2006 P Cr (PLP)

IJAZ-UL-HASSAN KHAN, J.

This appeal impugns the judgment, dated 19-11-2005, recorded by learned Sessions Judge/Judge, Special Court, Peshawar, by which appellant Amjad has been convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo imprisonment for three years with a fine of Rs.20,000 or in default to suffer further S.I. for one year. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. Succinctly stated the facts of the case are, that on 4-5-2005, at 1520 hours, S.I. Kamal Hussain Khan (P.W.3), Police Station West Cantt. Peshawar, along with A.S.-I. Muhammad Younas and others, laid a `Naka Bandi' on Bara Road near Political Agent Office, Peshawar. In the meanwhile, a young boy confronted the police party roaming under suspicious circumstances. He was having a black shopping bag in his hand. On opening the bag, three lots of `Pukhta Charas' were recovered. On asking, holder of the bag disclosed his name as Amjad son of Noor Said, resident of Rustam Khel, Mardan. The Charas was weighed and found 3 Kgs. A meagre quantity i.e. 4 grams each was separated out of the bulk and sent to chemical analyst for report. The remaining was sealed into a parcel. He was formally arrested and a case was registered against him under section 9(c) of the Control of Narcotic Substances Act, 1997.

3. The prosecution in order to prove its case against the appellant, produced three witnesses in all, namely, S.-I. Muhammad Zarif Khan (P.W.1) H.C. Sher Ali (P.W.2) and S.-I. Kamal Hussain (P.W.3). After close of the prosecution case, appellant was examined under section 342, Cr.P.C. He denied the prosecution allegations and claimed to have been falsely charged on account of his refusal to oblige the wishes of the police. In answer to a question, as to what is your statement and why are you charged, he replied:-- "I am innocent and falsely implicated in the present case. In fact no recovery was effected from me. I was jobless and came for search of job and in the front of office of Political Agent during personal search, an altercation took place and I was implicated in the present case." He, however, did not opt to produce evidence in his defence or depose on oath in disproof of the allegations appearing against him in the prosecution case.

4. Mr. Nasrumminallah, Advocate, appearing on behalf of the appellant strenuously contended that the appellant was convicted on very highly flimsy, doubtful and interested evidence of prosecution and that the judgment of the trial Court is manifestly wrong and the evidence produced by prosecution does not associate the appellant with the commission of crime in any manner. An objection regarding delay in dispatch to F.S.L. Peshawar was also raised. Concluding the arguments, the learned counsel contended that the sentence awarded to the appellant is excessive and requires reduction. To substantiate the contentions, he placed reliance on Afsar Khan v. State 2005 PCr.LJ 1858 (Peshawar); Mst. Nawshada and another v. The State 2005 PCr.LJ 1966 (Peshawar) and Qayum v. The State 2005 PCr.LJ 2034 (Peshawar).

5. Mr. Akhtar Naveed, learned Deputy Advocate-General for the State, on the contrary, supported the impugned judgment whole heartedly and submitted that there is sufficient material on record to warrant conviction and that the charge against the appellant was fully proved.

6. The prosecution in order to prove the factum of apprehension of the appellant and recovery of contraband Charas from his possession, has produced S.-I. Muhammad Zarif Khan, S.-I. Khadim Hussain and H.C. Sher Ali P.Ws. These witnesses have fully supported the prosecution story. They have remained absolutely consistent, coherent and have successfully faced the test of cross-examination. The contradictions highlighted by learned counsel for the appellant, are of minor nature and those cannot be considered sufficient to vitiate the trial or to make the recovery doubtful. The mere fact that these witnesses belong to police department, by itself, cannot be considered a good ground to discard their statements. The defence has not been able to shatter their testimony or pin point any ill-will, which may have prompted them to depose falsely against the appellant. The plea taken by the appellant is not at all worthy of any belief 'and seems to have been fabricated just to save his skin.

7. The submission that compliance of the provisions of section 103, Cr.P.C. was not made in the case as no two respectable persons of the B locality were associated, has no force firstly for the reason that provision of section 103, Cr.P.C. has been excluded under the provision of section 25 of the Control of Narcotic Substances Act, 1997 and the provisions of section 20 of the Act are directory in nature, therefore, its non-compliance cannot be considered as a strong ground for holding that the trial of the appellant is bad in the eye of law whereas on the other, it is not denied that the main aim and object of enacting of section 103, Cr.P.C. is to ensure that the search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression. It never meant to disbelieve the statements of official witnesses in any other circumstances. In this regard, reliance can be placed on case captioned Mirza Shah v. State 1992 SCMR 1475.

8. The onward transmission of four grams sample taken out from total narcotic material recovered form the appellant to the office of Chemical Examiner is also proved beyond any shadow of doubt. The samples were received intact. The appellant had not challenged the nature of recovery substance being not Charas, or narcotic before the trial Court or this Court. No question was put to P.Ws. at the trial in this regard. The report of analyst received back was found in positive, which has supported the prosecution story as well as recovery of narcotic in this case.

9. Learned counsel for the appellant has also contended that the samples separated from the seized Charas were received, by Forensic Science Laboratory, Peshawar after considerable delay of seizure, whereas the report prepared was sent on 27-6-2005 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 samples dispatched for analysis beyond seventy two (72) hours and the report received is illegal and rendered the seizure invalid in the eye of law. The contention of the learned counsel is without substance. Rules 4 and 5 have placed no bar on the Investigating 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 e 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 non-compliance if the act otherwise is done in accordance with law. The delay otherwise in sending the incriminating articles to their concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with Or? manipulated.

10. In the last limb of arguments, learned counsel for the appellant contended that the sentence awarded to the appellant is on higher side and does not commensurate with the gravity of the offence. The submission of the learned counsel is not tenable. The learned trial Judge has already taken a lenient view and we sec no justification to further reduce the sentence of the appellant. The appeal having been found destitute of force, is dismissed and the impugned judgment is maintained. H.B.T./71/P???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.