 under Articles 3/4 of Prohibition (Enforcement of Had) Order, 1979 registered at Police Station Wahn Bhacharan District Mianwali.
2. Briefly, the prosecution case mentioned in the FIR is that police received an information that the petitioners and their co-accused had concealed huge quantity of liquor in the bushes, because their vehicle had gone out of order. After receiving the said information, the police conducted a raid and on seeing the police party all the accused persons started running from the place of occurrence and after a long chase only Muhammad Ajmal Khan petitioner could be apprehended whereas allegedly NadeemKhan petitioner and others succeeded in running away. According to the FIR, Muhammad Ajmal Khan allegedly got recovered 100 boxes from nearby bushes and 50cuppies/bottles of liquor were found in each box.
3. Learned counsel for Muhammad Nadeem Khan petitioner (in Criminal Misc. No. 1511-B-2013) contends that, although, the police officials were ten in number, but surprisingly Muhammad Nadeem Khan and other accused persons succeeded in running away; that Muhammad Ajmal Khan petitioner is an old man of 60/65 years and both the petitioners have no previous criminal record. Lastly contends that offences mentioned in the FIR do not fall within the prohibitory clause of Section 497, Cr.P.C.
4. On the other hand, learned DPG has vehemently opposed this petition by contending that petitioners were available at the spot from where the alleged huge quantity of liquor was recovered but they succeeded in running away except Muhammad Ajmal Khan petitioner.
5. Heard. Record perused.
6. Admittedly Muhammad Nadeem Khan petitioner was not apprehended by the police at the spot and his name was disclosed to the police by the informer who is not a witness in this case. No identification parade to his extent was conducted after his arrest. Therefore, case of Muhammad Nadeem Khan petitioner calls for further inquiry falling under sub-section (2) of Section 497, Cr.P.C.
7. Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 is bailable, whereas, Article 3 of the Prohibition Order (ibid) does not fall within the prohibitory clause of Section 497, Cr.P.C. In such like cases bail is a rule and refusal is an exception as laid down in Tariq Bashir's case (PLD 1995 SC 34). The exceptions mentioned in the said judgment are not available in the present case as petitioners are previously non-convict. Muhammad Ajmal Khan petitioner is aged about 65 years and is behind the bars since 22.11.2012. Both the petitioners have no previous criminal record and they cannot be kept in jail for an indefinite period in the offences, which do not fall with the prohibitory clause of Section 497, Cr.P.C.
8. Due to the above mentioned reasons, both the petitions are accepted and the petitioners Muhammad Ajmal Khan and Muhammad Nadeem Khan are enlarged on bail subject to their furnishing bail bonds in the sum of Rs.2,00,000/- each with one surety each in the like amount to the satisfaction of learned trial Court.
(A.S.) Bail accepted
