SYED SAJJAD HASSAN SHAH, J.---Through this single judgment, we proposed to dispose of Criminal Appeal No.442 of 2008 along with connected Criminal Appeal No. 495 of 2008, as in both the appeals one and the same judgment dated 23-9-2008 passed by Judge Special Court (CNS)
Peshawar has been challenged, whereby, appellants Nasrullah and Muhammad Saleem were convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and each one of them has been sentenced to life imprisonment and a fine of Rs.10000 each or in default payment of fine by any one of the accused shall undergo further one month simple imprisonment. Benefit of section 382-B, Cr.P.C. Was extended to the accused.
2. The prosecution story is that on 13-4-2007 Mr. Muhammad Nasim Khan A.S.-I., had received a spy information that a sufficient quantity of narcotics substances would be smuggled from tribal areas to Punjab through G.T. Road, Peshawar in the secret cavities of a Double Cabin vehicle bearing No.5763/IDP, Silver Colour, with official number plate. Informed Haji Imtiaz Ahmed, SHO, Police Station Chamkani, regarding said information, he along with raiding party laid Nakabandi at Tarnab Farm Bridge on the G.T. Road, Peshawar. In the meanwhile, at 16:00 hours a Double Cabin Vehicle bearing No.5763/IDP, with the green- official number plate emerged from Peshawar side, intercepted. The person driving vehicle disclosed his name as Nasrullah son of Zareef Khan resident of Mohallah Mianwali, Village Balikhel, at present employed as driver in Intelligence Bureau at Islamabad, whereas, the person occupying the front seat in the same vehicle disclosed his identity as Muhammad Saleem son of Habibullah resident of Sheikhopura, Farooqabad, Mohallah Dar-ul- Islam. The vehicle was taken into Police Post, on search from secret cavities, recovered 240 packets of Charas Pukhta, weighing 2,40,000 grams. Samples weighing 5/5 grams from, each packet of Charas separated and sealed in Parcel Nos. 1 to 24 and were sent to FSL for chemical examination.
The report received in positive, which is Exh.P.Z. While the remaining quantity was sealed in parcel Nos.241 to 246, each bearing mark/Monogram MY affixed, containing each packet 1 kilogram charas. On further search of said vehicle, the number plates showing Nos. 772/Barg and 541/SLH, recovered from personal search of accused Nasrulah a certificate of Intelligence Bureau of said vehicle No. 541/SLH, Engine No.21-4144134, Chassis No. LNI.07.3333913, Model 1992, and also recovered Service Card No.9931 of 15-10-2005. Both the accused were arrested, F.I.R. Was recorded on the basis of Marasla received in the Police Station. After completion of investigation, complete challan against the accused/appellant submitted in the court.
2.(sic.) During the course of trial P.W.1 Muhammad Riaz, S.I. Police Station Matni was examined, stated on oath that on receipt of Marasla, incorporated the same in the F.I.R. Exh.P.A. He further testified about his handwriting and signature.
3. P.W.2 Muhammad Yasin Khan, A.S.-I., Police Station Sarband deposed that on 13-4-2007 on spy information about the smuggling of contraband, laid Nakabandi under the supervision of Haji Imtiaz Ahmed, SHO, Police Station Chamkani along with raiding party at Tarnab Form Bridge, G.T.
Road, Peshawar the said vehicle was interepted. The accused/appellant namely Nasrullah was driving the said vehicle, whereas, accused/appellant Muhammad Saleem seated in front seat of the vehicle, by searching contraband charas recovered from secret cavities of the vehicle consisting. Of 240 packets, weighing 2,40,000 grams, from each packet 5/5 grams separated, packed and sealed in separate, 240 packets and sent for chemical analysis, while the rest packed and sealed in parcels Nos. 241 to 246, each parcel sealed with Monogram "MY", besides, number plates, on personal search, the above referred documents have been recovered. His statement was recorded under section 161, Cr.P.C., by the I.O. Thereafter, complete challan was submitted for trial of the accused. During the course of cross examination, he further testified each packet containing 1 slab of 1 kg.
