Shehram Sarwar Ch., J:- This single judgment shall dispose of Crl Appeal No.1975 of 2010 titled as "Abid Ashraf Vs. The State and another", and Crl Appeal No.2363 of 2010 titled as "Waris Ali vs. The State" as all both these matters have arisen out of the same case i.e. FIR No.1216/2008, dated 26.09.2008, offence under Section 9-C of the Control of Narcotic Substances, Act 1997, registered at Police Station Shahdara District Lahore. Vide judgment dated 04.08.2010 passed by the learned Addl. Sessions Judge, Lahore, the appellants have been convicted under Section 9-C of the CNSA, 1997 and sentenced as under:- "27. ...Therefore, accused persons Abid Ashraf and Adnan are convicted under section 9-C of the CNSA, 1997, and sentenced to undergo Rigorous Imprisonment for three years and six months
(each) alongwith fine of Rs.30,000/- (each). In case of non-payment of fine the accused shall further undergo S.I for three months (each). The accused Waris is also convicted under section 9-C of the CNSA, 1997, and sentenced to undergo Rigorous Imprisonment for two years and six months alongwith fine of Rs.25,000/- and in case of non-payment of fine he shall further undergo S.I for two months, taking a lenient view keeping in view that the accused are young and first offenders and have no previous record at their credit. The accused Abid Ashraf and Adnan having been sentenced exceeding three years, their assets derivable from trafficking in narcotics substances shall stand confiscated in favour of Federal Government, unless the Court is satisfied, for which, the burden of proof shall rest on the accused persons that the assets or any part thereof have not been so acquired. The benefit of section 382-B, Cr.P.C. Is extended to the accused persons..."
2. Precisely, the prosecution story, as set out in the FIR (Exh.PB) is that on 26.09.2008 Munir Ahmad S.I. Complainant alongwith other police officials in connection with patrol duty and search of criminals was present at Vandala Road where he received a spy information that five person boarding in a Suzuki Car had come from Peshawar alongwith heavy quantity of charas and were present at Jalal Marriage Hall, Match Factory and could be arrested if immediate raid was conducted. On receiving this information, a raid was conducted at the said place and on the pointation of the informer, the raiding party, encircled a Car Suzuki Mehran RIA-07-4324, white colour, which was parked near Jalal Marriage Hall. In the meantime, a person standing near the car, on seeing the police party, fled away while throwing a shopper bag, black colour, holding by him in his hand. The shopper bag was containing charas 2-k.g. The other apprehended accused persons disclosed the name of the said person as Rana Waseem. The five other persons boarding in the car disclosed their names as Muhammad Ayyaz, Adnan, Abid Ashraf, Waris Ali and Muhamad Asim Hanif. As a result of their personal search, the complainant recovered 2-kg charas from accused Ayyaz, 2-kg charas from accused Waris Ali, 3-kg charas from Abid Ashraf, 3-kg charas from accused Adnan and 1-kg charas from accused Asim Hanif. The complainant separated 10 grams charas from each packet as sample for chemical analysis. He chalked out the complaint and took the recovered charas into possession through separate recovery memos.
3. It is pertinent to mention here that Rana Waseem did not appear before the learned trial court and after completing the legal formalities he was declared proclaimed offender, whereas, accused Muhammad Ayyaz and Muhammad Asim were convicted and sentenced on the basis of their confessional statements. So far as Adnan co-accused of the appellants is concerned, though he filed a separate Crl Appeal No.1935 of 2010 but the same was dismissed on 01.09.2010 as having not been pressed because he has served out his entire sentence and stood released from the jail.
4. After formal investigation the police submitted report under section 173 of The Code of Criminal Procedure 1898 before the learned Trial Court and sent the above said appellants to face the trial.
5. The learned trial court after observing legal formalities under the Criminal Procedure Code framed the charge against the present appellants to which they pleaded not guilty and claimed trial.
6. After completion of evidence both the appellants were held guilty by the learned trial court and they were convicted as already mentioned in the preceding paragraph No.1, hence this appeal.
