' IJAZ-UL-HASSAN KHAN, J.--- Through this appeal Iqbal Khan appellant has challenged the judgment, dated 13-3-2004, passed by Additional Sessions Judge, Kohat, whereby the appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer five years' R.I. And a fine of Rs,5,000 or in default to undergo further R.I. For one year. The appellant was also convicted under section 75, P.P.C. And sentenced to one year's R.I. With benefit of section 382-B, Cr.P.C. All the sentences were directed to run concurrently.
2. The prosecution story in brief is, that on receipt of complaints that one Iqbal Khan son of Abdul Manan, resident of Tapi, District Kohat, deals in narcotic business in his village, a raiding party consisting of S.H.O. Rashid Gul, lady constable Mst. Mumtaz Begum and others, was constituted under the command of an A.S.P. The raiding party on 13-3-2004 at 3-20 a.m. Raided the house of the appellant and recovered Charas wrapped in plastic envelopes, from a residential `Kotha' of the house. The Charas consisted of a slab and 40 'Purees'. The Charas was weighed and found 1270 grams. A meagre quantity i,e, four grams each was separated out of the contraband Charas and sent to the Office of F.S.L. Peshawar for analysis. The remaining was sealed into a parcel in the presence of attesting witnesses. The accused was apprehended and a case was registered against him under section 9(c) of Control of Narcotic Substances Act, 1997.
3. After investigation, the case was sent up for trial and the charge was framed, to which the accused did not plead guilty and claimed trial. The prosecution in support of its case produced two witnesses, namely, A.S.-I. Sakhiur Rehman (P.W.1), and S.H.O. Rashid Gul (P.W.2), and abandoned A.S.-I. Shadi Khan and Iftikhar Hussain being unnecessary.
4. In his statement under section 342, Cr.P.C. The accused denied the charge and stated that he was falsely implicated in this case. Further stated that nothing was recovered from him and he was roped in this case on mere suspicion. The accused did not produce any defence, also did not appear as witness as envisaged by section 340(2), Cr.P.C.
5. The learned trial Judge after appraisal of the evidence on record, found the accused guilty of the charges and convicted and sentenced him as noted above.
6. Mr. Hassan Afridi, Advocate for the appellant bitterly criticized the impugned judgment and attempted to argue that the testimony of the P.Ws. Is inconsistent with each other on broad feature of the case pertaining to recovery of narcotics from the appellant's house, thus, the factum of recovery was not proved; that the alleged recovery has not been witnessed by an independent person, rather police officials have been cited as witnesses, which is violative of the minimum safeguard provided by law; that notwithstanding a proper information about the involvement of appellant in sale of narcotics, the Investigating Officer failed to associate any independent witness from the locality and that there is an inordinate delay in sending the sample of F.S.L. For no reason whatsoever. The learned counsel also submitted that no search -"warrant was obtained and failure to conduct search in compliance with the provisions of section 21 of the C.N.S.A., entitles the appellant for acquittal. To substantiate the contentions, reliance was placed on State through A.-G.
Sindh Karachi, v. Mahmood 2003 SCMR 881; Allah Wasayo v. The State 1999 PCr.LJ 1033 (Karachi); Zar Gul v. The State 2003 PCr.LJ 1392 (Peshawar); Jameel Khan v. The State 2003 PCr.LJ 1139 (Peshawar); Nasrullah v. The State PLD 2001 Pesh. 152; Farid Gul v. The State 2002 PCr.LJ 1810 (Peshawar); Shahmore v. The State PLD 2003 Kar. 230; Johar Ali and another v. The State 2003 PCr.LJ 680 (Peshawar) and Muhammad Tariq v. The State 2003 PCr.LJ 248 (Lahore).
7. Mr. Akhtar Naveed, learned Deputy Advocate-General for the State, on the contrary, supported the impugned judgment and the ensuing conviction and sentence on the ground that the Charas was recovered from the house of the appellant during raid proceedings and in absence of any enmity, the official witnesses can be relied upon in the same manner as a public witness can be.
He urged that the minor discrepancies in the statements of the witnesses cannot act upon the truthfulness of recovery from the appellant. He further submitted that the delay in sending the sample to the Laboratory can also not be fatal to the prosecution case, as the report received from the Laboratory was in positive and the seals impressed on the parcels were found intact when the same was received in the Laboratory.
8. We have minutely considered the arguments of learned counsel for the parties in the light of the material on record and the case-law cited at the bar.
9. It is evident from the record that pursuant to reliable information that appellant deals in narcotic business in his village, a raiding party was constituted under the supervision of an A.S.P. The house of the appellant was raided on 13-3-2004 and huge quantity of Charas weighing 1270 grains was recovered from a residential `Kotha' of the house. A meagre quantity was separated out of the recovered material and sent to the Chemical Examiner, Peshawar for analysis, whose report is in positive. The remaining was sealed into a parcel, prepared in the presence of attesting witnesses.
