2006 P Cr (PLP)

IJAZ-UL-HASSAN KHAN, J.

In this appeal Niaz Muhammad appellant has called in question the judgment, dated 24-8-2005, passed by the learned District and Sessions Judge/Judge Special Court, Charsadda, whereby he was convicted and sentenced for an offence under section 9(b) of the Control of Narcotic Substances Act, 1997, to suffer six months' R.I. with a fine of Rs.1,000 or in default to undergo one week S.I. The trial Court also extended benefit of section 382-B, Cr.P.C. to the appellant.

2. Case of the prosecution in brief is, that on 14-11-2001, S.-I. Muhammad Siddique (P.W.3) along with other police officials was on routine "Gasht" of the area, when he received information that Niaz Muhammad accused was present in his house busy in selling Charas. The police party started towards the house of the accused. On seeing the police party, the accused threw away the plastic envelopes and succeeded to disappear in the nearby "Abadi". The plastic "Guthi" contained Charas. The Charas was weighed and found 500 grams. A meagre quantity i.e. 4 grams was separated out of the bulk for analysis and the remaining was sealed into a parcel. Sample of sealed parcel was sent to office of Chemical Examiner whose report confirmed the contents to be that of Charas. The accused was formally arrested and a case was registered against him under section 9 of Control of Narcotic Substances Act, 1997.

3. At the trial, the prosecution in order to prove its case produced four witnesses in all, out of whom H.C. Waliur Rehman (P.W.2) is marginal witness to the recovery memo. Exh.P.R., while Inspector Muhammad Siddique Khan (P.W.1) and Sub-Inspector Momin Khan (P.W.3) carried out investigation and after completing necessary formalities, submitted challan against the accused in Court.

4. After the close of the prosecution case, the appellant was examined under section 342, Cr.P.C. He pleaded not guilty, professed innocence and claimed to have been falsely charged. He, however, did not opt to produce evidence in his defence or to depose on oath in disproof of the allegations appearing against him in the prosecution evidence.

5. Mr. Mushtaq Ahmad, Advocate appearing on behalf of the appellant vehemently contended that the conclusions of the learned Court below on all crucial features of the case are imaginary and speculative rather than on solid tenable evidence; that the trial Court has misread and misappreciated the evidence and there is no cogent evidence on record which could connect the appellant with the commission of crime; that there are glaring contradictions and discrepancies in the statements of the prosecution witnesses, of which the trial Court has not taken notice of, moreso the defence version which was more plausible and nearer to the truth, was ignored without cogent reasons, that the prosecution witnesses produced at the trial are highly interested and inimical towards the appellant specially S.-I. Momin Khan and S.H.O. Muhammad Siddique and that the provisions of law applicable to the search/recovery of alleged search have been seriously violated by the Investigating Officer for reasons not far to seek and that the impugned judgment is not sustainable and is liable to be set aside.

6. Responding to the arguments of learned counsel for the appellant, Mr. Nizar Muhammad, learned Deputy Advocate-General maintained that prosecution has brought sufficient material on the record to connect the appellant with the commission of crime and in absence of any ill-will or animosity on the part of the police, such quantity of Charas cannot be expected to be planted on the appellant. He reiterated that the findings of the trial Court could not be shown to have been passed on misreading or non-reading of evidence. The trial Court appraised that evidence existing on the record thoroughly and the judgment is based on correct application of law and proper evaluation of evidence.

7. We have heard at length the arguments and submissions of learned counsel for the parties and have also gone through the record of the case with their able assistance.

8. The prosecution in order to prove the factum of apprehension of the appellant and recovery of Charas has produced three witnesses namely, Inspector Muhammad Siddique Khan (P.W.1), H.C. Waliur Rehman (P.W.2) and S.H.O. Momin Khan (P.W.3). These witnesses A have fully supported the prosecution story. They have remained absolutely consistent, coherent and have resolutely withstood lengthy cross-examination. The defence has not been able to shatter their testimony or pinpoint any ill-will which may have been harboured by the said witnesses against the appellant. The mere fact that these witnesses belong to police department, by itself, cannot be considered a good ground to discard their statements. Muhammad Naeem v. State 1992 SCMR 1617 and Muhammad v. State PLD 1981 SC 635.

9. The objection of the learned counsel regarding non-compliance of the provisions of section 103, Cr.P.C. is also misconceived, inasmuch as section 25 of the Control of Narcotic Substances Act, 1997, specifically oust the applicability of section 103, Cr.P.C.

10. It is worth mentioning that raid was conducted as a result of tip off by S.-I. Muhammad Siddique (P.W.3) and S.H.O. Momin Khan (P.W.4) when they were on routine "Gasht" and it was not possible for B them to have completed the time consuming formalities at the cost of the disappearance of the appellant. The omission on the part of the Investigating Officer is not fatal. It does not vitiate the trial. In this regard reference can be made to Hayat Bibi v. Muhammad Khan 1976 SCMR 128 and Yaqoob Shah v. The State PLD 1976 SC 53.

11. The onward transmission of four grams sample taken out from total narcotic material recovered from 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 C has supported the prosecution story as well as recovery of narcotic in this case.

12. Learned counsel for the appellant also contended that the sample separated from the seized Charas was received by the F.S.L. on 20-12-2001, after considerable delay of the seizure, whereas the report prepared was sent on 12-2-2002 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 I 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. The Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 framed under section 77 of the C.N.S.A. provide as under:-- "

4. Despatch of sample for test or analysis. (1) Reasonable quantity of samples from the narcotic drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer incharge 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) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, 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 serious 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 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 E 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 the concerned quarter for expert opinion cannot be treated fatal in the F absence of objection regarding the same having been tampered with or manipulated. Muhammad Mushtaq v. State PLD 2001 SC

107. We, as a result of the above discussion, have been constrained to hold that the prosecution has successfully brought home the guilt to the appellant beyond any shadow of reasonable doubt. The defence has miserably failed to extract any material discrepancies or contradictions from the statements of the P.Ws. The appellant did not appear as his own witness as required under section 340(2), Cr.P.C. to contradict the prosecution story which is also fatal to him The appeal fails which is hereby dismissed. The impugned judgment is maintained and upheld. H.B.T./571/P Appeal dismissed.