2013 PLP 1683 (YLR)

IKRAMULLAH KHAN, J.

Abdur Rahim appellant, was tried by the learned Judge Special Court (C.N.S.A)/Additional Sessions Judge-III, Peshawar, in case F.I.R. No. 219, dated 4-3-2011 registered with Police Station Agha Mir Jani Shah, for an offence under section 9 (c) the Control of Narcotic Substances Act, 1997 (hereinafter called as C.N.S.A). The learned trial Court, by virtue of judgment dated 5-1-2011, convicted the appellant under section 9(c) of C.N.S.A and sentenced him to suffer simple imprisonment for 10-years with fine of Rs.50,000 or in default thereof to undergo further one year simple imprisonment.

2. The prosecution story in brief is, that on 2-12-2009, one Saifur Rehman Khan Sub-Inspector Police, Police Station Agha Mir Jani Shah, complainant, in this case, along with A.S.-I. Tilla Muhammad, Fareed Gul and other Police Officials was present at the thoroughfare of village Sadozai, Hazar Khawani, saw a person having a plastic bag in his hand, who on seeing the police tried to escape, but he was chased and overpowered. Plastic bag, in immediate possession of the person, on search was found containing 10 packets of charas pukhta, which on weighment, each packet, was found 1 Kg, so the total charas recovered was 10 Kgs. A meagre quantity of five grams each was separated out of the seized property from every packet and sent to the office of Chemical Examiner to Government of N.-W.F.P. (now Khyber Pakhtunkhwa) Peshawar for analysis. The remaining charas was sealed in a separate parcel. On personal search of the accused, 30 bore pistol bearing S.R. No. 31017263 along with a "Kaash Charmi" containing 13 live rounds of the said bore and two spare chargers were also secured from his possession. The accused was arrested and case was registered against him under 9(c) C.N.S.A. The Challan was accordingly submitted against him to face the trial before the Special Judge established under the C.N.S.A.

3. The prosecution in support of charge against the accused examined six witnesses at the trial, namely, Said Badshah IHC, P.W.1, Shahryar Khan S.-I., P.W.2., Sabirullah A.S.-I., P.W.3., Basher Dad Khan S.H.O, PW-4, Shabz Ali CIO, P.W.5. and Anwar Shah A.S.-I., P.W.6. After close of the prosecution case, accused was examined under section 342, Cr.P.C. he denied the prosecution allegation, disowned the ownership of the contraband and pistol, asserting that he is innocent and falsely implicated in the case he further alleged that the local police raided his house initially on the pretext that a proclaimed offender was present in his house and later on he was taken to the Police Station, where he started protest, though admitted that when he was a young man used to smoke charas, but after affiliation with Tableegh has given up the business of charas. He further termed the recovery against himself as fake one. However, he not opted to either examine him self, on oath as his own or produce any other witness in his support. The learned trial Court, on the conclusion of the trial held the appellant guilty of the charge and convicted and sentenced him as mentioned in the opening paragraph of this judgment.

4. Mr. Babar Khan Yousafzai, Advocate in support of the appeal contended with vehemence that there is no reliable evidence led by the prosecution to have proved the charge against the appellant, but the Judge Special Court below, without appreciating the same, recorded erroneous findings; that the prosecution has failed to prove any connection of the appellant with the contraband and the pistol; that there are serious contradictions between the statements of prosecution witnesses; that the contraband is sent to FSL beyond the stipulated period as envisaged under the rules framed for this purpose; that the FSL report does not bear the embossing marks and termed the FSL report as inadmissible; that the FSL report is given by Assistant Chemical Examiner, who is not an authorized officer in this respect so, the appellant cannot be convicted on this inadmissible piece of evidence. Concluding his arguments, learned counsel submitted that no private person was joined in the recovery proceeding and no such witness was cited by the prosecution in derogation of provision of section 103 Cr.P.C. to substantiate his contentions.

5. The prosecution in order to prove the factum of apprehension of the appellant and recovery of contraband charas from the personal search i.e. the plastic bag, carried by him, produced two witnesses, namely, Said Badshah IHC, Police Station, Agha Mir Jani Shah (P.W.1) and Sabz Ali CIO of the same Police Station (P.W.5). The former is one of the marginal witnesses to the recovery memo through which the contraband charas was taken into possession, whereas the later conducted all the proceedings of recovery of contraband while P.W.2, Shehryar Khan Sub-Inspector carried out investigation against the accused. All those witnesses have fully supported the prosecution story on all material points. Both the witnesses have faced the test of lengthy cross-examination, but remained consistent on all vital facts. There is no such contradiction in the statements of these witnesses, which can vitiate the trial or to make the recovery doubtful. The mere fact that these witnesses are police officials, by itself cannot be a ground for acquittal. Police witnesses are as good witnesses as any other witness subject to the fact when their disposition ranged true. On this score alone, the prosecution version cannot be discarded and that too when these witnesses are not inimical to the appellants In this regard reference can be given to the cases of "Naseer Ahmad v. The State", reported as 2004 SCMR 1361 and "Riaz Ahmad v. The State", reported as 2004 SCMR 988.