3.(sic.) P.W.3 Haji Imtiaz, DSP, Barikot Swat, who corroborated the statement of P.W.2. He prepared murasala sent to the Police Station for registration of case and arrested the accused person. The articles recovered from the personal search of the accused took into possession vide recovery memo. Exh.P.C., the vehicle used in crime, taken into possession Exh.P-11, vide application Exh.P.W.3/1 sent sample to the FSL for chemical analysis, report Exh.P.2 received, relied by prosecution, it was contraband charas and he recorded the statement of P. Ws. Under section 161, Cr . P. C . Vide application Exh. P. W .3/2 accused were produced before the court and also recorded the statement of accused/appellants and thereafter, complete challan against the accused submitted in the court. This witness was also cross examined on behalf of the appellant at length but nothing brought on record favourable to the accused/ appellants.
4. After completion of trial, both the accused/appellants were examined under section 342, Cr.P.C Who denied the prosecution story and claimed that they were falsely charged, however, refused to appear as witness in their defence and did not opt to produce the defence evidence.
5. The learned trial court after recording of evidence and hearing the learned counsel for the parties evaluating the evidence, convicted and sentenced the accused/appellants, as mentioned above.
6. The learned counsel for both the accused/appellants contended that the impugned judgment based on no evidence, the prosecution falsely implicated the accused/appellants in the instant case. He further contended that the learned trial Court did not advert to the important aspect of the case i.e. Delay caused in lodging F.I.R. As per record samples of contraband containing 240 packets were sent for chemical examination to FSL, whereas, no sample was sent for the chemical examination of rest of the contraband charas. Further contended that no recovery was effected from the vehicle as claimed by the prosecution. No independent witness was produced to prove the recovery and occurrence as specified in the F.I.R., no compliance made of section 103 of the Cr.P.C., the prosecution witnesses made the contradictory statement, moreso, no cogent, convincing and impartial evidence produced to prove the charge against the accused/appellants.
Above all the same, the recovery of contraband charas planted against the accused/appellants, therefore, the accused/ appellants deserve for acquittal of the charge.
8. The learned State counsel strenuously rebutted the arguments addressed by the learned counsel for the accused/appellants, contended that the prosecution successfully proved the charge against the accused/appellants, recovery was effected from the double cabin vehicle being driven by Nasrullah and Muhammad Saleem was seated on the front seat. He further argued that no question arose to plant such huge quantity of contraband weighing 2,40,000 grams, sufficient evidence produced in order to prove the charge against the accused. Sample was sent to the FSL for chemical analysis, positive report received. He further argued that the prosecution successfully brought home guilt against the accused and requested for the dismissal of the appeal.
7.(sic.) The perusal of record reveals that all the material available on the record produced by the prosecution, the accused/appellants not belonging to this part of area, travelled from Islamabad to Peshawar and when travelling back to Islamabad intercepted and on its search the recovery of contraband was effected from its secret cavities, recovery memo. Was prepared in the presence of witnesses, FSL report received positively, there was no denial of fact that the vehicle was not recovered from the accused/appellants, the documents recovered from Nasrullah, driver further corroborated the prosecution story, as his service card, A vehicle documents, the two number plates were recovered. It was not denied that Muhammad Naseem, accused/appellant was not seated at the front seat of the vehicle. Besides, in cross examination, the defence brought some more material which substantiates the prosecution version. The accused/appellants failed to give any plausible reason of driving from Islamabad to Peshawar and from Peshawar to downward area of the country in a public vehicle. No permission of the concerned officer was brought on record by the driver as he had undertaken the journey from Islamabad to Peshawar. There was no reason to show to plant a huge quantity of contraband charas in order to falsely implicate the accused/appellants. Had there been any motive of false implication of the accused/appellants, it could have been rather managed by lessor quantity of the contraband charas and same might be for the reason that it was much easier than to procure such a huge quantity of the contraband. No enmity or and ulterior motive had been alleged. The accused/appellants belonging to Punjab, no grudge neither alleged nor proved on behalf of the prosecution by the accused/appellants.
Moreover, it does not appeal to the prudent mind when a thing can be done in easy way why to go for intricacies and that too, for the satisfaction of nefarious ends. Thus, in the present case if intended to falsely implicate the accused/appellants, it could be done by plantation of 10 Kg contraband charas. It was not necessary to plant 2,40,000 grams of charas, indeed, it's a very difficult task.
