SARDAR MUHAMMAD EJAZ KHAN, J. The captioned 'application has been filed for quashment of FIR illat No.179/20 dated 06.06.2020 registered at Police Station, Thothal, in offences under Sections 11/14 of the Prohibition (Enforcement of Hadd) Act, 1985.
2. Brief facts forming background of the instant application are that on 06.06.2020, Shafqat Ali, AR, along with Police party was on patrol while at about 01:20 a.m. (at night) a car Toyota Corolla bearing registration number LRY 2760 coming from Mirpur was stopped and searched. Inside the car, three men were on board when they were asked about their name and address, driver told his name as Mazhar Iqbal son of Muhammad Fazal Caste Rajput resident of Chak No.195 Tehsil Sumandari District Faisalabad presently at Kakara Town, Mirpur, the person sitting on front seat told his name as Shahzeb son of Amjad Mehmood and the person sitting in the back seat told his name as Muhammad Irfan Khan son of Saib Dad Caste Rajput. Persons sitting in driving seat and front seat, were found suspicious and smell of Alcohol was coming from their mouths who drank Alcohol.
Both were referred to DHQ Hospital, Mirpur, where Mazhar Iqbal and Shahzeb were reported to have intoxicated by CMO.
3. On this report, a case illat No.179/20 was registered in offences under Section 11/14 of the Prohibition (Enforcement of Hadd) Act, 1985 at Police Station, Thothal, Mirpur. The police apprehended the accused-applicants and thereafter, they filed an application for bail after arrest before Tehsil Court of Criminal Jurisdiction, Mirpur, which was allowed vide order dated 09.06.2020.
4. The main thrust of the applicants is that for searching car, no search warrant was obtained by the police from the concerned Magistrate by Police while under the relevant provisions of the Act, supra, if a cognizable offence is committed at a public place, the police can take the cognizance of the offence but at the time of occurrence, they were sitting in a car, hence, under section 2(L) of the Act, Ibid, a Car does not fall within the definition of public place and the medical report has not been prepared and issued as per procedure. It has been requested that the FIR registered in offences mentioned above may be quashed.
5. Heard. Record perused. The pivotal point is yet to be determined whether under section 16 of the Act, Ibid, the cognizance of offences under sections 4, 8 and 11 can be taken by Police whereas the offence is not committed at a public place. For proper appreciation of the matter, section 16 of the Prohibition (Enforcement of Hadd) Act, 1985 is reproduced as under: "16. Cognizance of certain offences:---(1) The following offences shall be cognizable, namely --
(a) an offence punishable under section 3; and
(b) an offence punishable under section 4, section 8 or section 11, if committed at a public place;
(2) No Court shall take cognizance of an offence punishable under;
(a) section 12 or section 13, save on a complaint made by the person in respect of whom the offence has been committed; and
(b) section 20, save on a complaint made by, or under the authority of a Prohibition officer."
In section 2(l) public place has been defined as under:- "(l) "Public place" means a street, road, thorough fare, park, garden or other place to which the public have free access and includes a hotel, restaurant, motel, mess and club, but does not include the residential room of a hotel in the occupation of some person."
6. The above quoted provisions of law are self-explanatory, which make it clear that the offences under sections 4, 8 and 11 of the Prohibition (Enforcement of Hadd) Act, 1985 shall be cognizable only if these are committed at a public place. It is not out of place to mention here that during patrol, when the police apprehended the accused-applicants, they were riding in a car and raiding police party found smell of Alcohol coming from their mouths and no intoxicant liquid was recovered from their possession during search. It is an admitted fact that when the offence is stated to have been committed, accused-applicants were riding in a car, which is not falling within the definition of public place as such the police is not competent to take cognizance of the offences. My this view finds support from a case reported as Muhammad Yameen v. The State (1987 PCr.LJ 1576) in which following principle has been laid down:- "There are other features in this case which vitiate the trial. The offence is alleged to have been committed in a vehicle, which according to Article 2(j) of the said Order is a 'place' and not a 'public place' as defined by Article 2(1). Section 16 lays down that an offence inter alia under Article 11 of the said Order shall be cognizable only if committed in a public place. In the present case the offence was committed in a 'place' i.e. a vehicle and hence it was not cognizable. Reference has also been made to the case of Hussain Javeri v. The State (1983 PCr.LJ 102). This was a case under Article 4 of the said Order. Police had taken cognizance of the offence in violation of the above Article and sent up the case. The applicant in the above case was convicted by the trial court but on the revision being filed it was held by Z.C. Valiani, J., in the above case that trial had vitiated on account of violation of section 155(2), Cr.P.C. in-as-much-as the police was not competent to take cognizance of non-cognizable offence. In support of the above proposition the learned Judge has relied on 1968 PCr.LJ 97, 1978 PCr.LJ 812, 1969 PCr.LJ 598, PLD 1963 Lah, 46 and PLD 1964 Kar. 381. We are in respectful agreement with the law laid down in the above cases and hold that the trial is vitiated on account of material defect in the investigation in-as-much as the police, had taken cognizance of the offence which was non-cognizable."
Similar views have been expressed in a case reported as Bheeloo v. The State (1990 PCr.LJ 186) wherein it has been opined that:- "Therefore, the relevant provisions of the Prohibition (Enforcement of Hadd) Order, 1979, reproduced above, makes it abundantly clear that the offence under Article 11 shall be cognizable only if it was committed at a public place. In the present case, according to the FIR, the petitioner was taken into custody by the police during the "gusht" at 11 p.m. on the day of occurrence on the suspicion that he was intoxicated. Whereafter, he was sent to the Medical Officer, who after examining him, reported that he had taken "alcohol". It needs to be taken note of that neither in the FIR nor in the prosecution evidence it has been stated that the petitioner was found drinking intoxicant at a "public place". Therefore, it is not the case of the prosecution that the petitioner was taking intoxicant in any manner whatsoever at any public place. Therefore, even if it is accepted the petitioner was found in an intoxicated state, it does not prove that he had been drinking at a public place."
In para 8 of the above report, it has further been held that:- "In view of what has been stated above, and as the offence charged was cognizable only if it had been committed at a public place and as neither the FIR nor the evidence of the prosecution is to that effect, as stated earlier, therefore, the charge, the trial and the conviction of the petitioner was against the law and without lawful authority and without jurisdiction and hence illegal and manifestly unjust. Therefore, the petitioner's conviction is not sustainable in law, and a grave miscarriage of justice had taken place by the petitioner being charged tried and convicted under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979. Therefore, this criminal revision petition is hereby allowed and the conviction of the petitioner is set aside and he is honourably acquitted of the offence charged."
7. In view of above provisions of law, precedents settled by the superior Courts and the peculiar circumstances of the case in hand, cognizance in offences under sections 11/14 of the Prohibition (Enforcement of Hadd) Act, 1985 taken by the police while registration of FIR illat No.179 of 2020 is violation of section 16 read with section 2(1) of the Act, Ibid, hence, the act done by the police in registration of criminal case against the accused-applicants in offences mentioned above appears to have been found without jurisdiction and without lawful authority. In such like state of affairs, the impugned FIR illat No.179 of 2020 registered at Police Station Thothal, Mirpur in offences under sections 11/14 of the Prohibition (Enforcement of Hadd) Act, 1985 on 06.06.2020 is hereby quashed. In furtherance any proceeding in the garb of the said FIR would be deemed to have been quashed.