Ijaz-ul-Hassan, J.--The above titled appeals have been filed under Section 48 of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as the said Act), against the judgment dated 23.4.2004, handed down by learned Sessions Judge/Zilla Qazi, Shangla, camp Court, Swat, whereby Wahid Gul and Syed Kamran Shah, appellants, were convicted under Section 9(c) of the said Act and awarded life imprisonment, with fine of Rs.50,000/- or in default whereof for further one year S.I. besides giving them the benefit under Section 382-B Cr.P.C.
2. The case of the prosecution is that on 21.4.2003, DSP Haq Nawaz Khan (PW.3) alongwith a police party consisting of HCs Sher Muhammad, Muhammad Tahir and others, was present at Shangla Check Post, when at about 11.30 hours, a truck bearing Registration No. K-9229 Peshawar was sighted coming from `Khawaza Khela' side. The truck was stopped. Apparently the truck was empty.
On asking, driver of the truck disclosed his name and parentage as Wahid Gul son of Muhammad Sultan, resident of mohallah Sher Khan, Havelian and the person sitting with him on front seat introduced himself as Syed Kamran Shah, son of Saadat Hussain Shah, resident of mohallah Khan Khel, Havelian. The search of the truck led to recovery of 117 packeth of charas concealed in the secret cavities of the truck. The charas was weighed and found 117 K.Gs. Out of the said quantity of charas 4 grams each were made into a separate sealed parcels for chemical analysis, whose report tendered in evidence as Ex.PZ confirmed the contents to be of charas. Truck, driving license of Wahid Gui and registration of the truck in the name of Sanober Khan, were also taken into possession. Both the accused were arrested, a `murasila' was drafted, sent to Police Station Alpuri, District Shangla, where it was incorporated into formal FIR No. 55 dated 21.4.2003, under Section 9
(c) of the said Act.
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 they pleaded not guilty and claimed to be tried.
4. At trial, the prosecution, in order to prove its case examined six witnesses in all. After close of the prosecution evidence, statements of the accused under Section 342 Cr.P.C. were recorded wherein they denied the allegations leveled against them by the prosecution and professed innocence, asserting that real culprits were let off by the police and they were falsely implicated in the case.
The accused also denied having made confessional statements. 'The accused neither opted to make statements under Section 340 (2) Cr.P.C. nor they produced any defence evidence.
5. The learned trial Judge, after hearing arguments of learned counsel for the parties in the light of the material on record, came to the conclusion that prosecution has succeeded to establish its case against the appellant beyond shadow of reasonable doubt and convicted and sentenced the appellants, as mentioned and detailed above.
6. M/s. Mushtaq Ahmad and Muhammad Iqbal Khan, Advocates, representing the appellants, contended, that the judgment written by the learned trial Court is not a fair judgment. It is not based on proper, just and legal appreciation of the evidence on record; that the real culprits having a hand in the affair were let off by the police and the appellants were made scapegoat and involved in the case on account of their refusal to abide by the wishes of the police; that there are major disscr epancies/contradictions between the statements of prosecution witnesses; that requirements of Section 103 Cr.P.C. had not been complied with; that the alleged recovery has not been made from the possession of the appellants; that specimens separated from the recovered material have been sent to the laboratory after considerable delay; that confessional statements attributed to the appellants are not only contrary to legal requirements but also the result of coercion, pressure, undue influence and mala treatment and that the truck in question has not been produced at the trial, which has adversely affected the prosecution case. In support of the contentions, reliance was placed on Sarwar Vs. State (2003 P.Cr.L.J 1387) and Qayum vs. The State (2005 PCrLJ 2034).
7. Mr. Ziauddin Siddiqui, Advocate, appearing on behalf of Anti Narcotic Force, on the other hand, defend the impugned judgment and contended that it is clear from the material on record that prosecution has proved its case against the appellants beyond any shadow of doubt. As such, learned trial Court has rightly convicted and sentenced the appellants. The conclusions drawn and reasons advanced by the learned trial Judge show fair evaluation of evidence and hardly call for interference of this Court. In this regard, reliance was placed on Niaz Muhammad Vs. The State (2006 P.Cr. LJ 228).
