MIRZA VIQAS RAUF, J. This single judgment shall govern the instant appeal as well as criminal Appeals No.195 and 207 of 2015 as there is similarity and commonality in the points of facts and law involved in these appeals. All these appeals arise out of common judgment dated 13 May, 2015 handed down by the learned Additional Sessions Judge/Special Judge Control of Narcotic Substances (CNS), Chakwal.
2. Through instant appeal and Cr1. Appeal No.195 of 2015, the appellants namely Muhammad Shahbaz, Muhammad Ali and Muhammad Kamran have questioned their conviction recorded by the learned trial Court while holding them guilty of offence under Sections 9 (c) of The Control of Narcotic Substances Act, 1997 (hereinafter referred as "C.N.S.A, 1997") whereas Crl.Appeal No.207 of 2015 assails the said judgment resulting into confiscation of car bearing registration No.ICT-VU-341.
3. The edifice of prosecution story is structured on the statement of Kazim Hussain, S.I, who appeared as PW-5 and narrated the gist of allegations as under: - "Stated that on 5.7.2014 I was posted at P.S Kollar Kahar alongwith Muhammad Akram ASI, Aziz-ur-Rehman Head Constable, Ali Akbar constable and Sultan Constable in connection with search of narcotics etc were present on the exit from Islamabad side of Kallar Kahar interchange at about 7:45 p.m. when a car bearing registration No.ICTVU-341 made Suzuki came from Rawalpindi side. The car was stopped by me and on search four persons were found present in the Court. Muhammad Kamran accused present in the Court was drivingthe car. On the second seat on front Muhammad Shahbaz accused present in the Court was sitting whereas on the rear seat of the car accused Muhammad Ali and Mazhar Ali present in the Court were found sitting. I made personal search of all the accused on having found them suspect, On the personal search of Kamran accused three packets containing heroin were recovered from the pockets of his Vest. All the three recovered packets were separately weighed and on weighing each packet of heroin amounted to 1050-th - grams.Kamran accused on further search also got recovered eight packets containing heroin from underneath his driving seat. Each of these eight recovered packets was separately made which amounted to 550-grams. In all eleven packets recovered from Kamran accused amounted to 7550-grams. On further search of accused CNIC of the accused P-1, his driving license P-2, one mobile phone Nokia P-3, one mobile-Q P-4 and cash amount of Rs,10430/- P-5 were also recovered from the possession of the accused Kamran, On the personal search of Muhammad Shahbaz accused three packets containing heroin were recovered from the pocket Vest of Shahbaz accused each of the three recovered packets was separately weighed which amount to 1050 grams each. On the pointation of Muhammad Shahbaz accused eight more packets containing heroin which subsequently weighed 550-grams each, were got recovered by the accused from beneath the seat upon which he was seated, In all the recovered quantity of heroin recovered from the possession of Shahbaz accused amounted to 7550 grams. On further search of this accused one mobile phone Nokia-P-7 and cash amount of Rs.55870/- P-8 was recovered from his possession.
On the personal search of Muhamamd Ali accused two packets containing heroin were recovered from his left and right dub and these packets were weighed separately and each amounted to 1100-grams. Muhammad Ali accused also produced before me three packets containing heroin after recovering the same from beneath the footmates placed on his seat. Each of these recovered packets amounted to 550-grams each on weighing. In all heroin recovered from this accused amounted to 3850 grams. On further search of this accused two mobile phones P-10/2 and cash amount of Rs.3020/- P-11 were recovered from his possession.
On the personal search of Mazhar accused one packet of heroin was recovered from his right flank pocket of his shirt and one packet was recovered from the left black pocket of his shirt and on measurement each of these packets amounted to 550-grams. Heroin weighing 1100-grams was recovered from the possession of accused Mahzar. On further search of this accused, two mobile phones P-13/1-2 and cash amount of Rs.5100/- P-14 and I.D card of this accused is P-19 was recovered from his possession.
