' ROOH-UL-AMIN KHAN, J.---The appellant was tried, found guilty, convicted under section 9(c); C.N.S.A. And sentenced to life imprisonment with a fine of Rs, 200,000 in default of payment of it, he was ordered to further undergo six months' SI with benefit of section 382-B, Cr.P.C. By the learned ASJ/Judge Special Court, Peshawar vide his judgment dated 21-2-2012. The appellant has now challenged'the validity of his conviction and sentence through the appeal in hand before this Court
2. The Prosecution case as per contents of the F.I.R. Exh.P.A. Registered on the basis of Murasila Exh.PA/1 at Police Station Pishtakhara is that on 5-9-2010 the local police had received a secret information that contraband charas was to be smuggled from tribal territory to Punjab through Mazda Truck No,2709/RIS. The local police of Police Station Pishtakhara headed by the SHO laid a picket on the place of occurrence. In the meanwhile at 1600 hours the described vehicle was found coming from Bara side, which was stopped. Driver of the vehicle Sajjad son of Ashraf, the appellant was overpowered and on his pointation 175 packets charas "pukhta" each weighing one Kg. Were recovered from the secret cavities of the truck. Five grams of the contraband were separated from each packet and 175 parcels were sent for analysis to the FSL, while rest of the contrabands were sealed into another Parcel No,176. The recovered contrabands were taken into possession vide recovery memo Exh.P.W.2/1. The convict appellant was arrested red handed on the spot and a case under section 9(c), C.N.S.A. Was registered at Police Station Pishtakhara vide F.I.R. No,592 dated 5- 9-2012.
3. The prosecution in order to establish its case against the accused examined five witnesses in all and closed the prosecution evidence. Thereafter the. Accused-appellant was examined under section 342, Cr.P.C., wherein he denied all the allegations levelled against him by the prosecution.
He neither opted to record his statement on Oath under section 340(2), Cr.P.C. Nor wished to produce any evidence in his defence and after hearing arguments of the learned counsel for both the sides, the learned trial Court vide the impugned judgment and order dated 21-2-2012 convicted and sentenced the accused appellant as mentioned above.
4. Learned counsel for the appellant contended that the occurrence has not taken place in the manner as described by the prosecution. Recovery proceedings and weighment of such a huge quantity is not possible within a short time and that too at a busy place of occurrence as shown by the prosecution. The site plan does not support the prosecution case and only one place marked "A" has been shown, where the presence of Investigating Officer and eye-witnesses have not been disclosed in the site plan. The alleged samples have been received in he. Laboratory on 8-10-2010.
The prosecution has failed to disclose the whereabouts of the samples during the intervening period. He argued that there are material contradictions in the statements of complainant, Investigation Officer and recovery witness, as such the impugned conviction and sentence is not sustainable and liable to be set aside.
5. 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 the appellant. 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 his favour. He stated that the FSL report supports the prosecution case and the prosecution has succeeded in proving its case against the accused-appellant, therefore, he was rightly convicted and sentenced and the appeal is liable to be dismissed.
6. We have heard the learned counsel for the parties at considerable length and carefully gone through the record of the case.
7. The record shows that on secret information Muhammad Hakim SI (P.W.2) under the supervision of the SHO Police Station Pishtakhara laid a picket on ring road near Pisluakhara Chowk. The seized Mazda Truck coming from Bara side (Tribal Territory) was intercepted and from its secret cavities 175 packets of Charas were recovered. The above said vehicle being driven by the appellant was taken into custody by the local police along with the recovered contrabands; the appellant was arrested on the spot and the F.I.R. Was promptly lodged.
8. Complainant Muhammad Hakeem Khan SI appeared before the trial Court and recorded his statement as P.W.2. During his cross-examination he disclosed that the entire proceedings of recovery, weighment of the contrabands was completed in about 50/55 minutes. He stated that the parcels were sent to FSL on the next day. He admitted the arrest of the appellant on the spot, but according to the Card of arrest the place of arrest is not mentioned therein. This witness was put to lengthy cross-examination, but nothing unearthed favourable to the defence was unearthed. Muhammad Hakim Khan SI 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 the appellant, could not be denied or rebutted.
9. P.W.3 Abdur Rahim Head Constable stated that on the day of occurrence Muhammad Hakim Khan SI (P.W.2) had received information regarding smuggling of charas and in his presence P.W.2.
Intercepted truck bearing Registration No,2709/RIS, arrested the appellant and recovered 175 packets of charas on his pointation from the secret cavities of the above said truck. Except minor contradiction in the evidence to the effect that according to P.W.3 scale was arranged by the Investigating Officer from the nearby shop, whereas Muhammad Hakim Khan SI (P.W.2) stated that he was in possession of the scale; nothing was discovered or extracted from the prosecution witnesses contrary to the detriment of present case. The contradiction mentioned above is not of serious nature and this cannot be considered fatal and sufficient to vitiate the prosecution case or to make the recovery doubtful. P.W.3 categorically stated that the recovery was effected in his presence from the secret cavities of the truck. 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-appellant was charas. 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.A. The non-compliance of rules 4 and 5 of the C.N.S. Would not frustrate the very purpose of the Act or render the recovery and arrest in absolute nullity.
10. That according to the prosecution case 175 samples were extracted from each packet, which have been transmitted to FSL under the seal marked "NR". All the 175 samples were examined in the Laboratory and according to the report dated 8-10-2010 all the above I F samples were found charas.
11. 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 appellant, we could not dig 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 vehicle has been proved beyond any shadow of doubt. It is also proved on record that at the time of H arrest, the appellant was driving the 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 appellant beyond any shadow of reasonable doubt.
12. It is evident from the evidence on record that all the witnesses of the prosecution who had witnessed the recovery of the contraband mentioned above from the Mazda truck mentioned above, which was being driven by the appellant, have remained consistent.
13. Furthermore, it is established from the evidence on, file that the learned trial Court had rightly rejected defence version of the appellant regarding minor contradiction about the scale, either taken from the nearby shop or the official possessed of it, after considering each and every piece of evidence on record before recording conviction against the appellant, 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. Needless to mention here that the FSL report in respect of the samples separated from lot of contraband is in positive. So in view of the above discussion we hold that the impugned judgment and order of the trial Court is well-founded and needs 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 sentence of the appellant is maintained and the appeal in hand being devoid of force is I hereby dismissed.