1. Jehan Zaib Rahim Khan, J.--This appeal is directed against the judgment dated 10.5.2005 passed by learned Judge, Special Court (CNS), Peshawar Camp Abbottabad whereby appellant, Fida Muhammad son of Ghulam Haider was convicted under Section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced to ten years rigorous imprisonment alongwith a fine of Rs, 1,00,000/- (one lac) or in default thereof he shall have to suffer six months simple imprisonment.
2. The appellant was held entitled for the benefit of Section 382-B Cr.P.C.
3. Brief facts of the case are that Captain Naeemullah Khan, Incharge police station ANF, Haripur received spy information that the appellant, who is dealing in narcotics business, had received huge quantity of narcotics in his house and he could shift the narcotics at any time to some unknown place. Consequent upon the direction of incharge police station, the complainant, Sardar Abdul Waheed, Inspector ANF along with other ANF officials, raided the house of appellant and apprehended him from the house. He, on his personal search, recovered some pieces of charas from his side pocket and, on his pointation, recovered nine (9) packets of charas wrapped in a plastic bag and some pieces of more charas concealed in a pot lying in a room. He weighed the entire seized charas on the spot and found the pieces of charas recovered from the pocket and the pot to be one kilogram and the charas in each packet without plastic bag one kilogram and their total came to ten kilograms. He separated samples of five grams from each nine packets and five grams from the pieces of charas and sealed into ten parcels for chemical analysis while remaining charas was sealed into separate parcels. He prepared the recovery memo in the presence of marginal witnesses on the spot. He arrested the appellant, drafted the murasila and sent to the police station for the registration of FIR. Accordingly, a formal FIR No, 3 dated 2.6.2001 was registered against the appellant under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station ANF, Haripur. He prepared the site-plan, recorded statements of PWs including the appellant and left the spot for the police station, where he handed over the parcels of the seized charas to the muharrir along with the application for sending the sample to the FSL for chemical analysis. The appellant disclosed the name of co-accused, Chan Muhammad and Ahmed Zaman.
4. He searched the co-accused but were not traceable. He obtained warrants under Section 204, Cr.P.C. against them and ultimately they were arrested and made accused in the case.
5. The appellant, on completion of investigation, was challaned to the Court for trial. The copies of the relevant documents as required under Section 265-C, Cr.P.C. were supplied to the appellant. The charge was accordingly framed against the appellant to which he pleaded not guilty and claimed trial.
6. The prosecution, in order to prove the charge and substantiate the allegations levelled against the appellant, produced five (5) witnesses at the trial. Arbab Ghias, Inspector ANF (PW-1) submitted complete challan against the appellant in the Special Court. Gul Muhammad FC, ANF (PW-2) took the murasila from the spot the police station and handed over to muharrir for registration of FIR.
7. Sardar Abdul Waheed, Inspector ANF (PW-3) conducted the investigation; prepared the site plan, Ex. PB; recovery memo, Ex. PC; drafted the murasila, Ex. PA/1; handed over the samples to muharrir with application, Ex. PF, who sent the same to the FSL for chemical analysis through road certificate, Ex. PG and received its result in positive, Ex. PH; recorded the statements of PWs and that of appellant; obtained warrantes under Section 204, Cr.P.C. read with Section 20, CNSA against the acquitted co-accused, Chan Muhammad and Ahmed Sher, Ex. PI; obtained permission from the Special Judge for destruction of seized charas, Ex. PJ; Muhammad Asif Khan, Judicial Magistrate, who separated sample of 50 grams from the seized charas before its destruction vide sample certificate, Ex. PK, sample of the case property, Ex. P.1 and destruction certificate, Ex. PL. Zubair Shah, FC (PW-4) was eyewitness as well as marginal witness of the recovery memo, Ex. PC. Mukhtiar Afzal, Muharrir (PW-5) on receipt of murasila registered the FIR, Ex. PA.
