JUDGMENT MUHAMMAD MUZAMMAL KHAN, J.- This criminal appeal has been directed against the judgment dated 4.10.2003, whereby the learned Judge, Special Court CNS, Lahore convicted the appellant under Section 9, Control of Narcotic Substances Act, 1997 and sentenced him to R.I. For 10 years with a fine of Rs. 300,000/- or in default of its payment to undergo further S.I. For one year. Benefit of Section 382-B Cr.P.C, was, however, awarded to him.
2. Charge against the appellant, as per FIR Exh. PE, is that having received information about involvement of Sherzada Khan appellant in selling heroin in the garb of business at Saraj Paan Shop, Pulli Stop, Green Town, Lahore, Brigadier Ashfaqur Rashid, Force Commander ANF, constituted a raiding party on 5.8.2002 under the supervision of Syed Sajid Haider, Assistant Director Anti- Narcotic Force. At 4.00 p.m. The raiding party reached the shop and the person present on the counter disclosed his name as herzada Khan son of Kashkol Khan (appellant), who was arrested and on interrogation, he led to the recovery of three 'The lies' of heroin lying in a plastic "Tora" under the counter. On weighing, each Theli' was weighed 950 grams and total recovery came to 2.850 Kg.
After separating 5 grams out of each 'Theli' three parcels of samples and three of the remaining heroin were sealed and were secured alongwith the plastic "Tora". Thereafter the instant case was registered against the appellant. Muhammad Afzal Asim, Inspector, ANF, investigated the case and finding the appellant guilty challaned him.
3. The learned Trial Judge on receipt of challan framed charge against the appellant on 9.12.2002 under Section 9(c) Control of Narcotic Substances Act, 1997> to which he pleaded not guilty and claimed trial.
4. Prosecution in order to prove guilt of the appellant produced four witnesses. PW. 1 Abdul Ghafoor, Constable, had transmitted the sample parcels to the office of Chemical Examiner on 7.8.2002, intact. PW. 2 Rao Zahid Mehmood, Inspector was a member of the raiding party, who also witnessed the recovery vide memo. Exh. PA, which he testified before the Trial Court.
PW. 3 Muhammad Afzal Asim, Inspector being Investigating Officer materially supported the prosecution case by proving all the acts done by him like recording of statements of the witnesses under Section 161, CrP. C., inspection of place of occurrence, preparation of site plan Exh. PC and having challaned the appellant finding him guilty. PW.4 Muhammad Sarwar, ASI/Moharrir deposed that on 5.8.2002, on receipt of complaint sent by Muhammad Afzal Asim, Inspector/SHO, he chalked out the formal FIR without any addition or omission and received six sealed parcels for safe custody in the Malkhana alongwith empty "Tora" and on 7.8.2002 dispatched three sealed parcels of sample to the office of Chemical Examiner through Abdul Ghafoor constable. Prosecution gave up Rana Rashid Mehmoodi PW being unnecessary and produced in evidence report of the Chemical Examiner as Exh. PD.
5. , Appellant was examined under Section 342, Cr.P.C, wherein he claimed to be innocent by asserting that the case has been falsely registered against him. He did not opt to record his statement on oath under Section 340(2), Cr.P.C. He, however, produced DW. 1 Liaqat Ali and DW. 2 Azmat Ali in his defence, both of whom deposed that they were doing business in the neighbourhood of the appellant and that the appellant was a gentleman and previously there was no case against him. The learned Trial Judge after completing all the formalities of law, convicted the appellant to 10 years R.I. With fine, as noted above. Appellant has challenged his conviction through the instant appeal, which was admitted to regular hearing and after completion of record, has now been placed for final determination.
6. Learned counsel for the appellant contended that the mainstay of impugned judgment being report of. The Chemical Examiner, the same was not only unauthorized but also lacked report about protocol test applied by the Analyst. According to him, the Chemical Examiner preparing report Exh. PD was not notified under Section 34 of Control of Narcotic Substances Act, 1997, thus the same was void, it was further submitted that the Chemical Examiner was not Analyst, whose report was not on prescribed form and while preparing report provisions of Sections 35/36 of Control of Narcotic Substances Act, 1997 were not complied, thus the report Exh.PD deserves to be excluded from consideration and in this eventuality appellant has to be acquitted from the charge, it was further asserted that the alleged recovery of contraband material was not made from active possession/custody of the appellant, who being of the age of sixty years with heart-ailment, was awarded excessive sentence and in view of this lawful mitigating circumstance in case this Court did not rely on the contradictions in the statements of the PWs to acquit him, his sentence may be suitably reduced.
