' ROOH-UL-AMIN KHAN, J.---The appellants, Saeed Nawaz and Naqib Khan were tried, found guilty, convicted under section 9(c), C.N.S.A. And sentenced to rigorous life imprisonment (25 years) with a fine of Rs,50,000 each or in default to further undergo two months' S.I., with benefit of section 382- B, Cr.P.C. By the learned ASJ/Judge Special Court, Swabi vide his judgment dated 8-7-2010. The appellants have challenged the validity of their conviction and sentence through the appeal in hand before this Court
2. The prosecution case as per contents of the F.I.R. Is that on 19-10-2009 at about 1130 hours complainant Sher Afsar SHO Police Station Lahor has sent a Murasila to the Police Station for registration of the case to the effect that he along with other police party was present at new Nehar/Swabi, Jehangira road for the purpose of Nakabandi; that in the meanwhile one Motorcar bearing No,H4840/Peshawar of red colour coming from Peshawar side was signaled to stop being suspicious and two persons sitting in the motorcar in question; that the driver disclosed his name to be Saeed Nawaz son of Lachi Khan, while the other person sitting in the front of the motorcar disclosed his name as Niqab Khan son of Aman Khel, both residents of village Jamrod Bazar, Tribal area; that during the search of the said motorcar from two doors six/six packets i.e, total 12 packets containing pukhta charas were recovered, which on weighment came out to be 12000 grams i.e, 12 Kgs; that from each packet he separated five grams and sealed into different parcels, while the remaining recovered contraband charas was separately sealed into different parcels. He took into possession the above mentioned charas and murasila was drafted against the accused-- appellants. On the basis of said Murasila the present case has been registered vide F.I.R. No,800 dated 19-10-2009 at Police Station Lahor, District Swabi against both the accused-appellants.
3. The prosecution in support of its case examined as many as four witnesses in all and closed the prosecution evidence.
4. P.W.1 Shad Ali Khan SI who is the marginal witness to the recovery memo Exh.PC, vide which in his presence the complainant Sher Afsar Khan SHO recovered six packets each i.e, total of 12 packets from both the doors of the seized Motorcar bearing No,H-4840/Peshawar belonging to the accused-appellants.
5. P.W.2 Afsar Said Khan SI stated that after registration of the case he proceeded to the spot and prepared the site plan Exh.PB at the instance of complainant and eye-witnesses, recorded the statements of P.Ws. Under section 161, Cr.P.C. Vide his application Exh.P.W.2/1 he produced the accused-appellants for grant of police custody, upon which two days police custody was allowed.
He interrogated the accused-appellants and recorded statements under section 161, Cr.P.C. Vide his application Exh P.W.2/2 he produced both the accused for recording their confessoNAL statement which they refused and were sent to the judicial lock-up. Vide his application Exh.P.W.2/3 he produced the motorcar in question before the Excise and Taxation Authority, Peshawar. He received report of FSL in respect of samples sent to FSL which is Exh.PK. After completion of investigation he handed over the case file to the SHO for submission of challan against the accused-appellants. t
6. P.W.3 Sher Afsar Khan SHO stated that on the day of occurrence he was present along with the police party at New Nehar Jehangira for purpose of Nakabandi. In the meanwhile a Motorcar bearing No,H-4840/Peshawar of red colour coming from Peshawar side was stopped being suspicious. Two persons sitting in the motorcar in question were in suspicious condition. The driver disclosed his name as Saeed Nawaz son of Lachi Khan, while the other person sitting in front of the motorcar disclosed his name Niqab Khan son of Aman Khel, both residents of village Jamrod Bazar Tribal Area. On search of the motorcar from two doors six/six packets i.e, total of 12 packets containing pukhta charas was recovered which on weighment came out as 12000 grams i.e, 12 Kgs, from each packet he separated five grams, which were sealed into different parcels, while the remaining quantity was separately sealed into different parcels. He also took into possession the above mentioned motorcar in the presence of marginal witness. He also prepared Murasila Exh.PA/1 and sent the same to - Police Station for the registration of the case. The accused- appellants were arrested red-handed on the spot. Vide his application Exh.P.W.3/1 he sent 12 parcels of samples to the FSL for analysis.
