MUHAMMAD BASHIR Versus THE STATE

ORDER

This is an, application for bail on. behalf of Muhammad Bashir alias who stands arrested since 15‑2‑1988 in a case under Articles 314 of the Prohibition Order, 1979 on the allegation that while police custody he led to the recovery of heroin weighing 1 015 gram from his house,

2. It is contended that the petitioner has been falsely implicate for ulterior motive and that his arrest under Article 3 was not legal because there was no evidence to the effect that he indulged import, export, manufacture or sale of heroin. The application o Article 4 is also challenged on the ground that since the allege .offence had not been committed at a public place it was non‑cognizable and the police could riot arrest him. In this context a reference ha, been made to Article 16 of the Prohibition Order, 1979. The other legal objection is that without obtaining search warrants from the Collector, Prohibition officer or Magistrate house of the petition could not be raided or searched.

3. As regards the cognizability of offence under Article 4 of the Prohibition Order, 1979 a reference may be made to Hayat v. rh State 1985 P Cr. L J 1353 where it was held that offence about owning or possessing intoxicant would be cognizable only it committee at a public place. Similar is the case of Article 3 as held in Mukhtar alias Karoo v The State 1988 P Cr. L J 591.

4. Section 155(2) Cr. P.C. places a bar on investigating a non‑cognizable case without the order of a Magistrate of the First or Second Class 'having power to try such case. Since admittedly the alleged recovery was not made from a public place the offence in the light. of the above‑quoted rulings, would be non‑cognizable requiring the 'police officer to obtain orders. of a Magistrate before entering upon its investigations. Another defect pointed out by the learned counsel for the petitioner is non‑associating two or more respectable inhabitants of the locality where the house of the petitioner was situate to attend and witness the search/raid as required by section 10.3 Cr. P.C. Moreover no search‑warrant as envisaged by Article 22 of. the Prohibition Order, 1979 was obtained by the police from the competent authority before carrying out search of the petitioner's house,,

5. " Learned counsel appearing on behalf of the State has not been able to repel the above legal propositions. Accordingly, admit the petitioner to bail in the sum of Rs. one lac with two sureties the like amount 'to the satisfaction of A.C. Saddar, Lahore.

M.Y.H./M-825/L Bail granted.