FAHIM AHMED SIDDIQUI, J. Appellant Muhammad Ayub impugned judgment dated 04.10.2019 passed by Additional Sessions Judge-III (MCTC-II) Sukkur in special case No. 42 of 2013 initiated upon FIR No. 12 of 2013 of Police Station A.N.F. Sukkur lodged under section 9(c), Control of Narcotic Substances Act, 1997 (hereinafter referred to 'CNS Act'). Through the impugned judgment appellant was convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs. 100,000/-, in case of non-payment of fine, he was ordered to suffer S.I for one year more. However, the appellant was extended the benefit of section 382-B, Cr.P.C.
2. Brief facts leading to the filing of appeal are that on 13.04.2013 at about 10.00 a.m., based on a spy information, the raiding party of Anti-Narcotic Force Sukkur recovered 10 nylon bags from the crown of a truck containing 400 packets of charas. Anti-Narcotic Force also recovered 164 packets of charas from a secret cavity of the diesel tank of Truck bearing No. TKZ-941. It is further stated in FIR that said recovery was affected from the truck near Government College of Physical Education Shikarpur Road Sukkur, total recovered charas was weighed and found to be 564 kilograms. From recovered narcotics, a representative sample for chemical analysis was separated and sealed. The remaining property was also sealed separately. The truck was being driven by accused Muhammad Ayoob son of Saifullah Barrich and the narcotic was recovered in presence of marginal witnesses HC Shamrez Khan and PC Muhammad Hanif on the indication of the accused from the crown and secret cavity of the truck. On further inquiry about narcotic, the accused disclosed that recovered narcotics belongs to one Muhammad Jan. The recoveries and the accused brought at ANF Police Station, where present case under section 9(c), CNS Act, 1997 was registered against the accused.
3. After completing requisite formalities, a charge was framed but the appellant/convict denied the same and claimed trial. The trial was initiated and the prosecution was directed to produce the evidence against the appellant/convict. The trial commenced after completing the requisite formalities.
4. In order to establish the charge, the prosecution examined three witnesses including complainant/Investigation Officer Inspector Tahir Ahmed at Exh.9, marginal witness HC Shamraiz Khan at Exh.10, and S.I Syed Salman who is dispatcher and custodian of narcotic at Exh.
12. After the closure of the prosecution side, the statement of the appellant/convict was recorded under section 342, Cr.P.C. in which he denied the allegations of the prosecution and pleaded his innocence.
However, he avoided examining himself on oath but requested to produce DWs Wazir Ahmed Brohi and Zahid Khan Brohi in his defense. After examining the defense witnesses, side of the defense was also closed and after hearing final submissions of either side, the impugned Judgment was passed.
5. Learned counsel for the appellant has preferred his submissions at length. According to him, the raiding agency avoided associating any independent witness of alleged recovery. He submits that the prosecution case is doubtful as the weight of the sample sent for Chemical Analyzer is not in conformity of the sample received and there is a difference of 785 grams in them. The proper protocol for chemical examination was not followed. According to him, it is mandatory that there should be two analyzers, who should put their signatures to authenticate the chemical report but in the present case, there is only one signature. According to him, the samples were sent after two days of recovery which creates doubt regarding the safe custody of narcotics during the transitory period. He submits that father of the appellant/convict has placed an entry in the Police station concerned regarding the missing/abduction of his son but the same was not considered by the trial Court. In support of his contention, he relied upon the cases of Suhail alias Sohaib Shar v. The State (2019 YLR Note 30), Munir Hussain alias Munawar alias Muno v. The State (2019 YLR 51), Abdul Waqar v. The State (2018 YLR 2358), Sohaib Ali v. The State (2018 MLD 1835), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039) and Khair-ul- Bashar v. The State (2019 SCMR 930).
6. Learned Special Prosecutor A.N.F has strongly opposed the instant appeal by submitting that the prosecution has discharged the burden, of proving case against the appellant, who has rightly been convicted. Regarding the delay in sending the sample, his contention is that the recovery of charas was affected on 13.04.2013 and the next two days were Saturday and Sunday on which the government chemical laboratory remained closed as such the sample was sent on the forthcoming working day, hence there is no delay in sending the sample to Chemical Analyzer. He submits that complainant and P.Ws are in line in their depositions without any major contradiction, as such a case against the appellant is established. So far as entry placed by the father of the appellant is concerned, the Special Prosecutor ANF submits that in fact no entry was placed and the same was actually managed to save the skin of the appellant from punishment. He submits that the appellant could not bring any animosity or ill-will of the complainant party for involving him in a huge quantity of the recovered narcotic which otherwise cannot be foisted upon the appellant.
7. We have heard the submissions of the learned counsel for the appellant as well as learned Special Prosecutor of A.N.F. We have also scanned the relevant record with the able assistance provided during the course of arguments.
