1995 P Cr (PLP)

Appellant Mrs. Kpoto Mary Foday (Special Criminal Jail Appeal No.10 of 1993), is a Sierra Leonean National and was intercepted at International Departure Hall, Jinnah Terminal Complex, on 3-12-1992 while leaving for Nairobi by P.IA. Flight No.PK-745. From her search, 1 Kg. heroin powder concealed in her suit-case was recovered. Charge was framed on 24-1-1993 and appellant pleaded guilty to the charge and was convicted and sentenced to R.I. for 1 year and fine of Rs.25,000 and in default of payment of fine to undergo further R.I. for 3 months. Appellant Deniel I. Nweke (Special Criminal Jail Appeal No.11 of 1993) is a Nigerian National and was intercepted at International Departure Hall, Jinnah Terminal Complex, Karachi, on 31-5-1993 while leaving for Dubai by P.IA. Flight No.PK-213. On search, 2.9 Kgs. of heroin powder concealed in 12 while paper rolls was recovered. Appellant filed a statement and confessed the guilt and waived the right of being tried. He. pleaded guilty to charge and stated that he was a poor man and only supporter of his large family. He is convicted and sentenced to R.I. for 4 years and fine of Rs.45,000 and in default of payment of fine to undergo further R.I. for one year. Appellant Miss Beverly Ann Sampson (Special Criminal Jail Appeal No.12 of 1993), is a Bahamas National and was intercepted at the International Departure Hall, Jinnah Terminal Complex, Karachi, on 14-12-1992 while leaving for Frankfurt by Lufthansa Airline Flight No.LH-637. On search of her suit-case 1 Kg. heroin powder concealed in the false bottom of the suit-case was recovered. She did not plead guilty to the charge and prosecution examined P.W.1 Gul Muhammad Seizing Officer, Mashir Javed Rafiq and Muhammad Iqbal Malik, Deputy Assistant Chemical Examiner Customs Laboratory, Karachi. After these witnesses were examined appellant filed a statement Exh.6, confessed the guilt and prayed for lenient view in awarding sentence. Her statement under section 342 of Cr.P.C. was recorded in which she admitted the commission of the offence. She is convicted to R.I. for 15 months and fine of Rs.20,000 and in default of payment of fine to undergo further R.I. for 4 months. All these appeals were submitted by the appellants through Jail but subsequently Mr. Rana M. Shamim, Advocate filed power in Special Criminal Appeals Nos.6 and 8 of 1993. These appeals were heard by me on 29-9-1993 and 12-10-1993. In some appeals Mr. Farrukh Zia Shaikh appeared for the State while in others Mr. Abid S. Zuberi, Advocate appeared for the State. I have heard the learned counsel and perused the record. It has been contended on behalf of the appellants that under section 412 of Cr.P.C. no appeal lies where conviction is recorded on the plea of guilt except as to the extent or legality of sentence. It is argued that in all these appeals the appellants pleaded guilty to the charge, expressed remorse and threw themselves at the mercy of the Court praying for lenient view and showing the reason why appellants committed the offence. It is further contended by the learned Advocate that no useful purpose would be served if appellants serve out the entire sentence and are then released. In support of these contentions Mr. Rana M. Shamim, learned Advocate for the appellants in some appeals, has referred to the following precedent:-- (a) Rodalf Josef v. The State 1983 PCr.LJ 1983, (b) Sirajdin v. The State 1987 MLD 1153, (c) Aboo Ibrahim Ghani v. The State 1988 MLD 908,? (d) Diangelo Tomasoo Italian v. The State 1989 PCr.LJ 840, (e) Muhammad Iqbal v. The State 1991 PCr.LJ 1323, (f) Abdul Majeed Soomro v. The State 1993 PCr.LJ

490. Learned counsel' appearing for the State have contended that the offence with which each appellant was charged is punishable to imprisonment upto 14 years and the trial Court already took a lenient view in awarding sentence which does not need any reduction, alteration and variation. It has also been argued that menace of narcotics, which has become so rampant could be stopped only if culprits involved in such offences are awarded exemplary punishment. Reliance in this reply is placed on Mrs. Munasingh Arach Chige v. The State 1990 PCr.LJ

