' IJAZ-UL-HASSAN KHAN, J.--- The appellant namely Akbar Khan through instant Criminal Appeal No,111 of 2003 has challenged judgment, dated 25-10-2003 passed by learned Additional Sessions Judge-III, Bannu whereby he was convicted under section 9 of the Control of Narcotic Substances Act, 1997 and sentenced to suffer five years' R.I. And fine of Rs,20,000 or in default of payment of fine, to undergo further six months' S.I. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. Shortly narrated facts of the case are that on 4-10-2002 at 11-00 hours Nazif Shah, S.H.O., Police Station, Saddar alongwith police party was on routine Gashe. When he reached General Bus Stand, he found a person carrying 5 buckets (Balties). The bottoms (URDU TEXT) of the buckets were found heavy. On opening, Charas weighing 1100, 1200, 900, 1250 and 1300 grams respectively total weighing 5750 grams was recovered from the bottoms of the buckets. Four grams from each bucket were separated for chemical analysis while the remaining quantity was sealed into parcel.
On asking, .The accused disclosed his name as Akbar Khan son of Pir Ghulam, Caste Awan, resident of Kotka Mustajab Dakhli Sokari Karim Khan, District Bannu. Accused was arrested. Murasila (Exh.P.W.2/1) was drafted by complainant Nazif Shah, S.H.O. Under section 9 of the Control of Narcotics Substances Act, 1997 which was sent to police station for registration of the case where its contents were correctly incorporated into F.I.R. By Murad Ali A.S.H.O. (P. W.1).
3. The appellant was charged under section 9 of the Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case against the appellant, examined three witnesses in all. Appellant was examined under section 342, Cr.P.C.
Wherein he denied the prosecution allegations and professed innocence. He neither appeared as his own witness on oath as required under section 340(2), Cr.P.C. Nor produced defence.
4. Upon consideration of the material available on file, the learned trial Court convicted and sentenced the appellant as mentioned above.
5. Mr. Khawaja Nawaz Khan, Advocate for the appellant submitted that the recovery was made in a clandestine manner and it had also not been witnessed by any independent person; that the complainant of the case has combined in himself the functions of complainant, Investigating Officer and a witness which makes the case of prosecution doubtful and that the learned trial Court has not appreciated and evaluated the prosecution evidence in its true perspective and committed an error while passing the order of conviction and that the prosecution evidence is vague and self-contradictory which cannot be relied upon. He placed reliance on Abdul Waheed v.
The State 1999 PCr.LJ 1595 and Budho Malghani v. The State 2002 M LD 1293.
6. On the contrary, Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State controverted the arguments raised by learned counsel for the appellant, maintaining that the appeal is liable to be dismissed because the conviction was based on solid evidence; that the prosecution has proved its case beyond any shadow of doubt and the minor discrepancies appearing in the prosecution evidence do not damage the case of prosecution on its material points. To substantiate the pleas, he relied on Muhammad Khan v. The State 1994 SCM R 1543.
7. We have heard at length the arguments of learned counsel for the parties in the light of available record.
8. The case of the prosecution is that on 4-12-2002 complainant Nazif Shah was on routine `Gashe when he apprehended accused Akbar Khan roaming in suspicious condition at General Bus Stand, Bannu. The accused was carrying five steel buckets tied with each other. The bottoms of the buckets were found heavy. On opening the bottoms of the buckets, Charas weighing 5750 grams was recovered. Memo. To this effect was prepared at the spot. A small quantity of Charas was separated out of the bulk and sent to Chemical Examiner, F.S.L. Peshawar for analysis. The report of the Chemical Examiner (Exh.P.W.2/5) is in positive. To prove the factum of recovery, the prosecution has produced two witnesses namely Nazif Shah S.H.O. (P.W.2) and Karim Khan constable'(P.W.3).
They have fully supported the prosecution case. They were subjected to lengthy and searching cross-examination but nothing material could be elicited to shake their credibility. The presence of the appellant at the spot has not been denied. Stance of the appellant is that he had no hand in the offence and that the Charas was planted. The submission of the appellant has not impressed us. Police has no enmity, motive or any other malice against the appellant to have falsely implicated him in the present case. The appellant was examined under section 342, Cr.P.C. Could not explain as to why the complainant Nazif Shah S.H.O. And Karim Khan constable deposed against him. Mere assertion that it was a false case and he was involved due to enmity, does not in any manner explain or absolve the appellant at least from pointing out the reason or circumstance due to which'he was implicated.
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 provision of section 103, Cr.P.C. Has been excluded under the provision of section 25 of the Control of Narcotic Substances Act, 1997 and the provisions of section 20 of the Act are directory in nature, therefore, its non B compliance cannot he considered as a strong ground for holding that the trial of the appellant is bad in the eye of law as held in Buner Gul v. The State 1999 PCr.LJ 728.
10. It is a settled principle of the construction of statutes that when in an enactment a special procedure has been laid down and a special provision has been made on a particular subject then a general provisionlc does not apply to the subject.
11. It needs no reiteration 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. Testimony of a police official cannot be discarded only on the ground that he is a police official. Official witnesses are as good as private witnesses. In this context, there is a wealth of case-law on the point that police officials are competent witnesses to attest a recovery memo. There is consistent opinion of the superior Courts that police officials are competent witnesses of recovery memo. And thus, contention of the learned counsel would not cut much ice to absolve the appellant from the circumstance of recovery of Charas from his possession. Fida Jan v. The State 2001 SCM R 36.
12. The argument of learned counsel for the appellant regarding various hats simultaneously worn by the Investigating Officer has also failed to impress us. In State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408. It was held, "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."
13. It was also contended by learned counsel for the appellant that on material particulars, prosecution evidence is inconsistent, contradictory and doubtful, therefore, the same even in absence of defence evidence cannot result into conviction of appellant. This submission is also without force. The discrepancies pointed out by the learned counsel are of no significance. Anyhow, they do not go to the root of the case.
14. So far as the cases cited by learned counsel for the appellant are concerned, each criminal case stands on its own footings. The facts and circumstances in one case may not be quite similar on all fours to the other. There may be circumstances so as to give benefit of doubt to the accused.
But in the instant case, we are fully satisfied that the prosecution has been successful in proving its case against the appellant and no exception can be taken to the judgment of the trial Court.
15. Resultantly, the appeal being meritless is dismissed. Conviction and sentences recorded by the trial Court are maintained. The appellant shall be entitled to benefit of section 382-B, Cr.P.C.
16. We had, by our short order dated 1-4-2004, dismissed the appeal and maintained the conviction and sentence of the appellant for reasons to be recorded later. Above are the detailed reasons.