' IJAZ-UL-HASSAN KHAN, J.---This judgment will dispose of Criminal Appeal No,29 of 2005, filed by Sabir Khan appellant, who was convicted and sentenced by learned Additional Sessions Judge, Nowshera, vide his judgment dated 14-12-2004 as under:-
(1) Life imprisonment and a fine of Rs,1,00,000 and in case of default to undergo S.I. For further one year, under section 9 of the Control of Narcotic Substances Act, 1997.
(2) 7 years' R.I. And fine of Rs,10,000 and in default for six months under sections 419/420/170/171, P.P.C.
(3) Two years' R.I. With fine of Rs,5,000 under section 170, P.P.C.
(4) Six months' S.I. With fine of Rs,5,000 under section 171, P.P.C. And in case of default S.I. For six months'.
' All the sentences were directed to run concurrently. Benefit under section 382-B, Cr.P.C. Was, however, provided to the appellant.
2. Prosecution case precisely stated is that pursuant to authentic information, stated to have been received by the District Administration, on 31-1-2002, that contraband Charas from Bara (Illaqa Ghair), would be smuggled to the down country i.e, Punjab, in Ambulance bearing Registration No,A-9241-AD, a police party comprising S.-Is. Feroz Khan and Fazle Rabbi and others, laid "Naka Bandi" near 'Watar' bus stop, distant 5/6 kilometres from Police Station Nowshera Kalan. In the meanwhile, at about 1100 hours, aforesaid Ambulance was sighted coming from Peshawar side.
The Ambulance was stopped. On asking driver of the Ambulance, disclosed his name and parentage as Sabir Khan son of Dad Khan, resident of Dag Killay, Warsak Road, Peshawar and the person sitting with him introduced himself as Yousaf son of Ahmad Gul resident of Sam Baba, Bara.
Both of them were wearing uniform of Frontier Constabulary. Upon search 14 plastic bags containing Charas 'Pukhta', were recovered from the secret cavities of the Ambulance, which were weighed and found 300 kilograms. Out of seized property, four grams each were separated and sent to the office of Chemical Examiner Peshawar and report Exh.P.W.4/7 is in favour of the prosecution. The remaining was sealed into parcel. The accused were formally arrested. A 'Murasila' (Exh.P.W.4/1) was drafted at the spot and dispatched to police station, whereupon F.I.R.
No,65 dated 31-1-2002 was registered, under section 9 of Control of Narcotic Substances Act, 1997, read with sections 419/420/468/170/171, P.P.C.
3. The investigation of the case was carried out by the police and after having completed legal formalities, the accused was sent up for a trial before the .Learned trial Court, where the prosecution in order to prove its case, produced 5 witnesses, whereas the accused in his statement recorded under section 342, Cr.P.C. Pleaded not guilty and claimed trial. In reply to a question, 'as to why the P.Ws have deposed against you', he stated:-- ' "All the P.Ws, are police officials and highly interested in my conviction. I am absolutely innocent and has been falsely implicated in the instant case. On the day of occurrence, I came to the house of my sister and on the way the police party arrested me on the road and the real culprit escaped from the spot."
4. He neither opted to appear as his own witness under section 340(2), Cr.P.C. Nor produced any defence evidence,
5. At the conclusion of trial; the prosecution was found to have proved its case against the appellant beyond shadow of reasonable doubt. Resultantly, vide the impugned judgment, the appellant was convicted and sentenced as mentioned supra. It may be mentioned here that during trial co-accused Yousaf managed to escape.
6. Mr. Waheedullah Khalil, Advocate, representing the appellant contended that the appellant was convicted on a highly flimsy, doubtful and interested evidence of prosecution; that the impugned judgment is manifestly wrong and the evidence produced by the prosecution does not connect the appellant with the perpetration of the crime; that the statements of the prosecution witnesses are contradictory inter se and highly doubtful; that the mode of recovery as shown by the prosecution, without association of any public witness is also not beyond doubt; that since entire recovered contraband was not sent for chemical examination, the appellant could only be punished for quantity examined by the Chemical Examiner and that specimen separated from the recovered material has been sent to the laboratory after considerable delay and no explanation has been furnished for such delay, which has rendered the recovery doubtful.
