SADIQ MAHMUD KHURRAM, J: - The appellant namely Jamal Khan son of Kamal Khan was tried by the learned Additional Sessions Judge/ Judge (Special Court of CNSA), Multan, in case FIR No.700 of 2016, dated 26.09.2016 registered at Police Station New Multan, District Multan, in respect of an offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997. The learned trial court vide judgment dated 03.05.2018 convicted Jamal Khan son of Kamal Khan and sentenced him as infra: Jamal Khan son of Kamal Khan.
Rigorous imprisonment for nine years and six months under Section 9 (c) of the Control of Narcotic Substances Act, 1997 and ordered to pay fine of Rs.45,000/- and in default thereof to further undergo simple imprisonment for a period of seven months and fifteen days.
The appellant was extended the benefit provided under section 382-B of the Code of Criminal Procedure, 1898.
2. Feeling aggrieved, Jamal Khan son of Kamal Khan (convict) lodged Criminal appeal No.529 of 2018 against his conviction and sentence.
3. Precisely the facts necessary , as divulged in the statement of Faryad Ali, ASI (PW-1), the complainant of the case, are as under: "Stated that on 26.09.2016, I was posted at police station New Multan. ON the same day, I was leading the police party accompanying Waqas 4325/C, Ghulam Hussain 287/C, Javed 2000/C and Muhammad Nawaz 1781/C on official vehicle No. 152/MNB driven by driver Zahid Iqbal was present at Chowk Qazafi in connection with patrolling duty. I received spy information that the person was busy in selling Charas near Qasoori Chowk under Fly Over, if raid is conducted, he could be apprehended. On this spy information, I constituted raiding party and reached at the said place, where on the pointation of spy informer with the assistance of police officials, apprehended the accused. Who was holding a shopper containing Chars in his right hand, on weighing it was found 7000 grams Chars. He told his name Jamal Khan s/o Kamal Khan, r/o Dera Ghazi Khan. Out of recovered Chars 07, P1 (1-7) samples of ten grams each were separated for the purposes of chemical analysis. While taking the recovered Chars P2 into possession, I prepared recovery memo Ex.PA, attested by Ghulam Hussain 287/C and Waqas 4325/C. I prepared complaint Ex.PD, which is in my hand and bearing my signature and sent the same through Javed 2000/C to the police station for the registration of FIR. After the registration of FIR, Nazir Ahmad I/SHO reached the spot, I handed over him case property, sample parcels, recovery memo and accused."
4. On the above stated facts, FIR No.700 of 2016 (Exh.PC), dated 26.09.2016 was registered at Police Station New Multan, District Multan, in respect of an offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997.
5. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant was sent to face trial. The learned trial court framed the charge against the accused on 29.07.2017 under section 9(c) of the Control of Narcotic Substances Act, 1997.
The appellant pleaded not guilty and claimed trial.
6. In order to prove the facts in issue the prosecution examined as many as five witnesses in total. Faryad Ali, ASI (PW-1) and Muhammad Waqas 4325/C (PW-2) both narrated the facts leading to the recovery of "Charas" weighing 7000 grams in total, contained in seven packets (Exh.P1/1-7) and made their detailed statements before the learned trial court. Irfan Mahmood, 1716/HC (PW-4) stated that on 26.09.2016 he recorded the formal FIR (Exh.PC) and on the same day Nazir Ahmad, SI (PW-5) handed over to him seven sealed parcels and case property for keeping in safe custody out of which on 19.10.2016 he handed over the seven sealed sample parcels to Allah Ditta 75/C (PW-3) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore.
Nazir Ahmad, SI (PW-5) investigated the case and detailed the facts of the investigation in his statement before the learned trial court.
7. On 15.03.2018, the learned ADPP gave up Ghulam Hussain 287/C, PW, being unnecessary and closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PE).
8. After closing of prosecution evidence the statement of appellant was recorded under section 342 of the Code of Criminal Procedure, 1898 and the appellant pleaded his innocence and in reply to as to why the prosecution witnesses had deposed against him, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution case, being subordinates of the Investigating Officer and the complainant.
The appellant further claimed that he had been falsely involved in the case due to his political rivalry with one Khawaja Mehmood, local MPA of Dera Ghazi Khan. The appellant opted not to appear in terms of section 340(2) of the Code of Criminal Procedure, 1898, and did not adduce any evidence in his defence.