7. Learned counsel for the appellants submitted that there is no evidence available with the prosecution to prove the guilt of the appellants and the conviction was recorded illegally and unlawfully. He further maintained that the impugned judgment is based on self-contradictory evaluation of evidence; that as per prosecution's own case two kilograms charas was recovered from Waris Ali (appellant), three kilograms charas from Abid Ashraf (appellant) and three kilograms charas from Adnan (appellant) but only 10 grams charas from each packet was sent to the Chemical Examiner for its analysis, thus the prosecution has failed to prove its case against the appellants to the effect of alleged recoveries of 02 k.g charas from Waris Ali (appellant), 03 k.g.
Charas from Abid Ashraf (appellant) and 03 k.g. Charas from Adnan (appellant); that there is a considerable delay in sending the sample parcels to the Chemical Examiner for its examination; that there are glaring discrepancies in the evidence of the prosecution witnesses which cast serious doubts in the prosecution case; that the conviction of the appellants has illegally been recorded and the learned trial court has grossly misread the evidence available on the record.
Learned counsel for the appellants have relied upon "Amjad Ali vs. The State" (2012 SCMR 577) and "Sajjad Naeem and 2 others vs. The State" (2013 YLR 64)
8. Conversely, the learned Addl Prosecutor General, defended the judgment of the learned Trial Court and submitted that the prosecution has proved its case beyond any shadow of doubt. He further submitted that the prosecution through the evidence of Azmat Abbas 7301-C, Farhan Muhammad Khan 15688/C, Munir Ahmad, S.I., Muhammad Akram, Inspector and Khalid Masood, ASI who were examined as PW.1, PW.2 and PW.6 to PW.8, respectively, has established the recoveries of charas and the appellants were rightly convicted by the leaned trial Court.
9. We have heard the learned counsel for the appellants as well as the learned Additional Prosecutor General and perused the record.
10. As per complaint the appellants were apprehended by the police raiding party on 26.09.2008 pursuant to spy information and recovered the above said quantity of narcotics. In order to prove its case prosecution examined as many as eight witnesses in toto. Azmat Abbas 7301/C (PW.1) attested the recovery memo (Exh.PA). Farhan Muhammad Khan 15688/C (PW.2) witnessed the recovery of 3.k.g. Charas effected from the possession of Abid Ashraf (appellant). Muhammad Maqbool S.I. (PW.3) chalked out the FIR (Exh.PB). Munawar Hussain ASI (PW.4) deposited six parcels said to contain charas in the office of Chemical Examiner. Muhammad Bashir ASI (PW.5) kept six parcels said to contain charas in the malkhana and thereafter handed over the same to Munawar Hussain H.C. For depositing the same in the Office of Chemical Examiner. Munir Ahmed S.I. (PW.6) is the complainant of the case. Muhammad Akram Inspector (PW.7) investigated this case and while appearing in the witness box narrated the various steps taken by him during the course of investigation. Khalid Masood ASI (PW.8) witnessed the recovery of 02 k.g. Charas at the instance of Waris Ali (appellant). Reports of Chemical examiner were tendered in evidence as Exh.PJ to Exh.PL.
After completion of prosecution evidence the statements of the appellants were recorded under Section 342 of The Code of Criminal Procedure 1898, wherein they denied the recoveries of charas and professed their innocence.
11. We have noticed that the prosecution has led the evidence in the form of Azmat Abbas 7301/C, Farhan Muhammad Khan 15688/C, Munir Ahmad S.I. Muhammad Akram Inspector and Khalid Masood ASI as PWs No.1, 2, and 6 to 8, respectively, who all were the material witnesses qua the recoveries of charas effected from the appellants. All these witnesses completely deposed in line with each other and inspite of lengthy cross-examination nothing adverse could be extracted from their statements and all these five witnesses have eventually corroborated the evidence of each other and proved the recoveries without any hint of doubt. In the Statements of Azmat Abbas 7301/C (PW.1), Farhan Muhammad Khan 15688/C (PW.2) and Khalid Masood ASI (PW.8) recovery memos of charas were exhibited as Exh.PA, Exh.PB and Exh.PH, respectively. These recoveries were further corroborated through the statement of Munawar Hussain ASI (PW.4) who took the sealed parcels to the office of Chemical Examiner and to these effect reports of Chemical Examiner were tendered in evidence as Exh.PJ to Exh.PL which depict that the said packets contained charas.
