' CH. EJAZ YOUSUF, J.---This appeal is directed against judgment, dated 3-3-1997 passed by the learned Additional Sessions Judge, Peshawar whereby the respondent has been acquitted of the charge under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979.
2. The facts of the case, in brief, are that on 13-11-1991 at about 17-30 hours local police personnel were on usual Satrol duty on Charkhana Road. On receiving information that accused/respondent was selling herein, a decoy purchaser was sent to him by DFC Muhammad Yousaf. The accused/respondent was apprehended and his personal search was carried out which led to the recovery of 25 grams of heroin. Complaint Exh.PA/1 was accordingly written and sent to the Police Station, Bhana Mari, District Peshawar for formal registration of the case. After taking out one gram of heroin as sample, for sending to the Chemical Examiner, under a sealed cover, the remaining 24 grams of heroin was seized and sealed on the spot in presence of the witnesses vide recovery memo. Exh.P.C. Investigation was carried out and on completion thereof the accused/respondent was challenged to the Court for trial.
3. Charge was according') framed to which the accused7respondent pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations leveled against the respondent produced four witnesses, in all. P.W.1 Fazal Karim S.-I. Had on the receipt of complaint/Murasila Exh.PA/1 incorporated its contents into the F.I.R. Exh.PA. P.W.2 Shah Ali Kiyyani on the completion of investigation had submitted challan in the case. P.W.3 Noor Muhammad, A.S.-I.
On the receipt of information regarding selling of heroin had raided the place of occurrence. In. His 'presence, the accused/respondent was apprehended and his search led to the recovery of 25 grams of "heroin". P.W.4 Muhammad Yousaf, DFC on receipt of m information regarding selling of "heroin" had arranged and sent decoy purchaser to the accused/respondent. He is also eye- witness of the occurrence and marginal witness of recovery memo. Exh.P.C. Vide which the contraband material was recovered from the possession of accused/respondent.
5. On the conclusion of prosecution evidence the accused/respondent was examined under section 342 as well as 340(2), Cr.P.C., wherein he denied the Charge and pleaded innocence. He, however, produced one witness namely Sharif Gul alias Sharif Khan in his defence.
6. After hearing arguments of the learned counsel for the parties the learned trial Court acquitted the accused/respondent of the charge, hence this appeal.
7. We have heard Rana Fazal-urRehman, Advocate, on behalf of the State/appellant, respondent Gul Afzal in person and have also perused the entire record with their help.
8. Rana Fazal-ur-Rehman, Advocate, learned counsel appearing on behalf of the State has urged that acquittal of accurse/respondent has been recorded primarily and solely for the reason that since P.W.3 Noor Muhammad, A.S.-I., the complainant had also investigated the case and such practice was disapproved by the humble High Court of Peshawar in the case reported as 1996 PCr.LJ Peshawar 1811, therefore, the accused/respondent deserved to be acquitted. Learned counsel for the State maintained that since investigation carried out by the complainant had not prejudiced the accused/respondent in any way, therefore, the learned trial Court ought to have evaluated the entire evidence and decided the case on merits, notwithstanding the fact that investigation of the case was carried out by the complainant. He maintained that since needful was not done, therefore, the case be remanded to trial Court for its decision afresh in accordance with law.
9. The accused/respondents present in Court. He has stated that he, having no means to engage a counsel, would address the Court himself. In reply to the submission made by the learned counsel for the State he has stated that he would have no objection in case the matter is remanded to the trial Court for its decision afresh in accordance with law.
10. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the record of the case minutely.
11. No doubt in the case Ishfaq Ahmad v. State 1996 PCr.LJ 1811 it has been laid down by a Single Bench of the humble Peshawar High Court that complainant police officer cannot legally act as an Investigating Officer and the fact by itself would render the very trial of the case, a sheer mockery yet, the controversy having been finally set at rest by the humble Supreme Court of Pakistan in the case State through Advocate-General, Sindh v. Bashir and another reported as PLD1997 SC 408, wherein it has been un-equivocally laid down that Police Officer is not prohibited in law to be a complainant if he is a witness to the commission of the offence and also to be an Investigating Officer, so long as it does not, in any way, prejudice the accused person, the learned Court below, while deciding the case was under obligation to decide the question as to whether or not prejudice was caused to the respondent, on account of the investigation carried out by the complainant.
12. It would be pertinent to mention here that as has been laid down by the Hon'ble Supreme Court of Pakistan in the case of Munawar Hussain and another v. State reported as 1993 SCMR 789, in narcotic cases, approach of the Courts should be dynamic and technicalities should be overlooked in the larger interest of the country and the public at large and the Court while deciding the case should consider the entire evidence as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding such procedural defects.
13. Reference in this regard may also be usefully made to the case of Muhammad Mumtaz v. State reported as 1997 SCM R 1011 wherein it has been further laid down by the Humble Supreme Court of Pakistan that illegality or material irregularity in trial would -not entitle convict to acquittal when huge quantity of narcotic is recovered and offence is heinous.
14. In view of above discussion there is no escape from remand of the case. Accordingly the impugned judgment, dated 3-3-1997 passed by the learned Additional Sessions Judge, Peshawar is set aside and the case is remanded to the trial Court for its decision afresh in accordance with law and in the light of above-referred judgments of the Humble Supreme Court of Pakistan. The parties are directed to appear before the trial Court on 7-2-2000. .