SARDAR MUHAMMAD SARFRAZ DOGAR, J.---On 7.11.2013 at about 5.00 p.m. in the area of Rikhi.
More, within the territorial jurisdiction of Police Station ANF, Mianwali, a car bearing registration No. IDC-8631, being driven by Khalid Khan appellant was intercepted by a raiding party comprising of Taqqi Abbas Inspector (PW3) and other staff of PS ANF, Mianwali under the supervision of Rai Mohammad Ikram, Assistant Director, ANF. On the disclosure made by the appellant about the presence of charas in the secret cavity in between dash-board and bonnet of the car, 17 packets of charas 1200 grams each total weighing 20.400 kgs were recovered, out of which 10 grams charas from each of 17 packets was separated for chemical analysis while the remaining charas of 17 packets was made into another sealed parcel (P-1) through Memo (Ex. PB). During interrogation, the appellant also made disclosure about presence of another car bearing registration No. GAD- 9665 Nissan Sunny, belonging to him containing narcotics parked near Al-Kamal Hotel near Musa Khel and got recovered 1-1/2 kgs opium contained in three packets of 500 grams each from secret column built in body of the car in front of rear bumper of the car by opening the cavity with a screw driver, out of which 10 grams of opium from each of the three packets was separated while the remaining opium was made into another sealed parcel (P.8) through Memo (Ex.PE). In consequence thereof, FIR No. 14 (Ex. PA/1) was chalked out by Maqbool Ahmed, ASI/Moharrir (PW1) registered at Police Station ANF, Mianwali on 07.11.2013 under section 9(c) of The Control of Narcotic Substances Act, 1997 (hereinafter referred as "C.N.S.A, 1997") on the basis of complaint (Ex. PA) allegedly made and sent by Taqqi Abbas, Inspector (PW3) through Adil Hussain Constable.
2. After registration of the case, usual investigation of the case was conducted and the accused was found guilty during investigation and was challaned to court by the police by mentioning his name in column No. 3 of report under section 173, Cr.P.C.
3. The learned trial court, while taking cognizance of the case framed the formal charge against the appellant on 6.10.2015 under section 9(c) of "C.N.S.A., 1997 on account of recovery of 20.400 kgs charas and 1-1/2 kgs opium. The appellant while resisting the charge pleaded not guilty and claimed trial. In order to prove the charge against the appellant, prosecution examined four witnesses and also tendered report of Chemical Examiner (Ex. PJ) as part of prosecution evidence.
On completion of prosecution evidence, statement of the appellant was recorded under section 342 of "Cr.P.C." through which he denied all the allegations against him and pleaded his innocence.
The appellant, however, did not opt to either record his statement under section 340(2) of "Cr.P.C." or to produce any defence evidence. On culmination of trial, held by the learned Sessions Judge/Judge Special Court, CNSA, Mianwali, vide judgment dated 8.10.2015, Khalid Khan appellant after having been found guilty under section 9(c) of the Act ibid was sentenced to imprisonment for life in addition to fine of Rs. 1,00,000/- or in default thereof to undergo an additional imprisonment of one year's S.I. Benefit of section 382-B, Cr.P.C. was also extended to him. Being aggrieved by the above-said conviction and sentence, the appellant has filed instant Criminal Appeal No. 10694 of 2015 which is being disposed of through this judgment.
4. Learned counsel for the appellant submitted that report of Government Analyst is not in accord with law and as such cannot be made basis for conviction of the appellant. Learned counsel emphasized 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 PW3 Taqqi Abbas, Inspector acted in dual capacity which itself is sufficient to vitiate the recovery proceedings. Argued that there is an inordinate delay in sending the samples parcels to the office of Government Analyst for chemical analysis.
5. Conversely, learned Special Prosecutor ANF vehemently resisted the appeal. He submitted that the appellant was convicted after due appraisal of evidence. Learned Prosecutor contended that the appellant was indulged in a heinous offence and he does not deserve any leniency.
6. Heard. Record perused.
7. While going through the prosecution evidence, especially the statements of Dilbar Hussain, Constable (PW2) (recovery witness) and Taqqi Abbas, Inspector (PW3), we are of the considered view that both these witnesses remained consistent and firm qua recovery effected from the appellant. Though they were tested through a lengthy cross-examination but their evidence could not be shattered. Apparently, sufficient evidence is available to prove the guilt of the appellant.
Even otherwise, he being the driver of the car, was incharge of the vehicle and his culpability is established beyond any shadow of doubt. The report of the Chemical Examiner to Government of Punjab, Rawalpindi was tendered in evidence as (Ex. PJ), which also provides due support to the prosecution case.
8.Though he has taken a stance in his statement under section 342 of "Cr.P.C." that only 500 grams opium was recovered from his possession but the ANF staff with the collusion of actual culprits from whom the charas and opium was recovered, let them off and planted two cars and huge quantity of charas and opium upon him, 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 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 SCM R 1165).
CHARAS IDENTIFICATION TEST TEST POSITIVE NEAGTIVE9. Coming to the argument that report of the Chemical Examiner to Government of Punjab, Rawalpindi (Ex. PJ) is not in accord with law, we are conscious of the fact that a report must contain
(i) the test and analysis of the alleged drug (ii) the result of each test(s) carried out and (iii) the test protocols applied (the name(s) of protocols applied) to carry out these tests. The accuracy of test and analysis and the correct application of the full protocols alone can determine if the recovered substance is a narcotic drug or a psychotropic or controlled substance. "Protocols" means an explicit, details plan of an experiment, procedure or test or a precise step-by-step description of a test, including the listing of all necessary reagents and all criteria and procedures for the evaluation of the test data. It is important to underline that protocols are an intrinsic part of the tests and analysis. A test conducted without following the protocols does not pass for a test or meet the requirement of Rule 6. For the sake of ready reference Rule 6 of the Rules ibid reads as under:-
6. Report of result of test or analysis.
After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in form-11."
