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Petitioner: MUHAMMAD AMIN VS Respondent: StateHonorable Justice IJAZ-UL HASSAN KHANNoor Alam Khan,Pir Liaqat Ali Shah
2006 P Cr
2006 P Cr. L J 1061
[Peshawar]
Before Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ
MUHAMMAD AMIN----Appellant
Versus
THE STATE----Respondent
Criminal Appeal No.522 of 2005, decided on 15th March, 2006.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Sentence, reduction in---Prosecution, in order to prove apprehension of accused and recovery of contraband Charas from his possession, had produced two witnesses---Both said witnesses had supported recovery of 1100 grams of Charas from possession of accused and their evidence had established recovery of Charas at given date, time and place and their incriminating statements, were enough to connect accused with commission of crime---Said witnesses, who were police officials, had made consistent statements on material points and accused had failed to point out any discrepancy in their statements---Contradictions pointed out by counsel for accused were so minor that on basis of those it could not be said that trial of case stood vitiated---Counsel for accused had not urged any rancour or animosity against prosecution witnesses with accused---Police witnesses were competent witnesses in the eyes of law and unless it could be demonstrated that police officials had any motive or reason to falsely implicate accused, their statements could not be discarded only because they happened to be employees of Police Department---In absence of any said motive or reason, Trial Court had rightly believed their evidence---Provisions of S.25 of Control of Narcotic Substances Act, 1997, had specifically excluded application of S.103, Cr.P.C.---Stance of accused that he had been implicated falsely in the case by police in order to show efficiency, had been found to be without any substance---Accused could not point out any serious defect in investigation, other than certain minor lapses which did not affect the validity of the trial---Delay in receiving samples by Forensic Science Laboratory and in submitting report, was not fatal and would not render seizure invalid in the eye of law---In absence of any illegality or infirmity in impugned judgment of the Trial Court warranting interference of High Court, same was maintained---Sentence awarded to accused, however, being not commensurate with the quantity of contraband Charas, was reduced from 5 years to 3 years' R.I. and amount of fine was also reduced from Rs.20,000 to Rs.10,000 accordingly.
Mirza Shah v. State 1992 SCMR 1475 ref.
(b) Control of Narcotic Substances Act (XXV of 1997)----
---S. 9(c)-Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Appreciation of evidence---Delay in dispatching sample for analysis---Effect---Accused had contended that as samples separated from contraband Charas was dispatched for analysis beyond seventy two hours, report received from Forensic Science Laboratory was illegal and had rendered seizure invalid_ in the eye of law---Contention was repelled because Rr.4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, had placed no bar on Investigating Officer to send samples beyond seventy two hours of the seizure---Said Rules were directory and not mandatory and same could not control substantive provisions of Control of Narcotic Substances Act, 1997---Failure to follow said Rules would not render search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and non-est and make entire prosecution case doubtful, except for consequences provided in Control of Narcotic Substances (Government Analysts) Rules, 2001---Substantial compliance of directory provisions was sufficient and even where there was no compliance at all, act was not invalidated by such non-compliance, if the act otherwise was done in accordance with law---Delay, otherwise in sending incriminating articles to concerned quarter for expert opinion could not be treated fatal in the absence of objection regarding same having been tampered with or manipulated.
Noor Alam Khan for Appellant.
Pir Liaqat Ali Shah, Addl. A.-G. for the State.
Date of hearing: 15th March, 2006.
JUDGMENT
IJAZ-UL HASSAN KHAN, J.---This criminal appeal calls in question the judgment dated 21-6-2005, recorded by learned Additional Sessions Judge/Judge Special Court, Mardan at Takht Bhai, whereby he convicted Muhammad Amin appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to five years' R.I. and a fine of Rs.20,000 or in default to, undergo further S.I. for one month. The benefit of section 382-B, Cr.P.C. was extended to the appellant.
2. The prosecution story in brief is, that on 25-4-2003 at 9-30 a.m., complainant Pir Shahab Ali Shah, S.H.O., Police Station, Takht Bhai along with other police officials was on routine 'Gasht' in Takht Bhai Bazaar, when he came across a young man roaming in suspicious condition. The man was holding a black shopping bag in his hand. The bag was opened. It contained 'Pukhta Charas'. The Charas was weighed and found 1100 grams. On asking, he disclosed his name as Muhammad Amin son of Amir Rehman, resident of Mazdoor Abad, Tehsil Takht Bhai District Mardan. A meagre quantity i.e. 4 grains each was separated out of the seized quality for the purpose of chemical analysis and the remaining was sealed into a parcel. The accused was arrested and a case was registered against him vide F.I.R. No.331 dated 25-4-2003, Police Station Takht Bhai.
