' TARIQ SHAMIM, J.---The appellant, namely, Manzoor Ahmad son of Malik Seraj Din, was tried by the learned Additional Sessions Judge/Special Court under, CNSA, 1997, Lahore, in case F.I.R. No,248/99, dated 1-12-1999, registered with Police Station Millat Park, Lahore for an offence under section 6/9(c) of the Control of Narcotic Substance Act, 1997. The learned trial Judge by virtue of his judgment dated 26-11-2005 found him guilty of the said charge, convicted him under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to suffer life imprisonment with fine of Rs,1,00,000 and in case of default thereof, to further undergo S.I. For six months. Benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Precisely the allegation against the appellant, according to the F.I.R. Is that Charas weighing 23 kilograms was recovered from a bag carried by the appellant when apprehended by the police on spy information. Shaukat a co-accused of the appellant, managed to escape while leaving behind a bag containing 22 kilograms of Charas.
3. At the trial the prosecution examined as many as seven witnesses. Tariq Masood Inspector C.I.A.
Kotwali (P.W.3) deposed that on 1-12-1999 he was posted in C.I.A. Saddar Nawankot, Lahore. On the said day, he was with Mahmood ul Hassan Butt, S.-I., C.I.A. Saddar Nawankot, Ismail A.S.-I. Maqsood and some Constables were also with them. When they reached Chowk Pakki Thatti Mahmood ul Hassan received spy information regarding some persons selling Charas. The police party conducted a raid and apprehended Manzoor Ahmad appellant while 'his co-accused managed to escape leaving behind the bag he was carrying at the time of the raid. From the bag of the appellant 23 kilograms Charas was recovered which was taken into possession vide recovery memo Exh.P.A. Ten grams Charas was separated from each of 23 packets. From the bag left behind by Shaukat Pathan co-accused of the appellant 22 packets of Charas were recovered which each weighed one kilogram. Ten grams sample was separated from each of the packets. Bulk Charas P- 2 and sample Charas was taken into possession vide recovery memo Exh.PB. After preparing sealed parcels attested by Muhammad Ismail, A.S.-I., the Charas and samples recovered from the appellant were also made into sealed parcel. After completion of investigation, the challan was prepared and dispatched to the S.H.O. For submission in the Court for trial. Mahmood ul Hassan, Inspector/S.H.O.
(P.W.4) and Mubeeft Sharif Inspector (P.W.5) narrated the same story.Muhammad Ismail, S.-I./S (P.W.6) along with Tariq Masood (P.W.3) attested the recovery memo Exh.PA. Sagheer Ahmad S.-I.
Appeared as P.W.7 who received the complaint Exh.PC sent by Mahmood ul Hassan Butt and registered formal F.I.R. Exh.PE.
4. On the conclusion of the prosecution evidence the statement of the accused in terms of section 342, Cr.P.C. Was recorded by the learned Trial Court. In answer to the question as to why the case against him and why the P.Ws had deposed against him, Manzoor Ahmad accused replied that he was involved in a murder case of Javed. Iqbal son of Haji Inayat in which he was sentenced to life imprisonment by learned Additional Sessions Judge, Lahore. Against that judgment he filed an appeal in which he was acquitted. On acquittal, the complainant Mahmood ul Hassan Sub- Inspector (P.W.4) after joining hands with Haji Inayat the complainant of murder case and on receiving a huge amount arrested him from his PCO situated at Ahmad Road Ichra, Lahore on 5-11- 1999 in the presence of witnesses namely, Ghulam Haider son of Abdul Hameed, Abdul Hameed son of Badar Din, Muhammad Inayat son of Nizam Din, Muhammad Younas son of Mehr Din, Nazir Hussain son of Said Muhammad, Muhammad Tariq son of Sharif Din, Mehr Din son of Alim Din and confined him at C.I.A. Nawankot, Lahore. During his confinement the complainant demanded Rs,5,00,000 from his father for his release. When his father declined to pay the amount the appellant was involved in the case. After the registration of the case his father produced the aforementioned witnesses before the Investigating Officer who refused to record their statements.
His father, therefore, filed writ petition No,23011/2000 before the Lahore High Court, Lahore in which a direction was given to the Investigating Officer to record the defence version of the accused but in spite of the direction the needful was not done. The prosecution witnesses deposed against him being police officials.
