SAJJAD AHMED SIPRA, J.- Brief facts of the present bail petition are that an F.I.R No. 4/89 dated 13.1.1989 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 was registered against the petitioner. According to the F.I.R, the police had raided the house of one Rao Jalees and the petitioner was caught from the house of the said Rao Jalees. It was stated in the F.I.R, that he was caught while he was purchasing Heroin and that on his personal search 12 purris of Heroin were recovered. It has further been stated therein that the petitioner admitted to purchasing Heroin from the said Rao Jalees for onward sale to public.
2. The learned counsel for the petitioner contends for bail on the following grounds:
1. That as the petitioner was arrested from inside a house therefore, no offence is made out under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 as the alleged offence has not taken place at a public place.
In this respect reliance was placed on Article I6 Sub Article (1-B) of the Prohibition (Enforcement of Hadd) Order, 1979, according to which offences under Articles 4/8 & 11 shall be cognizable and punishable if committed at a public place.
It was further contended that, as stated above, the offence as alleged to have taken place, not being cognizable, therefore, the police could only register the case after fulfilling the provisions of section 155(2) of Cr.P.C, according to which no Police Officer shall investigate a non-cognizable case without the order of a Magistrate of lst class or IInd class having power to try such cases or sent the same for trial to the court of Sessions Judge.
To support his contention the learned counsel relied upon N.L.R 1988 S.D 474 (Mohammad Bashir alies Buta vs. The State), wherein it was held that offences under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 not committed at a public place can not be investigated by the police without the order of the Magistrate of 1st class or IInd class having power to try the case under the said articles, as it was not warranted in view of the bar placed by section 155 (2) Cr.P.C.
The learned counsel further relied upon N.L.R 1988 S.D 245 (Karim Haider vs. The State) wherein it was held that cognizance by police of a non-cognizable offence is an illegality which is not curable even under section 537 Cr.P.C. The next case relied upon in this respect was N.L.R 1988 S.D 33 (Mukhtar alias Karoo vs. The State) wherein it was held that proceedings in violation of the provisions of section 155 (2) Cr.P.C should be nullity in the eyes of law. The latest authority in support of this contention is 1989 S.C.M 202 (Mst. Zar Bano vs. The State (wherein the bail was granted to the accused charged with Article 4 of prohibition (Enforcement of Hadd) Order, 1979 for being in possession of about 115 grams of Heroin as according to the prosecution itself, the accused was found in possession of the Heroin in her house. In this authority reference also was made to 1987 P.Cr.L.J 1409 (Rehmat Ullah vs. The State) and 1985 P.Cr.LJ 1353 (Hayat vs. State).
Ii. That according to the version of the prosecution itself, the petitioner is an accused only of being in possession of Heroin and of no other overt or covert act in respect of the said Heroin, and that, therefore, Article 3 is not attracted to the offence alleged to have been committed by the petitioner.
Iii. That report of the Chemical Examiner has not been received even after a lapse of over 5 months.
Iv. That the petitioner is neither previous convict nor is required in any other case, and that he is no longer required by the police.
3. The learned counsel for the State opposes the grant of bail to the petitioner but concedes that the contentions of the learned counsel for the petitioner are correct and can not be rebutted.
4. Therefore, under the facts and circumstances of the case, and without commenting on the merits of the case, and placing reliance on the authorities cited by the leamed counsel for the petitioner and in view of the statement of the learned counsel for the State, the petitioner is admitted to bail in the sum of Rs. 40,000/- with one surety in the like amount to the satisfaction of A C/Duty Magistrate, Bahawalpur.