'HAFIZ ABDUL REHMAN ANSARI, J.---Through this petition under section 497, Cr.P.C. Petitioner Mazhar Abbas son of Muhammad Barkat Ali, seeks post-arrest bail in case F.I.R. No,227/2009 dated 21-7- 2009 registered with Police Station Saddar, Layyah, for an offence under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979.
2. Allegation against the petitioner, as per F.I.R. Is that on spy information a raid was conducted at his house and 100 liters Daisi liquor as well as utensils being used in the process of distilling the liquor and 80 liters raw-material was recovered from the possession of the petitioner.
3. Relief of bail has been declined to the petitioner by the learned Sessions Judge, Layyah, vide his order, dated 18-9-2009.
4. Learned counsel for the petitioner submits that Article 3 of the Prohibition (Enforcement of Hadd)
Order No,4 of 1979 is not attracted whereas Article 4 of the said Order is bailable, maximum punishment of which is 2 years; the petitioner has been falsely involved in this case. Further submits that the police just to show their efficiency has falsely implicated the petitioner; that petitioner is previously non-convict and non-record holder; that offence does not fall within the Prohibitory Clause of section 497 Cr.P.C. That petitioner is behind the bars since his arrest and no useful purpose will be served while keeping the petitioner behind the bars for an indefinite period; that the case against the petitioner is of further inquiry therefore, he is entitled to be released on bail.
5. Learned Deputy District Public Prosecutor vehemently opposes the grant of bail on the ground that both Articles 3 and 4 of the said Order are attracted to the petitioner's case; that petitioner was caught red handed but fled away; that report of the chemical examiner is positive; that huge quantity of liquor i.e. 100 liters has been recovered; that challan has been submitted in the Court on 1-8-2009; that no mala fide intention for implicating the petitioner in the said offence is pointed out therefore, the petitioner is not entitled for the grant of hail.
6. I have heard the learned counsel for the parties at length and perused the record. The offences under Articles 3 and 4 of the Order ibid do not fall within the prohibitory clause of section 497, Cr.P.C. The challan has been submitted in the Court but no progress has been made. The A petitioner is previously non-convict and non-record holder. He is behind the bars for the last since 21-7-2009. No useful purpose would be served by keeping him behind the bars for an indefinite period as he is no more required for the purpose of investigation and recovery. I am guided by the principle laid down by the Honourable Supreme Court in the cases reported as Tariq Bashir and others v. The State (PLD 1995 SC 34) and Imtiaz Ahmad and another v. The State (PLD 1997 SC 545) for the view that if the offence does not fall within the Prohibitory Clause of section 497 Cr.P.C. The accused becomes entitled to bail. A few lines from the referred Tariq Bashir's case (supra) are reproduced hereunder:- " The ultimate conviction and incarceration of a guilty person can repair the wrong caused by as mistaken relief of interim bail granted to him, but no satisfactory B reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run."
'Further few lines from the referred Imtiaz Ahmed's case (supra) are reproduced hereunder: - "Even in case where a person is accused of non-bailable offence and the case does not fall within the prohibitory clause, meaning thereby that the punishment prescribed for the offence is neither death nor imprisonment for life nor 10 years, the grant of bail in such cases is a rule and refusal is exception. My learned brother has referred in his judgment the decision of this Court in the case of Tariq Bashir v. The State PLD 1995 SC 34, which also lends support to the above view taken by me. It is, therefore, quite clear that refusal of bail to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial. Such refusal cannot be justified on any high principles of ethics or morality. "
7. Resultantly, this petition is accepted and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of learned trial Court. Learned trial Court is directed to conclude the trial of the case within a period of three months from the date of receipt of this Order.
8. However, it is made clear that the observations made above are of tentative in nature, which will not prejudice the case of either side.