' ABDUL RASOOL MEMON, J.---This Judgment will dispose of Criminal Jail Appeal No,333 of 2011 filed by Gul Zaman and Iftikhar who were convicted and sentenced for offence falling under section 6 and punishable under section 9, C.N.S. Act, 1997 by the learned Special Judge-II (CNS) Karachi vide Judgment dated 7-6-2011 as under:--
(i) Life imprisonment and fine of Rs,10,00,000 (One Million) each and in case of default they will suffer further R.I. For 4 years each.
(ii) They were also extended benefit of section 382-B, Cr.P.C.
2. Prosecution case precisely stated in the F.I.R. Bearing Crime No,904 of 2009 Police Station Sohrab Goth is that on 22-12-2009 ASI Ahsanullah Marwat along with his police party consisting of ASI Mulazim Hussain, HC Saeed Kalam, PC Maqbool Latif and PC Pervez Akhtar while was busy in patrolling, on receipt of information that at bushes near Chota Gabol Market, two persons who were dealing in narcotic business, offloaded the Charas from a Suzuki. They reached at the place of vardat at 1740 hours and saw two persons having white colour kattas in their hands who on seeing them tried to escape but both of them were apprehended. On inquiry they disclosed their names as Gul Zaman son of Zarullah and Iftikhar son of Gul Zaman. He conducted their search in presence of ASI Mulazim Hussain, HC Saeed Kalam. The accused Gul Zaman was found having three plastic kattas in his hand which were containing 10 packets of different weights of charas in each katta/bori and the total weight became 37 Kgs. And 485 grams while co-accused Iftikhar who is son of Gul Zaman was found in possession of two kattas and each katta consisting of 10/10 packets of different weights of charas and total thereof became 25.345 Kgs. Charas. The total weight of the charas recovered from both the accused became 62.830 Kgs. The property was sealed, Memo of Arrest and Recovery was prepared by ASI Ahsanullah Marwat on spot in presence of Mashirs HC Saeed Kalam and ASI Mulazim Hussain. Thereafter the property was brought at police station where the F.I.R. (Exh. 5) was registered by the ASI Ahsanullah Marwat under section 9(c) of C.N.C. Act, 1997 (hereinafter will be referred as an Act).
3. The investigation of the case was carried out by P.W.2 SIP Muhammad Aslam and sent the whole property to Chemical Examiner and received the report of Chemical Examiner (Exh.6/C) and after having completed the legal formalities the accused were sent for trial before the court, where the prosecution in order to prove the case examined three witnesses, complainant ASI Ahsanullah Marwat (Exh. 5), Investigating Officer SIP Muhammad Aslam (Exh. 6), HC Saeed Kalam Mashir of arrest and Recovery (Exh. 7), whereas the statements of the accused were recorded under section 342, Cr.P.C. (Exh. 10) wherein they denied the allegations of the prosecution and claimed their false implication in the case. They neither opted to be examined under section 340(2), Cr.P.C. As a witness nor produced any defence evidence..
4. At the conclusion of trial, the prosecution was found to prove its case against the appellants beyond reasonable shadow of doubt. Resultantly the appellants were convicted and sentenced as mentioned supra.
5. Mr. Wan Aziz, learned counsel for the appellants contended that the impugned Judgment is illegal, against the law and result of misreading and non-reading evidence; that no private person was joined in the recovery proceedings and no such witness was cited by the prosecution in derogation of provisions of section 103, Cr.P.C. And the property was sent to Laboratory after considerable delay of 21 days which has made the whole prosecution story highly doubtful; that the investigation was conducted by the ASI and there is violation of sections 21 and 22 of the Act as only an officer not below the Rank of SIP can arrest and seize the contraband narcotics. Concluding the arguments learned counsel for the appellants submitted that delay in sending the material to laboratory and attestation of recovery by the Police Officials is sufficient to create shadow upon the Prosecution Case and its benefit should be given to the accused not as a matter of grace or concession but also as a matter of right. To substantiate the contention reliance has been placed on MUHAMMAD PARYAL v. THE STATE (2001 PCr.LJ 1475), SAIFUR REHMAN and another v. THE STATE (2011 PCr.LJ 1334) and Mst. ZUBAIDA SADARUDDIN v. THE STATE (PLD 2006 Peshawar 128).
