P L D 1977 Karachi 1049 (PLP)

4. Upon completion of the investigation the charge‑sheet against the appellant and 2 co‑accused was submitted on 38th July 1977 in the Court of Special Judge and the appellant was produced in Court. The appellant submitted an application showing his desire to plead guilty and stated that he is living in New York with a large family, that he came to Karachi on a business trip for purchasing carpets, that he is a victim of circumstances and that his father had expired in New York on or about 25th July 1977. The appellant waived his right for adjournment and was supplied the copies of the police statements.

5. On his own plea the case against t rye appellant was taken up for trial immediately and a charge ‑ under clause (8) of section 1560) of the Customs Act, 1969 for attempting to smuggle 44 Kilos of Charas on 16‑6‑77 was framed and read out to him to which he pleaded guilty and prayed for mercy. The learned Special Judge accepting the plea of guilty then passed the impugned judgment of conviction and sentence stated above.

6. I have heard Mr. Hassan Inamullah for the appellant and Mr. A. H. Lakho for the State.

7. The only question urged on behalf of the appellant Which requires consideration in this appeal is the question of extent of sentence. It was contended by Mr. Inamullah that the circumstances of this case did not cal for the imposition of the sentence of imprisonment. He however, did not question the extent of the fine imposed. Indeed he stated at the bar that the appellant Is willing to deposit the fine of Rs. 30,000 immediately. It was submitted that the appellant was detained on 10‑7‑77 and remained in custody as an under trial prisoner ever since until 28‑7‑77 after which he has continued to remain in jail custody as a convict. Counsel contended that the appellant being a foreigner, in consonance with the consistent practice of this Court, a sentence of fine only would sufficiently meet the ends of justice. In this behalf learned counsel has invited my attention to unreported decisions of this Court in Criminal Revision Applica tion No. ,125/74, Criminal Appeal No. 300/75 and Cr. Appeal No. 302/75 which were all cases of conviction for smuggling under section 156(1)(8), Customs Act and the sentences ultimately awarded were imprisonment until rising of the Court and a fine of Re. 50,000, Rs. 10,000 and Re. 10,000 respectively. No other reported cases was cited by the learned counsel bearing on the question of sentence. Mr. A. H. Lakho, learned Special counsel for the State on the other hand, strongly supported the sentence imposed by the impugned judgment and referred to 4 reported decisions which I will presently examine. Learned counsel further sought to distinguish the unreported decisions and contended that they cannot serve as an authority for the view that in case of a foreigner the sentence of fine alone was considered adequate. In this regard it was pointed out that in the first mentioned case the trial Court had awarded a sentence of imprisonment upto the rising of the Court and a fine of Rs. 50,000 or in default R. I. for 6 months. The convict was not able to pay the fine and was accordingly remanded to custody. The convict's appeal having failed in the Court of Sessions the matter was brought before this Court in revision. On behalf of the prisoner the only plea raised was for indulgence of the Court as he was a foreigner and friendless here. The Court, having regard to the fact that the prisoner had undergone imprisonment for 4 months in default of the fine came to the conclusion that this was sufficient punishment in the circumstances of the case and therefore modified the sentence of imprisonment in default of the payment of fine to the period already undergone. My Lord the Chief Justice Mr. Justice Agha Ali Hyder made the following observation : "Personally I am of the opinion that in the cases of organized smuggling, deterrent sentences should be given, but in this case only fine was awarded, and even that could not be paid." In the next cited case the appellant was sentenced to imprisonment until the rising of the Court and to pay a fine of Rs. 15,000 or in default to suffer R. I. for 1i years. In this case an offer was made on behalf of the appellant that he was willing to pay Rs. 10,000 as fine and it was pointed out that he had remained as an under trial prisoner for 21 months after which he had served 3 weeks as a convict. Taking into consideration all these circumstances, the sentence was reduced to rising of the Court and a fine of Re. 10,

000. In the third cited case the material facts were more or less identical except that the fine imposed was Rs. 14,000 and period of imprisonment suffered by the appellant in that case as an under trial prisoner was one week. The sentence in this case was also modified by reducing the fine to Rs. 10,000.

8. No decision was cited before me which has particularly examined the question as to the principles which govern the selection of sentence In case of a conviction for any offence. It seems that the dearth of decisions in this country dealing specifically with this question stems out of the rule that an appeal cannot be admitted on the question of sentence only. Section 412 of the Criminal Procedure Code, however, creates an exception to the rule in cases where the conviction has taken place on an admission of guilty by an accused person. such a case the accused is authorised by express statutory provision to question in appeal the sentence of the lower Court as regards its extent by which is meant that the sentence beyond what the circumstances of the case require or the illegality of the sentence as not authorised by the law. However, no decision was brought to my notice on the question of quantum of sentence on this section.

