' FAZAL-UR-REHMAN, J.---This criminal appeal has been preferred under section 48 of the Control of Narcotic Substances Act, 1997 (hereinafter called as Act) against the judgment of the learned Additional Sessions Judge-IV/Special Judge Quetta, whereby he convicted the appellant under setion 9(c) of the said Act and sentenced to suffer life imprisonment and to pay fine of Rs,100,000 (Rupees one lac only) and in default of payment of fine t further undergo S.I. For a period of two years. Benefit of section 382-B, Cr.P.C. Has also been extended in favour of the appellant.
2. Briefly stated the facts of the case are that on 22-4-2000 complainant Abdul Aziz on receipt of some spy information proceeded to Sabzal/Spiny Road Cross alongwith with other police officials and laid a Naka Bandi. It is stated that at about 9-30 p.m. The appellant alongwith one All son of Haji Ghafoor who were carrying sacks on their shoulders came at the place where Naka Bandi was made. It is stated that the gunny bag which the appellant was carrying, checked in presence of witnesses and as a result of such checking Charas (2178 Rods) wrapped in plastic was recovered.
The weighment was carried out and the same was found to be 30 kgs. Specimens were separated from each rod for the purpose of chemical analyses and parcels were prepared. The seized Charas was taken into possession. The Seizing Officer then wrote a Murasila, which was incorporated in the F.I.R. Being Crime No,110 of 2000 under section 9(c) of the said Act, against the appellant. The investigation of the case was entrusted to Sardar Khan, A.S.I. After usual investigation the appellant was sent up to face his trial.
3. On 17-5-2000 charge under section 9(c) of the Control of Narcotic Substances Act, 1997 was framed by the trial Court against the appellant to which he pleaded not guilty and claimed trial.
4. In support of its case the prosecution examined P.W.1 Abdul Aziz S.-I. Seizing Officer, P.W.2 Azhar Hussain recovery witness and P.W.3 Sardar Khan, A.S.I./Investigating Officer.
5. In his statement recorded under section 342, Cr.P.C. The appellant has disputed the case of the prosecution and pleaded his innocence. When asked as to why the prosecution witnesses had deposed against him to which the appellant stated that they deposed falsely. He has also made his statement on oath as per provisions contained under section 340(2), Cr.P.C. And produced 2 witnesses in his defence.
6. The (earned trial Court formulated the following points for consideration:--
(1) Whether the recovered substance was Narcotic?
(2) Whether 2178 rods of Charas weighing 30 Kgs. Were recovered from possession of the accused?
(3) What offence is made out?
7. The learned trial Court after assessment of the evidence came to the conclusion that the prosecution has established its case under section 9(c) of the Control of Narcotic Substances Act, 1997 and accordingly convicted and sentenced the appellant in the manner herein abovementioned. Being aggrieved the appellant has preferred this appeal which has been filed under section 48 of the Control of Narcotic Substances Act, 1997.
8. We have heard Mr. Amanullah Kanrani, Advocate learned counsel for the appellant and Mr. Akhtar Zaman, learned. Additional Advocate-General for the State.
9. The main contentions put forth on behalf of the appellant are that the recovery from the possession of appellant is doubtful as the appellant has got no concern with the seized narcotic, the seized material belonged to one Ali Muhammad and the prosecution has failed to produce any independent evidence in support of its case. The alternate plea taken on behalf of the appellant is for reduction in the quantum of sentence awarded by the trial Court. According to learned counsel the sentence awarded by the trial Court is harsh one and the provision of proviso added to section 9 of the Control of Narcotic Substances Act, 1997 is not mandatory in nature and this Court has the jurisdiction to reduce the same. Learned counsel has relied upon the authorities reported in PLD 1997 Kar. 62, PLD 1978 Pesh. 141 and PLD 1964 SC 475. The judgment of this Court (Criminal Appeal No,19 of 2000) is also not helpful to the appellant as the provision of section 9 of the C.N.S. Act has not been dealt with nor the matter has been decided on merits. Similarly the judgment in Criminal Appeal No,143 of 2000 is also not helpful as the same was neither decided on merits nor proviso added to section .9 (c) of the Control of Narcotic Substances Act, 1997 was attracted in the said case.
10. On the other hand learned Additional Advocate-General representing the State has supported the impugned judgment and has contended that the provision of proviso is mandatory in nature and not directory. Learned Law Officer has relied upon the authorities reported in 1993 SCMR 1058 and 2001 SCMR 36.
11. After having given our anxious consideration to the arguments advanced by both the learned counsel for the parties and perusing the relevant record, we are of the view that the recovery is not doubtful and the same has rightly been relied upon by the learned Court. The provision of section 103, Cr.P.C. Has no application to the narcotic cases as per provision contained under section 25 of the abovementioned Act. Even otherwise it not absolute requirement that in every case witnesses of the public must necessarily be produced as it depends upon the facts of each case. Police officials are as good witnesses as any person from the public provided no animosity is alleged and proved against them. Under the circumstances of the present case the possibility of planting a huge quantity of Charas by the police was not possible; therefore, the non-production of independent witness in such recovery would not adversely affect recovery itself. The recovery has even not been disputed by the defence which has, however, given its own version on the same.
