1994 P Cr (PLP)

Mst. Zar Bano v. The State 1989 S C M R 202 and Criminal Bail Application No.975 of 1992 rel. Ilamdin Khattak for Applicant. Habibur Rasheed for the State. Applicant Muhammad Miskeen is arrested in Crime No.156/93 under section 4, Prohibition (E.H.O.), 1979. A bail application moved on behalf of the applicant is dismissed by the trial Court of Additional Sessions Judge Hudood, Karachi West, by order, dated 23-1-1994. Allegation in the F.I.R. lodged by Inspector Muhammad Ayoub Bhatti on behalf of the State is, that he received spy information that a notorious narcotics dealer Fazal Muhammad alias Langra had stored a huge quantity of narcotics in the shop of Miskeen, the present applicant. The shop of applicant was raided and 2 Kgs. of Charas, 2 Kags. of opium and 500 grams of heroin powder were secured. Case after due investigation is sent up to the Additional Sessions Judge, Hudood, Karachi West. I have heard the applicant's learned Advocate and the counsel appearing for the State. It is contended by Mr. Ilamdin Khattak, learned Advocate for the applicant, that the shop of applicant which was raided was not a public place and, therefore, the offence with which the applicant is charged was a non-cognizable as provided in Article 16 of the Ordinance and neither the shop of applicant could have been searched nor arrest could be affected as provided in Article 22 of the Ordinance, as no search-wafrant was taken by the Inspector from a Magistrate. The learned counsel then argued that Article 2(1) defines the word "public place" and applicant's shop does not fall within the perview of the said definition and, therefore, as earlier argued the search and arrest was erroneous. It is also argued that if the offence under sections 3 and 4 of the Ordinance is not found to have been committed in a public place, the same would be bailable and in the circumstances applicant would be entitled to grant of bail. In support of these contentions learned Advocate has referred to the case of Mst. Zar Bano v. The State 1989 S C M R 202 and has placed on record a photostat copy of the unreported order in Criminal Bail Application N0.97$ of 1992. Bail is vehemently opposed by the learned counsel appearing for the State who has argued that the applicant had stored a huge quantity of narcotics at his shop and was selling the same to various customers. I have considered the contentions of the learned counsel and have perused the record as well as order passed by the learned trial Court. Similar points, argued in this bail application by applicant's learned Advocate, were considered by me while deciding Bail Application No.975 of 1992 Wasil Khan and another v. The State and I had observed that the flat from which the contraband Charas was recovered was not a public place and I have relied upon a judgment of the Supreme Court reported in 1989 S C M R 202 which has been referred by applicant's learned Advocate. I am, therefore, inclined to grant bail to the applicant. He shall be so released if he furnishes one surety in the sum of Rs.2,00,000 (Rupees two lacs) with P.R. bond in the like amount to the satisfaction of the learned trial Court. N.H.Q./M-1949/K Bail granted.