1999 PLP 1354 (MLD)

Brief facts of the case are that on 8-1-1995 at about 11-30 pm Preventive Officer, Rana Amanat Ali intercepted the appellant in the international Departure Hall (JTC) of Quaid-e-Azam International Airport, Karachi, who was bound to leave for Addis Ababa by Flight No.ET-663. The Custom Officer suspected the appellant to be carrying narcotics duly concealed in his body and, therefore, he took the appellant to clinic for body X-Ray. The X-Ray report confirmed presence of foreign body in the shape of capsules in the stomach and in the abdominal region. The Custom Officer then brought back the appellant to Customs Drug Cell Officer where in presence of a doctor and Mashirs the appellant excreted the capsules containing 1300 grams of heroin powder. The appellant was arrested under a Mashimama and a notice under section 171 of the Customs Act was served upon him. After lodging of the F.I.R. and completion of the investigation the appellant was challaned before the trial Court where a charge under section 156(1)(8) was framed against him. At the conclusion of the trial he was convicted and sentenced by the trial Judge as mentioned hereinabove. Mr. Chaudhry Muhammad lqbal, Advocate, who filed his power on behalf of the appellant after the admission of the appeal, has contended that confession was considered by the trial Court without Chemical Examiner's Report and that samples of heroin powder were despatched to the examiner for report after nine months. In support he has relied on, the cases reported in 1992 PCr. LJ 845 and 1994 PCr. LJ

482. On the other hand Mr. Roshan Essani, learned D.A.-G. has contended that confession of the appellant was not recorded but he was convicted on his own plea of guilt and the learned trial Judge has already taken a very lenient view in awarding the sentence, as such, further leniency whatsoever in the sentence is uncalled for. Heard the learned counsel and perused the material placed before me. Contention of learned counsel for the appellant that confession was considered by the trial Court without chemical examiner report and that samples of heroin powder were despatched to the examiner for report after nine months is devoid of any force and is otherwise barred under section 412 of Cr.P.C. which reads as under:-- "412 No appeal in certain cases when accused Pleads guilty.- Notwithstanding anything hereinbefore contained where an accused person has pleaded guilty and has been convicted by a High Court, a Court of Session or Magistrate of the First Class on such plea, there shall be no appeal except as to the extent or legality of the sentence." As far as reduction in the sentence is concerned it would be advantageous to refer to 1996 SCMR 246 where the trial Court convicted the accused under sections 156(89) and 178 of the Customs Act and sentenced him to suffer R.I. for 3 years and fine of Rs.1,00,000 or in default to further undergo R.I. for 3 years. The accused preferred an appeal against his said conviction and sentence and the learned Chief Justice of Peshawar High Court while maintaining the conviction reduced the sentence from 3 years' R.I. to 1 1/2 years and also fine from Rs.1,00,000 to Rs.50,

000. Against this decision the State through the D.A.-G filed a Criminal Petition of Leave to Appeal No.43-P of 1993 before the Supreme Court of Pakistan. The Hon'ble Supreme Court was pleased to pass the following observation and granted leave:-- "

3. Mr. Saadat Hussain, 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 was of smuggling of huge quantity of 8,500 Kgs. of contraband narcotics. He further urged that the learned Special Judge had already dealt with respondent No.l very leniently and further leniency shown by the learned Chief Justice of the High Court would set the whole operation at naught." In another case reported in 1996 PCr.LJ 2164 his Lordship Saad Saood Jan, J. (as he then was ) has observed that: "Since the conviction of the appellants is based on their own plea of guilty they are not entitled to challenge the legality of their conviction by virtue of the bar contained in section 412 of the Code of Criminal Procedure. " Admittedly, 1300 grams of heroin powder has been secured from the possession of the appellant who seems to be an active member of the drug trafficking syndicate and this inhuman trade nowadays has created problems for the society at large. This menace can only be curbed if proper sentences are awarded by the Court. The learned trial Court has already shown leniency in awarding the sentence. However, I am of the firm opinion that sentence of fine of Rs.25,000 is excessive which, accordingly, is reduced to Rs.6,000 and in default of payment of fine the appellant shall suffer further R.I. for two months. With this modification in the sentence, the appeal is otherwise dismissed. H.B.T./S-101/K Order accordingly.