There is no substance in the plea of appellant, and the explanation given by him is neither reasonable nor worthy or reliance. The Questions 1 to 4 put to the appellant under section 342, Cr.P.C. Have been replied in the affirmative, but the appellant added that he had no knowledge regarding the contents of the bag and the same belonged to Ali Ahmed. If an accused person comes forward with such story then it would be difficult for the Court to rely on the same. Nothing has been brought on record which can indicate that there existed any enmity between the appellant and prosecution witnesses or he has been implicated falsely at the instance of some persons or on account of personal grudge. The Chemical Examination Report Exh.P/3-A indicates that the seized material was Charas (Cannabinoids). The appellant has also failed to discharge the burden as per provision contained under section 29 of the said Act. Learned counsel has not been able to point out any illegality perversity or unreasonableness to have been committed by the trial. Court. We also do not concur with the view of learned counsel for the appellant that the provisions of proviso added to section 9 of the said Act is directory in nature and not mandatory. In PLD 1971 SC 61 the following observations have been made:-- "It is well-settled that the neglect of the plain requirements of the statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory?
' It is not possible to lay down a general rule of universal application in this behalf but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure.
If, on the other hand, the language is affirmative, it may be considered as a directory provision.
Nonetheless, it appears that in several reported English cases, it has been held an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language."
' In PLD 1997 Karachi 62 it has been held that: "No doubt the general rule is that where a provision in a statute is couched in negative language, while providing for consequences in case of default of conditions and preconditions specified therein, the provisions is to be taken to be mandatory in nature. However, this is only a general rule which is not without exceptions. In fact our Supreme Court has conclusively settled the matter in Jamshed Ahmed Khan and 2 others v. The S.D.M./Assistant Commissioner, Garden Sub-Division, Karachi and others (PLD 1987 SC 213) and Dr. Sher Afgan v. Aamar Hayat Khan (1987 SCMR 1987), that no universal rule can be laid down to determine as to whether a provision directory or mandatory in nature. The Supreme Court, in the two cases referred, has categorically held that every enactment has to be construed on its own merit in light of the general object intended to be secured, the subject-matter and the importance of the provisions which are to be intrepreted.
Such also appears to be the settled law in the English and Indian jurisdictions as is borne out from Liverpool Borough Bank v. Turner (1861) 30 LJ Ch. 379 (at page 380) and H.N. Rishbud v. State of Delhi AIR 1955 SC 196. We feel that the correct approach while construing any provision of the enactment is to evaluate the entire scheme of the enactment, the nature of the provision in question and to ascertain the true intention of the Parliament before coming to the conclusion as to whether a particular provision is directly or mandatory in nature."
' The Honourable Supreme Court in the authority reported in PLD 1980 SC 84 have made the following observations:-- "It is true that ordinarily the function of the proviso is to except out of a previous enacting part of a statute something which, but for the proviso, would have been within the enacting part, but it is not an inflexible rule of construction that a proviso in a statute should always be read as a limitation upon the effect of the main enactment. Generally, the natural presumption is that but for the proviso the enacting part of the section would have included the subject-matter of the proviso; but the clear language of the substantive provision as well as the proviso may establish that the proviso is not a qualifying clause of the main provision, but is in itself a substantive provision. In any case, as observed by Lord Watson in The Guardian of Poor of the West Derby Union v. The Metropolitan Life Assurance Society and others (1897 AC 647), it is clear that if the language of the enacting part of the statute does not contain the provisions which are said to occur in it, one cannot derive these provisions by implication from a proviso. A similar view was expressed by the Judicial Committee in Madras and Southern Mahratta Ry. Co. Ltd. v. Bezwada Municipality (AIR 1944 PC 71), namely, 'the appropriate functions of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Where the laguage of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms.' It is also well-celled that a proviso must be strictly construed. In the words of Maxwell 'the true principle is that the sound view of the enacting clause, the saving clause and the proviso taken and construed together is to prevail."
' In 1993 SCMR 1058 it has been observed that; "A bare reading of the amended provision of section 395, P.P.C. Will show that the Court while convicting a person under section 395, P.P.C. Could either sentence him to life imprisonment or award him rigorous imprisonment which could not be less than 4 years or more 10 years in addition to fine in each case. We are, therefore, unable to find any illegality in the sentence awarded to the appellants by the trial Court and confirmed by the Federal Shari at Court in appeal. The appeal, is accordingly, dismissed."
' In PLD 2001 Peshawar 89 it has been observed; "In support of his argument, the learned counsel relied upon 1993 P.Cr.LJ 767 of Karachi jurisdiction, 1997 MLD 2097 of Lahore jurisdiction and 1998 P.Cr.LJ 87 again from Karachi jurisdiction, wherein, it was consistently held that the provisions of section 195, Cr.P.C. Are mandatory in nature. Even the plain reading of section 195, Cr.P.C. Would indicate that it starts with negative words as well as using the word `shall' It is a settled principle of law that any section commencing with negative terminology, is always mandatory over and above the fact that the word 'shall' followed the negative expression in addition."
12. Bearing these principles in mind, we are of the considered view that provision of proviso added to section 9 of the Control of Narcotic Substances Act, 1997 is mandatory in character. Mandatory provision of law must be obeyed strictly. The directory provision could only substantially be complied with. There is no principle of interpretation of statute which authorizes departure from the plain language of the section merely because it applies to cases which involve the loss of liberty or the life of persons accused of .Criminal charges. If the law is clear and precise the argument of hardship is clearly not available to the Court, the Court is duty bound to ascertain "the intention of the law-maker and to carry it out irrespective of the consequences that may ensure to a particular party. Consideration never weighs with the Courts of law while interpreting a statute. The Control of Narcotic Substances Act, 1997 is a stringent law, so far as the rights of accused are concerned.
Various deviations from the normal law have frequently occurred and it is quite harsh even against the concession of bail. In the wake of this background, certain restrictions or limitations have been placed on the prosecution and Investigating Agencies. Keeping in view the scope of the Act and other provisions it can be safely be stated that the provision of said proviso is mandatory in nature.
13. Having regard to the abovementioned factors and the principles laid down in the above cited authorities and relevant provisions of the said Act, we are of the view that there is no merit in E this