1. This is an application for bail made on behalf of applicant Jaweed Khan, who is detained in Crime No,232 of 1992, Jackson Police Station, under Article 3/4 of the Prohibition (Enforcement of Hadd)
2. Order, 1979. The bail application made on his behalf was rejected earlier by learned Sessions Judge
(West) Karachi, vide order dated 8-11-1992.
3. 2.It is alleged that on 4-10-1992 at about 6.15 a.m., Muhammad Ashraf, S.I.P., of Jackson Police Station, acting on spy information raided the (DERA) of Saif-ur-Rehman alias Safoora, a well- known narcotics dealer, and recovered 178 Kgs. of contraband Charas, 220 grams of powder of heroin and 43 bottles of Pakistan made wine from there in presence of mashirs. Applicant Jaweed Khan and co-accused Muntazim Shah, who were present there were taken into custody and such memo. was prepared on the spot.
4. 3.I have heard Mr. M.S. Khattak, learned counsel for applicant and Mr. Abdul Hakeem H. Bijarani, learned A.A.G. for State. The latter has opposed the bail application.
5. 4.It is contended that in view of Article 16 of the Prohibition (Enforcement of Hadd) Order, 1979, the offence not committed at a public place was not cognizable and consequently the police was not competent to raid the Dera of Saif-ur-Rahman alias Safoora and could not arrest the applicant without warrant. Article 16 which has been referred by learned counsel for applicant makes it clear that an offence punishable under Article 3 is cognizable one and consequently the police was competent to arrest the applicant without any warrant. The case of Zaidullah alias Hazaria v. The State, reported in PLD 1990 Supreme Court 1186, is clear on this point.
6. 5.It has also been contended that the applicant was already in custody of the members of Law Enforcement Agency since 3/4 September, 1992 and consequently no recovery could have been made from his possession on 4-10-1992. Reliance is placed upon an application filed under section 491, Cr.P.C., being Criminal Miscellaneous No,841 of 1992, by the father of applicant alleging therein that his son was in wrongful detention of the members of Law Enforcement Agency. This question cannot be determined at this stage and requires deeper appreciation of evidence which can be made only after the case proceeds before the trial Court.
7. 6.The perusal of the record shows that a huge quantity of narcotics was found in possession of the applicant, an alleged associate of well-known drug trafficker, Saif-ur-Rehman alias Safoora. The offence with which the applicant is charged falls within the prohibitory clause of section 497, Cr.P.C., and the learned counsel for applicant in spite of his straneous arguments was not able to bring it out of this clause. No case for bail is made out and the application made under section 497, Cr.P.C., on behalf of the applicant, seeking bail is accordingly dismissed. The Trial Court is, however, directed to examine all the material witnesses within a period of two months from the receipt of this order. It will be open to applicant to repeat his bail application before the trial Court after the complainant and one of the two mashirs are examined.