KHADIM HUSSAIN TUNLO, J.---Through the instant Criminal Appeal filed under section 48 of Control of Narcotic Substances Act, 1997 read with section 410, Cr.P.C., the appellants have impugned the Judgment dated 29-08- 2014 passed by Special Judge-II (CNS) Court, Karachi in Special Case No,1027 of 2013 by virtue of which he convicted the appellants and sentenced them to suffer life imprisonment and pay fine of Rs,1,000,000 (Rupees One Million only) each under section 9(c), C.N.S. Act, 1997 in Crime No,57 of 2013 of P.S. ANF-1, Gulshart Iqbal, Kaiachi, in default of non-payment of fine to suf fer further R.I. for four years.
2. Brief facts as narrated in the FIR are that on 05-11-2013 complainant SI Nisar Ahmed along with his subordinate staff left police station, vide roznamcha entry No,12 at 2200 hours to detect narcotic crimes. They first went to Quaidabad, then Feature Morr, Quaidabad, Landhi, Karachi at 2315 hours spy met the complainant SI and revealed information that Abdul, Ghani, Barkat Ali, Hakim, Khan Muhammad and Abdul Majeed were indulged in running a narcotic den at Allah Dad Goth near Farooq Textile Mills, Landi, Karachi. Upon such information and directions, AD Mashooq Ali Brohi along with the informer reached at the pointed place at 2330 hours who found two persons watching the entrance. They apprehended them and entered in the compound, where they found three persons and apprehended them on the pointation of the spy informer . They disclosed their names as Abdul Ghani, Barkat Ali, Hakim, Khan Muhammad and Abdul Majeed. On personal search of accused Abdul Ghani one plastic shopper containing pieces of charas weighing 2400 grams (gross) and on personal search cash amount of Rs,9410/-, from accused (ii) Barkat Ali recovered one plastic shopper containing Charas in shape of garda on weighment found one Kg (gross) and on personal search driving license, color copy of CNIC, key of car and cash amount of Rs,250/- were recovered; from accused (iii) Hakim recovered one white plastic shopper containing pieces of Opium weighing 420 grams (gross) and personal search original CNIC, one parse containing visiting card and slips were secured; from accused (iv) Khan Muhammad recovered one plastic shopper containing 3 bottles of desi liquor (kuppies) and on personal search cash amount of Rs,160/-; while from accused (v) Abdul Majeed recovered white plastic shopper containing pieces of Charas weighing 02 Kgs (gross) but nothing was recovered from his personal search. During preliminary investigation on the spot to the said accused persons they disclosed that they concealed more the Charas/Has hish in the fiber drums and hidden in the (Kachi Zameen) earth side the compound and pointed the place. Therea fter dig out two whole of the (Kachi Zameen) and got out two fiber drums of blue color containing packets of Charas 35 packets/36 packets respectively which were wrapped with yellow solution tape. The said Charas packets were in the shape of rods. All the packets were weighed on the spot and found one Kg (gross) each, total weight of 71 packets of Charas found 71 Kgs (gross). Accused Barkat Ali further disclosed that the car bearing registration No,ADL-909 parked adjacent to compound also having Charas and the said car Indus Corolla (varnish color light pink) which was belonged to him. Accused Barkat Ali taken they key of the car and got recovered 52 foil packets, of Charas like slab/cake, which were checked and found 46 packets consisting of two slabs each while remaining 6 packets of Charas containing' one slab/cake. On weighment each packet was found one Kg (gross), total 52 packets weighing 52 KGs (gross). On search of the said car running paper stand in the name of one Shaukat Ali from the Dash Board and so also excise letters visiting cards and some slips. From the compound 170 bottles of desi liquor (kuppies), were also recovered under the cart which were also owned by the accused persons. Two motrocycles. bearing Registration No,KGN-0125 (red color) and KFW -1046 (black color), respectively also standing inside the compound about the motorcycles accused persons disclosed that they are using the said motorcycles. The recovered contraband Charas/Hashish from the hands of the each accused were sealed separately , while the packets recovered from the fiber drums sealed in two nylon Kattas 40/31 packets respectively and the 52 packets which were recovered from the Diggi of the car were sealed in two nylon Kattas 25/27 packets respectively . The recovered contraband narcotics, fiber drums, key of the car, car, motorcycles, articles and persons searched were taken into custody and prepared memo. of arrest and recovery on the spot in presence of said witnesses. Thereafter the arrested accused persons with recovered contraband and other articles brought at PS ANF Muhammad Ali Society Karachi where lodged FIR being Crime No, 57 of 2013 at 0730 hours on 06-11-2013. Complainant's SI Nisar Ahmed himself conducted the investigation And after completion of investigation he filed final report under section 173, Cr.P.C. before the Court of law on 20-11-2013 against said five accused persons while accused Tahir Nadir and Nasir were shown absconders.