9. After completion of evidence and hearing both the parties the learned trial court held the appellant guilty of offence and sentenced the appellant as referred to above.
10. The learned counsel for the appellant argued that the appellant is innocent and he has been falsely implicated in the instant case. The learned counsel contended that all the witnesses in this case are from the police and the prosecution has not produced even a single independent/private witness who could corroborate their testimony. The learned counsel contended that there was a violation of Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 and as such, the report of the Punjab Forensic Science Agency (Ex.PD) has no legal value and cannot be read against the appellant. Lastly, the learned counsel argued that the prosecution evidence is discrepant and incoherent. The learned counsel contended that there is at least one contradiction in the testimony of the prosecution witnesses that has spoiled it altogether and has made it untrustworthy.
11. On the contrary , the learned Deputy Prosecutor General representing the State supported the impugned judgment and argued that the prosecution has proved its case against the appellant beyond any shadow of doubt.
He further submitted that the appellant himself got the contraband recovered. He contended that the appellant has failed to prove the motive for false implication that he had pleaded in his defence. The learned Deputy Prosecutor General further submitted that all the witnesses have corroborated each other . He requested that the appeal be dismissed
12. W e have heard the learned counsel for the parties and have perused the record.
13. The case of the prosecution hinges on the evidence of Faryad Ali, ASI (PW-1) and Muhammad Waqas 4325/C (PW-2) both narrated the facts leading to the recovery of "Charas" weighing 7000 grams in total, contained in seven packets (Exh.P1/1-7) and made their detailed statements before the learned trial court. We have observed that their statements are coherent and inspire confidence. These prosecution witnesses have corroborated each other on all material points, including date, time and place of occurrence, the quantity of the recovered narcotics and the manner in which recovery was affected. Faryad Ali, ASI (PW-1) drafted written complaint (Exh.PB) at 5:25 p.m and forwarded the same to the Police Station, New Multan and consequently, FIR (Exh.PC) was lodged against the appellant at 5:35 p.m. Thus, it is apparent that the FIR (Exh.PC) was got lodged within a short span of ten minutes and the complainant has not only named the appellant, but has also mentioned each and every minor as well as material facts of the incident therein, which of course excludes the possibility of deliberation or consultation regarding false implication of the appellant in the instant case. There is no element of doubt in the case in hand, the statements of Faryad Ali, ASI (PW-1) and Muhammad Waqas 4325/C (PW-2) both narrated the facts leading to the recovery of "Charas" weighing 7000 grams in total, contained in seven packets (Exh.P1/1-7) and made their detailed statements before the learned trial court, inspire confidence and nothing is available on record which could establish that these witnesses deposed against the appellant and implicated him in this case due to previous enmity, grudge or malice or to fulfill some ulterior motive. We have noted that the main recovery witnesses, namely, Faryad Ali, ASI (PW-1) and Muhammad Waqas 4325/C (PW-2) both narrated the facts leading to the recovery of "Charas" weighing 7000 grams in total, contained in seven packets (Exh.P1/1-7) and made their detailed statements before the learned trial court remained consistent on all facts and their version is vouched by the report of the Punjab Forensic Science Agency (Exh.PE). The prosecution also successfully proved the safe custody and deposit of the case property from the place of occurrence to the police station and from the police station to the office of Punjab Forensic Science Agency, Lahore.
14. As regards the other points urged by the learned counsel for the appellant before us, suffice it to say that jurisprudence on these issues is very well settled by now. Section 25 of the Control of Narcotic Substances Act, 1997 excludes the applicability of section 103, Cr.P.C. therefore, association of witnesses from the public is not mandatory in narcotic cases. Reliance is placed on "Aala Muhammad and another v. The State " (2008 SCMR 649) and "Muhammad Hanif v. The State " (2003 SCMR 1237 ). Furthermore, the testimony of police officials is as good as evidence of any other witness unless the accused is able to establish that the police witness who appeared against him had personal motive/mala fides to falsely implicate him in the offence. Reliance is placed on "Hakim Khan v. The State " (2013 SCMR 547), "Surraya Bibi v. The State " (2008 SCMR 825), "Riaz Ahmad v. The State "
(2004 SCMR 988), "Naseer Ahmad v. The State " (2004 SCMR 1361 ), "Fida Jan v. The State " (2001 SCMR 36), "Muhammad Azam v. The State " (PLD 1996 SC 67) and "Muhammad Naeem v. The State " (1992 SCMR 1617 ).
