' ABDUL SATTAR ASGHAR, Raja Ansar Nadeem Ahmad petitioner/ accused in case F.I.R. No,167 of 2012, dated 4-3-2012, in the offences under. Rules 43/44 of the Pakistan Petroleum (Refining, Blending & Marketing) Rules, 1971 and Petroleum Act, 1934, registered at Pcilice Station Hujra Shah Muqeem, District Okara has sought pre-arrest bail on the ground that he is innocent and has been falsely implicated in the case with malice.
2. As per F.I.R. Lodged on 4-3-2012 at 10-10 a.m. On the application of Asghar Ali, District Officer Civil Defence, Okara, it is alleged that in exercise of the powers vested in the District Coordination Officer Okara under Rule 43-A of the Pakistan Petroleum (Refining, Blending & Marketing) Rules, 1971, sample of the diesel being sold at Raja Filling Station Rajowal was procured in presence of P.Ws.
Rana Munawar Naib Tehsildar and Muhammad Shabaan Instructor Civil Defence Okara and the said sample was forwarded to the Petroleum Testing Laboratory Multan, vide letter dated 22-2- 2012; that as per laboratory analysis report dated 28-2-2012 sample of the Hi-Speed Diesel did not conform to the standard specification of the diesel as approved by the Director General, Oil, Ministry of Petroleum and Natural Resources. It is therefore alleged that Messrs Raja Filling Station Rajowal is involved in the sale of adulterated/ substandard diesel.
3. It is argued by learned counsel for the petitioner that he is proprietor of the Raja Filling Station Rajowal; that he is falsely implicated in this case with malice;, that the samples of the diesel were not properly obtained; that the requirements. Of Rule 38 of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 197.1 were not observed while taking the sample; that the offences do not fall within the prohibitory clause of section 497, Cr.P.C.; that the Laboratory Test Report dated 28-2-2012 lacking standard specifications does not carry any evidentiary value and cannot be relied upon; that the petitioner as special attorney of his mother. Mst. Nadeem Akhtar has lodged a civil suit for declaration etc. On 15-9-2011 pending in the Court of Civil Judge, Okara against the Province of Punjab through DCO, Okara and others with regard to wrong assessment of Condonation Fee and that out of the said grudge he has been falsely implicated in this case with malice.
4. It is resisted by the learned DDPP for the State assisted by the learned counsel for the complainant with the contentions that as per laboratory testing report dated 28-2-2012 sample of diesel taken from the Petrol Pump owned by the petitioner have been found substandard therefore the prosecution has prima facie incriminating material against the petitioner; that the samples of the diesel were taken in presence of the worker of the petitioner; that the plea of false implication is not substantiated therefore the petitioner is not entitled to the concession of pre-arrest bail.
5. Arguments heard. Record perused.
'6. At the outset, rule 38 of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 is reproduced hereunder for ready reference:-- "Procedure of sampling and testing.---(1) An officer taking samples of a petroleum product under these rules shall take the samples of the product in two separate containers in the presence of the person from whose possession the samples are taken (hereinafter referred to as the owner) and shall seal the containers with his own seal and also allow the owner to put his seal to the containers, if he so desires.
(2) The officer shall retain one of the containers with himself, and forward the second for testing and report to one of the laboratories approved for the purpose by the Authority.
(3) If the owner disputes the correctness ,of the report of the laboratory to whom a sample was forwarded for testing under sub-rule (2), the officer shall forward the container retained by him under that sub-rule to one of the other laboratories approved for the purpose by the Authority for testing and report.
(4) The report of the laboratory by which a test is conducted under sub-rule (3) shall be final and shall not be called in question.
(5) All samples taken under this rule shall be tested within the -time within which the quality of the product concerned is not likely to undergo any change."
7. With reference to the above quoted rules, learned DDPP for the State has furnished copy of the "Report for the purpose of sample" dated 20-2-2012 containing signatures of one Nazir Ahmad allegedly operating the petrol pump at the relevant time, however, the controversy raised by the petitioner that sampling was violative to the provision of section 38 ibid could only be resolved after having recourse to evidence during the trial. Simultaneously bare reading of the impugned laboratory testing report dated 28-2-2012 transpires that it lacks standard specifications for comparative analysis of the results of the sample. Therefore the same cannot be termed as lucid to the extent of each and every component of the sample. A single line finding that the sample does not conform to the standard specification of diesel HSD cannot be termed as complete report. Therefore it may not be fair to consider such incomplete report as incriminating material against the accused. In the attending circumstances, case is a matter of further inquiry. Besides, during the pendency of the civil litigation between the parties chances of false implication cannot be ruled out.
8. Rule 44 ibid envisages maximum punishment for the offence under Rule 43 an imprisonment for a term which may extend to three years with fine.Or both. The above said offence is not included in the offences against other laws" in Schedule-II of the Code of Criminal Procedure, 1898. Therefore, it can safely be treated as bailable unless specifically declared and made as non-bailable by the Legislature.
9. For the foregoing reasons and discussion this petition is accepted and pre- C arrest bail already allowed to the petitioner is confirmed subject to his furnishing fresh bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with one surety in, the like amount to the satisfaction of the learned trial Court.
10. Before parting with this order, it is important to note that during hearing of this bail petition on perusal of the laboratory testing report it was noted with grave concern that the same lacked standard specifications and thus failed to furnish a comparative analysis of the result with the standard specifications. Therefore, vide order dated 17-5-2012 Chairman, Oil and Gas Regulatory Authority (OGRA) was directed to look into the matter and submit his report. Today Mr. Zainul Abidin, Executive Director of OGRA in attendance A has furnished a statement on behalf of the Chairman OGRA, which is reproduced as under:--
(a) Rule 34-A of the above Rules, empowers the District Coordination Officers to make any such examination/inquiry, as he considers necessary for ensuring that provisions of the rules are being fully observed by the petrol pumps.
(b) Whereas rule 37-38 of the Rules specify/define a complete procedure for sampling and testing of the petroleum products, which is required to be followed while undertaking such activity.
(c) Under the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 the specification for High Speed Diesel has been specified/notified in consultation with all the stake holders including Hydro Carbon Development Institute of Pakistan.
(d) The product at any petrol pump must conform to the each parameter defined in the above mentioned specifications."
' He has further submitted that the above quoted rules provide complete specifications and procedure on the subject.
11. When confronted with the Laboratory Testing Report dated 28-2-2012, the Executive Director Oil in attendance however conceded that the Laboratory Report lacking standard specifications fails to furnish comparative analysis of the results of the sample and therefore it will be difficult for the courts to appreciate such like reports as an incriminating material against the accused.
12. In the attending circumstances, Chairman (OGRA) is directed to issue necessary instructions to all such laboratories working under the administrative control of OGRA to furnish standard specifications of a product as well for comparative analysis of the results of the samples against each and every component/ingredient of the product, in such reports, to avoid any anomalous situation in future. A copy of this order shall be sent to the Chairman OGRA forthwith who shall acknowledge the receipt to the Deputy Registrar (Judicial) of this Court within seven days.