3. The prosecution in order to establish the charge produced two witnesses, namely, S.H.O. Pir Shahab Ali Shah (P.W.1) and F.C. Sher Ali (P.W.2). The accused in his statement recorded under section 342, Cr.P.C. refuted the prosecution allegations and claimed to have been charged falsely. He pleaded innocence and declined to make statement on oath under section 340(2), Cr.P.C. or to produce any defence evidence.
4. Appearing on behalf of the appellant, Mr. Noor Alam Khan, Advocate argued that the appellant was convicted on very highly flimsy, doubtful and interested witnesses of prosecution; that the trial Court is manifestly wrong and the evidence produced by prosecution does not connect the accused with the commission of crime; that the prosecution evidence was replete with serious infirmities and flaws; that the provisions of 103, Cr.P.C. have been flagrantly violated; that there was unexplained delay in sending the samples to the Chemical Examiner and that the investigation has not been carried out honestly. Concluding the arguments, the learned counsel contended that the sentence awarded to the appellant is excessive and does not commensurate with the crime.
5. Pir Liaqat Ali Shah, learned Additional Advocate-General appearing on behalf of the State, controverting the' arguments of the learned appellant's counsel, and maintained that prosecution has succeeded to prove its case beyond any shadow of doubt; that recovery of huge quantity of Charas from the possession of the appellant was satisfactorily proved and statements of prosecution witnesses could not be shattered by the defence in spite of lengthy cross-examination.
6. We have heard the arguments of learned counsel for the parties at some length and have gone through the record with their assistance.
7. The prosecution in order to prove the apprehension of the appellant and recovery of contraband Charas from his possession has produced two witnesses i.e. Pir Shahab Ali Shah and Sher Ali. Both these witnesses have supported the recovery of 1100 grams of Charas from the possession of the appellant. .Their evidence has established that the Charas in the above quantity was recovered from the possession of the appellant at the above given date, time and place. Incriminating statements of the prosecution witnesses on oath were enough to connect the appellant with the commission of crime. Defence could not prove as to why police would involve the appellant falsely specially when none of the police party had any enmity against him. The prosecution witnesses, who are police officials, had made consistent statements on material points and the appellant had failed to point out any discrepancy in their statements. Contradictions pointed out by the learned counsel for the appellant are so minor that on the basis of those it cannot be held that trial of the case stood vitiated. Material discrepancies alone which come in conflict with the material probabilities and militate against the credibility of witnesses justify the rejection of testimony. The learned counsel for the appellant has not urged any rancour or animosity against the police officials/P.Ws. with the appellant. It is settled law that policewitnesses are competent witnesses in the eyes of law and unless it could be demonstrated that police officials had any motive or reason to falsely implicate the accused, their statements could not be discarded only because they happened to be employees of Police Department. The learned trial Court, therefore, has rightly believed their evidence.
8. Adverting to the objection regarding violation of section 103, Cr.P.C., it may be noticed that section 25 of the Control of Narcotic Substances Act, 1997, specifically excludes the application of this provision of Cr.P.C. In this regard, reliance can be placed on case captioned Mirza Shah v. State 1992 SCMR 1475.
9. The stance of the appellant that he has been implicated falsely in this case by the police in order to show efficiency has been found to be without any substance. Nothing in support of the same was brought on the record by the appellant to believe that it was actually so.
10. Learned counsel for the appellant also submitted that there were some serious lapses in the process of investigation which had vitiated the trial. However, he has not been able to point out any so-called serious defect in the investigation, other than certain minor lapses which do not affect the validity of the trial.
11. Learned counsel for the appellant further contended that the samples separated from the contraband Charas were received by Forensic Science Laboratory, Peshawar, at belated stage after considerable delay of seizure, whereas the report prepared was sent on 24-5-2003 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 of 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 the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated.
12. Pursuant to above discussion, finding no illegality or infirmity in the impugned judgment, warranting interference of this Court, we dismiss the appeal and maintain the impugned judgment. As regards quantum of sentence, we feel that same does not commensurate with the quantity of contraband Charas. We, therefore, while maintaining the C' conviction of the appellant, reduce sentence from 5 years to 3 years' R.I. and also reduce the fine from Rs.20,000 to Rs.10,000 or in default to undergo one month's S.I. The benefit of section 382-B, Cr.P.C. shall remain available to the appellant. With this modification, the appeal stands dismissed.
H.B.T./79/P???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.