7. As against that, Mr. Sher Bahadur, Advocate, appearing on behalf of the State, supported the impugned judgment of the trial Court and maintained that prosecution has proved its case against the appellant beyond any shadow of doubt, recovery of huge quantity of Charas and other articles i.e, Frontier Constabulary uniforms and fake numbers plates, was proved by the P.Ws., statements of whom could not be shattered by the defence in spite of lengthy cross-examination and that there is no such material contradiction, on the basis of which trial of the case can be said to have vitiated.
8. Arguments of learned counsel for the parties have been heard by us in detail in the light of the material on record.
9. The prosecution in order to prove the factum of apprehension of appellant and recovery of contraband Charas from the secret cavities of the Ambulance and other articles, has produced two witnesses, namely, S.I. Fazle Rabbi (P.W.1) and Inspector Jehanzeb Khan (P.W.4). The former is one of the marginal witnesses to recovery memo. Exh.P.W.1/1, whereas the latter has carried out the investigation. Both these witnesses seem to be independent witnesses having no reason for falsely implicating the appellant in this case. No material discrepancy at all in their deposition inter se regarding recovery of Charas, Frontier Constabulary uniforms and fake number plates, has been pointed out. The prosecution witnesses are consistent regarding the time, place of occurrence and recovery of Charas and other articles and the manner in which it has been effected. The discrepancies pointed out by the learned appellant's counsel are inconsequential and of no importance. A careful perusal of statement of S.I. Fazle Rabbi shows that it is in line with the evidence of Inspector Jehanzab Khan and despite lengthy cross-examination of P.Ws., neither the defence could create any dent in their statements nor anything else favourable to the appellant could be elicited from these witnesses. It is true that prosecution witnesses are officials of police but it is equally true, that they have no reason or motivation to falsely implicate the appellant. The learned counsel for the appellant has not urged any rancour or animosity against these witnesses with the appellant. There has been unanimity in the deposition on the material aspect of the recovery and we see no reason to disbelieve them.
10. The submission that compliance of the provisions of section 103, Cr.P.C. Was not made in the case as no two respectable persons of the locality were associated, has no force firstly for the reason that provision of section 103, Cr.P.C. Has 'been excluded under the provision of section 25 of the Control of Narcotic Substances Act, 1997 and the provisions of section 20 of the Act are directory in nature, therefore, its noncompliance cannot be considered as a strong ground for holding that the trial of the appellant is bad in the eye of law whereas on the other, it is not denied that the main aim and object of enacting of section 103, Cr.P.C. Is to ensure that the search was fair and to exclude any possibility of concoction and transgression. It never meant to disbelieve the statements of official witnesses in any other circumstances. In this regard, reliance can be placed on Mirza Shah v. State (1992 SCMR 1474). ll. Adverting to the argument that entire recovered narcotic should have been sent to Chemical Examiner and lapse of the prosecution in this behalf, should be construed to hold that the appellant is only liable to the extent of four grams, the objection is not tenable. Taking of small quantity out of each packet for chemical examination, is enough to prove that entire recovered material was contraband as held in Ali Muhammad and another v. The State (2003 SCM R 54 and Mst. Anwar Bibi v. The State (2004 PCr.LJ 692).
12. Learned counsel for the appellant also contended that the samples separated from the seized Charas was received by Forensic Science Laboratory, Peshawar on 6-2-2002 after considerable delay of seizure, whereas the report prepared was sent on 16-3-2002 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 after eleven days of the seizure of narcotics is illegal and rendered the seizure invalid in the eye of law. The contention of the learned counsel, is without substance.
These rules have placed no bar on the Investigation Officer to send the samples beyond seventy two hours of the seizure, received the FSL 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. And absolutely 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.
13. 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.
14. In case of narcotics where prosecution is made under the Control of Narcotics Substances Act, 1997, section 29 of the Act (ibid) has provided that there is presumption of possession of illicit articles unless the person prosecuted rebuts such presumption.
' In view of the above, we find that prosecution has succeeded to prove its case to the hilt and the conclusion drawn and reasons given by the trial Court show fair evaluation of evidence. We find no illegality or infirmity in the impugned judgment warranting interference of this Court. The appeal is bereft of merit. The same is dismissed.