' IJAZ-UL-HASSAN KHAN, J.---On receipt of complaints that one Khan. Badshah alias Khano, son of Kabil Shah resident of Lachi Payan, District Kohat, deals in narcotic business, a police party headed by Inspector Mir Chaman Khan (P.W.3), raided the house of Khan Badshah accused on 18-5-2004, at about 11-00 a.m. And recovered Charas from the residential 'Kotha' of the house. The Charas was weighed and found 1200 grams. A meagre quantity i.e, four grams was separate out of the seized property and sent to Chemical Examiner, FSL, Peshawar for analysis. The remaining i.e, 1196 grams was sealed into a parcel in the presence of marginal witnesses. The accused was apprehended and a case was registered against him under section 9(c) of Control of Narcotics Substances Act, 1997.
2. After completion of investigation, challan was submitted against the accused, to which he pleaded not guilty and claimed to be tried. The prosecutio; in order to pro* its case, produced four witnesses, namely, HC Shad Akbar (P.W.1), FC Zakim S. Khan (P.W.2), Inspector Mir Chaman Khan (P.W.3) and A.S.-L, Gul Shadi Khan (P.W.4). The accused did not lead any defence evidence and in his statement recorded under section 342, Cr.P.C., he claimed to be innocent and falsely implicated. He did not appear as witness in his defence under section 340(2), Cr.P.C.
3. Vide judgment dated 9-9-2005, Syed Yahya Zahid Gillani, Sessions Judge/Judge Special Court, Kohat, convicted the accused under section. 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced him to suffer four years' R.I. And fine of Rs,30,000 or in default to undergo further one year S.-I. Benefit of section 382-B, Cr.P.C. Was, however, extended to the accused.
4. Feeling aggrieved, the appellant has filed instant Criminal Appeal No,668 of 2005, to challenge his conviction and sentence.
5. Miss Farhana Marwat, Advocate, for the appellant, while placing reliance on a case titled Tariq Parvez v. The State (1995 SCM R 1345), contended that the prosecution has not been able to prove that the contraband Charas was in possession of the appellant; that statements of P.Ws. Are full of contradictions and infirmities; that the recovery cannot be relied upon as the mandatory requirements of section 103, Cr.P.C. Had not been complied with by the Investigating Officer; that the sample has been sent to the Chemical Examiner belatedly and that the material on record cannot be considered sufficient to associate the appellant with the commission of crime. In the alternative, the learned counsel submitted that the sentence awarded to the appellant is excessive and the same be reduced to the sentence already undergone.
6. Appeal was opposed by Arbab Muhammad Usman, A.A.-G. Refuting arguments of the appellant and supporting the impugned judgment with the assertion that recovery of huge quantity of Charas from the residential 'Kotha' of the house exclusively in possession of the appellant, was proved beyond any reasonable doubt and no or motivation has been shown on the part of the police for false implication.
7. After perusal of the record, we find that prosecution has produced sufficient evidence to connect the appellant with the crime in question. No or motivation on the part of the witnesses could be pointed out by the accused in the course of trial. All the witnesses were subjected to the test of cross-examination but nothing advantageous could be extracted from their mouth, so as to undermine the evidentiary worth of their statements. All of them are unanimous about the material points. Their testimony is found unimpeachable and invokes confidence about its truthfulness. No material discrepancies or contradictions are found in the statements of prosecution witnesses.
Rather they are consistent regarding date, time and place of recovery and the manner in which it has been affected. The apprehension of the appellant at the spot is a strong proof supported by the other evidence. The police witnesses had no enmity or grudge or motive to falsely implicate the appellant. Members of police force are competent witnesses in the eyes of law and may be credited with veracity unless there could be demonstrated that they were false witnesses and had maliciously accused an innocent person of the commission of an offence for ulterior motive. The non-association of the witnesses from the public alone is not sufficient to affect the prosecution case as it is tendency that people from public are reluctant to become witnesses specially in narcotic cases.
8. A sizable quantity of contraband Charas has been recovered from the house exclusively in possession of the appellant. It is not readily believable that the local police had itself foisted such a quantity of narcotics upon the appellant.
9. The report of the Chemical Examiner regarding the narcotic substance has further established on the record that this was Charas, as is the case of the prosecution.
10. Adhering to the objection regarding late dispatch of sample to the laboratory for chemical examination, we find that same is of no consequence and does not demolish the prosecution case in arty manner. Rules 4 and 5 of the Control of Narcotics (Government Analyst) Rules, 2001 have placed no bar on the Investigating Officer to send the samples beyond seventy-two hours of the seizure, receive the FSL 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 made the Rules directory and the mandatory. These Rules cannot control the substantive provisions of the CNSA 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 CNSA 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 B 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.
11. The onward transmission of four grams sample taken out from the total narcotics material recovered from the appellant, to the office of Chemical Examiner, 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.
12. We have subjected the statements of the prosecution witnesses to critical analysis and are confident that the conclusions drawn and reasons advanced by the learned trial Court show fair evaluation of evidence, which is in accordance with the settled principles in criminal cases.
13. As regards reduction in the sentence, we find that the appellant is adjudged guilty by competent Courts of law in a number of cases of similar nature. The learned trial Court has already taken lenient view while awarding sentence to the appellant. We see no justification to reduce the sentence. The appeal fails, which is hereby dismissed.