' TARIQ PARVEZ, J.--- On 23-7-2000 at 18-00 hours near G.B. Plaza, Karkhano Market, Peshawar, a Suzuki Motor Car bearing Registration No,LSB-80 was signaled to stop and later on from secret cavities of the car staff of Police Station A.N.F., Peshawar recovered 80 Kgs. Of Charas. The vehicle was driven by Sartaj, the present appellant. He was accordingly arrested and charged under section 9, C.N.S.A., 1997.
' This case was sent for trial to Judge, Special Court (C.N.S.), Peshawar, who vide judgment, dated 22-9-2001 found the appellant guilty of the offence and has convicted him with sentence of life imprisonment under section 9(c) 'of the Act (ibid) with a fine of Rs, one million and in default of payment of such fine to two years' S.I. With benefit of section 382-B, Cr.P.C. Extended.
2. Prosecution in this case has examined three witnesses, namely, Samin Jan, S.H.O., who on completion of investigation submitted challan. Mughul Badshah, L.H.C., A.N.F., Peshawar appeared in proof of memo. Exh.P.C. Through which the recovery of contraband was effected besides other articles, whereas Raza Khan Inspector of A.N.F. Deposed about the recovery, the investigation and about the arrest of the accused.
3. Learned counsel for the appellant states that there are material contradictions in the statements of P.W.2 Mughul Badshah and P.W.3 Raza Khan, Inspector as to the time of occurrence, the venue of the recovery and articles and the manner in which the recovery was effected. It is argued that both these P.Ws. Are police officials and are interested in the prosecution of the case. Contention is made that despite section 25 of the Act (ibid) where provisions of section 103, Cr.P.C. Have been waived, yet the justice and prudence would demand that where contraband are recovered from place where public witnesses could have been associated, the police should have been involved them in the recovery process, otherwise the recovery would be doubtful. It is argued that according to the evidence there were 80 packets of Charas and from each packet some quantity of Charas was taken as sample for onward transmission to the Chemical Laboratory making total of 200 grams, therefore, the report of the Expert would be relevant to that extent only. It is argued that the remaining case property though produced at the trial but in absence of description of its make, such exhibition would not prove that such was the case property allegedly recovered from the appellant.
' Learned counsel appearing for the appellant has vehemently argued the proposition that according to the application Exh.P.W.3/1 and according to the statements of P.W.2 and P.W.3 the samples taken were sealed into a parcel and said parcel contained two seals bearing No,RK but according to the Exh.P.W.3/2 report of the Chemical Examiner, the parcel contained one seal. It is argued that both P.Ws. In their cross-examination have categorically stated that if a parcel received by the Expert was carrying one seal, it would not be the parcel prepared by them. It is argued that in view of above infirmity, no report is linking the recovered articles with the appellant.
' Finally it is argued that the chemical examination of Government of Punjab, Rawalpindi from whom the report has been obtained, is not a notified Laboratory within the contemplation of section 34 of the Act (ibid).
4. Learned counsel appearing for the State argued that in view of section 25 of the Act (ibid) and in view of huge quantity concealed in secret cavities not only that public witnesses could not be associated with the recovery but also that the vehicle was to be taken to the police station for taking out the contraband from the vehicle. It is argued that in absence of any on part of the two P.Ws. As against the appellant, there is no question of false implication and that plantation of huge quantity like 80 Kgs. Is beyond imagination.
' It is argued that single accused stands charged and in his 342, Cr.P.C. Statement he has not denied his apprehension though he has denied the recovery.
' It is argued that as far any discrepancy regarding affixation of seal on the parcel, it can be either a clerical omission or an arranged matter between culprit and the Government functionaries and that what has stated by the two P.Ws. In the cross-examination would be concession in favour of the accused and such concessions are ignorable. It is argued that the case property was duly exhibited at the trial and no exception was taken by the defence.
5. After hearing the detail arguments of both sides, our conclusion is as under:--
(a) S.R.O. No,596(I)/97, issued by the Federal Government while exercising power conferred by section 34 of the Act (ibid) contains Notification where certain Federal and Provincial Laboratories have been notified and besides such Laboratories all Narcotics Testing Laboratories set up by the Provincial Government, have been declared as Federal Narcotics Testing Laboratories, therefore, the report Exh.P.W .3/2 has been validly received in evidence.
(b) No doubt that in application Exh.P.W.3/1 and also in statement before the Court both P.Ws. Have stated that parcel containing sample, which was sent for test was affixed with two seals marked R.K., whereas report Exh.P.W.3/2 refers to one. Such discrepancy would not be material, firstly, for the reason that both the P.Ws. In their examination-in-chief state two seals. They accept two seals in their cross-examination and so is application Exh.P.W.3/1 and similarly the recovery memo. Exh.P.C.
When there is preponderance of evidence both oral and documentary that two seals were affixed, mere mentioning of one seal on report Exh.P.W.3/2 would not affect the prosecution case. Secondly the parcel when prepared contained on it the F.I.R. Number, the police station and the date of F.I.R.
And same is recorded in the report of Chemical Examiner. These entries are recorded for the identification of the parcel so that the case property of one case shall not get mix with other. Where the identity of the parcel is otherwise established, mere mentioning of one seal by Laboratory would not detract and affect the testimony of two P.Ws.
(c) In statement recorded under section 342, Cr.P.C. Appellant has taken the plea that at the relevant time he was coming in Suzuki, which was stopped and some altercation took place between him and the A.N.F. Staff and they falsely involved him. Such version is not appealing to a prudent mind, because even if there was some altercation, its cause is not shown. Police if wanted to falsely involve the appellant, they could have so done by showing less quantity of heroin or other contraband instead of planting 80 Kgs. Of Charas.
(d) The non-observance of provisions of section 103, Cr.P.C. i,e, non-association of public witnesses has been done away with by section 25 of the Act (ibid). Is a question of common knowledge that public witnesses due to lack of civic sense generally avoid to associate themselves in matters pertaining to police and Courts, Also, according to evidence, because of the opening of secret cavities the vehicle was to be shifted to police station, therefore, no public witness could be associated. Otherwise too, as ruled by august Supreme Court of Pakistan the necessity of association of public witnesses is to exclude the possibility of false implication and false plantation.
As observed above, when there is no between the police and the appellant and when the quantity recovered is huge, there would be no question of false implication or plantation.
(e) Regarding discrepancy about the time and place of recovery where according to P.W.2 they waited on the road for ten minutes before the vehicles arrived, whereas according to P.W.3 they waited for one hour, such contradiction or contradiction regarding distance of the police station or stopping of the vehicle from the police station, are statements made from memory. The memory of two persons regarding one fact may differ not only because of different people are differently constituted and their mental capacities are different, but also because of time that has elapsed between the recoveries and the time when the statement is made.
In view of what we have observed above, we are firmed to hold that the prosecution has successfully brought home the charge against the appellant. The conviction and sentence recorded by learned Judge, Special Court (C.N.S.) does not require any interference. This appeal is accordingly dismissed.