I separated 10-grams of heroin from each of 29-packets recovered from all the four accused above named and made them into sealed parcels for chemical analysis. The remaining quantity of all the aforesaid recovered heroin was made by me-into a sealed parcel which quantity is P-18.
The recovered heroin recovered from the possession of Kamran accused which is X6/111 and other articles i.e. I.D Card P-1, license P-2, mobile phones P-3 and P-4, cash P-5 were taken into possession by me vide recovery memo Exh.PA. All the recovered heroin P-9/1-11 recovered from the possession of Muhammad Shahbaz accused, cash amount P-8, mobile phone P-7 were taken into possession by me vide recovery memo Exh.PB. Heroin recovered from the possession of accused Muhammad Ali P-12/1-5, mobile phones P-10/1-2 and cash P-11 were secured by me vide recovery memo Exh.PC. Heroin P-15 recovered from the possession of Mahzar accused, mobile phones P-13/1-2 and cash P-14 were secured by me vide recovery memo Exh.PD. Recovery memo Exh.PA, Exh.PB, Exh.PC and Exh.PD were attested by Muhammad Akram ASI and Aziz-ur- Rehman Head Constable. Car bearing registration No.ICTVU-341 P-17 was taken into possession by me vide recovery memo Exh.PE attested by both the above named witnesses Muhammad Akram ASI and Aziz-ur Rehman Head Constable. 1 drafted formal complaint Exh.PH and sent the same through Ali Akbar Constable to the Police Station for the registration of FIR. After the registration of FIR, investigation of the case was handed over to me. During investigation, accused Shahbaz, Muhammad Ali and Mazhar made a disclosure before me in presence of police party above mentioned that they had come on a car bearing registration No.LEA-8588 which they had parked near the Weighing Scale of motorway in the area of Police Station Kallar Kahar and that they can get recovered the same, consequently above named accusee lead to the recovery of car No.8588-7 LEA P-19 which was taken into possession through recovery memo Exh.PG attested by Muhammad Akram ASI and Aziz-ur-Rehman Head Constable. During investigation, Muhammad Shahbaz, Muhammad Ali and Mazhar accused further disclosed that they used to purchase the heroin from co- accused Kamran and that heroin already supplied to them by Kamran accused have been sold by them at Chaniot and sale money of that heroin has been kept in the "Digee" of car ICTUV-341. Upon their disclosure all the accused Muhammad Shahbaz, Muhammad Ali and Mazhar led to the recovery of cash amount of Rs.811170/- P-16 which was kept from a place meant for spare tire situated in the Digee of Car No.ICTUV-341 P-17. I had taken cash P-16 in my possession vide recovery memo Exh.PF attested by Muhammad Akram ASI and Aziz-ur-Rehman witnesses. I formally arrested all the above named accused. I prepared rough site plan of place of occurrence which is Exh.PJ and drawing and notes on Exh.PG are in my handwriting and bears my signature. I handed over all the case property according to recovery memos to Moharrir of Police Station for safe custody and transmission to the Laboratory as the case may be. I recorded the statements u/s 161 Cr.P.0 on the witnesses.
On 6.7.14 1 produced the accused before Area Magistrate and got them sent up to judicial lockup. After the deposit of parcels in the Laboratory 1 again recorded the statements of parcels.
The above referred incident was then capsulated in complaint Exh.PH. On receipt of complaint, FIR No.170 dated 5 July, 2014 under Section 9 (c), of "C.N.S.A, 1997" was accordingly registered at police station Kallar Kahar , District Chakwal.
