' NASIRUL MULK, J.--- Munawar Hussain, son of Abdullah, resident of Gujrat, Province of Punjab and Farid Gul, son of Jasim Gul, resident of Hangu, N.-W.F.P. Were convicted by the Special Court/Assistant Sessions Judge, Peshawar on 8-5-2000 under section 9 of the Control of Narcotic Substances Act, 1997 (C.N.S.A.) for trafficking of 45 kilograms of Charas. Each of the accused was sentenced to imprisonment for life and to pay a fine of Rs,5,00,000 in default of payment whereof to suffer 2 years' rigorous imprisonment. The convicts were granted the benefit of section 382-B, Cr.P.C. Their co-accused Mumtaz Shah was, however, acquitted by the same judgment.
2. Farid Gul has filed Criminal Appeal No,190 of 2000 whereas Munawar Hussain has instituted Criminal Appeal No,194 of 2000 against their convictions and sentences. Munawar Hussain has also filed Writ Petition No,1342 of 2000 in which he has challenged the legality of the retrospective effect given to 3 notifications issued by the Provincial Government on 9-6-2001 regarding the declaration of the Forensic Science Laboratory of the Police Department as the Provincial Narcotics Testing Laboratory and appointment of Chemical Examiner, Analyst and Serologist. The 3 matters are disposed of together by this common judgment.
3. The prosecution case as given in the F.I.R. Is that Muhammad Sharif Khan, S.-I. Police Station C.I.D., Peshawar received information that one Waris Khan, a narcotic dealer in Bara, has arranged for the transportation of Charas to Punjab by Farid Gul and Munawar Hussain, to be delivered to Mumtaz Shah, resident of Hassan Abdal in Motor Car No,6133-LHM 1974 Model, maroon colour. After receipt of this information a party, headed by D.S.P. Gul Afzal Khan and comprised of the Sub-Inspector Muhammad Sharif Khan, Mumtaz Khan, S.-I. Faqir Taj, H.C. Bakht Zada, H.C. And Constables Amjad Ali and Fakhar Alam, waited for the car across the C.I.D. Police Station on the University Road. The said motor car arrived at that point at 5-45 a.m. On 8-8-1998. It was signalled to stop. The driver of the motor car disclosed his name as Munawar Hussain son of Abdullah, resident of Gujrat and the other person sitting in the passenger seat gave his name as Farid Gul son of Jasim Gul, resident of Hangu. On search of the motor car 45 packets of Charas, in all weighing 45 Kgs. Were recovered from the secret cavities in-between the boot and the rear seat of the car. The accused disclosed that the Charas was given to them by one Waras Khan for delivery to Mumtaz Shah at Hassan Abdal and that they were paid Rs,15,000 for the trip. Farid Gul also gave a chit to the police in which the address of Mumtaz Shah was written. The Charas and the motor car were taken into possession through a recovery memo. By S.-I. Muhammad Sharif Khan and the accused were taken into custody. The S.-I. Drafted the Murasila Exh.P.A./1 and sent the same to the S.H.O., Police Station, .C.I.D. For registration of the case. The case was registered vide F.I.R. No,7 at 6-45 a.m. Under sections 6/7/8/9, C.N.S.A. (Exh.P.A.).
4. After registration of the case the investigation was handed over to Said Muhammad, C.I.D., who prepared the site plan at the instance of Muhammad Sharif Khan, S.-I. And recorded the statements of the witnesses. He sent samples of the narcotics to the Forensic Science Laboratory through Application No,Exh.P.W.5/1, the result of which is Exh.P.Z. Thereafter, the investigation was handed over to Hikmat Khan, S.-I. He sent the motor vehicle No,6133-LHM through the application Exh.P.W.4/1 to the Forensic Science Laboratory for examination, the result of which is Exh.P.W.4/2. He had also taken into possession the chit on which the name of Mumtaz Ali Shah was written through Exh.P.W.4/3. He applied for proclamation of notice under section 87 of Cr.P.C. Against accused Mumtaz Ali Shah, who was eventually arrested. After completion of investigation he submitted challan against the accused through the S.H.O. Ijaz Khan.
