MUHAMMAD AKHTAR SHABBIR, J.--- This judgment shall dispose of Jail Petition No,510 of 2006 and Criminal Petition No,96/P of 2006 as both of them have arisen out of the same consolidated judgment of the Peshawar High Court, Peshawar, dated 21-9-2006 in Criminal Appeals Nos.403 and 412 of 2005 filed by the convict-petitioners Aala Muhammad and Mehboob-ur-Rehman.
2. Both the convict-petitioners seek leave to appeal against the judgment of the Peshawar High Court, Peshawar, whereby their respective' appeals aforesaid were dismissed and their conviction under section 9 of the Control of Narcotic Substances Act, 1997 and sentence of life imprisonment as also fine of Rs,1,00,000 each in default of payment of fine to suffer further 5 years' R.I. Awarded to them by the learned Sessions Judge/Special Judge, Swat, was upheld.
2. Briefly stated the facts of the case are to the effect that on 4-4-2004 at 11-00 a.m. Yousaf Ali Khan, S.-I. (P.W.4) along with a police party intercepted a Car No,333-BRC at Check Post Gora for purpose of checking on suspicion. Five persons .Namely Muhammad Sajid, Tariq Ali, Sadiq Shah, Adnan and Mehboob-ur-Rehman along with driver Aala Muhammad were sitting in the car. They were searched but nothing illegal was recovered from them. Thereafter, the police carried out a thorough search of the car and recovered 18500 grams of Charas packed in 17 bags from the front and rear seats of the car. The same were taken into possession and four grams of Charas was separated from each bag and was sealed into separate parcels (Exh.P.A.I) for chemical examination. The accused were sent to Police Station Ghaleji where case F.I.R. No,261 was registered against them.
3. During the course of investigation, the four inmates of the car namely Muhammad Sajjad, Sadiq Shah, Tariq Ali and Irfan had been successful in proving their innocence, and were recommended to be discharged by the Investigating Agency and hence they got clean "chit", vide order of the Illaqa Magistrate, dated 22-4-2004. It is pertinent to mention here that the two convict-petitioners made confessional statements before Judicial Magistrate (P.W.2) and blamed each other for the commission of crime.
4. After completion of investigation, the petitioners were challaned to the Court for trial. The prosecution to establish its case against the petitioners-accused produced 5 witnesses out of whom P.W.2 is the Judicial Magistrate who recorded confessional statements of the accused Jehanzeb Khan. (P.W.3) is the marginal witness to recovery memo. (Exh.P.2). The Investigating Officer Yousaf Ali Khan appeared as P.W.4 and Abdul Aziz was examined as P.W.S. The accused- petitioners were charge-sheeted and when examined under section 342,Cr.P.C. They denied the charge and claimed trial. They however, showed ignorance as to whom the Charas belonged.
5. Learned counsel for the petitioners argued that the prosecution has failed to prove the allegation against the petitioners; no independent witness at the time of alleged recovery of narcotics has been associated by the police; the prosecution produced only police employees to establish its case; both the petitioners had resiled from their judicial confessions and they could not have been convicted on the basis of their such retracted statements. They had no knowledge of the concealment of the Charas.
6. We have heard the learned counsel for the petitioners and have examined the record with his assistance.
7. The prosecution to bring home the guilt of the accused-petitioners produced five witnesses and report of the Chemical Examiner. The testimony of P.W.2 to P.W.4 is most important in this case.
P.W.2 Qazi Atta Ullah, Judicial Magistrate, had recorded the judicial confessions of the petitioners and he supported the recording of their statements. The defence has not pointed out any material legal defect in the procedure of recording their statements. Before the said witness, both the accused-petitioners had not denied to be the passengers of the intercepted vehicle (Car No,333- BRC) which was used for transportation of the recovered narcotic material. Petitioner Aala Muhammad in his confessional statement had admitted the possession of 8 kilograms of Charas.
8. P.W.3 Jehanzeb, A.S.-I. And P.W.4 Yousaf Ali, S.-I. Proved the recovery of 18500 grams of Charas vide recovery memo. P.W.3/I. These P.Ws. Deposed in line with each other and no material contradiction or discrepancy has emerged in their statements despite they have gone under lengthy cross-examination by the defence side.
9. It was a case of Nakabandi/checking and the prosecution witnesses were members of the checking party. Thus, their presence at the place was natural. The P.Ws. Present at the place of recovery of "Charas" from vehicle under control/being driven by the petitioner Aala Muhammad were the police employees. They were the competent witnesses like any other independent witness and their evidence cannot be discarded merely for the reason that they were the police employees. Reference in this context can be made to the cases of Naseer Ahmad v. The State 2004 SCM R 1361, Riaz Ahmad v. The State 2004 SCM R 988, Fida Jan v. The State 2001 SCM R 36 and Muhammad Azam v. The State PLD 1996 SC 67.
10. As to the objection of non-joining the private witnesses, suffice it to observe that section 25 of the Control of Narcotic Substances Act, 1997, has excluded the application of section 103, Cr.P.C.
Which reads as under:- "Mode of making searches and arrest.--- The provisions of the Code of Criminal. Procedure, 1898, except those of section 103, shall mutatis mutandis, apply to all searches and arrests insofar as they are not inconsistent with the provisions of sections 20, 21, 22, and 23 to all warrants issued and searches made under these sections."
' Moreover, the testimony of P.W.3 and P.W.4 has been corroborated by the report of the Chemical Analyst which is positive.
11. The petitioners during trial had resiled from their judicial confessions. The "retracted confession" may be treated to be sufficient to sustain conviction for the offence if the same is found to be voluntary and true but as a rule of prudence, the same should not be acted upon unless corroborated by some other reliable evidence. Reliance in this context can be placed to the cases of Arabistan and others v. The State 1992 SCM R 754 and Ch. Muhammad Yaqoob and others v. The State 1992 SCM R 1983. Be that as it may, there is other sufficient, independent convincing oral and documentary evidence (statements of P.W.2 to P.W.4 and report of Chemical Examiner Exh.P.Z.) on the file of the case to prove the prosecution story. The petitioners had denied the allegation with a specific stance that the concerned police had illegally involved them in the case by planting such huge quantity of narcotic material. No justification existed on the record to falsely involve them in such-like case. So much so, the petitioners had not produced any evidence in support of their defence version. They even did not opt to appear in their defence under section 340(2), Cr.P.C. The learned counsel for the petitioners has failed to point out any mala fide of the police employees qua the petitioners.
12. The defence plea of the petitioners that they had no knowledge about the Charas concealed beneath the front and rear seats of the car has no force. They could not explain 'their travelling in the car nor their destination in their statement under section 342, Cr.P.C. This argument is further strengthened by judgment of this Court in the case of Shehzad Muhammad v. The State 2005 SCM R 859 wherein it is stated that the petitioner had no knowledge of the narcotics concealed inside the layer of the bag is devoid of any force mainly for the reason that the petitioner took the bag from co-convict at the airport. In the present case, the use of the car in the commission of offence is not denied but where they were going is unexplained and it remained under mystery.
13. The prosecution has-been successful to establish the guilt of the petitioners to the hilt by producing the above-referred evidence. Learned counsel for the petitioners has not been able to point out any error or illegality, misreading or non-reading of evidence in the impugned judgment of the High Court.
14. For the foregoing reasons, we do not find any substance in these petitions which are dismissed and leave to appeal is refused.