Moreover, the said parcels remained in malkhana under the custody of Muhammad Bashir ASI (PW.5). So, it is established that the sealed parcels remained in safe hands and were sent to the office of Chemical Examiner.
12. The prosecution, in our considered opinion, had led sufficient evidence to prove the case against the appellants beyond any shadow of doubt and when once the initial burden of proof is discharged by the prosecution with cogent evidence then in terms of Section 29 of The Control of Narcotics Substances Act 1997 the appellants become heavily burdened to prove their innocence through reliable evidence. The appellants did not opt to appear as their own witnesses under Section 340 (2), Code of Criminal Procedure, to prove their innocence. There is no evidence on the record on behalf of the appellants that the police have some grudge against them to falsely implicate them in the instant case. Even otherwise it is highly improbable to plant such a huge contraband against the appellants without any reason.
13. So far as contention of learned counsel for the appellants that only 10 grams of charas from each packet was sent to the chemical examiner for analysis is concerned, the same is misconceived because after going through the relevant statue i.e. The Control of Narcotic Substances Act, 1997, we are of the view that for the Chemical Analysis of the recovered Narcotics, Section 36 is the relevant provision of law, which is reproduced below:- "S.36. Reports of Government Analysts-.(1) The Government Analyst to whom a sample of any narcotic drugs, psychotropic substances or controlled substance has been submitted for test and analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed.
(2) Notwithstanding anything contained in any other laws for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive."
14. Bare perusal of the above referred provision of law reveals that for the purpose of conducting the chemical analysis, only a small sample from the recovered substance is sufficient to determine as to whether the same is narcotic drug or not as defined in the Control of Narcotic Substances Act, 1997. The above provision of law does not prescribe any specific quantity for the said purpose. In this context reliance can be placed on "Zulfiqar Ahmad vs. The State" (2006 SCMR 800), wherein it is held that only sample of one gram heroin is sufficient for chemical analysis. Moreover, there is no provision in the Narcotic Substances Act, 1997 qua the sending of whole recovered Narcotic Substances to the Chemical Examiner for its determination. However, this aspect has been elaborately discussed by the Hon'ble Supreme Court of Pakistan in case of "Amer Zeb vs. The State"
(PLD 2012 S.C. 380).
15. We have also observed that the samples were sent to the office of Chemical Examiner on 06.10.2008 whereas the case was registered on 26.09.2008. The delay in sending the samples to the Chemical Examiner cannot be termed as fatal to destroy the whole case of the prosecution. It is now well settled principle of law that the rules regulating the sending of parcels to the Chemical Examiner framed as The Control of Narcotic Substances (Government Analysts Rules, 2001) are not mandatory rather the same are directory. In this regard, reliance can be placed on "Tariq Mehmood vs. The State through Deputy Attorney General, Peshawar" (PLD 2009 S.C. 39) and "Shah Muhammad vs. The State" (2012 SCMR 1276). We have further noted that conviction and sentence awarded to the appellants by the learned trial court is in accordance with the sentencing policy given in the celebrated judgment of this court titled as Ghulam Murtaza and another versus The State (PLD 2009 Lahore 362).
16. In the light of above discussion we have no doubt in our minds that the prosecution has proved its case beyond any hint of doubt against the appellants and they were rightly convicted by the learned Trial Court by way of judgment dated 04.08.2010. The case laws referred to by learned counsel for the appellants are distinguishable from the facts and circumstances of the case in hand and even otherwise every criminal case has to be decided on its own facts and circumstances.
17. The nutshell of the above discussion is that we do not see any reason to interfere with the well- reasoned judgment of the learned Trial Court while exercising the appellate jurisdiction. The above said appeals, being devoid of any merit are dismissed and the conviction of the appellants as recorded by the learned Trial Court is maintained.