ARSHAD JAVED ALIAS BHOLA Versus THE STATE

ORDER

This is an application for grant of bail to Arshad Javed alias Bhola petitioner in a case under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979, registered at P.S. City Wazirabad, vide F.I.R. No. 283/87, dated 6‑8‑1987.

2. The prosecution case is that the petitioner was keeping 1,250 grams of heroin in his house which was recovered on 6‑8‑1987.

3. Learned counsel for the petitioner submits that an offence punishable under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 is a cognizable, if committed at a public place since in the instant case, the heroin was allegedly recovered from the house of the petitioner which is not a public place, therefore, the police could neither register the case under Article 4 nor investigate if without prior permission of the Magistrate; that no person from the locality was joined to witness the recovery of the heroin from the petitioner; that nine persons have sworn affidavit to the effect that nothing was recovered from the petitioner on 6‑8‑1987; that a case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 has been registered against the S.H.O. P . S . City Wazirabad vide F.I.R. No. 363/87, so he was/is capable of concocting false cases. Reliance has been placed on Hayat v. The State 1985 P Cr. L J 1353 and Muhammad Afzal v. The State 1983 S C M R 1. Learned counsel for the State has opposed this application.

4. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the petitioner. The relevant law may be reproduced advantageously:‑

Article 16 of the Prohibition (Enforcement of Hadd) Order, 1979 (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."

The words 'or Article 11, if committed at a public place' used in sub‑clause (b) of sub‑Article (1) of Article 16 of the Prohibition (Enforcement of Hadd) Order, 1979, are of great significance. There can be no two opinions that the word 'or' used in sub‑clause (b) is disjunctive in sense and as such, the words 'if committed at a public place' relate to only Article 11 and are not to be read with Articles 4 and 8. So, with due respect to the expression made in Hayat v. The. State 1985 P Cr. L J 1353, wherein it has been observed that an offence under Article 4, if not committed at a. public place would not be cognizable, I am of the view that the police was/is quite competent to take cognizance of the crime punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, although not committed at a public place and as such, no exception can be taken to the registration of the case against the petitioner under Article 4 and investigation of the same. The police has collected sufficient evidence against the petitioner. The submissions made by the learned counsel require deeper appreciation of evidence which is not desirable at (his stage. Since a large quantity of heroin has allegedly been recovered from the petitioner and the offences fall within the prohibitory clause of section 497, Cr.P.C. and the learned counsel has not been able to show reasonable grounds to believe that the petitioner has not committed the alleged offences, therefore, it is not a fit case for grant of bail at this stage.

For what has been said above, the petition is dismissed.

H.B.T./A‑263/ L ????????????????????????????????????????????????????????????????????? Petition dismissed