' IJAZ-UL-HASSAN KHAN, J.--Tariq Mehmood appellant, was tried by learned Judge, Special Court (C.N.S.) N.-W.F.P., Peshawar at Kohat Camp in case F.I.R No,1 dated 5-1-2003 registered with Police'
Station Anti-Narcotic Force, Kohat, for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as the Act). The learned trial Court, by virtue of judgment dated 23-2-2004 convicted the appellant under section 9(c) of the Act, and sentenced him to suffer life imprisonment with fine of Rs,2,00,000 or in default thereof to undergo further one year's S.I., giving him the benefit of section 382-B Cr.P.C. The accused preferred an appeal against his conviction and sentence. Before the Peshawar High Court, Peshawar, which was registered as Criminal Appeal No, 217 of 2004. The learned High Court, while maintaining the conviction and sentence dismissed the appeal on 1-9-2005. Hence instant Criminal Appeal No, 576 of 2006.
2. The prosecution story in brief is, that on 5-1-2003, Inspector Asmatullah Khan P.W complainant, in this case, along with A.S.I., Bhadar Nawaz, FC Muhammad Amin, FC Muhammad Rauf and others, was present at Kotal check post for checking, when at about 9-30 a.m., a coaster bearing Registration No, K-3736, N.-W.F.P. Was sighted coming from `Dara Adam Khel' side. The Coaster was stopped. The complainant entered inside the Coaster, started search and on suspicion brought down a passenger with a bag lying underneath his seat. On asking, the passenger disclosed his name and parentage as Tariq Muhmood son of Muhammad Rafique, resident of `Masjid Firdous Qadeem' Darya Khan, Bhakkar. The bag was opened and `charas' was found in the same, weighing 15 kilograms i,e, 15 packets of one kilogram each. A meager quantity i,e, two grams each was separated out of the seized property and sent to the office of Chemical Examiner to Government of Punjab, Rawalpindi for analysis. The remaining was sealed in a separate parcel. On personal search of the accused, a cash amount of Rs,500, National Identity Card, ticket, service card and pocket diary etc. Were also secured from his possession. The accused was arrested and a case was registered against him under section 9(c) of the Control of Narcotic Substances Act, 1997. The challan was accordingly submitted against him to face the trial before the Special Court established under the ibid Act.
3. The prosecution in support of charge against the accused examined five witnesses at the trial, namely Feroz Khan Muharrir, P.W.1, Muhammad Rauf FC P.W.2, Asmatullah Khan Inspector P.W.3, Muhammad Amin FC.4 and Rehman Khan AD P.W.S. After close of the prosecution case, accused was examined under section 342, Cr.P.C. He denied the prosecution allegations, disowned the ownership of the bag and contraband narcotics, asserting that the bag was recovered by the investigating officer from the floor of the vehicle and he was falsely implicated on account of being 'Punjabi' speaking. He, however, did not opt to produce evidence in his defence or depose on oath in disproof of the allegations appearing against him in the prosecution case. The learned trial Judge, on the conclusion of the trial held the appellant guilty of the charge and convicted and sentenced him as mentioned in the opening paragraph of this judgment. On dismissal of the appeal by learned Peshawar High Court, Peshawar vide judgment dated 1-9-2005, the appellant has filed instant appeal.
4. Haji M. Zahir Shah, Advocate, in support of the appeal, contended with vehemence that there is no reliable evidence led by the prosecution to have proved the charge against the appellant, but Courts below, without appreciating the same, recorded erroneous finding; that the prosecution has failed to prove nexus of appellant with the bag containing contraband charas as no article or Identity Card of the appellant were recovered there from that there are serious discrepancies/contradictions between the statements of prosecution witnesses; that no private person was joined in the recovery proceedings and no such witness was cited by the prosecution in derogation of provisions of section 103, Cr.P.C; that specimens separated from the recovered material have been sent to Laboratory after considerable delay, which has made the prosecution story highly doubtful; and that the investigation officer had not taken and sent the sample of each packet for chemical examination and only three samples instead of 15 samples were sent and it cannot be held with certainty that the entire lot was in fact charas. Concluding the arguments, learned counsel .Submitted that appellant is first offender and a young man of about 28 years of age and sentence awarded to him is on higher side and may be reduced substantially to meet the ends of justice. To substantiate the contentions, reliance has been placed on Mst Iqbal Bibi v. The State, (2000 P Cr.LJ 1812), Johar Ali and another v. The State, (2003 P Cr.LJ 680) and Mst. Zubaida Sadruddin v. The State, (PLD 2006 Peshawar 128).
5. The prosecution in order to prove the factum of apprehension of the appellant and recovery of contraband charas from the bag carried by him, has 'produced two witnesses, namely FC Muhammad Rauf, (P.W.2) and Inspector Asmatullah Khan, (P.W.3). The former is one of the marginal witnesses to the recovery memo (Exh. PW 2/1) through which the contraband charas was taken into possession whereas he later, carried out investigation and submitted challan against the accused in Court. Both the witnesses have fully supported the prosecution story. They have remained absolutely consistent, coherent and have successfully faced the test of cross- examination. The contradictions pointed out by learned counsel for the appellant, are not of serious nature and those cannot be considered sufficient to vitiate the trial or to make the recovery doubtful. The mere fact that these witnesses belonged to Anti-Narcotic Force, by itself, cannot be considered a good ground to discard their statements. Reference in this context can be made to the cases of Naseer Ahmad versus the State, (2004 SCM R 1361) and Riaz Ahmad v. The State, (2004 SCM R 988).
6. Learned counsel for the appellant strenuously 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 hours and the report received .Is illegal and rendered the seizure invalid in the eye of law.
7. The rules have placed no bar on the Investigating Officer to send IA 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. There is no allegation of the appellant that the property was tampered with during the process of transit or the remaining property was not charas. It was for the appellant to have taken such plea before the trial Court but the appellant did not do so.
However, we have examined the chemical Analyzer's report and found that the sealed packets were received by him which contained the signatures of marginal witnesses. In the absence of any allegation of tampering with the property, the argument of learned counsel for the appellant is not sound. In this regard, reference can be made to Amjad v. The State (2006 PCr.LJ 988), Ibrahim v.
The State, (2007 YLR 1767 Peshawar) and Abdul Hassan and another v. The State, (2007 YLR 1799 Peshawar).
8. The contention of learned counsel for the appellant that the recovery was not witnessed by persons from public, we may observe that section 25 of C.N.S.A. Excludes the application of section 103, Cr.P.C.
9. Learned counsel for the appellant 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.
10. The objection of learned appellant's counsel is that the investigating officer had not taken and sent the sample of each packet for chemical examination and only three samples instead of 15 samples were sent and it cannot be held with certainty that the entire lot was in fact charas, is also devoid of force and carries no weight.
11. The perusal of the record would not show any legal or factual defect in the current findings of the two courts regarding the guilt of the appellant. The Charas in huge quantity has been recovered from the bag carried by the appellant. The recovery was proved by the members of aiding party, who had no personal reasons to involve the appellant in a false case. The explanation offered by the appellant for false implication is not plausible. The learned counsel for the appellant has not been able to point out any material discrepancy and contradiction in the evidence suggesting a slight doubt in the prosecution case arising in favour of appellant and consequently, we would not take any exception to the judgment of High Court.
12. Adverting to the sentence, we find that a legal sentence has been awarded to the appellant which hardly requires interference of this Court.
13. Pursuant to above, finding no substance in this appeal, we dismiss the same and maintain the impugned judgment.
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