7. Muhammad Hussain Khan ASI chalked out the case in the shape of F.I.R. Exh.P.A.
8. Thereafter the accused-appellants were examined under section 342, Cr.P.C. Wherein they denied all the allegations levelled against them by the prosecution. They neither opted to record their statements on Oath under section 340(2), Cr.P.C. Nor wished to produce any evidence in their defence and after hearing arguments of the learned counsel for both the sides, the learned trial Court vide the impugned judgment and order dated 8-7-2010 convicted and sentenced the accused appellants as mentioned above.
9. Ms. Farhana Marwat learned counsel for the appellants contended that there are sufficient contradictions in the prosecution evidence. According to the F.I.R. And recovery memo 12 Kgs of contraband charas consisting of 12 packets have been recovered from the secret cavities of the vehicle in question, but when the said contrabands were opened in the court, it was found 11 packets. She further contended that the samples of the alleged recovered contraband have been transmitted to the FSL for analysis with a delay of sufficient long time, which creates serious doubt in the prosecution case, as such the impugned conviction and sentences are not sustainable and liable to be set aside. In support of her contentions the learned counsel relied on the following judgments:--
(1) Safar-ur-Rehman and others v. The State (2011 PCr.LJ 1334 Karachi)
(2) Haji Inayat and others v. The' State (2010 PCr.LJ 825)
(3) Hayat Khan v. The State (2011 YLR 890) '
(4) Muhammad Shafiq v. The State (2010 PCr.LJ 548)
(1) Amjad Ali v. The State (2012 SCM R 577)
(2) Mst. Jameela and others v. The State (PLD 2012 Supreme Court 369) and
(3) Muhammad Aslam v. The State (2011 SCM R 820)
10. In rebuttal the learned counsel for the State argued that huge quantity of contraband charas has been recovered from the secret cavities of the vehicle being driven by Saeed Nawaz appellant No,1, while Naqib Khan appellant No,2 was found sitting in front seat of the said motorcar. The P. Ws.
Are consistent in their statements on material particulars and the defence has failed to extract anything from the mouth of the prosecution witnesses in favour of the appellants. He stated that the FSL report supports the prosecution case and the prosecution has succeeded in proving, its case against the accused-appellants, therefore, they were rightly convicted and sentenced and the appeal is liable to be dismissed.
11. We have heard the learned counsel. For the parties and in The light of the submissions made by them, we have carefully gone through the evidence on record as well as the judgments cited by the learned counsel for the appellants.
12. The record reveals that on secret information, the SHO Police Station Lahor laid a picket on the spot of occurrence. The seized motorcar coming front Peshawar side was intercepted and from its secret cavities 12 packets of Charas were recovered. The above said vehicle being driven by Saeed Nawaz appellant No,1 was taken into custody by the local police along with the recovered contrabands; the appellants were arrested red-handed on the spot and the F.I.R. Was promptly lodged.
13. Complainant Sher Afsar Khan SI appeared before the trial Court and recorded his statement as P.W.2. He admitted the arrest of the appellants on the spot. This witness was put to lengthy cross- examination, but nothing favourable to the defence was unearthed. Sher Afsar Khan P.W.2, made his statement fully in consonance with the facts and contents of the F.I.R. And recovery memo, thus, established the prosecution case up to the hilt. The arrest of the accused on the spot and recovery of narcotic substances from the secret cavities of the vehicle being driven by Saeed Nawaz appellant, could not be denied or rebutted.
14. Except minor contradiction about the number of packets of the recovered contrabands to be 12 or 11, nothing favourble to the appellants could be brought on record, in the shape of evidence, from the mouth of the prosecution witnesses. The contradiction mentioned above is not of serious nature and this cannot be considered fatal and sufficient to vitiate the recovery proceedings or to make the recovery doubtful. P.W.2 A categorically stated that the recovery was effected in his presence from the secret cavities of the vehicle. Rest of the witnesses have confirmed their respective roles as assigned to them by the prosecution. The FSL report available on file confirmed that the contraband recovered from the accused appellants were actually charas.
