1. ljaz-ul-Hassan Khan, J.--This Criminal Appeal has been directed against the judgment dated 28.7.2005, whereby the learned Sessions Judge/Judge Special Court, Nowshera, convicted Mst.
2. Grana appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced her to R.I. for three years with a fine of Rs, 30,000/- or in default of its payment to undergo further S.I. for six months. Benefit of Section 382- B Cr.P.C. however, was accorded to her.
3. 2.Case of the prosecution in brief is, that on receipt of information on 16.10.2002, that huge quantity of charas would be smuggled to Punjab through Bus No, MR-7410, a police party consisting of PW Mukhtiar Khan, SHO Police Station, Akora Khattak and others, had laid `Naka Bandi' near Jehangira Chowk. In the meanwhile, the bus in question reached there. The bus was stopped. A woman was found sitting in suspicious condition behind the driver's seat. She was having plastic shopper of black colour in her lap. The shopper contained charas. The charas was weighed and found 5000 grams. A meager quantity was separated out of the bulk and sent for chemical analysis. The remaining was sealed in a parcel. On inquiry she disclosed her name Mst. Grana, widow of Nazeer Khan, resident of village Purana Bazar Charsadda. The woman was formally arrested and a case was registered against her under Sections 6, 7 and 9 of the Control of Narcotic Substances Act, 1997, vide FIR No, 666 dated 16.10.2002, Police Station, Akora Khattak.
4. 3.The learned trial Judge on receipt of challan framed charge against the appellant on 9.2.2004 under Sections 6, 7, 8 and 9 of the ibis to which she pleaded not guilty and claimed trial.
5. 4.The prosecution at the trial examined four witnesses and relied on confessional statement (Ex.
6. PW.1/1) of the appellant and the report (Ex. PW.3/3) of the Chemical Examiner, Peshawar.
7. 5.Appellant was examined under Section 342 Cr.P.C. wherein she claimed to be innocent by asserting that case has been falsely registered against her. She did not opt to record her statement on oath under Section 340(2) Cr.P.C. nor produced any evidence in defence. The learned trial Judge after completing all the formalities of law, convicted and sentenced the appellant as mentioned above.
8. 6.Mr. Ijaz Ahmad Malik, Advocate for the appellant contended that the impugned judgment is illegal, against the law, and result of misreading and non-reading of evidence; that the alleged confessional statement attributed to the appellant is not only contrary to legal requirement but also the outcome of coercion and mal-treatment, which is not voluntary, hence legally defective; that the alleged recovery is made in utter disregard to the provisions of Section 52 Cr.P.C.; and that the specimens were sent to the Analysist after delay of 'six days, which has caused dent in the prosecution case.
9. 7.Appeal was opposed by Mr. Muhammad Saeed Khan, learned Additional Advocate General by refuting arguments of the appellant and supporting the impugned judgment, with the assertion that the recovery of huge quantity of charas from the appellant was proved beyond any shadow of doubt.
10. 8.We have minutely considered the respective arguments of the learned counsel for the parties and have examined the entire record.
11. 9.The appellant is accused of having been found in possession of 5000 grams of charas. A meager quantity has been separated out of the seized property and sent to Forensic Science Laboratory Peshawar. The report (Ex. PW.3/3) of the Chemical Examiner is in positive. The prosecution in order to prove apprehension of the appellant and recovery of contraband charas from her possession has produced four witnesses. All these witnesses are consistent on material points and no contradiction whatsoever could be pointed out by the learned counsel to cause dent in the prosecution case. These witnesses were subjected to lengthy and searching cross examination but their testimony could not be shattered to create doubt in the prosecution version. Though the recovery has been witnessed by the police officials but there is nothing on record to show that they had any illwill or motive against the appellant to falsely involve her in this case. The purpose of Section 103 Cr.P.C. is to ensure that the testimony given in Court in regard to the result of a search should not depend upon the Police Officer alone but also upon the evidence of independent person and all possibilities of false implication in the case of search be minimized by the availability of independent person. Mere non-compliance of provision of Section 103 Cr.P.C. would not vitiate the proceedings. Defence in order to succeed must show that there was either miscarriage of justice or accused was prejudiced in his trial or defence. Section 25 of Control of Narcotic Substances Act, 1997 provides exception when it comes to deal with provisions of Section 103 Cr.P.C. Therefore, in narcotic cases recovery does not become illegal where witnesses from locality are not associated at the time of recovery. Mst. Parveen vs. State (2005 P.Cr.L.J. 1562).