5. The prosecution examined six witnesses and one search witness whereas the defence did not produce any evidence nor were the accused examined under section 340, Cr.P.C. P.W.1 Qamar Zaman, S.-I. Had registered the F.I.R. Noshad Khan, H.C. (P.W.2) was entrusted with the warrant of arrest of Mumtaz Shah accused as well as the proclamation notice under section 87, Cr.P.C. P.W.3 Faqir Taj H.C. Was the member of the police party which had stopped the motor vehicle and had seized the narcotics. He is a marginal witness to the recovery memo. Exh.P.C. Whereby the Charas was taken into possession and sealed in parcels. Hukmat Khan, S.-I. Who appeared as P.W.4, conducted partial inquiry after S.-I. Said Muhammad fell ill. He received Chemical Examiner's Report Exh.P.Z. And had applied for the warrants under section 204, Cr.P.C. Muhammad Ijaz, who was also referred to as P.W.4, was S.H.O. Police Station, C.I.D. At the relevant time. He submitted complete challan against the accused. P.W.5, Said Muhammad, also conducted partial inquiry, he was the one who had sent the sample to the Forensic Science Laboratory. Muhammad Sharif, S.-I. Was examined as P.W.6. He is the complainant in the case and his role has already been described above.
6. At the hearing of the appeal apart from questioning the convictions and sentences of the appellants on merits the learned counsel for the appellants addressed arguments on the admissibility of the report of the Chemical Examiner. As stated earlier Munawar Hussain has also filed writ petition regarding the same matter. The Chemical Examiner who tested the suspected sample and submitted his report Exh.P.Z. Declaring it to be Charas is Ahmad Mustafa, Deputy Superintendent of Police, who performs his functions at the Forensic Science Laboratory of the Police Department. At the time of exhibiting this report it was objected to by the learned counsel for the defence that he was not a notified Chemical Examiner under section 510, Cr.P.C. And, therefore, the report cannot be exhibited.
7. Before us the learned counsel for the defence had argued that the report of the Chemical Examiner is inadmissible on two counts. Firstly. That the police laboratory, where the test was carried out had not been notified either as a Federal Narcotics Testing Laboratory or a Provincial Narcotics Testing Laboratory within the meaning of section 34 of the C.N.S.A. Furthermore, that the Chemical Examiner who conducted the test was not at the relevant time notified as a Chemical Examiner under section 510, Cr.P.C. And his report could not be received in evidence without his testimony. Referring to the 3 notifications all dated 9-6-2001, issued under section 34(2), C.N.S.A., section 35, C.N.S.A. And under section 510, Cr.P.C. Giving them retrospective effect from 11-7-1997, the learned counsel had argued that such retrospective effect cannot be given to a notification.
That, therefore, when the drug was examined by the Chemical Examiner on 8-9-1998 neither was he notified under section 510, Cr.P.C. Nor was the police laboratory notified under section 34 or 35, C.N.S.A. For his submissions the learned counsel relied upon Muhammad Shafi v. The Crown PLD 1949 Lah. 175, Muhammad Ashraf v. The State PLD 1959 (W.P.) Pesh. 176, Rab Nawaz v. The State 1999 YLR 807, Anoud Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340 and H. Nawab Din v.
The State PLD 1996 Lah.
304. The learned Advocate-General, apart from making submissions that in certain circumstances notifications can be given retrospective effect, particularly when they are beneficial, produced before us a judgment of this Court, delivered in Gharibullah v. The State Criminal Appeal No,188 of 2000 in which the precise objection now raised on behalf of the defence has been dealt with and rejected. Interestingly, Mr. Noor Alam Khan, Advocate, who appears for Munawar Hussain and has also filed the writ petition. Was a counsel for the appellant in Gharibullah's case.
8. In Gharibullah's case the learned counsel for the appellant had also challenged the application and the retrospectivity of the 3 notifications. It will be appropriate to refer to these notifications at this stage. As already stated they are all of the same date, 9-6-2001. By the first notification issued by the Government of N.-W.F.P. Home and Tribal Affairs Department under section 34(2) of C.N.S.A.
