AMJAD ALI SAHIT O, J.---By this judgment, we intend to dispose of Criminal Appeal No.166 of 2019 filed by appellant Niaz Hussain, who was tried by learned Judge, Special Court, (Control of Narcotic Substances)/MCTC Tando Muhammad Khan in Special Case No. 46 of 2018 arising out of the FIR No.56/ 2018 for the offence under section 9(c) of CNS Act, 1997 of Police Station Mulla Katiyar and vide judgment dated 04.09.2019, he was convicted and sentenced to suffer rigorous imprisonment for six years and six months and pay fine of Rs. 30,000/- (Rupee Thirty Thousand Only) and in default thereof, to further undergo simple imprisonment for six months. The benefit of section 382-B, Cr .P.C. was, however , extended to the appellant.
2. The case of the prosecution as depicte d in the FIR is that on 20.09.2018 at 0700 hours, Complainant Inspector/ SHO Nand Lal Maheshwari along with his subordinate staff of Police Station Mulla Katiyar on spy information arrested accused Niaz Hussain from "Davy" Jungle on side of link road and recovered from his possession 3040 grams charras. Inspector Nand Lal has also prepared a memo of arrest and recovery at the spot in presence of police mashirs and FIR at Police Station MullaKatiyar . SIP/I.O. Abdul Aziz carried out an investigation. After the usual investigation report under section 173, Cr .P.C. was filed before the learned trial Court.
3. The learned trial Court framed the charge against the accused at Exh.2, to which he pleaded not guilty and claimed to be tried. In order to establish the accusation against the accused, the prosecution examined the following witnesses:
(i) PW -1 Complainant Inspector Nand Lal at Ex. 4;
(ii) PW -2 PC Muhammad Usman Soomro at Ex. 5;
(iii) PW -3 HC Syed Zaheer Hussain Shah at Ex. 6;
(iv) PW -4 SIP Abdul Aziz Chutto at Ex.07;
(v) PW -5 HC Imtiaz Ahmed at Ex.08.
4. All the prosecution witnesses were cross-examined by the learned counsel for the appellant. Thereafter , D.D.P .P closed the side of the prosecution vides statement at Ex.09.
5. The statement of the accused was recorded under sections 342, Cr.P.C. by the learned trial Court at Ex.10 in which he denied prosecution allegations. The appellant-accused did not examine anyone in his defence or himself on oath under section 340(2), Cr .P.C.
6. The learned trial Court, after hearing the parties and on the assessment of the evidence, convicted and sentenced the appellant as stated above vide judgment dated 04.09.2019 which is impugned before this Court by way of filing the instant Criminal Appeal.
7. Learned counsel for the appellant mainly contended that the appellant is innocent and has falsely been implicated in this case; that the complainant and PWs belong to police, hence they are interested and setup witnesses; that the evidence of such interested witnesses requires independent corroboration, which is also lacking in the present case; and no independent person has been cited as mashir of arrest and recovery , which is in clear violation of mandatory provision of section 103 Cr.P.C; that the place of recovery is link road and in the month of September , it was impossible that the appellant was selling the charras in open area; that the complainant himself has conducted the investigation of this case, hence he has not properly conducted investigation and there are so many contradictions in the evidence of the prosecution witnesses. That the prosecution has failed to prove the safe custody and transmission of the charras to the office of Chemical Examiner; and that there is a delay of 04 days in sending the charas to the office of Chemical Examiner . She lastly contended that the prosecution has failed to prove its case against the appellant, thus according to her, under the above-mentioned facts and circumstances, the appellant is entitled to his acquittal. In support of her contention she has relied upon the cases (i) Agha Qais v.
The State (2009 PCr.LJ 1334), (ii) Abdul Waqar v. The State (2018 YLR 2358 ), (iii) Nazeer Ahmed v. The State (PLD 2009 Karachi 191), (iv) Nazeer and another v. The State (2014 PCr.LJ 1358), (v) Abdul Ghani v.The State (2019 SCMR 608), (vi) Shakeel alias Hakla v. The State (2018 MLD 1396 ) and (vii) Miandad v. The State (2019 YLR 954 ).
8. On the other hand, learned A.P.G. appearing for the State while supporting the impugned judgment has argued that the prosecution has proved its case against the appellant and arrested him while he was selling the charras; that the police officials had no enmity to foist the charras upon the appellant at their own. She lastly prayed for dismissal of the instant appeal as the appellant has committed the heinous offence, which is affecting the society at large.
