AMJAD ALI SAHITO, J.-- Through instant Criminal Jail appeal, the appellant has assailed the judgment dated 23.05.2018, passed by learned Sessions/ Special Judge CNS, Larkana, in Special Case No. 44/2014 (Re. The State v. Muhammad Allam Brohi) emanating from FIR bearing Crime No.13/2014, offence under section 9(c) of Control of Narcotic Substances Act, 1997, registered with P.S. ANF Sukkur, whereby he was convicted and sentenced to suffer imprisonment for life with pay fine of Rs.100,000/- (One lac) and in default whereof, to suffer Simple Imprisonment for one year more with benefit of Section 382-B, Cr.P.C.
2. The concise facts of the prosecution case are that on 24.09.2014, at about 0700 hours, a police party of P.S. ANF Sukkur, headed by Inspector/ SHO Syed Abid Raza Shah while on patrolling, reached at Naudero Bypass Chowk Larkana and then in pursuance of advance information through spy, apprehended appellant/accused Muhammad Allam Brohi from road adjacent to Pardesi Petrol Pump, Larkana and recovered 45 K.Gs of Charas in shape of slabs from a sack carried by him, out of which 10/10 grams from each slabs were segregated as samples for chemical analysis while the remaining was also sealed separately. Besides this, a cash of Rs.1500/- and copy of CNIC in the name of one Ghulam Hyder son of Izat Khan Brohi was also secured from him. The present appellant/accused was arrested under memo of arrest and recovery which was prepared in presence of mashirs HC Abdul Rasheed and PC Zaheer Ahmed and on return to Police Station, the instant case for offence punishable under section 9(c) of CNS Act, 1997, was registered against him on behalf of the State.
3. After completion of usual investigation, the case was challaned before the competent Court of law and thereafter the case papers were supplied to the appellant/accused under receipt at Ex.01.
4. The charge against present appellant was framed as Exh.2, to which he pleaded not guilty and claimed trial.
5. In order to establish the accusation against the present appellant, the prosecution examined P.W-01 Mashir of arrest and recovery namely HC Abdul Rasheed at Exh.05, he produced memo of arrest and recovery at Exh.5/A. P.W-02 Complainant Inspector/SHO Syed Abid Raza at Exh.6, he produced departure/ arrival roznamcha entries, FIR of the present case and report of Chemical Examiner at Exh.6/A to D respectively. Thereafter, learned Special Prosecutor closed the side of the prosecution vide statement kept on record at Ex.07.
6. The present appellant in his statement recorded in terms of Section 342, Cr.P.C., denied the allegations levelled against him by pleading his innocence by stating therein that he has falsely been involved in this case. He submitted copy of memo of C.P. No. D-589/2014 and notice given to his relative Muhammad Saffar by the Assistant Commissioner and Assistant Director Anti- Encroachment, Larkana. He, however, did not examine himself on oath but examined one Punhal Khan Brohi in his defence, who pleaded his(appellant) innocence/false implication in this case at the behest of one Mujeeb Sangi who demanded rupees Fifty Lacs from him in respect of plot where he resided which he failed to do so.
7. The learned trial Court after hearing the counsel for the parties and on evaluation of the evidence, convicted and sentenced the present appellant/accused vide Judgment dated 23.05.2018, which is impugned by him before this Court by way of preferring the instant Criminal Appeal through Jail.
8. Per learned counsel, the appellant being innocent has been falsely arraigned in this case; that the alleged Charas has not been secured from the physical possession of the appellant but has been foisted against him; that the requirement of ingredients of Section 21 of C.N.S Act has not been complied with in letter and spirit; that the Chemical Examiner's report is not with protocol of the test, hence it has lost its sanctity in the eye of law; that there are material contradictions in the evidence of prosecution witnesses; that safe custody/transmission of Charas to the Chemical Examiner has also not been established; that the evidence of such interested witnesses requires independent corroboration which is also lacking in present case; that the complainant and his witnesses are ANF officials and no independent person has been cited to witness the recovery proceedings, which has clearly disregarded the mandatory provision of Section 103, Cr.PC; that the investigation of the present case has been conducted by the complainant himself which also impaired the transparency of the case. He lastly contended that the prosecution has failed to prove its case against the appellant and thus he is entitled to his acquittal. In support of his contentions, he relied upon the case laws reported as 2011 YLR 2261, 2021 SCM R 363 and an unreported judgment of the Supreme Court of Pakistan passed in Criminal Appeal No. 230 of 2022.
9. On the other hand, learned Special Prosecutor for A.N.F Sukkur while supporting the impugned judgment has submitted that the prosecution has successfully proved its case against the present appellant who was found transporting huge quantity of Charas carried by him in a sack; that the ANF officials had no enmity to foist such a huge quantity of narcotics substance against him of its own, as such, he prayed for dismissal of the instant criminal jail appeal.