9. The learned Special Counsel referred me to a Lahore case reported as Abdul Sattar v. State (1968 P Cr. L J 1213 ) which was a case under section 43(3) of the Abkari Act and 9(a) of the Opium Act where Shaukat Ali, J. (as he then was) expressed the view that in Excise cases not only offender's body should be mortified, but his pocket should also be burdened, because the offence under the Excise Law results in the loss of Excise revenue, besides affecting the morals and health of the nation and resulting increase In crimes. He further observed that a heavy sentence of fine may be preferred to a sentence of imprisonment particularly in cases of first conviction for infraction of the Excise Law, but warned that the imposition of petty fine would tend to encourage the gambling instinct. Ii will be observed that the learned Judge's mind was influenced in expressing this opinion by various theories and concepts of punishment namely retribution, individual deterrence, general deterrence, protection of the public and Rehabilitation. This case is a classic example of the difficulty in laying down or identifying the aims to be achieved in selecting the appropriate punishment to fit a particular crime. In Erfan Shaikh v. State (1971 P Cr. L J 864) the next case cited at the bar, the learned Judges while considering the sentence for smuggling under section 167(81) of the Sea Customs Act considering the fact that the accused had already suffered for about 4 years in jail and lost theft bullocks and goods, reduced the sentence to that already undergone. In Akhtar Hassan Khan v. State (P L D 1969 Lah. 929) the Division Bench, in reference to a conviction under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act expressed the view that the proper gay of putting down the evil of public servants accepting bribe is to award the offender deterrent punishment.

10. From a review of the aforesaid decisions it is difficult to extract uniform principle for determination of the sentence in cases of the nature tinder consideration. The aims to be achieved by a penal system is a complex question and theories of punishment have in the course of history varied from age to age. The traditional approach of the penal theories Was the idea that the punishment should fit the crime. But the modern trend is towards the individualistic approach to sentencing as distinct from punishment, so that the sentence to be selected must be appropriate to the individual. This implies that there cannot be any hard and fast rules for sentencing with reference to the crime alone and Courts are therefore, called upon to undertake the complex exercise of selecting the recognised theories and principles for arriving at appropriate sentence In particular cases. It has now been established by expert of modern penology that sentencing has five commonly identified aims, i.e. (1) Retribution. (2) Individual deterrence. (3) General deterrence. _ (4) Protection of the public. (5) Rehabilitation. . In actual practice it will be observed from the reports of the judgments, as would be seen from the cases referred to above that Judges have consciously or unconsciously been influenced by the one or the other theory in reaching their conclusion as regards appropriate sentences in particular cases. It is now well established that it is not obligatory for a Court to assign reasons in awarding a particular sentence. This has farther complicated the task of one who would like to identify the considerations with reference to the aforesaid aims to be achieved in awarding the sentence in particular cases.

11. The concept of retribution is based upon the idea of "Collective Revenge" of the society from the wrongdoer. The underlying principle in that case is that the offender must get his just deserts for the wrongful act which the society enjoins him from doing. The considerations that prevail with the sentences are to seek a sentence comensurate with the gravity of the offence and proportionate to the offender's culpability. Therefore, mitigating circumstances would become relevant. In the words of Lord Denning, 'the ultimate justification of any punishment was not that it was a deterrent but that it was the emphatic denunciation by the community of the offence. Thus in England offences against the Officials Secret Acts have been denunciatory sentences.

12. While retribution is mainly concerned with the past conduct deterrence is directed towards future behaviour. The concept of deterrence is based upon the theory that the particular offender before the Court be deterred from offending again and the object of the sentence is to teach him a "short. sharp, lesson". General deterrence serves to create an example for others. In the case of prevalence of a particular offence, particularly where the Legislature has recognised such prevalence and passed special laws to increase the general deterrence, the object obviously is to stamp out the incidence of the offences of the particular nature. In such cases the dominant consideration while awarding sentence is the genera deterrence. The next aim to be achieved is the protection of the public which has the general interest in the reduction of crime. This theory is sometime referred to as the 'prophylaxis theory' which has for its object the detention of the offender so that he may physically be prevented from D repeating his offences. The sentence, if this object is to be achieved, is necessarily to be adequately long. Lastly is the theory of Rehabilitation the objective in which case is to encourage the offender to reform himself and be a good member of society and to refrain from criminal behaviour in the future.

