' MUHAMMAD QASIM KHAN, J.---Mst. Nasreen Bibi (accused/appellant) faced trial in case F.I.R.
No,526 of 2004 for an offence under section 6/9 of the Control of Narcotic Substances Act, 1997 Police Station Hanjerwal, Lahore and on conclusion of the trial vide judgment dated 5-1-2006 handed down by learned Additional Sessions Judge, Lahore, she was convicted under section 9-C of the Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life, with a fine of Rs,100,000, in default thereof, to further suffer simple imprisonment for two years, benefit of section 382-B, Cr.P.C. Was however, extended. Through the instant appeal, the above conviction and sentence has been assailed by the appellant.
2. The case of the prosecution as narrated in the complaint Exh.PA, is that on 18-10-2001 at about 4- 15 p.m., Abdul Razzaq A.S.-I. (complainant/P.W.2), along with other police personnel was on patrol duty near Shezan Factory Bund Road, Lahore, when received a tip-off, conducted raid and on the pointation of the informer they saw the accused/appellant standing at Niazi Flying Coach Adda, carrying four bags. On search, 40-kilograms of PHAKKI (POST) was recovered from those bags. For sample, the complainant separated 500-grams of PHAKKI (POST) and prepared sealed parcel. The case property consisting of four bags (P-1/1-4) was taken into possession vide memo Exh.PB. On the basis of said complaint, formal F.I.R. Was chalked out.
3. After usual investigation, the accused was sent to face trial. She was charge sheeted, to which she pleaded not guilty, as such, the trial commenced, wherein the prosecution examined Abdul Razzaq A.S.-I./ P.W.2 whose statement in brief has been mentioned above while narrating the facts of the case. Further, the prosecution examined Gulzar Hussain 2945/C a member of the raiding party as P.W.3, Abdul Ghafoor P.W.6 who is the Investigating Officer, whereas, rest of the witnesses are formal in nature and they performed usual functions towards completion of investigation. The prosecution placed on record the report of the Chemical Examiner Exh.PD and closed its case.
Thereafter, the accused/ appellant was examined under section 342, Cr.P.C. In response to a question "why this case against her and why the P.Ws. Deposed against her", she made the following reply:-- "This false case has been planted upon me. In fact nothing was recovered from my possession. I was sitting in the waiting room along with other lady passengers and my single bag of clothes was with me. On that day I was going to Faisalabad to give Eid gift to my daughter. Meanwhile, some police persons entered in the waiting room and saw here and there and then one police man called me and asked me to go to police station. I inquired from them that why I was being taken to police station but they forcibly made me sit in the rickshaw and demanded Rs,20,000 as illegal gratification but I refused that I committed no crime and I am poor woman and I cannot arrange this huge amount for you and on my refusal this false case has been registered against me and alleged recovery of post has been planted upon me in the police station. The P.Ws. Deposed against me being subordinate of Abdul Razzaq. I am quite innocent."
' The accused/appellant, however, neither produced any witness in her defence nor herself appeared in the witness box within the meaning of section 340(2), Cr.P.C. On conclusion of the trial, she was convicted and sentenced, as narrated in the opening paragraph of this judgment.
4. It is argued by learned counsel that appellant has been falsely involved in this case, in fact she was sitting in the waiting room of the bus stand for travelling to Faisalabad, nothing was recovered from her and police in order to show its KARVAI planted the POST on her. Further contended that raid was conducted by an A.S.-I. Who under section 21 of the Control of Narcotic Substances Act, 1997 is not competent. Added that bus stand was situated in a thickly populated area, but none from public was associated in the alleged recovery or raid proceedings. It is argued that police sent only 500-grams of PHAKKI/POST for chemical analysis, therefore, according to the learned counsel at the most sentence could be recorded against the appellant with regard to recovery of said 500-grams of PHAKKI/POST alone and stressed on the point that even said sample was sent to the office of Chemical Examiner with a delay of ten days, although it had to be dispatched within seventy two hours. Lastly, it is argued that as per F.I.R., POST (PHAKKI) was recovered from the appellant and PHAKKI is not covered by the definitions provided in the Control of Narcotic Substances Act, 1997, hence, no offence against the appellant is made out, therefore, this appeal may be allowed.
5. Conversely, the learned Deputy Prosecutor-General argued that prosecution had fully established its case against the appellant through ocular account as well as recovery and the positive report of the Chemical Examiner. Further argued that P.Ws. Were subjected to cross- examination but nothing beneficial to the accused, could be extracted from their statements. The learned D.P.-G. Strenuously argued that conduct of raid by an A.S.-I. At the most may be an irregularity but in the circumstances, where there is a chance that accused may escape, the A.S.-I.
Is not supposed to keep on waiting for his superiors to come and conduct raid and similarly, when there is nothing on the record that parcels of sample were tampered, delayed sending of the sample to the office of Chemical Examiner is not fatal to the prosecution. The learned D.P.G with reference to the different sections of the Control of Narcotic Substances Act, 1997 argued that PHAKKI is very much covered by the Control of Narcotic Substances Act, 1997.