10. We have given due consideration to the contentions of learned counsel for the parties and have minutely gone through the material made available on record.
11. The deeper assessm ent of the material brought on record is entailing that on 24.09.2014, complainant Inspector/ SHO Syed Abid Raza Shah along with other ANF officials left P.S ANF vide departure entry No.09 at 0545 hours (Ex.6/A) left police station towards Larkana side. When they reached at Naudero bypass road Larkana, the spy informer met him and informed them that a person is available adjacent to Pardesi Petrol Pump Larkana with intention to supply Narcotic Substance to his customer. On receipt of such information, they together with informer reached at the pointed place where the spy pointed his finger toward a person sitting over a white color sack who seeing them tried to escape away from the spot but was apprehended. The complainant asked the peoples available at the place of the incident to join the arrest and recovery proceedings but they refused to act as mashir due to fear of their lives at the hands of drug sellers.
Finally, in the presence of mashir HC Abdul Rasheed and PC Zaheer Ahmed, the arrest and recovery proceeding started. On query, the said person revealed his identity to be present appellant/accused and on search, the sack carried by him was found containing Charas in foil pack packets in shape of slabs which on weighing came out to be 45 K.Gs, out of which 10/10 grams from each slabs were segregated as samples while the remaining was also - sealed separately. Thereafter, the present appellant was arrested under memo of arrest and recovery which was prepared in presence of mashirs HC Abdul Rasheed and PC Zaheer Ahmed. In cross- examination, complainant/Inspector Syed Abid Raza Shah admitted that the place of occurrence is located in Larkana town where he made efforts to engage private persons in arrest and recovery proceedings but due to tear of drug sellers they refused to do so. However, he denied the suggestion that "It is incorrect to suggest that charas was not physically recovered from the possession of an accused, voluntarily says that accused was sitting over a Bachka containing charas which on weighing had become 45 K. Gs, during the course of investigation accused had disclosed that charas was received by him from one Muhammad Sallah Pathan. He has also denied the suggestion that the charas was recovered from someone else who was released after receiving a bribe from him and Charas in question was foisted upon the present accused.
The complainant produced arrival and departure entries as Exhs.6/A and 6/B, which show the movement of the ANF officials. He has also produced all certain relevant documents Exhs. 6/C to 6/D pertaining to the case, as such, the appellant having prior knowledge has been found responsible for selling huge quantity of Charas to the customer in a sack carried by him.
12. As regards the contention of learned counsel for the appellant that the prosecution has failed to prove safe custody and safe transmission of Charas to the office of Chemical Examiner. It may be mentioned that in the cross-examination of PWs, no such question has been put by the defence that there was tampering with the case property at Police Station ANF Sukkur or during its transmission to the Chemical Laboratory. It is a matter of record that Charas was recovered from the present appellant on 24.09.2014 and it was dispatched through mashir of recovery namely HC Abdul Rasheed, to the Chemical Laboratory on 25.09.2014. He produced the report of Chemical Examiner as (Exh.6/D). The Inspector/SHO Syed Abid Raza Shah handed over the said parcel to mashir HC Abdul Rasheed who deposited the same in the office of the Chemical Examiner and the report confirms that the parcel was received on 25.09.2014 from the said mashir, therefore, it can safely be said that the safe chain of custody of the recovered narcotics was not compromised at all. Reliance is placed on the case of Faisal Shahzad v. The State [2022 SCMR 905] and Ajab Khan v. The State [2022 SCMR 317].
13. The requirement of Rule 4 of Control of Narcotic Substance (Government Analysis) Rules, 2001 is that the reasonable quantity of samples from the entire narcotic drug, psychotropic substance or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the office in-charge of nearest Narcotic Testing Laboratory for the test either by insured post or through a special messenger. No question was put by the defence counsel that there was tempering with the case property and it is also confirmed by the Chemical Examiner that the white cloth parcel contains forty-five (45) khaki paper envelopes described as envelopes Nos. 1 to 45, each containing two black-brown coloured pieces received in his office on 25.09.2014 in a sealed condition by the hand of HC Abdul Rasheed. Further, Rule 5 of Control of Narcotic Substance (Government Analysis) Rules, 2001 provides a condition that it should be received in the sealed condition in the Laboratory. The incharge officer shall observe full protocol by carefully opening and giving a distinct laboratory number. For that, a separate register shall be maintained. All samples shall be passed to the analyst on the same day and kept in safe custody and examine and record, 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 tests the relevant sample. Rule 6 of C.N.S (Government Analysts) Rules, 2001 further provides that on analysis the result thereof together with full protocols the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-11. Now the question here is 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 R.4 is only that the parcel/envelope should be received in the office of Chemical Examiner in a sealed condition. We have perused the Chemical Examiner's report available as Exh.6/D, and in our humble view it is 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 office of Chemical Examiner, which reads as under;- Report on: One sealed white cloth parcel. Sent by SHO/Inspector/IO PS ANF Sukkur. Received on 25.09.2014 as per Letter FIR No.13/2014 Dated 25.09.2014 by the hand of HC Abdul Rasheed.