6. Ms. Akhtar Rehana, learned Additional Prosecutor-General appearing on behalf of State supported the impugned Judgment of the trial Court and states that the prosecution has proved his case against the appellant beyond any shadow of doubt. The evidence of the prosecution witnesses Ahsanullah Marwat and Saeed Kalam on the point of recovery is consistent, trustworthy, confidence-inspiring, and no contradiction is pointed out by the defence for creating, any shadow of doubt. The report of the Chemical Examiner is positive though lengthy cross-examination was made by the defence counsel but no any illegality, irregularity, non-reading or misreading of evidence has been brought on record. She has placed reliance on the cases MUHAMMAD KHAN v.
THE STATE (2008 SCM R 1616), TARIQ MEHMOOD v. THE STATE through Deputy Attorney-General, Peshawar (PLD 2009 SC 39), GHULAM QADIR v. THE STATE (PLD 2006 SC 61), NASRULLAH v. THE STATE (2011 PCr.LJ 277) and GUL ALAM v. THE STATE through Advocate-General, N.-W.F.P. Peshawar (2011 SCM R 624).
7. The prosecution in order to prove the factum of apprehension of the appellants and recovery of 62.830 Kg. Of contraband charas from the bags carried by them has produced two witnesses ASI Ahsanullah Marwat P.W.1 (Exh.5) and P.W.3 Saeed Kalam (Exh.7) and Sub Inspector Muhammad Aslam who carried out the investigation. Both the above witnesses in an unequivocal manner have deposed that the appellants on 22-12-2009 at 1740 hours near Gabol Market, Sohrab Goth were apprehended by them and recovery of three Kattas/bories from the possession of Gul Zaman and two Kattas/bories from the possession of Iftikhar. Each Katta was containing 10 bags of Charas of different weights and total weight of 3 kattas became 37.485 Kgs. While 2 kattas recovered from Iftikhar were also containing 10 bags each of different weights of charas and total weight became 25.345 Kgs.
8. The Investigating Officer P.W.2 (Exh. 6) Muhammad Aslam has stated that the whole property was sent to the Chemical Examiner and has placed on record the copy of report of Director Laboratories and Chemical Examiner to the Government of Sindh, Karachi dated 19-1-2010 which also shows that 5 Kattas containing 10 packets each were received by them and on examination of the said property and the Chemical Examiner has answered the report as positive. Learned counsel for the appellants during arguments cannot pinpoint any material contradiction between the evidence of the P. W. Ahsanullah Marwat and Saeed Kalam. They have remained absolutely consistent, coherent and have successfully faced the test of cross-examination.
9. The mere fact that the witnesses belong to police is no ground to discard their evidence. They are as good and respectable witnesses as other public witnesses and their statement cannot be discarded for the reasons that they were the police employees. In this context reliance can be made to the cases of MUHAMMAD KHAN v. THE STATE (2008 SCM R 1616), TARIQ MEHMOOD v. THE STATE through Deputy Attorney-General, Peshawar (PLD 2009 SC 39).
10. The other objection of learned counsel for the appellants that no private person was associated as Mashir in this case is also misconceived as much as by virtue of section 25 of the Act non-citing of public witness is not fatal to the prosecution case as section 103, Cr.P.C. Has been excluded from its application in cases of narcotics. In this context reference can be placed on a case of ZULFIQAR AHMED v. THE STATE (2006 SCM R 800).
