1997 PLP 1162 (MLD)

Nemo for Appellant. Farooq H. Naek, D.A.‑G. for the State. Date of hearing: 7th March, 1996. The appellant was convicted by the Special Judge (Customs and Taxation) Karachi, in Case No.42 of 1995 under section 156(1)(8) of the Customs Act, 1969 and was sentenced to suffer R.I. for two years and to pay a fine of Rs.15,000 or in default in payment of fine the accused shall undergo further R.I. for six months. The facts of the prosecution are that on 10‑2‑1995 at about 18‑30 hours Customs Officer Ch. Fayyaz Ahmad intercepted the accused in the International Departure Hall, J.T.C., Karachi Airport. The accused was found to leave for Entebbe by Flight No.GF‑4017. The Customs Officer suspected the accused to be carrying heroin powder in his body, therefore, he took the accused to a clinic for his body X‑ray. The X‑ray report confirmed the presence of foreign bodies in the shape of capsules in the stomach and abdominal region. The Customs Officer then brought back the accused to Customs Drug Cell Office where in presence of Doctor and Mashirs the accused excreted 72 capsules containing 950 grams of heroin powder. The Customs Officer seized the capsules containing heroin powder and arrested the accused under a Mashirnama. The accused/appellant was served upon with the notice under section 171 of the Customs Act and thereafter the F.I.R. was lodged and after completion of usual investigation the accused/appellant was challaned in the Court. At the trial the accused moved an application Exh.2 wherein he confessed the guilt and requested that his case may be decided. Accordingly the trial Court framed the charge under section 156(1)(8) of the Customs Act, 1969. The accused pleaded guilty and also prayed for mercy of the Court. The learned trial Judge keeping in view the plea of guilty of accused and showing leniency in convicting the accused/appellant for term mentioned hereinabove. The accused/appellant has preferred this appeal through Jail Authorities and he was called from the jail and has been heard. He has contended that he is a foreigner and lenient view so far as conviction is concerned may be taken into consideration. I have heard the accused/appellant. I have also heard D.A.G. who has opposed this appeal on the ground that the trial Court in the first instance has already shown leniency in awarding sentence to him whereas the offence is punishable for R.I. of 14 years. I have perused the record and gone through the R&P of the case and applied my mind to the sentence awarded by the learned trial Court, which has already shown leniency in awarding sentence to him. This Court vide its order, dated 17‑8‑1995 for calling upon the Investigating Officer to explain the position as to what efforts were made by the Investigating Officer to treat this accused as carrier or heroin supplier and what were the circumstances on account of which he took least pain to find out the actual supplier. The Investigating Officer Mr. Shamim Ahmad Khan, is present in person. He has submitted his explanation wherein he has stated that "he could not proceed to Lahore and Islamabad due to financial constraints as investigation like this entails prolonged stay in the city of Lahore and Islamabad and possibly Peshawar. Had the heroin been supplied to the accused some where in the vicinity of Karachi and even suburbs the undersigned could have made efforts to find out the supplier/financier". I have taken into consideration the facts explained therein. The explanation submitted is accepted and in future he is directed to be very vigilant in the case in arresting the supplier also. The trafficking in the narcotics is a crime against humanity and actually now a days it has become problem for the society at large. By not awarding severe punishment to the culprit, on finding guilty by the Courts, actually, the trafficking in narcotics is increased rather than decreased. That contention of the appellant to show some leniency in reducing sentence which has already been granted to him. I would like to refer the case of the State through Deputy Attorney‑General v. Muhammad Siddique 1996 SCMR

246. In this matter the State has moved to the Honourable Supreme Court. The facts of the case are that Muhammad Siddique respondent was apprehended alongwith Zardad Khan his co‑accused on 5‑5‑1992 at OS‑00 hours within the limits of village Jalala on Mardan‑Malakand Road while smuggling 8500 Kgs. 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 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 years 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. In this background the State submitted leave to appeal in the Supreme Court bearing No.43‑P of 1993 and with the following observation the leave was granted:‑‑ "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 was of smuggling of huge quantity of 8500 Kgs. 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." In this case also the appellant was apprehended by the prosecution and excreted 72 capsules containing 950 grams of heroin powder as already pointed out hereinabove. The punishment for this offence is 14 years and the learned Special Judge has already shown leniency in awarding sentences. At the time of admission of the appeal the accused was not served with the notice calling upon him as to why his sentence may not be enhanced? But at the hearing of the appeal, prior notice was not issued to the accused, therefore, reluctantly I am not going to enhance the sentence unilaterally but in view of the observation of the Supreme Court in the case referred hereinabove there is no substance in this appeal which accordingly is dismissed. N.H.Q./O‑3/K Appeal dismissed.