' AFTAB AHMED GORAR, J.---Through the instant Criminal Appeal filed under section 48 of Control of Narcotic Substances Act, 1997 read with section 435, Cr.P.C., the appellant Muhammad Iqbal has impugned the Judgment dated 16-10-2011 passed by Special Judge-II (CNS) Court, Clifton, Karachi in Special Case No,87 of 2010 by virtue of which he convicted the appellant and sentenced him to suffer life imprisonment and pay fine of Rs,10,00,000 (Rupees One Million only) under section 9(c), C.N.S. Act, 1997 in Crime No,11 of 2010 of P.S. Mauripur, Karachi, in default of non-payment of fine to suffer further R.I. For five years.
' According to the prosecution story narrated in the F.I.R. On 8-1-2010 complainant ASI Muhammad Ayoub posted at Police Kohisai Mochko of PS Mauripur along with HC Liaquat Ali and PC Qurban Ali received spy information that three persons in a Mazda of Route No,D-6, are coming from Hub Baluchistan to Karachi in which huge quantity of heroin was available. In the meantime, they saw the said mini-bus bearing Registration No,JE-2546 coming from Hub side and they gave signal to the driver to stop the vehicle but he speeded the vehicle whereupon police party chased it and when the mini-bus reached in front of Raees Ghulam Sarwar Hotel, Hub River Road at 1500 hours due to high speed, the driver could not control it with the result the mini-bus it met with an accident. One person managed to escape from the vehicle while the driver who disclosed his name as Muhammad Iqbal and one person sitting with the driver who got injured were apprehended. Due to non-cooperation of private persons the said Mazda was searched in presence of HC Liaquat Ali and PC Qurban Ali and under the ladies seat one white plastic bora was found which was opened and from inside the bora 18 packets of heroin powder were recovered, each weighing one Kg. Making a total of 18 Kgs of heroin. Driver of the vehicle on enquiry disclosed the name of the absconding accused as Muhammad Ali alias Babloo. On preliminary investigation on the spot the appellant Muhammad Iqbal disclosed that the recovered herein was given to him by one Murad Ali Baloch alias Rajab Baloch to be delivered at his house situated at Khokhrapar/Malir. Both the accused were accordingly arrested at the spot. 10/10 grams of heroin from each of 18 packets were drawn and sealed for chemical analysis and remaining heroin of 17 Kg was also sealed on the spot and 820 grams separately sealed on the spot. After completion of necessary formalities the same were taken into police custody. The complainant provided medical treatment to the injured accused namely Farman Ellahi son of Shamshad Hussain on the spot, then he came back to Police Station Mauripur where F.I.R. Was registered against the arrested/absconded accused.
' After usual investigation challan was submitted before the trial Court against the arrested/absconded accused.
' At the trial prosecution examined P.W.1 HC Liaquat Ali as Exh.5 who produced the mashirnama of place of wardat and recovery of properties viz. Articles A/1 to A/17, P.W.2 Muhammad Ayoub Exh.6 who produced F.I.R., P.W.3 Hameedullah Khan Exh.7 I.O. Of the case, who recorded 161, Cr.P.C.
Statement of the witnesses and sent samples for chemical examination and produced Chemical report before the trial Court.
' Learned counsel for the appellant submitted that the prosecution has produced recovered property as Article A/1 to A/17 and some of the articles have mark of Airplane and Boat and some are without mark, whereas the police recovered the heroin with mark of Eagle and one packet was missing as there were 17 packets instead of 18. He further submitted that in cross-examination HC Liaquat Ali stated that the weighing scale was arranged by ASI Ayoub Mirani but in his cross- examination Ayoub Mirani stated that weighing scale was arranged through HC Liaquat Ali.
Learned counsel for the appellant stated that recovery was effected from ladies' seat of the vehicle near driver seat. No private person has been associated by the police as mash,ir, therefore there is clear violation of section 103, Cr.P.C. He further stated that the property was sent by the police after delay of 28 days which creates doubt benefit of which must go to the accused. He prayed for acquittal of the appellant. He relied upon the cases reported in 2002 PCr.LJ 1086, PLD 2006 Karachi 325, 2009 PCr.LJ 523 and 2007 PCr.LJ 462.
' Mr. Ali Haider Saleem, learned A.P.G., submitted that mini-bus belongs to Route D-6 and plies from Saddar to Saeedabad but at the time of occurrence bus came from the side of Hab Baluchistan and no passenger was available in the bus. He stated that when driver had no knowledge about the recovered heroin, then why he did not stop the bus on the signal of the police party. A huge quantity of heroin powder could not be foisted upon the appellant as no previous enmity has been alleged between the parties. He stated that minor contradictions are to be ignored. He relied upon the decisions reported in 2003 SCMR 52, PLD 2005 Karachi 4, 2008 MLD 314, 2003 PCr.LJ 82, 2000 PCr.LJ 755. He prayed for maintaining the judgment passed by the learned trial Court: ' We have heard the arguments advanced by the learned counsel for the appellant and learned A.P.G. For the State and have gone through the materialavailable on the record.
1. From a bare perusal of the evidence adduced before the trial Court, it transpires that all the material witnesses have corroborated the version of each other, more particularly the eye- witnesses. There seems to be no contradiction regarding receiving spy information, holding the nakabandi on the spot, arrival of mini-bus wherein accused were available and recovery of heroin powder weighing 18 Kgs, taking out samples from each and every packet for chemical analysis whose report is in positive. They were subjected to lengthy cross-examination but their evidence remained unshattered and unshaken. The case of the prosecution is based on strong circumstantial evidence.