12. 10.The learned counsel for the appellant mainly contended that the sample separated from the seized charas was received by the FSL on 22.10.2002 i,e, after 6/7 days of the seizure, whereas the report prepared was sent on 2.11.2002 and in the process 6/7 days had consumed and in view of Rules 4 and 5 of the Control of Narcotics (Government Analyst) Rules, 2001 the samples despatched for analysis beyond seventy two (72) hours and the , report received after eleven days of the seizure of narcotics is illegal and rendered the seizure invalid in the eye of law. The contention of the learned counsel is without substance. The Rules 4 and 5 of the Control of Narcotics (Government Analyst) Rules, 2001 framed under Section 77 of the CNSA provide as under: -- "4. Despatch of sample for test or analysts.
13. (1)Reasonable quantity of samples from the narcotics drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer incharge of nearest Federal Narcotic Testing Laboratory, depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose.
14. (2)Sample may he dispatched for analysis under the cover of a Test Memorandum specified in Form-1 at the earlies, but not later than seventy two hours of the seizure. The envelope should be sealed and marked "Secret Drug Sample/Test Memorandum."
5. Receipt in the laboratory and examination of sample with reference to Test Memorandum: (1) The sealed envelope, containing the samples, received in the laboratory should be carefully opened and given a distinct laboratory number. (2) A separate register be maintained for narcotic drugs which may be further subdivided agency-wise and the laboratory numbers should form a continuous serious for each year.
15. (3)All samples shall be passed to the analyst the same day, who will then keep the same in his safe custody and will examine and record its, or their, weight in the Test Memorandum. He will compare the marking on the Test Memorandums with the markings on the packages envelopes and will ensure that he tests the relevant sample, and in no case, the analysis of a narcotic drug be delayed as the Courts may refuse to extend remand beyond fifteen days in the absence of a chemical report.
11. These Rules 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 not mandatory. These . Rules cannot control the substantive provisions of the CNSA and to be applied in such 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 non- est 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. Muhammad Mushtaq vs. State (PLD 2001 SC 107).
16. 12.The prosecution case is further supported by the confession of appellant voluntarily made before Mrs. Rozina Rehman, Senior Civil Judge, Nowshera, who appeared as PW.1 and confirmed its voluntariness. The confessional statement has been recorded on the following day of the arrest of the appellant strictly in accordance with law. The voluntary nature of the confession could not be doubted, which also stood amply corroborated by recovery of contraband charas and the statements of the PWs. The conviction on the basis of retracted judicial confession alone is sustainable in law, provided the confession had been recorded in accordance with law. Ahmad Hassan vs. State (2001 SCM R 505).
17. 13.The objection of the learned counsel for the appellant, regarding non-compliance of the provisions of Section 52 Cr.P.C. is also without substance. It is true that according to law, no woman can be searched except by another woman but it is equally true that in the instant case search has been made with strict regard to decency and no prejudice seems to have been caused to the appellant.
18. 14.For the foregoing reasons, the prosecution had proved the guilt of the appellant beyond all reasonable doubts and had successfully discharged its burden through consistent and confidence inspiring evidence. The prosecution witnesses had no malice or illwill against the appellant to falsely implicate her in the instant case. The appellant had made no endeavor to rebut the prosecution case by discharging her burden under Section 29 of the CNSA. The mere denial of charge and pleading innocence without substantiating her plea through cogent evidence is not sufficient to secure acquittal. Besides, the findings of the trial Court could not be shown to have been passed on misreading or non-reading of evidence. The trial Court has appraised the evidence existing on the record thoroughly on the principles for appraisal of evidence in criminal cases for safe administration of justice. The judgment is based on correct application of law and proper evaluation of evidence and, therefore, we see no reason to interfere in the findings of the learned trial Court.
19. As regards reduction in the sentence, we find that the trial Court has already taken a lenient view and the sentence is appropriate. However, the fine imposed on the appellant is on higher side and does not commensurate with the gravity of offence. Accordingly, we reduce the same from Rs, 30,000/- to Rs, 10,000/- or in default of its payment to suffer one pith S.I. With this modification in fine, the appeal fails, which is hereby dismissed. However, the benefit under Section 382-B Cr.P.C. shall remain intact.