MUHAMMAD NASEEM CHAUDHRI, J.- Muhammad Azam Sajid, ASI Police Station Saddar Nankana Sahib, District Sheikhupura received a secret information on 1.4.1998 while on gusht of the area that one Khizer Hayat was carrying on the business of the sale of Desi liquor. Alongwith Police party he reached Dhari Rai Mehmood and took into possession 50 shopper bags each containing one liter of Desi liquor. Khizar Hayat could not be apprehended who made good his escape. The Desi liquor was taken into possession vide memo, attested by the Police Constable. Some portion was sent to the Chemical Examiner in the sealed parcel and the report in the positive has been received.
Muhammad Azam Sajid, ASI sent the complaint at Police Station .Saddar Nankana Sahib where formal F.I.R. No. 117, dated 1.4.1998 stands registered under Articles 3/4 of the Prohibition (Enforcement of Had) Order, 1979. Afterwards this petitioner has been arrested whose bail plea was rejected by the lower Courts and he has filed this petition before this Court with the same desire.
2. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. I have to refer, to the contentions of the learned counsel for the petitioner who canvassed that it is a case of admission of this petitioner to bail as u offences do not fall within the prohibitory clause, that the Police investigation is complete and that he is detained in the judicial lock-up. On the contrary learned counsel for the State argued that it is a case of sale and transport of Desi liquor and for that matter this petitioner is not entitled to be admitted to bail. In my view it is a case for the admission of Khizer Hayat petitioner to bail on the ground that the alleged recovery of the Desi liquor was not made from his physical possession who is said to have fled away from the place of occurrence and thus whose involvement is a question of further inquiry thereof, that an offence under Article 4 of the Prohibition (Enforcement of Had)
Order, 1979 for keeping in possession the Desi liquor is bailable and the accused is entitled to be admitted to bail as of right under Section 496 of the Code of Criminal Procedure and that an offence under Article 3(1) of the Prohibition (Enforcement of Had) Order, 1979 does not fall within the prohibitory clause as. The punishment for the said offence is rigorous imprisonment upto five years and with whipping not exceeding 30 strips and to fine. According to the ruling printed as Tariq Bashir and five others v. The State (PLD 1995 S.C. 34) the grant of bail for an offence not falling within the prohibitory clause is a rule and its rejection, an exception. No other case of the instant nature was registered or is pending against Khizer Hayat petitioner-accused and thus there is no exceptional circumstance to withhold the discretion in the matter. I, therefore, hold that this petition merits to be accepted.
3. For what has been said above I accept this application and admit Khizer Hayat petitioner- accused to bail in the sum of Rs.25,000/- (Rupees twenty-five thousand only) with one surety in the like amount to the satisfaction of the learned Area Magistrate Nankana Sahib, District Sheikhupura with the direction to appear before the learned Trial Court on every date of hearing failing which the learned Trial Court may cancel his bail.