SH. IJAZ NISAR, J.---Nasir Khan son of Qadir Khan petitioner seeks bail in case F.I.R. No.218 dated 5- 6-1995 registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 9-B of Control of Narcotic Substances Ordinance, 1995 at Police Station Ganj Mandi, Rawalpindi.
2. The prosecution case is that Mehmood Akhtar, A.S.I., C.I.A Staff, Rawalpindi on receipt of a secret information raided the house of the petitioner and recovered 185 grams of heroin from his person.
On his further disclosure 440 grams of opium and 110 grams of Charas were also recovered from a room of his house.
3. Out of 185 grams of the allegedly recovered heroin 20 grams was sent to the Chemical Examiner, likewise, 50 grams each of Charas and opium was sent for chemical examination.
4. Bail for Nasir Khan petitioner is urged on the grounds that the case is based on false allegations and the offence under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 not having been committed at a public place was non-cognizable and the police officer was under an obligation to obtain orders of a Magistrate before entering upon the investigation. Furthermore, no respectable inhabitant of the locality was associated to witness the search.
5. The competency of Mehmood Akhtar, A.S.L, C.I.A. Staff, Rawalpindi to search, arrest and investigate the case under the Control of Narcotic Substances Ordinance, 1995 is also challenged.
6. Section 19 of the Control of Narcotic Substances Ordinance, 1995 does not empower any police official below the rank of Sub-Inspector of Police to enter, search, seize and arrest without warrant/any person for an offence under the said Ordinance. But in the present case, the search, seizure and arrest had been made by Mehmood Akhtar who was an A. S. 4. Of C. I. A. Staff. There is yet another legal flaw in the investigation conducted by an officer of the C.I.A. Staff. It was held by a Division Bench of Lahore High Court, Lahore in Iftikhar Ahmad Dani v. The State (PLD 1995 Lah. 606) that members of the C.I.A. Staff, irrespective of their rank and status cannot investigate cases unless Superintendent of Police of the District entrusts the investigation to them which was not done in this case as there is no material to show that Mehmood Akhtar A.S.I., C.I.A. Staff had been so authorised by the Superintendent of Police.
7. All the recovery witnesses who attested the alleged recovery were either officials of the Excise or the Police Department.
8. Non-association of respectable inhabitants of the locality in the search and recovery is another important aspect which cannot be ignored in the absence of any special reasons therefor.
9. Furthermore, sending an insignificant quantity of the narcotics alleged to be recovered also appears to be unjustified. Only 20 grams of heroin out of the total quantity of 185 grams of the allegedly recovered heroin was sent to the Chemical Examiner.
10. Since the quantity of narcotics and intoxicants determines the forum and quantum of sentence under various laws and there is no quantity of sample fixed under the law to be supplied for analysis to the Public Analyst as is fixed by Rule 46 of the West Pakistan Pure Food Rules, 1965, it would be appropriate that the Seizing Authorities retain 1/3rd quantity of the narcotics/intoxicants allegedly recovered with them and send rest of the 2/3rd to the Public Analyst for test and examination for determination of the proper forum for trial and the quantum of sentence that may be awarded to the accused if found guilty of the 11 offence under various laws on the subject.
10. Keeping in view the fact that the investigation was not conducted by a duly authorised officer and that the person of the petitioner is no longer required for the purpose of investigation, we admit him to bail in the sum of Rs.1,00,000 (one lac) with two sureties in the like amount to the satisfaction of the learned Trial Court.