' SYED ZAWWAR HUSSAIN JAFFERY, J.---This petition, under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed against the judgment dated 11-2-2009, passed by learned Peshawar High Court, Peshawar, whereby criminal appeal filed by the petitioner challenging his conviction and sentence, awarded by learned trial Court, was dismissed. The petitioner along with other accused namely Aman Khan and Irfan Khan was convicted under section 9-C of Control of Narcotic Substances Act, 1997 and sentenced to life imprisonment each by the learned trial Court with the direction to pay a fine of Rs,500,000 and in default whereof to suffer R.I. Each for further three years. Benefit of section 382, Cr.P.C. Was also extended to him.
2. Succinctly facts of the case are that on 14-4-2006, Anti Narcotics Force authorities, Peshawar received a spy information that huge quantity of charas was being smuggled towards Punjab through Motor car No, LOX 9023. On receiving the said information, Sami Jan, Inspector, ANF, along with other officials effected Naka Bandi, under the supervision of Rehmat Khan, Assistant Director, at G.T. Road near Sardar Garhi and at about 17:30 hours, the motor car, mentioned above, reached there which was signaled to stop but instead of stopping the car the driver accelerated the speed.
The car was chased by officials of ANF and ultimately it was stopped near Chamkanni Moar. Four persons i,e, the three convicts and the acquitted accused namely Mst. Shagufta were sitting in the car. For thorough check, the car along with accused, sitting therein, was taken to the police station.
The officials of ANF recovered 60 packets of baked charas and 49 packets of raw charas (total weighing 109 kilograms) therefrom. Samples of recovered substance were separated by Samin Jan, Inspector for being sent to chemical examination and the same were sealed into 22 parcels whereas the rest of the charas was sealed in five separate parcel. During search of the car 100 live rounds of .30 bore were also recovered vide Exh.P.W.1/1. After having made the recovery by Samin Jan Inspector arrested the four accused and the case vide F.I.R. No, 17 dated 14-4-2006 was registered under section 9 of Control of Narcotic Substances Act and section 13 of Arms Ordinance.
The P. Ws. And the accused were examined under section 161, Cr.P.C. After completion of investigation, challan was submitted in the court having jurisdiction which convicted the appellant as mentioned above. Being aggrieved, the petitioner along with co-accused filed appeals. Learned High Court dismissed the appeal filed by the petitioner and co-accused Aman Khan while accepted the appeal of Irfan Khan and he was acquitted of the charge vide judgment dated 11-2- 2009. Hence; this petition for leave to appeal.
3. Mr. Muhammad Ilyas Siddiqui, learned Advocate Supreme Court for the petitioner, has submitted that all the prosecution witnesses are officials of Anti Narcotics Force; that there are material contradictions in their statements, hence, their evidence being not supported by any independent evidence was not at all justified for conviction of the petitioner; that co-accused Mst. Shagufta was acquitted . By the learned trial Court whereas co-accused Irfan Khan was acquitted by the appellate Court by not believing the prosecution evidence, therefore, the petitioner is also entitled for acquittal as co accused has been carrier, has not challenged his conviction; that the petitioner proceeded to tribal area to receive his outstanding amount from Qaisar Khan Afridi who in turn of his debt i,e, Rs, 1,60,000 which he had given for sending abroad gave him car and the said car was brought by the petitioner and boarded by the co-accused which was stopped by the ANF authorities and recovered the contraband material from the secret cavities of the car; that the courts below have not taken into consideration the facts and circumstances of the case in its true perspectives and that the judgments of the courts below suffer from misreading and non-reading of evidence on record. Therefore, leave to appeal may be allowed and the petitioner may be acquitted for the charge.
4. On the other hand, Mr. Niaz Ahmed Rathore, learned Prosecutor-General, ANF, has opposed the contentions put forward by learned counsel for the petitioner.
5. We have heard learned counsel for the petitioner as well as learned Prosecutor-General, ANF, appearing on behalf of State at considerable length and gone through the entire material available on record. Learned High Court while deciding criminal appeal observed as under:-- "The case of the appellant Irfan Khan is somewhat different from that of the other two appellants.
During investigation of the case the appellant Irfan Khan had taken the plea that he along with his wife Mst. Shagufta acquitted accused had boarded the Motor Car of the two co-accused at Peshawar and they had no role in the commission of offence nor had any knowledge about the sinister design of their co-accused. In their statements under section 161, Cr.P.C. As well as during the trial the appellants Aman Khan and Arshad Hussain also stated that the appellant. Irfan Khan and his wife were innocent and this fact to some extent is confirmed by the I.O. In his cross examination. The I.O. Admitted that he had not collected any evidence regarding the involvement of appellant Irfan Khan and his wife Mst. Shagufta. The latter had already been acquitted by the learned Judge Special Court and the prosecution has not filed any appeal challenging her acquittal so on the principle of consistency the appellant Irfan Khan is also entitled to acquittal.
' For the above stated reasons, the appeal filed by Irfan Khan appellant is allowed, his conviction and sentence is set aside and he is acquitted of the charge levelled against him. He shall be released forthwith if not required in any other case. The connected appeals Nos. 672 and 747 of 2007 filed by the appellants Arshad Hussain and Aman Khan are dismissed."
' The ANF authorities signaled the car which was not stopped rather the driver-Aman Khan of the car speed up the vehicle. The car was chased by the officials of the ANF authorities and after covering some distance the driver turned the motor car to nearby village and ultimately the car was got stopped. The driver along with co-accused was apprehended, search was made, contraband material was recovered, memo of seizer was prepared at the spot, the vehicle and the arrested accused were taken to the police station and the F.I.R. Was lodged. The trial court convicted the petitioner and other co accused but accused Mst. Shagufta, as conceded by the I.O.
In cross-examination, was found innocent. Her husband Irfan Khan preferred appeal against his conviction which was accepted and his appeal was allowed by the learned High Court and his conviction and sentence was set aside whereas the appeal filed by the petitioner and co-accused Aman Khan was dismissed. There is positive evidence against the petitioner and co accused Aman Khan as the prosecution has proved its case beyond any reasonable doubt. The case of the petitioner is not identical to the case of Mst. Shagufta and her husband Irfan Khan. There is no enmity existed between the parties. The testimony of the eye-witnesses coupled with the report of the chemical examiner and the recovery from the motor car was established against the petitioner. There is no material contradiction in the statements of the prosecution witnesses to disbelieve them. The defence taken by the petitioner that he get the car in lieu of money given to Qaisar Khan Afridi cannot be believed as he failed to verify the availability of narcotics in the said car at the time of delivery of the car to him. The impugned judgment of Peshawar High Court is based on proper appreciation of material available on record. Learned counsel for the petitioner has not been able to pinpoint any infirmity or illegality in the impugned judgment justifying interference by this Court. No case for leave to appeal is made out.
6. For the foregoing reasons, facts and circumstances, we see no merits in this petition which is dismissed and leave to appeal refused accordingly.