' IJAZ UL HASSAN KHAN, J.---Appellant Munir Khan, has filed instant Criminal Appeal No,419 of 2005, to challenge the judgment, dated 24-5-2005, recorded by learned Additional Sessions Judge, Peshawar, whereby the appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life and to pay a fine of Rs,5,00,000 (five lac) or in default of payment of fine to undergo simple additional imprisonment for six months. The bus bearing Registration No, C-1116 Nowshera, found to have been used in the commission of offence, was also confiscated to the State under section 32 of Act ibid.
2. Shortly narrated the facts leading to the filing of the appeal are that on 14-1-2005, at about 10-30 A.M., P.W. Muhammad Sher Khan, S.H.O. Police Station, Pishtakhara Peshawar, along with S.-I.
Aurangzeb and other police officials, was present at Tara Qadeem' Check Post, when in the meanwhile, a passenger bus bearing Registration No, C-1116 Nowshera, coming from Bara side, was stopped for checking. Munir Khan son of Sultan Muhammad, resident of Nazar Bostan Baba, Peshawar, was driving the bus, and Muhammad Noor son of Noor Gul, resident of Rashid Garhi, Peshawar, was sitting beside him. The bus was searched, consequent upon which 80 bags of charas were recovered from its secret cavities. Each bag contained 25 packets. The charas was weighed and found 2000 kgs. The same was packed and sealed into separate parcels. The bus was taken into custody and the accused were formally arrested. A `murasila' (Exh.PA/1) was drafted at the spot and sent to Police Station, Pishtakhara, whereupon F.I.R. No,41, dated 14-1-2005 was registered under sections 6/7/8/9 of the Control of Narcotic Substances Act, 1997.
3. 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. It may be mentioned here that case of co-accused Noor Muhammad was separated from the case of the appellant under the Juvenile Justice System Ordinance, 2000 and sent to the Court concerned for trial.
4. The prosecution during trial examined three witnesses, namely P.Ws. Muhammad Sher S.-I.
Aurangzeb S.-I. And Abdul Wahid H.C. While examined under section 342, Cr.P.C. The accused denied the prosecution allegations and claimed to have been falsely charged. In answer to question, 'what is your statement and why are you charged', he stated:- "(I) worked as a conductor along with my co-accused with the bus referred above, which plies between Peshawar and Lahore. The name of driver of the bus was Pir Muhammad, who hailed from Khyber Agency. A day prior to the alleged occurrence when we came from Lahore to Peshawar Ada, the owner of the bus Jamshed took the bus to Bara, asking us to come there on the following day. Accordingly, I along with my co-accused went to Bara, where owner Jamshed and driver of the bus were present. I along with my co-accused boarded in the bus and the driver started the same on the way to Haji Camp Bus Ada. When we reached the spot, the bus was stopped by S.H.O.
Muhammad Sher Khan, who was present there. I along with my co-accused were arrested and taken to Police Station and put in the lock up. Subsequently, we came to know that a false case has been registered against us. I am neither driver nor I know how to drive a vehicle."
' Neither the appellant appeared as a witness in his defence under section 340(2), Cr.P.C. Nor he produced any defence witness during trial .
5. Mr. Muhammad Jamal Khan, learned Additional District and Sessions Judge, Peshawar, at the conclusion of trial, after appraising the case of the prosecution, found the appellant guilty of the offence and thus convicted and sentenced him as mentioned and detailed above.
6. Mr. Muhammad Tariq Jawed Advocate, appearing on behalf of the appellant, while assailing the conviction pleaded that the appellant is almost a blind person as his left eye has no vision, whereas his right eye suffers from complicated cataract and as such, it was not possible for him to drive; that the plea taken by the appellant at the trial has been ignored and discarded without any justifiable reason; that there was reliable evidence led by the prosecution to have proved the charge against the appellant, but learned trial Court, without appreciating the same, recorded erroneous findings; that appellant had no conscious knowledge that contraband material was concealed in the bus; that there are material contradictions in the statements of all the prosecution witnesses; that prosecution did not produce evidence to demonstrate that it was in the exclusive knowledge of the appellant that charas was kept in the secret cavities of the bus he was driving; that the P.Ws. Remained evasive and nothing was said by them that the appellant knew that he had been carrying charas with him; that the presence of the appellant in the bus could not be held to be enough to convict him, whereas it was not proved through reliable evidence that the appellant was transporting a forbidden article; that the police was required to investigate the case thoroughly to apprehend the real culprit and that the prosecution did not succeed to prove that the appellant had the knowledge that contraband material was concealed in the bus. The learned counsel also contended that the samples separated from the seized charas were received by Forensic Science Laboratory after 4/5 days of seizure, 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 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.
