' The brief facts of the present bail petition are that an F.I.R. No, 10/89 was registered at Police Station Kotwali, Bahawalpur, under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, against the petitioner.
2. According to the F.I.R. On the receipt of secret information that the petitioner was selling heroin in his house, the complainant, Police Officer sent a fictitious customer who purchased 2 grams of heroin on the payment' of marked currency note of Rs,100. Thereafter, the complainant deputed an A.S.I. To obtain search warrant, and organized a raiding party comprising of 38 police officials and carried out the raid on receipt of search warrant. It is further stated therein that the petitioner was found sitting in the courtyard of his house and selling heroin to three persons. As a result thereof, 414 grams of heroin and currency worth Rs,1,665 including the marked note of Rs,100 were recovered.
3. The 2 grams of heroin alleged to have been purchased and 10 grams out of the packet said to contain 330 grams were sent to the Chemical Examiner for his report.
4. The learned counsel for the petitioner contends for bail on the following grounds:--
(i) that as two or more respectable inhabitants of the locality had not witnessed the alleged search and recovery, therefore, such search and recovery were in violation of the provisions of section 103 of the Criminal Procedure Code.
' In this respect reliance was placed on Muhammad Shafi v. The State PLD 1987 FSC 16, wherein it was held that irregularity in search vitiates trial and affects conviction of the accused, and the conviction and sentence based upon such search was set aside. It was pointed out that this authority had placed reliance on Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607, wherein the Honorable Supreme Court had observed that the Courts would ordinarily insist on strict compliance with such requirement and view its non-compliance with suspicion unless an explanation is forthcoming for failure to secure presence of respectable witnesses or omission to examine them in Court.
' Another authority relied upon in support of the contentions was Muhammad Bashir alias Doba v.
The State PLD 1988 Lah.
574. Wherein it was held that where two or more respectable inhabitants of the locality were not associated to attend and witness the search of house of the accused, the action was violative of provision of section 103 of the Criminal Procedure Code. It was further held herein that recovery not made from a public place, requires Police Officer to obtain order of Magistrate before entering upon its investigation. The house of the accused could not be raided as such, and the accused charged under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, was admitted to bail;
(ii) that as the allegation is that the accused was found in possession of heroin in his house, therefore, under Article 16 of Prohibition (Enforcement of Hadd) Order, 1979, such an offence can be cognizable under Article 4 only, if committed at a public place. Therefore, it was contended that it was a non-cognizable offence and the police could take action only by fulfilling the provision of Article 22 of Prohibition (Enforcement of Hadd) Order, 1979 and section 155 of the Criminal Procedure Code.
' In this respect reliance was placed on Hayat v. The State 1985 P Cr. L J 1353, wherein the accused charged under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, was admitted to bail as it was held that, according to Article 16 of the said order, offence under Article 4 shall be cognizable only if it is committed in a public place. The next authority relied upon was Rehmat Ullah v. The State 1987 P Cr. L J 1409. Wherein the accused was granted bail as it was held that the heroin was recovered from his house and not from a public place, and that, therefore, it was not cognizable under Article 4 read with Article 16 of the Prohibition Order, 1979. Another authority relied upon in this respect was Mst. Zar Bano v. The State 1989 SCMR 202. Wherein it was held that a valid case in law was made out for grant of bail to the petitioner as she was found in possession of the heroin in her house, which cannot be said to be a public place, and that the offence, if any, committed by the petitioner was bailable by virtue of Article 16 of Prohibition (Enforcement of Hadd) Order, 1979;
(iii) that as the complainant herein Bashir Ahmed, Inspector of Police, S.H.O., Police Station Kotwali, Bahawalpur, was also the Investigating Officer, therefore, the investigation was a mockery in the eyes of law. To support his contentions, reliance was placed on Ashiq alias Kaloo v. The State 1989 P Cr. L J 601. Wherein it was held that the investigation conducted by the Police Officer who was a complainant himself and this fact showing that investigation was biased amounting to mockery;
(iv) that the petitioner is not a previous convict and is no more required by the police. In this respect reliance was placed on Ghulam Farid v. The State 1989 P Cr. L J 710.