Mode in which the parcel was found to be packed of receipt description of seals.
One sealed white cloth parcel bearing 01 seal. Seal perfect and as per copy sent.
1. Total weight of the above white cloth parcel along with contents............... 968.00. Grams Net weight of Pieces of each envelope Nos.1 to 45......... 20.00. Grams
2. Physical Exam:-Smell like that of Charas
3. Resine test.............Positive.
4. Micro Scopic Exam:- Horn type spines visible.
RESULT OF EXAMINATION.
The Khaki paper envelope Nos.1 ' to 45 of the above white cloth parcel contains Charas.
14. The procedural detail is mentioned in the Chemical Examiner's report Exh.6/D about the tests applied do not fall short of "protocol". In an 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 Substance (Govt. 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(s) 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".
15. The reliance is also placed on an un-reported case of Hon'ble Supreme Court of Pakistan, vide 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.
16. Turning to the arguments of learned counsel for the appellant about violation of Section 103, Cr.P.C., it would be appropriate to refer Section 25 of the Control of Narcotics Substance 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 sections 20, 21, 22 and 23 to all warrants issued and arrest searches made under these sections."
17. It means that the applicability of Section 103, Cr.P.C. in the narcotics cases has been excluded and the non-inclusion of any private witness is not a serious defect to vitiate the conviction. The complainant in his examination-in-chief has admitted that "he asked people available at spot to join the arrest and recovery proceedings but they had refused to do so due to fear of their lives at the hands of drug sellers. Normally people are avoiding to give evidence against drug peddlers due to fear of their lives.
18. So far the evidence of ANF officials is concerned, they are competent and their evidence cannot be brushed aside merely on the pretext that they are ANF officials. They have furnished straight- forward and confidence-inspiring evidence and nothing has come on 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 or foist such a huge quantity (45 K.Gs) of narcotics substance against present appellant at their own resources. It is a well-settled principle of law that the statement of official witness cannot be discarded merely for the reason that they are ANF/police officials. 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"
19. The contention raised by the learned counsel for the appellant is to the effect that the personal search must be conducted in presence of gazetted officer or magistrate and a full report thereof would be communicated within 48 hours immediately to the superior officer. To this, the proper mechanism has been provided in Control of Narcotic Substances Act, 1997, whereas Section 21 provides "Power of entry, search, seizure and arrest without warrant". While Section 22 provides "Power to seizure and arrest in public place. At this juncture, it is appropriate to reproduce the relevant section. Section 21 of Control of Narcotic Substances Act is reproduced hereunder; "(1). Where an officer, not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic, drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may...
(a) enter into any such building, place, premises or conveyance.
(b) ....
(c) ....
(d) ....
(2) ....
20. The preamble of Control of Narcotic Substances Act, 1997 as a special law is enacted mainly to curb the menace of narcotics in the country. The requirement to obtain a search warrant can be dispensed with in a case where a quick action is required to be taken and it would be difficult to obtain a search warrant where due to paucity of time apprehension of narcotics removed or culprits having the chance to escape from the place of incident. Only the law requires that an officer not below the rank of sub-Inspector enters into a building, place premises or conveyance. In the instant case, Inspector/SHO Syed Abid Raza Shah while patrolling on receipt of spy information arrived at the pointed place and recovered 45 K.Gs of Charas from the sack carried by the present appellant. The reliance in this context is placed upon case of Zafar v. The State which is reported in (2008 SCMR 1254), wherein the Hon'ble Supreme Court of Pakistan has held that;-- "Even the provision of sections 20 to 22 of C.N.S.A being directory, noncompliance thereof would not be a ground for holding the trial/conviction bad in the eyes of law. On this ground, the conviction of the appellant cannot be set aside. Reference in this behalf can be made to the cases of Fida Jan v. The State 2001 SCMR 36; State through A.G Sindh v. Hemjoo 2003 SCMR 881, Karl John Joseph v. The State PLD 2004 SC 394, and Muhammad Younas v. Mst. Perveen alias Mano and others 2007 SCMR 393, wherein it is observed that where provisions of C.N.S.A are directory in nature, non-compliance of the same is not fatal. Even otherwise no evidence has been produced to establish that the place of recovery and arrest was not within the jurisdiction of the police station concerned."