It is relevant to mention here that Rule 6 of the Control of Narcotic Substances (Govt. Analysts)
Rules, 2001 contemplates analysis and test as two different things. The rule and the form require that the full protocol of the test should be stated after test or analysis. After the test or analysis has been completed, the analyst shall forthwith supply report to the sender in quadruplicate as specified in Form-II of the result of the test or analysis, together with full protocols of the tests applied as specified in Form-II. Full protocols of the each test/analysis are integral part of Para No. 1 of Form-II. Para No. 1 of Form-II reads as under:- "1. Certified that the sample bearing on purporting to be sample of .....received on.....with memorandum No dated.....from......has been tested/analyzed and the result of each test/analysis is stated below:" (Bold and underlining for emphasis) It shall be deemed to be full and sufficient compliance with the requirement of the, rule in respect of the supply of "protocols of the test or analysis applied" for narcotic substances, if the tests or methods of analysis applied, references to the full protocols of the specific tests are given in the report. As per prosecution evidence, after recovery of 17 packets of charas, Taqqi Abbas Inspector (PW3) weighed each of the 17 packets which weighed 1200 grams each; total weight of 17 packets came to 20.400 KGs. Investigating Officer Taqqi Abbas Inspector (PW3) separated 10 grams of charas from each of the 17 packets recovered and made 17 sealed sample parcels for onward transmission to the office of Chemical Examiner for analysis while the remaining charas of 17 packets was made into another sealed parcel (P1) through recovery (Ex. PB). Now the relevant part of the report of the analyst may be noticed. It reads as under:- PHYSICAL APPEARANCE PHYSICAL APPEARANCE Consistency.......Gramular powderConsistency......Hard Colour............Rusty green Colour...... Brown Aroma.......... charas garda Aroma....... Opium MICROSCOPIC EXAMINATION HAIR +ve SPINE +ve ALDEHYDE TEST OUQUENOIS TEST T .L.C. TEST CHEMICAL TESTS FOR OPIUM CONTENTS Test For Meconic Acid +ve Test for Sulphuric Acid +ve Test for Porphyroxin +ve Test for Alkaloids +ve
1. Morphine +ve
2. Codein +ve On the perusal of the above report (Ex. PJ), it cannot be said that the report submitted by the Chemical Examiner was legally laconic rather the same signifies the test protocols that were applied to carry out these tests on which his opinion is based. Hence, the mandatory requirement of law provided under Rule 6 of the Rules ibid has been complied with and we see no legal infirmity in the same. Thus, the contention of learned counsel for the appellant being based on misconception is ill-founded and misdirected. Guidance is sought from "Khair-ul-Bashar v. The State" (2019 SCM R 930) and The State through Regional Director ANF v. Imam Bakhsh and others"
(2018 SCM R 2039).
10. 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 7th November, 2013 whereas sample parcels were sent to the office of Chemical Examiner on 11th November, 2013. Although there was a minor delay in sending the sample parcels to the Chemical Examiner but the rules to that effect are directory and not mandatory. Even otherwise, there is nothing on record to establish that the said parcels were ever tampered with rather the evidence led by the prosecution established that the parcels received by the said agency, D remained intact. To this effect, statements of Maqbool Ahmed, ASI/Moharrir (PW1), Naushad Ahmad Constable (PW4) and Taqqi Abbas, Inspector (PW3) went un-rebutted. The prosecution has successfully established the safe custody and transmission of the case property to the office of Chemical Examiner. 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 and 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 "Muhammad Sarfraz v. The State and others" (2017 SCM R 1874), "Shah Muhammad v. The State"
(2012 SCM R 1276) and "Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar"
11. 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. We are conscious of the fact that no private witness could be produced but it must not lost sight of that reluctance of general public to become witness in such like cases by now has become a judicially recognized fact and there is no way out but to consider the statement of an official witness as no legal bar or restrict whatsoever has been imposed in this regard. 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 "Salah-ud-Din v. The State" (2010 SCM R 1962), "Ismaeel v. The State" (2010 SCM R 27) and "Fida Jan v. The State" (2001 SCM R 36).
12. So far as the objection of the learned counsel for the appellant that the Investigating Officer is the complainant and the witness of the occurrence and recovery as such he has acted in dual capacity is concerned, it is observed with clarity that law does not place any embargo on the complainant to assume the role of the Investigating as a Police Officer is not prohibited under the law to be 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. 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 "Zafar v. The State" (2008 SCM R 1254) and "State through Advocate General, Sindh v. Bashir and others" (PLD 1997 SC 408).
13. 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, we can safely observe that there is no possibility of false implication of the appellant in the offence entailing stringent punishment, especially in absence of any proven enmity. We have noticed that in rebuttal to overwhelming prosecution evidence, the appellant has failed to produce any tangible G material to rebut the trust worthy and confidence inspiring evidence of the prosecution witnesses.
14. We are, thus, of the considered view that prosecution has successfully established the guilt of the accused/appellant and he was rightly convicted by the learned trial court. The sentence awarded to the appellant duly commensurate with his act. Resultantly this appeal fails and is dismissed. The conviction and sentence of the appellant is, thus, maintained.