ljaz-ul-Hassan, J.--Muhammad Mushtaq and Muhammad Salim, appellants were tried alongwith Mst Zohra Bibi, acquitted co-accused by Mr. Abdur Rehman Khan, Judge Special Court (CNS)
Peshawar camp Kohat, under Section 9(c) of Control of Narcotic Substances Act, 1997. Vide judgment dated 27.7.2004, the appellants having been found guilty, were convicted under Section 9(c) of the aforesaid Act and sentenced to life imprisonment with fine of Rs, 50,000/- each or in default thereof to suffer further five years R.I. each. They were, however, awarded the benefit as contemplated under Section 382-B Cr.P.C. Mst. Zohra Bibi co-accused was extended benefit of doubt and acquitted of the charge. The Suzuki Motor Car bearing Registratioh No, LHV-7361 was confiscated to the State.
2. The appellants, feeling aggrieved, have filed separate Criminal Appeals Nos, 672/2004 and 676/2004, which shall be disposed of by this single judgment.
3. Shortly put the facts are, that pursuant to spy information, stated to have been received by Regional Director ANF Peshawar, on 16.9.1999, regarding transportation of huge quantity of narcotics through Motor Car No, LHV-7361, a police party, consisting of A.D. Rehmat Khan, Incharge Police Station, A.N.F. Kohat and others was constituted. The police party conducted `naka bandi' near Police Post Jarma, Kohat Bannu Road. In the meanwhile at about 1830 hours, Motor Car No, LHV-7361 was sighted coming from Kohat side. The car was stopped and checked. Two men and a woman were found sitting in the car. The search of the car led to recovery of 26 packets of charas and 10 packets of opium, concealed in the secret cavities of the dicky of the car. On weighment, charas was found 58 kgs and opium 12 kgs. Four grams each were separated and secured into two sealed parcels for the purpose of chemical examination. Remaining was sealed into a parcel. On asking the man driving the car disclosed his name as Muhammad Mushtaq son of Gul Rehman, resident of Bara Hamlet, Swabi and man sitting with him on front seat introduced himself as Muhammad Saleem son of Muhammad Miskeen, resident of Charbagh, Swabi. A woman sitting with them introduced herself as Zohra Bibi, wife of Muhammad Shoaib, resident of Khan Abad, Wah Cantt. Rawalpindi. From the personal search of the accused, their Identity Cards and a Mobile Phone were recovered. A Registration copy of the car was also secured from the switch board of the car. The complainant after recording the complaint at the spot, sent the same to the Police Station for the registration of formal FIR and continued with the investigation at the spot.
4. After completion of investigation, A.D. Rehmat Khan (PW.2), submitted complete challan on 11.2.2002. The charge was framed against the accused. They denied the charge and claimed to be tried, the trial commenced.
5. During trial, the prosecution produced six witnesses, namely HC Nazir Azam (PW.1), A.D. Rehman Khan (PW.2), Judicial Magistrate Muhammad Aslam Khan (PW.3), F.C. Matiur Rehman (PW.4), DFC Ghuncha Gul (PW.5) and Inspector Zarin Khan (PW.6).
6. Statements of the appellants were recorded under Section 342 Cr.P.C. wherein they stated that they were innocent and were involved in a case falsely. Neither the appellants appeared as a witness in their defence under Section 240(2) Cr.P.C. nor they produced any defence witness during trial.
7. At the conclusion of trial, learned trial Judge after appraising the case of the prosecution found the appellants guilty of the offence and thus they were convicted and sentenced as mentioned and detailed above.
8. Mr. Muhammad Jamil Khan, Advocate for Muhammad Mushtaq (appellant in Criminal Appeal No, 672/2004), submitted that the appellant was involved in the present case falsely, in 'a mala fide manner; that the prosecution story is concoction; that the alleged judicial confession of the appellants was not in consonance with the High Court Rules and Orders; that case property i,e, charas and opium and the Motor Car alleged to have been used in the commission of crime. were not produced at the trial; that there are contradictions in the statements of prosecution witnesses; that the non-association of the members of the general public in the recovery process amounts to violating the provisions of Section 103 Cr.P.C; and that a very small quantity of the narcotics was sent to the office of Chemical Examiner for analysis and at the most the appellant is liable to be punished only for that narcotic which was sent to the office of Chemical Examiner. Delay in remitting the sample to the office of Chemical Examiner has also been emphasized. To substantiate the contentions, reliance has been placed on Nasir Ahmad petitioner vs. The State respondent (2004 SCM R 1361), Muzaffar Mehmood appellant vs. The State respondent (2004 P.Cr.L.J. 1076 Lahore), Muhammad Arshad Naseem appellant vs. The State respondent (2004 P.Cr.L.J. 371 FSC), Khawaja Muhammad appellant vs. The State and another respondents (2001 P:Cr.L.J. 1401 Peshawar), Latifullah petitioner vs. The State respondent (2003 P.Cr.L.J. 724 Lahore), Mst.
Iqbal Bibi appellant vs. The State respondent (2000 P.Cr.L.J. 1812 Peshawar), Mushtaq appellant vs. The State respondent (2002 P.Cr.L.J. 1312 Peshawar), Gul Khan petitioner vs. The State respondent (2005 PCr.L.J. 1198 Peshawar), and Murtaza and two other appellants vs. The State and other respondents (1996 PCr.L.J 358 Peshawar).
