2006 PLP 340 (YLR)

IJAZ-UL-HASSAN KHAN, J.

This appeal impugns the judgment dated 16-8-2005, passed by Mrs. Irshad Qaiser, Sessions Judge, Mardan, whereby appellant Munir Khan son of Fazle Subhan, aged about 23 years, resident of village Jamodar, District Mardan, was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer R.I. for three years as well as a fine of Rs.20,000 or in default whereof to undergo further S.I. for six months. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. The case of prosecution briefly s!ated is, that upon receiving complaints from inhabitants of the locality that Munir Khan and Abdul Salam sons of Fazale Subhan deal in narcotic business in their house in "Jamodar Kallay", Mardan, a police party headed by S.-I. Awal Dad (P.W.2), raided the said house on 15-7-2004 at 1900 hours. Munir Khan appellant was found present in the house. On seeing the raiding party, he tried to escape but did not succeed. The appellant was caught red handed. He was having a plastic 'guthi' in his hands. The 'guthi' contained charas. The charas was weighed al id found 2000 grams. Sample was drawn and seizure memo. was prepared at the spot. A cash amount of Rs.900 was also secured from the appellant. The accused was formally arrested and a case was registered against him under section 9(c) of Control of Narcotic Substances Act, 1997.

3. The prosecution during trial examined five witnesses. S.-I. Faiz-ur-Rehman (P.W.1), on receipt of 'murasila' Exh.P.A/1 incorporated the same into F.I.R. Exh.P.A. S.I. Awal Dad (P.W.2) supervised the raid, arrested the appellant, recovered charas and cash amount of Rs.900 from his possession, separated four grams of charas out of the recovered material, sent the same to laboratory for examination and placed on record report of the Chemical Examiner. S.-I. Alamzeb (P.W.3) partially investigated the case, prepared site-plan Exh.P.B., recorded statements of P.Ws. and sent sample of charas to Forensic Science Laboratory, Peshawar for analysis. S.H.O., Niaz Muhammad (P.W.4) after completion of investigation submitted complete challan against the accused in Court. A.S.-I., Niaz Muhammad (P.W.5) is marginal witness of recovery Memo. Exh.P.C., vide which the charas and cash amount of Rs.900 were recovered from possession of the appellant.

4. The trial Court recorded the statement of appellant under section 342, Cr.P.C., in which the appellant denied the prosecution allegations and stated that on the day of occurrence there was 'chehlam' of his grand-mother and guests had come for 'fatiha khawani'. Meanwhile, the local police headed by Inspector CIA entered into house and he was taken to CIA Police Station along with his brother Abdul Salam. The C.I.A. Staff effected his personal search and recovered Rs.2,

400. He further stated that he has been charged at the instance of his co-villager Mir Afzal, who had friendly relation with CIA officials. He led no evidence in defence.

5. At the conclusion of the trial, learned trial Court after appraising the case of the prosecution found the appellant guilty of the offence and thus he was convicted and sentenced as mentioned and detailed above.

6. Appearing on behalf of the appellant, Mr. Noor Alam Khan, Advocate, mainly contended that it is a case of no evidence; that nothing was recovered from the appellant and his conviction under section 9(c) of the Act is based on surmises and conjectures and is not supported by any material evidence available on record; that there are major discrepancies/contradictions between the statements of prosecution witnesses, as such, his conviction cannot be maintained on such evidence; that no private person was joined in the recovery proceedings and no such witness was cited by the prosecution in derogation of provisions of section 103, Cr.P.C.; that since entire recovered contraband was not sent for chemical examination, the appellant could only be punished under section 9(b) of the Act for quantity examined by the chemical examiner; that the alleged recovery has not been effected from the personal possession of the appellant; that specimen separated from the recovered material has been sent to the laboratory after considerable delay and that the stance taken by the appellant in defence i.e. his involvement at the instance of his co-villager Mir Afzal, has been ignored and discarded without any just cause. To substantiate the contentions, reliance was placed on Jamil Shah v. The State 1997 SCMR 1494; State v. Hemjoo 2003 SCMR 881; Ghous Bakhsh alias Ghousa v. The State 2000 MLD 618; Mst. Iqbal Bibi v. State 2000 PCr.LJ 1812 Peshawar; Ghulam Khan v. State PLD 2005 Pesh. 180; Muhammad Hashim v. State PLD 2004 SC 856 and Johar Ali and another v. State 2003 PCr.LJ 680 Peshawar.

