' Shah Wali Khan, D.S.P., C.I.A., on 22-2-1995 at 14-45 hours near Bara Gate recovered 80 Kgs. Of contraband "Charas" from Pick-up No,CH-2141 driven by Jehangir Khan driver and conducted by Hamid Gull. The latter was refused bail by the two Courts below and hence this petition.
2. The first serious attack against the recovery is made with reference to Article 16 of the Prohibition (Enforcement of Hadd) Order, 1979, the relevant portion whereof is reproduced below:-- "16. 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."
' It is claimed that in view of the above Article, the offences falling under Articles 3, 4, 8 and 11 are non-cognizable and that those become cognizable only if committed at a public place. According to them the vehicle, in view of Article 2(j) of the Order was not a public place. Before entering into discussion of the above point of law it may be settled with reference to the present case that it apparently is one of transportation and trafficking of contraband "Charas" and falls squarely within the mischief of Article 3 of the Prohibition Order.
3. The learned counsel for the petitioner, in support of his arguments relied upon Mukhtar alias Karoo v. The State 1988 PCr.LJ 591, Musarrat Shah v. The State PLD 1990 Pesh. 158 and a judgment of my own in Mst. Iqbal Bibi v. The State 1995 PCr.LJ 1472 where it was held in all such judgments that offences under Articles 3, 4, 8 and 11 of the Prohibition Order were cognizable only if committed at a public place. It is observed that due to conjunction 'and" used between Articles 16(1)(a) and 16(1)(b) it brought both the categories (a) and (b) at par and the rider" if committed at a public place" was applicable to both the categories i,e, all the offences falling under Articles 3, 4, 8 and 11 of the Order.
4. After having gone through the provisions of Article 16 and other case law as well, I hold, with due deference to the aforesaid rulings that it was not a correct interpretation of Article 16 of the Prohibition Order and I was also not properly assisted in Mst. Iqbal Bibi v. The State 1995 PCr.LJ 1472.
5. The conjunction "and" used between Articles 16(1)(a) and 16(1)(b) does not operate at all to bring the two categories at par and does not make the rider "if committed at a public place", equally applicable. Had the legislature intended to make this condition equally applicable to categories
(a) and (b), there was no sense in making the categorization at all and it could have easily been said under one category alone that all offences under Articles 3, 4, 8 and 11 would be cognizable if committed at a public place. The interpretation given by the learned counsel does not appeal to logic because offences of transportation and trafficking etc. Are most likely to be committed at public places and through vehicles.
6. A correct appreciation was made first in Yaseen v. The State PLD 1988 Kar. 69 where it was held that offence under Article 3 was cognizable anyway whereas offence under Article 4 was cognizable only if committed at a public place. As it was a case covered by Article 4 alone, therefore, remaining Articles 8 and 11 were not brought under discussion. After Yaseen v. The State this problem was elaborately taken up and discussed by Federal Shariat Court in State v. Sohail Ahmed PLD 1990 Federal Shariat Court 29 in this Division Bench judgment of the Court it was observed and rightly so that the split of Article 16 into (a) and (b) must be meaningful. "Only reason", it was observed, "is that while portion (a) of Article 16 is free from any fetters, portion (b) is subject to a rider "if committed at a public place". The learned Judges of the Federal Shariat Court further observed that if the intention of the legislature was to cover up Article 3 under the rider "if committed at a public place" then there was no rationale for keeping Article 3 under an independent clause (a). Following such findings and disagreeing with the counter view and also my own previous view, I hold that an offence under Article 3 is cognizable without any conditions imposed.
7. Coming to the merits of the present case, the petitioner Hamid Gul is a minor boy of 13. There are confessional statements on file of the driver as well as the petitioner-conductor wherein they have completely denied the knowledge about the contents of the vehicle. Both the documents lack inculpatory nature. If still those are relied upon by the prosecution then the petitioner is entitled to be released on bail till his knowledge of the contraband material is established at trial. The age of the petitioner is hardly 13/14 and it remains yet to be believed if a boy of this age would be taken into confidence by drug traffickers qua the huge quantity involved.
8. In the circumstances, the petitioner is directed to be released on bail provided he furnish bail bond in a sum of Rs,80,000 with two local, reliable and resourceful sureties each in the like amount to the satisfaction of Ilaqa Magistrate alone.