1. ' This application for bail is filed on behalf of the accused abovenamed who has been booked to face his trial under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 vide F.I.R. Bearing No,217 of 1995 registered at Police Station Kalakot.
2. ' Briefly the facts of the prosecution case are that on 29-7-1995, S.I. Muhammad Iqbal of Police Station Kalakot lodged an F.I.R. Stating therein that on the same day at about 20-45 hours he raided the house of Tahir and Sohail both sons of Rasool Bux, situated in Gali No,1, Rexer Line Islam Road, Kalakot, in order to arrest them in case bearing F.I.R. 214 of 1995. On the house search of the accused he recovered 308 'Kuppies' of alcohol, 49-1/2 Kg. Charas and six packets containing 15 grams heroin. He also took into possession Rs,8,202. He arrested the accused Tahir from the house whereas, Sohail and Mst. Halima wife of Rasool Bux managed their escape good. He took into possession the recovered contraband stuff under a Mashirnama prepared at the spot. He then brought the accused and property at Police Station and registered the instant case.
3. ' The accused filed an application for bail before the learned District Judge, Karachi South which was rejected by him on 26-3-1996.
4. ' The learned counsel, Mr. Sardar Muhammad Ishaque, appearing on behalf of the accused, contended that the accused has been falsely booked in this case due to enmity with the said S.I.
5. Muhammad Iqbal of Kalakot Police Station and nothing has been recovered from his house connecting with the alleged offence and further that alleged recovered contraband stuff has been foisted upon him due to enmity by Police. Learned counsel further contended that there is clear violation of section 103, Cr.P.C. As the alleged search of the house was not taken in presence of the two respectable persons of the locality though the house of the applicant is situated in the thickly populated area of the city and further that Sub-Inspector of Police has made up his mind to search the house of the applicant due to enmity as such he should have obtained the warrant of search from the competent Authority which is mandatory under Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 and further that Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 does not apply in this case as there are no allegations against the accused abovenamed that he was selling contraband and further that Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 is concerned its punishment is provided up to two years as such it is bailable offence and does not fall under the prohibition clause of section 497, Cr.P.C. The learned counsel further contended that the story as set up is not believable and does not appeal to the commonsense that the applicant who is young boy of about 25 years was arrested at the spot while his mother an old lady of more than 50 years managed to run away from the spot though there was heavy raiding police party which surrounded the house of the applicant at the time of raid. The learned counsel further contended that the Sub-Inspector Muhammad Iqbal who is on inimical terms with the applicant had played three roles in this case that is of complainant, of Investigating Officer and of prosecution witness, therefore, false implication of the accused due to enmity cannot be ruled out. He has further contended that though the alleged offence took place on 29-7-1995 but the report of the Chemical Examiner has not been received so far.
6. ' In support of his contention the learned counsel has placed reliance on the following reported cases:--
(1) Muhammad Bashir alias Doba v. The State PLD 1988 Lah. 574;
(2) Mst. Zar Bano v. The State 1989 PCr.LJ 202;
(3) Muhammad Miskeen v. The State 1994 PCr.LJ 1754;
(4) Yameen Kumhar v. The State PLD 1990 Kar. 275;
(5) Mirza Shah v. The State 1992 SCMR 1475;
(6) Muhammad Yousuf Bengali v. The State 1994 PCr.LJ 2518;
(7) Niaz v. The State 1986 PCr.LJ 1574;
(8) Zakir Hussain alias Zakir Ahsan v. The State 1989 PCr.LJ 1782.
7. ' Mr. Azizur Rehman Shaikh, learned counsel appearing on behalf of the State, contended that admittedly Police has to take the warrants of search from the competent Authority at the time of the search of the house but in this case the said warrant of search was not taken by the Police and secondly there is clear violation of the provisions of section 103, Cr.P.C. As the search was conducted in presence of the two police constables who were already with the said S.I. And the prosecution does not bother to collect the two respectable persons of the locality to conduct the search. He also confirmed that till today the report of the Chemical Examiner has not been received and further that the accused is behind the bars since the date of his arrest. He, however, states no objection if the accused is released on bail.
8. I have heard very patiently the arguments of both the learned counsel and have perused the record of this case. Admittedly the warrant of search was not taken by Police though it was in the knowledge of the Sub-Inspector that he was going to conduct the search of, a house of the accused, secondly that though the house of the accused is situated in the thickly populated area of the city but the police did not bother to collect two respectable persons of the locality at the time of taking search of the house and thirdly that till today the report of the Chemical Examiner has not been received so far though the period of nine months has passed.
9. ' The search of the house is to be taken under the provisions of section 103(1), Cr.P.C. Which require the Officer making a search to associate two or more respectable inhabitants of the locality where the search is to be made, who may attend and witness the search. The object is to ensure proper and honest search by the Police and to avoid harassment, concoction and manipulation at this stage. However, the question is whether the provisions of section 103, Cr.P.C. Can be applied to proceedings during investigation by a police officer. It is further to be considered whether the application of these provisions in such proceedings is merely a way of practice to ensure safe administration of criminal justice or it has some legal sanction behind.
10. ' In this case the accused has pleaded enmity with police. Police wanted to arrest him in Crime No,214 of 1995 which crime has got no connection with the present crime. The Police, therefore, intended to take the search of the house and as such in these circumstances Police was duty bound to collect the two persons of the locality where the house is situated for the purpose of taking search of the house. The intention of the police was only to arrest the accused and not to search the house for any other purpose, therefore, it was more particular for the police to have collected the two respectable persons of the locality to witness the search.
11. ' Admittedly, the house of the applicant which was raided was not a public place, and therefore, the offence with which the applicant is charged was a non-cognizable as provided in Article 16 of the Ordinance and neither the house of the applicant could have been searched nor arrest could be effected as provided in Article 22 of the Ordinance, as admittedly no search warrant was taken by the Police Inspector from the competent Authority. Then there is another question whether Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 has been properly applied or not, for this purpose if a look to the F.I.R. Is made there are no allegations of any kind that the applicant was selling the contraband, therefore, at this stage application of Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 has become doubtful then there is Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 which prescribes punishment of two years, therefore, the offence provided under Article 4 does not come under the prohibitory clause of section 497, Cr.P.C. Much reliance is placed upon a judgment of the Hon'ble Supreme Court reported in 1989 SCMR 202 which has been referred by the applicant's learned counsel. I am, therefore, inclined to grant bail to the applicant as valid case in law has been made out for grant of bail to the applicant as such the applicant/accused is granted bail subject to his furnishing one surety in the sum of Rs,2,00,000 (Rupees two lacs only) and P.R. Bond in the like amount to the satisfaction of the trial Court.