5. The learned counsel for the appellant has contended that the samples separated from the seized narcotic was received by the office of the Chemical Examiner on 29-1-2000 which is about two months after the same had been taken into possession and as required under Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 the maximum period provided for dispatching the samples for analysis cannot exceed 72 hours and although the said rules are directory in nature yet compliance thereof is essential. He has further argued that the place from where the appellant was apprehended by the police is very busy place and on seeing a huge police contingents coming towards him, the accused, if he was carrying any narcotic on him, would have easily escaped. This obviously shows that the appellant was not apprehended from the place as alleged by the prosecution. Apart from arguing that there is clear violation of section 103 Cr.P.0 as no independent witness has been associated with the recovery proceedings by the police he has stated that the witnesses of recovery are police officials whose testimony can neither be accepted nor termed as credible. He has lastly maintained that no person could have carried such a huge quantity of contraband for the purpose of selling in such a thickly populated area and therefore, the case as set up by the prosecution is not creditworthy and the appellant deserves to be acquitted.
6. The learned Deputy Prosecutor General while representing the State has contended that the appellant has failed to show any or motive on the part of the police to falsely implicate him in the case and that keeping in view the huge quantity of contraband recovered from the appellant, it cannot be said that the same was planted by the police. He has further contended that although the samples of narcotics were sent for chemical analysis with some delay, however, the same remained in custody of Muhammad Anwar, A.S.-I. (P.W.2) and nobody tampered with the same during the said period. He has further maintained that the delay in sending the samples of the narcotic substances for chemical analysis is not fatal to the prosecution as the provisions of Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 are directory in nature and not mandatory. He has lastly stated that the prosecution has proved the case against the appellant beyond any reasonable doubt and, therefore, the sentence and conviction of the appellant does not call for any interference by this Court.
6. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and have gone through the record with their able assistance.
7. It is the prosecution case that Mahmood ul Hassan Inspector (P.W.4) while he was posted in C.I.A.
Nawankot, Lahore received secret information on 1-12-1999 that two persons were selling narcotics in Pakki Thatti Chowk. Consequently a raid was conducted by him and on the potation of the informer the appellant was apprehended while carrying a parachute bag on his shoulder. On search 23 kilograms of charas was recovered which was in the shape of 23 packets. Ten grams was separated from each packet and sealed into parcels. The co-accused of the petitioner namely Shaukat Pathan, who was also carrying a bag at the relevant time, managed to escape leaving behind the bag which was also taken into possession by the police and on search thereof 22 kilograms of Charas was recovered. Samples were separated and sealed. Complaint was prepared by Tariq Masood and Muhammad Ismail A.S.-Is. (P.W.3 and P.W.6). The complainant (P.W.4) thereafter completed the normal procedural formalities. Investigation in the case was partly conducted by Tariq Masood Inspector (P.W.3) as well as by Mubeen Sharif Inspector (P.W.5).
9. At the trial the eye-witnesses account was furnished by Tariq Masood Inspector (P.W.3), Mahmood ul Hassan Inspector , complainant (P.W.4) as well as Muhammad Ismail, Sub-Inspector (P.W.6). The prosecution evidence was closed after submission of reports of the Chemical Examiner Exh.PF and Exh.PF-1. The eye-witnesses have fully supported the prosecution case and have remained consistent in their stance before the learned trial Court although some minor discrepancies have been pointed out by the learned counsel representing the appellant in their statements; however, they are of trivial nature and in our opinion do not in any way materially affect the testimony/evidence furnished by the witnesses. The plea taken by the appellant of being implicated on account of murder of one Javed Iqbal son of Haji Inayat and of being involved in the case of Haji Inayat, the father of the deceased, in connivance with an active participation of Mahmood ul Hassan (P.W.4) does not have the ring of truth and the same appears to be farfetched. The appellant has failed to establish any link or connection of the complainant of the instant F.I.R. With the said Haji Inayat through any credible evidence. Although some suggestions were put to Mahmood ul Hassan (P.W.4) during cross-examination in respect of the plea taken by the appellant but the same were persistently denied. The other plea advanced by the appellant that his complicity in the case is based upon non-payment of illegal gratification of Rs,5,00,000 to Mahmood ul Hassan (P.W.4) is also not tenable and appears to be devoid of any force. The appellant did take the stand in terms of section 340, Cr.P.0 on oath and in reply to a question put by the Deputy District Attorney on behalf of the State he replied that "it is correct that Mahmood Butt, Tariq Masood, Ismail, Mubeen Sharif had no enmity with me".This obviously belies the stand taken by the appellant before the learned trial Court regarding his false implication in the case at the instance of the police officials. Further, the learned counsel for the appellant has not been able to convince us as to why the complainant and other police officials would go to the extent of planting such a huge quantity of contraband on the person of the appellant.
