' The petitioner and two others were proceeded against for the alleged commission of offences punishable under sections 3 and 4 of the Prohibition (Enforcement of Hadd) Order 1979 and section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) vide F.I.R. No,37/95, dated 2-2-1995, Police Station City Ahmadpur East, District Bahawalpur.
2. The prosecution story as given in the F.I.R. Lodged by Abdul Sattar, A.S.I., C.I.A. Staff, Bahawalpur briefly stated is that on the fateful day and time he, alongwith other police officials, on secret information, raided a house in Lalazar Colony Ahmadpur East and found an alive Still ({{URDU TEXT}}) in the said house. The owner of the said house, namely, Bashir accused, succeeded in running away. However, they allegedly took into possession the incriminating articles, i,e, a jery cane, 20 litre of Alcohal and other articles necessary for manufacturing for Alcohal. It was further alleged in the said F.I.R. That in one of the rooms of the house, the petitioner (Hashim) was committing Zina with a woman, named, Zainab. After necessary investigation, the challan has been submitted in the learned trial Court.
3. The learned counsel for the petitioner has prayed for bail of the petitioner on the following grounds:--
(i) That the police raid in consequence of which the instant case was is violative of mandatory provisions of Article 22 of the Prohibition Order 1979, which requires search warrants issued by the competent authority for such a raid. He relied on M. Aslam v. The State 1993 PCr.LJ 205 to contend that in absence of such a search warrant, the entire proceedings are vitiated and the petitioner is entitled to bail;
(ii) That the so-called witnesses of recovery police officials and none from the locality was associated with the recovery proceedings;
(iii) That no medical evidence has been collected to prove the allegation of Zina; and
(iv) That co-accused Mst. Zainab Bibi has already been granted bail by the learned Sessions Court.
4. The learned State counsel, on the other hand, has opposed the prayer for bail and submits that the complainant police official is in no way inimical towards the petitioner and that mere fact that search warrant was not obtained would not vitiate the proceedings of raid and the resultant investigation.
5. I have heard the learned counsel for the parties and have also gone through, the record with the assistance of the learned counsel for the State.
6. For a better appreciation of the points which have been raised it is necessary to refer to Articles 16 and 22 of the Prohibition (Enforcement of Hadd) Order, 1979 which are being reproduced for ready reference:-- "16. Cognizance of certain offences.---
(1) The following offences shall be cognizable, namely:--
(1) 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 by, or under the authority of, a Prohibition Officer."
"22. Issue of search warrants.--- (1) If any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still utensil, implement or apparatus in respect of which the alleged offence has been committed.
(2) Any person who has been entrusted with the execution of such a warrant may and detain search and, if he thinks proper, but subject to the provisions of clause (1) of Article 12, arrest any person found in the place searched, if he has reason to believe such person to be guilty of an offence under Article 3, Article 4, Article 8 or Article 11"
7. The examination of the afore-referred provision of law would indicate that in cases falling under Article 3 (which are cognizable offences) and Article 4 and Article 11 (relatable to non-cognizable offences) search of a place is permissible only if search warrants have been issued by a Collector, Prohibition Officer or a Magistrate and that too only by a person who has been authorised by the search warrants. This provision of law was enacted on the one hand to restrain a Police Officer from going beyond his lawful mandate and on the other hand to protect the innocent citizens from invasion of their places of dwelling. In absence of these checks and constraints the powers were likely to be misused with imaginable agony for the citizens. This protection is guaranteed by yet another provision contained in the Code of Criminal Procedure with by virtue of Article 27 ibid has been made applicable mutatis mutandis.
' Section 155 of the Criminal Procedure is to the following effect:-- "(1) When information is given to an officer incharge of a police station of the commission within the limits of such station of non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate.
(2) No Police Officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or send the same for trial to the Court of Session.
(3) Any Police Officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer incharge of a police station may exercise in a cognizable case."
' In a case reported in Muhammad Aslam v. The State 1993 PCr.LJ 205, this Court quashed the criminal proceedings wherein mandatory provisions of Article 22 of Prohibition Order were not complied with. While quashing the proceedings, this Court also referred to Soora Al-Noor where the sanctity and the privacy of the house was impressed upon in the following words:-- {{URDU TEXT}} ' Similarly in Muhammad Yamin and others v. The State 1987 PCr.LJ 2239 conviction was set aside as the police had raided premises without search warrants and it was observed as follows:-- "Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 2(b), 2(j), 11 and 16---Criminal Procedure Code (V of 1898), S.155(2)---Term 'public place'---Vehicle---Not a 'public place'---Police taking cognizance of non-cognizable offence---Material defect vitiating trial---drinking of liquor--- Conviction on charge of having been found drunk in a car---Vehicle not being a 'public place', offence noncognizable---Police taking cognizance of a non-cognizable offence and sending up case for trial, held, vitiated on account of material defect in investigation---Conviction set aside."
' In Muhammad Bashir alias Doba v. The State PLD 1988 Lah. 574, it was observed:-- "Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.4, 16 and 22---Criminal Procedure Code (V of 1898), S.155(2)---Intoxicant--Recovery of intoxicant would be non-cognizable offence if recovery was not made from a public place requiring Police Officer to obtain order of Magistrate before entering upon its investigation."
Bound by the afore-referred precedent case-law, as the Police Officer admittedly raided the premises without search warrants, the petitioner is in judicial lock-up, he is not required for further investigation and his co-accused having already been released on bail, I am inclined to admit the petitioner to bail provided he furnishes bail bonds in the sum of Rs,20,000 (Rupees twenty thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.