Ijaz-ul-Hassan, J.--This Criminal Appeal is directed against the judgment dated 25.7.2005, passed by learned Judge Special Court (CNSA) NWFP, Peshawar, Camp Kohat, whereby he convicted Abdul Hassan and Zainullah, appellants under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced them to imprisonment for life and fine of Rs. 1,00,000/- each or in default whereof for further one year S.I. besides giving them the benefit of Section 382-B Cr.P.C.
2. Succinctly stated the facts leading to the filing of instant appeal are, that pursuant to spy information, stated to have been received by the officials of Anti Narcotic Force, Kohat on 5.4.2003, regarding trafficking of huge quantity of narcotics from 'Maga Ghair' to Punjab, via Kohat through an Oil Tanker Bearing No. K-1083 Peshawar, a police party under the supervision of Inspector Tajmin Ali Khan (PW4) was constituted. The police party laid `nakabandi' near Kotal Check Post. At about 10.30 a.m. said Oil Tanker was sighted coming from Dara Adam Khel side. The Tanker was stopped.
On asking, driver of the Tanker disclosed his name as Abdul Hassan son of Mir Hassan, resident of Sherikera Mattani, District Peshawar, whereas the person sitting with him on front seat introduced himself as Zainullah son of Mashhal Dad, resident of Tehsil Banda Daud, Shah District Karak. The search of the Tanker led to recovery of 21 packets of `charas garda' from the Stepny and 8 packets `charas garda' and 6 packets `charas pukhta' from the rear portion of the tube. The 'charas garda' on weighment stood 34 K.Gs. and charas `pukhta' 6 K.Gs respectively. A meager quantity i.e. 10 grams each was separated out of the seized property and sent to the office of Chemical Examiner, Government of Punjab, Rawalpindi, for opinion and report. The remaining was sealed into different parcels. Both the accused were arrested. The Tanker, its keys, registration book, stepny, National Identity Card, Driving license of Abdul Hassan appellant and a cash amount of Rs. 2000/- from him were also secured into possession. A `murasila' (Ex.PW.4/2) was drafted at the spot under Section 9
(c) of Control of Narcotic Substances Act, 1997 and sent to 'police station, ANF, Kohat through HC Murtaza Khan (PW.5), where it was incorporated into foimal FIR (E:.PW.2/1) by HC Gul Marjan (PW.2)
3. After commencement of trial, charge was framed and read over to the accused to which they pleaded not guilty and claimed trial to substantiate its version at the trial, prosecution produced five witnesses and after tendering in evidence the report of Chemical Examiner (Ex.PW.4/8) closed its side. Thereafter, the statements of the appellants were under Section 342 Cr.P.C. wherein they pleaded their innocence an recorded false implication. Zainullah appellant in his statement under Section 340 (2) Cr.P.C. contended that he is cleaner with one Mumtaz Khan, driver of Truck No.KT- 6874. The truck developed some defect and the same was parked near 'Sherakr Village. He alongwith Abdul Hassan appellant and Mumtaz Khan, boarded the tanker in question to bring a mechanic from Kohat. The tanker was stopped by the police at Kotal Check Post. They were brought to police station. He knows nothing about the contraband narcotics. Mumtaz Khan (DW.1) also stated so. However, Abdul Hassan appellant in his statement under Section 340 (2) Cr.P.C. advanced a different story, running contrary to the version of Zainullah appellant. He also charged the ANF officials for depriving him of a cash amount of Rs.25,000/-. In defence, Mumtaz Khan was produced as DW. 1.
4. Mr. Abdur Rehman Khan, the then learned Judge, Special Court, CNS Peshawar, after having gone through the material available en the file and in the light of the arguments addressed by learned counsel for. the parties, passed the impugned judgment in terms as stated above, holding that prosecution has succeeded to establish its ease beyond shadow of reasonable doubt and no ill- will or motive has been shown on the part of the officials of the Anti Narcotic, Force, for falsely implicating the accused in this case.
5. Mr. Sohail Akhtar, Advocate, appearing on behalf of the appellants, contended, inter alia, that appellants are innocent and the prosecution story is a sheer concoction; that if at all it is believed that prosecution case was established even then the circumstances on the record may force to believe that appellants were simply carriers; that mandatory provision of Section 103 Cr.P.C. had been flagrantly violated in this case because although the alleged recovery is shown to have been effected on receipt of advance information, but no independent and disinterested witness from the locality has, been associated with the proceedings to prove recovery; that the, contraband charas was amalgamated and mixed by the Investigating Officer and meager quantity was separated out of the seized property for chemical analysis and the appellants are liable to that extent only; that destruction of contraband charas had not been carried out in accordance with law and that the purported samples were allegedly sent to the Chemical Examiner on 9.4.2003 after delay of four days and there is no explanation for such delay. Concluding the arguments, it was contended that plea taken by the appellant in defence has been discarded by learned trial Judge without any justifiable reason, which has resulted in complete failure of justice. To augment the contentions, reliance was placed on Muhammad Hashim vs. The State (PLD 2004 S.C. 856) and Aqal Khan and another vs. The State (PLD 2004 Peshawar 59) and unreported judgments of this Court titled Noorab Khan Vs. State Cr.Appeal No.69/2005 decided on 23.2.2005, Ashiq Ali Vs. The State Cr.Appeal No. 788 and 789 of 2003 decided on 23.9.2004, Syed Sadaqat Ali Shah vs. State Cr. Appeal No. 965/2004 decided on 14.6.2005, Said Ahmed Shah vs. State Cr.Appeal No. 644/2003 decided on 26.1.2005, Sajjad vs. State Cr. A. No. 195/2002 decided on 3.7.2003, Haider Ali Shah Vs. The State Cr.A.No.251/2006 decided on 13.7.2006 and Mst Jan Bibi Vs. The State Cr.Appeal No.219/2005 decided on 8.6.2006 6.Mr. Salahuddin Khan, learned Deputy Attorney General, representing the State, on the other hand, opposed the appeal, supported the impugned judgment and maintained that huge quantity of narcotics were recovered from a vehicle, which was driven by Abul Hassan appellant and the appellants would be legally having control and possession of the narcotics. He also contended that none of the prosecution witnesses could even be suggested that they have any personal motive against the appellants to falsely charge them or to plant such a huge quantity of narcotics. In this regard, reliance was placed on Fida Muhammad Vs. The State (2006 PCrLJ 316), Mir Hassan Vs. The State (2007 YLR 242) and Munir Khan Vs. The State (2007 MLD 501 Peshawar).
