1996 P Cr (PLP)

S. 497

Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3, 4 & 22

Bail

Non-compliance of Art.22 of the Prohibition (Enforcement of Hadd) Order, 1979 in making house search of the accused without a search warrant was not, in the circumstances of the case, of so much consequence so as to render the recovery of heroin as illegal and of no effect

Investigating Officer was not shown to have any animus against the accused so as to involve him falsely-- Accused was above sixteen years of age on the date of occurrence

Bail was declined to accused in circumstances. 1995 PCr.LJ 1472 and PLD 1990 SC 1186 ref. (c) Prohibition (Enforcement of Hadd) Order (4 of 1979)

Art. 22

Recovery without search warrant

Trial Court in the circumstances of each case would be the best Judge to determine as to whether a particular recovery from a house without a search warrant should be believed or not, but it would be hypertechnical to hold that every recovery in the absence of search warrant would be illegal and that such a recovery cannot be made basis for trial in a competent Court

Accused can, however, show at the trial that he has been prejudiced by the alleged recovery without a search warrant. Khalid Badshah for Petitioner. Malik Hamid Saeed, Addl. A.-G. for the State Date of hearing: 7th April, 1996. The petitioner remained unsuccessful in getting bail from the learned lower Courts in case registered against him through F.I.R. No. 743, dated 9-12-1995 under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, to be referred hereafter as the Order, of Police Station Shahbaz Garhi and hence he has moved this Court for the same relief.

2. The complainant in this case is Mukhtiar Ali, A.S.I. who stated in his report that he recovered thirteen grams heroin from the possession of Lalzada and on interrogation, he disclosed that he has purchased the recovered heroin from Zawar Ali, the petitioner. On the basis of this information, the house of the petitioner was raided and from the search of the pocket of the petitioner, heroin fifty Puris in number weighing fifty grams were recovered which were duly sealed.

3. The learned counsel for the petitioner argued that under Article 16 of the Order, the offences under Article 3/4 of the Order would be cognizable only if committed in a public place. He referred to the definition of public place and submitted that the dwelling house cannot be classified as a public place. He referred to 1995 PCr.LJ 1472 and submitted that the offence under Article 3/4 have been held as not cognizable.

4. I agree with the observations in the said judgment that the offence under Article 4 if not committed in a public place would be non-cognizable but I am not inclined to agree with the view expressed in that judgment that the offence under Article 3 if not perpetrated in a public place would be non-cognizable. The perusal of clause (1)(a) of Article 16 of the Order would show that it is a complete clause by itself which cannot be linked and read conjunctively with clause (b) of the said Article, therefore, the offence under Article 3 would be cognizable irrespective of the place of its commission being a public place or otherwise. This view finds support from a judgment reported in PLD 1990 SC 1186 (Shariat Appellate Bench). It was next submitted that Article 22 of the Order has been violated as no search warrant has been obtained before the search, therefore, the whole exercise including the recovery of the heroin would be illegal. As is clear from the narration of facts above, the house search of the petitioner was necessitated because of the information conveyed to the Investigating Officer by Lalzada from whom earlier the heroin was recovered. Therefore, it would be determinable at the trial as to whether the Investigating Officer had sufficient time to approach the Magistrate for search warrant or he could genuinely entertain the apprehension that by the time he is able to obtain the search warrant from the Magistrate, the very purpose of the search of the house would stand defeated. In any case, in my view, the non-compliance of Article 22 of the Order would not be that much consequential so as to render the recovery of heroin in this case as illegal and of no effect. In the circumstances of B each case, the trial Court would be the best Judge to determine as to whether a particular recovery from a house without a search warrant should be believed or not but it would be hypertechnical to hold that the very recovery would be illegal in absence of the search warrant and that such a recovery cannot be made basis for trial in a competent Court. The petitioner would be at liberty to show at the trial that he has been prejudiced by the alleged recovery which has been made without a search warrant. It is pertinent to note that every criminal case proceeds on its own facts and as far as the present case is concerned, this could not be controverted that the father of the petitioner was involved twice for similar offences in F.I.R. No.525, dated 17-9-1995 and F.I.R. No.683, dated 15-11-1995. Moreover, it could not be shown as to why after all, the petitioner was picked up for such a heinous offence by the Investigating Officer. It was also argued that the petitioner is minor as his date of birth is 15-2-1979 but on calculation, it was found that on the date of occurrence, his age was more than D sixteen years. I am, therefore, not inclined to allow bail to the petitioner and accordingly dismiss this petition. But I direct that complete challan in the case should be submitted without any loss of time and the trial Court should expeditiously dispose of the case. N.H.Q./1924/P Bail refused.