6. Learned counsel for the appellant strenuously contended that the contraband is sent to FSL beyond the stipulated period of 72 hours and with a considerable delay and in the process sufficient time is consumed and as such has made the report illegal and rendered the seizure invalid in the eye of law as provided in rule 4 or 5 of the C.N.S.A (Government Analysts, Rules, 2001).

7. From the bare language of Rules 4 and 5 these never place any bar on the Investigating Officer to send the sample beyond seventy two hours of the seizure or receive the FSL report after fifteen days, so the very language employed in the rules and effects of its breach provided therein have made these rules directory and not mandatory. The delay otherwise in sending the incriminating articles to the concerned quarter for Expert opinion cannot be treated as fatal to the prosecution case nor it reduces or vanish the evidentiary values of such a report, sent or received beyond the prescribed period mentioned in Rule 4 or 5 of C.N.S.A (Government Analysts Rules 2001). In mitiori sensu, non-compliance of these directory rules never make the recovery doubtful and cannot be treated fatal in absence of objection regarding the same having been tampered with or manipulated. As far as, the other objection raised by the learned counsel for appellant is to signing of report by Assistant Chemical Examiner is concerned, it has no bearing on the merit of the case. From perusal of the FSL report, duly exhibited on the case file, it has been signed by chemical examiner as well as by Chemical Expert who are authorized officers in this respect under sections 34 and 35 of C.N.S.A read with section 510 of Cr.P.C. This legal proposition has already been answered by the august High Court of Quetta in case "Shah Faisal and others v. the State", which is reported in PLD 2009 Quetta

40. According to the sections 34 and 35 of C.N.S.A, the Federal Government is required to setup Federal Narcotics Testing Laboratory or notify any other Laboratory or institute as Federal Testing Laboratory, under section 34 of C.N.S A., in addition to setting up a Federal Testing Laboratory, the government had been also authorized to notify an already set up laboratory or institution to be a Federal Narcotics Testing Laboratory. In pursuance of such power the government has issued notification and Forensic Science Laboratory was a Narcotics Testing Laboratory set up by the Provincial Government and the Chemical Examiners posted therein had been notified to be Chemical Examiner under section 510, Cr.P.C. Chemical Examiner or Assistant Chemical Examiner appointed in such laboratory would be considered to be Government Analyst as envisaged under section 510, Cr.P.C. So any report submitted by Assistant Chemical Examiner notified under section 510, Cr.P.C., was a report of Government Analyst within the meaning of sections 34 and 35 of C.N.S.A and admissible in evidence. The provision of Cr.P.C. is not excluded by C.N.S.A, so any person duly qualified as Government Analyst within the meaning of sections 34 and 35 of C.N.S.A is a competent Government Analyst, what may be his designation for the purpose of administration, within the said institute.

8. The objection on admissibility of FSL report, as far as non-presence or non-availability of embossing marks is concerned, the recovery of contraband cannot be negated on mere non-presence of embossing marks on the FSL report, as where, as far as C.N.S.A. is concerned, it is provided that such like report shall have any embossing marks, no any rule has been framed so far. But bald objections cannot give any benefit to any accused till the procedure provided for such like objection under Cr.P.C. is fulfilled. During the trial, the defence never applied the court to summon the expert witness to clarify the authenticity of the FSL report, so under section 510, Cr.P.C. read with section 34 and 35 of C.N.S.A presumption of truth is attached to such like report.

9. The perusal of the record does not show any legal or factual defect in the current finding of the trial Court regarding the guilt of the appellant. The charas in huge quantity has been recovered from the plastic bag carried by the appellant, which has been proved by the raiding party, who had no personal reasons to involve the appellant in a false case. While the admission of appellant, that he dealt with business of chars but now repented his ways also support the prosecution case without reasonable doubts that appellant was dealing in business of Narcotics.

10. Keeping in view, the legal and factual position of the present case, we find that a legal sentence has been awarded to the appellant which hardly requires interference of this Court, finding no substance in the present appeal, we dismiss the same and maintain the impugned judgment. HBT/261/P Appeal dismissed.