' In this case the report was lodged by Muhammad Riaz, S.H.O., P.S. Haripur on 11-11-1989 at 20-50 hours, wherein he stated that he met S.I. Zaffar Khan and others at Chandani Chowk Sector No,1, who were having Fakhar-uzZaman alias Fakhra arrested in case FIR. No,886 of 1989 under Article 3/4 of the Prohibition Order; that Zaffar Khan, S.I. Told him that he has been informed by Fakhar Zaman accused during interrogation that he has purchased heroin from Mussarat Shah; that Mussarat Shah is selling heroin in his baithak; that Fakhar Zaman led the police party to the house of Mussarat Shah and that no respectable person from the locality was ready to accompany them; that when they reached the baithak of Mussarat Shah they knocked at his door; that as the door was opened they found Mussarat Shah alongwith two other persons, namely, Muhammad Masood and Gohar Rehman residents of Sector No,1 present and that they were smoking heroin; that Mussarat Shah was having a plastic bag in his right hand and that the police party snatched away the bag from his hand and found that it contained heroin, which was weighed and the quantity was found out to be 120 grams and that the same was taken into possession and sealed into a parcel. Some arms were also recovered from the accused. The accused were arrested and a case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and under section 13/Arms Ordinance was registered against the accused.
2. The accused petitioner applied for bail to the learned Magistrate which was rejected on 20-12- 1989. He then moved the Court of learned Additional Sessions Judge-I, Haripur for the grant of bail but his petition was also dismissed on 22-1-1990. The accused petitioner has now moved this Court for releasing him on bail.
3. I have heard the learned counsel for the petitioner and the learned State counsel and have also perused the record.
4. The learned counsel for the petitioner submitted that Fakhar-uz-Zaman, who is mentioned in the FIR and who pointed out the baithak of Mussarat Shah and who had disclosed that Mussarat Shah is dealing in narcotics in his Baithak, has not been cited as a witness nor his statement has been recorded by the police uptil now. He further contended that there is no evidence to the effect available on the file to show that the accused respondent was importing, exporting, transporting, manufacturing or processing any intoxicant or bottles any intoxicant; or selling or serving intoxicant or allowing any of the acts aforesaid upon the premises owned by him or in his immediate possession;-- He submits that in the absence of any evidence Article 3 of Prohibition Order will not be applicable. He further contends that according to Articles 16, Articles 3, 4, 8 or 11 will be cognizable only if committed at a public place. He submits that as the heroin was recovered from the Baithak of the accused petitioner which is not a public place, therefore, the accused could not be arrested without the warrant obtained from a Magistrate. The learned counsel relies on P Cr.LJ 1988 page 591 and PLD 1988 Lah.
574.
5. I have considered the arguments of the learned counsel for the accused-petitioner and there is much force in his arguments. Section 16 of the Prohibition (Enforcement of Hadd) Order, 1979 reads as follows:-- "Cognizance of certain offences.--(1) 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."
' From the reading of the above sub-Articles (a) and (b) it appears that even Article 3 will not be cognizable if committed at a private place for which warrant from a Magistrate is necessary and section 155(2), Cr.P.C. Will come into play. This point has been elaborated in a judgment reported in 1988 P Cr.LJ page 591 as:-- "Articles 3 & 22--Cognizance.--Offence under Article 3 is cognizable only if it was committed at a public place--Accused of such an offence, can neither be arrested nor could case property be seized except under a search warrant issued by a competent authority under Article 22."
' It is further mentioned at page 593:-- "In Article 16 the offences mentioned at sub-clauses (1)(a) and (1)(b) are bracketted together by the use of conjunction 'and' therefore, the words 'if committed at a public place' occurring at the end of clause (1)(b) qualify the offences mentioned both at (1) (a) and (1)(b). I am, therefore, of the view that an offence punishable under Article 3 is cognizable only if it is committed at a public place, meaning thereby, that if an offence mentioned in Article 3 of the Order is committed at a place other than public place then accused of such an offence can neither be arrested nor can the case property be seized except under a search-warrant issued by a competent authority under Article 22 of the Order. By enacting this provision, the legislature intended to save the subject from embarrassm ent of house search based on false or frivolous information. The provision is quite in consonance with the well-known saying that a house is the castle of its inmates. In this case, the still was found working in the courtyard of the house of the petitioner which is not a public place, therefore, the raiding party could not enter the premises much less to have entered there for searching any intoxicant, material, still, utensiles, etc., or for arresting the persons found present there. To my mind, therefore, the search of the house of the petitioner without warrant was illegal and consequently the utensils seized and arrests made from there were automatically vitiated. It may be further observed that the facts of the case did not constitute a cognizable offence, therefore, it could not be investigated without obtaining permission of a 'Magistrate', as enjoined by section 155(2), Cr.P.C. The proceedings initiated on the basis of illegal investigation are further found to be a nullity in eye of law."
6. In a case reported in PLD 1988 Lahore 574 head note 'C' it has been laid down as under:-- "Accused while in police custody allegedly led to recovery of heroin weighing 1015 grams from his house--Contended on behalf of accused, that recovery was not effected from accused at a public place and offence, he was charged with becoming a non-cognizable offence. Police could not arrest him and that without obtaining search-warrant from Collector, Prohibition Officer or Magistrate, his house could not be raided or searched--Counsel for State unable to repel said legal position--Accused admitted to bail in circumstances."
7. The learned counsel appearing on behalf of the State has not been able to repel the above legal propositions. Accordingly, I admit the petitioner to bail in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate.