ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

CR. B.A.NO.S-713 OF 2012

DATE        ORDER WITH SIGNATURE OF JUDGE

22.10.2012.

        Mr. Naseer Khan Leghari, Advocate for applicant.

        Mr. Shahzado Saleem, A.P.G. for the State.

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SALAHUDDIN PANHWAR,J-Applicant Naseer Ali @ Shalo seeks post arrest bail in crime No.152/12 of P.S. Hatri under Article 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979.

2.     Relevant facts are that on 27.8.12 complainant ASI Sain Bux Khaskheli, on spy information, proceeded along with his staff to Ali Abad Colony near Malik Petrol Pump and apprehended applicant and recovery of 100 plastic bottles of wine was effected from the applicant. Out of them ten bottles were sealed for chemical examination. Accused and property was brought at police station and lodged FIR, where-after usual investigation was conducted and case was challaned.

3.     Counsel for the applicant has inter alia contended that applicant/accused is innocent and has been involved falsely; ingredients of article 3 are lacking, while article 4 is bailable; offence does not fall within prohibitory clause as maximum punishment provided is five years.

 4.    Conversely learned State counsel did not controvert this legal position hence conceded to grant of bail to applicant/accused.

5.     Heard counsel and perused the record.

6.     Candidly, alleged offence provides the maximum punishment of five years hence same does not fall within the prohibitory of clause of section (1) of Section 497, Cr.P.C. In instant case, there is no evidence of selling of the intoxicant liquor, therefore, applicability of article 3 of Offence against Prohibition (Enforcement of Hadd) Order, 1979 will also require evaluation of evidence, while recovery is not from public place, therefore, article- 4 of the said Order in this case will be counted as bailable; even otherwise  maximum punishment provided under article 4 is five years, thus, does not attract the prohibitory clause and now it is well settled that bail in cases not falling within the prohibitory clause bail is a rule while its rejection an exception only if there are exceptional circumstances justifying rejection of such bail plea, as laid down by the Honourable Supreme Court in its dictum of Tariq Bashir Ahmed’s case reported in PLD 1996 SC-34.

7.     Keeping in view the given circumstances of this case and in the light of dictum laid down by honourable supreme court, applicant has succeeded to make out case of post arrest bail, resultantly he is entitled for such concession

8.     By short order dated 22.10.2012 applicant was granted bail and these are the details reasons thereof. The observations made hereinabove are tentative in nature and will not prejudice the merits of the case.

                                                                                JUDGE.

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