AMJAD ALI SAHIT O, J.---Appellant named above was tried by learned III-Additional Sessions Judge/(MCT C-II)
Sukkur in Special Case No. 32/2013 Re. The State v. Zain Ali Shar, for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, arising out of Crime No.08/2013 registered with Police Station ANF Sukkur , whereby he was convicted and sentenced for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, to suffer imprisonment for life and to pay fine of Rs.100,000/ in case of default in payment of fine, to suffer S.I for one (01) year more. However , the benefit of section 382-B, Cr.P.C. was also extended to him.
2. Succinctly , the prosecution case as depicted in the. FIR is that on 25-03-2013 at about 7-30 a.m., at Old Toll Plaza situated at National Highway , Rohri, a team of ANF police headed by Inspector Tahir Ahmed secured 563 kilograms charas in shape of 563 foil packed packets, each containing two slabs and 1500 grams Opium in shape of three packets from the secret cavities of Vigo Hilux Toyota vehicle bearing No.CS-8258. During the personal search of the accused, a cash amount of Rs. 5300/-, one Watan card, some other cards, two mobile phones, 8 mobile sims, one wrist watch, one wallet of black colour were recovered from the possession of accused in presence of mashirs namely HC Ayaz Ahmed and PC Shoukat Ali. From further search of the vehicle, its registration book in the name Gazali Textile Mill, one Photostat copy of CNIC in the name Shahbaz Ghazi was also recovered in presence of mashirs namely HC Ayaz Ahmed and PC Shoukat Ali. Accused further disclosed that the alleged contraband material belongs to one Zubair Ahmed, who is resident of District Sanghar . Such mashirnama of arrest and recovery was prepared at the spot in the presence of mashirs. Thereafter the accused along with recovered case property and vehicle were brought to Police Station ANF Sukkur , where the instant case for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, was registered against him on behalf of the State. On completion of the usual formalities, the ANF police submitted report under section 173, Cr.P.C. before the competent Court of law .
3. The learned trial Court on 24-09-2014 framed a charge against the. appellant at (Exh.04), to which he pleaded not guilty and claimed trial. At the trial, in order to establish the accusation agains t the appellant, the prosecution examined the following witnesses;-
(i) PW-01 Complainant/ Inspector Tahir Ahmed was examined at (Ex.6), who produced roznamcha entries, mashirnama of the place of incident, FIR, letter vide which samples were sent to the chemical examiner and chemical report at (Ex. 6/A to 6/F) respectively .
(ii) PW -02 Mashir/eye-witness PC Aijaz Ali Shah was examined at (Ex.7).
E.C. Muhammad Siddiqueat (Exh.08).
Both these witnesses were cross-examined by the learned counsel for the appellant. Thereafter , the learned SPP for the State closed the prosecution side.
4. Statement of the appellant was recorded under section 342, Cr.P.C, in which he denied the allegations and claimed innocence. However , neither the appellant examined himself on oath nor he produced any witness in his defence.
5. The learned trial Court after hearing the counsel for the parties and on the assessment of the evidence, convicted and sentenced the appellant, as mentioned above, vide judgment dated 30-07-2019, which is impugned before this Court by way of filing instant Criminal Appeal.
6. Mr. Muhammad Shabbir Rajput advocate for appellant contended that the appellant being driver of the Vigo Toyota Hilux is innocent and had no know ledge about the availability of charas and opium in the secret cavities of the vehicle; that chemical examiner's report is not with protocol of the test, hence it has no value in the eyes of law; that the complainant himself has conducted investigation of this case and there are material contradictions in the evidence of prosecution witnesses; that safe custody and safe transmission of charas to the chemical examiner have also not been established; that the complainant and PWs being ANF officials are interested and set-up witnesses; that the evidence of such interested witnesses requires independent corroboration, which is also lacking in the present case; that all the witnesses are ANF officials and no independent person has been cited as mashir of arrest and recovery , which is clear violation of mandatory provisions of section 103, Cr.P.C. He lastly contended that the prosecution has failed to prove its case against the appellant thus according to him under the above- mentioned facts and circumstances, the appellant is entitled to his acquittal. He placed his reliance on cases reported as The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ), Khair -ul- Bashar v . The State (2019 SCMR 930 ) and Zafar v . The State (2008 SCMR 1254 ).
