' ABDUL LATIF KHAN, J.---Naeem Khan seeks his post-arrest bail in case F.I.R. No,571 for offences chargeable under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 registered on 3-9- 2013 in Police Station Kot Najibullah, Haripur.
2. The facts as reported in the F.I.R. Reveal that on 3-9-2013 at 19.30 hours, Sardar Jehangir SHO Police Station Kot Najibullah along with police party on receipt of spy information about presence of huge quantity of liquor in 'Daira', of a person in village 'Baso Maira' and selling thereof in different places, raided the said place. One person on seeing the police party succeeded in running, while one person found in Daira', who, disclosed his name as Naeem Khan son of Haider Zaman, caste Awan, resident of Sirikot, presently, Basso Maira. On search of the house, the complainant SHO found three drums and seven cans of liquor, while in four sacks 318 empty bottles were lying. The said liquor was taken into possession and samples were separated therefrom for chemical analysis. Accused/petitioner was arrested and the case was registered against him.
3. Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
4. Learned counsel for the petitioner contended that despite prior information, no search warrant as required under Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 was obtained, as the house in question was not a public place; that Article 3, P.O., which relates to manufacturing, importing and exporting, is not applicable in the circumstances of the present case and Article 4, P.O. Is bailable; that the investigation is complete and the petitioner is no more required to the police for further investigation; and that no proof of ownership of the house in question was placed on file. He placed reliance on 2010 YLR 2683, 1996 PCr.LJ 1787, 1995 PCr.LJ 1594, 2010' YLR 1101, 1999 PCr.LJ 924 and 1997 PCr.LJ 736.
5. Perusal of the record would reveal that despite prior spy information of the presence of the locally made liquor in the house of accused petitioner no compliance of mandatory provisions of Article 22 of P.O. Was made by the complainant-SHO before raiding the premises. In similar circumstances, in Khalid Mehmood's case (1997 PCr.LJ 736), it was observed that:- "In my view the offence would fall under Article 4 of the Order and not Article 3 thereof. In such a case it was mandatory on the Seizing Officer/Inspector-complainant to have obtained a warrant under Article 22 of the Order before conducting search and affecting arrest of the applicant. The recovery is said to have been effected from inside the house of the applicant and under Article 16(i) (b) an offence would be cognizable only if committed at a public place. The offence, for which the applicant is charged, therefore, is not a cognizable offence, as laid down in the above provision."
' In case of Muhammad Hashim v. The State (1995 PCr.LJ 1594), it was held that:- "In a case reported in Muhammad Aslam v. The State 1993 PCr.LJ 205, this Court quashed the criminal proceedings wherein mandatory provisions of Article 22 of Prohibition Order were not complied with. While quashing the proceedings, this Court also referred to Soor Al-Noor where the sanctity and the privacy of the house was impressed upon. "
6. Moreover, the ingredients required for 'applicability of Article 3, P.O are lacking at the moment and the trial Court has to determine this aspect of the case after recording evidence of the prosecution in this regard. At this stage, on tentative assessment of the facts on record, it appears to be a case of mere possession punishable under Article 4, P.C, which does not fall within the prohibition contained in section 497 of Cr.P.C., as the punishment provided therefor in the statute is only one year. The investigation in the case is complete and the petitioner is no more required for further investigation. Hence, a case of 'further inquiry' is made out in favour of the petitioner, as envisaged under subsection (2) of section 497 of Cr.P.C.
7. Accordingly, for the reasons stated hereinabove, the present application for post-arrest bail of the petitioner is allowed and petitioner Naeem Khan is granted bail provided he furnishes bail bonds in the sum of Rs,200,000 (Two Hundred Thousands) with two sureties, each in the like amount to the satisfaction of the Illaqa/Duty Magistrate, Haripur, who is to ensure that the sureties are local, reliable and of men of means.