10. Adverting to the argument advanced by the learned counsel for the appellant that it was easy for the appellant to have escaped from the place of occurrence on seeing the police party as the area was a thickly populated one, suffice it to say that all the eye-witnesses are consistent in their stand regarding receipt of secret/spy information, pointation of the accused by the informer, place from where the appellant was apprehended by the police with contraband Charas and the date and time of his arrest. Mahmood ul Hassan S.-I (P.W.4) the complainant and the other police officials in the proceedings leading to the arrest of the appellant have acted diligently and in good faith which is evident from the fact that the co-accused of the appellant had left behind a bag containing 22 kilograms of Charas which could have been easily planted on the appellant. In any case the element of surprise was also on the side of the police which must have proceeded with extreme caution in order to apprehend the appellant.
11. The other objection of the learned counsel for the appellant regarding non-compliance of the provisions of section 103, Cr.P.0 is also misconceived inasmuch as by virtue of section 25 of the Control of Narcotic Substances Act, 1997 non-citing of a public witness is not fatal to the prosecution case as section 103, Cr.P.0 has been specifically excluded from its application in cases of narcotics. Reliance is placed on the case of Zulfiqar Ahmad v. The State 2006 SCM R 800. Further, in such like cases the public is hesitant to come forward in order to participate in recovery proceedings as it may lead to serious repercussions and ramifications.
12. The learned counsel for the appellant has laid much emphasis on the argument that the samples obtained from the contraband were received by the office of the Chemical Examiner after considerable delay. According to him the contraband was seized on 1-12-1999 whereas the report of the Chemical Examiner reveals that the samples were received in the office of the Chemical Examiner on 29-1-2000 and in view of Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 samples dispatched for analysis beyond the period of 72 hours renders the seizure invalid in the eye of law. We are not impressed with the argument which has no substance and is devoid of any force. Rule 4 of the Control of Narcotic Substances (Government Analysts)
Rules, 2001 framed in terms of section 77 of the Control of Narcotic Substances Act, 1997 provides as under:- "4. Dispatch of sample for test or analysis.
(1) Reasonable quantity of samples from the narcotic drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer- in-charge of nearest Federal Narcotic Testing Laboratory, depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose.
(2) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure. The envelope should be sealed and marked "secret drug Sample/Test Memorandum".
13. From a bare perusal of Rule 4 it is manifest that it is directory in nature and not mandatory and therefore, the same cannot control the substantive provisions of the Control of Narcotic Substances Act, 1997. Similarly the same cannot be applied in such a manner that it would operate to frustrate the purpose of the Act for which the same has been framed. Further failure to follow the Rules would not in any manner render the search, seizure or arrest under the Act a nullity and make the entire prosecution case doubtful. In provisions which are directory in nature as Rule 4 ibid substantial compliance is sufficient and even if there is no compliance at all the Act cannot be invalidated by virtue of non-compliance if otherwise the same is done in accordance with law. In furtherance of what has been stated above it would be appropriate to mention here that Muhammad Anwar, A.S.-I. (PW-2) while being posted at Police Station Millat Park on 1-12-1999 received 47 parcels containing Charas for their safe custody at the Waal Khana'. In reply to question put to the witness by the Court as to whether those parcels were sealed or unsealed the witness replied that the said were sealed and as long as the same remained in his custody nobody tampered with them. Muhammad Aslam, constable (P.W.1) while appearing before the learned trial Court deposed that he had received the sealed parcels said to contain Charas on 29-1-2000 from Muhammad Anwar (P.W.2) and delivered the same to the office of the Chemical Examiner on the same day. Thus, there is un-controverted testimony of these two witnesses showing that the parcels were received by them properly sealed, kept in safe custody, were not tampered with and deposited in the office of the Chemical Examiner in due course with seals intact. Reliance is placed on the case of Muhammad Mushtaq v. The State (PLD 2001 SC 107).
In view of what has been discussed above, we are constrained to hold that the prosecution has successfully proved its case against the appellant beyond any shadow of reasonable doubt.
Consequently, the impugned judgment is maintained and the appeal fails which is hereby dismissed.