' IJAZ-UL-HASSAN KHAN, J.---Through this single judgment we propose to dispose of Criminal Appeal No,649 of 2005, and Jail Criminal Appeal No,666 of 2005 as in both these appeals one and the same judgment dated 8-9-2005, passed by Mr. Abdur Rehman Khan, Judge, Special Court (CNS), Peshawar, has been challenged, whereby appellants Sikandar alias Khanay, Muhammad Ali and Zameer Khan, have been convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and each one of them has been sentenced to life imprisonment and fine of Rs,1,00,000 each, or in default thereof each one of them shall have to suffer further S.-I. For one year. Benefit under section 382-B, Cr.P.C. Has been allowed to the appellants. Motor Cars No,A-1302 Abbottabad, LXM-9614 and B-3163 Abbottabad, used in the crime, have been forfeited in favour of State.
2. The prosecution case in brief is, that pursuant to spy information, stated to have been received by the officials of Anti-Narcotics Force, Peshawar that huge quantity of narcotics substances would be smuggled to Punjab from 'Illaqa Ghair' by one Bahader, a resident of tribal area, through his workers, a raiding party, under the supervision of Captain Tahir Aziz, Assistant Director, laid 'Naka Bandi' on 16-1-2003, at G.T. Road, near Aman Garh Bridge, Nowshera. In the meanwhile, the crime Motor Cars coming from Peshawar side were signalled to stop. The driver of Motor Car No,A-1302 Abbotabad, succeeded to run away, whereas a person sitting on front seat of the car was apprehended. On being enquired, he disclosed his name and parentage as Zamir Khan son of Aziz Khan, resident of Bara Kajhori, Khyber Agency. Driver of Motor Car No,LXM-2614 disclosed him name' as Sikandar alias Khanay, son of Yaqoob, resident of Bhana.Mari, Peshawar, while the other person sitting with him on front seat disclosed his name as Muhammad Ali son of Alif Din, resident of Sattar Shah Colony, Bhana Mari, Peshawar. All the three accused stated that owner of the narcotics was Bahader on of Amin Gul, resident of Sam Baba Tooth Dhand Bara, Khyber Agency, who had just crossed them near village Pir Piyai, in Motor No,B-3163 Abbottabad, which was chased. The driver left the car near Police Line, Nowshera and decamped from the spot. All the three Motor cars were taken into custody along with the three accused, named above. From the dickey and underneath the seats of Motor Car No,A-1302 Abbottabad, 129 packets of 'Charas Pukhta' wrapped in plastic bags, were recovered. The Charas was weighed and found 129 kilograms. 312 packet of 'Charas Pukhta' wrapped in plastic bags, were recovered from the dickey of Motor Car No,LXM-9614. On weighing, it stood 322.400 kilograms. A meagre quantity i.e, 10 grams from each packet was separated out of the recovered material and sent to Laboratory for test. The remaining narcotics were sealed into parcel and subsequently destroyed by order of the Court. The Investigating Officer also recovered two number plates bearing No,ADG-758-Sindh, from the dickey of Motor Car No,LXM-9614 and a sum of Rs,200 along with photocopy of Identity Card from the personal possession of Muhammad Ali accused while 775 from the personal search of accused Sikandar alias Khanay and Rs,800 from the personal search of accused Zameer Khan, which all were taken into possession along with the aforementioned motor cars, by Inspector Samin Jan Khan (P.W.1), vide recovery Exh.P.W.1/1. Thereafter, case F.I.R. No,2 dated 16-1-2003 was registered under section 9(c) of Control of Narcotic Substances Act, 1997. As accused Bahader and Attiq-ur-Rehman were not available, the Investigating Officer obtained warrant under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. Against them, and entrusted the same to Fazal Samad DFC for execution. The Investigating Officer obtained verification of Motor Car No,LXM-9614, A-1302 Abbottabad and B-3163. Copies of F.I.R. No,24 dated 20-11-2002 and F.I.R. No,1 dated 13-1-2003 were placed on file, showing previous involvement of the accused in narcotics cases. After completion of the investigation, challan was submitted against the accused-appellants in Court to face the trial.
3. At trial, the prosecution in order to prove its case and substantitate the charge, produced two witnesses, namely, Inspector Samin Jan Khan (P.W.1) and Syed Rahat Ali Shah (P.W.2) and abandoned FC Azhar Rehman being unnecessary.
4. All the three accused in their statements recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. According to the accused, they were arrested from the vicinity of 'Jhugian' Abbottabad. The accused also opted to depose on oath and to produce evidence in defence, but subsequently they did not give any statement under section 340(2), Cr.P.C. Statement of FC Liaqat Khan was recorded on 28-7-2005 as D.W.1, wherein he stated that on 16-1-2003, three terrorist along with motor cars were reported to be arrested by Intelligence Staff from Abbottadad and the incident was published in Dialy "Mohasib" on 17-1-2003, in consequence whereof he along with Nazeer Khan A.S.-I., Police Station Abbottabad were suspended and after inquiry they were exonerated of the charge and re-instated.
5. We have heard at length Mr. Hussain Ali, Advocate for appellants Muhammad Ali and Zameer Khan, in Criminal Appeal No,648 of 2005, Miss Saadia Siddiqui, Advocate for appellant Sikandar alias Khanay, in Criminal Appeal No,666 of 2005 and Mr. Tariq Khan Kakar, Advocate for Anti- Narcotics Force, Peshawar, in the light of the material on the file.
