Mst. IQBAL BIBI vs THE STATE
This matter arises from a criminal petition filed by Mst. Iqbal Bibi seeking post-arrest bail after being refused by the lower forums. The petitioner was apprehended along with another accused when a motorcar was intercepted by police and 100 grams of heroin was allegedly recovered from the rear seat. The core legal question addressed by the court is whether the recovery of contraband from a private vehicle constitutes a cognizable offence under the Prohibition (Enforcement of Hadd) Order, 1979, requiring no warrant, and whether the consequent arrest was legally justified. The Peshawar High Court held that a vehicle is defined as a "place" and not a "public place" under the Order, and offences under Articles 3, 4, 8, and 11 are not cognizable unless committed at a public place. Since the search of a private vehicle was conducted without a warrant and the recovery was non-cognizable, the arrest was illegal. The court laid down the principle that the search of a private vehicle without a warrant for non-cognizable offences under the Prohibition Order renders the arrest unjustified, entitling the accused to post-arrest bail.
- Whether the recovery of contraband from a private vehicle constitutes a cognizable offence under the Prohibition (Enforcement of Hadd) Order, 1979?
- Is a private vehicle considered a public place under the Prohibition (Enforcement of Hadd) Order, 1979?
- Does the search of a private vehicle without a warrant render the subsequent arrest illegal and entitle the accused to bail?
- Article 3, Prohibition (Enforcement of Hadd) Order 1979
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
- Article 8, Prohibition (Enforcement of Hadd) Order 1979
- Article 11, Prohibition (Enforcement of Hadd) Order 1979
- Article 16(1)(a), Prohibition (Enforcement of Hadd) Order 1979
- Article 16(1)(b), Prohibition (Enforcement of Hadd) Order 1979
- Article 2(j), Prohibition (Enforcement of Hadd) Order 1979
- Article 2(1), Prohibition (Enforcement of Hadd) Order 1979
- Article 3/4/24, Prohibition (Enforcement of Hadd) Order 1979
' S.H.O., Police Station Khalabat Township on 9-4-1995 at 23-00 hours alongwith police party and while on mobile round of the area, was present near committee ground when a motorcar No,101- 872 Karachi, coming from Main Chowk, was intercepted.
2. On suspicion, a search was conducted and contraband heroin in two packs total weighing 100 grams was recovered from within the rear seat. Makhan Khan the driver and Mst. Iqbal Bibi a lady sitting on the rear seat were apprehended under Article 3/4/24 of Prohibition (Enforcement of Hadd) Order, 1979. Refused bail by the two forums below, Mst. Iqbal Bibi has come up to this Court.
3. Nothing is recovered from the personal search of Mst. Iqbal Bibi and the recovery is made admittedly from a vehicle which under Article 2(j) of the Prohibition Order is a "place" and not a "public place" as defined under Article 2(1) of the Order.
4. All the offences under Articles 3, 4, 8 and 11 of the Order due to the conjunction "and" used between Article 16(1)(a) and Article 16(1)(b) are not cognizable offences unless committed at a public place. The recovery from a vehicle is, therefore, not cognizable and thus the arrest of the petitioner Mst. Iqbal Bibi is yet to be justified by the prosecution, in the manner in which it is made.
No search of a private vehicle could be conducted without warrant and the arrest being illegal, the petitioner is entitled to be released on bail.
5. She is directed to be so released provided she furnished bail bond in a sum of Rs,60,000 with two local reliable and resourceful sureties each in the like amount to the satisfaction of Ilaqa Magistrate alone.
Cited by 6 cases
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- AGHA KHAN vs THE STATE 2009 YLR 1275
- RAJA RAI vs THE STATE 2002 PLD Karachi 325
- ZAWAR ALI vs THE STATE 1996 P Cr. L J 1175
- MAJEED AHMED vs THE STATE 1996 MLD 1650
- HAMID GUL vs THE STATE 1996 P Cr. L J 577