1. ' NADEEM AZHAR SIDDIQI, J.--- Applicant Rajib Ali Phulpoto has applied for bail in Crime No,174 of 2007, Police Station Saddar, Jacobabad, for offence under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The applicant was refused concession of bail by the learned trial court of 1st Civil Judge and Judicial Magistrate, Jacobabad, so also by the learned Sessions Judge, Jacobabad.
2. ' The perusal of F.I.R shows that on 21-11-2007 at 1600 hours, a patrolling police party comprising A.S- I Muhammad Azam Thaheem, HC Karim Bux, PC Liaquat Ali and others, on a tip-off, impounded a car, wherefrom the applicant, the driver of the car, along with one other person, on seeing the police tried to flee away from the spot but he was apprehended. However, the other person accompanying the applicant made his escape good while leaving a T.T.Pistol at the spot, which slipped from his hands. It is alleged that the police secured ten containers (cartons) loaded with local-made wine of red and white colour from the dickey of the car. Each container contained twenty four half bottles (Aadhiya) of local made wine. After separating samples and observing other formalities at the spot, the applicant along with the recovered property were brought at Police Station, where such F.I.R. Was lodged.
3. ' Learned counsel for the applicant contended that the alleged recovery of wine was not made from the exclusive possession of the applicant. He further contended that despite knowledge in advance the police did not join any independent person to witness the alleged recovery, which was made in the day time i.e., at 4.00 p.m. It was next contended that the offence does not fall within prohibitory clause of section 497(1), Cr.P.C, as the punishment for the alleged offence provided under the law is at the most up to five years. He further contended that the applicant is in jail since 21-11-2007 and his case has not proceeded as yet.
4. ' Learned State Counsel raised no objection to the grant of bail on the grounds that the offence does not attract prohibition contained in section 497 (1), Cr.P.C. And the police party failed to associate independent person although they were having knowledge well in advance.
5. ' I have heard learned Counsel for the parties and perused the material available on record.
6. ' It is an admitted position that the alleged recovery was made from the dickey of the car and not from the exclusive possession of the applicant, who was allegedly captured while running away from the car. Perusal of police record shows that during interrogation the applicant in his statement before I.0 has stated that he was employed as driver by one Chandoomal hindu on the said car and the person, who ran away from the spot, was Darshan Lal, a relative of his employer Chandoomal. It further reveals from the statement of applicant before I.O., that Darshan Lal had asked the applicant to take him and his children from Sukkur to Jhat Pat in the said car. In Jhat Pat Town, the applicant was made to sit in a hotel by Darshan Lal, where his friends, namely, Qurban Ali UmNni, Barkat Ali Umrani, Karam Ali Golo and Raja Khan Golo were already available, with whom the applicant took meals and shared tea, whereas Darshan Lal himself drove away the car along with his children to leave them at the destination in Jhat Pat Town and on return they were intercepted by the police. The I.O has not examined the owner of the car so as to find out the truth regarding the plea taken by the applicant during interrogation. It appears that the investigation has not been conducted in a proper way. In such a situation, it cannot be safely said that it was the applicant, who was actually possessing and transporting the wine. The above named persons, with whom the applicant, as per his statement before I.0, took meals in the hotel of Jhat Pat Town, have also supported that plea of the applicant during investigation. Moreover, the offence does not carry punishment, which may cover the prohibition contained in section 497 (1), Cr.P.C. Coupled with the fact that despite information well in advance the complainant did not associate any independent person to witness and attest the alleged recovery though the same was made in the day time. In the case of Tariq Bashir v. The State, reported in PLD 1995 SC 34, the Hon'ble Supreme Court of Pakistan has held that grant of bail in offences punishable with imprisonment for less than ten years is a rule and refusal an exception. All these things have persuaded me to hold that the case against the applicant needs further enquiry.
7. ' In these circumstances, the application is allowed. The applicant shall be released on bail on his furnishing solvent surety in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
8. ' Needless to say that the observations recorded above are tentative in nature and the trial Court shall not be influenced by them, in any manner, while proceeding with and deciding the case.