' MUHAMMAD HASHIM KHAN KAKAR, J.---This appeal is directed against the judgment dated 27th October, 2009, passed by Special Judge, under the 'Control of Narcotic Substances Act, 1997, Lasbella at Hub, whereby appellant Attaullah son of Moula Dad has been found guilty for committing an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (the C.N.S. Act) and has been convicted and sentenced to suffer' R.I. For fourteen (14) years and to pay a fine of Rs,1,00,000 (rupees one lac only), or in default whereof to further undergo' S.I. For one (01) year. Benefit of section 382-B of the Cr.P.C. Was also extended in favour of the appellant.
2. The prosecution story, in brief, is that on 31st August, 2005, two cases; one under section 9(c) of the C.N.S. Act and other under section 13(e) of the Pakistan Arms Ordinance, 1965, were registered at Police Station, Hub, on the report of Jameel Ahmed, IP, vide F.I.R. Nos.112 and 114 of 2005 respectively, wherein he alleged that, on receiving spy information to the effect that accused Attaullah, belonging to Rehman dacoit group, is present in his house situated at Jam Yousaf Colony, having huge quantity of charas brought by him from Quetta, he, along with other police party, raided the house of the accused, where seven persons were found present, out of whom Attaullah and Lal Muhammad were armed with Kalashnikovs and Sajjid Ali with repeater gun, who were overpowered. It was further alleged that four drums, present in the courtyard, were checked, which resulted in recovery of 264 bundles of charas, weighing 155 kilograms. In addition to above, another quantity of charas, in shape of loose rods, weighing 25 kilograms, was also recovered from the drums, which. Were taken into possession and sealed into parcel after drawing samples and the appellant along with co-accused (since acquitted) were arrested.
3. On the stated allegations, a formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced three witnesses, namely, P. W.1 Gul Hassan, S.-I., P.W.2 Siraj Ahmed, S.-I., and P.W.3 Jameel Ahmed, DSP.
4. In his examination under section 342 of the Cr.P.C., the appellant denied and controverted each and every allegation of fact levelled against him by the prosecution and professed his innocence.
However, he neither made statement on oath under section 340(2) of the Cr.P.C., nor produced any witness in his defence.
5. On conclusion of the trial, the trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, thus, he was convicted and sentenced, as detailed above.
6. We have heard Mr. Obaidullah Quresh, learned counsel for the pauper appellant and Haji Liaquat Ali, learned counsel for the State, in the light of the material available on the file. The main contentions of learned counsel for the pauper appellant are as under:--
(a) that F.I.R. Was registered at Police Station Hub, but the investigation was carried out by the CIA staff, which was improper and illegal;
(b) that the recovery is doubtful, as the mandatory requirements of section 103 of the Cr.P.C. And sections 20 and 21 of the C.N.S. Act had not been complied with by seizing officer and the witnesses being poEce officials cannot be relied upon;
(c) that no evidence was brought on record about the ownership of the house or. That the appellant was in conscious possession of the house in question, therefore, his conviction, without proving conscious possession or ownership of the house, is bad in law and liable to be. Set aside;
(d) that the conviction is also liable to be set aside, as the articles were sent. To .FSL for expert's opinion with unexplained delay, making the whole case of prosecution doubtful, and
(e) that the samples were not drawn from each rod, as such, the appellant was entitled to acquittal and according to prosecution witnesses, reader of Investigating Officer had recorded the statements of witnesses, which means that in actuality the reader has conducted the investigation, who was not authorized to do so under the law.
' In support of his arguments, learned counsel placed reliance on the judgments reported in PLD 2004 SC 856, 2003 SCM R 881 PLD 2008 SC 376, 2008 SCM R 991 and 2009 SCM R 431.
' On the contrary, Haji Liaquat Ali, learned counsel for the State, supported the impugned judgment and maintained that the prosecution had succeeded in proving the guil 1 of the appellant to the hilt and the trial Court has discussed the evidence and has given valid reasons for its conclusion, which hardly call for interference.
