' SYED AFSAR SHAH, J.---This single judgment shall also decide Criminal Appeal No.85-B of 2011, titled "Zamrak Khan v. The State" and Criminal Appeal No.86-B of 2011, titled "Hamayun Khan v. The State" as all the three appeals have arisen out of a common judgment and from the same F.I.R. And because question of facts and law in all the three are identical.
2. On 14-11-2010, at about 2300 hours Mohibullah Khan S.H.O to Police Station Banda Daud Shah, Karak, along with police Nafri including Abid Khan A.S.-I. Was on gasht of the Illaqa and was present in Pindi Banda National Highway, when in the meanwhile a Jeep bearing Registration No. QAV 9858 coming from Karak side was signalled and stopped. Hamayun Khan (appellant in Cr.A No.86-B of 2011) was driving the vehicle, while Ameer Hassan and Saleem Khan (appellants in Cr.A No. 83-B of 2011) along with Zamrak (appellant in Cr.A No.85-B of 2011) were sitting in it. On query from the driver of the vehicle regarding its registration/documents he could not give any satisfactory explanation, therefore, he along with other appellants were interrogated, who disclosed about the presence of narcotics in the vehicle and hence, they along with the vehicle were brought to the Police Station and on their pointation three gas cylinders containing charas lying in the jeep were taken out Efforts were made to take out the charas from the cylinders but in vain, whereafter all the three cylinders were cut through gas cutter and accordingly recovery of charas garda weighing 20 Kgs from Cylinder No.1, from cylinder. No.2 charas garda weighing 19 Kgs and similarly charas garda weighing 19 Kgs from the Cylinder No.3, making a total of 58 Kgs charas garda was made.
On Seizer of the vehicle, recovery of narcotics, and arrest of the accused/ appellants, the Seizing Officer separated four grams charas from each cylinder, sealed the same into parcels, whereas remaining were sealed into another parcel, whereafter, he prepared the recovery memo (Ex: PC/1), drafted the murasila (Ex:PA/1) and sent it to the Police Station concerned, where on the basis of which F.I.R. No 191 dated 14-11-2010 under section 9(c) C.N.S.A was registered against the convicts/appellants in Police Station Banda Daud Shah, Karak.
3. Investigation was started in the case and on its completion the accused/ appellants were sent to the Court of learned Judge Special Court for trial, who on its conclusion convicted and sentenced the appellants to imprisonment for life with a fine of. Rs.1,00,000 each or in default of payment of fine to undergo one year's S.I. Each further with benefit of section 382-B, Cr.P.C, vide judgment herein impugned.
4. Learned counsel appearing on behalf of the appellants contended that when there is no evidence, whatsoever, on the record to show that the appellants were in conscious possession of the contraband recovered from the cylinders which were lying in the vehicle, they cannot be convicted and sentenced simply because they, were travelling in the same. He went on to say that the names of the appellants have not been mentioned in the recovery memo, which on the face of it shows that neither the recovery memo was prepared at the spot nor the case property was sealed there at the venue of occurrence, much less that the same was never recovered from them (appellants). Developing his arguments learned counsel for the appellants added that since no recovery has been effected from physical possession of the appellants and since the contraband has been recovered from the cylinders lying in the vehicle, therefore, none of them could be saddled with the responsibilities of possession of narcotics substance. He went on to say that the impugned judgment is the result of misreading and non-reading of evidence as, the prosecution has not been able to bring an iota of evidence to prove any nexus of the appellants with the contraband. Lastly he added that there is abnormal delay in sending the sample to the Forensic Science Laboratory, which makes the recovery doubtful in the eyes of law.
5. As against that learned counsel appearing on behalf of the State contended that all the appellants appeared to be in league with each other and thus they all are equally liable especially when they all were travelling in a vehicle wherefrom the recovery was made. He added that when there is no motive on the part of the P.Ws. To falsely implicate the appellants or to foist recovery on them, the charge against them stands proved beyond doubt and that the conviction and sentence passed by the learned trial Court is not open to any interference.
