Succinctly stated the facts leading to the filing of this appeal are, that on 31.10.2003, at 10.30 a.m., a police party headed by Inspector Abdul Qayum PW and comprising ASI Sher Rehman PW (complainant) and others, was on routine `gasht', when they received information that Wisal Muhammad son of Muhammad Rasool, resident of mohallah Kamyar, deals in narcotics business.
The policy party reached the spot. On seeing the policy party, accused tried to make good escape but his attempt proved abortive. The accused was apprehended. He was found holding a plastic 'guthi in his hand. The search of the `guthi' led to recovery of 1040 grams of charas and 12 grams of heroin. A cash amount of Rs, 1530/- was also recovered from possession of the accused. Out of the contraband material, a meager quantity i,e, 5 grams of charas and one gram of heroin was separated for chemical examination and the remaining was sealed into parcels. A case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, was registered against him.
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 he pleaded not guilty and claimed to be tried.
3. In order to prove its case, prosecution examined Inspector Abdul Qayum Khan (PW.1), ASI Gul Imran Khan (PW.2) and ASI Sher Rehman (PW.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 witness in his defence under Section 340(2)
Cr.P.C. nor he produced any defence witness.
4. After going through the evidence produced by the prosecution, the trial Court convicted the accused under Article 4 of the Prohibition (Enforcement of Hadd), Order 1979 and sentenced him to undergo eight months R.I. with fine of Rs, 5,000/- in default whereof, further undergo two months S.I. with benefit under Section 382-B Cr.P.C. However, the accused was acquitted under Article 3 of the Order ibid.
5. Feeling aggrieved of the said judgment, the accused Wisal Muhammad has filed Criminal Appeal No, 22/2006, which is before me for consideration.
6. Mr. Saitullah Khan Khattak, Advocate for the appellant mainly contended that there was no reliable evidence led by the prosecution to have proved the charge against the appellant, but learned trial Court, without appreciating the same, recorded erroneous finding; that there are major discrepancies/contradictions between the statements of prosecution witnesses; that no private person was joined in the recovery proceedings and no such witness was cited by the prosecution in derogation of provisions of section 103 Cr.P.C.; that the alleged recovery has not been made from possession of the appellant, that specimens separated from the recovered material have been sent to Laboratory after considerable delay and that the stance taken in defence has been ignored and discarded without any justifiable reason. In this regard reliance was placed on Karim and another vs. The State (2004 P.Cr.L.J. 37), Muhammad Altaf vs. The State (1996 PCr.L.J. 440), Muhammad Ibrahim and another vs. The State (2000 P.Cr.L.J. 374).
7. Mr. Ilyas Ahmad Qureshi, Advocate appearing on behalf of the State supported the judgment of the trial Court whole heartedly and maintained that prosecution has proved its case beyond any shadow of doubt; recovery of huge quantity of charas and heroin from the possession of the appellant was proved by the PWs, statements of whom could not be shattered by the defence in spite of extensive cross-examination; that there is no such material contradiction, on the basis of which trial of the case can be said to have vitiated and that in the cases of narcotics Section 103 Cr.P.C. is not applicable. To augment the contentions, reliance was placed on Muhammad Daud vs. The State (PLD 2006 Peshawar 74, Muhammad Mushtaq vs. The State (PLD 2006 Peshawar 39), Salem Khan vs. The State (PLD 2006 Peshawar 47) and Mian Gul Bacha. Khan and another vs. The State (PLD 2004 Peshawar 246).
8. I have heard the arguments of learned counsel for the parties at some length in the light of material on file.
9. The prosecution in order to prove the factum of apprehension of the appellant and recovery of `charczs' and heroin from his possession has produced three witnesses namely, Inspector Abdul Qayum Khan (PW.1), SI Gul Imran Khan (PW.2) and ASI Sher Rehman (PW.3).
10.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. The mere fact that the witnesses are official witnesses, would not rob their testimony of its evidentiary worth. Members of police force are A 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 implicated an innocent person of the commission of an offence for ulterior motive. The learned counsel for the appellant has failed to point out any background of bitterness of ill-will between the recovery witnesses and the appellant so as to prompt the former to falsely involve the latter in a case of this nature.
11. A seizeable quantity of contraband `charas' and heroin has been recovered from possession of 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 understandable have been the result of efflux of time between the recovery and the making of statements by these witnesses before the learned trial Court.
12. Learned counsel for the appellant has also contended that the samples separated from the seized `charas' and heroin were sent to the Forensic Science Laboratory at belated stage and in the process 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.
13. The 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 he 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.
The result of the above discussion is that the case against the appellant 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. The appeal is dismissed and the impugned judgment is maintained. The appellant is present in Court on bail. His bail bonds are cancelled, he is taken into custody and sent to jail.