1. ' JUSTICE MUHAMMAD AFZAL ZULLAH (CHAIRMAN).--Leave to appeal has been sought against the dismissal by the Federal Shariat Court of petitioner's Criminal Appeal; whereby her conviction under Prohibition (Enforcement of Hadd) Order, 1979 and sentence of 3 years' R.I. And a fine of Rs,2,000 was upheld. Not only this in exercise of revisional jurisdiction the Appellate Court enhanced the sentence under section 4 of the Order. The mandatory sentence of whipping was also awarded and the petitioner was ordered to suffer 10 stripes. The prosecution case as narrated in the impugned judgment is as follows:-- "P.W.2 Hashim Khan S.H.O. Of Police Station Baghdadi was conducting investigation of Crime No,567/88. When he reached at Saili Lane, he received spy information that one lady and one man were selling Heroin powder in Gali No,
4. He proceeded to that place and found appellant and one man standing at a short distance to each other. He caught them and on her search he recovered 30 thailis containing 10 grams each, 20 thailis containing 5 grams each and 200 thailis containing 100 grams. He also secured currency notes amounting to Rs,155 from her pocket. He also searched a person, namely, Shambay and recovered 100 puries containing 50 grams and Rs,55. He scaled the Heroin powder separately and arrested the appellant and Shambay. He prepared mashirnama and brought the accused at Police Station and lodged separate reports against both the accused."
2. ' The petitioner in her statement under section 342 of the Cr.P.C. Denied the allegation and stated that the witnesses are Police Officers and she had made a complaint against the Police that her son was also involved in a similar case but was subsequently acquitted. In her statement under section 340, Cr.P.C. It was claimed that she had given birth to 7 children; 3 of whom are useful employees, she is a housewife and have no reason to indulge in the alleged profession. She also asserted that she was arrested from her house. None was examined by her in defence.
3. ' Learned counsel after reading the material evidence contended that the witnesses have purgered themselves and that in reality the petitioner being a lady in the above circumstances was not likely to indulge in what has been slated against her. He also contended that the petitioner was not searched by a lady Police Official. Similarly he argued that no respectable person from the locality was asked to witness the recovery. On the same line he remained of the view that it was impossible for a lady, the housewife, to stand in the lane selling the abnoxious merchandise, and that too at 7- 15 a.m. In the morning. In the alternative he contended that the Federal Shariat Court should not have enhanced the sentence by adding 10 stripes in exercise of its criminal revisional jurisdiction; because, the accused/convict is a lady.
4. ' Regarding the appreciation of evidence, there is nothing in the depositions of the witnesses including the cross-examination so as to come to a conclusion that the petitioner was the victim of previous enmity with the Police and thus also of false implication. Although her son might have been acquitted in another similar case but that will not make any difference. If the entire family indulges in the profession of selling narcotics and that also to lower strata of the society, this to say least is a cruel act against an innocent section of society. If at all the son was acquitted, Shambay her co-accused, it is mentioned in the impugned judgment, was not only convicted but he also accepted the conviction and did not challenge it in appeal. Thus in the circumstances of this case the witnesses have already been found, in the connected trial, to be trustworthy. The time, locality and other circumstances of the case are such that: firstly, no respectable might be available; and secondly, if available he might not have considered it suitable for him to be involved, in any manner, in an enterprise like the present one. The technical points regarding section W3, Cr.P.C.
5. Accordingly, in this case have no force. The other technical point regarding search by a lady Police official is also without any force; firstly, it was not a case of search; and secondly, such a defect cannot vitiate the trial. Accordingly, we find no justification to interfere in so far as the finding regarding guilt is concerned.
6. ' On the question of sentence, after going through the relevant provisions, the learned counsel kept on insisting that even though the sentence of stripes in this case was mandatory, the petitioner being a woman and the exercise of jurisdiction being discretionary in Criminal Revision, the Federal Shariat Court should have avoided adding the sentence of stripes. The Federal Shariat Court when examining this aspect of the case observed as follows:-- "In case any accused is convicted under Article 4(ii) of the Prohibition of (Enforcement of Hadd)
7. Order, 1979 he is liable punishment for imprisonment of life and whipping not exceeding 30 stripes and also liable to line."
8. ' "The learned trial Judge has not awarded the punishment of whipping on the ground that she is a lady. In my view this position is not correct. The whipping is the mandatory requirement of law in case of conviction and there is no distinction in male or female while awarding the sentence. I have also heard Mr. Umar Farooq Khan on this point. He has also agreed that whipping is mandatory requirement of law. In suo motu powers under Article 203-DD of the Constitution, I order that she should suffer the sentence of 10 stripes in addition to the sentences already awarded by the trial Court."
9. ' In so far as the legality of the aforequoted order is concerned the learned counsel has not disputed it. The general argument that a woman could not be awarded the sentence of stripes in revisional jurisdiction is too wide to be accepted. While maintaining the general principle that the criminal law in Pakistan looks at criminal acts by women with sympathy and compassion; its exercise however depends upon the circumstances involved and further the approach might differ from case to case. In the present case, we are fully satisfied B that the petitioner was playing a master's role in this highly obnoxious profession which is also injurious to the society at large. The extreme, harsh and deterrent punishments thus in such cases should be the rule while lenient sentences should be exception. The sentence awarded in this case, in our view, is a lenient one and can be treated as exceptional and that too on account that the petitioner is a lady herself belonging to the lower strata of the society. Accordingly, it is not a case of any further leniency. She has already been shown enough by the Courts below.
10. ' In the light of the foregoing discussion there is no force in this petition. Leave to appeal, accordingly, is refused.