2. So far as delay in sending the sample to the Chemical Analyzer is concerned, suffice it to say that the language employed in Rules 4 to 5 of the Control of Narcotic Substance (Government Analysis)
Rules, 2001 coupled with the fact that no consequences for breach have been provided, make the rules advisory and not mandatory. These rules control the substantive provisions of C.N.S.A. And to apply in such a manner that its operation would not frustrate the purpose of the Act under which these rules are framed. Furthermore, failure to follow the rules would not render the search, seizure and arrest under the C.N.S.A. Absolute nullity and non-est. Since there was no objection that the contraband was unsealed or tampered with or manipulated, therefore delay would not affect the result of analysis. In this regard reliance may be placed on the cases reported in 2006 MLD 1121 and PLD 2006 Peshawar 39. In the case reported in PLD 2009 SC 39 it has been held by the apex court as under:-- "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 quarters for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. It was for the accused to have taken such plea before the trial Court but the appellant did not do so."
3. Furthermore, the report of the Chemical Analyzer is in positive and the defence has not disputed the nature of substance nor challenged the authenticity of the report of the Chemical Analyzer, neither the accused have brought on record substantive material to show that the report of the Chemical Analyzer was the result of tampering, manipulation nor any illegality or irregularity has been found in the test performance report of the Chemical Analyzer. Moreover, the contention of the learned counsel for the appellant that samples were not taken from each of the recovered packets as it was not necessary to take samples from each packet as required evidence has been produced to connect the report with the case property. In this connection reference may be made to the case of Nadir Khan reported in 1988 SCMR 1899 as well as 2003 SCMR 54 and PLD 2009 Karachi 212.
4. The plea of the accused that no private person has been associated to witness the recovery which shows that the case is false is also devoid of force as the compliance of the provisions of section 103, Cr.P.C. Is excluded in C.N.S. Cases by virtue of section 25 of C.N.S. Act, 1997. Even otherwise such fact alone will not render the prosecution case doubtful because it is settled law that weaknesses of the investigation, due to insufficiency of police or otherwise will not benefit the accused and damage the erosecution case. In this regard reference may be made to 2001 SCMR 36.
5. As regards the missing of one packet out of 18 recovered packets, no question was put by the defence that the said one packet was misappropriated or destroyed. Even otherwise the accused never challenged the nature of the recovered substance not being heroin or narcotics.
6. It is now well-settled that minor discrepancies in the evidence of the prosecution witnesses are to be ignored and no importance could be attached thereto. In the case reported as Sardar Khan v.
State (PLD 2005 Peshawar 166) it was held that contradiction means negation of prosecution version, merely discrepancy in the detail of the fact does not amount to contradiction. In another case reported as Riaz Muhammad v. State (PLD 1993 FSC 25) it was held that contradiction such as material was wrapped in khaki envelope or not, people from public gathered or not, chain of the handcuffed was in the hands of Ahsan or not witness had gone on foot or on vehicle, chain of the handcuffed was in the hand of Imtiaz or not, are of no importance. Moreover, the accused has failed to clarify as to what was he doing at the relevant time in the Mazda in question from where huge quantity of F heroin powder was recovered and as to why he did not stop the mini-bus at the signal of the police party and raised its speed which ultimately met with an accident.
7. We cannot close our eyes from a bitter reality that transportation of narcotics is a crime against the society which is increasing alarmingly in the country day-by-day thereby destroying the lives of youngsters. It has come in evidence that the accused was hired by one Murad Balouch for delivering the narcotics at his residence situated at Khokhrapar. The honourable apex court has taken a very serious view in respect of 'hired offenders'. In the case reported in PLD 2009 SC 383 it was held:-- "We are afraid, we cannot be a party to creating such a law which would amount to encouraging and in fact licensing the practice on hired assassins, hired dacoits, hired robbers and hired criminal for other sorts. In fact we would, on the contrary, declare that a hired offender was not entitled to any leniency or sympathy in the matter of quantum of punishment and such are the people who deserved to be dealt with an iron hand and deserved the same kind of treatment which would be warranted in the case of any other criminal, if not stricter and harsher treatment."
8. The decisions relied upon by the learned counsel for the appellant are distinguishable and are not attracted to the facts of the case in hand. In the case reported in 2009 PCr.LJ 523 relied upon the learned counsel for the appellant it was held that no direct or circumstantial evidence was available to connect the accused with the commission of the offence and that the alleged recovery of narcotics was not effected from the direct physical and conscious possession of the accused and that the manner of arrest of accused and recovery of narcotics were highly doubtful whereas in the present case tangible evidence was adduced by the prosecution to connect the accused with the commission of alleged offence and the alleged heroin powder was recovered from the vehicle being driven by the appellant and he was arrested at the spot while trying to flee away. In the case reported in 2007 PCr.LJ 462 accused was arrested by Rangers and enmity with a Ranger's Inspector on account of some dispute on a house was alleged whereas in the instant case no enmity with police has been alleged by the accused, in the case reported in PLD 2006 Karachi 325 the recovery of narcotics was alleged to have been effected from a house which is not the case here.
9. Upon a minute scrutiny of the material available on the record and the evidence adduced before the trial Court, we are of the firm opinion that the prosecution has produced tangible and trust worthy ocular and circumstantial evidence against the appellant to connect him with the commission of alleged offence. The upshot of the above discussion is that the impugned judgment is maintained and the appeal is dismissed.
' Above are the reasons of our short order announced on 10-10-2012.