1993 P Cr (PLP)

5. It is contended on behalf of the appellant that sentence awarded by the learned Special Judge is excessive and out of proportion to the admitted facts and circumstances of the case. An attempt has been made to make it a case for reduction of sentence for the following reasons:-- (i) That the appellant is a sick man awaiting surgery. (ii) That the parents of appellant are of advanced age and of critical health. (iii) That the wife of the appellant was in family way. (iv) That the appellant had no previous criminal record. (v) That the appellant had entered a plea of guilt at the first available opportunity. (vi) That the appellant had suffered adverse publicity in the newspapers, both locally and in United States of America and his career as Merchant Marine Officer has been ruined. (vii) That the appellant would further have to submit himself to the adjudication proceedings before the Assistant Collector (Customs) Karachi. (viii) That the offending drug was a soft drug as compared to powder of heroin.

6. The question of sentence in cases of this nature was considered by this Court in the case of Mrs. Munasingh Arachchinge v. The State reported in 1990 P Cr. L J 62, wherein it was observed:-- "Section 412, Cr.P.C., bars an appeal where an accused pleads guilty, except to the extent or legality of sentence. There is nothing illegal in the sentence awarded to appellant. The sentence in fact leans towards leniency. The object of punishment, as pointed out by Tyron Edward, is `three-fold: for just retribution: for the protection of society; for the reformation of the offender', The length and severity of the sentence has, therefore, to be determined on the circumstances of each case, keeping in view the object of punishment. There is alarming increase of such cases which is mainly due to lenient sentence. It is important to stress that such situation arises, not from the law itself, but from their defective understanding and interpretation. There is a certain amount of tentativeness at all levels. The sentence should not be so lenient as to make crimes of this nature still lucrative. The foreigners who are involved in such heinous offences are again not entitled to any preferential treatment. The object of awarding sentence is to provide a deterrent effect on others."

7. This view was reiterated in the case of Bonifacio A. Burayag v. The State reported in 1991 P Cr. L J 22, in the following words:-- "The sentence should, however, be proportionate to the nature and gravity of crime and it should not be so lenient so that such crimes may still remain lucrative. The appellant was found in possession of 8 Kgs. of powder of heroin worth crores of rupees in foreign market. He did not come out with truth at the initial stage of the case and was constrained to admit his guilt when he had no other option. The offence of smuggling of narcotics is spreading like a lotus and in fact it is high time now that the Legislature may consider the desirability of providing death penalty for such offences. It may be added that much water has passed under the bridge since the time the above judgments cited on behalf of the appellant were pronounced and the situation has now become alarming. The appellant was, therefore, rightly convicted and sentenced."

8. The view taken in the above case was examined by the Supreme Court in the case of Bonifacio-A-Burayag v. The State reported in P L D 1991 SC 988, and was confirmed in the following words:-- "Where a legal sentence has been awarded and the discretion has been properly exercised, generally speaking, this Court seldom interferes with the sentence awarded to a convict. 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 P L D 1987 SC

500. We may add that while awarding the sentence in a case, regard has to be had if there existed extenuating circumstance 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 P L D 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. The petitioner was smuggling heroin powder in the quantity of 8 Kgs. This quantity had the potential of destroying the health and family life of a large number of people. The appellate Court has dealt with this aspect of the matter very elaborately."

9. While considering this question in the case of Anthony George v. The State reported in 1992 M L D 2202, this Court again observed as follows:-- "It must, however, be remembered that undue leniency far from having a deterrent effect, which is the end and aim of all punishments, tends to result in offences of this nature being repeated or made widely committed. The main object of punishment is not revenge but the protection of society."

10. Punishment is, before all things deterrent, and the chief end of the law of crime is to make the evil doer an example and a warning to all that are like minded with him. In the words of Salmond:-- "If a man is destitute of the affections and social instincts of humanity, the judgment of commonsense upon him is not that he should be treated more leniently than the normal evil doer

not the society should cherish him in the hope of making him a good citizen

but that by the rigour of penal discipline his fate should be made a terror and a warning to himself and others." (Jurisprudence, page 119).

11. No leniency on the ground of sympathy should be extended to such a person. Sympathy for such a person means lack of sympathy for drug addicts and their weeping relatives and dependents. If the reasons advanced on behalf of appellant (except few which have already been considered by learned Special Judge) are to be accepted, it would mean that an accused with old parents should not be sent to prison at all. On conviction an accused has to be, treated as a criminal. The offence with which the appellant was charged and convicted is punishable with imprisonment for 14 years. The appellant was sentenced to suffer R.I. for four years and to pay a fine of Rs.2,00,000 (Rs. two lacs). The sentence was, therefore, appropriate and does not call for any interference.

12. In the result the appeal fails and is dismissed. The perusal of the record, however, indicates that the appellant is a sick person and he needs immediate surgery. In such a situation the appellant may approach the concerned Government for remission of sentence, under section 401, Cr.P.C. if so advised. The case of Behram v. The State reported in P L D 1965 Quetta 15, serves as a guideline. N.H.Q./J-149/K Appeal dismissed.