MIRZA VAQAS RAUF, J.:- Through instant appeal the appellants namely Asif Khan and Ashraf alias Javed assailed the judgment dated 19th of June 2010 passed by the learned Judge Special Court Control of Narcotic Substance, Pattoki District Kasur, whereby the appellants were convicted under Section 9-C of The Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life and fine of Rs.5,00,000/-(rupees five lac) each and in default thereof to further suffer simple imprisonment for six months each. Benefit of Section 382 of The Code of Criminal Procedure 1898 was however, extended to both the convicts.
2. Precisely the facts necessary for adjudication of instant appeal are that on 13th of September 2005, when the police contingent was on patrolling duty, a spy information was received upon which they chased Suzuki car bearing registration No.2725-IDH wherein two persons were seated.
While chasing the car when they reached near Bachianwala Patrol Pump near Multan Adda Nathay Khalsa Multan Road, the persons present in the car opened fire upon them, which hit one of the police officials namely Fateh Sher Head Constable 808. As a result of chase the said car met an accident and as a consequence thereof both the persons boarded in the car also received injuries.
On search of the car 131 packets of chars were recovered from its boot which on weighing become 03-Maunds and 13 kg. This event was reduced into complaint, which was transmitted to the Police Station for registration of FIR No.711 dated 13.09.2005 against present appellants.
3. 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 then accused to face the trial.
4. The learned trial court after observing legal formalities under The Criminal Procedure Code framed the charge against present appellants to which they pleaded not guilty and claimed trial.
5. 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.
6. Learned counsel for the appellants contended that the alleged recovery was effected from 131 packets but only 33 kg chars was sent to the Chemical Examiner for its analysis. Thus the prosecution has failed to prove its case against the appellants to the extent of alleged recovery of 131 kg. He further contended that there is a considerable delay in sending the samples parcel to the Chemical Examiner for its examination. Learned counsel argued that the vehicle in question was not produced before the learned Trial Court at the time of recording of evidence. Learned counsel further submitted that even the case property was not produced before the learned Trial Court. It is further argued that there are glaring discrepancies in the evidence of the prosecution witnesses which cast serious doubts in the prosecution case. Learned counsel in the last submitted that the conviction of the appellants have illegally been recorded and the learned trial court has grossly misread the evidence available on the record.
7. Conversely, the learned Deputy 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 accused were injured at the time of recovery and their medical reports are also available on the record which show that the recovery was effected from their possession.
Learned Deputy Prosecutor General further contended that the prosecution through the evidence of Muhammad Sadiq S.I and Muhammad Abbas S.I, who were examined as PW-6 and PW-7 have established the recovery and the appellants were rightly convicted by the learned Trial Court.
8. We have heard the learned counsel for the appellants as well as the learned Deputy Prosecutor General and perused the record.
9. As per complaint the appellants were apprehended after a chase by the police contingent when they tried to fled away through the car which was driven by the appellant Asif Khan. In this event they have also fired upon the police party which caused injuries to one of the police official namely Fateh Sher Head Constable, who was examined as PW-5. To prove its case the prosecution examined Dr. Muhammad Jahangir as PW-1, who conducted the medical examination of Ashraf alias Javed as well as Asif Khan (appellants), whereas Dr. Muhammad Arif was examined as PW-3, who conducted the medical examination of Fateh Sher PW-5. To this effect the respective MLRs were also brought on record as Exhibit.PA, Exhibit.PB and Exhibit PC respectively. In addition to the said witnesses Bashir Ahmed ASI who was the scribe of FIR was examined as PW-4 and in his statement the complaint and FIR was also exhibited as Exhibit.PD, and Exhibit.PD/1. The injured police official namely Fateh Sher was examined as PW-5, who was a member of raiding party and witness of the recovery as well. The prosecution also examined Muhammad Sadiq S.I, who was the Investigating Officer as PW-6 and on his statement the site plan was exhibited as PW-6/1. The recovery witness namely Muhammad Abbas S.I was examined as PW-7. Whereas Muhammad Ashraf, Inspector was the complainant of the case he was produced as PW-8. Report of Chemical Examiner was tendered in evidence in the statement of learned ADPP as Exhibit.PP/1. After completion of prosecution evidence appellants were examined under Section 342 of The Code of Criminal Procedure 1898, wherein they denied the recovery and in reply to the question No.3 as to why this case against them and why the PWS have deposed against them, they replied as under:- " In this case the complainant is Muhammad Ashraf Inspector/SHO Thana Chunian (PW-8). All other PWs are police officials subordinate to him. The complainant was naturally interested in the outcome of this false case. The investigation was controlled by him. Muhammad Sadiq S.I (PW-6) was subordinate to the complainant. The investigation of this case was dishonest and mockery of law. The investigation should have been conducted by a police officer higher in rank than the complainant. All the PWs are liars. The real owners of the Charas were released by the police by taking heavy bribe and we being the poor people and incidentally present at the patrol pump were involved in this case falsely. The police has carried this case to cover up their mischief. I am a law abiding citizen and was never involved in any criminal case earlier."
10. The appellants also produced defence witnesses namely Shamshad Khan as DW-1 and Riaz Khan as DW-2.
11. We have noticed that the prosecution has led the evidence in the form of Fateh Sher as PW-5, Muhammad Abbas, S.I as PW-7, and Muhammad Ashraf, Inspector PW-8, who all were the material witnesses qua the recovery of chars effected from the appellants. All these witnesses completely deposed in line with each other and inspite of lengthy cross-examination nothing adverse could be effected from their statements and all the three witnesses have eventually corroborated the evidence of each other and proved the recovery without any hint of doubt.
