1. ' SYED HASAN AZHAR RIZVI, J.---Applicant/accused has approached to this court after rejection of his Bail Application in Special Case No.133 of 2013 by the Special Court-II (C.N.S.). Karachi vide order dated 6-5-2013.
2. ' The brief facts as narrated in the F.I.R. Are that accused Janib Ali Zardari who was Excise Inspector in his car bearing Registration No.ANJ-722 Silver Color Honda Civic brought Charas in huge quantity after affixing government number plate on the said car from interior Sindh to Karachi Jhangvi Road near County Garden. On the pointation of spy said car was stopped and on search police found three plastic bags hidden behind the Bahana Boxes, which were opened and checked at the spot and found 20/20 Kgs three packets of Charas total weighing 60 Kgs. Hence the accused was arrested and instant F.I.R. Was lodged.
3. ' Learned counsel for the applicant contended that the applicant/accused has been falsely implicated by the complainant due to mala fide intention and ulterior motives. Nothing was recovered from the possession of the applicant as alleged in the F.I.R. Applicant is respectable person and serving as Excise Inspector in the Excise Department and due to professional rivalries he has been implicated by the police. Learned counsel for the applicant argued that all the witnesses shown in charge-sheet are police officials. Despite having prior information the police did not arrange private witnesses, which also creates doubt. Learned counsel further contended that the applicant is not remotely connected with the factum of guilt as alleged against him rather he has a brilliant service record in Excise Department and he was never involved in any narcotics case earlier. Learned Counsel for the applicant urged that F.I.R. Was registered on 5-2-2013 by A.S.- I. Imtiaz Ahmed posted at Police Station Mubina Town, District East, Karachi, alleged recovery of 60 Kgs Charas was made on 5-2-2013 but no sample was taken by the police at the time of recovery.
4. The alleged recovered Charas was received at the office of Director Laboratories and Chemical Examiner to the Government of Sindh, Karachi on 12-2-2013 after about seven days of alleged recovery. Nothing has been said by the police that where recovered Charas was kept for seven days and no explanation has been given by the police for sending the recovered Charas after a delay of about seven days to the Chemical Examiner. Learned Counsel for the applicant further contended that sections 21 and 22 of C.N.S. Act, 1997 clearly define that no Officer below the rank of Sub-Inspector can raid, search and arrest any person involved under C.N.S. Act and any action, taken by an officer below the rank of Sub-Inspector, shall make the proceedings null and void. He further argued that according to the own admission of the police on the direction of high-Ups investigation of the case was transferred to SIP Naimat Ali but nothing has been said as to why the high-ups of the police who had prior information did not depute any competent police officer to be present at the time of raid. Learned counsel for the applicant has placed reliance upon PLD 2001 Peshawar 152 (Nasrullah v. The State), 2001 YLR 1847 (Mumtaz Ali v. The State), PLD 2008 Karachi 57 (Abdali Shah v. The State), 2012 MLD 1032 (Rawal v. The State), 2008 YLR 2080 (Jan Muhammad v.
5. The State), 2011 MLD 958 (Muhammad Siraj v. The State), 1999 PCr.LJ 924 (Rafaqat Ali v: The State) and 2004 YLR 1118 (Nawaz v. The State).
6. ' Learned A.P.-G. Vehemently opposed the grant of bail to the applicant and submitted that heavy quantity of 60 Kgs Charas was recovered from the car of the present applicant. Offence comes within prohibitory clause of section 497 Cr.P.C. Therefore, applicant is not entitled for concession of bail as the report received from the office of Chemical Examiner dated 14-2-2013 confirmed that the subject parcels contained charas.
7. ' I have heard Messrs Amir Haider Shah and Rajab Ali Mughairi Advocates for the applicant, Mr. Shehzado Saleem learned and perused the material available on record with their assistance.
8. ' Admittedly F.I.R.- was registered by A.S.-I. Imtiaz Ahmed of SIC, Karachi-East on 5-2-2013. It is evident from the contents of the F.I.R. And statement under section 154 Cr.P.C. Of A.S.-I. Imtiaz Ahmed that F.I.R. Was registered on the direction of the high-ups of the police but no competent police officer as provided under section 21 of the C.N.S. Act was sent/deputed at the time of raid.
