1. ' ABDUL RAHMAN FARUQ PIRZADA, J.---Through this application, the applicant seeks bail in the case vide crime No,85 of 2007 Police Station, City Jacobabad for offence under section 9(b), of C.N.S. Act, 1997.
2. ' The F.I.R. Was lodged by complainant Inspector Ali Bux S.H.O. P.S City, Jacobabad on 24-6-2007 at 0030 hours at P.S City Jacobabad. As briefly stated, the prosecution case is that on the date of incident the complainant along with subordinate staff had proceeded from police station vide Roznamcha Entry No,25-1740, dated 23-6-2007 for patrolling within their jurisdiction. At about 11-30 p.m. They reached near Palace Hotel Chowk where they saw one person coming from the side of Palace Hotel, who was holding a plastic bag of black colour in his hand, who on seeing the police tried to slip away. However, in suspension the said persons was apprehended by complainant party. On enquiry, he gave his name as Muhammad Faiz. In presence of mashirs H.0 Manzoor Ahmad and P.0 Shaukat Ali, the plastic bag was secured from the possession of applicant, which contained five packets of heroin which were weighed as 270 grams; 50 grams of heroin were taken out as sample for chemical report. The applicant was arrested and brought to police station along with secured property.
3. ' Learned counsel for the applicant has argued that the alleged offence does not fall under the prohibitory clause of section 497, Cr.P.C. He has further argued that only 50-grams were allegedly taken out as sample for chemical analyzer's report, but it is not clearly mentioned as to whether the sample was taken out from each one of the five packets of the heroin, as such the chemical analyzer's report would pertain to only one packet of heroin, and no expert opinion would be available regarding the remaining four packets of heroin, eventually, the applicant may be liable, at the most, for 54 grams of heroin. According to him the alleged offence, in view, of the quantity for sample, would fall under section 9(a), of C.N.S. Act, 1997, which is punishable to the extent of two years imprisonment. He has further contended that the gross illegality has been committed, in that the S.H.O. P.S City Jacobabad himself conducted investigation of present case, although according to the mandatory provisions of Article 18 of Police Order, 2002 all the registered cases shall be investigated by the investigation staff in the district under the supervision of the head 'of investigation, especially when the alleged offence is punishable for a term exceeding three years.
4. He has also submitted that allegedly the place of incident is situated in a thickly populated area viz. Near Palace Hotel Chowk in the midst of city, where, in the summer season, several persons were presumably available at the vardat, but the police did not make any efforts whatsoever to associate any independent person from the vicinity of the place of incident, as prosecution witness/ mashir in the case.
5. ' Learned Assistant A-G. Has conceded to the grant of bail, as the alleged offence is not covered by the prohibitory clause of section 497, Cr.P.C., and also because it is not clear as to whether the case property for the purpose of sample was taken out from each one of the five packets allegedly recovered from the applicant.
6. ' I have considered the contentions of the learned counsel for the applicant as well as learned Assistant A-G. It is clear from the case papers and challan that the investigation was carried out by S.H.O. Of Police Station, City Jacobabad, which is in clear violation of the mandatory provisions of law. Obviously in the light of the provisions of Article 18 clause (4), Police Order, 2002, the S.H.O. Was not competent to carry out the investigation of the case, and a proper Investigating Officer was required to conduct the same investigation. On this point, the reference may be made to the case of Muhammad Farooq Khan v. State as reported in 2007 PCr.LJ 89 in which it is laid down as under:- -- ' " Thus, the entrustment of investigation by the complainant to his own subordinate, being in clear violation of Article 18(4) of the Police Order, 2002, was patently illegal. Though it may not have the effect of vitiating the trial, it will certainly damage the fairness of investigation, one of the main objects sought to be achieved by the Police Order, as well as the credibility of the officer blatantly violating the law. Such an officer will be exposing, himself to disciplinary action and may also incur the risk of penalty under the Police Order."
7. ' Although in view of section 25 of C.N.S. Act, 1997, the provisions of section 103, Cr.P.C. Will not be applicable in the case of narcotics, however, the place of recovery and the time of recovery have to be kept in view, in order to appreciate if any false implication of innocent people had occurred or not, looking to the general conduct of police. In the present case, the place of incident is shown to have been C situated near Palace Hotel Chowk, at Adam Khan Road, Jacobabad. The recovery was effected in the month of June, at 11-30 p.m. It is understandable that in summer season, several persons may have been present at the place of incident, but admittedly neither the police procured the attendance of any independent persons from public, nor they are said to have made any efforts for the same purpose. For that matter, the case of Nawaz v. State as reported in 2004 YLR 1118 (Karachi), may be relied upon, which lays down as under:--- ' " Though private persons are not required to witness the recovery of narcotic substance as provided under C.N.S. Act yet the place of recovery and the time of recovery has to be kept in view to prevent false implication of innocent people, looking to the general conduct of police. The maximum punishment provided for the alleged offence is 7 years which does not fall within the prohibitory clause contained under section 497, Cr.P.C. The accused is behind bars since last four months. Keeping in view the peculiar circumstances of the cases we are inclined to grant bail to the applicant".
8. ' As per F.I.R. Five packets of heroin were contained in the plastic bag, totally weighing 270 grams of heroin. It is simply mentioned in F.I.R. That 50 grams of heroin were taken out and separately sealed, however, it is not specifically mentioned as to whether the heroin was taken out from each one of the five packets. In this view of the matter, the chemical analyzer's opinion may be said to be available regarding one packet of case property only, which would come at the most to 54 grams of heroin, as such the case might even fall under section 9(a) of C.N.S. Act, 1997 as argued by learned counsel for the applicant. The reliance may be placed on the case of Noor Muhammad v.
9. State as reported in 2007 YLR 1973, according to which the failure by prosecution to take sample from each of eleven shoppers containing Charas recovered from accused would make it difficult to record conclusive finding that all recovered material was contraband Charas.
10. ' In view of the foregoing facts and circumstances, the applicant would be entitled to concession of bail. Accordingly this application is allowed and the applicant may be released on bail on his furnishing solvent surety in the sum of Rs,1,00,000 and P.R bond in the like amount to the satisfaction of learned trial Court.