9. We have heard the learned counsel for the appellant as well as learned A.P.G. and have minutely gone through the record with their assistance.
10. In order to prove its case, the prosecution has examined PW-01 Complainant Inspector Nand Lal Mheshwari, who has deposed that he was on patrolling when he has received information that one Niaz Hussain is selling the narcotic openly on side of link road of village Qassim Dars. He has further deposed that on such information, a raid was conducted and the appellant was arrested along with 02 black colour shopping bags and found charras lying therein in different large and small pieces. The total charras was weighed which became 3040 grams. From his personal search was secured cash of Rs. 550/. The entire charras was sealed on the spot for sending the same to the chemical examiner . The accused and property were brought at the police station, there he recorded entry No.5 in roznamcha. After registration of FIR he handed over FIR, custody of the accused along property and mashirnama to SIP/I.O. Abdul Aziz for further investigation. On very same day he kept property in 'Malkhana' in safe custody through WHC Zaheer Shah. On 24.09.2018 he received property back from WHC and sent the same to chemical examiner and received report in positive, with endorsement that "the above parcel contains charras pieces". In cross-examination,, he has denied the suggestion that the charras has been foisted upon the accused/appellant.
11. The prosecution in support of its case has also examined PW-02 PC Muhammad Usman at Ex. 05, who has supported the contention of the complain ant that on eventful day they left police station and on spy information arrested the accused and recovered chars from his possession and due to non-availability of private person he and co-mashir ASI Ahmed khan were nominated as mashirs for arrest and recovery . PW03 HC Syed Zaheer Hussain Shah at Ex.06 has confirmed that on 20.09.2018 1.0./SIP Abdul Aziz handed over property viz chars and cash to him which he kept in 'Malkhana' in safe custody and recorded such entry in property register at Sr. No. 43 which he produced at Ex.6/A. and lastly , P.W. 5 HC Imtiaz Ahmed was examined, he has also supported the prosecution story by stating that on 24.9.2018 he was given property of the instant crime for depositing in the office of the chemical examiner under roznamcha entry No 23, which he has produced at Ex.8/A.
12. As regards the arguments of learned counsel for the appellant for violation of section 103, Cr.P.C., it would be appropriate to refer section 25 of the Control of Narcotic Substances Act, 1997 which reads as under:-- "25. Mode of making searches and arrest.--- The provisions of the Code of Criminal Procedure, 1898, except those of section 103, Cr.P.C. shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sectio ns 20, 21, 22 and 23 to all warrants issued and arrest searches made under these sections".
13. Bare perusal of above section would reveal that the applicability of section 103, Cr.P.C. in the narcotics cases has been excluded and non-association of any private person as witness is not a serious defect to vitiate the conviction. So far the evidence of police officials is concerned, they are, competent witnesses and their evidence cannot be discarded, only for the reason that they are police officials. They have furnished straightforward and confidence E inspiring evidence. It is a settled principle of law that the prosecution witnesses being police officials by itself cannot be considered as a valid reason to discard their statements/evidence. The reference in this context is made to the case of Zaffar v. The State (2008 SCMR 1254 ), the Hon'ble Supreme Court of Pakistan has held that;- "Police employees are the competent witnesses like any other witnesses and their testimonies cannot be discarded merely on the ground that they are police of ficials".
14. So far the plea raised by learned defense counsel that the complainant has acted as investigating officer in this case arid all the witnesses are police officials is of no help to the appellant. After the arrest of the accused/appellant, the complainant/Inspector Nand Lal had handed over the custody of appellant along with Mashirnama of arrest and recovery , FIR and the property to the I.O. Abdul Aziz for investigation. Further there is no bar in the law for a complainant to act as an investigation officer of the case. The reliance in this context is placed upon the case of The State v. Zaffar (2008 SCMR 1254 ), wherein the Hon'ble Supreme Court of Pakistan has held that:-- "Police officials are 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".
15. Even otherwise, mere status of one as an official would not alone prejudice the competence of such witnesses until and unless he is proved to be interested, who has a motive, to falsely implicate an accused or has the previous enmity with the person involved. The reliance in this context is made to the case of Farooq v. The State (2008 SCMR-970) .