7. On the other hand, Mr. Mohsin Ali Khan, Special Prosecutor ANF while supporting the impugned judgment has argued that the prosecution has proved its case against the appellant who was found transporting huge quantity of charas and 1.500 kilograms opium, which was recovered on the pointation of accused from the secret cavities of the vehicle; that the ANF officials had no enmity to foist such a huge quantity of narcotics upon the appellant at their own; he thus lastly prayed for dismissal of instant appeal.
8. We have heard learned counsel for the appellant, learned Special Prosecutor ANF and have minutely gone through the record with their able assistance.
9. It has borne out from the record that 563 kilograms charas and 1.500 kilograms opium was recovered on the pointation of the appellant from the secret cavities of the Vigo Toyota Hilux vehicle bearing No.CS-8258, which was driven by the appellant Zain Ali Shar, who is said to be the resident of Soonharo Fakir , Taluka Thari Mirwah. Out of entire charas, 83 kilograms/packets of charas were sealed for chemical analysis whereas the entire three packets of Opium were sealed for chemical analysis. The remaining packets of charas were sealed in 12 nylon bags, by putting 40 packets in each nylon bag, hence the appellant is found responsible for transportation of huge quantity of charas and opium having its prior knowledge in his vehicle. It is a well-settled principle that a person who is on driving seat shall be responsible for transporting of such huge of narcotics substance. The reliance in this context is placed upon the case of Kashif Ameer v. The State (PLD 2010 SC 1052 ), wherein the Hon'ble Supreme Court of Pakistan has held that; It is well-settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics having knowledge of the same as no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. Further . when a person is driving the vehicle, he is incharge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the case of Muhammad Noor v. The State (2010 SCMR 927). Similarly , in the case of Nadir Khan v. The State (1988 SCMR-1899 ). This Court has observed that knowledge and awareness would be attributed to the incharge of the vehicle. Another aspect of the case is that once the prosecution has prima facie established its case then under section 29 of the CNSA burden shifted upon the accused to prove contrary to the plea of the prosecution. Reliance in this behalf may be made to the case of Ismaee l v. The State (2010 SCMR 27).
Wherein, this Court while relying upon the cases of Muhammad Arshad v. The State (2007 SCMR 1378 ) and Mst.
Taj Bibi v. The State (2007 SCMR 1591 ) has held that chemical examiner's report regarding Charas and Opium were sufficient to prove that the substance recovered from the accused was Charas which can be used to cause intoxication; the prosecution had discharged its initial onus while proving that substance was recovered from him whereas the petitioner had failed to discharge its burden in terms, of section 29(d) of CNSA.
10. Furthermore, the Hon'ble Supreme Court of Pakistan while dismissing the appeal of appellant Hussain Shah by judgment dated 20-09-2019 passed in Criminal Appeal No.7-P of 2017 , wherein, the Honourable Supreme Cour t has held as under:- "Hussain Shah appellant was driving the relevant vehicle when it was intercepted and from a secret cavity of that vehicle a huge quantity of narcotic substance had been recovered and subsequently a report received from the Chemical Examiner had declared that recovered substance was charas. The prosecution witnesses deposing about the alleged recovery were public servants who had no ostensible reason to falsely implicate the said appellant in a case of this nature. The said witness had made consistent statements fully incriminating the appellant in the alleged offence. Nothing has been brought to our notice which possibility could be used to doubt the veracity of the said witnesses.
11. As regarding the contention of learned counsel for the appellant that prosecution has failed to prove safe custody and safe transmission of the charas to the office of Chemical Examiner . It may be mentioned that in cross- examination of PWs, no question has been put by the defence counsel that there was tampering with the case property at the police ,station or during transmission of the case property to the Chemical expert. It is a matter of record that charas was recovered from Vigo Toyota Hilux on 25-03-2013 and on the next day, it was sent to the Chemical Examiner , who in his report at Ex. 6/F has mentioned that three sealed plastic Katta each bearing 01 seal. Seals perfect and as per copy sent, therefore, we hold that charas was safely transmitted to the Chemical Examiner . At this stage it is appropriate to reproduce Rules 4, 5 and 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, which reads as under;-
4. Despatch of sample for test of analysts .---(1) Reasonable quantity of samples from the narcotic drugs, psychotropic substance or the controlled substances seized, shall be drawn on the spot of recovery and despatched to the officer in charge 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). Samples may be despatched for analysis under the cover of Test Memorandum specified in Form-I at the earliest, but no later than seventy-two hours of seizure. The envelop should be sealed and marked "Secret Drug Sample/T est Memorandum".