9. Memo of arrest and recovery was also prepared by A.S.-I. Imtiaz Ahmed. Recovered charas was also sent to the Chemical Examiner after a delay of about seven days by A.S.-I. Imtiaz Ahmed but no explanation is given by the police for keeping the Charas in their possession for seven days. In the case of Mumtaz Ali v. The State reported in 2001 YLR 1847 it was held that:-- "S.
497. Control of Narcotic Substances Act, S.21---Bail, grant of---F.I.R. Was lodged against the accused by Assistant Sub-Inspector of the Police Station concerned whereas under S. 21 of Control of Narcotic Substances Act, 1997, an officer not below the rank of Sub-Inspector of police or equivalent had been authorized to detain and search the accused who was alleged to have committed an offence punishable under the Act. Bail was granted to the accused in view of such basic legal defect in the entire proceedings. "
10. ' In another case of Abdali Shah v. The State reported in PLD 2008 Karachi 57, it was held that:-- No officer below the rank of Sub-Inspector, according to Ss.21 and 22 of the Control of Narcotic Substances Act, 1997, could raid, search and arrest any person involved under the said Act and any action taken by such officer would make the proceedings null and void. Accused was admitted to bail in circumstances.
11. ' In another case of Jan Muhammad v. The State reported in 2008 YLR 2080, it was held that:-- "Complainant was Assistant Sub-Inspector of police who carried out the search of accused,' recovered the case property and arrested accused whereafter the F.I.R. Was lodged by him.
12. Validity. Under provisions of S.21 of Control of Narcotic Substances Act, 1997, it was pre requisite that an officer not below the rank of Sub-Inspector of police or equivalent authorized in that behalf by the Federal Government or the Provincial Government, should take action regarding the alleged offence Said mandatory provision of law had been violated by the complainant. Case being fit for grant of bail, accused was allowed bail, in circumstances."
13. ' It is also an admitted position that in the present case prior information was received to the police regarding brining the Charas by the present applicant as alleged in the F.I.R. But even then no private witness has been taken by the police at the time of arrest and recovery. In the case of 2012 MLD 1032 (Rawal v. The State), it was held that:-- "No doubt section 25 of Control of Narcotic Substances Act exclude the operation of section 103, Cr.P.C. But in all fairness, when arrest and recovery is being made by the police on prior information, police should have arranged private person from vicinity to act as mashir/witness for arrest and recovery."
14. ' Samples of Charas were not taken and dispatched to the Laboratory for opinion within 72 hours, which is violation of Rule' 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001 when in the present case instant F.I.R. Was registered on 5-2-2013 alleged recovery of 60 Kgs Charas was made on the same day but no any sample was taken by the police at the time of recovery but the recovered Charas was sent to the Chemical Examiner on 12-2-2013 after about seven day's of alleged recovery and no explanation has been given by the police for such delay. In the case of Inayat Ullah versus the State reported in 2006 PCr.LJ 840, it was held that:-- "Report of the Laboratory revealed that samples was received in Laboratory about 15 days after registration of case against accused, whereas according to R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, same was to be sent within 72 hours. Violation of said Rule had made case against accused of further inquiry."
15. ' To simplify the above version Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2009 is reproduced as under:-- "(2) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure. The envelope should be sealed and marked "Secret Drug Samples/Test Memorandum".
16. ' Memo of Arrest and Recovery was prepared at 2130 hours in presence of witnesses PC Sohail Ahmed and PC Yar Muhammad, who both are police officials but names of those recovery witnesses have not been mentioned in the statement recorded under section 154, Cr.P.C. Which was recorded at 2150 hours after about 20 minutes, so also in the F.I.R. Which was registered at 2220 hours after about 50 minutes of the incident, which is a lapse on the part of the prosecution.
17. Such lapse creates reasonable doubt about recovery and the authenticity of mashirnama of recovery become fishy and makes the case of prosecution of further inquiry.
18. ' In view of the above facts and circumstances, I do not find any reasons to keep the present applicant behind bars when sufficient illegalities and irregularities are appearing in the case of the prosecution, which creates doubt in the prosecution story and it is a settled principle that benefit of doubt always goes in favour of the accused, therefore, in my humble the applicant is entitled for grant of bail at this stage.
19. ' Above are the reasons of my short order dated 19-7-2013 whereby the present applicant was granted bail on his furnishing solvent surety in the sum of Rs.500,000 (Rupees Five Lacs only) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
20. ' Observations made hereinabove are of tentative nature and the trial Court shall not be influenced by any such observation.