8. The appellant, on the conclusion of the prosecution evidence, was examined under Section 342, Cr.P.C. He, in his statement denied the charge, pleaded innocence and stated that he was arrested in a hotel of Akbar Khan and was involved in the present case due to his quarrel with the ANF officials some days prior to the occurrence. He did not opt to appear himself as his own witness in terms of Section 340(2), Cr.P.C. but led evidence of four defence witnesses, two of them had testified that appellant at the time of raid was on the road while other two deposed that he was sitting in the hotel of Akbar Khan, when white colour jeep appeared on the scene, narcotics staff alighted from it, searched the appellant and took him along despite the fact that nothing was recovered from his possession. Three of the DWs in support of their statements also submitted affidavits, Ex. DW-1, Ex. DW-2 and Ex. DW-3, Muhammad Asif Khan, Judicial Magistrate was examined as CW-1 and verified the issuance of sample certificate, Ex. PK and destruction certificate, Ex. PL. The appellant, after the statement of Judicial Magistrate was re-examined under Section 342, Cr.P.C. but did not opt to lead further evidence or appear himself as his own witness.
9. The learned Special Judge/trial Court, after hearing the parties and appraising the evidence, convicted and sentenced the appellant in terms above stated. Feeling dissatisfied with the judgment of conviction and sentence, the appellant has come to this Court in the instant appeal.
10. We have heard the learned counsel for the appellant, learned counsel for the ANF, the learned counsel for the State and have gone through the record with their able assistance.
11. The learned counsel for the appellant contended that despite spy information, warrant under Section 20 of the CNSA was not obtained from the Court before raiding the appellant's house; notice was not issued to the appellant before the destruction of contraband charas; seized charas was destroyed on the order of Magistrate and not on the direction of Special Judge (CNS); destruction certificate was not placed on file and independent witnesses although were available at the scene of occurrence yet they were not associated with the investigation to have witnessed the recovery and seizure etc. On the other hand, the learned counsel for the State submitted that huge quantity of narcotics was recovered from the possession of appellant, the sample from the seized substance was found to be charas by the FSL, the appellant was arrested red-handed with narcotics from the house in question and the prosecution has proved its case beyond all reasonable doubt.
12. No doubt the ANF, before raiding the appellant's house, had not obtained search warrant from the competent Court. The reasons for not obtaining the search warrant has been provided by the raiding officer (PW-3) in the murasila as well as in his deposition in Court and had stated that the appellant would have shifted the narcotics at any time to some other unknown place where it would become difficult for him to recover the narcotics and further the paucity of time required him to take prompt action, therefore, he could not approach to the competent Court to have obtained the search warrant. Besides, the senior officer of ANF, who received the spy information, was also accompanied him, therefore, there was hardly any possibility to have falsely involved him or have violate the fundamental rights of the appellant. In the circumstances, it was not possible for him to have obtained the search warrant from the Court before the raid at the cost of narcotics, which was to be removed from the house.
13. We have considered the contention of the learned counsel but found not sustainable in view because of recent judgments of the Hon'ble Supreme Court wherein Sections 20, 21 & 22 of the CNSA were declared directory and its non-compliance would not be a ground for holding the trial/conviction bad in the eye of law. It would merely be an irregularity curable under Section 537, Cr.P.C. The Hon'ble Supreme Court in Fida Jan v. State, (2001 SCM R 36) had observed; "We have considered the implication of Section 20 of the Act. It appears that the law-givers have couched this section of law in such manner that it does not place a mandatory obligation upon the Investigating Agency to obtain search warrants from the Special Judge before conducting a raid.
14. However, we may mention here that all parts of a statute are required to be enforced in letter and spirit and no plea can be entertained that a particular part of a statute is redundant. But from the language employed in a statute it can be gathered whether it is mandatory or directory in its nature. We have noticed that in Section 20 of the Act word "may" has been used with reference to obtaining search warrants by the agency who intended to effect search of a house, place, premises or conveyance etc. It is also known principle of interpretation of statutes that word "may" sometimes can be used as "shall". But perusal of Section 20 of the Act suggests that law has not prescribed consequences of conducted search without obtaining the warrants from Special Court.
