2008 PLP 902 (YLR)
Mrs. DOROTHY HINGANDU — Appellant Versus THE STATE — Respondent
| Citation | 2008 PLP 902 (YLR) |
| Forum / Court | Karachi |
| Bench Members | Mushir Alam and Ali Sain Dino Metlo, JJ |
| Parties | Mrs. DOROTHY HINGANDU — Appellant Versus THE STATE — Respondent |
| Primary Law | Control of Narcotic Substances Act (XXV of 1997) |
Q1: What are the key laws and sections cited in 2008 PLP 902 (YLR)?
This judgment primarily cites: Control of Narcotic Substances Act (XXV of 1997) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2008 PLP 902 (YLR)?
The case was heard and decided by the Karachi bench comprising: Mushir Alam and Ali Sain Dino Metlo, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2008 PLP 902 (YLR) (Mrs. DOROTHY HINGANDU — Appellant Versus THE STATE — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Abdul Razzak for Appellant.
- Ashfaq Hussain Rizvi; Special Prosecutor ANF for Respondent.
- Date of hearing: 2nd July, 2007.
Headnotes / Summary
S.9
Accused who was foreigner, attempted to smuggle out from Pakistan 458.8 grams of heroin powder
Accused having pleaded guilty the Trial Court convicted and sentenced her to suffer R.I. for one and a half years and to pay fine of Rs.50,000
Accused in her appeal had challenged only the legality of the sentence awarded to her
Section 9 of the Control of Narcotic Substances Act, 1997, from punishment point of view, had divided the offence relating to narcotics into three categories depending on their quantity
If quantity was 100 grams or less, the punishment of imprisonment could extend to two years, if the quantity exceeded 100 grams, but did not exceed one kilogram, imprisonment could extend to seven years; and if the quantity was more than one kilogram, the punishment could be death or imprisonment for life
Except for said general categorization, the statute did not prescribe any mathematical formula for awarding sentence in a particular case nor it made distinction between different kinds of narcotics such as heroin and Charas
Punishment for trafficking in Charas and heroin of equal quantity, could not be the same as there was vast difference between their value and consequently the benefit which could be derived from their illicit trade
Value of one kilogram of heroin could be much more than that of 100 kilograms of Charas
Accused attempted to export nearly half kilogram of heroin capable of fetching a big profit its punishment, in circumstances needed to be commensurate with its prospective profit
Trial Court having already taken lenient view, appeal was dismissed. 1999 MLD 1354; 2005 PCr.LJ 1985; 2006 MLD 1519; 2003 PCr.LJ 811; 1993 SCMR 785; 2005 PCr.LJ 1958 and 2003 PCrL.J 811 rel. JUDMENT ALI SAIN DINO METLO, J.
On 7-2-2007 Mrs. Dorothy Hingandu, a Zambian national attempted to smuggle out from Pakistan 458.8 grams of heroin powder, contained in 34 capsules, which she had swallowed. She was arrested at International Departure Hall, Jinnah International Airport, Karachi, and the capsules were excreted from her alimentary canal.
2. On 26-5-2007, she pleaded guilty and the trial Court i.e. the special Court for the Control of Narcotic Substances-I, Karachi, convicted and sentenced her to suffer rigorous imprisonment for one and half year and pay fine of Rs. 50,000 and in default to undergo simple imprisonment for three months more. Benefit of section 382-B of the Code of Criminal Procedure, 1898, was also extended to her and the period which she had remained in custody as under-trial prisoner was directed to be deducted from her substantive sentence. By this appeal, she has challenged only the legality of the sentence.
3. Learned counsel for the appellant argued that the punishment is not proportionate to the quantity of heroin and relied upon the cases reported in 1999 MLD 1354 (Karachi), 2005 PCr.LJ 1985 (Peshawar), 2006 PCr.R 730 (Lahore) and 2003 PCr.LJ 811 (Karachi).
4. From punishment point of view, Section 9 of the Control of Narcotic Substances Act, 1997, divides the offence relating to narcotics into three categories depending on their quantity. If the quantity is 100 grams or less the punishment of imprisonment may extend to two years, and if the quantity exceeds 100 grams but does not exceed one kilogram, the imprisonment may extend to seven years, and if the quantity is more than one kilogram the punishment may be death or imprisonment for life or imprisonment for a term which may extend to 14 years, further providing that the punishment shall not be less than imprisonment for life if the quantity exceeds 10 kilograms.