11. The vice-versa Section 26 of Control of Narcotic Substances Act, 1997, also provides protection to the innocent citizen, whenever any person empowered under section 20 or 21 of CNS, Act without any reasonable grounds of suspicion, enters or searches, or causes to be entered or searched building any building, place, premises or conveyance shall be punished. It is appropriate to reproduce the relevant section which reads as under "26. Punishment for vexation entry, search, seizure or arrest.--- Any person empowered under section 20 or 21 who
(a) without reasonable grounds of suspicion, enters or searches, or causes to be entered or searched any building, place, premises or conveyance, or
(b) vexatiously and unnecessarily detains, search or arrest any person shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine which may extend to twenty-five thousand rupees.
In the present case, no case of vexatious was proved as the present appellant was arrested with the recovery of a sack carried by him containing 45 K.Gs of Charas.
21. Reverting to the next contention of learned defense counsel that the complainant himself has acted as Investigating Officer in this case and all the witnesses are ANF officials, is of no helpful to him, as there is no bar in the law for a complainant not to act as 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".
22. In the instant case, no proof of enmity or with the complainant or the other witnesses has been brought on the record, thus, in the absence thereof, the competence of prosecution witnesses being ANF officials was rightly believed by learned trial Court. 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".
23. 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).
24. It is now a settled proposition of law that by the flex of time in the case of transportation 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."
25. Though, the complainant and mashir are ANF officials and they have no enmity or rancor against the appellant to plant such a huge quantity of narcotics substance against him. The defense has not produced any substance 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 in the case of Salah-ud-Din v. The Stare 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..."
26. On analysis of the evidence of the prosecution witnesses, we find it confidence-inspiring and trustworthy; the present appellant was waiting to sell the huge quantity (45 K.Gs) of Charas to his customer and he was arrested on 24.09.2014 at about 0700 hours from adjacent to Pardesi Petrol Pump. The version of complainant/Inspector Syed Abid Raza Shah has been fully corroborated by mashir of arrest and recovery, which is substantiated with the memo of arrest and recovery (Exh.5/A), and FIR (Exh.6/C). The complainant/ investigating officer received a chemical report in positive and produced the same (Exh.6/D). During the course of their cross-examination, the learned defence counsel could not achieve any fruitful results from their mouths. Likewise, the complainant/Investigating Officer, and Mashirs were put on a lengthy cross wherein also the learned counsel for the defence asked multiple questions to shatter the consistency of their evidence but he could not extract anything from any of them and they stood at the same stance on all material aspects of the case.
27. Thus, in the above prevailing circumstances, the prosecution has successfully discharged its duty thereby shifting the burden upon the appellant 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 at least justify the possibility of false implication or foistation of such huge quantity of Charas but the defense has failed to do so. There is no denial to the fact that the appellant was carrying a sack containing huge quantity of Charas. No convincing material has been produced by him denying the fact that how it is possible that he was not having any knowledge about the Charas available in a sack carried by him. It is hardly believable that the appellant had no idea or knowledge about the contents and articles being transported by him lying in a sack. The close analysis of the whole prosecution evidence i.e. the recovery of a huge quantity of narcotics, the happening of occurrence in broad day-light, separating the samples from each slabs in a prescribed manner and sending them to the Chemical Examiner, report of the Chemical Examiner and the evidence of the prosecution witnesses when evaluated conjointly leaves no room to conclude that the appellant is a real perpetrator.
28. No illegality or irregularity and mis-appreciation of evidence were found, so-far as his case is concerned. The case of the prosecution is based upon the proper appraisal of the evidence, supported with reasons placed on record. No incriminating evidence was produced to show misreading and omission from consideration of the evidence. It is seen that the present appellant was carrying a sack containing Charas and only the justification behind the same was to transport/ supply it to someone else. The income of narcotics is largely utilized in anti- state/terrorist activities which this country is facing for decades and such type of misdeeds obviously have affected the society at large. When the prosecution can prove its case on its salient features then unnecessary technicalities should not be allowed to hamper the very purpose of the law on the subject. Reliance is placed in the case of Faisal Shahzad v. The State (2022 SCMR 905).
29. Based upon the above discussion and while relying upon the case laws of the Hon'ble Apex Court, we are of the unanimous view that the prosecution has successfully established to bring home the guilt against present appellant Muhammad Allam Brohi beyond the shadow of any reasonable doubt. Consequently, the instant Criminal Jail Appeal merits no consideration which is dismissed accordingly and the impugned judgment passed by learned trial Court is hereby maintained.