6. We have considered the submissions of the learned counsel for the parties and gone through the record of the case.
7. Before touching the merits of the case, we would like to make it clear that Zamrak Khan, the appellant in. Cr.A. No.85-B of 2011, has been fled away from the Central Jail, Bannu in notorious jail breaking incident occurred in between the night of 14-15/4/2012. Report of Superintendent Central Jail, Bannu further speaks about the same fact. Since the appeal cannot be kept pending for indefinite period for want of presence of the appellant Zamrak Khan, therefore learned trial Court was directed to initiate proceedings against him under sections 204 and 87 Cr.P.C. The learned trial Court on conclusion of the proceedings, as directed, submitted his report, which is available on file.
Since, despite proceedings under section 204 and 87, Cr.P.C, the appellant Zamrak Khan has failed to put his appearance, therefore, he has lost the right of his audience, in view of the principle laid down in case, "Hayat Bakhsh and others v. The State" (PLD 1981 Supreme Court 265). This appeal is, therefore, also heard on its own merits.
8. Coming to the merits of the case, it appears from the record available on file that the prosecution in order to prove its case has got examined as many as seven witnesses, whose statements were recorded and placed on file. P.Ws. 1, 2 and 3 being formal need no discussion.
9. Appearing as P.W.6, Mohibullah the Seizing Officer has narrated the occurrence by stating the facts leading to his routine gasht of the illaqa, presence in Pindi Banda National Highway, stopping and searching the vehicle, resulting into the recovery of charas garda from the cylinders, which were lying there in the jeep. He stated that the appellant Hamayun Khan was driving the vehicle, while Zamrak Khan, Arneer Hassan and Saleem Khan, the appellants were sitting in the said vehicle.
He has also stated that the recovered substance was concealed in CNG cylinders three in numbers. Again he has described the detail regarding taking out of the charas from the cylinders, separation of samples of four grams from the stuff recovered from each cylinder for the purpose of FSL and its sealing into parcels, preparation of recovery memo (Ex:PC/1) and drafting of the murasila (Exh.PA/i). He has also stated about drafting of application for sending the samples to the.
FSL for analysis.
' Muhammad Faheem FC, who has been examined as P.W.5, has stated in support of the version of the Seizing Officer. According to him on emerging of the jeep from Karak side, it was signalled and stopped; that four persons were present in the said jeep, who disclosed their names to the S.H.O.
And that on interrogation they disclosed about the presence of charas garda in the jeep. He has also stated about the CNG cylinders three in numbers and recovery of charas garda from the same, which according to him were cut through gas cutter. Again he has stated about separation of four grams charas as samples from the recovered stuff of each cylinder, its sealing into parcels and preparation of recovery memo (Exh. PC/1) which according to him is correct and correctly bears his signature.
' As stated earlier in this case the contraband has been taken out from cylinders after cutting it through gas cutter, and in which respect the statement of Qadirullah, gas cutter/welder is self- explanatory. Appearing as P.W.7, he stated that he was present in his shop, when the local police came to there and hence he took the gas cutter with him, went to the Police Station along with the police where three gas cylinders were lying, which he cut through the gas cutter.
' So far as Umar Sadeeq Circle Officer Banda Daud Shah, P.W.4 is concerned he has conducted post recovery investigation and as a consequence thereof he has recorded the statements of P.Ws.
Under section 161, Cr.P.C, took into possession personal belongings of the appellants, which includes three security passes, duly issued by Major Jehangir of Pak Army 19 Div vide memo Exh.PC and also received the report of FSL as Exh.PK.
10. The Seizing Officer, marginal witness to the recovery memo and mechanic Qadirullah, who has cut the cylinders through gas cutter were subjected to lengthy and taxing cross-examination, but nothing could be extracted from their mouth, which could create any dent in the version of the prosecution or cast doubt thereof. In fact the probative worth of their testimony could not be diminished despite the fact that they faced a bitter test of cross-examination. They have successfully faced the test of cross-examination and there is nothing in the same which could project the impression that they (Seizing Officer and marginal witness to the recovery memo) were all out to implicate the appellants falsely or for that matter they were prompted by their enemies to foist such a huge quantity of narcotics on them.
