1994 PLP 1134 (MLD)

Applicant Drawdy Desiree Marie is accused in Crime No.DEC/40/93-JTC and applicant Archuleta Tanya Pauline is accused in Crime No.DEC/41/93-JTC. Both F.I.Rs. are registered on 2-3-1993 and the allegation against each applicants is of violation of section 2(s) of the Customs Act, 1969 punishable under clause (8) of section 156(1) read with section 178 of the said Act. By two separate orders dated 21-4-1993 their bail applications moved in the Court of Special Judge (Customs and Taxation), Karachi were dismissed and the applicants have filed two applications which are being disposed of by this single order as the facts of each case as shown in the F.I.R. are similar. Case against -applicant Drawdy Desiree Marie is that on 2-3-1993 at 10-15 p.m. while she was to proceed to San Francisco 'via Singapore by Singapore Airlines Flight No.SQ-417, her baggage was examined and 1.7 Kgs. of heroin powder were recovered by the Seizing Officer Muhammad Iqbal Javaid. The heroin was seized in presence of Mashirs.. From applicant Archuleta Tanya Pauline, who was also leaving for San Francisco by the same Airline, 1.6 Kgs. of heroin powder was recovered from her baggage by Seizing Officer Zahid Hussain. The required notice under section 171 of the Customs Act was served on them and both the applicants were arrested. The only contention raised by the learned counsel for the applicants is that one Noor Faiz Muhammad, who was also bound by the same flight, had given his bags to the applicants, who did not know about the contents thereof and carried the same to the counter in good faith. It may be stated here that on such information given by each applicants Noor Faiz Muhammad was also arrested and a case is registered against him as well. The learned Advocate has argued that the applicants could, at the most, be termed as carriers and their case needs to be dealt with on lighter footings and because applicants are women, they would be entitled to bail under first proviso to subsection (1) of section 497 of Cr.P.C. The bail application is vehemently opposed by the learned State Counsel. It has been contended by him that the offence, with which each applicants are charged, is punishable to imprisonment for 14 years and is covered by the prohibitory clause of section 497 of Cr.P.C. and that they would not be entitled to bail. He has also placed on record copy of the order in Special Criminal Bail No. 47 of 1993 moved by Noor Faiz Muhammad and the bail to him was refused by my learned brother Shoukat Hussain Zubaidi, J. by order dated 7-7-1993. I have heard the learned counsel at length and perused the record. The applicants may be carriers but they are not entitled under law to any leniency. In the case of Bonifacio A. Burayag v. The State PLD 1991 SC 988, at page 991 the Hon'ble Supreme Court observed: "In the present case, in our view, the petitioner has been treated quite leniently as instead of awarding him (he being a carrier) a sentence of life imprisonment, he has been given only 7 years' rigorous imprisonment. It may be remembered that it is hardly conducive to the welfare of the society to give an impression that the Courts are more concerned with the welfare of convicts rather than that of the society. See Malik Muhammad Khan v. The State PLD 1987 SC

500. We may add that while awarding the sentence in a case, regard has to be had if there existed extenuating circumstances and also to the nature of the offence committed, its effects on the victim and the society. The rule of leniency while awarding the sentence is, therefore, to be applied with care and caution. Reliance is placed on Gulzar Khan v. The State PLD 1987 SC (AJ&K)

9. In the present case there are no extenuating circumstances. The effect of smuggling, dealing, and unlawfully selling of narcotics on the fabric of society is disastrous." No grounds for bail are made out and both the applications are accordingly dismissed. N.H.Q./D-117/K Bail refused.