4. After formal investigation, the accused were sent to face the trial before the learned Additional Sessions Judge/Special Judge Control of Narcotic Substances (CNS), Chakwal. The learned trial Court, while taking cognizance of the matter, indicted the accused namely Muhammad Shahbaz, Muhammad Ali and Muhammad Kamran for the offence under Section 9 (c) of "C.N.S.A, 1997" whereas accused namely Mazhar Abbas was charged for the offence under Section 9 (b) of "C.N.S.A" to which all the accused pleaded not guilty and claimed trial. In order to bring home guilt of the accused, prosecution examined five witnesses. Rehmat Ullah, Head Constable No.555, who was officiating as Moharrar at the relevant time, appeared in the witness box as PW-1 to depose about keeping the recovered articles in the safe custody and sending the sample parcels to the office of Punjab Forensic Science Agency, Lahore (hereinafter referred as "PFSA"). The recovery was witnessed by Muhammad Akram, A.S.I who appeared as PW-2 whereas Aziz-ur-Rehman, Head Constable No.804, the other recovery witness was given up, being unnecessary. Ashiq Hussain, Constable No.629, who took the sample parcels to the office of "PFSA", appeared as PW-3. Nasir Abbas, S.I, scribe of FIR was examined as PW-4. The star witness of the case is Kazim Hussain, S.I, who was not only the complainant but Investigating Officer of the case, he appeared as PW-5. The reports of "PFSA" were tendered in evidence as Exh.PJ.
5. On the contrary , all the accused pleaded their innocence in their statements under Section 342 of The Code of Criminal Procedure, 1898 (hereinafter referred as "Cr.P.C"), however , neither they opted to record their statements under Section 340 (2) of "Cr.P.C" nor they produced any defense evidence. On conclusion of trial, the accused namely Muhammad Shahbaz, Muhamm ad Ali and Muhammad Akram were adjudged as guilty of the offence under Section 9 (c) of "C.N.S.A, 1997" whereas accused namely Mazhar Abbas was held guilty of offence under Section 9 (b) of "C.N.S.A" by way of judgment dated 13 May, 2015. They were sentenced in the following manner: - Muhammad Shahbaz Rigorous imprisonment for 12 years alongwith fine of Rs.1,50,000/- and in default thereof, 11 months simple imprisonment.
Muhammad Ali Rigorous imprisonment for 08 years alongwith fine of Rs.70,000/- and in default thereof, 08 months simple imprisonmentth th Muhammad Kamran Rigorous imprisonment for 12 years alongwith fine of Rs.1,50,000/- and in default thereof, 11 months simple imprisonment.
Mazhar Abbas Rigorous imprisonment for 01 year alongwith fine of Rs.13000/- and in default thereof, 4 months 15 days simple imprisonment.
Benefit of Section 382-B "Cr.P.C" was, however , extended to the convicts. The case property i.e. car bearing registration No.LEA-8588 was confiscated in favour of State by way of impugned judgment. It is pertinent to mention here that the accused/convict namely Mazhar Abbas has not assailed the abovesaid judgment of conviction.
6. Mr. Shan Zeb Khan, Advocate representing the appellants namely Muhammad Shahbaz and Muhammad Ali submitted that charge was defective and the appellants could not be convicted for the offence charged. Learned counsel emphasized that report of Government Analyst is not in accord with law and as such cannot be made basis for conviction of the appellants. He added that though the alleged recovery was effected at a public place but no effort was made by the Investigating Officer to associate any witness from the locality. Learned counsel contended that PW-5 acted in dual capacity which caused serious prejudice to the appellants. Argued that there is an inordinate delay in sending the samples parcels to the of fice of Government Analyst for chemical analysis.
7. Mr. Shah Nawaz Khan, Advocate, while representing the appellant namely Muhammad Kamran in appeal No.195 of 2015, in addition to the arguments raised by learned counsel for the co-appellants, submitted that the appellant has been made scapegoat whereas no recovery was effected from him. He added that prosecution was the outcome of malafide and the complainant in order to usurp the cash amount of the appellant, planted the heroin upon him. Learned counsel, in support of Crl. Appeal No.207 of 2015, submitted that Rehmat Gul was the owner of vehicle in question, which has wrongly been treated as case property and confiscated illegally .