13. The above analysis of the aims to be achieved by appropriate sentencing would indicate that what is needed is not uniform sentences but uniformity in the approach to sentencing. The discretion that the Legislature vests in the matter of sentence subject to the safeguard by imposition of maximum limits to penalties, is given with a view to allow scope for awarding appropriate sentence in the facts and circumstances of the particular case in preference to a system of fixed penalties 4e a tariff charge.

14. In the light of the aforesaid discussion the question that falls for determination is whether the Infliction of sentence of imprisonment ' in the circumstances of the present case is justified or not. Fortunately in the present case the learned trial Judge has assigned reasons in support of the sentence, which may be set out in his own words ;‑ "However, the quantum of sentence requires some consideration. The Charas involved in the case is huge in quantity viz. 44 Kilos nearly about 1 maunds. The accused appears to have visited Karachi twice within a very short period and apparently with no other business. The smuggling of Charas has become international racket, which is attracting attention of all the countries of the world and international agencies like Interpol. Mere imposition of fine would not serve the ends of justice and cannot be considered as an adequate punishment even in the cases where the accused pleads guilty. In a case reported in 1976 P Cr. L J his Lordship has remarked that "margin of profit in business of smuggling being so high, smugglers do not care being arrested especially when they can hope to get released on bail within a short time. If the smugglers are let off by imposition of fine only, it would encourage rather than discourage them from smuggling. For smugglers who have got international connections and when margin of profit in smuggling is great, payment of fine of a few thousand dollars would have no effect. The purpose of punishment In criminal cases is not only punitive but it is also to set an example to others that the crime does not pay. At the same time too harsh punishment is generally not awarded in cases where the accused voluntarily pleads guilty."

15. The above passage from the impugned judgment, I am tempted to say, admirably brings out the workings of the mind o! the learned Judge clearly and succinctly and the ground which weighed with him to decide about the question of sentence. An analysis of the reasons will reveal that the learned Judge considered the following factors : ‑ (1) The nature and type of goods involved. (2) The conduct of the accused bearing upon the extent of his culpability. (3) The prevalence of the offence to smuggling on a world‑wide scale and the international concern expressed by its denunciation. (4) The effect of deterrent punishment of imprisonment upon other smugglers requiring the punishment to be examplary." The first two factors are referable to the theory of the Retribution, the third and fourth refer to the concept of General Detterrence.

16. It cannot be denied that smuggling generally has become today an organized industry of the under world on an international scale but the smuggling of narcotics has become scourage of global dimensions which has appalled and bewildered governments and law enforcing agencies. The developing countries like Pakistan have become particular targets of the rich and Influential racketeeres who operate by exploiting the poverty of citizens and by corrupting greedy public officials to achieve their nefarious objects. The smuggling of narcotics by foreigners inevitably attracts interna tional attention and possibly has an impact on the foreign relations of Pakistan with other countries. It is undeniable that in recent years the offence of smuggling and particularly in respect of narcotics has shown tremendous increase so that the Legislature had acknowledged the prevalence of this offence by enacting special laws in the form of the Prevention of Smuggling Act, 1977 which has constituted Special Courts for trial of offences under the Customs Act and the Special Appellate Court for hearing appeals arising therefrom. As regards the particular offence of smuggling under clause (8) of section 156(1) of the Customs Act it is remarkable that the maximum punishment provided for this offence by the Act as originally enacted was 6 years. But by Act L of 1973 the maximum penalty was altered to 10 years imprisonment. In my view this is a relevant consideration and governs the question of sentence in so far as the Legislature has recognized the need for more serve punishment to suppress the mischief in view of the increased prevalent of the offence. The deterrent aspect of the punishment viz‑a‑viz this offence has therefore been emphasized. The sentences imposed prior to this amendment for this offence therefore cannot serve as a yardstick for determining the quantum of sentence in the present state of the law. It is needless to emphasize that a sentence cannot be awarded like a rule of tariff. At the cost of repetition I would once again emphasise that it is the approach which is intended to be regulated towards sentencing by the theories of punishment rather than the awarding. of sentences themselves.

17. In view of the above discussion therefore. I find no reason to disagree with the learned Special Judge that the factors taken into considera tion by him were relevant for the purpose of determining the sentence. 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 e 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. If the Court is convinced that the accused shows genuine remorse or penitence for what be 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. 18. 1n view of all the aforesaid circumstances, I am of the view that the ends of justice would be sufficiently met if the sentence of the appellant is reduced to simple imprisonment for 3 months and a fine of Rs. 30,000, In case of default the appellant shall suffer R. I. for 1 years. The appeal partially succeeds to the extent stated above and stands disposed of accordingly. S. Q. Appeal partly accepted.