8. We have gone through the contents of the impugned judgment, which show that the trial Court has discussed the whole evidence and has given valid reasons for its conclusion. The judgment of the trial Court does not suffer from any illegality or material irregularity. The provisions of section 103 of the Cr.P.C. Have categorically been excluded as per provisions of section 25 of the C.N.S. Act.
So far as the evidence of police witnesses is concerned, we are of the opinion that the police officials, who have no or personal grudge against the accused, would be competent and their evidence cannot be A discarded, only for the reason that they are police officials. They have furnished straightforward and confidence inspiring evidence and there is nothing on record to show that they deposed against the accused maliciously or out of animus. It cannot be believed that police officials would plant such a huge quantity of narcotic on the accused from their own resources.
9. As regards' the violation of sections 20 and 21 of the C.N.S. Act is concerned, it is suffice to say that in a judgment of "Fida Jan v. The State" reported in 2001 SCM R 36, Hon'ble Supreme Court held that non-compliance of provisions of section 20 of the C.N.S. Act, could not be considered a strong ground for holding that the trial of accused was bad in the eye of law, as such provisions were directory in nature, whereas in a judgement of "State through A.G. Sindh, Karachi v. Hemjoo" reported in 2003 SCM R 881, Hon'ble Apex Court held that, authorized officer under the law in exceptional cases in which the search warrant could not be possibly obtained before conducting the raid could proceed for conducting of raid without warrant but such power could not be allowed to be used in every case in normal circumstances. Even otherwise, it may be noted that the house, from where the narcotic was recovered, was not a residential house, but a narcotic den. Secondly, the information was received by P.W.1 at about 3-15 p.m., after office hours and it was not possible for him to have obtained search warrant at the cost of disappearance of the accused and narcotic, as such, in peculiar circumstances of the case, non-compliance of provisions of sections 20 and 21 of the C.N.S. Act would not make the conviction of the appellant bad in the eye of law.
Reliance can also be placed on a judgment Of "Muhammad Hanif v. The State" reported in 2003 SCM R 1237.
10. Adverting to next arguments of learned counsel that the investigation was carried out by the CIA, improperly, which has vitiated whole of the trial, but we are not in agreement with him, as the F.I.R. Was. Lodged at Police Station, Hub, and mere investigation by the CIA personnel was an irregularity, but it would not vitiate the whole trial, entitling the appellant to acquittal. By holding this view, we are fortified from a judgment of "Kausar Irshad v. The State" reported in 1998 SCM R 1148, wherein it was held as under:-- "As regards the question, as to whether the above illegality/ irregularity if already committed by the C.I.A. Personnel would vitiate the trial, it may be observed that subsection (2) of section 156, Cr.
P. C. Expressly provides that: 'No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.' It is an admitted position that the C.I.A. Is part of the Police Force.
It is in fact a special branch carved out from the police force for special purpose. The violation of section 156(1) of the Cr.P.C. May not vitiate trial if no serous prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C., but it does not, mean that the C.I.A. Personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law."
11. Similarly, we find no substance in the arguments of learned counsel that investigation was carried out by reader 'of Investigating Officer, because it has come on record that reader of the Investigating Officer had recorded the statements of witnesses under the direction and not independently. Likewise, mere delay in sending articles to FSL would not entitle F the appellant to acquittal, as it is not the case of the appellant that the parcels prepared by the Investigating Officer were tampered with, nor any such suggestion was put to the Investigating Officer. In the said context, reference can be made to a judgment of "Khawand Bakhsh and others v. The State and others" reported in PLD 2000 SC J.
12. Reverting to the last limb of arguments advanced by learned counsel for the appellant regarding non-taking of samples from each and every rod, we are of the view that the appellant has already been dealt, with leniency, on account of such defect in the prosecution case.
Furthermore, it has come on record that samples were drawn from 264 rods and each rod was weighing 10 grams, therefore, it can safely be concluded that the appellant was found in possession of 2640 grams of charas and he was rightly convicted and sentenced under section 9(c) of the C.N.S. Act.
For the aforesaid reasons, we, while finding no merit in .The appeal, dismiss the same. The appellant shall also be entitled to the benefit of section 382-B of the Cr.P.C.