' MISS AALIA NEELUM, J.---Sajjad Ahmed son of Muhammad Sardar, appellant was involved in case F.I.R. No. 510 dated 5-9-2001, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station, Islampura, Lahore and was tried by the learned Additional Sessions Judge, Lahore. The learned trial Court seized with the matter in terms of judgment dated 20-9-2011 and convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment for life with the direction to pay Rs.2,00,000 as fine and in case of default thereof, further undergo Simple Imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was also extended in, favour of the appellant. The appellant has assailed his conviction through filing the instant jail appeal.
2. The prosecution story as narrated in the F.I.R. (Exh.P.E) lodged on the complaint (Exh.P.D) of Muhammad Ilyas, S.I. (P.W.5) is that on 5-9-2001 the complainant along with other police officials were present in Police Station, Islampura in connection with case F.I.R. No.506 dated 5-9-2001 registered under sections 353, 324, 186, P.P.C. Read with sections 6/9 of the Control of Narcotic Substances Act, 1997 accused Mirza Ahmed Khan was in custody, who led to the police party to the house of co-accused, namely, Sajjad Ahmed from where accused Sajjad Ahmed, appellant was arrested and got recovered two sacks which were lying underneath the cot and on checking, one sack comprising of 64 packets, each of them was weighing one kilogram Charas whereas ten packets of Heroin containing one Kilogram in each packet were also recovered from the second sack whereupon 10 grams Charas as well as one gram Heroin from each packets were separated for the purpose of chemical analysis and sealed the same whereas remaining Charas (P-1) and remaining Heroin (P-2) were kept in separate sealed parcels by preparing recovery memos (Exh.P.A) and (Exh.P.B). The amount of Rs.3,400, two prize bonds having value of Rs. 200 each along with I.D. Card, one driving licence, one telephone directory and his personal pictures were also recovered, on personal search of the accused and the same were taken into possession vide recovery memo (Exh. P C) .
3. Thereafter the investigation was conducted by Muhammad Ramzan, S.I. (P.W.6), who on receipt of copy of F.I.R., made rough site plan (Exh.P.E) of the place of recovery and recorded statements of the prosecution witnesses under section 161, Cr.P.C. On reaching the police station, the Investigating Officer handed over case property to Moharrar Malkhana for safe custody for onward transmission to the quarter concerned. Having found the accused guilty, the Investigating Officer prepared report under section 173, Cr.P.C., while placing his name in Column No.III of the Challan and sent the same to the court of competent jurisdiction.
4. The learned trial Court formally charge-sheeted the appellant on 11-4-2002, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as seven witnesses. Muhammad Ilyas, S.I. (P.W.5) is the complainant of the case, whereas Akhter Hussain, A.S.I (P.W.1) and Muhammad Aslam, A.S.I (P.W.3) are the witnesses of the recovery whereas Muhammad Shafi, A.S.I (P.W.5) being Duty Officer chalked out formal F.I.R. (Exh.P.E) on receipt of the complaint (Exh.P.D) and Asmat Ullah, 810/C (P.W.4) who after receiving samples from the Moharrar, namely, Akhter, deposited the same to the office of Chemical Examiner.
5. On 24-5-2010, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering the report of Chemical Examiner, Lahore as Exh.P.F.
6. The appellant was also examined under section 342, Cr.P.C. Wherein he opted not to lead defence evidence and not to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against him and while replying to a question that why this case against him and why the P.Ws. Have deposed against him, the appellant made the following deposition:- "I have been made a scape goat in this case by the police officials to highlight their performance.
P. Ws. Being subordinate of the complainant have deposed falsely to strengthen the case of their senior as they are in good terms with the complainant."
7. The learned trial court after evaluating the evidence available on record in the light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellant in the afore-stated terms.
8. Learned counsel for the appellant has contended that the learned trial Court has erred in law as well as on facts while convicting the appellant; that number of witnesses were mentioned by the prosecution in the calendar of witnesses twice; that neither recovery was effected from the appellant nor the same was in his possession: that the alleged recovered contraband's samples were also sent to the office of chemical examination after a delay of ten days without any explanation which makes case of the prosecution doubtful; that the prosecution has violated the provision of section 103, Cr.P.C.; that the prosecution has failed to establish link of the appellant with the alleged recovered narcotics, therefore, report of the Chemical Examiner does not advance the prosecution story. Lastly the learned counsel has prayed for setting aside the impugned judgment by acquitting the appellant.
9. Conversely, the learned Law Officer has contended that evidence of the P.Ws. Are unanimous as to the factum of recovery and there is nothing in the evidence which could show that the prosecution witnesses have deposed against the appellant falsely or narcotics were planted by them upon the appellant and as such in view of the quantity of recovered narcotic substance, the learned trial court has rightly convicted the appellant.
10. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor-General and have minutely perused the record available on the file.
