1997 P Cr (PLP)

Roshan Issani, D.A.-G. for the State. Date of hearing: 8th August, 1996 This Special Criminal Jail Appeal was filed by the appellant Bashir Olanrela Abatan, a foreign national, who had been convicted on his plea of guilt by the Special Judge (Customs and Taxation) on 2-10-1994. The allegation against the appellant was that when he was leaving for Addis Ababa by Ethopian Airline on 17-9-1994 he was intercepted by Customs Authorities at the departure hall of Jinnah Terminal, Karachi Airport. His baggage comprised of 11 cardboard cartons containing 242 Starvac Vacuum Flasks. On search in presence of Mashirs 6 kilograms of brown coloured heroin powder was found from the cavities of these vacuum' flasks. Appellant was arrested and after necessary formalities were completed he was produced for trial before the Court of Special Judge Customs and Taxation, Karachi. The appellant was charged with the offence of having made an attempt to smuggle out of Pakistan 6 Kgs. of heroin powder, an offence punishable under section 156(1)(8) of the Customs Act of 1969. This charge was read out to him by the Judge on 2-10-1994. In reply to this charge, the appellant pleaded guilty and apart from his oral acceptance of the plea which he himself signed, he also moved an application in writing in his own hand in which also he having pleaded guilty to the charge requested the Court to show mercy and pass a lenient sentence against him in the name of Almighty Allah.. The Court considering the genuineness of the plea passed the sentence of 6 years' R.I. coupled with a fine of Rs.1,00,

000. In case of default in payment of fine, the appellant was ordered to undergo further R.I. for 2 years.

2. From the Jail the appellant submitted this appeal, which is written on 3 pages on foolscap paper entirely in his own handwriting, which is also very fine and beautiful handwriting. In this memo. of appeal he had pleaded for mercy and explained how he committed this offence. The substance of his explanation was that he came to Pakistan through Wagha Border from the city of Amritsar with the purpose of doing business in the field of fashion accessories and other general goods, which he wanted to sell in African Markets. He further stated in his memo. of appeal that he had another partner in this business, namely Rahman Adegoke, who had given him the consignment and he was taking that consignment out of Pakistan when he was intercepted and heroin was recovered. He admits that heroin was recovered from that consignment but that it was his stupidity having accepted the consignment without knowing its contents. Further he pleaded for mercy in the memo of his appeal.

3. Under the provisions of section 412, Cr.P.C. having pleaded guilty, the appellant could not question the judgment on merits. However, the appellant could be considered only for the purpose of reduction of the sentence.

4. I have heard the learned counsel for the appellant and the appellant himself was also given a chance to ad4ress the Court. The appellant himself appears to be a literate person and is very fluent in English. He repeated the same plea which he has taken in his memo. of appeal sent from jail. I have also heard the learned D.A.-G., who vehemently opposed any concession to the appellant in his sentence. This is a clear case where an attempt to smuggle heroin out of Pakistan was made unsuccessful by the Customs Authorities.

5. After having considered the case from all angles I do not find anything illegal or improper to the sentence awarded to the appellant and, therefore, appeal absolutely merits no consideration the same is rejected. However, one part of the sentence has been considered by me to be a little harsh i.e. the amount of fine and the imprisonment awarded in lieu thereof. The amount of fine is reduced from Rs.1,00,000 to Rs.25,000 (Rupees twenty-five thousand only) and in default in payment of fine, it is ordered that the appellant shall undergo imprisonment for 6 months more. I have also kept in mind that the trial Court has given the benefit of section 382-B, Cr.P.C. to the appellant. With this modification in the sentence the appeal is dismissed. N.H.Q./B-7/K Fine reduced