' IQBAL HAMEED-UR-REHMAN, J.--- The learned counsel seeks. Pre-arrest bail of the petitioner who is involved in F.I.R. No,15 of 2009 dated 13-1-2009 under Articles 3 and 4, Prohibition (Enforcement of Hadd) Order (IV of 1979), registered at Police Station Manawan, District Lahore.
2. Briefly, the allegation against the petitioner is that a huge quantity of liquor was recovered from the Haveli of the petitioner and co-accused.
3. It is contended on behalf of the learned counsel for the petitioner that the petitioner has been falsely involved in this case; that no recovery from the petitioner has been effected. It is further stated that 8/9 police officials, who were fully armed, conducted a raid but they failed to apprehend the petitioner and others, which creates doubts and as such the petitioner has been involved malafidely in the instant case; that the premises where the raid was conducted does not belong to the petitioner. Moreover, there is total violation of Article 16 of the Prohibition (Enforcement of Had) Order (IV of 1979), that the raid was conducted in the Haveli which is a private place and not a public place and Articles 3, 4 can only be attracted if the offence has been committed at a public place and the Haveli cannot be considered as a public place, as such, violation of Article 16 of the Order is apparent on the face of record. It is further contended that the offence with which the petitioner has been charged is non-cognizable offence and the procedure under section 155, Cr.P.C. In the instant case has not been adopted; that no permission has been sought from the Illaqa Magistrate, which was mandatory in the instant case. Moreover, even the procedure provided under Article 22 of the Prohibition (Enforcement of Hadd) Order (4 of 1979) has not been followed. No search warrant has been sought or issued, which is a violation of Article 22 also. There is also a violation of section 103, Cr.P.C. That the mala fide and the false implication of the petitioner is apparent as the Tariq Hussain is the complainant, witness and also the Investigating Officer of the case, which shows the mala fide of the police; that there is no evidence available on the record regarding the sale of the liquor as such Article =3 is not attracted.
Moreover, the maximum sentence of the offence is five years while under Article 4 the sentence is two years and the same does not fall within the prohibitory clause; it is further contended that the petitioner has been involved due to previous enmity with ulterior motive.
4. On the other hand, learned Deputy Prosecutor-General opposed the grant of bail to the petitioner contending that the Challan has been submitted to the learned trial Court. Huge quantity of liquor has been recovered at the spot. The petitioner is involved in 12 other cases of similar nature. Further stated that the police was on patrolling duty, as such, no warrant was required and that there is no mala fide on the part of the police.
5. Arguments heard, record perused.
6. The Haveli, which is a private place was raided by the police without first obtaining any search warrant, which is violation of both Article 16 as well as section 103, Cr.P.C. Reliance is placed on the cases of Muhammad Hashim v. The State 1995 PCr.LJ 1594 and Suleman v. The State 1990 PCr.LJ- 1302. The offences with which the petitioner has been charged do not covered by the prohibitory clause. The co-accused has already been granted bail. Article 3 of the Hadd Order is punishable with five years and Article 4 is bailable. In cases not falling within the prohibitory clause, grant of bail is a rule and refusal an exception. Reliance is placed on Tariq Bashir and 5 others v. The State PLD 1995 SC 34.
7. For the foregoing reasons and relying upon the case of Jaindal Shah and another v. The State 2005 PCr.LJ 259, this bail application is allowed. Ad interim bail already granted to the petitioner vide order, dated 17-4-2009 is hereby confirmed subject to his furnishing fresh surety bond in the sum of Rs,50,000 with one surety in the like amount, to the satisfaction of the trial Court.