11. The record shows that the sample was separated from each packet; on the same date application for sending the same to FSL was drafted which reveals that on each sample three stamps of mark "As" was embossed; the samples were received into the laboratory on 23-10-2009, perfectly in sealed condition bearing three seals in the mark of "As". The FSL report reveals that the samples were transmitted from the Police Station to the laboratory through FS No,84. The result of the samples was charas. So far as the question of sending the samples to the laboratory with a delay of five days is concerned, suffice it to say that the complainant has offered an explanation in his cross-examination that on completion of the recovery proceedings and F.I.R. All the parcels in sealed condition were handed over to the Moharrar of the Police Station on the same day. The samples have been received in the laboratory in the same condition. Now it is settled law that dispatching of samples beyond 72 hours is not a sine qua non. The mere delay of sending the samples to the FSL is not at all fatal to the prosecution case, because rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 place no bar on the Investigation Officer to send the samples beyond 72 hours of seizure or recovery of the contrabands. The provisions in this respect are directory and not mandatory, thus cannot substitute the substantive provision of the C.N.S.R. The noncompliance of rules and 5 of the C.N.S.R. Would not frustrate the very purpose absolute nullity. Wisdom in this respect may be sought from (PLD 2009 SC 39)
16. Besides, the entire case property was produced and exhibited before the trial Court. After scanning the prosecution evidence and taking into consideration the arguments advanced by the learned counsel for the appellants, we have not been able to find out any material inconsistency or discrepancy in the statements of P.Ws. The recovery of huge quantity of charas from the secret cavities of the seized vehicle has been proved beyond any shadow of doubt. It is also proved on record that at the time of arrest, appellant No,1 was driving the vehicle and appellant No,2 was sitting in front seat of the said vehicle. The positive report of FSL supports the prosecution version and the prosecution on the strength of unimpeachable and consistent evidence has succeeded in bringing home the charge against the appellants beyond any shadow of reasonable doubt. It crystal clear from the evidence on record that all the witnesses of the prosecution, who had witnessed the recovery of the contraband mentioned above from the motorcar, have remained consistent.
17. So far as the authorities cited by the learned counsel for the appellants are concerned, the facts of the case reported as Mst. Jamila v. The State (PLD 2012 SC 369) are totally different and distinguishable from the facts of the instant case. In the case 'supra' the accused lady was apprehended while sitting in the rear seat of a vehicle and was travelling as a passenger along with another lady co- accused, wherein the prosecution had failed to prove any link between the driver and passengers and the prosecution witnesses had admitted at the bar that they had not effected any recovery, from the personal possession of the accused. In the instant case appellant No,2 was sitting in the front seat of the motorcar in question. Both the appellants are residents of one and the same village i.e, Jamrud Khyber Agency. Appellant No,2 was the companion of appellant No,1 and an iota of evidence is not available on record to suggest the disassociation of the two appellants.
18. The facts of the cited case reported as Muhammad Aslam v. State (2001 SCM R 820) are also different and distinguishable from the instant case. In the case 'supra' Muhammad Aslam appellant was not in conscious possession of the recovered contraband and he had been seen by the complainant standing near ten sacks containing narcotics and the complainant had presumed that he was the person carrying such sacks of narcotics, while in the instant case the appellants have been got busted from the vehicle in question.
18. In similar manner the cited case reported as Muhammad Shafiq v. The State (2010 PCr.LJ 548) is also distinguishable.
The judgment referred to by the learned counsel for the appellants would not be helpful to the appellants, because it is by now settled law that in criminal administration of justice each and every case is to be decided on its own peculiar nature and circumstances, as held by the Hon'ble Supreme Court of Pakistan in the case reported as Rai D Ashraf and others v. Muhammad Saleem Bhatti and others (PLD 2010 SC 691). Reference in this respect may also be made to the case reported as The, State v. Mushtaq Ahmad (PLD 1973 SC 418), wherein it was held that:-- "Everything said in a judgment and more particularly in a judgment in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case".
19. Similar view was expressed by the Hon'ble Supreme Court of Pakistan in case reported as Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCM R 2213) in the following words; "Every judgment must be read as applicable to the particular facts proved, or assumed to be proved-Generality of the expressions which may be 'found in the judgment are not ended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found."
20. Furthermore, it is established from the evidence on file that the learned trial Court had rightly rejected defence version of the appellants regarding minor contradiction about the number of packets i.e, 12 or 11, after considering each and every piece of evidence on record before recording conviction against the appellants, therefore, we are of the considered view that the prosecution has successfully established its case through confidence-inspiring evidence of eye-witnesses recorded before the trial Court, which was not at all shattered by the defence during cross- examination.
' So in view of the above discussion we hold that the impugned judgment and order of the trial Court is well-founded, well-reasoned and need no interference by this Court. Wisdom in this respect can be sought from Ismaeel v. State (2010 SCM R 27) and Tariq Mahmood v. The State (PLD 2009 SC 39), Consequently the conviction and sentences of the appellants are maintained and the appeal in hand being devoid of force is hereby dismissed.