8. The above mentioned aspect of the case had been fully supported by P.W.2 Muhammad Yasin and P.W.3 Haji Imtiaz Ahmed, SHO in their statements, reproduced as under:-- P.W.2. "it is correct that the recovery was not effected at the spot, but the vehicle was taken inside the P.P. Situated near to the spot where the recovery was made."
P.W.3. "self stated that as we were sure about the presence of narcotics in the vehicle of the accused/appellants and we had made Nakabandi at about 40/45 paces from the P.P. So we took the vehicle along with the accused to the P.P. Ternab Farm and there made recovery and other proceedings."
Further question and answer regarding the journey from Peshawar, both the accused/appellants were in the same vehicle, testified, as follows:-- "it is incorrect to suggest that the accused Nasrullah had told me that he had come to Peshawar in connection with his pension. Self stated that the accused Nasrullah had told that he had come to Peshawar in connection with some official work."
P.W.3 further clarified in cross examination about the delay caused in recording F.I.R., by making reply as follows:- "it took about 3 hours and 10 minutes in the whole proceedings of recovery, weighment and other proceedings in the P.P."
He further stated that:- "I have confirmed from the I.B. The fact of service of the accused Nasrullah in the I.B."
At the instance of the learned counsel for the accused/appellants, sealed and packed the contraband opened in the Court, weighing 1 kilogram and 10 grams.
9. The delay of 2 hours fully explained, recovery of contraband further substantiated in the statement of the witnesses, the objection of the learned counsel for the accused/appellants that witnesses of prosecution deposed that each packet contains 1 slab of contraband charas, whereas, it was also admitted that some packets were containing more than 1 slab. The accused/appellants could not get any benefit of this fact, as the statement was recorded after passing sufficient long time, but it was natural that on account of short of human memory, the statement could not be made like a tape recorder, moreover, lapses would not destroy the case of prosecution.
11. The learned counsel for the accused/appellant pointed out the violation of the section 103, Cr.P.C., and contended that it was fatal to the case of the prosecution, but perusal of section 25 of Act ibid excluded the application of section 103, Cr.P.C., where, recovery was made on the highway, road side or from a running vehicle. Reference be made of 2001 SCM R 36 and 2000 PCr.LJ 907.
12. The contraband samples were sent to the laboratory for analysis after passing about 12 days, but in view of Rules 4 to 5 of the Control of Narcotics (Govt. Analysis Rules, 2001) no bar placed for the investigation officer, sending the sample beyond 72 hours of the seizer, received the FSL report after 15 days and after receipt placed the report before the learned trial Court. The language employed in the Rules and the consequences of breach, thereof, provided in the same rules, made the rules directory and not mandatory. These rules control the substantive provisions of CNSA and to apply in such manner that its operation would 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 CNSA, absolute nullity and non-est and made the entire prosecution case doubtful, except for the consequences provided in the rules. Since, there was no objection that the contraband was unsealed or tampered with or manipulated, therefore, delay would not effect the result of analysis. Reference be made of 2006 M LD 1121 and PLD 2006 Peshawar 39.
13. In case, where the prosecution launched under the Control of Narcotic Substances Act, 1997, section 29 of the Act ibid provided that there is the presumption of possession of illicit articles, unless the person prosecuted rebuts such presumptions, thus accused/appellant failed to rebut the same and bound to face the consequences provided under the law.
14. The learned counsel for the accused/appellant contended that Parcels Nos. 241 to 246 had not been sent for chemical examination, therefore, this was one of the lapses on the part of the prosecution may be given weight by deciding the appeal. The prosecution sent 240 samples for chemical examination. The quantity of contraband charas of those samples, was more than 240 kilo grams, therefore, the quantity run more than specified under Section-9C of the Act ibid.
15. Since the learned counsel for the accused/appellant failed to point out any illegality or irregularity, discrepancies, misreading and non reading of evidence by learned trial Court, warranting interference by this Court in its appellate jurisdiction, we dismiss both the appeals and maintained the impugned judgment and order.