8. Conversely , Mr. Naveed Ahmad Warraich, learned Deputy District Public Prose cutor vehemently resisted these appeals. He submitted that the appellants were convicted after due appraisal of evidence. Learned Prosecutor contended that the appellants were indulg ed in a heinous offence and they do not deserve any leniency . It is also one of the contention of the learned Prosecutor that car in question was used in transportation of narcotics, which was rightly confiscated by way of impugned judgment, which is unexceptionable.
9. Heard. Record perused.
10. While going through the prosecution evidence, especially the statements of Muhammad Akram, A.S.I (PW-2)
(recovery witness) and Kazim Hussain, S.I (PW-5), we are of the considered view that both these witnesses remained consistent and firm qua recovery effected from the appellants. Though they were tested through a lengthy cross-examination but their evidence could not be shattered. The report of "PFSA" was tendered in evidence as Exh.PJ, which also provides due support to the prosecution case.
11. First we would like to take up the case of Muhammad Kamran appellant. He was found as driver of the car from where alleged recovery was effected. Apparently , sufficient evidence is available to prove his guilt. Even otherwise, he being the driver of the car, was incharge of the vehicle and his culpability is established beyond any shadow of doubt. Though he has taken a stance in his statement under Section 342 of "Cr.P.C" that he was having an amount of Rs.17,00,000/- with him while travelling to Lahore for purchase of a car and the police booked him in the instant case to usurp the said huge amount but despite specific defense plea, neither he opted to record his statement under Section 340 (2) of "Cr.P.C" nor any evidence in defense was produced. Mere bald and general assertions are not sufficient to discard the overwhelming prosecution evidence. The appellant namely Muhammad Kamran was admittedly driver of the car from which, the alleged narcotic was recovered. He being the driver was well within knowledge about the concealment of narcotics in the car. Reference in this respect, if needed, can be made to "KASHIF AMIR v. THE STATE" (PLD 2010 Supreme Court 1052), "GHULAM QADIR v. THE STATE" (PLD 2006 Supreme Court 61) and "RIAZ MIAN v. The STATE" (2014 SCMR 1165).
12. So far case of appellants namely Muhammad Shahbaz and Muhammad Ali is concerned, from both of them, 7550 grams of Heroin each was recovered, who were seated on front and rear of car respectively . The prosecution witnesses, to this effect, have also remained firm and consistent. It is pertinent to mention here that alleged recovery was not only effected from various compartments of the car but from personal possession of the appellants as well.
13. Adverting to the contention of learned counsel for the appellant that charge was defective and as such the appellants could not be convicted, suffice to observe that mere defect in a charge is not sufficient to grant a premium in favour of the accused, if otherwise guilt is duly established on the record. We have noticed that charge was framed under Section 9 (c) of "C.N.S.A, 1997" and each of the appellants was held guilty of the substance recovered from each of them. They were duly confronted with the charge as well as prosecution evidence in their statements under Section 342 of "Cr.P.C" and there is no hint of doubt that they were well aware of the allegations against them while facing the trial. Mere omission in framing of charge cannot be made basis to set at naught the verdict of guilt of the accused. In this context, we would like to refer Section 537 of "Cr.P.C', which reads as under: -
537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings. Subject to the provisions hereinbefore contained, no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account--
(a) of any error, omission or irregularity in the complaint, report by police-officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges uncless such error omission or irregularity has in fact occasioned a failure of justice.
14. Coming to the argument that report of "PFSA" is not in accord with law, we have no hesitation to observe that report of Government Analyst is to be regulated by Section 36 of "C.N.S.A, 1997", which ordains that the Government Analyst, to whom a sample of any narcotic drugs, psychotropic substance 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. By virtue of Sub- Section 2, such report of the Government Analyst is per se admissible in evidence. After having gone through the report of Government Analyst i.e. Exh.PJ, we see no legal infirmity in the same. Thus, the contention of learned counsel for the appellants is ill-founded and misdirected.
