The petitioner seeks post arrest bail in case FIR No, 164/08 dated 13.3.2008, registered under Sections 3/4 (Enforcement of Hadd) Order VII of 1979 at Police Station Sadar Sheikhupura.
2. Precise allegations against the petitioner are that he was caught red handed while fermenting desi liquor at his "Haven".
3. Learned counsel for the petitioner submits that the petitioner has been falsely implicated in this case as no recovery has been effected from him, rather it was all planted on him by the police malafidely. The police have violated the provisions of law as laid down in Section 103 Cr.P.C. and did not associate any witness from the locality. He further submits that chemical report of the recovered articles is still awaited. The petitioner is behind the bars for the last three months and is undergoing rigorous of imprisonment for an offence which he had not committed.
4. Learned DPG opposes bail application of the petitioner and submits that the petitioner was caught red handed by the police while fermenting, liquor and two cases of such like nature had already stood registered against him which shows his previous conduct and therefore he does not deserve concession of bail at this stage.
5. I have heard the learned counsel for the petitioner as well as learned DPG and have also perused the record. There is no denying the fact that the petitioner is nominated in the FIR with specific role of fermenting desi liquor at his "Haveli", but I am afraid the police while raiding at the "Haveli" of the petitioner did not account for the legal formalities which is a mandatory provision of law to be fulfilled before conducting raid. The police had recovered all such articles which are necessary for fermenting process of liquor but did not recover the material which is necessary to be used in the fermentation process of liquor as a matter of fact police should have recovered any of the ingredients used in the preparation of liquor but in the instant case they did not do so. Merely, recovering of the articles used in the preparation of liquor is not sufficient to involve the petitioner with the commission of said offence. If police had recovered the articles, there was no impediment in their way in not recovering the material used in the preparation of liquor. Had the story narrated in the FIR been true, then certainly material could have also been recovered from the "Haveli" of the petitioner where he had used the material in fermenting process.
6. IO, present in the Court, has apprised this Court that "Haveli" where the petitioner was fermenting liquor is situated in the heart of the village and people are also residing there. If that be so, then it was certainly necessary for the raiding party to seek search warrants before conducting the raid from the Magistrate or the prohibition officer, as pre-requisites laid down in Article 22 of PEHO 1979 and Section 105 Cr.P.C. but in the instant case, the police have not done so. In order to conduct raid at anybody's residence, it is mandatory provision of law to seek search warrants from the Area Magistrate and then to raid the premises. Police officials generally render explanation to justify the raid that they do not normally seek search warrants because they have an apprehension that this procedure may take some time and accused may not flee from the place of occurrence during this time, so in order to apprehend him immediately they do not seek search warrants. I am afraid this explanation by police in justifying raid is not warranted by law. This explanation may perhaps be acceptable to some extent in case of hiding out of proclaimed offenders in the private residence where there is a possibility of fleeing immediately but not in a case where the accused person is putting up permanently.
7. Above all Article 14 of the Constitution of Islamic Republic of Pakistan provides complete and absolute privacy of the house. Admittedly, it is established that the "Haveli" of the petitioner is a residential area, where inmates are putting up and is considered to be a place of residence, therefore, police have conducted illegal raid at the place of occurrence without adopting legal formalities. I am enlightened by a judgment in this respect reported as Master Bilawal Ali Zardari Vs. KDA and others (PLD 1993 Karachi 67).
8. Sanctity and maintenance of the privacy of the house has been very well acclaimed by Holy Prophet (P.B.U.H). Hazrat Umar had also attached much importance to the sanctity of the house and once Hazrat Umar while being the Caliph of Islam was roaming in the streets of Madina to enquire about the affairs of the people heard great hue and cry in one of the houses in the middle of the night and to know the cause ' of hue and cry in the house had scaled over the wall of the house and intruded the house to know the agony of the inmates of the house. Inmates of the house had retaliated on the conduct of Great Caliph of Islam and had agitated his action of scaling over the wall and intruded in the house without permission. Hazrat Umar had to apologize for his action and had very well acclaimed the sanctity of the privacy of the house.
9. The raiding party had also violated the provision of Section 103 Cr.P.C, for not associating independent witnesses of the locality in the recovery process, therefore, the entire recovery process is illegal as mandatory requirement of law as provided in Section 103 Cr.PC. is not fulfilled. House search without associating two respectables of locality--Legal infirmity--May vitiate search proceedings. Reference can be made to Muhammad Mansha Vs. The State (NLR 1995 SD 626-482).
10.As far as argument of the learned DPG regarding petitioner's implication in such like earlier cases is concerned, no person can be called as habitual offender or history sheeter until and unless the guilt stands proved against him. I am, therefore, fortified by the judgment reported as Nasrullah Khan Vs. The State 2007 PCr.L.J. 1052). On query of the Court, I0 submits that the petitioner was involved in such like cases but was not convicted in these cases. Keeping in view this aspect of the situation, I am afraid, the petitioner cannot be declared as habitual offender or history sheeter as he has not been convicted in any case so far. False implication of the petitioner cannot be ruled out, as the police had simply recovered fermentation articles and not the material whereas they could have easily done so.
11. Under the circumstances, petitioner's case is that of further inquiry into his guilt. I, therefore, admit the petitioner to post arrest bail subject to his furnishing bail bonds in the sum of Rs, 50,000/- with two sureties in the like amount each to the satisfaction of the learned trial Court/Ilaqa Magistrate.
Petition stands disposed of.