1992 PLP 1823 (MLD)

MAMOON KAZI, J.‑‑This is a jail appeal sent by the appellant from fail. I have heard the appellant who was produced before me and also Mr. Niaz Ahmad, learned counsel for the State. The case of the prosecution against the appellant is that on 19‑7‑1991 it about 9‑00 a.m. the appellant was intercepted at International Departure Hall Terminal No.3, Quaid‑e‑Azam Airport, Karachi by S.P.O./Seizing Officer Mr. S. Raghib Hussain Jaffery in presence of two mashirs namely Mohammad Pervaiz and Ejaz as he was found to be in possession of 9.8 K.Gs. of brown heroin powder and 0.5 K.G. of white heroin powder. The appellant was bound for Cairo/Lagos by Egypt Airlines Flight No.MS‑

871. Samples from the contraband were drawn and a notice under section 177 of the Customs Act was served upon the accused. On completion of the investigation, the appellant was challaned before the learned Special Judge Customs and Taxation.

3. As is evident from judgment of the learned trial Court, the appellant pleaded guilty voluntarily. His plea of guilt was, therefore, recorded and the applicant was accordingly convicted and sentenced to suffer rigorous imprisonment for six years and pay a fine. of Rs.2,00,000 in default thereof, to suffer further R.I. for two years.

4. It may be pointed out at the very outset that since the conviction is based on the plea of guilty, the present appeal is maintainable only in respect of the sentence awarded to the appellant by the learned trial Court. Mr. Niaz Ahmed has invited my attention to the case of Nick Kajtazi v. The State (PLD 1977 Karachi 1049) wherein pleading guilty to a charge of smuggling under section 156(1), clause (viii) was considered to be itself a mitigating circumstance calling for reduction of sentence of the accused. In this case the accused had allegedly been found in possession of 22 Kilograms of CHARAS. He was awarded six months' rigorous imprisonment and a fine of Rs.30,000 by the trial Court which was reduced to three months' simple imprisonment and a fine of Rs.30,

000. It would be highly advantageous to reproduce the following observations made by the Court in this regard: " ....However, a plea of guilty should operate in favour .of an accused and should be regarded as a mitigating factor when it comes to passing sentence. No doubt it will not be appropriate for a Court of Law to enter into a bargain with the accused in this respect. But due weight should be given to the plea of guilty as it reflects the mental attitude of the accused in that he is prepared to face up his responsibility and expresses his remorse. 1f the Court is convinced that the accused shows genuine remorse or penitence for what he has done, leniency in the matter of sentence is positively desirable. Judicial opinion has consistently regarded a plea of guilty as affecting the extent of the sentence. The reading of the judgment in appeal gives an impression that no adequate allowance was made by the learned Judge for the conduct of the prisoner in pleading guilty at the very first occasion available to him."

5. In the present case, the appellant has pleaded for mercy stating that this was his first offence and he has a wife and children and an old grand mother to support. Although there is nothing on record which can lend support to the said contention but at the same time it appears that the appellant has regretted his involvement in the offence and has expressed remorse. The sentence of six months' R.I. and fine of Rs.2,,00,000 appears to be very harsh and not in consonance with the circumstances enumerated above. Even Mr., Niaz Ahmed, learned Counsel for the State agrees that the appellant is entitled to concession in view of his pleading guilty to the charge. In the case just referred to in this judgment although a huge quantity of CHARAS weighing 22 K.Gs. had been recovered from the possession of the accused but his sentence was reduced from six months to three months by the learned Judge who heard the appeal in the said case. I am, consequently, of the view that a sentence of one year's imprisonment and a fine of Rs.50,000 would suffice in the present case considering the circumstance of the case.

6. In the result, this appeal is partially allowed and the sentence awarded to the appellant is reduced to one year's simple imprisonment and a fine of Rs.50,000 (Rupees fifty thousand). In case of default in the payment of fine the appellant shall suffer further S.I. for three months. N.H.Q./U‑125/K. Appeal partly accepted,