3. After usual investigation challan was submitted before the trial Court against the accused/appellants along with co-accused who were absconded.
4. At the trial prosecution examined P.W.1 SI Nisar Ahmed at Exh.9, who produced the roznamcha entry of departure and arrival as Ex.9/ A, memo. of arrest and recovery as Ex.9/B, FIR as Ex.9/C, letter by which narcotic contraband was sent to chemical examiner as Ex.9/D, chemical analysis report dated 21.11.2013 as Ex.9/E and photocopy of computerized slip Motor Registration Wing as Ex.9/F; P.W.2 PC Ziaul Mustafa on the basis of being mashir of recovery and arrest at Exh.10.
5. Statements of accused persons were recorded under section 342, Cr.P.C. at Ex. 12 to Ex.16 in which they denied the prosecution allegations leveled against them, they pleaded their innocent and false implication by police with mala fide intentions. They also stated that they have no concern with the chemical analyst reports. They however did not opt to examine any witness in their defence or examine themse lves on oath as required under section 340(2), Cr .P.C. to disprove the allegations made against them in the prosecution case.
6. Learned counsel for the appellants submitted that accused Barkat was not owner of the car bearing registration No,ADL-909 from which 52 kilograms of charas was recovered; that PW-1 SI Nisar Ahmed while recording his evidence has produced computerized slip of Excise and Taxation Department, Motor Registration Wing, Karachi as Exh.9/F which implies that the said car stands in the name of Shaukat Ali who is otherwise father of accused Barkat Ali that the initial onus is on the prosecution to prove that the samples sent for analysis were the representative samples of the entire quantity; that it is necessary to take separate representative samples from each cake/slab and if that is not done only the slab from which the sample is collected has to be considered against the appellants; that the signatures of two authorized officers are required on the test report under Federal Government Analyst Rules, 2001 Form-II; that the report of chemical examiner must contain the method on which his opinion is based on; that neither safe custody of the recove red contraband nor the safe transmission has been justified. The learned counsel for the appellants have relied on the case-laws reported in PLD 2012 SC 380, 2017 YLR 878 2017 PCr.LJ 668, 2015 SCMR 1002 , 2007 YLR 2559 , 2000 PCr .LJ 374, 2008 SCMR 991 .
7. Learned Special Prosecutor for ANF has vehemently opposed the acquittal of the appellants while supporting the impugned judgment and has maintained that the appellants are nominated in the FIR by name that the charas in huge quantity was recovered from the possession of the appellants; that the offence committed by the appellants is heinous one being against the society; that non-association of any private person of the locality to witness the search and recovery is not fatal to prosecution case.
8. We have heard the arguments advanced by the learned counsel for the appellants and learned Special Prosecutor for the State/ANF and have gone through the material available on the record.
9. From a bare perusal of the evidence adduced before the trial Court, it transpire s that all the material witnesses have fully corroborated the version of each other more particularly the eye-witnesses. There seems to be no contradiction regarding receiving spy in information conducting the raid on the spot, car wherein charas weighing 52, Kgs was found, two fiber drums of blue color containing packets of Charas in A shape of rods weighing total 71 kilograms and 5820 grams from personal search of the appellants, samples from each and every packet were taken for chemical analysis whose report is in positive. They were subjected to lengthy cross-examination but their evidence remained un-shattered and unshaken. The case of the prosecution is based on strong circumstantial evidence.
