' Criminal Appeal No,86 of 2004 is directed against the judgment dated 16-9-2004 passed by Mr. Jan Muhammad Khan, learned Additional Sessions Judge-II, Lakki Marwat, whereby appellant Mashal Khan son of Dost Muhammad, resident of Tajori, Tehsil and District Lakki Marwat was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and .Sentenced to undergo two years' R.I. With benefit of section 382-B, Cr.P.C.
2. The prosecution story in brief is that on 9-7-2000 at 20-00 hour's complainant Haq Nawaz, A.S.-I., Police Station Naurang along with a police party was on routine "Gasht" of the area, when a person, who disclosed his name Mashal Khan son of Dost Muhammad, resident of Tajori, was stopped for 'checking. His personal search led to recovery of heroin wrapped in a plastic envelope from his side pocket. The heroin was weighed and found eleven grams. One gram was separated for chemical analysis and the remaining was sealed in a parcel. Mashal Khan was arrested and a case under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 was registered against him at Police Station Naurang vide No,234 dated 9-7-2000.
3. Charge against the appellant was framed to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case and substantiate the charge, examined three witnesses in all namely F.C. Gul Nawaz (P.W.1), A.S.-I. Saadullah (P.W.2) and A.S.-I. Haq Nawaz (P.W.3). The appellant in his statement recorded under section 342, Cr.P.C. Repudiated the prosecution allegations and claimed to have been falsely charged. He neither appeared as his Own witness as required under section 340(2), Cr.P.C. Nor produced any evidence in defence.
4. Mr. Muhammad Farid Khan Maidadkhel, Advocate for the appellant mainly contended that the impugned judgment and order of conviction is manifestly against the law, facts and material available on the record of the case and findings and conclusions arrived at, are on the face of it, erroneous and illegal and not sustainable. He also submitted that the requirements of section 103, Cr.P.C. Had not been complied with in the sense that despite availability of independent and impartial witnesses, the same were not associated with recovery proceedings. He further submitted that the complainant of the instant case has played double role in the case which has made the investigation doubtful. Concluding the arguments, the learned counsel maintained that the alleged sample of one gram heroin was sent to the Laboratory for chemical analysis after 19 days of its recovery and late dispatch is sufficient to create doubts in the prosecution case. To argument the submissions, he placed reliance on the following (1) Tariq Parvez v. The State 1995 SCMR 1345, (2) Sarwar Jan v. The State 2004 PCr.LJ 1224, (3) Mian Gul 'Bacha Khan and another v.
The. State PLD 2004 Pesh. 246, (4) Mahmood Khan v. The State 2002 PCr.LJ 1402 (Peshawar), (5)
Noor Hussain v. The State 1996 PCr.LJ 181 (F.S.C.), (6) Johar Ali and another v. The State 2Q03 PCr.LJ 680 (Peshawar) and (7) Kamil Zaman v. The State 1999 PCr.LJ 1546 (Peshawar).
5. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State, on the other hand, supported the impugned order of conviction and maintained that appraisal of evidence made by trial Court is not in conflict to the principles laid down by the august Supreme Court and there is no flaw in the findings regarding guilt of the appellant for interference of this Court.
6. I have heard at length the arguments and submissions of learned counsel for the parties in the light of material available on the file and the case-law cited at the Bar.
7. The prosecution in order to prove the factum of apprehension of the appellant and recovery of the heroin from his possession has produced F.C. Gul Nawaz (P.W.1) and A.S.-I. Haq Nawaz (P.W.3).
Both the witnesses have demonstrated complete unanimity on all important aspects of the case and the appellant has remained unable to point out any discrepancy or infirmity in their statements so as to damage the prosecution case. The evidence of the prosecution is very convincing and the witnesses had no enmity or grudge or motive to falsely implicate the appellant in this case. Rather they are consistent regarding the time, place of occurrence and the recovery of heroin in question and the manner in which it has been effected. Both the witnesses were subject to lengthy and combing cross-examination but nothing favorable could be extracted from their mouth.
8. Adverting to the objection regarding delay in dispatch, no doubt it is true that the recovery of contraband heroin is alleged to have been made on 9-7-2000 and parcel was received in the office of Chemical Examiner on 28-7-2000 after a delay of 18/19 days but it is equally true that delay in sending recovered material to the concerned quarter for opinion cannot be treated fatal in absence of objection regarding the same having been tampered with or manipulated. No such objection regarding tampering or manipulation was raised by the learned counsel for the appellants. Thus, the delay becomes immaterial as held by this Court in Mst. Bibi Aisha and another v. The State 2004 YLR 2731 (Peshawar).
9. 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 provisions of section 103, Cr.P.C. Has been excluded under the provisions of section 25 of the Control of Narcotic Substances Act, 1997 and the provisions of section 20 of the Act are directory in nature, 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 circumstance. There is consistent opinion of the superior Courts that police officials are competent witnesses of recovery memo. And their statement cannot be discarded merely for the reason that they belong to police department as held in Fida Jan v. The State 2001 SCMR 36 and Mian Gul Bacha Khan and another v.
The State PLD 2004 Pesh.
246.
10. The argument of learned counsel for the appellant regarding various hats simultaneously worn by the Investigating Officer has also failed to impress me. There is no legal prohibition for a Police Officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not in any way, prejudice the accused person.
11. The conclusions drawn and reasons advanced by the trial Court show fair evaluation of evidence which is in accordance with settled principles of criminal jurisprudence. I find no illegality or infirmity in the impugned judgment, warranting interference of this Court. The authorities cited on behalf of the appellant are distinguishable and speak of the different situation.
12. For the aforesaid reasons, the appeal fails which is hereby dismissed and the impugned order of conviction and sentence is maintained.