' CH. IJAZ AHMED, J.---Petitioner is involved in a case F.I.R. No,6 of 2007 which was registered under section 9(C) of C.N.S. Act, 1997 at Police Station Anti-Narcotics Force, Peshawar on the complaint of Sabahul Hassan, Assistant Director, ANF, Peshawar.
2. Detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petition arises are that on 8-2-2007 the ANF high-ups had received spy information that on even date a foreigner of black complexion namely Jerry Prince will smuggle a huge quantity of heroin weighing 3.800 k.g. From Peshawar in Flight EK-637 bound for Dubai. After receiving the said information a team was constituted to proceed to Airport to find out the truth of the information. On reaching airport the said team came to know that accused had received boarding pass and had reached departure lounge: Hence they went to departure lounge, where they found a foreigner of black complexion who resembled the feature furnished by the informer. He was interrogated who disclosed his name Jerry Prince YKE son of Jerry Godson resident of Nigeria, the information was further confirmed from his passport and boarding pass. He was brought to briefing hall. According to boarding pass petitioner had deposited one suit-case, hold luggage, the number of said baggage was 0345 which was mentioned on his boarding pass.
Petitioner was asked for providing the baggage tag, at which he replied that the tag had been misplaced. The said bag was produced by the airline staff. Petitioner was asked to open the said bag which he opened through a key and through number. Cover lid of the suit case was found double layers which was opened and after said heroin was recovered. On his pointation Ogbunkwo Emmanuel was interrogated and found him also guilty. The investigating agency after completing the necessary formalities having found them guilty along with others submitted challan in the court of Judge Special Court (CNS), Peshawar. Trial Court declared co-accused namely Haji Ibrahim, Mehboobur Rehman and Brown as proclaimed offenders and were ordered to proceed against under section 512, Cr.P.0 in their absentia. The learned trial Court after recording the statements of the witnesses and statement of accused convicted and sentenced them vide judgment dated 21-5-2008 as under:-- Name of the accused Under section Sentence Jerry Prince YKE. 9(C) CNS Act 8 years R.I. With fine of Rs, one lac. In case of default to further suffer one year S.I.
Ogbunkwo Emmanuel 15(C) CNS Act 8 years' R.I. With fine of Rs, One lac. In case of default to further suffer one years' S.I.
' Benefit of section of 382-B, Cr.P.C. Was also given to them. As far as proclaimed offenders are concerned DCO, and S.P. Were directed to enter their names in the relevant register of proclaimed offenders. ANF officials were also directed to trace out property of the absconding accused in settled area and to submit complaint under section 88, Cr.P.C. In competent court of law for its forfeiture and confiscation.
3. The petitioner and his acquitted co-accused, Ogbunkwo Emmanuel, filed Criminal Appeal No, 279 of 2008 in the Peshawar High Court which was dismissed to the extent of the petitioner whereas the appeal was allowed qua his acquitted co-accused, Emmanuel, vide judgment dated 8-4- 2009. Hence the present petition.
4. Learned counsel for the petitioner submits as under:--
(i) Both the courts below had erred in law to convict the petitioner without proper appreciaion of evidence as the heroin in question was not recovered from his possession and the prosecution has failed to prove by producing cogent, reliable and trustworthy evidence that suit case was owned by the petitioner or he had himself concealed the heroin in the suit case.
(ii) The necessary documents with regard to ownership of the suitcase in question was not brought on record by the prosecution.
5. We have given our anxious considerations to the contentions of the learned counsel of the petitioner and perused the record. The learned trial court after appreciation of evidence had given finding of guilt against the petitioner which is as follows:-- "There is a direct evidence which is confidence inspiring straightforward and unbiased against accused Jerry Prince, which is further supplemented by circumstance and positive report of FSL, therefore, he is liable to be convicted under section 9C, C. N.S.A., likewise Emmanuel has been implicated by Jerry Prince, his abode, was pointed out by Jerry Prince, from his possession of copy of passport and registration of Jerry Prince were recovered."
' The said finding of guilt was confirmed by the Lahore High Court after reappraisal of the evidence on record as is evident from para 5 of the impugned judgment. In the interest of justice and fairplay we have also re-examined the evidence on record. The following findings are fully borne out from the evidence on record:--
(a) Investigating team after receiving information rushed to the Peshawar Airport wherein they had received information that petitioner had already gone to departure lounge and had already received his boarding pass.
(b) The raiding team rushed to the departure lounge where they interrogated the petitioner and then brought him down to the briefing hall.
(c) His luggage which was already issued baggage tag was retrieved and the petitioner was asked to unlock the suit-case from its key and digital number.
(d) The suit-case was opened and from its secret cavities the aforesaid heroin was recovered.
(e) The prosecution witnesses had no enmity whatsoever against the petitioner, therefore, it is not believable that the petitioner was involved in such heinous offence by the investigating agency, particularly when the petitioner is foreigner.
6. As mentioned above, both the courts below had given concurrent finding of fact that huge quantity of heroin mentioned hereinabove was recovered from his suit-case in his presence. We are, therefore, of the view that the findings of guilt recorded by the courts below do not suffer from any infirmity or illegality. The learned counsel has failed to point out any piece of evidence which was misread or non-read by the courts below while rendering the aforesaid finding of guilt against the petitioner. It is settled proposition of law that this Court would not normally go behind concurrent finding of guilt recorded by the courts below unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or there has been any misapplication of a principle relating to appreciation of evidence, or, finally, if the finding of guilt can be demonstrated to be physically possible. This being the practice and the rule of the court in criminal cases, the burden lies rather heavily on the petitioner to show that the concurrent findings of guilt recorded by the High Court are not sustainable on the record and should be interfered with by us. The learned counsel has failed to bring the case within the parameters prescribed hereinabove by this Court in various pronouncements. Generally this Court as mentioned above seldom interfere in the concurrent conclusions arrived at the courts below while exercising power under Article 185(3) of the Constitution. Even otherwise, learned counsel has failed to raise any substantial question of law. It is also settled principle of law that constitutional jurisdiction is discretionary in character keeping in view the aforesaid circumstances and findings of the courts below, we are not inclined to exercise our discretion in favour of the petitioner as law laid down by this Court in Nora's case (PLD 1973 SC 463).
7. In view of what has been discussed above this petition has no merit and the same is dismissed and leave is refused.