Concluding the arguments, learned counsel half-heartedly contended that the evidence on record has not been believed against co-accused assigned similar role qua the appellant, but the same set of evidence has been used against the appellant, which has resulted in complete failure of justice. To supplement the contentions, reliance was placed on Zahoor Ahmad Awan and another. v. The State (1997 SCM R 543), Sameer v. The State (2004 PCr.LJ 886), Sarwar Jan v. The State (2004 PCr.LJ 1224) and Nek Muhammad and another v. The State (PLD 1995 SC 516).
7. While opposing the aforesaid submissions of the learned counsel for the appellant and supporting the impugned conclusion of the learned trial Judge whole heartedly, Mr. Muhammad Ayaz Khan, learned Deputy Advocate General contended that appellant has been rightly awarded the impugned conviction and sentence; that the prosecution had fully established its case beyond any reasonable doubt and the impugned conviction and sentence is the result of proper appreciation of evidence brought on record, which needs no interference. In this respect reliance was placed on Ikram Hussain v. The State (2005 SCM R 1487).
8. We have heard at length arguments and submissions of learned counsel for the parties, with reference to the material o. Record.
9. The fate of the prosecution case hinges upon the testimony of S.-I. Muhammad Sher (P.W.1) and IHC Abdul Wahid (P.W.3), besides the positive report of Chemical Examiner. P.W.1 has investigated the case, whereas P.W.3 is one of the marginal witnesses to recovery memo. Vide which the contraband charas was taken into possession. Both the above mentioned witnesses were subjected to lengthy and searching cross-examination but the defence could not be able to shatter their veracity or to lay foundation to establish the false implication of the appellant in this case. Nothing favorable to the appellant could be elicited during the course of his fairly lengthy cross-examination except certain minor contradictions and infirmities, which are not fatal to the prosecution case. Both these witnesses had given consistent statements and their credence could not be brushed aside merely because they are police officials. It has been noticed by us that P.W.1 and P.W.3 had no previous enmity oragainst the appellant, so as to involve him in a false case. Both these witnesses have corroborated each other on almost all the material facts. Their statements are also supplemented by thereport of chemical examiner. The witnesses faced the test of cross- A examination successfully and defence has failed to shatter their credibility.
10. The moot point for determination in this case would be, whether the contraband charas was the ownership of the appellant or it was planted against him. From no stretch of imagination, it can be concluded that such a huge quantity of charas could have been planted by the police B against an innocent person regarding whom there is nothing on the file to suggest that police has got any malice or for false implication.
11. As regards the minor contradictions between statements of prosecution witnesses, suffice it to say that such minor contradictions are not fatal to the prosecution case. The prosecution has succeeded to discharge the initial burden to prove its case beyond reasonable doubt within the purview of section 29 of the Act ibid and defence has failed to prove innocence of the accused. In terms of section 29(d) of the Act ibid, unless otherwise proved, the presumption would be that the person who is found in possession of the narcotics has committed an offence.
12. Learned counsel for the appellant has also contended that the specimen separated from the contraband charas were received by Forensic Science Laboratory after 4/5 days of seizure 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 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.
13. 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-west 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.
14. It is settled law that when accused takes a specific plea, the onus shifts on accused to prove such plea. The plea of blindness has not been taken by the appellant at any stage of the trial. This plea also finds no mention in the statement of the appellant recorded under section 342, Cr.P.C.
The mere assertion of the appellant that real culprit was allowed to slip away by the police and instead the appellant was made scapegoat on account of his refusal to abide by the wishes of the raiding party, without a positive attempt on his part to substantiate the same, is of no consequence.
15. An application has been moved on behalf of the appellant for referring him to Standing Medical Board for medical examination. At this stage we do not consider it appropriate to accept the application and refer the appellant for medical examination. The application is rejected.
16. Adverting to the contention of learned appellant's counsel, regarding acquittal of co-accused, we find that role of co-accused is quite distinguishable from the role assigned to the appellant and he has earned a finding of acquittal for valid reasons.
17. So far as the cases cited by learned counsel for the appellant 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 appellant and no exception can be taken to the judgment of trial Court.
18. Having considered the matter from all angles, we find that recovery of huge quantity of charas has been established through cogent and convincing evidence. The contraband charas was hidden in the secret cavities designed inside and roof top of the bus. The cavities were locked. The same were broken with hammer. It is difficult to believe that the appellant had no knowledge of the contraband charas and was totally unaware of it.
19. For the reasons mentioned above the appellant has rightly been found guilty for the commission of the offence and the impugned judgment being unexceptionable admits no interference by this Court. The appeal fails, which is hereby dismissed. The impugned judgment of conviction is maintained. However, benefit admissible under section 328-B, Cr.P.C. Is given to the appellant and his period of detention as under trail prisoner shall be counted towards his substantive punishment.