MUNIB AKHTAR, J.---This bail application arises out of F.I.R. No, 312 of 2010 registered at Police Station Sanghar on 4-12-2010 at 1630 hours in, respect of an incident alleged to have occurred on the same day at 1510 hours. According to the complainant, A.S.-I. Manzoor Bhatti of the aforesaid police station (who also appears to have been incharge of the police station at the relevant time), he received spy information that a Coure car was coming. from Shandadpur towards Sanghar carrying country-made wine. The complainant stated that a police party was constituted and when it reached the Shandadpur-Sanghar junction at around 1510 hours, they saw a Core car coining towards them with two men inside. The car was stopped and when it was searched, a number of cartons of alcohol were discovered inside. The two men identified themselves as the present bail applicants. The alcohol was of different types, and one pint each was taken from the various cartons for sampling purposes. The car was also seized, and the bail applicants were booked under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 ("the Order"), the F .I.R. being registered at the time mentioned above.
2. Learned counsel for the bail applicant referred to various Articles of the Order, in particular Articles 3, 16 and 22 thereof. His case was that Article 3 of the order creates various categories of offences as stated therein in relation to intoxicants. Article 16 provides that an offence under Article 3 is a cognizable offence. However, his main reliance was on Article 22 which, as presently relevant, provides as under:-- "If any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8, or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still; utensil, implement or apparatus in respect of which the alleged offence has been committed."
' Learned counsel contended that a search under the Order could only be carried out under cover of a warrant issued under Article 22. No warrant had been issued in the present case, and the search carried out by the police of the car in which the bail applicants were travelling was therefore unlawful. No reliance could be placed, at least at the bail stage, on anything recovered as a result of the unlawful search, and the bail applicants were entitled to bail on this ground alone.
He placed reliance on Muhammad Akram v. The State 1996 PCr.LJ 392, a decision of the Lahore High Court, where it was held that a motor vehicle is not a "public place" and hence the offence was non-cognizable. He also placed reliance on certain other authorities, but those involved searches carried out in shops and other premises, and are therefore clearly distinguishable. He submitted further that the search actually carried out was done in an unlawful manner as no private witnesses had been associated with the search. He also submitted that it was also not clear which of the two men had possession or control over the cartons in question. Thus, according to him, both on the legal and factual plane, the bail applicants were entitled to bail.
3. Learned DPG opposed the grant of bail. He submitted that the bail applicants had been nominated in the F.I.R. and had been found with the alcohol in their possession, which was being transported by them. He submitted that the Chemical Examiner's Report had confirmed that the samples were indeed intoxicants within the meaning of the Order. He emphasized that the police had ample powers of arrest and search, and the motor vehicle had been properly searched in accordance with law. He further submitted that the non-presence of private witnesses (mashirs) was not fatal, and the police officers were perfectly competent to act in this regard. A huge quantity had been recovered from the bail applicants and there was no allegation of any mala fides on the part of the police, nor of the alcohol having being foisted on them.
4. Exercising his right of reply, learned counsel for the bail applicants submitted that in any case, the offences under Article 3 did not fall within the prohibitory clause, and samples had apparently only been taken from two ofthe cartons, and not from each of the cartons found in the car. He submitted that in accordance with well-established principles, it was only the amount from which the samples were taken that was relevant. He reiterated that a further inquiry was required before the involvement, guilt or otherwise of the bail applicants could be determined.
5. The principal question that falls for determination is whether the view taken by the Lahore High Court in the Muhammad Akram case. (supra) is applicable in me facts and circumstances of the present case. In that case, the facts were quite similar. The police received spy information that if a Toyota Corrola coming their way was intercepted, contraband articles (being narcotics) would be found in it. The car was intercepted, searched and the contraband articles duly discovered. The men in the car were booked under Articles 3 and 4 of the Order. The Lahore High Court concluded that a "motor vehicle is not a public place and, therefore, the offence allegedly committed was non-cognizable"
(pg. 393). Reliance was placed on Mst. Zar Bano v. The State 1989 SCM R 202. In order to properly appreciate the Supreme Court decision relied on, reference must be made to Article 16 which, in material part, states as follows:- "The following offences shall be cognizable, namely: (a)an offence punishable under Article 3; and (b)an offence punishable under Article 4, Article 8 or Article 11, if committed at a public place."