9. Miss Farhana Marwat, Advocate for Muhammad Saleem (appellant in Criminal Appeal No, 676/2004), adopting the arguments of learned counsel for Muhammad Mushtaq appellant, contended that prosecution had not been able to prove its case against the appellant beyond shadow of doubt and the prosecution evidence was not such confidence inspiring which could lead to only conclusion that appellant was guilty of commission of offence. Mst. Zohra Bibi co- accused had already been acquitted by the trial Court on the same evidence. All these circumstances make the prosecution case highly doubtful, the benefit of which must go to the appellant. In this regard, reliance was placed on Abdullah appellant vs. The State respondent (2002 P.Cr.L.J 1424(cs), Muhammad Shafiq appellant vs. The State and another respondents (2003 YLR 1481 Peshawar (cs), The State through Captain Nooruddin Assistant Director, Anti Narcotics Force, Multan, Petitioner vs. Muhammad Khalid respondent (2002 P.Cr.L.J. 646 Lahore) (516-A), Khawaj Muhammad appellant vs. The State and other respondents (2001 PCr.L.J. 140 Peshawar), Zahoor Ahmad Awan and other appellants vs. The State respondents (1997 SCM R 543).
10.Appeals were opposed by Mr. Muhammad Khalid, Advocate appearing for Anti Narcotic Force by refuting arguments of the appellants and supporting the impugned judgment with the assertion that recovery of huge quantity of narcotics was proved beyond any shadow of doubt; that statements of prosecution witnesses could not be shattered by the defence in spite of lengthy cross-examination; that there is no material contradiction between the statements of prosecution witnesses, who are consistent about the commission of offence, custody of narcotics and recovery thereof; that recovery from the appellants of the narcotics material is not only proved but has also been certified by the Chemical Examiner through his reports and that PWs who are State functionaries and had no enmity or malice to falsely depose against the appellants.
11. We have minutely considered the arguments of the learned counsel for the parties with reference to the material on record.
12. It is evident from the record that on spy information regarding transportation of a huge quantity of contraband material through Motor Car No, LHV-7361, a raiding party comprising complainant Zarin Khan and other police officials was formed, who on `naka bandi' at 18.30 hours intercepted the Motor Car in question, coming from Kohat side, which was being driven by Muhammad Mushtaq and on its front seat Muhammad Saleem was sitting, whereas the rear seat was occupied. by Mst.
Zohra Bibi, acquitted co-accused. The Motor Car was searched and 26 packets of chcrras weighing 58 kgs and 10 packets of opium weighing 12 kgs concealed in secret cavities of the car were recovered. Four grams each were separated and secured into sealed parcels for the, purpose of chemical examination. A registration copy of the car, Identity Cards of the occupants of the car and a Mobile Phone were also secured into possession. The prosecution in order to prove the apprehension of the appellants and recovery of charas and opium, from the secret cavities of the car, has produced FC Matiur Rehman (PW.4) and. Inspector Zarin Khan (PW.6). Both these witnesses have supported the recovery. Incriminating statements of the prosecution witnesses on oath are enough to connect the appellants with the transportation of a huge quantity of contraband material. Defence could not prove as to why police would involve the appellant falsely specially when none of the raiding party had any enmity against them. It is beyond comprehension that a huge quantity of charas and opium was concealed in the car without knowledge/concurrence of the appellants. Prosecution witnesses are consistent regarding the time, place of occurrence and recovery of articles and the manner in which it has been effected.
The discrepancies pointed out by the learned appellants' counsel are inconsequential and of no importance.
13. Confessional statements made by appellants which were recorded after observing all formalities, were voluntary and true and did not suffer from any defect of form or substance.
Confessions though Were retracted by appellants,' but mere retraction was not enough to make the same involuntary or diminish its intrinsic value.
14. Mere fact that vehicle from which contraband was recovered had not been produced before Court, was not fatal to prosecution story. Vehicle having been found used in commission of crime had already stood confiscated to the State.
16. Objection as to the non-production of the case property at the time of trial was not taken at any stage 'of the proceedings. Recovered narcotics could not be produced before he trial Court and the same had been destroyed during the trial under the valid orders of the Sessions Judge and the accused had not raised any objection against such destruction.
16. Under Section 516-A Cr.P.C. it is permissible to destroy/dispose of the case property if it comprises of narcotics under a proper certificate to be issued by the Court by retaining samples out of the total and such samples retained shall be taken as whole of the property.
17. 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 levelled against an accused person to be true in its entirety and it is for the accused person to rebut such an allegation. Fida Jan vs. The State (2001 SCM R 36).
18. Learned counsel for the appellants have also contended that the samples separated from the seized charas and opium were received by Forensic Science Laboratory on 21.9.1999, after 4/5 days delay of seizure, and in, the process sufficient time had consumed and in view of Rules 4 and 5 of the Control of Narcotics (Government Analyst) 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.
19. 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 to received to place before the trial Court. The very language employed in the Rules and the effect 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 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 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.
20.The contention of the learned counsel for the appellants 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 vs. Muhammad Amin (1999 SCM R 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 nowadays 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."
21. So far as the defence version is concerned, 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.
22. 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.
23.So far as the cases cited by learned counsel for the appellants are concerned, each criminal case stands on its own footings. The facts and circumstances in one case may not be quite similar on all fours to the other. There may be circumstances so as to give benefit of doubt to the accused, but in the instant case, we are fully satisfied that the prosecution has been successful in proving its case against the appellants and no exception can be taken to the judgment of trial Court. No ill-will or motivation on the part of the witnesses could be pointed out by the accused in the course of trial therefore, the prosecution case against the appellant for commission of offence is considered to have been established.
In view of above discussion, we find that the trial Court has rightly concluded the charge against the appellants and has correctly convicted and sentenced them. The appeals having been found without substance fail, which are hereby dismissed.