1. ' Applicants Wasil Khan and Jumma Shah being accused in Crime No,410 of 1992 of P.S. Jauharabad under section 3/4 of Prohibition (EHO) have approached this Court for bail after their such application is dismissed by the learned Sessions Judge, Karachi Central by order dated 7-12- 1992.
2. ' The facts given in the F.I.R. No,410 of 1992 are that Inspector/S.H.O. Haji Muhammad Yasin of P.S. Jauharabad alongwith his subordinates and the Law Enforcing Agency, arrested one Umer Khan under section 3/4 of the Prohibition (Enforcement of Hudood) Order and registered F.I.R. No,409 of 1992 against him. On the information given by the said accused Umer Khan resident of Flat No,BA/29 at the ground floor of Yousuf Plaza was raided in presence of Magistrate. The two applicants herein alongwith Muhammad Hassan, Lal Muhammad and Haji Khan (in all five) were arrested. From the search of the Flat 50 k.g. Of Charas in packets of one kilo each, two bottles of wine one of each was empty and the other one was full of wine and a cash amount in the sum of Rs,1,21,500 (Rupees one lac twenty-one thousand and five hundred) only, alleged to be the sale amount of Charas was recovered. The recovery was effected in presence of Raja Rehmatullah and Habib-urRehman.
3. ' Muhammad Elm Din Khattak, learned Advocate for the applicant, has contended that accused Umer Khan, who was arrested by Police and Law Enforcing Agencies, was found in possession of Heroin and on his pointation the flat in Yousuf Plaza was raided where the police party allegedly recovered 50 packets of Charas. The offence, according to the learned Advocate, would not fall under Article 4 and, therefore, it being non-cognizable offence the arrest or detention of the applicants would become illegal. He has referred to Article 16 of the Ordinance which 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.
(2) No Court shall take cognizance of an offence punishable under:---
(a) Article 12 or Article 13, save on a complaint made by the person in respect of whom the offence has been committed; and
(b) Article 20, save on a complaint made by, or under the authority of, a prohibition officer.
4. ' He has also argued that the alleged offence was not committed at a public place and no F.I.R.
5. Could have been registered. He has referred to Mst. Zar Bano v. The State 1989 SCM R 202 whereby contraband articles were found from the house of Mst. Zar Bano which was not a public place and it was held that the offence committed by her was bailable by virtue of Article 16 of Prohibition Order, and bail was granted.
6. ' Mr. K.M. Nadeem, learned Advocate-General has not raised any objection to the grant of bail in view of the fact that on similar charge, co-accused Muhammad Hassan, Lal Muhammad and Haji Khan are granted bail by ACM-II, Central Karachi by his order, dated 24-11-1992, copy of which order is on record.
7. ' I have heard the arguments of the learned counsel and perused the record as well as the judgment referred to. Admittedly the contraband Charas was recovered from the flat where five accused were allegedly assembled. It is not a public place as held in the above judgment of the Supreme Court of Pakistan. Three co-accused on similar charge and same evidence have been granted bail by ACM. I, therefore, grant bail to the applicants herein and they shall be released if they furnish one surety each in the sum of Rs,1,00,000 (Rupees one lac) only, and PR bond in the like amount to the satisfaction of the learned Sessions Judge, Karachi Central.