8. In the instant case, the prosecution foremost object is regarding non-associating the private witnesses despite prior information. No doubt, the raiding agency has acted upon a spy information but the complainant in his deposition has disclosed that the information was passed on by his high-ups requiring a prompt action for successful arrest and recovery, For the sake of an immediate response, it is quite comprehensible that a private and independent witness could not be arranged by the raiding party. Besides, in view of section 25 of the CNS Act, the stress by the defence for associating private witness is misconceived. The case laws cited by the learned counsel regarding application of section 103 are emphasizing about the same as a rule of prudence but it does not over-ride the statutory provision section 25 of the CNS Act: We are of the view that mere objection that the witnesses of arrest and recovery belongs to raiding party is not sustainable and this view is now well settled. In this context, reliance may be taken from a case reported, as Zaffar v. The State (2008 SCMR 1254), wherein the Hon'ble apex Court has held as:- "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."
It is also settled that unless there is something on the record to preclude them, the persons belonging to raiding agency may become witness or even investigator. In the case Zafar (supra), the author judge further speaks as; "Police officer is not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an investigating officer, so long as it does not in any way prejudice the accused person."
9. The learned counsel for the appellant has also highlighted about the difference in the quantity of sample sent by the investigator and received at the chemical laboratory. According to him, there is a shortage of 785 grams in the sample sent and received. In his perspicacity, it creates serious doubt regarding the entire scenario. Similarly, the learned counsel for the appellant has tried to make it a great point that the chemical lab report was not signed by two analyzers. We have minutely scrutinized the chemical analysis report and found that the contention of the learned counsel is not correct. Mr. Zaheeruddin Mujahid, counsel for the appellant, submits that the sample quantity was claimed to be 40 kg while the quantity received by the laboratory is mentioned as 40 kgs. and 785 grams. Mr. Zaheeruddin Mujahid considers that the sample is exceeded by 785 grams but in fact it is not the case because the same is gross weight with packaging. The appellant's counsel also stresses upon the non-compliance of requisite protocol by the chemical laboratory. In the respective column of the report, it is clearly mentioned that the said weight mass noted at the laboratory with the gunny beg in which the property was kept. Similarly, it is also a misconception that the report was not signed by the two authorized persons of the laboratory. Although, it is hyper-technicality but the factuality is that the signature of the Concerned official is available at the bottom of the report with the chemical examiner of the Chemico-Laboratory, Sukkur at Rohri.
So far as non-following of the protocol is concerned, the learned counsel could not point out the particular oversight regarding the protocol. After going through the entire report, we are of the considered view that the report of government chemical examiner is prepared according to the prescribed Form-II chalked out as per mandate of section 36 of the CNS Act and Rules 5 and 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001. All the required parameters mentioned in the Form-II prescribed under the above referred provisions are fully incorporated in the report of Chemical Examiner.
10. The learned counsel for the appellant has also shown his anxiety regarding the safe custody of the narcotics from the point of recovery to the recipient's of the same in the office of Chemical Examiner. Although, the learned counsel did not indicate the material on record, which has urged him to ponder over the safety of the case property during transition to the laboratory but we have cogitated about this aspect of the case also. It is reflected from the record that just after completing the process of arrest and recovery, the raiding party directly approached to the nearest ANF Police Station, where sufficient facilities for the safe custody of recovered narcotics are available. After lodgment of FIR, the accused was locked up and the recovered narcotics were put in the possession of the incharge for keeping safely in the store-room. In such a situation, the requirements of section 27 of the CNS Act was fulfilled. Hence, the chain of safe custody from the point of recovery to the facility of ANF is established, which continues during transmission from the ANF Store-room to the Chemico-Laboratory Sukkur at Rohri where it was received by the officials of the laboratory. It is evident from the report of Chemical Analyzer that the property was received in sealed condition from the same official of ANF by whom it was transmitted. It means that the recovered narcotics remained out of harm's way from the point of recovery to the laboratory. In such a position, we are of the considered view that the chain of safe custody remained intact, as such there appears no room for suspicion regarding the report of chemical examiner, which is positive.
11. We have also examined the entire record and minutely scanned the deposition recorded before the trial Court. In our view, the impugned judgment is based upon proper contemplation and deliberation of the evidence recorded during trial. After going through the entire material, we could not find any mis-reading, non-reading and mis-appreciation of the evidence recorded or produced before the trial Court.
12. Consequent to the above discussion, we are fully convinced that the prosecution has established their case, hence the conviction and sentence are properly awarded under the impugned judgment. In these circumstances, we do not find any reason to interfere in the impugned judgment dated 04.10.2019 hence the conviction and sentence awarded by the trial Court is maintained and the instant appeal is dismissed.