2019 PLP 1897 (YLR)

KHADIM HUSSAIN TUNIO, J.

Through this appeal, the appellant has impugned judgment dated 10.11.2009 passed by the learned Sessions/Special Judge CNS, Shikarpur in Special Narcotics Case No.625/2007, whereby appellant Bahauddin was convicted and sentenced him to suffer R.I. for life and to pay fine of rupees one million and in default whereof he shall suffer S.I. for six months more, however, benefit of section 382(b), Cr.P.C. was extended to him.

2. Succinctly the facts of the instant appeal are that on 23.11.2007 SIP Ghulam Nabi Korai lodged the FIR with Police Station Sultan Kot to the effect that lie along with his subordinate staff left Police Station for patrolling during which he received spy in formation regarding availability of charas in Mazda vehicle, as such, he made nakabandi and during the course of checking spotted the said Mazda vehicle, it was stopped and found one driver was sitting in it, who disclosed his name to be Baharuddin Pathan, the said Mazda was loaded with bags of onions, during the course of unloading complainant found some secret cavities, which were opened and found 269 slabs of charas, each slab weighing. 01-K.G, total 269-K.Gs, out of which 15-K.Gs were sealed for sample while remaining charas sealed separately the Mazda was also ceased, such Memo of arrest and recovery was prepared at spot and thereafter accused and case property were brought at Police Station where complainant lodged the FIR against the accused on behalf of the State.

3. After usual investigation, the challan was submitted and accused was sent up to face the trial to the court of Sessions Judge/Special Judge CNS, Shikarpur for disposal according to law.

4. Charge was framed as Ex. 02 to which accused did not plead guilty and claimed to be tried vide plea at Ex.2-A.

5. At trial, prosecution examined PW-1 HC Inayatullah the mashir of arrest, recovery and place of vardat at Ex.06, who produced Memo of arrest and recovery at Ex.07, PW-2 complainant SIP Ghulam Nabi Korai at Ex.08, who produced entries, FIR and positive Chemical Examiner Report at Ex.09 to 11 respectively. Thereafter, learned S.S.P. closed the side of the prosecution.

6. In 342, Cr.P.C. statement, the appellant has denied the prosecution allegation levelled against him and stated that he is innocent and has falsely been implicated in the present case as nothing has been recovered from his possession and the alleged charas has been recovered from the shop of one Ghulam Rasool Pahan but has been foisted, upon him. However, he has not examined himself on oath under section 340(2), Cr.P.C. nor produced any defence witness.

7. Learned counsel for the appellant contends that the judgment passed by trial court is against the criminal administration of justice; that the impugned judgment is perverse and shocking; that the trial Judge while awarding the conviction has not considered the material contradictions made in the evidence of the PWs; that no independent witness has been cited by the prosecution and both the PWs are Excise personnel; that the complainant has failed to collect any private person of locality to act as mashir; he also contended that the alleged charas has been foisted upon the appellant, he, therefore, prays for his acquittal. Learned counsel for the appellant has referred the case law reported as Ameer Zeeb v. State (PLD 2012 SC 380), 2013 SCMR 302, 2007 PCr.LJ 426, 2011 SCMR 984, 2012 YLR 1316, 2012 PCr.LJ 886, 2012 YLR 1372 and 2007 SCMR 206.

8. On the other hand, learned APG for the State has vehemently opposed the acquittal of the appellant on the ground that appellant is nominated in the FIR; that the alleged charas has been recovered from the possession of present appellant; that the offence committed by the appellant is heinous one and against the society; that there are some ignorable minor contradictions in the evidence of PWs and the prosecution has established its case against the appellant beyond any shadow of doubt. He referred to the case-law reported as PLD 2009 SC 39, 2008 SCMR 742 and PLD 2010 SC 1052. 9 We have heard the learned counsel for the appellant and learned APG for the state and perused the record.

10. Perusal of the record shows that 269 kilograms charas was recovered the possession of appellant by the police party led by SIP Ghulam Nabi Korai on 23.11.2007. 15 KGs charas as representative sample from the 269 kg charas recovered from the possession of appellant was sent to the chemical examiner for analysis and the report in that regard has been received in positive. Therefore, for safe administration of justice it may be concluded that the appellant was liable to be held responsible for having only 15 KGs of charas in his possession which offence attracts provision of section 9(c) of the CNS Act, 1997. The quantum of sentence as provided in case of Ghulam Murtaza and another v. The State for the quantity of charas of more than 10 KGs is R.I. for life or death. In the instant case the appellant has been convicted by the learned trial court for life imprisonment and fine of rupees one million. Following the dictum laid down by the August Apex Court in case reported as Ammer Zeeb v. The State (PLD 2012 SC 380), Mst. Nasreen Bibi v. State (2014 SCMR 1603), Abdul Sattar v. State (2016 SCMR 909) and Para Din v. State (2016 SCMR 806).

11. So far delay in sending the sample to the chemical analyser is concerned, suffice it to say that the language employed in Rules 4 to 5 of the Control of Narcotic Substance (Government Analysts) Rules, 2001 coupled with the fact that no consequences for breach have been provided, make the rules advisory and not mandatory. These rules control the substantive provisions of C.N.S.A. and to apply in such a manner that its operation would not frustrate the purpose of the Act under its operation which these rules are framed. Furthermore, failure to follow' the rules would not render the search, seizure and arrest under the C.N.S.A absolute nullity and non-est. Since there was no objection that the contraband was unsealed or tampered with or manipulated, therefore delay would not affect the result of analysis. In this regard reliance may be placed on the cases reported in 2006 MLD 1121 and PLD 2006 Peshawar

39. In the case reported in PLD 2009 SC 39 it has been held by the Honourable apex court as under:-- "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 quarters for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. It was for the accused to have taken such plea before the trial Court but the appellant did not do so." 12 After evaluating the evidence we are of the considered view that the prosecution has succeeded in establishing its case beyond any shadow of doubt. The trial Court has already taken lenient view by awarding life imprisonment to the appellant therefore, we see no merits to interfere in the impugned judgment hence the conviction and sentence awarded to the appellants by the trial Court is hereby upheld. Consequently this appeal is hereby dismissed.

13. These are the reasons for the short order dated 25.5.2017. JK/B-13/Sindh Appeal dismissed.