8. We have heard, at length arguments and submissions of learned counsel for the parties, in the context of the material on record.
9. The prosecution in order to prove the factum of apprehension of the appellants and recovery of contraband charas from the truck in question, has produced DSP Haq Nawaz Khan (PW.3) and ASI Muhammad Sher (PW.4). Both these witnesses are star witnesses in the case.
10.A careful examination of the testimony of these prosecution witnesses indicates that they 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 witnesses have been cross examined but nothing has been elicited from their statements. The appellants, feeling satisfied with their statements under Section 342 Cr.P.C., have not appeared as their own witnesses on oath under Section 340 (2) Cr.P.C. We are not impressed with the submission of the learned counsel for the appellants that the huge quantity of narcotic cannot be placed in the secret cavities of the truck. The next submission made by the learned counsel for the appellant that the recoveries have been effected in violation of Section 103 Cr.P.C. is also devoid of force. Admittedly, the recovery of narcotic substance has been made in accordance with the provisions of Section 25 of the Control of Narcotic Substances Act, 1997. The said provisions of special statute specifically exclude the application of Section 103 Cr.P.C. Needless to emphasize that police officials are competent witnesses and police officials. The learned counsel for the appellants has failed to point their testimony cannot be discarded merely for the reason that they are out any background of bitterness or ill-will between the recovery witnesses and the appellants so as to prompt the former to falsely involve the latter in a case of this nature.
11. It would be seen that a huge quantity of contraband 'charm' weighing 117 K.Gs. has been recovered by the raiding party from the secret cavities of the truck in question. 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.
12.Learned counsel for the appellants has also contended that the samples separated from the seized 'charm' were sent to the Forensic Science Laboratory after 28 days of recovery 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 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.
14.Another piece of evidence heavily relied upon by the prosecution are the confessional statements of the appellants recorded on 26.4.2003 by Syed Ali Raze, the then. Civil Judge/Judicial Magistrate, Puran, District Shangla. Muhammad Hamayun Khan, Reader/Steno of the learned Magistrate appeared in Court as PW.6 and stated that confessional statements of the appellants were recorded by learned Magistrate and that he is conversant with his signature. The confessional statements have been challenged on various grounds. The submission of the learned counsel is misconceived. Delay in recording confession by itself cannot render the confession nugatory if otherwise it is proved on record that the same was made voluntarily. Again, retracted confession cannot be kept out of consideration merely on the ground that it was recorded three days after police custody of the accused. Mere fact that confessional statement was recorded three days after obtaining accused's police custody, would not by itself suggest that the confession was result of coercion or torture by police, as held in Rozi Khan.. Vs.. The State (PLD 1987 Peshawar 304).
15.It has also been contended by learned counsel for the appellants that case property i.e. truck in question has not been produced at the trial, which adversely affects the prosecution case. The submission is without force. A plausible explanation has been furnished for non-production of the truck. It has come in evidence that tyres of the truck had burst and it was not in workable condition.
16.In the last limb of arguments, it was argued by learned counsel for the appellants that actual culprits, having a hand in the affair were let off by the police and appellants were made scapegoat and falsely involved in the case for reasons not far to seek. The submission is misconceived. It is an accepted principle of law that when an accused at a criminal trial takes a specific plea the onus invariably shifts on him and he is required to produce his evidence and to prove his plea or at least his plea should be supported by the circumstances and it should not be unfounded altogether. In the instant case, learned trial Judge had valid reasons to disbelieve the stance taken by the appellants and we see no reason to disagree with him.
17.We have gone through the ruling cited by learned counsel for the appellants and in our view facts mentioned therein are quite different and distinguishable from the facts of the present case and are of no assistance to the appellants.
For the above noted reasons, we find that the prosecution has brought sufficient material on the record to connect the appellants with the commission of crime. Learned trial Court has discussed the evidence properly and learned counsel for the appellants have not been able to point out any illegality or irregularity as to how the impugned judgment is not sustainable. The appeals are without substance. The same are dismissed.