The Forensic Science Laboratory of the Police Department at Peshawar has been declared to be the Provincial Narcotics Testing Laboratory set up by the Provincial Government with effect from 11- 7-1997. By the second notification by the same department Mr. Ahmad Mustafa, D.S.P., who had already been performing the duties of Chemical Examiner and Serologist in the F.S.L. Of the Police Department was appointed as the Provincial Government Analyst under section 35 of C.N.S.A. With effect from 11-7-1997. By the 3rd notification Ahmad Mustafa was appointed and declared as notified Chemical Examiner and Serologist to the Government of N.-W.F.P. With effect from 8-8-1978 for the purpose of section 510, Cr.P.C. These 3 notifications came under the discussion in Gharibullah's case and the objections raised here were also taken up in that case. The case-law referred to by the defence counsel was also cited by him in Gharibullah's case. The Court in that case had also summoned Ahmad Mustafa, the Chemical Examiner and sought clarification from him. Relying upon the case of Muhammad Shafi v. The Crown PLD 1949 Lah. 175 and Muhammad Ashraf v. The State PLD 1959 (W.P.) Pesh. 176 and distinguishing the case of Rab Nawaz v. The State 1999 YLR 807, the Court held that the Police Forensic Laboratory was a laboratory within the meaning of section 34- of the C.N.S.A. And that Ahmad Mustafa was a Provincial Government Analyst under section 35 of C.N.S.A. And Chemical Examiner and Serologist for the purpose of section 510, Cr.P.C. With effect from the dates on which the notifications were to take effect. The matter thus already stands resolved by this Court and we have no reason to conclude differently.
Since the above objection taken by the defence could have been raised in the appeal by Munawar Hussain the filing of a separate writ petition urging the same point was misconceived.
9. Making submissions on the prosecution evidence the learned counsel representing the appellants contended that though the F.I.R., is dated 8-8-1998 and the samples were sent to the F.S.L. On 9-8-1998 the F.S.L. Report Exh.P.Z. Refers to the date of F.I.R. As 5-8-1998. It was thus contended that the report was prepared in another case registered on 5-8-1998. Certain discrepancies were also alleged in the prosecution evidence. It was pointed out that whereas P.W.3, the recovery witness had stated that the contrabands recovered were taken into possession at the spot where the recovery memo. Was prepared whereas P.W.6 Muhammad Sharif stated that the packets were taken out of the vehicles at the police station where he also drafted the Murasila.
That P.W.3 claimed that the contraband was recovered from the back seat and the boot whereas P.W.6 stated that it was recovered from the boot. Furthermore, that according to the F.I.R. And P.W.3, Munawar Hussain was driving the car whereas P.W. Muhammad Sharif alleged that Farid Gul was the driver of the motor car. It was next argued that out of the 45 packets allegedly recovered from the vehicle sample of only one packet was taken and sent to the F.S.L.
10. In response to the above submissions the learned Advocate-General contended that both the accused had not denied in the statements recorded under section 342, Cr.P.C. Their presence in the motor vehicle when it was stopped for checking by the police. That the recovery of the contrabands from the vehicle was recovered in the presence of marginal witnesses and that the contradictions were minor and of insignificant consequences.
11. As for the date of the F.I.R. Of 5-8-1998 in the F.S.L. Report (Exh.P.Z.) is concerned the contention is factually correct. However, it has no significance as there is no doubt that the report relates to the contrabands recovered in the present case. In the F.S.L. Report the number of F.I.R. Is mentioned as 7,. Which is the number of the F.I.R. In the case. It is not the case of the defence that on 5-8-1998 another F.I.R. Bearing No,7 registered at Police Station C.I.D. Peshawar was registered. In that case an argument that the report related to another F.I.R. May have been valid. The mention. Of 5-8-1998 instead of 8-8-1998 in the F.S.L. Report as the date of the F.I.R. Is nothing more than a typographical mistake. The contention raised on this point is without force.
12. It is true that P.W.3 Faqir Taj, the recovery witness had stated in cross-examination that the parcels were prepared on the spot and so also was the Charas weighed. This statement was preceded by answer to another question in which the witness had stated that after detecting the Charas in question we took the motor car to the police station. This statement must be read in the light of the F.I.R. In which the complainant Muhammad Sharif Khan, S.-I. Stated that the Nakabandi was made on the University Road, Peshawar opposite Police Station C.I.D. The spot where the car was stopped and the police station were, therefore, across each other. Since the statement that the parcels were prepared on the spot followed the statement that the motor car was taken to the police station, it would appear that the witness considered the entire area as the spot. There is, therefore, no contradiction in his statement and that of P.W.6 who stated that the vehicle was brought to the police station where the recovery memo. Was prepared and the Murasila drafted. It may also be noted that the witness had clarified that the reason in writing Murasila at the police station instead of directly registering the case was on account of the judgments of the High Court that the complainant must not also be the Investigating Officer.
