PLJ 2009 SC 920

[Appellate Jurisdiction]

Present: Javed Iqbal, Ijaz-ul-Hassan &

Muhammad Qaim Jan Khan, JJ.

FAIZ MUHAMMAD & another--Petitioners

versus

STATE--Respondent

Crl. P. No. 25-Q of 2009, decided on 22.5.2009.

(On appeal from the judgment dated 2.4.2009 of the High Court of Balochistan, Quetta, passed in Criminal Appeal No. 292/2007).

Control of Narcotics Substances Act, 1997--

----S. 9 (c)--Arms Ordinance, 1965, S. 13-E--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence recorded against accused by trial Court--High Court dismissed appeal, assailed--Recovery of 60 packets containing 100 rods of charas and six straps of charas--Validity--High Court re-appraised the entire evidence by making thread bare examination of each piece of evidence--Held: No piece of evidence incriminating in nature produced by prosecution appears to have been misread, omitted from consideration or not appreciated in its true perspective--Evidence of prosecution witnesses about recovery of charas weighing 126 Kg and taking of sample from each of rod and slab could not be disputed by defence and report of chemical examiner also supported the case of the prosecution--Driver having the charge of vehicle for long journey is supposed to have knowledge with regard to contents and articles being transported in it--High Court neither reflect any mis--appreciation or non-reading of evidence nor suffer from any legal infirmity so as to make room for further consideration--Leave to appeal was dismissed. [P. 922] A

Mr. S.A.M. Quadri, AOR for Petitioner.

Nemo for State.

Date of hearing: 22.5.2009.

Judgment

Ijaz-ul-Hassan, J.--The petitioners, namely Faiz Muhammad and Muhammad Anwar, sons of Ali Muhammad Lehri, resident of Killi Sheikhan, Mastung, through this petition seek leave to appeal under Article 185(3) of the Islamic Republic of Pakistan, 1973, against judgment of learned Division Bench of the High Court of Balochistan, Quetta dated 02.04.2009, dismissing petitioners' Criminal Appeal No. 292 of 2007, upholding the conviction and sentence of life imprisonment with fine of Rs.50,000/- each, awarded to the petitioners by learned Special Judge, Control of Narcotic Substances, Lasbella at Hub by virtue of judgment dated 26.09.2007.

2. Facts of the case as gathered from the record are, that pursuant to spy information, stated to have been received on 4.3.2007 by complainant Muhammad Amin Lasi, SI/SHO, Police Station Sakran District Lasbella, that on the said date huge quantity of narcotics, arms and ammunitions will be smuggled/transported to Karachi from Quetta via `Sarona Khuzdar Shah Noorani' through a Land Cruiser bearing Registration No. BC-4912, a police party, headed by the complainant, laid `Nakabandi' at Langlohar check post. At about 1:30 p.m said vehicle arrived at the check post. Two persons were found sitting in the vehicle. On inquiry, driver of the vehicle disclosed his name as Faiz Muhammad and the person sitting with him on front seat introduced himself as Muhammad Anwar. As adequate facilities were not available at the check post, the vehicle was taken to police station. The search of the vehicle led to recovery of 60 packets (each weighing 01 k.g) containing 100 rods of charas and six straps of charas, from its secret cavities. From each of the rod and strap meager quantity was separated and sent for chemical examination. The remaining was sealed in separate parcels. Separate cases were registered against petitioners, one under Section 9(C) of the Control of Narcotic Substances Act, 1997 and the other under Section 13-E of the Arms Ordinance, 1965 vide FIR No. 07/2007 and 08/2007. Both the accused were arrested. After registration of the case and completion of investigation, challan was submitted against accused before the Court of Special Judge, Control of Narcotic Substances, Lasbella at Hub to face trial.

3. The prosecution, in order to establish its case, examined four witnesses in all. The petitioners in their statements under section 342 Cr.P.C. denied the prosecution allegations and claimed to have been falsely charged. The petitioners neither opted to record their statements on oath as envisaged under Section 340(2) Cr.P.C nor produced any witness in their defence.

4. At the conclusion of trial, upon consideration of the material placed before him, learned trial Court vide judgment dated 26.09.2007, convicted the petitioners under Section 9(C) of the Control of Narcotic Substances Act, 1997 and sentenced, them to suffer imprisonment for life with fine of Rs.50,000/- each and in default of payment of fine to further undergo simple imprisonment for six months. Benefit of Section 382-B Cr.P.C was extended. Feeling dissatisfied petitioners filed Criminal Appeal No. 292/2007, which has been dismissed through judgment impugned herein, as stated and mentioned above.

5. Appearing on behalf of the petitioners, Mr. S.A.M. Quadri, learned Advocate, heavily relying on Shah Wali and another vs. the State (PLD 1993 SC 32) and Zahoor Ahmed Anwan and another vs. the State (1997 SCMR 543) tried to convince us that the conviction and sentence awarded by the trial Court and upheld by the High Court is not a natural conclusion of the facts and circumstances of the case; that petitioners had no conscious knowledge that contraband material was concealed in the vehicle or they were owners of the material or the vehicle and that no samples were taken from each and every rod and slab, thus the petitioners were liable to be convicted for the weight of those rods and slabs from which actual pieces were cut and separated for chemical analysis.

6. On careful re-examination of the evidence brought on record and in the light of arguments addressed by learned counsel for the petitioners, we find that learned High Court while dismissing the appeal filed by the petitioners dealt with the contentions of learned counsel comprehensively, dilating upon each and every aspect of the case. The evidence which has been brought on record has rightly been appreciated by learned trial Court, determination whereof has been upheld by the learned High Court, assigning valid and cogent reasons. No illegality, irregularity or mis-appreciation of evidence could be pointed out persuading us to grant leave to appeal. The learned High Court has

re-appraised the entire evidence available on record by making thread bare examination of each piece of evidence supported with reasons based on record. No piece of evidence incriminating in nature produced by the prosecution appears to have been misread, omitted from consideration or not appreciated in its true perspective. The evidence of the prosecution witnesses about the recovery of charas weighing 126 k.g and taking of sample from each of the rod and slab could not be disputed by the defence and report of chemical examiner also supported the case of the prosecution. The petitioners were using uncommon route for transportation of charas, arms and ammunitions by concealing it in secret cavities of the vehicle, which reflects their knowledge. The driver having the charge of vehicle for long journey is supposed to have knowledge with regard to contents and articles being transported in it. The findings and judgments of trial Court as well as High Court neither reflect any mis-appreciation or non-reading of evidence nor suffer from any legal infirmity so as to make room for further consideration. Learned counsel though argued at length but could not point out any mis-reading or non-appraisal of evidence.

7. In view of above, finding no substance in this petition, we dismiss the same and decline to grant leave.

(R.A.) Leave refused.