7. We have carefully attended to the arguments of learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, statements of the appellants recorded under Section 342 Cr.P.C. and other material on record, in order to ascertain as to whether or not there is substance in the contentions raised before us. The prosecution in order to prove the apprehension of the appellants and recovery of contraband charas from the tanker in question, has produced two witnesses, namely, Inspector Tajmin Ali Khan (PW.4) and HC. Murtaza Khan (PW.5). The former has carried out the investigation, whereas the latter is one of the members of the raiding party as well as marginal witnesses to recovery memo (Ex.PW.4/1) through which the contraband charas was taken into possession. It would be seen that both the witnesses have remained firm and made consistent statements on material particulars and learned counsel for the appellants has failed to point out any discrepancy worth the name or contradiction in their statements. Both these witnesses were subjected to lengthy and searching cross-examination in order to shatter the prosecution version, but nothing beneficial to appellants could come out of their mouth. No ill will or animosity has been pointed out against the police officials for false implication of the appellants. It is difficult to believe that such huge quantity of contraband charas weighing 40 K.Gs. was planted by the police officials to oblige their superiors and earn credit.
8. Learned counsel for the appellants also contended that the samples separated from the seized `charas' 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.
9. 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 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. Mst. Noor Bibi Vs. The State (2007 MLD 408 Peshawar).
10.The contention of learned counsel for the appellants that he recovery was not witnessed by persons from public, we may observe that Section 25 of CNSA excludes the application of Section 103 Cr.P.C. Ghuncha Gul vs. The State (2007 YTR 373 Peshawar).
11.Learned counsel for the appellants also contended with reference to the cross examination of inspector Tajmin Ali Khan (PW 4) that the seized property i.e. `charas garda' and `charas pukhta' we' amalgamated with each other by the Investigating Officer and a meager quantity was segregated for the purposes of analysis and the appellants are liable to face the consequences to that extent only. The submission is devoid of force. There is nothing on the file to substantiate the same. The case law cited regarding the proposition is distinguishable and proceeds on different facts. It is of no help to the appellants. The learned counsel also failed to prove that the destruction of the contraband material was not carried out in accordance with law, which demolishes the prosecution case vis-a-vis recovery quantity and disposal thereof. The recovery has been proved satisfactorily and omission on the part of the prosecution to fulfill the requirements of Section 103 Cr.P.C. is not fatal in view of Section 25 of the Act.
12.Learned counsel for the appellants further contended that there were some serious lapses in the process of investigation, which had vitiated the trial. However, he has not been able to point out any so-called serious defect in the investigation, other than certain minor lapses, which do not affect the validity of the trial.
13.Having considered the matter from all angles, we are satisfied that the appellants were involved in the smuggling/ transportation of contraband charas in Oil Tanker No. K-1083 Peshawar.
Abdul Hassan appellant was driving the Tanker where Zainullah appellant was sitting with him on front seat. The prosecution has proved the guilt of the appellants beyond any reasonable doubt and has successfully discharged its burden through consistent and confidence inspiring evidence.
The mere denial and charge of pleading innocence without substantiating their plea through cogent evidence is not sufficient to secure acquittal. The impugned judgment is based on sound appreciation of evidence and there is nothing on the record to suggest any or animosity against any of the prosecution witnesses. We find from the record that evidence of recovery in respect of quantity of the narcotic substance recovered and sent for chemical analysis, is consistently established by the PWs. The report of the Chemical Examiner in respect of substance submitted to him is in positive. Muhammad Amin Vs. State (1999 SCMR 1367), and Mian Gul Bacha Khan and another Vs. The State (PLD 2004 Peshawar 246).
14. The upshot of the above discussion is that appellants have failed to make out a case for acquittal but adverting to the quantum of sentence, we find that the appellants are first offenders and have no previous record, therefore, their sentence is reduced to rigorous imprisonment for fourteen years from life imprisonment whereas the payment of fine is maintained, in default whereof to further undergo one year simple imprisonment with benefit of Section 382-B Cr.P.C.