5. Except for the above general categorization, the statute does not prescribe mathematical formula for awarding sentence in a particular case nor it makes distinction between different kinds of narcotics such as heroin and Charas. Indeed, it confers a vast discretion upon the Court in the matter of awarding sentence by providing that the imprisonment may extend to two years, seven years etc. keeping in view all the relevant circumstances of a particular case. Besides quantity of a narcotic, its kind will be a very important factor to be taken into consideration while passing the sentence. In the cases of trafficking in narcotics, benefit obtained or attempted to be obtained by a convict, which is the most relevant factor to be taken into consideration while awarding sentence, very much depend upon their kind. Thus, punishment 'for trafficking in Charas and heroin of equal quantity cannot be the same, there being vast difference between their value and consequently the benefit which can be had from their illicit trade. Value of one kilogram of heroin may be much more than that of 100 kilograms of charas.
6. Under the Prohibition (Enforcement of Hadd) Order, 1979, which has not been repealed, by the Control of Narcotic Substances Act, 1997, a distinction has been made in punishment for different kinds of intoxicants and imprisonment for life is prescribed for heroin or cocaine exceeding 10 grams and raw opium or coca leaf exceeding one' kilogram. The Control of Narcotic Substances Act, 1997, has not even impliedly, repealed it by providing, under section 73, that it shall not affect validity of any law for the time being in force prescribing greater punishment for dealing in narcotics.
7. It will be thus seen that the statutory law also makes distinction of kind and the Courts are required to make distinction in the award of punishment for different kinds of narcotics keeping in view inter alia their market value. The appellant attempt to export nearly half kilogram of heroin capable of fetching a big profit. Therefore, its punishment needs to be commensurate with its prospective profit. The other important factor to be considered while determining the sentence will be the damage resulting from the act. Heroin is one of the most injurious narcotics. Its addiction has destroyed lives of many useful members of the society particularly the young generation. As rightly observed by the Supreme Court of Pakistan (1993 SCMR 785), its smuggling has also the effect of damaging image of the country in the comity of nations.
8. In the precedents cited by the appellant's counsel no hard and fast rule or mathematical formula has been prescribed and the different Courts have awarded different sentences keeping in view the facts and circumstances of each case. In 1999 MLD 1354 (Karachi) a learned' single Judge of this Court dismissed convict's appeal by observing that the trial Court, in awarding imprisonment for two and half years for possessing 1300 grams of heroin, had already taken a lenient view. In 2005 PCr.LJ 1958 (Peshawar) punishment of imprisonment for five years for possessing three kilograms of heroin was reduced to imprisonment for three years mainly on the ground that a meagre quantity was sent to the chemical examiner for opinion. In 2006 MLD 1519 Lahore, imprisonment of 12 years for possessing five kilograms of heroin was reduced the imprisonment for seven years and in 2003 PCrL.J 811 (Karachi) imprisonment for 14 years for possessing six kilograms of heroin was reduced to imprisonment for eight years.
Judgment & Decree
On 7-2-2007 Mrs. Dorothy Hingandu, a Zambian national attempted to smuggle out from Pakistan 458.8 grams of heroin powder, contained in 34 capsules, which she had swallowed. She was arrested at International Departure Hall, Jinnah International Airport, Karachi, and the capsules were excreted from her alimentary canal.
2. On 26-5-2007, she pleaded guilty and the trial Court i.e. the special Court for the Control of Narcotic Substances-I, Karachi, convicted and sentenced her to suffer rigorous imprisonment for one and half year and pay fine of Rs. 50,000 and in default to undergo simple imprisonment for three months more. Benefit of section 382-B of the Code of Criminal Procedure, 1898, was also extended to her and the period which she had remained in custody as under-trial prisoner was directed to be deducted from her substantive sentence. By this appeal, she has challenged only the legality of the sentence.
3. Learned counsel for the appellant argued that the punishment is not proportionate to the quantity of heroin and relied upon the cases reported in 1999 MLD 1354 (Karachi), 2005 PCr.LJ 1985 (Peshawar), 2006 PCr.R 730 (Lahore) and 2003 PCr.LJ 811 (Karachi).
