2009 PLP 819 (SCMR)

IJAZ-UL-HASSAN KHAN, J.

Mst. Gulshan Bibi, petitioner, seeks leave to appeal from the judgment dated 8-3,2007 passed by learned Peshawar High Court, Peshawar, dismissing petitioner's Criminal Appeal No.738 of 2005.

2. Briefly stated facts of the case are, that pursuant to spy information, stated to have been received by Assistant Director, ANF, Peshawar, on 21-4-2004 that on said day, a woman would smuggle from `Shahkas' (Illaqa Ghair) a huge quantity of narcotics, a police party headed by Inspector Sameen Khan, S.H.O., Police Station ANF, Peshawar, laid `Naka Bandi' near `Itwar Bazzar', Hayatabad, Peshawar. In the meanwhile, a Passenger Bus bearing Registration No. Peshawar K-1289 arrived there. The bus was stopped. On personal search pf a lady passenger, found sitting in the bus `chars' tied around her body in 12 packets, was recovered. `Charas' was weighed and found 15 Kgs. A meagre quantity from each packet was separated for chemical analysis and remaining was sealed. The woman was taken into custody and a case was registered against her under section 9(c), CNSA, 1997 vide F.I.R. No.39 dated 21-11-2004, Police Station ANF, Peshawar.

3. The prosecution in order to prove its case examined three witnesses namely, P.W.1 Samin Jan, P.W.2 Mist. Saeeda Bano and P.W.3 Fida Ullah. The petitioner neither appeared in the witness box as required under section 340(2), Cr.P.C. nor examined herself in defence. In answer to a question as to "what is your statement and why are you charged?" she replied that "I am innocent and have been charged falsely. On the day of occurrence, I along with another lady was deboarded from the passenger bus on the spot of occurrence and thereafter during the way the said lady was left free due to certain ulterior motives of the Investigating Officer while I came to know about the contraband pertaining to this case, which was falsely connected with me. Moreover, the occurrence has taken place on Sunday. I produce the calendar of 2004 in this regard which is Exh.D. 1 and so as it was holiday, therefore, the lady searcher Mst. Saeeda Bano was subsequently summoned to Police Station ANF where the entire story was concocted and she also signed the memo. there at per the instance of the Investigating Officer being his subordinate."

4. At the conclusion of trial, vide judgment dated 15-10-2005, learned Judge Special Court (CNSA), Peshawar, finding the petitioner guilty of the said charge convicted her under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced her to life imprisonment with fine of Rs.1,00,000 (one lac) or in default whereof to undergo six months' S.I. Benefit of section 382-B, Cr.P.C., was extended to the petitioner.

5. The petitioner, feeling aggrieved, filed Criminal Appeal No.738 of. 2005 in the Peshawar High Court, Peshawar to challenge her conviction and sentence, which was dismissed vide judgment dated 8-3-2005, which has been impugned through instant petition for leave to appeal.

6. Mr. M. Zahir Shah, Advocate for the petitioner, it the very out set submitted that he will not argue the case on merit and would request for reduction of the sentence appropriately. Learned counsel reiterated that petitioner is an old woman of more than 50 years age and she acted as a `carrier'. Reliance in this regard was placed on a judgment of this Court reported as Muhammad Iqbal alias Bali v. The State 2008 SCMR 1601.

7. Although learned counsel for the petitioner has confined his arguments to the quantum of sentence but we have re-appraised the entire evidence on the file to satisfy ourselves, whether or not, the evidence on record has been properly scrutinized in this case. We find that huge quantity of `chars' weighing 15 kilograms has been recovered from the possession of the petitioner. The prosecution has successfully established its case. The recovery has been satisfactorily proved. The mere fact that one of the witnesses to recovery memo was not produced, is not fatal to the prosecution case. The plea of acting as `carrier' has not been taken at the trial nor spelt out from the material on record. The plea of substitution is also not substantiated.

8. In the circumstances, finding no force in this petition, the same is dismissed and leave to appeal refused. N.H.Q./G-9/SC Leave refused.