11. Reverting to the objection of learned counsel for the appellants for delay in sending the material to the Chemical Examiner in violation of Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 is concerned, these rules are 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. This dictum is laid down in the case of GUL ALAM v. THE STATE through Advocate-General, N.-W.F.P. Peshawar (2011 SCM R 624). However, delay otherwise in sending incriminating articles for concerned quarters for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. The defence counsel though made lengthy cross-examination to the Investigating Officer Muhammad Aslam and complainant Asanullah Marwat and Saeed Kalam Mashir, but there is no suggestion or allegation on behalf of appellants to these witnesses that the property was tampered with during the process of transit or the property was not charas. The Chemical Examiner's Report reveals that the sealed bags were received by him which contained signature of marginal witnesses. In a case of TARIQ MEHMOOD v. THE STATE through Attorney- General of Peshawar (PLD 2009 SC 39) in the absence of any allegations of tampering with the property, the arguments of learned counsel for the petitioner were held, not sound.
12. In respect of violation of sections 21 and 22 of the Act is concerned, this question has been elaborately decided in a case of MUHAMMAD YOUNAS and others v. Mst. PARVEEN alias MANO and others (2007 SCM R 393) by the Hon'ble Supreme Court of Pakistan wherein para-7 it has been held as under:-- "The other argument of the learned counsel for the respondent No,1 as to the violation of the provisions of sections 21 and 22 of the Act needs to be dealt with. Ordinarily, only an officer of the rank of Sub-Inspector or equivalent or above may exercise the powers of arrest and seizure of narcotics. But this is not an absolute rule. There may be cases of extreme urgency requiring prompt action, where an accused is caught with narcotics in his possession by a Police Officer of a lower rank. Can it be said that such Police Officer should just let him go with the narcotics? The answer would certainly be in the emphatic "No". The guilt or innocence of an accused does not depend on the question of competent or otherwise of a Police Officer to investigate the offence. A trial of an accused is not vitiated merely on the ground that the case has been investigated by an officer who is not authorized to do so unless a contrary intention appears from the language of a statute. The competent Court would proceed to determine the guilt or innocence of an accused on the basis of the evidence produced before it irrespective of the manner in which he is brought before it. A somewhat similar view was taken in the cases of M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; The Crown v. Mehar Ali PLD 1956 FC 106; M.S.K. Ibrat v. The Commanderin-Chief, Royal Pakistan Navy and others PLD 1956 SC 264; Ahmad Khan v. Rasul Shah and others PLD 1975 SC 66 at pages 81, 88 and 151 = 152; Muhammad and others v. The State 1984 SCMR 954 and The State v. Sohail Ahmed and 4 others PLD 1990 FSC 29. We may however, observe that in a proper case, a Police Officer, if guilty of deliberate usurpation of power and violation of a statute, may render himself liable to disciplinary or penal action or both in accordance with law. The purpose of enacting protective provision of sections 21 and 22 of the Act seems to be that normally the cases of narcotics being of serious nature should be handled by more responsible Police Officers.
13. In view of the above observation of Hon'ble Supreme Court of Pakistan the contention, of learned counsel for the appellants on this point, carries no weight.
14. In defence the appellants have not taken any specific plea except that prosecution witnesses have malafidely deposed against them and they were arrested from their house and the property has been foisted upon them. Neither they examined themselves on oath nor led any evidence in defence to substantiate their plea that they were not arrested from the place of vardat. It is accepted principle of law that when an accused at a criminal trial takes specific plea, the onus invariably shifts and he is required to produce the evidence and prove his plea or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether.
As discussed above, nothing has been brought to substantiate the plea raised in defence.
15. In a case of narcotics where prosecution has made the case under Control of Narcotic Substances Act 1997 (section 29 of the Act) has provided that there is presumption of possession of elicit articles unless the person prosecuted rebut such presumption.
16. The appellants have failed to rebut the contention of the prosecution in shape of ocular testimony of P.W. Ahsanullah Marwat, Saeed Kalam and SIP Muhammad Aslam supported with Chemical Examiner Report and identity of accused and property in court. In view of the above, we find that the prosecution has succeeded to prove its case for recovery of charas as mentioned supra to the hilt and the conclusion drawn for the reasons given by the trial Court show fair evaluation of evidence, we find no illegality or infirmity in the impugned judgment warranting interference of this court. The appeal is devoid of merit and the same is dismissed accordingly.