15. Thus, we are of the opinion that in is directory in nature, therefore, depending upon facts and circumstances of each case if the Investigating Agency has not obtained search warrants from Special Judge before conducting raid in a house for the recovery of narcotics, this reason alone would not be sufficient to vitiate the trial. This argument can be strengthened by an added reason as well the apparently no prejudice has been caused to petitioner as is evident from the record of the case, by conducting raid at his home, by the CIA Staff in pursuance whereof huge quantity of charas was recovered". "It may be noted that in cases of narcotics the law enforcing agencies have to keep certain information secret till the last hours relating to the recovery after conducting raid at a particular place. Because if such precautionary measures are not adopted and secret information about concealing or running business of narcotics etc, are allowed to spread out, there would be a raid but without success as in the meanwhile accused persons shall manage to shift the drugs to some other place. Thus we are inclined to hold that provisions of Section 20 are directory in nature, therefore, its non-compliance cannot be considered a strong ground for holding that the trial of the accused is bad in the eye of law." Similarly, the Hon'ble Supreme Court in Muhammad Hanif vs. State; 2003 SCM R 1237 had held; "We are not persuaded to agree with learned Advocate Supreme Court on behalf of petitioner that since the raid was conducted an investigation made by an unauthorized police officer in violation of the mandatory provisions as contained in Sections 21 and 22 of the Control of Narcotic Substances Act, 1997 the whole trial has vitiated for the simple reason that arrest, seizer and investigation by an incompetent police officer would not vitiate the trial and at the best such an irregularity can be cured under Section 537, Cr.P.C. as it has caused no prejudice to the petitioner.
16. In this regard we are fortified by the dictum laid down in State v. Bashir; PLD 1997 SC 408. A similar proposition was examined in case Shivbhat v. Emperor; AIR 1928 Bombay 162 wherein it was held that a conviction or acquittal does not depend upon the question what particular officer actually conducts the investigation which results in his trial. That is determined mainly by the evidence that is given at the trial and considered; and the question whether that evidence has, in the first place, been elicited by an Inspector or by a Sub-Inspector is of very minor importance and does not really affect the result of a trial, except to this extent that the theory is that the higher the rank of the police officer investigating, the more careful and unimpeachable his enquiry is likely to be.
17. Therefore, an irregularity occasioned by a Sub-Inspector investigating into an offence, while investigation should have been made by an Inspector is curable by Section 537. It is worth- mentioning that raid was conducted as result of tip-off by Said Khan (A.S.I./complainant) when he was patrolling at the railway station and it was not possible for him to have completed the time consuming formalities at the cost of the disappearance of the petitioner".
18. Further, the Hon'ble Supreme Court in State v. Hemjoo; 2003 SCM R 881 had further held that; An officer not below the rank of Sub-Inspector, Police, or equivalent authorized in this behalf by the Federal Government or Provincial Government in exercise of his power under Section 21 of the Control of Narcotic Substances Act, 1997, if is satisfied that a warrant of arrest as 'provided under Section 20 of the Act cannot be obtained, can enter into the premises without a search warrant and make search on the basis of personal knowledge or on receipt of information of commission of an offence mentioned in the above Act, by any person. In the present case, the Excise Inspector on receipt of information, went to the house of respondent and made his personal search and then by making house search, recovered Charas from the bed room of the house, without satisfying the requirement of Section 21 ibid. The combined study of Sections 20 and 21 of the Control of Narcotic Substances Act, 1997 would show that only in exceptional cases in which the search warrant cannot possibly be obtained before conducting the raid, an officer authorized in his behalf can proceed for conduct of raid without the warrant but this power cannot be allowed to be used in every case in the normal circumstances. The Excise Inspector on the information proceeded to conduct the raid and could conveniently obtain the search warrant from the Court of Special Judge but he having felt no necessity of such warrant, transgressed the authority of law which would make the search of house illegal".
