' The petitioner has been challaned in case registered vide F.I.R. No,231/93 on 19-9-1993 under section 420, P.P.C. And under Rule 43/44 of the Petroleum Rules, 1971 at Police Station Khairpur Tamewali on the complaint of Naib-Tehsildar Sub-Division Khairpur Tamewali. The petitioner's application under section 249-A, Cr.P.C. Was dismissed by the A.C./M.I.C., Khairpur Tamewali vide his order, dated 17-4-1994 with a single word "Rejected".
2. It is contended that under Rule 36 of the Pakistan Petroleum (Refining, Blending and Marketing)
Rules, 1971, any officer authorised by the Authority may take sample of a petroleum product. Rule 2(b) defines "Authority" as Director Oil Operations or any officer appointed by the Central Government to exercise such powers. Rule 43-A lays down that "Authority" includes Deputy Commissioner. As such, it is contended that the sample can be taken by any person who is authorised by the Deputy Commissioner of the district but in the instant case, the samples were taken by the Naib-Tehsildar allegedly under the instructions of the Assistant Commissioner who was not authorized by the Deputy Commissioner. Therefore, the action of conducting the raid and taking of samples is illegal and without jurisdiction. Similarly, Rule 38 lays down the procedure of sampling and testing which was grossly violated and no such two separate containers were maintained as laid down in Rule 38 and the samples were not taken into possession in the presence of the petitioner and the petitioner was not allowed to put his seal on the sample as laid down in Rule 38.
3. The record was summoned and it has been perused which does not show that the Deputy Commissioner had authorised any officer to conduct the raid and take the samples from the petitioner's petrol pump. The perusal of the file has also revealed that at the time of bail to the petitioner, Mr. Muhammad Nasim, Sessions Judge, Bahawalpur, obtained report from the Assistant Commissioner, Khairpur Tamewali about his competence to send the NaibTehsildar for obtaining the samples. The bail order shows that the Assistant Commissioner was not able to justify his action in the matter and rather regretted his action in the said report. Reliance has also been placed on the case reported as Liaqat Ali v. The State 1993 MLD 2279.
4. The very act of raiding the premises of the petitioner's petrol pump s and getting samples by Naib-Tehsildar is without lawful authority because the' Naib-Tehsildar was neither an "Authority" under the relevant Rules nor was authorised by the "Authority" to raid the said premises and get the samples. In the circumstances, there is no possibility of petitioner's conviction, even if, the trial of the case is allowed.
5. For the foregoing reasons, this petition is accepted and the proceedings arising out of the F.I.R.
No,231/93, dated 19-9-1993 under section 420, P.P.C. And under Rules 43/44 of the Pakistan Petroleum Rules, 1971 registered at Police Station Khairpur Tamewali pending in the Court of A.C./M.I.C., Khairpur Tamewali are hereby quashed.