62. The above contentions raised on behalf of the appellants as well as the State have duly been considered and the case-law referred by the learned counsel has been perused. Except in the case of appellant Miss Beverly Ann Sampson (Special Criminal Jail Appeal No.12 of 1993) in all cases appellants pleaded guilty as soon as the charge was framed and read over to them. Even in Special Criminal Jail Appeal No.12 of 1993, after examination of three witnesses, appellant moved an application, confessed her guilt and prayed for lenient view. None of the appellants are shown to have been previously involved in the case of smuggling of narcotics. It was, therefore, that the learned trial Court took a lenient view and awarded lesser sentence than what is provided under law. Superior Courts have always taken lenient view in such cases where the accused pleaded guilty and awarded lesser sentence than what is provided under law. In the case of Rodalf Josef 1983 PCr.LJ 1983 the accused charged for attempting to smuggle 460 grams of heroin and 45 grams of Charas, pleaded guilty to the charge before the trial Court and was sentenced to suffer R.I. for 6 months and fine of Rs.8,000 or in default of payment of fine to undergo further S.I. for a period of 4 months. In appeal, the sentence of imprisonment awarded to him was reduced to the period already undergone but the fine of Rs.8,000 was enhanced to Rs.12,000 and in case of non-payment of fine he was directed to undergo S.I. for 6 months. In the case of Sirajdin 1987 MLD 1153 the accused was convicted and sentenced to 3 years' R.I. for an offence under Article 11 of the Prohibition (E.O.H.) Order 1979. On appeal the appellant was directed to be kept under probation for one year and the sentence was converted as such. In the case of Aboo Ibrahim Ghani 1988 MLD 908 the accused was convicted for an offence under section 156(1) of the Customs Act for having attempted to smuggle huge Pakistani and Saudi currency, to 3 years' R.I. and fine of Rs.1,00,000 but in appeal, the same was reduced to the sentence already undergone before and-after his conviction, in view of the fact that he had faced agony for prosecuting his case for about 8 years in Pakistan. In the case of Diangelo Tomasoo Italian 1989 PCr.LJ 840 the accused was convicted for an offence under section 158(1)(8) of the Customs Act for attempting for smuggle 3 Kgs. of heroin to India and was convicted and sentenced to 4 years' R.I. and fine of Rs.10,

000. In appeal the sentence of imprisonment was reduced to that already undergone and the fine was reduced from Rs.10,000 to Rs.5,

000. In the case of Muhammad Iqbal 1991 PCr.LJ 1323 the conviction of an accused under section 156(1)(8) of the Customs Act for 4 years' R.I. and fine, of Rs.1,00,000 was reduced to imprisonment already undergone and fine was reduced to Rs.1,

000. In the case of Abdul Majeed 1993 PCr.LJ 490 the conviction of an accused under section 408 of P.P.C. was reduced from 5.years' R.I. to that already undergone by him, but the sentence of fine was maintained, on consideration of the ground that the accused was likely to lose his job, on conviction and was to be disqualified for future employment. In the case of Mrs. Munasingh Arach Chige 1990 PCr.LJ 62 which is cited by the learned counsel appearing for the State, a learned Judge of this Court observed that the sentence awarded to an accused charged for offence of attempting to smuggle out heroin from Pakistan should not be so lenient as to make crimes of such nature still lucrative. The sentence of two years' R.I. and fine of Rs.2,000 was maintained. As has been pointed out earlier, except in the case of appellant Miss Beverly Ann Sampson, all other appellants had pleaded guilty as soon as the charge was read over to them. No doubt the learned trial Court has taken a lenient view while awarding the sentence, yet in my view no useful purpose would be served if appellants who are all foreign nationals, undergo the sentence awarded to each one of them. They shall also have to undergo further imprisonment in default of payment of fine. These appeals were sent by appellants from jail which again shows that they had no resources to engage Advocates to represent them before this Court. Mr. Rana M. Shamim a senior Advocate of this Court had voluntarily agreed to appear for some of the appellants without any remuneration. The possibility that appellants were used as carriers and someone else was the actual beneficiary of the stuff recovered from appellants, cannot be ruled out. Although even carriers, they would not be entitled to any leniency, yet because appellants have pleaded guilty at the earliest, while maintaining the conviction, I direct as under:-? (a) The conviction of appellant Novak Eva Bermadett (Special Criminal Appeal No.6 of 1993) is reduced from 2 years' R.I. to the sentence already undergone and fine of Rs.25,000 ins reduced to Rs.10,000 and in default of payment of fine appellant shall suffer R.I. for two months. (b) In the case of appellant Mrs. Jean Claude-A-Attakenou (Special Criminal Jail Appeal No.8 of 1993 because the appellant has already been in jail since 10-12-1992, the sentence of two years' R.I. is altered to the one, already undergone. The fine of Rs.50,000 is reduced to Rs.25,000'/and'in default of payment of fine appellant shall undergo R.I. for three months. (c) In the case of appellant Ikenna (Special Criminal Jail Appeal No.9 of 1993) the sentence is reduced from 3 years' R.I. to one year's R.I. and the fine of Rs.35,000 is reduced to Rs.20,000 and in default appellant shall undergo further R.I. for two months. (d) In the case of appellant Mst. Kpoto Mary Foday (Special Criminal Jail Appeal N o.10 of 1993) the sentence of one year's R.I. is altered to one already undergone. The fine of Rs.25,000 is maintained and in default of payment of fine appellant shall undergo R.I. for 2 months as directed by the trial Court. (e) In the, case of appellant Deniel I. Nweke (Special Criminal Jail Appeal No. 11 of 1993) the sentence is reduced from 4 years' R.I. to 2 years' R.I. and fine of Rs.45,000 is reduced to Rs.25,000 and in default in payment of fine appellant shall suffer further R.I. for 6 months. (f) In case of Miss Beverly Ann Sampson (Special Criminal Jail Appeal No.12 of 1993), because appellant is in custody since 14-2-1992 the sentence of 15 months' R.I. and fine of Rs.20,000 is altered to one already undergone and appellant shall not be required to pay the fine as ordered by the trial Court. She shall be released forthwith if not required in any other case. N.H.Q./I-251/K?????????? Sentence reduced.