5. Receipt in the laboratory and examination of sample with reference to T est Memorandum .-
(1) The sealed envelope, containing the samples, received in the laboratory should be carefully opened and given a distinct laboratory number .
(2) A separate register be maintained for narcotic drugs which may be further sub-divided agency-wise and the laboratory numbers should form a continuous series for each year .
(3) All samples shall be passed to the analyst the same day, who will then keep the same in his safe custody and will examine and record its, or there, weight in the Test Memorandum. He will compare the markings on the Test Memorandums with the markings on the packages envelopes and will ensure that he test the relevant samples, and in no case, the analysis of a narcotic drug be delayed as the Courts may refuse to extend remand beyond fifteen days in the absence of a chemical report.
6. Report of result of test or analysis.--- After test or analysis the result therefore together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II.
12. From perusal of Rule 4, only the requirement that the reasonable quantity of sample from the narcotic drug, psychotropic substance or the controlled substances seized, shall be drawn on the spot of recovery and despatched to the office in charge of nearest Narcotic Testing Laboratory for the test either by insured post or through a special messenger . Further Rule 5 ibid provides condition that it should be received in the sealed condition in the Laboratory . The incharge officer shall observe full protocol by carefully opening and give a distinct laboritory number . For that, a separate register shall be maintained. All samples shall be passed to the analyst on the same day and keep in safe custody and examine and record, weight in the test memorandum. He will compare the markings, on the test Memorandums with markings on the packages envelop es and will ensure that he tests the relevant sample. The Rule 6 of C.N.S. (Government Analysts) Rules, 2001 further provide that on analysis the result thereof together with full protocols the test applied, shall be signed in quadru plicate and supplied forthwith to the sender as specified in Form-1 1. Now the question is here whether the report received from the office of the Chemical Examiner is according to Rules 4, 5 and 6 of C.N.S. (Government Analysts) Rules, 2001 or not. The requirement of Rule 4 ibid is only that the parcel/envelop should be received in the office of Chemical Examiner in a sealed condition. We have perused the report as Ex.6/F , and in our humble view its according to its Rule and the full protocol was observed by the office of Chemical Examiner . It is appropriate to reproduce the report received from the of fice of Chemical Examiner , which reads as under;-
1. Total weight of the above plastic Katta No. 1 along with contents ...... 43 Kilo and 740 grams.
Net weight of slabs of each packet ........ 1 Kilogram.
Total weight of the above plastic Katt& No.2, along with contents......... 40 Kilo and 695 grams.
Net weight of slabs of each packet........... 1 Kilogram.
2. Physical Exam:- Smell like that of Charas.
3. Resine test .......... Positive.
4. Micro Scopic Exam:-Horn type spines visible.
1. Total weight of the above plastic Katta No:-3 with contents..... 1646.00 grams.
2. Physical Exam:-Smell like that of Opium.
3. Meconic acid test..........Positive.
4. Porphyronine test............Positive.
5. Alkoliad test..........Positive.
20 grams of material from each slab of packet of the above each plastic Katta No.1 and 50 grams of material from each piece of packet of the above plastic Katta No.3 consumed in analyses and remaining material is returned in the sealed plastic Katta Nos.1, 2 and 3.
RESUL T OF EXAMINA TION.
The above plastic Katta Nos.1 and 2 contain Charas.
The plastic Katta No. 3 contains Opium.
13. The procedural detail is mentioned in the Chemical Examiner's report Ex.6/F about the tests applied do not fall short of "protocol". In unreported case of Mushtaq Ahmed v. The State and others (Criminal Petition No.370 of 2019 ) the Hon'ble Supreme Court" of Pakistan has held that; 3... Argument that Forensic report sans protocols as mandatorily required in the case of State v. Imam Bakhsh (2018 SCMR 2039 ), is beside the point and so is a reference to Rule 6 of the. Control of Narcotic Substances (Government Analysis) Rules, 2001, for the convenience of reference reproduced below:- "Report of the result of test 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-II".
The above requires reference to the. test applied for analysis, specifically mentioned in Form-II thereof. We have perused the forensic report, relied upon the prosecution, which substantially meets the legal requirements in the following terms:- "Test Performed on Received Item(i) of Evidence
1. Analytical Balance was used for weighing.
2. Chemical Spot Tests were used for Presumptive Testing.
3. Case Chromatography-Mass Spectrometry was used for confirmation.
Results and conclusions "Item # 01 72.87 gram(s) of blackish brown resinous material in sealed parcel contains Charas"
Details mentioned in the Forensic report procedure/test applied do not short of 'protocol' as insisted by this court in the supra case. According to the Oxford English Dictionary , 6th Edition, the expression "protocol" in relation to a forensic test means.
