'SARMAD JALAL OSMANY, J.--- This appeal impugns the judgment passed by the learned Special Judge-II (C.N.S.), Karachi whereby the appellant was convicted for an offence under section 6 punishable under section 9-B of the Control of Narcotic Substances Act, 1997 and accordingly sentenced to undergo three years' R.I. And pay a fine of Rs,30,000 in default of which he was to suffer R.I. For four more months. The benefit of section 382-B, Cr.P.C. Was allowed to him.
2. The brief facts of the matter per the F.I.R. Are that the complainant S.-I. Ghulam Mustafa along with H.C. Shah Faisal, P.C. Muhammad Aslam, P.C. Sharafat Hussain and P.C. Nazeer Ahmed while on patrol duty on the day of incident, received spy information that one person by name Abu Bakar son of Muhammad Shah (appellant) was present near a Mazaar in Pir Abad Colony, Karachi and was selling Charas. Accordingly, the appellant was apprehended by the police party and 15 rods of Charas were recovered from his shirt pocket which weighed 150 grams. Out of this, one rod weighing 10 grams was separated for chemical examination and remaining case property sealed at the spot whereafter the F.I.R. Was lodged at the police station.
3. After usual investigation etc. The challan was submitted before the learned Special Court (C.N.S.), Karachi Division, and then the case was transferred to the learned trial Court, viz. Special Court No,II, (C.N.S.), and Karachi when the same was created. The charge was framed against the accused in terms of the F.I.R. Etc., to which he pleaded not guilty and claimed his trial.
4. The prosecution in order 'to prove its case against the accused examined S.-I. Ghulam Mustafa, who produced the memo, of arrest and recovery as Exh.4A and F.I.R. As Exh.4B, A.S.-I. Shah Faisal (the then H.C.) and S.-I. Dileep Kumar (Investigating Officer) who produced the chemical report as Exh.8A. P.Ws. P.C. Muhammad Aslam and P.C. Nazeer Ahmed were given up. Thereafter the prosecution closed its side.
5. The statement of the appellant/accused was recorded under section 342, Cr.P.C. Wherein he denied the allegations against him as false and stated that he had been malafidely implicated in the case due to enmity and as he refused to pay the bribe demanded by the police authorities. He expressed his willingness to be examined on oath but did not want to examine any other witness in his defence.
6. After having heard the learned counsel for the appellant and the learned D.D.A., the learned A.N.F.
Court came to the conclusion that the prosecution had succeeded in proving its case against the appellant. Consequently he was convicted and sentenced as mentioned above vide the impugned judgment.
7. In support of the appeal Mr. M. Qadir Khan has firstly submitted that private witnesses were not associated with the recovery although admittedly the same was made in a thickly populated area at 1800 hours. Next learned counsel has submitted that per section 21 of the C.N.S., Act only an officer of the rank of Sub-Inspector and above can cause the arrest of the accused in a narcotics case. Hence, as the arresting officer/complainant in the present case is an Assistant Sub-Inspector, the arrest and detention of the appellant was unlawful. In this regard, he relied upon State v.
Hemjoo 2003 SCM R 881 and Khan Muhammad v. The State PLD 2004 Kar.
681.
8. Next, per learned counsel according to the dictum of the Honourable Supreme Court laid down in the case of Muhammad Hashim v. The State PLD 2004 SC 856, Charas from each rod should have been sent for chemical analysis which has not been done in the present case. In this regard he has also relied upon the case of Shahmore v. The State PLD 2003 Kar.
230. Finally, per learned counsel there is a delay in sending the sample of the Charas in question for Chemical Examination which has not been explained at all by the prosecution. In this connection, per learned counsel the date given in the Chemical Examiner's Report of receiving the sample is 8- 5-2002 whereas the incident per the F.I.R. Took place on 22-4-2002. In support of this contention, he relied upon Sarwar Jan v. The St ate 2004 PCr.LJ 1224.
9. For all the foregoing reasons, learned counsel has prayed that giving the appellant the benefit of doubt, the impugned judgment be set aside and the . In this respect he has relied upon Tariq Pervez v. State 1995 SCM R 1345 and Mian Muhammad Arshad v. The State 2003 PCr.LJ 865.