15. As regards contention of learned counsel for the appellant that no witness from the public was associated by the complainant, suffice to observe that it is established from the record that the alleged recovery was effected in presence of police officials who have fully supported the same in their statements while appearing in the witness box. Mere non-association of the witnesses from the public is not sufficient to vitiate the search and recovery proceedings as the applicability of Section 103 of "Cr.P.C" has been specifically ousted to the proceedings conducted under "C.N.S.A, 1997" in terms of Section 25 of The Act ibid. Being the special law, the "C.N.S.A, 1997" was given overriding affect by virtue of Section 76, thus non- association of public witness during the recovery proceedings is of no consequence. Police officials are equally good witnesses in absence of any proven enmity . Reference in this respect, if needed, can be made to "FIDA JAN vs. THE ST ATE "(2001 SCMR 36 ).
16. Attending the question that the complainant has acted in dual capacity, it is observed with clarity that law does not place any embargo on the complainant to assume the role of the Investigating Officer. Even otherwise, nothing is available on the record to the effect that on the basis of dual function of the complainant, some prejudice was caused to the appellant. Guidance in this respect can be sought from "STATE through Advocate-General, Sindh vs. BASHIR and others "(PLD 1997 S.C. 408).
17. Now addressing the question of delayed submission of sample parcels to the office of Chemical Examiner, it is noticed that alleged recovery was effected on 5 July, 2014 whereas sample parcels were sent to the office of "PFSA" on 11 July, 2014. To this effect, statements of Rehmat Ullah, Head Constable No.555 (PW-l), Ashiq Hussain, Constable No.629 (PW-3) and Kazim Hussain, S.I (PW-5) went un-rebutted. The prosecution has successfully established the safe custody and transmission of the case property to the office of "PFSA". Even otherwise, dispatching of sample beyond 72 hours is not a sine qua non. Mere delay in sending the sample to the Laboratory is not at all fatal to the prosecution case because Rules 4 & 5 of The Control of Narcotic Substances (Government Analysts) Rules, 2001, do not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband. The provisions in this respect are directory and not mandatory.
Guidance in this respect, if needed, can be sought from "TARIQ MEHMOOD vs. THE STATE through Deputy Attorney-General, Peshawar "(PLD 2009 Supreme Court 39).
18. After having an analysis of prosecution evidence, we are of the candid view that prosecution has ably discharged the initial onus of proof. If once the prosecution leads ample evidence and discharge the initial onus of proof then it is the accused who has to diminish the presumption of guilt against him as being the special law, Section 29 of "C.N.S.A, 1997" gives rise to a presumption of guilt against the accused. In view of recovery of huge quantity of Heroin, we can safely observe that there is no possibility of false implication of the appellants in the offence entailing stringent punishment, especially in absence of any proven enmity. We have noticed that in rebuttal to overwhelming prosecution evidence, the appellants have failed to produce any tangible material to rebut the trust worthy and confidence inspiring evidence of the prosecution witnesses. They have though taken specific defense pleas but no evidence was led in defense.
19. We are, thus, of the considered view that prosecution has successfully established the guilt of the accused/appellants and they were rightly convicted by the learned Trial Court. The sentence awarded to the appellants duly commensurate with their act. Resultantly this appeal as well as Crl. Appeal No.195 of 2015 fail and are dismissed. The conviction and sentence of the appellants is, thus, maintained.
20. So far Crl. Appeal No.207 of 2015 is concerned, the appellant namely Rehmat Gul, while claiming himself as owner of vehicle No.ICT-VU 341, applied for Superdari. It is an admitted position that Rehmat Gul was not owner of the vehicle at the time of registration of FIR, which was registered in the name of one Muhammad Khalid Usman at that time. The appellant got transferred the ownership of vehicle during the trial. He was, thus, having no locus standi to claim the vehicle. Since no other person came forward for claiming the vehicle, learned Trial Court has rightly confiscated the same in favour of State. In view of above, we see no merits in this appeal, resultantly the same is also dismissed.