"A formal or official statement of a transaction or proceedings; spec, a record of (esp. scientific) experimental observations".
14. The reliance is also placed on the un-reported case of Hon'ble Supreme Court of Pakistan, on the judgment dated 09-01-2020 passed in Criminal Petition No.370 of 2019 Re. Mushtaq Ahmad v . The State and another ;
4. It has been argued before us that the report submitted by the Chemical Examiner did not mention the necessary protocols followed or tests applied but we have seen the said report available on the record of the trial court and have found that the said report not only referred to the protocols adopted but also to the tests applied and, thus, we have not been able to find any deficiency in the said report.
15. As regards the arguments of learned counsel for the appellant regarding violation of section 103, Cr.P.C. is concerned, 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."
16. It means that applicability of section 103, Cr.P.C. in the narcotics cases has been excluded and non-inclusion of any private witness is not a serious defect to vitiate the conviction. So far the evidence of ANF officials is concerned, they are competent and their evidence cannot be discarded only for the reason that they are ANF officials. They have furnished straight forward and confidence-inspiring evidence and there is nothing on the record to show , that they have deposed against the appellant maliciously or out of any animus and it cannot be believed that the ANF officials would plant and foist such a huge quantity of narcotics viz. 563 Kilograms of charas and 1500 grams Opium against the appellant at their own sources. It is a settled principle of law that the prosecution witnesses belong to police officials by itself cannot be considered as a valid reason to discard their statement. 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 officials."
17. In the instant case, no proof of enmity with the complainant and the prosecution witnesses has been brought on the record, thus in the absence thereof, the competence of prosecution witnesses being ANF 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 would 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. 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 ).
19. It is now settled proposition of law that by flex of time in the case of transporta tion or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country if the case stands otherwise proved, the approach of the Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases. The Hon'ble Supreme Court of Pakistan in the case of Ghulam Qadir v. The State reported in (PLD 2006 SC 61) has held that,- "S. 9(c)---Appreciation of evidence---No acquittal on technicalities---Court in such like cases are supposed dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities."
20. So far the plea raised by learned defense counsel that the complainant has acted as investigating officer in this case and all the witnesses are ANF officials, is of no help to the appellants. 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".
21. Though the investigation officer and other prosecution witnesses are ANF officials they have no enmity or rancour against the appellants to plant such huge quantity of narcotics substance against them. The defense has not produced any evidence to establish animosity qua the prosecution witnesses. In matters of huge quantity 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..."
22. On our evaluation of the evidence of complainant/ Inspector Ali Tahir Ahmed and mashir/PC-Aijaz Ali Shah, we find it confidence-inspiring and trustworthy; the appellant being driver was transporting the huge quantity of charas and Opium in Vigo Hilux Toyota vehicle bearing No.CS-8258 was arrested from Old Toll Plaza situated at National Highway Rohri bypass. The version of the complainant/Inspector Tahir Ali has been fully corroborated by mashir of arrest and recovery , which is substantiated with the memo of arrest and recovery , FIR as well as roznamcha departure and arrival entry showing their movement and positive Chemical examin er's report. No enmity , ill-will or grudge has been alleged or proved against prosecution witnesses to implicate the appellant falsely in this case.
The prosecution successfully discharged its duty thereby shifting the burden upon the accused within the meaning of section 29 of the Act. Such burden would require the accused to firstly cause a dent in the prosecution case and secondly to establish least justify the possibility of false implication or foisting of huge quantity of charas, but the defense has failed in doing so.
23. Considering the above facts and circumstances, we are of the view that prosecution has succeeded to bring the guilt of accused/ appellant Zain Ali Shar at home and has proved its case agains t him 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 trial Court while passing the impugned judgment, which in our humble view, is based on an appreciation of evidence and same does not call for any interference. Accordingly , the instant Criminal Appeal stands dismissed being devoid of merits.
24. The facts and circumstances of the case law relied upon by learned coun sel for the appellant are quite distinguishable from the facts of the case in hand, hence the same are not helpful.
25. These are the detailed reasons for our short order dated 28-01-2020 announced by us, whereby the instant Criminal Appeal No.D-172 of 2019 was dismissed.