10. On the other hand, Mr. Habib Ahmed, learned A.A.-G. Has submitted that insofar as the issue of private witnesses are concerned, the Honourable Supreme Court in the case of Muhammad Hanif v. The State 2003 SCM R 1237 has held that section 29 of the C.N.S. Act excludes the provisions of section 103, Cr.P.C. Secondly, as to the argument that a sample from each rod of Charas should have been sent for chemical examination, learned A.A.-G. Has submitted that the same is fallacious in view of Ali Muhammad v. The State 2003 SCM R 54 wherein it was held that this was not at all necessary. So also in the same case the factum of delay was not considered in view of the other clear cut evidence available against the accused. The learned A.A.-G. Has accordingly prayed that this appeal be dismissed.
11. We have heard both learned counsel as well as learned. A.A.-G. And have gone through the record with their assistance. Our conclusions are as follows.
12. It would be seen that the appellant/accused has not denied his arrest on the day of the incident; however, according to him no narcotic substances was recovered from his person and he was malafidely booked in the present case due to enmity with the complainant and also for the A reason that he refused to pay the police party the demanded money. However, the appellant has failed to substantiate the aforementioned pleas through any cogent evidence except for his bare allegation to the same effect before the learned Special Court and questions put to the contrary to the P.Ws. Who have stead fastly denied the same.
13. Insofar as the prosecution case is concerned, it would be seen that besides the complainant two other P.Ws. (Police Officers) have been examined who have fully corroborated each other. It is a settled principle of law that official witnesses are as good as any unless mala fide intention is established by the accused which as observed above he has failed to accomplish. So also it would be seen that per section 25 of the C.N.S. Act, section 103 of the Cr.P.C. Pertaining to search and seizure have been omitted. Reference in this regard can be made to the case of Muhammad Hanif v. The State (supra) decided by the Honourable Supreme Court. Similarly, it has been held in the said case that where an officer below the rank of A.S.-I. Has arrested anyone under the C.N.S. Act in violation of the provisions of sections 21 and 22 of the C.N.S. Act, this would not vitiate the trial of the accused but was a mere irregularity which was curable under section 537, Cr.P.C. As regards the case of State v. Hemjoo (supra) the issue before the Honourable Supreme Court was whether in the circumstances of the case a warrant of arrest to be obtained under section 21 of the C.N.S. Act, could be dispensed with. The Honourable Supreme Court answered this issue in negative since in the circumstances of the case such warrant could easily have been obtained from the concerned Judge. In the present case, however, the facts would display that the accused was arrested on suspicion at 1800 hours in the evening on routine patrolling by the police party, in which event the complainant could hardly obtain a search warrant. Consequently, in the facts and circumstances of the case we are satisfied that no exception can be taken to the arrest in question.
14. Insofar as the delay in sending of the sample is concerned, it would be seen that admittedly the recovery was made on 27-4-2002 and the sample received by the Laboratory on 8-5-2002.
However, it would be seen that no questions were asked in cross-examination of, the P.Ws. As to whether the case property produced in Court was tampered with etc. Or the sample thereof was not sent to the Chemical Examiner for testing purposes. Consequently we are of the view that mere delay in sending the sample is insignificant in the facts and circumstances of the case. In this regard reference can be made to the case of Muhammad Ali v. The State 2002 PCr.LJ 976 and Gharibullah v. The State 2002 YLR 3822.
15. Insofar as the issue of sending a sample from each rod for the chemical test is concerned, it would be seen that again no question was asked in cross-examination of the Investigating Officer on this point, although he had stated in examination-in-chief that the remaining case property produced in Court was the same which was recovered from the accused. Consequently, in our opinion, this issue has to be resolved in favor of the prosecution. As regards the case of Muhammad Hashim v. The State (supra) wherein the Honourable Supreme Court had held that a sample from each recovered rod had to be sent for chemical examination, it would be seen that previously in the case of Ali Muhammad v. The State (supra) also decided by the Honourable Supreme Court this was not found to be essential since no suggestions were put to the P.Ws. That the remaining case property produced in Court was not the recovered property or had been tampered with. We are of the opinion that the present case is on all fours with that of Ali Muhammad v. The State (supra) since the accused has not disputed at all whether the case property produced in Court was not the same which was recovered from him.
16. For all the foregoing facts and reasons, we would maintain the impugned judgment insofar the conviction is concerned. However, we would reduce the appellant's sentence to that already undergone by him since he is a first time offender and the quantity of the narcotics substance viz. Charas is only 150 grams. He shall be released forthwith if not wanted in any other case. Appeal stand disposed off.
Sentence reduced.