16. The next contention of the learned counsel for the appellant that the chars was not safely deposited in the 'Malkhana' as well as not safely transmitted to the office of the chemical examiner . It suffices to say that the prosecution has examined PW-3 WHC Syed Zaheer Hussain Shah. According to him on 20.09.2018 he was posted as WHC at Police Station MullaKatiyar . On same day SIP Abdul Aziz handed over property viz charas and cash to him and he has kept the same in 'Malkhana ' in safe custody , such entry was kept in property register at serial No.43. He has produced Entry No.43, of property register at Ex.06/A and also sent the property to the office of Chemical Examiner through H.C. Imtiaz Ahmed being property Articles 1 and 2. He has identified the Articles 1 and 2 present in the court. The prosecution has also examined PW-5 HC Imtiaz Ahmed, who submit that he was Head Constable in prosecution branch SP Office Tando Muhammad Khan and took the property to the office of Chemical Examiner for report and it was brought back by him. On 24.09.2018 he was given property of the above-mentioned crime and he left Police Station vide entry No.23 which produced and after depositing the property in the office of Chemical Examiner came back at Police Station and recorded Entry No.18 which produced at Ex.8-B and handed over the letter duly received in the office of Chemical Examiner at Police Station at Ex.7-A which shows that the property in question was kept in safe custody and same was safely transmitted to the office of Chemical Examiner and as per office of Chemical Examiner they received the property in a sealed condition. Hence the contention of the learned counsel that it was not kept in safe custody and not transmitted safely to the office of Chemical Examiner having no force. Although there was a minor delay in sending the sample parcel to the office of Chemical Examiner but the rules to the effect are directory and not mandatory . Reliance is placed on the case of Muhammad Sarfraz v . The State (2017 SCMR 1874 ).
17. The appellant has failed to bring on record any material to show any animosity or with the complainant and the prosecution witnesses, thus in the absen ce thereof, the competence of prosecutio n witnesses being officials was rightly believed. Moreover , a procedural formality cannot be insisted at the cost of completion of an offence and if an accused is otherwise found connected, then mere procedural omission and even allegation of improper conduct of investigation could not help the accused. The reference in this context is made to the case of The State/ANF v.
Muhammad Arshad (2017 SCMR 283 ), wherein the Hon'ble Supreme Court of Pakistan has held that:- "We may mention here that even where no proper investigation is conducted, but where the material that comes before the Court is sufficient to connect the accused with the commission of crime, the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case".
18. It is pertinent to mention here that Chemical Examiner's report regarding charras is sufficient to prove that the substance recovered from the appellant can be used to cause intoxication and the prosecution has discharged its initial onus while proving that substance recovered from the possession of the appellant for which the appellant has failed to discharge his burden in terms of section 29 of Control of Narcotic Substances Act, 1997.
19. Though the investigation officer and other prosecution witnesses are police officials and they have no enmity or rancor against the appellant to plant 3040 grams of narcotics substance against him at their own sources. The defense has not produced any evidence to establish animosity qua the prosecution witnesses. In matters of narcotics, the absence of enmity or any valid reason for false involvement would also be circumstances tilting the case against the accused. The reliance is made on the case of Salah-ud-Din v. The State reported in 2010 SCMR 1962 , wherein the Hon'ble Supreme Court of Pakistan has held that,- "....No enmity whatsoever has been alleged against the prosecution witnesses and there is hardly any possibility for false implication without having any ulterior motives which was never alleged. In view of overwhelming= prosecution evidence the defense version has rightly been discarded which otherwise is denial simpliciter and does not appeal to logic and reasons..."
20. Here, all the witnesses have deposed in the same line to support the prosec ution's case and despite cross- examination by learned defense counsel at length, the defense has failed to point out any dent or to extract any material contradiction fatal to the prosecution case. The version of the complainant/Inspector Nand Lal Maheshwari has been fully corroborated by Mashir of arrest and recovery , which is substantiated with a memo of arrest and recovery , FIR as well as roznamcha departure and arrival entry showing their movement and positive Chemical Examiner's report.
21. The case laws cited by learned counsel for appellant are distinguishable from the facts and circumstances of the present case.
22. Considering the above facts and circumstances, we are of the view that prosecution has succeeded to bring the guilt of the accused/appellant at home and has proved its case against the appellant beyond any shadow of a doubt. Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by the learned trial Court while passing the impugned judgment, which in our humble view, is based on proper appreciation of evidence and same does not call for any interference. Accordingly , the instant Criminal Appeal No. 166 of 2019 being devoid of merit is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.