The prosecution in order to establish its case has produced two witnesses. Defence could not prove as to why police would involve the appellant falsely, especially when none of the raiding party had any enmity against him. It is beyond comprehension that a huge quantity of Charas weighing 1270 grams will be planted by the police in this case. Prosecution witnesses are consistent regarding the time, place of occurrence and recovery of contraband Charas in the manner in which it has been effected. The discrepancies pointed out by the learned appellant's counsel are minor in nature and insignificant.
10. The submission of learned counsel for the appellants that only a small quantity of the substance allegedly recovered from the appellants had been sent for chemical analysis and it is only that quantity which can be considered against the appellants and not the remaining substance which was never sent for chemical analysis, is equally without force. The provisions of sections 35 and 36 of the Control of Narcotic Substances Act, 1997 do not specify any particular quantity of the recovered substance to be sent as a sample for general analysis. Even otherwise section 29 of the Act requires a presumption to be raised in such a case regarding the allegation leveled against an accused person to be true in its entirety and it is for the accused person to rebut such an allegation. Fida Jan v. The State 2001 SCMR 36.
11. Learned counsel for the appellant has also submitted that the samples separated from the seized Charas were sent after three months and sixteen days delay of seizure, and in the process sufficient time had consumed and in view of rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 the samples dispatched for analysis beyond seventy-two (72) hours and the report received is Illegal and rendered the seizure invalid in the eye of law. The submission of the learned counsel does not carry weight. These Rules have placed no bar on the Investigating Officer to send the samples beyond seventy-two hours of the seizure, receive the F.S.L.
Report after fifteen days and the report so received to place before the trial Court. The very language employed in the Rules and the effects of its breach provided therein have B made the Rules directory and not mandatory. These Rules cannot control the substantive provisions of the C.N.S.A. And to be applied in such a manner that its operation shall not frustrate the purpose of the Act under which these are framed. Further, failure to follow the Rules would not render the search, seizure and arrest under the C.N.S.A. An absolute nullity and make the entire prosecution case doubtful, except for the consequence provided in the Rules. In directory provisions substantial compliance is sufficient and even where there is no compliance at all, the act is not invalidated by such non-compliance if the act otherwise is done in accordance with law. The delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated.
12. The contention of the learned counsel for the appellant that compliance of section 103, Cr.P.C.
Was mandatory has no force. Section 25 of the Control of Narcotic Substances Act, 1997, has excluded the application of section 103, Cr.P.C. In State v. Muhammad Amin 1999 SCMR 1367 it was held:-- "It is by now settled law that provisions of section 103, Cr.P.C. Do not apply if the recovery is not made in pursuance of search of a house, but is made elsewhere, for instance on the Highways or the road sides or the public places like Railway Stations, Bus Stands and the search of baggage or of the person at the Airports. Assuming for the sake of argument but without conceding that provision of section 103 (ibid) apply to the search of the baggage or of person, still its application has been restricted on the principles of interpretation. It would, thus, be noticed that two independent witnesses are generally required to witness the recovery. This requirement of law is, however, subject to exceptions. It is common experience now-a-days that due to apathy, the public-at-large are hesitant to come forward to witness the recovery in criminal cases for fear of reprisals in view of the present deteriorating law and order situation in the country."
13. So far as the defence version is concerned, it is an accepted principle of law that when an accused at a criminal trial takes specific plea, the onus invariably shifts and he is required to produce evidence and prove his plea or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether.
14. In case of narcotics where prosecution is made under the Control of Narcotic Substances Act, 1997, section 29 of the Act (ibid) has provided that there is presumption of possession of illicit articles unless the person prosecuted rebuts such presumption.
15. The argument of the learned counsel of the appellant regarding various hats simultaneously worn by the Investigating Officer, has also failed to impress us. It is suffice to say, that there is no legal prohibition for a Police Officer nor he is prohibited under the law to be complainant if lie is a witness to the commission of an offence and also to be an Investigating Officer as laid down in the case of State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 and Mashal Khan v. The State 2005 PCr.LJ 254 (Peshawar).
16. The onward transmission of four grams sample taken out from the total narcotics material recovered from the appellant, to the office of Chemical Examiner, Peshawar is also proved beyond any shadow of doubt.The appellant had not challenged the recovery of substance being not Charas, or narcotic before the trial Court or this Court. No question was put to prosecution witnesses at the trial in this regard. The report of Chemical Examiner received back was found in positive, which has supported the prosecution story as well as recovery of narcotics in this case.
17. The learned counsel for the appellant contended that there were some serious lapses in the process of investigation which had vitiated the trial. However, he has not been able to point out any so-called serious defect in the investigation, other than certain minor lapses which do not affect the validity of the trial. A good explanation has been offered for non-compliance of section 21 of the Act. The raid, as mentioned above, has been conducted on the house of the appellant at the dead of night. It was not possible for the Investigating Officer to obtain search warrant. The objection of the learned counsel is misconceived.
' For the reasons noted above, we are satisfied that prosecution has succeeded to establish its case against the appellant beyond shadow of reasonable doubt. The evidence led by the prosecution has been appreciated in a legal fashion and no case of misreading or non-reading of evidence has been made out. The learned trial Court has already taken a lenient view while awarding sentence to the appellant and we see no justification to interfere. The appeal having been found without substance stands dismissed and the impugned judgment is maintained and upheld.