19. The cases of Fida Jan and Muhammad Hanif (supra) were appeal against convictions whereas the case of Hemjoo (supra) was appeal against acquittal, where the August Supreme Court did not interfere with the acquittal as the judgment was not shown to have been caused gross miscarriage of justice or was perverse or the reason given for acquittal were wholly artificial, shocking and ridiculous, and had ruled that only in exceptional cases the authorized officer could proceed for the conduct of raid without warrant but this power could not be used in normal circumstances. The Hon'ble Supreme Court in view of provisions of Section 21 ibid had rightly observed that in exceptional circumstances the provisions were declared directory but in normal circumstances the same were held mandatory. To gauge circumstances, whether normal and exceptional, the provisions of Section 21 ibid and the above ruling had left the matter to the subjective decision of the raiding officer. The above interpretation of law would show that the provisions relating to entry, search, seizure and arrest under the CNSA are directory in nature and its non-compliance would never be a ground for vitiating trial/conviction.
20. The learned counsel next contended that neither the case property was produced in Court nor destruction certificate was placed on file nor the question regarding destruction of case property was put to the appellant during his examination. The contentions of the learned counsel have no substance at all and thus repelled. The ANF sought permission from the Special Court (CNS) for the destruction of seized charas. The permission was accordingly granted and Judicial Magistrate was appointed by the Special Court to prepare the sample from the seized charas and supervise the destruction in accordance with the procedure laid down in second proviso to Section 516-A, Cr.P.C, which is reproduced as under; "Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf."
21. Under the above proviso, the Special Judge, on the application of the ANF, Ex. PJ for the destruction of accumulated seized narcotics in various cases, deputed Muhammad Asif Khan, Judicial Magistrate of their disposal. The learned Judge on 16.6.2001 separated sample of 50 grams from the seized charas, sealed the remaining 9 kgs & 950 grams in a parcel, Ex. PK and handed over the same to the Incharge police station ANF, Haripur. The same learned Judge was appointed to supervise the destruction of seized narcotics and under his supervision, the remaining seize charas (9 kgs & 950 grams) was destroyed on 2.11.2001 as per destruction certificate, Ex. PL. The sample of 50 grams from the destroyed charas was exhibited in Court, Ex. P-I of Ex. PC, which was accepted by the defence without objection. During appellant's examination under Section 342 Cr.P.C, the specific Question No, 5 was put to him for his explanation regarding destruction of seized charas and the appellant's reply was that CW-1 was not competent to take the sample and issue the certificate and neither the appellant was given any notice nor any independent witness had witnessed the taking of sample by the competent Court under Section 516-A, Cr.P.C. The learned counsel for the appellant did not dispute the compliance of proviso to Section 516-A; Cr.P.C. or destruction of case property but only objected that the destruction certificate was not placed on file, the CW-1 was not competent to take sample, before destruction of seized narcotics, the appellant should have been put on notice and destruction should have been witnessed by independent witnesses. The destruction certificate was produced, exhibited and accepted by the defence in evidence with objection that the same was neither placed on record with the challan nor supplied to the appellant under Section 265-C, Cr.P.C. but raised no objection as to its validity or genuineness. This Court in Wajid Ali Shah v. State 2002 M LD 1982, where even the destruction certificate of charas and opium was not produced in Court, had held that non-production of destruction certificate at the trial had not prejudice the case of the accused in any manner, which at the most could be considered as an irregularity curable under Section 537, Cr.P.C. and would not affect the factum of recovery from the possession of the appellants and its prove at the trial". The Judicial Magistrate was nominated by the Special Judge to take the sample and supervise the destruction of seized charas vide Ex. PK and he in compliance of the order had acted accordingly.
22. In Naseer Ahmad v. State; 2004 SCM R 1361 where the investigating officer during the trial had submitted application under Section 561, Cr.P.C. for destruction of narcotics substances, which was allowed by the Magistrate, the destruction certificate was also issued by the Magistrate and the Hon'ble Supreme Court had observed that the petitioner did not raise objection for the destruction of narcotics under the valid order of the Court."