10. Furthermore, the report of the Chemical Analyst is in positive and the defence has not disputed the nature of substance nor challenged the authenticity of the report of the Chemical Analyst, neither the appellants have brought on record any substantive mate rial to show that the report of the Chemical Analyst was the result of tampering or manipulation nor any illegality or irregularity has been found in the test performance report of the Chemical Analyst. Moreover , the contention of the learned counsel for the appellants that the quantity of narcotic substance consumed for testing and the quantity left un-consumed had not been mentioned in the chemical examiners report after testing the same, the unconsumed case property was de-sealed at the time of recording of evidence of P.Ws and re-sealed in the presence of appellants and their counsel, but none of them have raised objection on its production in evidence nor put any question from the P.Ws. in respect of chemical examiner's report. The reason has been given in the chemical examiner's report, but due to oversight, the quantity consumed while testing the narcotic substance and quantity of un-consumed narcotic substance had not been mentioned by the chemical examiner , and it has all been given full protocol and the examiner applied complete mechanism as per rules 5 and 6 of CNS (Govt. Analysts Rules, 2001). The very language implied in the nines and the effect of its breach provided therein have made the rules directory and not mandatory . These rules cannot control the substantive provisions of the CNSA and to be applied in such a manner that its operation shall not frustrate the purpose of the Act under which these rules are framed. Further , failure to follow the rules would not render the search, seizure and arrest under the CNS C Act an absolute nullity and non-set 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. Further entire recovered narcotic substance was referred to the chemical examiner details of which had been mentioned at page 02 of chemical examiner's report. Not only this but P.Ws have specifically deposed that the complainant approached nearby residents present at place of incident to act as witnesses but they refused due to fear of narcotic paddlers. Section 25 of Control of Narcotic Substances Act, 1997 excludes the application of Section 103, Cr.P.C. With regard to the contention of learned counsel for the appellant that the Investigating Officer acted as complainant, police officer is not legally prohibited 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 manner cause prejudice to the accused. With regard to the affidavits being filed by the persons from the locality , none from the said persons has been examined by the appellants in defence nor have they even produced copy of said affidavits during recording of their statements under section 342, Cr.P.C. Moreso appellants have stated in their statements recorded under section 342, Cr.P.C. that they were picked up by the Rangers personnel but they have failed to disclose the specific date, time and place of the incident, nor lodged any complaint before any authority that they were detained by the Rangers authorities, hence, the defence plea taken by the appellants appears to be after-thought and without any substance.
11. So far as the case-law referred by the counsel for appellants is concerned, the same is distinguishable from the facts and circumstances of present case. In the case of Ameer Zeb, the conviction was maintained while reducing the sentence as the separate samples from each packet were not sent to the Chemical Examiner for analysis. In the case of Waqas Ali Jarwar , there was a delay of one month and twenty four days without any plausible explanation for such delay in sending the sample for examination, which has been given by the prosecution. In the case of Arshad Mehmood Khan, the conviction was set aside as there were Contradictions in the case of prosecution as to the depositing of sample and case property in the Malkhana and prosecution witnesses had made contradictory statements regarding nature, colour , shape and size of slabs of recovered charas (garda).
Some of the prosecution witnesses- had even deposed that the recovered substance to be heroin. In the case of Ikramullah and others, entire page which was to be referred to relevant protocols and test was not only substantially kept blank but the same had also been scored off by crossing it from top to bottom, such was a complete failure of compliance of relevant rules and such failure reacted against reliability of report produced by the prosecution before. trial Court. In the case of Iftikhar Sadiq and others, the petitioners showed no confidence in the Investigating Officer and moved an application to the I.G.P . and filed constitutional petition for transfer of investigation which was dismissed. In the case of Muhammad Ibrahim and another , the raiding party took no efforts to even ask people in the area to act as Mashir and the accused was charged for an offence punishable under sections 3 & 4, PEHO, 1979. In the case of Amanat Ali and 2 others, the complainant, being highly interested to the prosecution case, had himself conducted the investigation, and that only one gram was sent for Chemical Analysis from the recovered 2-1/2 Kilograms. In the present case, entire recovered quantity of narcotic substance was referred to the chemical examiner promptly who has mentioned entire protocol and given reasons but due to oversight the quantity consumed while testing the narcotic substance has not been mentioned by the chemical examiner in the report, as already discussed supra.
12. Considering the above facts and circumstances we are of the view that prosecution has succeeded to bring the guilt of accused at home and appellants have failed to point out any non-reading of evidence or any material illegality or serious infirmity committed by the trial Court while passing the impugned judgment, which does not call for any interference, hence same stands maintained. Consequently , instant crimina l appeal stands dismissed being devoid of any merit.