2011 SCMR 624 (PLP)

IJAZ-UL-HASSAN, J.

Through instant petition, leave to appeal is sought from a judgment dated 24-10-2007 of the Peshawar High Court, Peshawar, whereby, Criminal Appeal No. 430 of 2006 preferred by Gul Alam, petitioner, was dismissed maintaining conviction and sentence awarded to the petitioner by learned Additional Sessions Judge-II, Swabi vide Judgment dated 29-6-2006.

2. The prosecution story in brief is, that complainant Ashfaq Ahmad Khan, SHO, Police Station Zaida District Swabi along with other police officials was on usual `gasht', on 18-12-2004 at about 1210 hours when on suspicion, a person coming from `Khunda' side with a bag on his shoulder, was intercepted. On inquiry he disclosed his name and parentage as Gul Alam son of Muhammad Younas resident of Hassan Ghari, Peshawar. The bag was opened. It contained 4 packets of 'charas'. The `charas' was weighed and found 11 kilograms. A meagre quantity i.e. five grams each was separated from the seized property and sent to Chemical Examiner, Peshawar. Remaining was sealed in separate parcels. The accused was arrested and a case was registered against him vide F.I.R. No. 431 dated 18-12-2004 at Police Station Zaida District Swabi, under section 9(c) of the Control of Narcotic Substances Act, 1997.

3. The prosecution in order to establish its case, examined five witnesses in all. The accused in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations by pleading innocence. He did not appear as a witness under section 340(2), Cr.P.C. to prove his defence nor any body in support of his stance.

4. At the conclusion of trial, petitioner having been found guilty of the offence, was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997, by learned Additional Sessions, Judge, Swabi, vide judgment dated 29-6-2006 and sentenced to suffer life imprisonment with a fine of rupees one lac or in default whereof to undergo four months S.I., with benefit of section 382-B, Cr.P.C.

5. The Petitioner, feeling aggrieved, filed appeal before learned Peshawar High Court, Peshawar, calling in question his conviction and sentence, which was dismissed, as mentioned and stated above vide judgment impugned herein.

6. Mr. Mehmood Shah, Advocate for the petitioner and Mr. Ishtiaq Ibrahim, Additional Advocate-General for the respondent heard in detail in the light of the material on file.

7. Learned counsel for the petitioner attempted to argue that except the bare allegations in the F.I.R. there is nothing incriminating on the file which could connect the petitioner with the commission of crime; that the case property was neither produced before the trial Court nor the destruction certificate proved the fact of destruction of alleged `charas'; that no private person from the locality was associated with recovery proceedings; that statements of prosecution witnesses suffer from contradictions and infirmities and hardly inspire confidence and that 'chars' was sent to the laboratory with considerable delay and in the process sufficient time had consumed and in view of rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 the same dispatched for analysis beyond seventy two hours and the report received is illegal. To substantiate the contentions, reliance was placed on Asghar Ali v. The State (1996 SCMR 1541), Muhammad Uzair Siddiqui v. State PLD 2005 Pesh. 81 and Ijaz-ud-Din v. The State (2005 YLR (Lahore) 16).

8. Learned Additional Advocate-General appearing for the State, on the contrary, opposed the arguments of learned counsel for the petitioner and supported the impugned judgment on all counts. He placed reliance on Ghulam Qadir v. The State (PLD 2006 SC 61).

9. Having heard the arguments of learned counsel for the parties with reference to the material on file, we find that learned trial Court has thoroughly examined the matter before reaching the conclusion and learned High Court has also re-examined all aspects of the case comprehensively maintaining the conviction and sentence awarded to the petitioner by learned trial Court. Record reveals that destruction certificate has been proved through the mouth of P.W.4, Muhammad Inamullah Khan, Judicial Magistrate, Swat, in whose presence the remaining case property was destroyed. No doubt the certificate does not specifically contain the case property of each case but there is separate list prepared which is Exh.P.W.1/3 and duly signed by the Magistrate. This list contained the F.I.R. number, name of the accused and the case property destroyed. The destruction was followed under the orders of learned Sessions Judge, who was a trial Court as well. Thus, we do not find any illegality in the destruction process because before the destruction sample were taken and were duly exhibited at the trial. Where a successful nexus has been established between the case property of the F.I.R. of the instant case and the list Exh.P. W.4/ 1 followed by certificate by the Magistrate.

10. The apprehension of the petitioner and the recovery of contraband `charas' from the bag carried by him has been satisfactorily proved by P.W.2 Gulab Khan and P.W.3 Ashfaq Ahmed Khan. They have demonstrated complete unanimity on all aspects of the case qua place, time, arrest and recovery. The petitioner could not point out any contradiction in the statements of the prosecution witnesses, so as to create a dent in the prosecution case. No enmity, or grudge has been alleged against the prosecution witnesses to falsely implicate the petitioner and despite lengthy cross-examination, their veracity could not be shattered and nothing favourable to the defence could be extracted from their statements. A large quantity of about 11 Kgs of 'charas' could not be thrust upon the petitioner in absence of any tangible and, concrete enmity, which has not been proved by the defence.

11. The prosecution has successfully brought home the guilt of the petitioner to hilt by producing the witnesses of the recovery of narcotics material and the report of the Chemical Examiner. The contention of learned counsel for the petitioner that the recovery was not witnessed by persons from public, we may observe that section 25 of C.N.S.A excludes the application of section 103, Cr.P.C.

12. Adverting to the objection regarding late dispatch, it may be noted that rules 4 and 5 of the Control of .Narcotic Substances (Government Analysts), Rules, 2001, placed no bar on the Investigation Officer to send the samples beyond seventy two hours of the seizure, receive the F.S.L. report after fifteen days and the report so received to place before the trial Court. The very language employed in the rules and the effects of its breach provided therein have made the rules directory and not mandatory. These rules cannot control the substantive provisions of the C.N.S.A. and to be applied in such a manner that its operation shall not frustrate the purpose of the Act under which these are framed. Further, failure to follow the rules would not render the search, seizure and arrest under the C.N.S.A. an absolute nullity and non-est and make the entire prosecution case doubtful, except for the consequence provided in the rules. In directory provisions substantial compliance is sufficient and even where there is no compliance at all, the act is not invalidated by such noncompliance if the act otherwise is done in accordance with law. The delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. There is no allegation of the petitioner that the property was tampered with during the process of transit or the remaining property was not 'chars'. It was for the petitioner to have taken such plea before the trial Court but the petitioner did not do so. However, we have examined the Chemical Analyzer's report and found that the sealed packets were received by him which contained the signatures of marginal witnesses. In the absence of any allegation of tampering with the property, the argument of learned counsel for the petitioner is not sound. Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar, (PLD 2009 SC 39).

13. In the circumstances, learned counsel for the petitioner, despite his best efforts could not point out any misreading or non-appreciation of the evidence. We also do not find any illegality or infirmity, legal or factual, in the impugned judgment so as to justify interference by this Court.

14. In view of the above, finding no illegality or infirmity in the impugned judgment of the High Court, this petition is dismissed and leave refused. N.H.Q./G-17/SC Leave refused.