12. In the statement of Muhammad Abbas PW-7 the recovery memo was exhibited as Exhibit PW7/1, whereas the chars, which was recovered from the appellants was tendered in evidence as P-1. The car was taken into possession vide recovery memo Exhibit.PW7/4 and the same was also Exhibited as P-49, whereas the empties which were recovered from the scene of occurrence were taken into possession vide recovery memo Exhibit.PW-7/3 and the same were also tendered in evidence as P- 18 to P48. Similarly the empties cartridges were taken into possession vide recovery memo Exhibit.PW7/2 and the same were tendered in evidence as P-2 to P-17. This recovery was further corroborated through statement of Muhammad Yaqoob PW-2, who took the sealed parcel to the office of Chemical Examiner and to this effect report of Chemical Examiner was tendered in evidence as Exhibit.PP/1 which depicts that the said packets contained chars. We have observed that even PW-2 was not cross-examined. So, it is established on the record that the recovered substance remained in safe hands. Perusal of defence evidence produced in the shape of DW-1 and DW-2 clearly reflects that the same is an after-thought story. Shamshad Khan DW-1 in his statement clearly mentioned that he has recorded his evidence on the asking of Riaz Khan DW-2, who is owner of the truck.
13. In response to the contentions of the learned counsel that no separate samples were taken from each of the packets. We have observed that though there is no specific evidence that the samples were taken from each packet or not but even if we apply the principles laid down in the case of "Ameer Zeb vs. The State" (PLD 2012 S.C 380), it is established on the record that 33 kg chars was sent for chemical examination and in such an eventuality if we assume that the appellants are liable to that extent even than their case is covered under the proviso to Section 9 of The Control of Narcotic Substances Act, 1997 which reads as under:- Section. 9 Punishment for contravention of section 6,7 & 8.__ Whoever contravenes the provisions of Sections 6, 7 or 8 shall be punishable with
(a) Imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;
(b) Imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram;
(c) death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity; of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b).
Provided that if quantity exceeds ten kilogram the punishment shall not be less than imprisonment for life."
14. Bare perusal of the above provision clearly postulates that even if we take into account the quantity which was sent for chemical analysis, the case of the appellants provides the minimum imprisonment for life, so this argument of the learned counsel for the appellants loses its efficacy at its inception. We have also observed that the samples were sent to the Chemical Examiner on 20th of September, 2005, whereas the case was registered on 13th of September, 2005. 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 context reliance can be placed on "TARIQ MEHMOOD Vs. THE STATE through Deputy Attorney-General, Peshawar" jPLD 2009 S.C 39) wherein it is held that:- "6. Learned counsel for the appellant strenuously contended that the samples separated from the seized Charas were sent to the Forensic Science Laboratory at belated stage and in the process sufficient time had consumed and in view of rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 the sample dispatched for analysis beyond seventy two hours and the report received is illegal and rendered the seizure invalid in the eye of law.
7. The rules have placed no bar on 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 non-compliance if the act otherwise is done in accordance with law. The delay otherwise is 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. In this regard, reference can be made to Amjad v. The State (2006 PCr.LJ 988), Ibrahim v.
The State, (2007 YLR 1767 Peshawar) and Abdul Hassan and another v. The State, (2007 YLR 1799 Peshawar)."
15. As already observed that the case property was produced in the Court as P-1, whereas the car was also Exhibited as P-49. Furthermore PW-2 Muhammad Yaqoob, who took the parcel to the Chemical Examiner was not even cross-examined to this effect. The prosecution in our considered opinion had led sufficient evidence to prove the case against the appellants without 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 Narcotic Substances Act 1997 the appellants become heavily burdened to prove their innocence through reliable evidence. The defence of the appellants clearly reflects that the same is an after thought and crafted one. There is no evidence that the police has some reason to falsely implicate the appellants in the instant case. Even otherwise it is highly improbable to plant such a huge contraband against the appellants without any rhyme or reason.
16. There is no legal bar that a complainant cannot act and perform as a complainant as well as investigating Officer in a case at the same time. Reliance in this respect can be placed on the case of "State through Advocate-General, Sindh versus BASHIR and others PLD 1997 S.C 408" wherein it is held that:- " I agree with the judgment of my learned brother Ajmal Mian, J. However, I am adding this note as I would like to make certain observations regarding the first submission made on behalf of the respondents that, since Inspector Shamim Ahmad of C.I.A. was the complainant in the case as well as the Investigating Officer, the trial vitiated. In support of the said proposition, reliance had been placed on the case of Aksar Khan v. The State 1995 M LD 1237 in which a learned Single Judge of the Peshawar High Court held that a Police Inspector could not legally assume dual charge as a complainant and as an investigator, as it had rendered the trial a sheer mockery. I agree with Ajmal Mian, J. that we are unable to subscribe the said broad legal proposition and that there is no legal prohibition for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not, in any way, prejudice the accused person."
There is yet another judgment of the Hon'ble Supreme Court of Pakistan in the case of " Zafar vs The State" (2008 SCM R 1254), wherein the same principle was reiterated.
17. 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 19th of June, 2010.
18. The nutshell of 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 instant, appeal, being devoid of any merit is declined and the conviction of the appellants as recorded by the learned Trial Court is maintained and the appeal in hand is dismissed.