7. Appeal was opposed by refuting arguments of the appellant and supporting the impugned judgment, with the assertion that recovery of huge quantity of heroin from the appellant was proved beyond any shadow of doubt, it was further submitted that the recovery of heroin was effected from possession of the appellant and in case his defence plea of recovery be accepted as correct even in that case the shop being in his exclusive possession, he cannot be acquitted of the charge, it was also argued on behalf of the State that the Chemical Examiner is duly notified and the competently performed the test, which cannot be challenged by the appellant, it was also argued that appellant never raised any such objection during trial of the case and did not object to the report when the same was tendered in evidence, hence he cannot raise this objection at such a belated stage.
8. We have minutely considered the respective arguments of the learned counsel for the parties and have examined the entire record. All the four PWs produced by the prosecution have supported recovery of 2.850 Kg. Heroin lying in a plastic "Tora" under the counter of the appellant over his shop, had no malice/enmity against him. Incriminating statements of the prosecution witnesses on oath left no room that the recovered contraband was not owned/possessed by the appellant. Such a huge quantity cannot be planted and that too without any enmity of the appellant with any member of the raiding party. Similarly, contradictions pointed out by the learned counsel for the appellant are of minor nature and those cannot be considered to vitiate the trial or to make the recovery doubtful.
9. As regards report of Chemical Examiner, Section 34 of the Control of Narcotic Substances Act, 1997 only directs that any institute or narcotic testing search laboratory can be notified by the Federal Government to be Federal Narcotics Test Laboratory and it does not talk of setting up of any distinct/independent laboratory for this purpose. Since the Chief Chemical Examiner, Government of Punjab, Lahore had been notified for performing chemical test in terms of Section 34 of the Act (ibid), there is nothing bad with the report Exh. PD. As a matter of fact, notification in this behalf dated 7.8.1997 escaped notice of the learned counsel for the appellant which reads as under:- S.R.O. 596(1 )/97-In exercise of the powers conferred by section 34 of Control of Narcotic Substances Act (XXV of 1997), the Federal Government is pleased to notify the Pakistan Council of Scientific and Industrial Research Laboratories (PCSIR), Lahore, National Institute of Health Laboratory, Islamabad, Sindh Laboratory of Chemical Analysis Karachi, PCSIR Laboratory, Karachi, PCSIR Laboratory Peshawar and Central Drug Laboratory, 7th Central Street Defence Housing Authority, Karachi and all Narcotics Testing Laboratories set up by the Provincial Governments to be the Federal Narcotics Testing Laboratories for the purposes of the said Act.
10. Chemical Examiner report Ex.PD, was duly signed 4 by s the Assistant Chemical Examiner, BIO Chemist/Chemist and Chief Chemical Examiner and protocol test were performed by Bio Chemist, result of which has been given on the reverse of the report on 12.8.2002. Under law, a presumption of regularity and performance of acts in accordance with provisions of statute applicable is attached to the acts done by State functionaries in due discharge of their duties, thus we are not ready to accept the argument that provisions of Sections 35/36 of the Act were not complied by the Analyst/Chemical Examiner especially when the appellant did not bring any evidence on the file to show that the prerequisites of these provisions of law were not fulfilled by the Chemical Examiner. Appellant could have summoned the Chemical Examiner in his defence or could have moved to the Trial Court for summoning him as a Court Witness to substantiate the argument raised for the first time in appeal, but this exercise was not undertaken. Appellant also did not cross-examine PW. 1 Abdul Ghafoor, who had transmitted the sample parcels to the office of Chemical Examiner on 7.8.2002 and deposed that the samples parcels were delivered intact, In absence of cross-examination regarding prerequisites of Section 35/36 of the Act (ibid) presumption is that those were fulfilled in the case in hand.
11. As regards reduction in the sentence awarded by the Trial Court, we have no ambiguity that heroin was recovered from active possession of the appellant, who is not of an advanced ago to create a mitigating circumstance in support of the prayer made. His claimed heart-ailment is also not proved on the file. Besides all this both the defence witnesses produced by the appellant did not utter a single word about ailing age of the appellant and their self- conflicting statements do not persuade us to reduce the sentence of the appellant any more, as he was sentenced only to 10 year's R.I. With a fine of Rs. 300,000/- instead of sentencing him to life imprisonment.
12. For the reasons noted above, the learned Trial Judge correctly concluded the trial through his judgment impugned, which being in consonance with the evidence on the file, deserves no interference on this appeal, which being devoid of any merit, is dismissed.