6. Assailing the propriety of the impugned judgment of conviction, learned counsel for the appellants contended that the evidence on record has not been appreciated in its true perspective and the tale advanced by the prosecution is totally unbelievable and is destitute of the quality attracting confidence. The learned counsel maintained that the case of prosecution is full of material contradictions and infirmities and despite prior information, no independent and disinterested witness from the locality, has been associated with the recovery proceedings, which has made the prosecution case doubtful. Delay in remitting the sample to the office of Chemical Examiner has also been emphasized. It was also submitted that the trial Court ignored the statement of FC Liaqat Khan (D.W.1), Police Line, Abbottabad and the inquiry report of the DSP Galiyat, which has materially prejudiced the interest of the appellant. Concluding the arguments, the learned counsel asserted that initially the samples were sent to the Chemical Examiner Peshawar but when the favourable report was not received, the same were sent to Chemical Examiner Punjab and the desired results were achieved. To augment the contentions, reliance was placed on Nasir Ahmad v. The State (2004 SCMR 1361), Khawaja Muhammad v. The State and another (2001 PCr.LJ 1401 (Peshawar) and Mst. Iqbal Bibi v. The State (2000 PCr.LJ 1812 (Peshawar).
7. Contrarily, learned counsel representing the Anti-Narcotics Force, Peshawar, refuted the arguments of the appellants and supporting the judgment of the trial Court, submitted that prosecution has proved its case beyond any shadow of doubt and the impugned judgment and order of conviction does not suffer from any infirmity or irregularity to vitiate the trial. The learned counsel reiterated that recovery of huge quantity of Charas was proved by the prosecution witnesses, statements of whom could not be shattered by the defence in spite of lengthy and searching cross-examination. Denying the contradictions/discrepancies between the statements of P.Ws., it was maintained that there is no such material contradiction, on the basis of which trial of the case can be said to have been vitiated.
8. The prosecution in order to prove the factum of apprehension of the appellants and recovery of contraband Charas from the Motor Cars in question, has produced Inspector Samin Jan Khan (P.W.1), complainant in this case and Inspector Syed Rahat Ali Shah (P.W.2) and the positive report Exh.P.W.1/4 of the Chemical Examiner, Government of Punjab, Rawalpindi. Both these witnesses have supported the recovery of 129 kilograms Charas from Motor Car-No,A-1302 Abbottabad and 322.400 kilograms Charas from Motor Car No,LXM-9614. They also testified having taken into possession Motor Car No,ADG-758 along with two spare number plates. Both the witnesses have demonstrated complete unammity on material points and the appellants have failed to point out any discrepancy in their statements. Contradictions highlighted by the learned counsel for the appellants are minor in nature, on the basis of which it cannot be held that trial of the case stood vitiated. It is true that prosecution witnesses are officials of Anti-Narcotics Force but it is equally true that they have no reason or motivation to falsely implicate the appellants. The learned counsel for the appellants have not urged any rencour or animosity against these . Witnesses with the appellants.
9. As far as violation of section 103, Cr.P.C. Is concerned, section 25 of the Control of Narcotic Substances Act, 1997 excluded the application of this provision of Cr.P.C. Section 25 of the Control of Narcotic Substances Act, 1997 is couched and is with the object that provision of section 103 Cr.P.C.
Need not be followed under the Act. Even otherwise when the recovery was made from the Motor Cars, occupied by the appellants, it was difficult to bring any,witness from public to volunteer to become witness to the recovery. In this regard reference can be made to Muhammad Amin, v.
State (1999 SCMR 1367) Mian Gul Bacha Khan and another v. The State (PLD 2004 Peshawar 246).
10. Learned counsel for the appellants laid much stress on the point that the samples were sent to the Laboratory for analysis after considerable delay and in view of Rules 4 and 5 of the Control of Narcotics (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.
11. 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 language employed in the Rules and the effects of its breach provided therein have made the Rules direct try 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 non-set 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, that act is not invalidated by such non-compliance if the act otherwise is done in accordance with law. The delay other in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated.
If an authority is needed on the point, reference can be made to Muhammad Musthaq v. The State (PLD 2006 Peshawar 39).
12. The contention of learned counsel for the appellants that there were some serious lapses in the process of investigation which had vitiated the trial, has failed to impress us. The learned counsel have not been able to point out any so-called serious defect in the investigation, other than certain minor lapses which does not affect the validity of the trial.
13. It was strongly pressed into service that initially the sample segregated from the recovered contraband, were sent to FSL Peshawar but when the favourable report was not received, same were sent to FSL, Rawalpindi and the desired results were achieved. The submission is misconceived. The Investigating Officer in his statement has clarified the position.
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 submission of the learned appellants' counsel that the appellants were not apprehended during 'Naka Bandi' and they were arrested from Jhugian District Abbottabad, also does not carry weight. It is an accepted principle of law that when an accused at a criminal trial takes a 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. In the instant case the plea of arrest of the appellants from Jhugian Abbottabad is unfounded and appears to be an after though.
16. The contention of the learned appellants' counsel that statement of FC Liaqat Khan (D.W.1), has been ignored by the trial Court and inquiry report of DSP Galiyat has been excluded out of consideration, without any justifiable reason, has also failed to impress us. The statement of the above named witness or inquiry report of the DSP Galiyat, do not support the appellants' version or exonerate them of the charge.
17. Having considered the matter from all angles in the light of the material on the file, we are satisfied that the appellants were arrested on 16-1-2003 by the Anti-Narcotics staff during 'Naka Bandi' and the contraband Charas was recovered from the Motor Cars in question. We find no illegality or infirmity in the impugned judgment, warranting interference of this Court. Both the appeals, having been found destitute of force, are hereby dismissed.