23. The proviso to Section 561-A ibid has not visualized hearing of accused before taking the sample and destroying the seized narcotics. The law has provided provisions of hearing to the accused at every stage of the trial, particularly when the accused, after the conclusion of prosecution evidence, is examined in Court and opportunity is provided to him to explain his position regarding each and every piece of evidence brought on record by the prosecution which is to be used against him for the purpose of conviction. The notice of hearing otherwise is not required to be served, where the proceeding does not relate to any proprietary right unless the appellant claims that he had a right, legal or otherwise to possess narcotics and the narcotics seized from his possession cannot be destroyed without notice, which was not his case before the trial Court. The appellant was heard throughout during investigation, at the time of trial and before his conviction.
24. The only pre-requisite, before the destruction of seized narcotics, is to obtain/prepare the sample from the seized narcotics representing the whole case property under the supervision of Court and issue certificate for its destruction, which in the appellant's case, had been complied with. The property was under the control of the Special Judge and no objection whatever at the time of passing of the order under the proviso till the destruction of property on 2.11.2001 was filed that the substance so recovered from the possession of appellant was not contraband narcotic. No objection was raised at the trial and even before this Court that the substance so recovered was not contraband narcotic as the sample obtained/prepared representing the destroyed seized charas was available before the Court See; Ali Ahmad v. State; 2003 SCM R 54. In the absence of objection, the act of the Court would not prejudice the appellant. The destruction of seized narcotics was witnessed by the Magistrate and the high official of the ANF. They are independent witnesses having no ill will against the appellant to depose falsely him.
25. The learned counsel next contended that as per statement of Sardar Abdul Waheed (PW-3) independent witnesses were available at the scene of occurrence but they were not associated with the investigation to have witnessed the proceedings of search, recovery and seizure. No doubt, the place of occurrence as per PW-3 was situated in abadi and there were houses around and the private witnesses were easily available at the relevant time when the raid was conducted. The contention of the learned counsel could be relevant withreference to the general law contained in Section 103, Cr.P.C. but could not under the special law (CNSA) where Section 25 of the CNSA has expressly excluded the application of Section 103, ibid to the cases registered under the CNSA, Fida Jan v. State (2001 SCM R 36). The Courts have repeatedly held that the police officials, being public servants, are good witnesses as any other private witnesses unless it is proved that they had personal grudge against the appellant. The Hon'ble Supreme Court in Muhammad Hanif v. State 2003 SCM R 1237 had reiterated the rule and had observed that "the contention concerning violation of Section 103, Cr.P.C. seems to the fallacious when remained in the light of provision as contained in Section 25 of the Act, which provides exclusion of Section 103, Cr.P.C. Even otherwise the reluctance of general public to become witness in suchlike cases has by now become a judicially recognized fact and there is no option left but to consider the statement of an official witness as no legal bar has been imposed in this regard. If any authority is needed reference can be made to Hayat Bibi v. Muhammad Khan (1976 SCM R 128), Yaqoob Shah u. State (PLD 1976 SC 53). The police officials are equally good witnesses and could be relied if their testimony remains unshattered during cross-examination. In this regard reference can be made to Muhammad Naeem v. State (1992 SCM R 1617), Muhammad v. State (PLD 1981 SC 635." Similarly, the rule was again pressed by the Hon'ble Supreme Court in Riaz Ahmad v. State (supra) and observed that "nothing had been brought on record that any of the witness was having any malice against the accused. The police officials were as good witnesses as private persons of the society. The testimony of the prosecution cannot be thrown over board simply on the ground that it has come from the police official". This contention of the learned counsel in view of the above could not prevail, as there is no evidence on the record to substantiate the allegations of appellant that PWs had enmity with him or had any malice towards him and due to that malice he was falsely implicated in the case and the real culprit was left free.
