During a raid conducted into the dwelling house of accused Abdul Haleem by D.S.P., Mansehra with his police party on 26-11-1991 at 10-30 a.m. 3,425 grams `charas' and one bottle liquor was' recovered. The accused was arrested and a case under -Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 registered on the report of Syed Farman Shah Inspector --S.H.O.
2. The learned defence counsel argued,, that the case does not fall under Article 3 and the maximum punishment provided for an offence falling under Article 4 of the Prohibition Order would be two years' imprisonment in case of awning or possessing intoxicants like Charas and liquor. He then drew my, attention to Article 16 of the Order which relates to the cognizance of certain offences and stated that an offence falling under Article 3 shall be cognizable only if committed at a public place. He also referred to Article 22 and stated that the police did not care to obtain any warrant from a Collector, Prohibition Officer or a Magistrate before making search into the house of the accused.
3. 'The contraband has been allegedly recovered from the residential house of the accused which is definitely not a public place. The police was, therefore, required to obtain a warrant under Article 22 of the Order before making an entry into the house. Reliance has been rightly placed on Mukhtar alias Karoo v. The State 1988 PCr.LJ 591 and Suleman v. The State 1990 A PCr.LJ 1302. The controversy as to whether the case falls under Article 3 or 4 of the Order and cognizable or not is open to question. Admittedly no search--warrant under Article 22 has been obtained.
4. The case, in the circumstances, being thus prima facie arguable accused petitioner shall be admitted to bail in the sum of Rs.50,000 with two g sureties each in the like amount and to the satisfaction of the Ilaqa Magistrate.