7. Pir Liaqat Ali Shah, learned Additional Advocate General for the State, supported the judgment of the trial Court whole heartedly and maintained that prosecution has proved its case beyond any shadow of doubt. According to him, recovery of huge quantity of charas from the possession of the appellant was proved by the P.Ws., statements of whom could not be shattered by the defence in spite of lengthy cross-examination; that there is no such material contradiction, on the basis of which trial of the case can be said to have vitiated and that in the cases of narcotics section 103, Cr.P.C. is not applicable.

8. We have minutely considered the arguments of the learned counsel for the parties with reference to the material on record.

9. S.-I. Awal Dad (P.W.2) and A.S.-I., Niaz Ahmad (P.W.5) have furnished the evidence of the recovery of the charas from possession of the appellant. The two recovery witnesses seem to be independent witnesses having no reason to falsely implicate him in this case. There has been unanimity in the deposition on the material aspects of this recovery. No material discrepancy at all in their deposition inter se regarding recovery of charas from his possession has been pointed out by his side. Huge quantity of charas has been recovered from possession of the appellant and the prosecution witnesses are consistent regarding the time, place of occurrence and recovery of articles and the manner in which it has been effected. The discrepancies pointed out by the learned appellant's counsel are inconsequential and of no importance.

10. 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 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.

11. Adverting to the argument that entire recovered narcotic should have been sent to chemical examiner and lapse of the prosecution in this behalf, should be Construed to hold that the appellant is only liable to the extent of four grams, the objection is not tenable. Taking of small quantity out of each packet for chemical examination, is enough to prove that entire recovered material was contraband as held in Ali Muhammad and another v. The State 2003 SCMR 54 and Mst. Anwar Bibi v. The State 2004 PCr.LJ 692.

12. Learned counsel for the appellant has also contended that the samples separated from the seized charas was received by Forensic Science Laboratory, Peshawar on 3-8-2004 after considerable E delay of seizure, whereas the report prepared was sent on 18-8-2004 and in the process sufficient time had consumed and in view of rules 4 and 5 of the Control of Narcotics Substances (Government Analysts) Rules, 2001 the samples dispatched for analysis beyond seventy two (72) hours and the report received after eleven days of the seizure of narcotics 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 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 framed under section 77 of the CNSA provide as under:-- "

4. Dispatch of sample for test or analysis. (1) Reasonable quantity of samples from the narcotics drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer-in-charge of nearest Federal Narcotic Testing Laboratory, depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose. (2) Sample may be dispatched for analysis under the cover of a Test Memorandum specified in Form-1 at the earlier, but not later than seventy two hours of the seizure. The envelope should be sealed and marked "Secret Drug Sample/Test Memorandum." "

5. Receipt in the laboratory and examination of sample with reference to Test Memorandum. (1) The sealed envelope, containing the samples, received in the laboratory should be carefully opened and given a distinct laboratory number. (2) A separate register be maintained for narcotic drugs which may be further subdivided agency-wise and the laboratory numbers should form a continuous series for each year. (3) All samples shall be passed to the analyst the same day, who will then keep the same in his safe custody and will examine and record its, or their, weight in the Test Memorandum. He will compare the marking on the Test Memorandums with the markings on the packages envelopes and will ensure that he tests the relevant sample, and in no case, the analysis of a narcotic drug be delayed as the Courts may refuse to extend remand beyond fifteen days in the absence of a chemical report.

13. These Rules have placed no bar on the investigating officer to send the samples beyond seventy-two hours of the seizure, receive the FSL 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 CNSA 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 CNSA all 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 the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated.

14. So far as the defence version is concerned, it is an accepted principle of law that when an accused at a criminal trial takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his plea or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether.

15. So far as the cases cited by learned counsel for the appellant is concerned, each criminal case stands on its own footings. The facts and circumstances in one case may not be quite similar on all fours to the other. There may be circumstances so as to give benefit of doubt to the accused. But in the instant case, we are fully satisfied that the prosecution has been successful in proving its case against the appellant and no exception can be taken to the judgment of trial Court. In view of above discussion, we are of the view that the trial Court has rightly concluded the charge against the appellant and has correctly convicted and sentenced him. The appeal having been found without substance fails, which is hereby dismissed. H.B.T./582/P?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.