1996 P Cr (PLP)

(1) that only one gram heroin as well as opium was sent for chemical examination; (2) that recovery was not effected from public place and as such, no cognizable offence was made out; (3) that no independent person of the locality was associated with either at the time of raid or recovery.

4. The learned State Counsel while opposing the bail application, has referred to Arshad Javed alias Bhola v. The State 1988 PCr.LJ 1267, wherein it was observed:-- "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 words ' 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."

5. Motor vehicle is not a public place and, therefore, the offence allegedly committed was non-cognizable. I respectfully do not feel myself bound by the authorities cited by the learned counsel for the State. It looks proper to reproduce below, the relevant portion of Article 16 of the Prohibition Order:-- 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. " Reference can be placed upon Mst. Zar Bano v. The State 1989 SCMR

202. Reference in this respect can also be made to Rao Muhammad Jalees alias Jaloo v. The State 1990 PCr.LJ 26 wherein it was observed:-- "With utmost respect I have to state that I shall not be bound to follow the authority cited by the learned counsel for the State. As it has been held by the Honourable Supreme Court in Mst. Zar Bano's case reported as 1989 SCMR 202, and relied upon by the learned counsel for the petitioner therein that a valid case in law had been made out for grant of bail to the petitioner therein who was charged with Article 4 on the ground that the offence alleged to have taken place in her house which cannot be said to be a public place. Otherwise too, in all humanity I am of the view that the perusal of Article 16 as a whole and particularly sub-Article (b) of Article 16(1) is very clear that the offence punishable under Articles 4, 8 and 11, if committed at public place, shall be cognizable and not otherwise." It was evident that the requirements of Article 22 of the Prohibition Order were not fulfilled in this case. In view of the above, the petitioners are allowed to be released on bail subject to their furnishing bail bonds in the sum of Rs.30,000 (Rupees thirty thousand only) with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate concerned. H.B.T./M-2707/L Bail allowed.