6. Arguments heard. Record perused.
7. Firstly, we would take up the argument of learned counsel for the appellant with regard to conduct of raid by an A.S.-I. Although section 21 of the Control of Narcotic Substances Act, 1997 provides that no officer below the rank of Sub-Inspector is competent to enter into any premises, seize the drugs, etc. Detain, search or arrest a person, but we find no other provision in this Act, which provide any consequence for not abiding by the above conditions i.e, raid, seizure and arrest by an official below the rank of Sub-Inspector. Furthermore the requirement to obtain search warrant or wait for the senior officer, could be dispensed with in case where quick action was required to be taken and it would be difficult to obtain a search warrant or call any senior officer and wait till his arrival, where due to paucity of time the apprehension of narcotics being removed or culprit having a chance to escape, were imminent. As such, we observe that in this case the A.S.- I. Was fully competent to conduct raid and seize the narcotics. Even otherwise, section 21 of the Control of Narcotic Substances is directory in nature and any violation thereof, is neither fatal to the prosecution case, nor it can result in uprooting the entire. Prosecution case. In this regard, we are fortified by the judgment reported as "MUHAMMAD AKRAM v. THE STATE" 2007 SCM R 1671, wherein, the Hon'ble Supreme Court of Pakistan held that "Requirement to obtain search warrant could be dispensed with in cases where a quick action was required to be taken and it would be difficult to obtain search warrant where due to paucity of time apprehension of narcotics being removed or culprits having chance to escape were eminent."
8. As regards the argument of learned counsel with respect to delayed sending of sample, again we see no time limit in the Control of Narcotic Substances Act, 1997, itself. However, relevant rules provide that within seventy two hours, the samples of the seized narcotic substance should be sent to the office of Chemical Examiner, but these rules are not mandatory, rather directory in nature and its violation is not destructive for the prosecution case. The Control of Narcotic Substance (Government Analyst) Rules, 2001 cannot override the substantive provisions of Control of Narcotic Substances Act, 1997, and should be applied in such a manner that its operation would not frustrate the purpose of the Act, ibid. Control of Narcotic Substance (Government Analyst) Rules, 2001, being directory, substantive compliance thereof was sufficient and even where there was no compliance at all, it would not invalidate the act, which otherwise was done in accordance with law. Delay in sending the incriminating articles to the concerned quarters for expert opinion, could not be treated fatal in the absence of objections regarding the same having been tempered with.
Reliance is placed on "NIAZ MUHAMMAD v. THE STATE" (2006 PCr.LJ Peshawar 228), wherein, it had been held that "Delay in sending incriminating articles to concerned quarters for expert opinion could not be treated fatal in absence of objection regarding same having been tampered with or manipulated. " Even otherwise, if the samples remain intact and chain of evidence is not 'broken, then no adverse presumption can be drawn in the case of delayed sending of samples. In the instant case it has never been the stance of the appellant during trial or even before this Court that the samples had either been replaced or tampered, therefore, this ground of the learned counsel is also devoid of any legal force.
9. Coming to the question whether "PHAKKI" is covered by the Narcotic Substance Act, we have seen the report of the Chemical Examiner, wherein it is mentioned that sample contained broken pieces of poppy heads and straws. In this regard, we would refer to the definition of opium as provided in section 2(t) of the Control of Narcotic Substances Act, 1997, i.e, "poppy straw that is to say, all part of the poppy plant (papaver somniferum or any other species of papaver) after mowing, other than the seeds." Section 2(v) of the Act, ibid, defines "opium poppy" as plant of all the species Papaver Somniferum, and section 2(w) defines the "poppy straw" as all the parts, except seeds of the opium poppy after mowing. By careful reading of the above provisions of sections 2(t), 2(v) and 2(w) of the Control of Narcotic Substances Act, 1997, it becomes clear that post is covered by the definition of "poppy straw", which includes all the parts of the poppy plant except seeds. In this case the Chemical Examiner in his report Exh.PD, after physical examination of the sample, opined as broken pieces of poppy head and straws. In view of the above discussion and report of the Chemical Examiner Exh. PD, it is clear that poppy straw and poppy heads include all parts of the poppy plant, hence, it is proved beyond any shadow of doubt that narcotic substance (POST) recovered from the appellant is covered by the Control of Narcotic Substances Act, 1997 and the substance recovered and sent to the office of Chemical Examiner was found to be narcotic substance (POST), as defined in sections 2(t), 2(v) and 2(w) of the said Act.
10. Although the learned counsel for the appellant has laid much stress that only 500-grams of the recovered narcotic was sent to the office of Chemical Examiner, as such, the appellant at the most could be convicted for the said quantity i.e, 500-grams. But, this argument is of no benefit to the appellant for the reason that it is no where the requirement of law to send the whole of the narcotic substance to the Chemical Examiner, only a small quantity is sufficient and it would be enough to prove that entire recovered material was contraband. Therefore, the above argument of the learned counsel is repelled. As regards the ocular account, we have noted that while appearing in the witness box Abdul Razzaq A.S.-I. (P.W.) made statement in line with the narration of the F.I.R. And his statement was toed by Gulzar Hussain 2945/C, both these witnesses were cross-examined but nothing beneficial could be elicited from their testimony, which could damage the prosecution case. Both the witnesses remained consistent with each other on the point of time, place and date of raid, search, recovery of POST from the appellant, preparation of sample and its dispatch to the office of Chemical Examiner, and their testimony could not be shattered during the test of cross- examination. Although there is an objection of learned counsel for the appellant that no witness from public was associated in these proceedings, but in this behalf there is a specific clarification by P.W.6 Abdul Ghaffor S.-I./Investigating Officer during cross-examination that he asked the persons present at the place of occurrence for their statements, but they refused. Even otherwise, it has been general tendency in our society that normally people avoid to become witnesses in narcotic cases either because of fear of the narcotic dealers or to avoid the pangs of lengthy trials.
Furthermore, police officials are as good witnesses as public witnesses until and unless the defence establishes some specific enmity or malice against them. As such, non-association of any witness from public is also not fatal to the prosecution.
11. For what has been discussed above, we are of the considered view that prosecution has been fully successful in proving its case against the appellant beyond any shadow of doubt, by ocular account and evidence of recovery, substantiated by the positive report of Chemical Examiner Exh.PD. Hence, the instant appeal, being devoid of any merit, is dismissed accordingly.