11. So far is the report of FSL as Exh.PK is concerned, it appears from the same that the contraband/ stuff taken out from the cylinders which were lying in the vehicle in which all the four appellants were travelling was in fact charas garda.
12. The moot question which falls for determination before us is that of the conscious knowledge of the appellants i.e. Whether it was in the knowledge of the appellants that the cylinders lying in the jeep in which they were travelling were containing charas?
13. It appears from the record that appellants Ameer Hassan, Hamayun Khan and Saleem Khan are hailing from Districts Dir and Swat respectively and were coming from Quetta to their homes in connection with Eid-ul-Azha in the jeep, which according to them was NCP, handed over to them by one Haji Saleh Muhammad of Chaman Quetta for taking it to Peshawar. Similarly appellant Zamrak, who was the permanent resident of Quetta, has also accompanied them from Quetta as according to him since he never visited Khyber Pakhtunkhwa, therefore, he opted for the trip. Herein it is pertinent to note that all the four appellants in their statements recorded under section 342, Cr.P.C. Have categorically stated that they were having no knowledge of the recovered contraband, however, none of them have denied the factum of their travelling in the Jeep and its interception by the local police of Police Station Karak in Pindi Banda National Highway. Moreover, it is in the cross-examination of the Seizing Officer that the Jeep was on petrol and not on CNG. The question arises that when the appellants were coming from Quetta in a vehicle which was not on CNG and where three cylinders containing charas were lying, how they could say that they were having no knowledge of the same. It was a very long jolurney and their ignorance about the cylinders containing charas lying in the Jeep in the circumstances of the case is repellant to the common sense. None of the appellants were stranger to each other rather were friends and which fact is evident from their statements recorded under section 342, Cr.P.C. The circumstances do reveal that they all were in league with each other as they were working for Pak Army as secret informers and hence there is no two opinion about this fact that they were having conscious knowledge about the cylinder containing charas lying in the Jeep in which they were coming from Quetta.
14. The argument of the learned counsel for the appellants about delay qua samples would be of no significance because there is no bar on the I.O. To send the sample beyond 72 hours of the seizure or receiving the FSL report with delay. The Control of Narcotic Substances (Government Analysts) Rules, 2001 could not control substantive provisions of the Control of Narcotics'
Substances Act, 1997 and to be applied in such a manner that its operation would not frustrate the purpose of the Act under which the Rules were framed. Failure to follow the Control of Narcotic Substances (Government Analysts Rules, 2001, would not render the search, seizure and arrest under the C.N.S. Act, 1997 an absolute nullity and make entire prosecution case doubtful, except for the consequence provided in said rules. The rules are directory and not mandatory so cannot control the substantive provisions of the Control of Narcotic Substances Act, 1997. Belated dispatch of sample for analysis would not be fatal to the prosecution case, in the absence of any objection regarding the same having been tampered or manipulated. Reliance may be placed on case-law "
Gul Alam v. The State" (2011 SCM R 624) and "Ali Muhammad another v. The State" (2003 SCM R 54).
15. So far as this contention of learned counsel for the appellants that neither the recovery memo was prepared at the spot nor the case property was sealed there at the venue of occurrence is concerned, suffice it to say that in view of the recovery of such a huge quantity of narcotics, which too was very smartly concealed in gas cylinders and again in order to avoid law and order situation most particularly in this part of the country where there is a wave of militancy, the Seizing Officer was having no option but to take the vehicle along with appellants to the Police Station concerned for further proceedings at that end. Again there is nothing on record nor even a suggestion remotely on behalf of the appellants that they have got any ill-will or grudge with the prosecution witnesses.
' We thus have no doubt in our mind that the charge against the appellants has been ,proved beyond any shadow of doubt and that they have rightly been convicted and sentenced which they deserve.
16. For the reasons discussed above, all the three appeals (instant appeal as well as Cr.A. No.85-B of 2011 and Cr.A No.86-B of 2011) stand dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.