We are also conscious of the section 29 of the Control of Narcotic Substances Act, 1997, which provides that once the prosecution is able to bring on record evidence to discharge the initial onus of proof then the burden shifts upon the accused to prove otherwise which he failed to do so in this case. The report of Punjab Forensic Science Agency (Exh.PD) was also tendered in evidence which confirms the nature of recovered substance.
15. As regards the argument of the learned counsel for the appellant that there was a delay in sending the samples to the Punjab Forensic Science Agency , we again point out that the law on this issue is settled. Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, are director y and not mandatory in nature.
Mere fact that the samples were sent beyond the prescribed period of 72 hours would not be fatal unless the accused shows that the samples were tampered or he was otherwise prejudiced by the delay . The contention of the learned counsel is without substance. The Rule 4 of the Control of Narcotics (Government Analyst) Rules, 2001 framed under Section 77 of the CNSA provides as under:-- "4. Despatch of sample for test or analysts.
(1) Reasonable quantity of samples from the narcotics drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer incharge of nearest Federal Narcotic Testing Laboratory , depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose.
(2) Sample may be dispatched for analysis under the cover of a Test Memorandum specified in Form-1 at the earliest, but not later than seventy two hours of the seizure. The envelope should be sealed and marked "Secret Drug Sample/T est Memorandum ."
The august Supreme Court of Pakistan has already enunciated the principle of law that the Control of Narcotics (Government Analyst) Rules, 2001 have been framed under Section 77 of the Control of Narcotic Substances Act of 1997 to carry out the purposes of the Act. The august Supreme Court of Pakista n has further held that Rule 5 of the Control of Narcotics (Government Analyst) Rules, 2001 provides a process for proper examination of the sample in the Narcotics Testing Laborator y and this rule reflects the best practice to be adopted while dealing with examination of the sample, hence substantial compliance of this Rule is sufficient as its non-compliance does not offend or upset the statutory regime of the Act. For this, we respectfully rely on the cases reported as "Tariq Mehmood v. The State " (PLD 2009 Supreme Court 39) and The STATE through Regional Director ANF Versus IMAM BAKHSH and others" (2018 SCMR 2039 ). The august Supreme Court of Pakistan in the case of The STATE through Regional Director ANF Versus IMAM BAKHSH and others (supra) has held as under: "To distinguish where the directions of the legislature are imperative and where they are directory, the real question is whether a thing has been ordered by the legislature to be done and what is the consequence, if it is not done. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance. The duty of the court is to try to unravel the real intention of the legislature. This exercise entails carefully attending to the scheme of the Act and then highlighting the provisions that actually embody the real purpose and object of the Act. A provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceedings. Thus, some parts of a statute may be mandatory whilst others may be directory. It can even be the case that a certain portion of a provision, obligating something to be done, is mandatory in nature whilst another part of the same provision, is directory, owing to the guiding legislative intent behind it. Even parts of a single provision or rule may be mandatory or directory. "In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured." Crawford opined that "as a general rule, [those provisions that] relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely of convenience rather than of substance, are directory." In another context, whether a statute or rule be termed mandatory or directory would depend upon larger public interest, nicely balanced with the precious right of the common man. According to Maxwell, "Where the prescription of statute relates to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed or in other words as directory only. The neglect of them may be penal indeed, but it does not affect the validity of the act done in disregard of them." Our Court has held while determining the status of a mandatory or directory provision that "perhaps the cleverest indicator is the object and purpose of the statute and the provision in question." And to see the "legislative intent as revealed by the examination of the whole Act."
The august Supreme Court of Pakistan in the case of The STATE through Regional Director ANF Versus IMAM BAKHSH and others (supra) has also held as under: "The Rules are framed under section 77 of the Act to carry out the purposes of the Act. Rule 5 provides a process for proper examination of the sample in the Narcotics Testing Laboratory . This rule reflects the best practice to be adopted while dealing with examination of the sample. Substantial compliance of this Rule is sufficient as its non - compliance does not offend or upset the statutory regime of the Act. Non-compliance of Rule 5 will not cut so deep as to invalidate the Report of the Government Analyst".