11. As per prosecution version, Muhammad Ilyas, S.I. (P.W.5) in connection with investigation of case F.I.R No.506 dated 5-9-2001, offence under sections 353, 324, 186, P.P.C. Read with section 6/9 of the Control of Narcotic Substances Act, 1997 was present within the territorial jurisdiction of Police Station, Islampura, Lahore along with other police officials of C.I.A., and accused Mirza Ahmed Khan was in their custody. On the pointation of said accused-Mirza Ahmed Khan they conducted said at the house of the appellant, namely, Sajjad Ahmad for his arrest. Said Sajjad Ahmad-appellant was sitting on a cot lying in the courtyard. Muhammad Ilyas, S.I. (P.W.5) apprehended him and recovered two sacks lying underneath the cot. As per prosecution version, from one sack contraband charas comprising of sixty four packets and each packet, weighing one kilogram of contraband charas total 64 Kilograms whereas in second sack containing ten packets of Heroin and each packet, weighing one kilogram, total ten kilograms Heroin contraband were recovered, which were taken into possession vide recovery Memo Exh.P.A and Exh.P.B respectively. The complainant (P.W.5) and Muhammad Aslam, S.I. (P.W.3) have fully supported the prosecution version on account of recovery and nevertheless they were subjected to lengthy cross- examination, however, the defence has failed to bring on record an iota of evidence favouring the defence version.
12. After going through the record, it also reveals that from the recovered narcotic substance, the complainant (P.W.5) had separated samples, weighing 10/10 grams charas from each packets and made into separate parcel total sixty four (64) in numbers and also separated sample, weighing one gram Heroin from each recovered packets and made separate parcels total ten (10) in number and those were sent to the office of Chemical Examiner for analysis and as per its report in respect thereof (Exh.P.F) all the sixty four (64) sealed parcels were containing charas and ten (10) sealed parcels containing Heroin. As separate parcels were taken from each packet and were sent to the office of Chemical Examiner separately, therefore,. The instant case cannot be examined in view of dictum of law laid down by august Supreme Court of Pakistan in the case of Ameer Zeb v.
The State (PLD 2012 SC 380).
13. Asmat Ullah (P.W.2) also reiterated the same facts given in the F.I.R. As well as uttered by P.W.S. Both were subjected to lengthy searching cross-examination but with no fruitful result.
14. So far as delay in sending the sample to the Chemical Examiner is concerned, suffice it to say that Rules 4 and 5 of the Control of Narcotic Substances Act, 1997 are not mandatory in nature.
Since there was no objection that the contraband was unsealed or tampered with, therefore, delay would not affect result of the Chemical Examiner. The August Supreme Court of Pakistan held in the case of Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar (PLD 2009 Supreme Court 39) wherein it has been observed that:- "The rules have placed no bar o the Investigating Officer to send the samples beyond seventy two hours of the seizure, receive the F.S.L. Report after fifteen days and the report so received to place before the trial court. The very language employed in the rules and the effects of its breach provided therein have made the rules directory and not mandatory. These rules cannot control the substantive provisions of the C.N.S.A. And to be applied in such a manner that its operation shall not frustrate the purpose of the Act under which these are framed. Further, failure to follow the rules would not render the search, seizure and arrest under the C.N.S.A. An absolute nullity and non-est and make the entire prosecution case doubtful, except for the consequence provided in the rules. In directory provisions substantial compliance is sufficient and even where there is no compliance at all, the act is not invalidated by such noncompliance if the act otherwise is done in accordance with law. The delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. There is no allegation of the appellant that the property was tampered with during the process of transit or the remaining property was not charas. It was for the appellant to have taken such plea before the trial Court but the appellant did not do so. However, we have examined the chemical Analyzer's report-and found that the sealed packets were received by him which contained the signatures of marginal witnesses. In the absence of any allegation of tampering with the property, the argument of learned counsel for the appellant is not sound.
15. Furthermore, the report of Chemical Examiner (Exh.PF) is positive and the defence has not disputed the nature of contraband. The contention that no private person has been associated to witness the recovery as such recovery is false, is devoid of force as by virtue of D section 25 of the Control of Narcotic Substances Act, 1997 provisions of section 103, Cr.P.C. Are excluded in Narcotics cases. It is held in the case of Fida Jan v. The State (2001 SCM R 36) wherein it has been observed that:- "It was next contended by learned counsel that compliance of section 103, Cr.P.C. Was mandatory in view of judgment of this Court in the case of State v. Bashir and others PLD 1997 SC 408. This judgment has not rendered any help to him because under section 25 of the Act application of section 103, Cr.P.C. Has been excluded. This aspect of the case has been thoroughly discussed in the impugned judgment by the learned Judges of the High Court and the findings recorded in this behalf admits no interference. According contention of the learned counsel is overruled"
16. As far as contention of the learned counsel for the appellant that the appellant is first offender, therefore, he deserves some leniency in awarding the sentence is concerned, from the impugned judgment passed by the learned trial Court it revealed that the learned trial court while taking note of this aspect has already inflicted alternative sentence of imprisonment of life.
17. The upshot of the above discussion is that the prosecution had fully established its case against the appellant through leading, E tangible and confidence inspiring evidence. The learned trial Court while appreciating the evidence available on the record in its true perspective has rightly recorded the conviction and sentence against the appellant.
18. Resultantly, Criminal Appeal. No.215-J of 2011 is devoid of force, which is accordingly dismissed in toto, as a consequence whereof, he conviction and sentence awarded upon the appellant by the learned trial court in terms of judgment dated 20-9-2011 is maintained.