' Now in the Zar Bano case (supra), an offence only under Article 4 was alleged. The petitioner was found in her house with a contraband article (heroin) and the Supreme Court held that since a house is not a public place, the offence alleged was not a cognizable offence under Article 16. It will be seen from Article 16 that the condition of the offence being committed in a public place applies only in relation to Articles 4, 8 and 11. It does not apply in relation to an offence under Article 3.
Article 4 makes it an offence for a person to "own", "possess" or "keep in his custody" any intoxicant.
It is only in respect of these offences that the condition imposed by Article 16 would apply. On the other hand, Article 3 provides in clause (1) as follows:- "(1) Subject to the provisions of clause (2) whoever (a)import, exports, transports, manufactures or processes any intoxicant; or (b)bottles any intoxicant; or (c)sells or serves any intoxicant; or (d)allows any of the acts aforesaid upon premises owned by him or in his immediate possession; ' shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping not exceeding thirty stripes, and shall also be liable to fine."
It will be seen from the foregoing that the offence's under Article 3 are distinct and separate from those under Article 4. The condition imposed by Article 16 in relation to the latter does not apply in respect of the former. Therefore, even if a, motor vehicle is not a public place, this is not relevant in relation to an offence under Article 3, which includes the offence of "transporting" intoxicants. Even as regards a motor vehicle, it should be noted that Article 2(j) defines a "place" as including a "vehicle, vessel and aircraft". Article 2(1) defines a "public place" as meaning, inter alia, a "place to which the public have free access". Therefore, even a "motor vehicle" may, in appropriate circumstances, be a "public place". It appears that the attention of the A Lahore High Court was not drawn to this aspect of the matter.
6. The Lahore High Court also observed in relation to the case before it, at pg. 394, that the "requirements of Article 22 of the Prohibition Order were not fulfilled in this case". Learned counsel for the bail applicants has also, as noted above, relied on this aspect of the matter. Now clause (1) of Article 27 provides as follows:-- "Unless otherwise expressly provided in this Order, the provisions of the Code of Criminal Procedure, 1898, hereinafter referred to as the said Code, shall apply, mutates mutandis, in respect of cases under this Order."
' Section 157 of the Cr.P.C. permits a police officer to investigate a cognizable offence if he has reason to suspect that such an offence has been committed, and in the F.I.R. it is expressly stated that the requirements of this section have been complied with. Section 165, Cr.P.C. permits a police officer carrying out an investigation, subject to the fulfillment of the conditions specified therein, to search a place for "anything necessary for the purpose of an investigation into any offence" if, in the opinion of such police officer, "such thing cannot... be otherwise obtained without undue delay".
In my view, as long as the provisions of section 165 are complied with, it is permissible for a police officer to search a motor vehicle in respect of a suspected offence under the Order, in facts and circumstances similar to those at hand. Therefore, simply because a search warrant has not been obtained under Article 22 of the Order is not necessarily fatal, depending on the facts and circumstances of the case. To this extent, I cannot, with respect, agree with the view that appears to have been taken by the Lahore High Court.
7. In the present case, there is nothing on the record to indicate that the provisions of section 165, Cr.P.C. were complied with, and it is therefore possible that the search of the motor vehicle was non-compliant with the mandatory requirements of law. Furthermore, as pointed out by learned counsel for the bail applicants, it is not clear that samples were drawn from each of the cartons in which the intoxicants were found and it is only that quantity of intoxicants that is relevant from which samples are drawn. Furthermore, the offence under Article 3 does not come within the prohibitory clause and the trend of authority is that in such like cases, the grant of bail should not be regarded as the exception. For all of these reasons, I have come to the conclusion that the bail applicants have been able to make out a reasonable case for the grant of bail, and a further inquiry is required before the extent of their involvement or otherwise in the matter can be ascertained. Accordingly, this application is allowed, and the bail applicants are admitted to bail on each of them furnishing one solvent surety and PR bond in the sum of Rs, 75,000 to the satisfaction of the learned trial Court.