The august Supreme Court of Pakistan in the case of "Tariq Mehmood v. The State" (PLD 2009 Supreme Court 39) has held as under:- "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 in 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."
16. The learned counsel for the appellant has also challenged the report of Punjab Forensic Science Agency (Exh.PE) as per his argument, the said report cannot be read into an evidence as the same was not clear with respect to the test conducted to identify and analyze the recovered narcotics. He submitted that it was necessary for the Punjab Forensic Science Agency to have appended the results of each and every test conducted by them in order to establish the identity of the narcotics. We have perused the report of Punjab Forensic Science Agency (Exh.PE). A perusal of the same reveals that it mentioned the test which was performed on the received items of evidence and the results and the conclusions. As per the said report after analysis the received items were found to contain "Charas" . We find that the report of Punjab Forensic Science Agency (Exh.PE) is in line with the principles enunciated by the august Supreme Cour t of Pakistan in the case of "The STATE through Regional Director ANF Versus IMAM BAKHSH and others " (2018 SCMR 2039 ). It has been held in the said case "The STATE through Regional Director ANF Versus IMAM BAKHSH and others (supra ) as under:- "Rule 6 on the other hand stands on a different statutory footing. It provides that the Report of the Government Analyst, after the test and analysis, is to furnish the result together with full protocols of the test applied. 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. "Protocol" means an explicit, detailed 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. Rule 6 requires that full protocols of the test applied be part of the Report of the Government Analyst. Every test has its protocols, which are internationally recognized and a test without the observance of its protocols has no sanctity. "Full Protocols" include a description of each and every step employed by the Government Analyst through the course of conducting a test. Hence, the Report under Rule 6 must specify every test applied for the determination of the seized substances with the full protocols adopted to conduct such tests.
16. Non-compliance of Rule 6 can frustrate the purpose and object of the Act, i.e. control of production, processing and trafficking of narcotic drugs and psychotropic substances, as conviction cannot be sustained on a Report that is inconclusive or unreliable. The evidentiary assumption attached to a Report of the Government Analyst under section 36(2) of the Act underlines the statutory significance of the Report, therefore details of the test and analysis in the shape of the protocols applied for the test become fundamental and go to the root of the statutory scheme. Rule 6 is, therefore, in the public interest and safeguards the rights of the parties. Any Report (Form-II) failing to give details of the full protocols of the test applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a Report of the Government Analyst under section 36(2). Resultantly, it will hopelessly fail to support conviction of the accused. This Court has already emphasized the importance of protocols in Ikramullah's case (supra).
17. Rule 6 also requires the issuance of quadruplicate copies of the Report and the requirement of two signatures on the Report of the Government Analyst in Form-II. Section 36 states that the Report shall be signed by the Government Analyst only, therefore the requirement of two signatures and the issuance of quadruplicate copies, are at best, a good practice, but are merely directory provisions, as their non-compliance does not offend the Act.
At this stage it is important to point out that this Court, in a series of judgments, has considered the scope of Rule 4(2) of the Rules, which provides that the samples be dispatched to the Government Analyst not later than 72 hours of its seizure and has held it to be a directory provision. Reliance is placed on Muhammad Sarfraz v. State (2017 SCMR 1874 ), Gul Alam v. The State (2011 SCMR 624) and Tariq Mehmood v. The State (PLD 2009 SC 39).
In Taimoor Khan v. State (2016 SCMR 621) this Court has additionally held that Rules 3, 4 and 6 are mandatory .
Deeper examination of this judgment reveals that reference was only being made to Rule 4(1), whereas, Rule 4(2) was not discussed, separately . This understanding falls in line with the consistent view of this Court regarding Rule 4(2) as referred to above.
18. It is important to underline that even if a rule is directory , its substantial compliance as opposed to strict compliance is required. Non-compliance of such a rule might not invalidate the act but as it provides a legislative process based on public interest, transparency and good governance, its substantial compliance is necessary ."
17. We, as a result of the above discussion, are of the considered view that the prosecution has successfully proved its case against the appellant beyond any shadow of reasonable doubt. The defence has miserably failed to extract any material discrepancies or contradictions from the statements of the prosecution witnesses. Accordingly , we dismiss this appeal and uphold the impugned judgment passed by the learned Additional Sessions Judge, Multan.
18. The case property shall be dealt with as directed by the learned trial court. The record of the learned trial court be sent down immediately.