1996 SCMR 246 (PLP)

‑‑‑‑S. 156(89)/178‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sentence, plea of enhancement of‑‑‑Contentions were that merely because the accused had pleaded guilty did not legally entitle him to any uncalled for leniency in the matter of sentence particularly when the offence committed was of smuggling of huge quantity of 8500 k.gs. of contraband narcotics and that the Special Judge had already dealt with the accused very leniently and further leniency shown to him by High Court could set the whole operation at naught‑‑‑Leave to appeal was granted to the State to consider the said contentions. Zakaria and 7 others v. The State 1976 PCr.LJ 166 ref. Saadat Hussain, Deputy Attorney‑General with Nur Ahmad Khan, Advocate‑on‑Record for Petitioners. M. Amin Khattak, Advocate Supreme Court with M. Zahoor Oureshi, j Advocate‑on‑Record for Respondent. Date of hearing: 7th November, 1995. MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑ Muhammad Siddique respondent was apprehended alongwith Zardad Khan his co‑accused on 5‑5‑1992 at 0800 hours within the limits of village Jalala on Mardan ‑Malakand Road while "smuggling 8500 k.gs. of contraband charas of foreign origin by Truck No. PRC‑8726 and was, therefore, charged on 5‑10‑1992 for an offence punishable under sections 156(89) and 178 of the Customs Act (IV of 1969). On the same day, Muhammad Siddique pleaded guilty to the charge before the learned Special Judge, Customs (Central), Peshawar. He was, therefore, convicted under sections 156(89) and 178 of the Customs Act and was sentenced to undergo rigorous imprisonment for three years and a fine of Rs.1,00,000 or in default to undergo further rigorous imprisonment for three years. Zardad Khan co‑accused of the respondent did not plead guilty to the charge and was placed on Trial. After recording evidence of the prosecution and examining the accused the learned Special judge convicted and sentenced a him in the same terms. The two convicts challenged their convictions and sentences in the .High Court separately which were heard and disposed of by a consolidated judgment recorded on 22‑5‑1993 by the then learned Chief Justice whereby the conviction of the respondent was maintained but the sentences of rigorous imprisonment for three years was reduced to one and a half year and likewise the fine was also reduced to Rs.50,000 whereas appeal of Zardad Khan co‑accused of the respondent was accepted and his conviction and sentence were set aside.

2. This petition is directed against the judgment of the learned Chief Justice of Peshawar High Court whereby the sentence of rigorous imprisonment and a fine of Rs.1,00,000 against the respondent was reduced to rigorous imprisonment for one and a half year and fine was reduced to Rs.50,000 on a charge under, section 156(89)/178 of the Customs Act (IV of 1969). The learned Chief Justice relied on the dictum in the case of Zakaria and 7 others v. The State (1976 P Cr. LJ 166), (which was not a case of narcotics) to hold that respondent No. 1 was entitled to more leniency than that exhibited by the learned Special Judge in the quantum of sentence on the grounds, firstly, that he was merely a carrier of the contraband narcotics; secondly, that he had pleaded guilty; and, thirdly, that he will further "face the ordeal of a Trial on charges under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979.

3. Mr. Saadat Hussain, learned Deputy Attorney‑General appearing on behalf of the State contends that merely because respondent No: 1 had pleaded guilty does not legally entitle him to any uncalled for leniency in the matter of sentence particularly when the offence committed eras of smuggling of huge quantity of 8500 k.gs. of contraband narcotics. He further urged that the learned Special Judge had already dealt with respondent No. 1 very leniently and further leniency shown by the learned Chief Justice of the High Court would set the whole operation at naught.

4. The aforenoted contentions need, consideration. Leave is, therefore, granted in this case. N.H.Q./S‑1011/S Leave granted.