4. From punishment point of view, Section 9 of the Control of Narcotic Substances Act, 1997, divides the offence relating to narcotics into three categories depending on their quantity. If the quantity is 100 grams or less the punishment of imprisonment may extend to two years, and if the quantity exceeds 100 grams but does not exceed one kilogram, the imprisonment may extend to seven years, and if the quantity is more than one kilogram the punishment may be death or imprisonment for life or imprisonment for a term which may extend to 14 years, further providing that the punishment shall not be less than imprisonment for life if the quantity exceeds 10 kilograms.
5. Except for the above general categorization, the statute does not prescribe mathematical formula for awarding sentence in a particular case nor it makes distinction between different kinds of narcotics such as heroin and Charas. Indeed, it confers a vast discretion upon the Court in the matter of awarding sentence by providing that the imprisonment may extend to two years, seven years etc. keeping in view all the relevant circumstances of a particular case. Besides quantity of a narcotic, its kind will be a very important factor to be taken into consideration while passing the sentence. In the cases of trafficking in narcotics, benefit obtained or attempted to be obtained by a convict, which is the most relevant factor to be taken into consideration while awarding sentence, very much depend upon their kind. Thus, punishment 'for trafficking in Charas and heroin of equal quantity cannot be the same, there being vast difference between their value and consequently the benefit which can be had from their illicit trade. Value of one kilogram of heroin may be much more than that of 100 kilograms of charas.
6. Under the Prohibition (Enforcement of Hadd) Order, 1979, which has not been repealed, by the Control of Narcotic Substances Act, 1997, a distinction has been made in punishment for different kinds of intoxicants and imprisonment for life is prescribed for heroin or cocaine exceeding 10 grams and raw opium or coca leaf exceeding one' kilogram. The Control of Narcotic Substances Act, 1997, has not even impliedly, repealed it by providing, under section 73, that it shall not affect validity of any law for the time being in force prescribing greater punishment for dealing in narcotics.
7. It will be thus seen that the statutory law also makes distinction of kind and the Courts are required to make distinction in the award of punishment for different kinds of narcotics keeping in view inter alia their market value. The appellant attempt to export nearly half kilogram of heroin capable of fetching a big profit. Therefore, its punishment needs to be commensurate with its prospective profit. The other important factor to be considered while determining the sentence will be the damage resulting from the act. Heroin is one of the most injurious narcotics. Its addiction has destroyed lives of many useful members of the society particularly the young generation. As rightly observed by the Supreme Court of Pakistan (1993 SCMR 785), its smuggling has also the effect of damaging image of the country in the comity of nations.
8. In the precedents cited by the appellant's counsel no hard and fast rule or mathematical formula has been prescribed and the different Courts have awarded different sentences keeping in view the facts and circumstances of each case. In 1999 MLD 1354 (Karachi) a learned' single Judge of this Court dismissed convict's appeal by observing that the trial Court, in awarding imprisonment for two and half years for possessing 1300 grams of heroin, had already taken a lenient view. In 2005 PCr.LJ 1958 (Peshawar) punishment of imprisonment for five years for possessing three kilograms of heroin was reduced to imprisonment for three years mainly on the ground that a meagre quantity was sent to the chemical examiner for opinion. In 2006 MLD 1519 Lahore, imprisonment of 12 years for possessing five kilograms of heroin was reduced the imprisonment for seven years and in 2003 PCrL.J 811 (Karachi) imprisonment for 14 years for possessing six kilograms of heroin was reduced to imprisonment for eight years.
9. In criminal appeals bearing Nos.17, 29 and 35 of 2007, which pertained to attempts of smuggling of heroin in the same manner as was done in the present case, a Division Bench of this Court, by separate orders passed on 7-2-2007 and 19-2-2007, refused to reduce sentence of imprisonment for four years for 952 grams, three years for 741 and two and half years for 512 grams, observing that the trial Court had already taken lenient views. Compared with the quantity of punishment in these cases, the trial Court has taken a very lenient view in the present case. In view the above facts, circumstances and reasons; recorded now, the appeal was dismissed by a short order passed on. H.B.T./D-16/K Appeal dismissed.