13. As regards the precise place from which the contraband was recovered, it has been stated in the F.I.R. That the narcotics were placed in the secret cavities between the boot and the rear seat.
P.W.3 also stated that the recovery was made from the back seat and diggi. P.W.6, the complainant stated that the Charas was lying in the diggi of the car. Since the Charas was detected after the boot of the car was opened there is no real contradiction in the prosecution case regarding the exact place from which it was recovered, whether the boot or place between the boot and the rear seat.
14. The next question raised on behalf of the defence was the contradictions regarding the driver of the car. In the F.I.R. It is stated that Munawar Hussain was driving the car. The statement of P.W.3 is also to the same effect. P.W.6 did not in examination-in-chief state as to who was driving the vehicle. In the cross-examination he made the following statement:-- "I had not written in Murasila Exh.P.A./1 that I named Farid driver to open the diggi. It is incorrect to suggest that Farid was not driving the car but in fact the co-accused Munawar Hussain was driving the car and I was not present on the spot' and moreover I was informed by somebody, therefore, I am saying that Farid was driver who opened the diggi.
' The witness then went on to say, 'it is correctly written in the Murasila Exh.P.A./l that Munawar Hussain was sitting on the driver's seat when the car was stopped'."
' The first statement appears to have been made in response to a question formulated in double negative and the answer is thus confusing. It is not clear that the suggestion of incorrectness is confined to Farid not driving the car or also to Munawar Hussain driving the car. In any case the next statement reproduced above has provided clarification in which the witness declared that his mentioning in the Murasila of Munawar Hussain being the driver was correct. The prosecution case is, therefore, consistent that Munawar Hussain accused was driving the vehicle. It may also be stated at this point that in their statements under section 342. Cr.P.C. Neither of the two accused had denied being in the motor vehicle at the time it was stopped and taken into custody. Farid Gul expressly admitted being a passenger in the car but stated that he had taken a lift from the driver and that the vehicle was stopped by the C.I.D. Police near Gora Qabirstan and he was apprehended by the police. Munawar Hussain neither admitted nor denied his presence at the spot. In response to the question as to what was his statement and why was he charged, he simply stated that he was neither the driver of the vehicle, nor the owner, and that the recovery was not made from the motor car in his presence. He did not explicitly deny that he was in the motor car and arrested from the spot.
15. The two accused were arrested from the spot while travelling in the motor car from which the narcotics wee recovered. The recovery was witnessed by P.W.3. Though he is a police official but in view of section 25 of C.N.S.A. Excluding the provisions of section 103, Cr.P.C. From search under the Act, the police official becomes a competent witness to the search and the recovery. The sample sent to the laboratory was found to be of Charas after chemical examination. The prosecution has, therefore, proved its case against the appellant beyond reasonable doubt.
16. Out of 45 packets, each containing 1 Kg. Of Charas admittedly sample of 4 grams was taken from only one packet. The preponderance of the case-law produced before us is to the effect that where the sample from only one of the many packets recovered is sent to the laboratory and the result is positive the accused can be found guilty only as regards that packet. The culpability of the appellants can, therefore, only be regarding one packet, from which the samples were taken. Since each packet; according to the prosecution case weighed 1 Kg. This would bring the case against the appellants under section 9(b), C.N.S.A. Which provides for 7 years' imprisonment and fine if the narcotics drug does not exceed 1 Kg.
For reasons aforestated, Writ Petition No,1342 of 2001 is dismissed and Criminal Appeals Nos.190 of 2000 and 194 of 2000 are partially allowed. The convictions and sentences of the appellants recorded under section 9(c), C.N.S.A. Are altered to that under section 9(b), C.N.S.A. Resultantly the sentence of imprisonment for life and fine of Rs,5,00,000 awarded to the appellants by the trial Court is reduced to 6 years' imprisonment and Rs,2,00,000 each. They would be entitled to the benefit of section 382-B, Cr.P.C. As already held by the trial Court.