' SAGHEER AHMAD QADRI, J.---Mst. Rasheeda Bibi wife of Safdar, appellant was apprehended by Sikandar Khan, S.-I. (P.W.3) who was Incharge of Police Post Jhari Kass as she was found travelling in a Hi Ace wagon bearing Registration No,4468 and from her possession 6 K.G. Charas was recovered which was secured into possession after separating sample and instant case under section 9(c) of the Control of Narcotic Substances Act, 1997 was registered vide F.I.R. No,53 dated 5- 4-2007 at Police Station Saddar Hassan Abdaal, District Attock.
2. After investigation report under section 173, Cr.P.C. Was submitted in Court and the appellant was charged in the afore-mentioned offence to which she pleaded not guilty and claimed trial.
3. Prosecution examined as many as five witnesses in order to prove the charge. P. W.1 Sukhawat Hussain, Constable carried the seared parcel to the office of Chemical Examiner which was provided to him by P.W.4 Muhammad Hayat, Constable. P.W.2 Zahid, Constable was one of the recovery witness who supported the contents of the complaint (Exh.PC) while Sikandar Hayat, S.-I.
Complainant/I.O. Appeared as P.W.3 who also reiterated the stand mentioned in the F.I.R. (Exh.PC/1).
4. After closure of the prosecution evidence the learned trial court examined the appellant on 14-5- 2008 under section 342, Cr.P.C. Wherein she asserted her false implication in this case as she was going with her son Shah Nawaz to Haripur to the clinic of one Hakeem. Nothing was recovered from her possession.
5. The learned trial Court after conclusion of trial vide judgment dated 30-5-2008 convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1979 and sentenced to 4 years' R.I. With fine of Rs,5000 and in default of payment thereof to undergo further imprisonment for one month's S.I. Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellant.
6. Feeling aggrieved by that judgment the appellant has challenged her conviction and sentence through this criminal appeal.
7. Learned counsel for the appellant agitated the only ground before this Court that according to the record P.W.3 Sikandar Hayat, S.-I. Was the complainant of the F.I.R. (Exh.PC/1) and at the same time he was the Investigating Officer and a recovery witness which has prejudiced the interest of the appellant in this case. Reliance is made to State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408. It was further agitated by the learned counsel for the appellant that all the witnesses cited and examined in this case were the police officials and no private witness was associated nor examined by the prosecution; that search was not conducted by a Lady Constable; that appellant was a previous non-convict; that the sentence otherwise is too severe according to the recovery and circumstances of the case. Prayed that appeal be allowed and impugned judgment be set aside and appellant be acquitted of the charges. Relies on Nazir Ahmad v. The State PLD 2009 Kar.191.
8. On the other hand, learned counsel for the State has vehemently opposed this appeal on the ground that prosecution examined P.W.1 Sakhawat Hussain Moharrir, who kept the parcels and sent the same to the office of Chemical Examiner, P.W.2 Zahid Akhtar one of the recovery witnesses and P.W.3 Sikandar Khan S.-I. The complainant and Investigating Officer of the case; that report of the Chemical Examiner was also submitted as in the positive. So far as the objection raised by the learned counsel for the appellant that complainant was the Sikandar S.-I. Who was the Investigating Officer as well, therefore, due to that illegality and irregularity case of the appellant becomes doubtful. It was argued that this point has already been thrashed out by the court in the judgment reported as Mst. Ajab Sultana and another v. The State 2003 PCr.LJ 82. Prayed that the appeal be dismissed.
9. We have considered the contentions raised by learned counsel for the parties and perused the record thoroughly.
10. If the F.I.R. Exh.PC/1 is seen, which is recorded on the basis of "Marasla" Exh.PC sent by Sikandar S.- I. Incharge Police Chowki Jhari Kass, wherein he mentioned that he was present at the alleged place of recovery when appellant was brought out from the Hiace Wagon and he possessed a black coloured Rexene Bag containing four packets of A Charas weighing six Kg. i,e, 1500 gram each was recovered, out of which 10 gram was separated for chemical analysis and sealed the same into sample parcel, while remaining Charas was sealed in the parcel Exh.P2 and secured vide memo. Exh.PA attested by Zubair Hayyat A.S.-I. Given up P.W. And Zahid Akhtar Constable. The prosecution has examined total five witnesses and also brought on record the report of/ Chemical Examiner Exh.PE in positive. The point raised by learned counsel for the appellant that the Investigating Officer Sikandar Hayyat S.-I./P.W.3 is the person who conducted the raid, apprehended the appellant and also being a complainant lodged the report vide Marasla Exh.PC on the basis of which F.I.R. Exh.PC/1 was registered, therefore, being the complainant as an interest witness could not act as Investigating Officer and thus the investigation was not in accordance with law, which vitiates whole of the proceedings. Learned counsel mainly relied on The State v.
Bashir and others PLD 1997 SC 408.
11. If the above cited judgment is seen, their lordships of honourable Supreme Court of Pakistan in some of the circumstances have deprecated the practice that a complainant be not act as an Investigating Officer but at the same time it has also been observed that for that purpose an accused must prove that by acting so by a police officer i,e, the complainant as well as the Investigating Officer what prejudice was caused to the accused. It is not held by the honourable Supreme Court of Pakistan in said judgment that invariably in all cases if a complainant becomes an Investigating Officer the proceedings will be liable to be quashed. The exact observation by the honourable Supreme Court of Pakistan is hereby reproduced:-- "Adverting to the above first submission of Mr. M.M.Aqil that since Shamim Ahmed was the complainant in the case as well as the Investigating Officer, the trial vitiated, it may be observed that in support of his above submission he has referred to the case of Aksar Khan v. The State 1995 WILD 1237, in which a learned Single Judge of the Peshawar High Court, while dealing with an appeal of a convict under section 13 of the Explosive Substances Act, 1908, inter alia held that a Police Inspector could not legally assume dual function as a complainant and also as an Inspector as it had rendered the trial a sheer mockery. We are unable to subscribe to the above broad legal proposition. 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. The Court will have to appraise the evidence produced by the prosecution as a whole and will have to form the opinion after evaluating the same"
12. The above-mentioned view subsequently was further adopted by another honourable Division Bench of Peshawar High Court in the judgment reported as Mst. Ajab Sultana and another v. The State 2003 PCr.LJ 82 whereby it was specifically held that a complainant in such like cases until and unless it is proved on record that any prejudice was caused to the accused, is a competent witness and by mere this reason his statement cannot be ruled out of the consideration. In the case in hand, the learned counsel for the appellant during the trial did not raise any such objection nor any suggestion was put to the witness P.W.3 Sikandar. So far as the objection raised by learned counsel for the appellant about the non-association of any private witness is concerned, this objection has no substance as under section 25 of the CNS Act, 1997 application of section 103, Cr.P.C. Has been excluded from the proceedings/recoveries under this special enactment. Reference can be made to Fida Jan v. State 2001 SCM R 36. The relevant portion of the observation by their lordships of Supreme Court of Pakistan is hereby reproduced:-- "It was next contended by learned counsel that compliance of section 103, Cr.P.C. Was mandatory in view of judgment of this Court in the case of State v. Bashir and others PLD 1997 SC 408. This judgment has not rendered any help to him because under section 25 of the Act application of section 103, Cr.P.C. Has been excluded. This aspect of the case has been thoroughly discussed in the impugned judgment by the learned Judges of the High Court and the findings recorded in this behalf admits no interference. Accordingly contention of the learned counsel is overruled."
13. In the light of the above discussion, there is no merit in this appeal, which is hereby dismissed.