26. We have observed that the learned trial Court had found that sample of 5 grams was not taken from all the small pieces of seized charas recovered from the pocket and the pot and the substance in pieces so recovered for lack of evidence was not proved to be charas. The trial Court had accepted the FSL report only to the extent of sample of 5 grams and convicted the appellant for possessing contraband charas weighing 9 kgs and 5 grams only. We are afraid the finding of the trial Court is the result of misreading of evidence and misconception of law. The murasila, FIR and the depositions of Sardar Abdul Wahid (PW-3) and Zubair Shah (PW-4) would show that the sample of 5 grams was taken from the pieces of charas recovered from the pocket and the pot for chemical analysis. The PW-3 had deposed that "However I mixed all the pieces and sent for chemical analysis. Similarly, PW-4, a formal witness had deposed that "Investigating Officer took into possession 5 grams from each pieces". Even otherwise where the sample was taken from one piece out of many, the same in the presence of confidence inspiring evidence of the PWs is not considered fatal. In Nadir Khan v. State 1988 SCM R 1899, where the contentions before the Hon'ble Supreme Court was that samples were not taken from each of the 49 bags of heroin recovered from a vehicle nor was there any evidence to connect the samples taken with the report of the Chemical Examiner because the official who took it to the Chemical Examiner had not been examined and even the report of the Chemical Examiner gives no reason etc. The Hon'ble Court had ruled "it was not necessary to take samples from everyone of the packets and the required evidence has been produced to connect the report with the sample notwithstanding the omission to produce the carrier of the sample. Similarly, in Ali Muhammad v. State 2003 SCM R 54, where out of 20 slabs of charas one slab was sent to FSL for chemical analysis and the contention of the learned counsel was that only one cake/slab was sent to chemical examiner for examination and, therefore, the prosecution had failed to prove that it was narcotics substance. The Hon'ble Supreme Court, while repelling the contention, had held that the appellant defence at the trial was that the contraband was not recovered from his possession and it was not his plea that the substance so recovered was not a charas. He had not even suggested to the PWs that the substances so recovered was not charas or contraband and, therefore, it could not be said that the prosecution has failed to prove that the substance so recovered was not charas or narcotic substance in view of FSL report. However, the Hon'ble Supreme Court in Muhammad Hashim vs. State; PLD 2004 SC 856 had observed that when there is no evidence on the record to show that the substance recovered was narcotic then the presumption could be that the substance so recovered is not narcotic. In this case, the record and recovery memo showed that four grams of charas was taken as sample out of total of 288 rods and nothing was available on record to show whether the sample was taken out from each rod to ascertain that 288 rods were that of charas.
27. The Hon'ble Court had further observed that so far as the remaining rods were concerned, in absence of any sample taken out from them, it would not be possible to hold that they were the rods of charas or otherwise. In the present case sufficient evidence is available on record that the sample was taken from all the pieces of seized substance and the same were found charas by the FSL and, in the absence of any objection/suggestion duly substantiated by evidence that the substance so recovered was not charas, the trial Court on its own could not discard the evidence of the prosecution. Therefore, the above findings of the trial Court to this extent is set aside and the appellant is deemed convicted for possessing charas weighing 10-kgs.
28. For the foregoing reasons, we are of the view that the prosecution had proved the guilt of appellant beyond all reasonable doubt and had successfully discharged its burden through consistent and confidence inspiring evidence. It was for the appellant to have shown, of course on the balance of probabilities, that the charas was not recovered from his possession or the substance so recovered was not charas but some other commodity. It was his statutory burden under Section 29 of the CNSA to have discharged through cogent evidence in order to prove him innocent. The appellant had only denied the charge, pleaded innocence and had stated that the was arrested in a hotel of Akbar Khan and was involved in the present case due to his quarrel with the ANF officials. The evidence led by him in support of his innocence was not sufficient to prove him innocent. We are unable to understand why the appellant was falsely involved in the above case particularly in an incident where high government officials, while acting on spy information, were performing official duties having no animosity with appellant and he was not previously known to them. Their simple denial and allegations against the ANF officials of false involvement is not enough to exonerate him from the charge and discharge him from his statutory burden.
29. Consequently, this appeal having no merit is hereby dismissed. The conviction and sentence of appellants are upheld and maintained. The benefit under Section 382-B, Cr.P.C. shall remain intact.