(v) that the case of the petitioner under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, was not hit by the prohibitory clause of section 497, Cr.P.C. As the quantity of heroin sent to the Chemical Examiner was 10 grams and not more than 10 grams that would bring the case of the petitioner within the purview of prohibitory clause, stated above. It was further contended that 2 grams of heroin alleged to have been purchased by the fictitious customer cannot be added to the heroin alleged to have been recovered from the accused and out of which only 10 grams, as stated above, were sent to the Chemical Examiner for his report. Therefore, it was contended that under Article 4 of Prohibition Order the heroin sent to the Chemical Examiner has to be taken into consideration for bringing the case of the petitioner within the ambit of the prohibitory provision or otherwise of section 497 of the Cr.P.C.
' The learned counsel further contended that even under Article 3 of the Prohibition Order the present complainant could not have lodged the F.I.R. As he himself was not the purchaser.
Therefore, it was argued that there is no valid F.I.R. In respect of the offence alleged to have been committed by the accused under Article 3.
5. The learned counsel further argued that under the circumstances of the present case, the law should not be stretched in favour of the prosecution and that benefit, if any arising, must go to the accused, as has been held in Manzoor and 4 others v. The State PLD 1972 SC 81.
6. The learned counsel for the petitioner further argued that even at the bail stage the Court can accept arguments for bail even if such arguments result in appreciation of evidence. In this respect reliance was placed on Khalid Javed Gillan v. The State PLD 1978 SC 256, and Muhammad Hanif v.
Manzoor and 2 others 1982 SCMR 153.
7. The learned counsel for the State vehemently opposed the grant of bail to the accused. He has not been able to satisfy the Court that there was no force in the contentions raised by the learned counsel for the petitioner for the grant of bail to the accused.
8. He contended that under Article 16 of Prohibition (Enforcement of Hadd) Order, 1979, the qualification placed therein that an offence to be cognizable has to be only if committed at a public place relates to only Article 11 and not to Article 4 or Article 8 as stated therein at sub-Article (b). In this respect the learned counsel for the State relied upon Arshad Javed alias Bhola v. The State 1988 P Cr. L J 1267. Wherein it was so held.
' With utmost respect I have to state that I shall not be bound to follow the authority cited by the learned counsel for the State. As it has been held by the Honorable Supreme Court in Mst. Zar Bano's case reported as 1989 SCMR 202, and relied upon by the learned counsel for the petitioner herein, that a valid case in law had been made out for grant of bail to the petitioner therein who was charged with Article 4 on the ground that the offence alleged to have taken place in her house which cannot be said to be a public place.
9. Otherwise too, in all humanity I am of the view that the perusal of Article 16 as a whole and particularly sub-Article (b) of Article 16(1) is very clear that the offence punishable under Articles 4, 8 and 11, if committed at public place, shall be cognizable and not otherwise.
10. The learned counsel for the State further argued that a search warrant had been obtained in accordance with the provision of Article 22 of Prohibition Order, 1979, and that, therefore, the raid and recovery, as stated in the F.I.R., was legal, lawful and in accordance with law. However, the learned counsel for the State was unable to point out specifically that the requirements of Article 22, stated above, were fulfilled and only could refer to the F.I.R. Wherein it has just been said that the search warrant was obtained without any explanation as to from what Court or Collector, Prohibition Officer, Magistrate as required under Article 22.
11. Therefore, accepting the contentions of the learned counsel for the petitioner, and placing reliance on the authorities cited by him, under the facts and circumstances of the present case, and without commenting on the merits of the case, the petitioner is admitted to bail in the sum of Rs, one lac (Rupees 1,00,000 only) with two sureties in the like amount to the satisfaction of the A.C./Duty Magistrate, Bahawalpur.