' IJAZ-UL-HASSAN KHAN, J.--- Shortly put the facts are that on 22-5-2004, at 1600 hours, a police party, headed by P.W. Niaz Ali, S.-I. Had laid `Naka Bandi' at Shahi Road, near `Suray Pul' Timergara, when in the meanwhile, at about 1615 hours, a motor car bearing Registration No,KPS-361 was sighted coming from Dir side. The car was stopped. On inquiry, driver of the car disclosed his name as Said Alam, whereas the man sitting with him on front seat introduced himself as Naseem Rawan. The search of the car led to recovery of Charas concealed in the dickey of the car under a spare wheel. The Charas was weighed and found 2400 grams. Four grams were separated out of the said seized property and sent to the office of the Chemical Examiner for analysis. The remaining was sealed into a parcel in the presence of marginal witnesses. The complaint drafted at the spot was sent to the police station, where its contents were incorporated into a formal F.I.R. Both the accused were arrested and a case was registered against them under section 9(c) of the Control of Narcotic Substances Act, 1997.
2. On receipt of challan, the trial Court examined the same and found it fit for holding the trial. After fulfilling all the legal formalities, charge was framed and put to the accused, to which they pleaded not guilty and claimed to be tried.
3. In order to bring home guilt to the accused, prosecution examined F.C. Asadullah (P.W.1), H.C.
Muhammad Fayaz (P.W.2) and S.H.O. Niaz Muhammad (P.W.3). While examined under section 342, Cr.P.C. The accused totally denied the prosecution allegations and claimed to have been falsely associated with the crime. Neither the accused appeared as witnesses in their defence under section 340(2), Cr.P.C. Nor did they produce any defence witness.
4. After going through the evidence produced by the prosecution, the trial Court convicted the accused under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to undergo seven yths' R.I. Each plus a fine of Rs,20,000 each or in default thereof to suffer further S.I.
For six months each, by means of his judgment, dated 30-8-2005. However, they were extended benefit of section 382-B, Cr.P.C.
5. Feeling aggrieved of the said judgment, the accused Said Alam has filed Criminal Appeal No,621 of 2005, whereas accused Naseeb Rawn has' preferred Criminal Appeal No,653 of 2005. M both these appeals arise out of one judgment, so these are being disposed of by this single judgment.
6. Mr.. Atlas Khan Dagai, Advocate for Said Alam appellant contended with reference to the statement of, the appellant under section 161, Cr.P.C. That the prosecution had failed to prove its case against the appellant beyond reasonable doubt as the evidence led by it before the trial Court was replete with serious contradictions as well as downright improbabilities. The learned counsel also maintained that the non-association of the members of the general public in the recovery proceedings amounts to violating the provisions of section 103, Cr.P.C. The learned counsel further contended that a 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. The learned counsel submitted that there is nothing on record to show as to who took the parcel to the office of the Chemical Examiner and this important' link of evidence is missing. Concluding the arguments, the learned counsel urged that instant case is swollen with doubts and as thus, impugned judgment cannot be allowed to remain intact.
7. Mr. Muhammad Jamil, Advocate representing Naseeb Rawan appellant urged 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. The learned counsel submitted that the statements of all the P.Ws. Being inconsistent with each other do not bear the characteristic of a true testimony.
He urged that all the witnesses are police officials, thus, being interested should not have been given any credit.
8. Mr. Abdul Rauf Gandapur, Advocate, appearing on behalf of the State, has defended the impugned judgment whole-heartedly maintaining that a huge quantity of narcotics was recovered from them which was in direct physical control of the appellants. The report of Laboratory was received in positive and all prosecution witnesses are consistent on the factum of apprehension of the appellants and recovery of narcotics from the vehicle in question. Therefore, it is proved that the appellants were found indulged in trafficking the narcotics.
9. We have anxiously considered the arguments of the learned counsel for the parties and have extensively gone through the record.
10. We would first take up Criminal Appeal No,621 of 2005, preferred on behalf of appellant Said Alam, driver of the car in question. It is the case of the prosecution that on 22-5-2004 during `Naka Bandi' at about 1615 hours, a motor car bearing Registration No,KPS-361 was seen coming from Dir side. The motor car was stopped and upon search of the car, Charas concealed in the dickey of the car under a spare wheel, was recovered. The Charas was weighed and found 2400 grams.. A small quantity i,e, four grams were separated and sent to the office of Chemical Examiner for analysis.
The remaining was sealed into a parcel in the presence of attesting witnesses.
11. A careful examination of the testimony of the prosecution witnesses indicates that all the witnesses are unanimous on all the broad features of the case and their statements bear all shades of truthfulness, therefore, no reason appears from the record for the rejection of their testimony, so far as appellant Said Alam is concerned. The mere fact that they are official witnesses would not rob their testimony of its evidentiary worth. 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 learned counsel has failed to point out any background of bitterness of ill-will between the recovery witnesses and the appellant Said Alam so as to prompt the former to falsely implicate the latter in a case of this nature.
12. A seizeable quantity of contraband Charas has been recovered from the car in question and it is not readily believable that the local police had itself planted such a quantity of narcotics upon the appellant. The report of the Chemical Examiner regarding the sample of the recovered material is in the positive. Discrepancies highlighted by the learned counsel are minor in nature and insignificant. Same are not fatal to the main allegation of recovery of narcotics. Such variations in the statements of the prosecution witnesses could understandably have been the result of efflux of time between the recovery and the making 'of statements by these witnesses before the learned trial Court.
13. Under section 25 of the C.N.S.A., the provisions of section 103 have been specifically excluded; therefore, non-association of members of the general public in the recovery proceedings is not fatal to the prosecution case.
14. Learned counsel for the appellant has also contended that the sample separated from the seized Charas were sent to the Forensic Science Laboratory at belated stage and in the press sufficient time had consumed and in view of Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 the sample dispatched for analysis beyond seventy-two (72) hours and the report received is illegal and rendered the seizure invalid in the eye of law.
15. 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 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 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.
16. 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.
17. The result of the above discussion is that the case against the appellant Said Alam stands fully proved in the most convincing and logical order. Even a single ambiguity or doubt could not be convincingly urged in the entire prosecution version and the trial.
18. As regard the quantum of sentence, we feel that the sentence awarded to the appellant Said Alam is on higher side. Magnitude of sentence is to be in proportion to the magnitude of the crime.
We, while maintaining the conviction of appellant Said Alam, reduce his sentence from seven years to four years' R.I. And also reduce the fine from Rs,20, 000 to Rs,10, 000 or in default to undergo one month's S.I. The appellant is, however, extended benefit of section 382-B, Cr.P.C. With this modification in sentence, the appeal stands dismissed.
19. Adverting to Criminal Appeal No,653 of 2005, filed by Naseeb Rawan appellant, we find that the appellants are not related to each other. Community of interest between them has not been shown. The mere fact that both of them were travelling in the same motor car, from which the contraband Charas was recovered by the police party and both of them have also been arrested together by the police, by itself, is not sufficient to indicate that community of interest has been found between them. Being in joint use and control of the motor car at the relevant time, the appellants cannot be adjudged of a joint responsibility for possession of narcotics from the car in question. There is absolutely nothing on the file to prove that appellant Naseeb Rawan had a hand in the affair and as such he was in league with his convict Said Alam appellant.
20. Resultantly, appeal of Naseeb Rawan appellant is accepted and conviction and sentence awarded to him is set aside. The appellant is acquitted of the charges levelled against him. He shall be set at liberty forthwith, if not required in any other case.
' The above are the detailed, reasons of our short dated 23-1-2006, announced in open Court.