QAISER AHMED HAMIDI, J.--1. Appellant Bonifacio-A-Burayage, a Philippine National was tried by Special Judge (Customs), Karachi, for the offence under clause (8) of section 156(1) of the Customs Act, 1969, who found him guilty and vide judgment, dated 9th April, 1990 sentenced him to suffer R.I.
For seven years and to pay a fine of Rs. 5,00,000 (Rupees five lacs) or in default to suffer R.I. For two years. The benefit of section 382-B, Cr.P.C, was, however, extended to him. By this appeal filed under section 185-F of the Customs Act, 1969, read with sections 408/412, Cr.P.C., the appellant has challenged his conviction and sentence.
2. On 20th May, 1989 at about 10-30 p.m. The appellant while leaving for Amsterdam by KLM Flight No. KL-802, was apprehended at Customs Examination Hall, Terminal No. 3, Karachi Airport and was found in possession of 8 Kgs. Of powder of heroin concealed in two suit-cases and two wooden frames. Such inventory was prepared in presence of mashirs Samual Sutra and Tufail Barkat. A notice under section 171 of the Customs Act, 1969, was also served upon him. Such F.I.R, was registered and after usual investigation the appellant was sent up to stand trial for the said offence.
3. The appellant pleaded not guilty when the charge was read out to him and wanted to be tried. At the trial the prosecution examined Salahuddin P.O. (P.W. 1), Muhammad Iqbal Malik, Deputy Assistant Chemical Examiner (P.W. 2), Samual Sutra (P.W. 3), Tufail Barkat (P.W. 4), Syed Muhammad Saghir S.P.O. (P.W. 5), and Allah Wasayo Zubair Investigating Officer (P.W. 6).
4. The appellant admitted his guilt in his statement recorded under section 342, Cr.P.C. He did not examine himself on oath. No defence was also led by him.
5. On the assessm ent of evidence available on record coupled with the admission of guilt made by the appellant, the learned Special Judge convicted the appellant and sentenced him accordingly.
6. There is a clear distinction between a "plea of guilt" and an "admission of guilt". Section 412 Cr.P.C, which bars an appeal except as to the extent r legality of sentence is attracted only when the accused is convicted on his plea of guilty in exercise of the discretion of the Court under subsection
(2) of section 265-E, Cr.P.C. The case of Krishna Chandra Sinha v. Emperor, reported in A.I.R. 1943 Patna 313, is relevant on this point. The admission of an accused person in his statement recorded under section 342, Cr.P.C, can be considered as a piece of evidence against him provided that the facts alleged constitute an offence. Since there is overwhelming evidence on record coupled with the admission made by the appellant in his statement recorded under section 342 Cr.P.C, to prove him guilty for the offence with which he is charged the learned counsel representing him has confined his arguments to the severity of sentence alone with a prayer that the same may be reduced to a reasonable limit. Reliance is placed upon the following judgments:-
(i) Zakaria and 7 others v. The State 1976 P. Cr. L.J. 166.
(ii) Nick Kajtazi v. The State PLD 1977 Kar. 1049.
(iii) Carlos Graiben V. The State 1978 P. Cr. L.J 209.
(iv) Ehsan Elahi Malik v. The State 1980 P. Cr.LJ 186.
(v) Denis Lucien Robidoux v. The State 1982 P. Cr. U813.
(vi) Unreported judgment in Special Criminal Appeal No. 7 of1982. Mohim Delivery v. The State.
(vii) Unreported judgment in Special Criminal Appeal No. 32 of 1983. Noorullah v. The State.
(viii) Nadir Khan and another v. The State 1988 SCM R 1899.
6A. The cases S. Nos. (i) and (viii) relate to carriers. The appellant has not pleaded so in his statement under section 342 Cr.P. C. In the case mentioned at S. No, (iii) a learned Single Judge of this Court while reducing the sentence of a foreign national observed as follows:-- "Personally I am of the opinion that in cases of organised smuggling deterrent sentences should be given....."
"
7. In the case of Nick Kajtazi v. The State, listed at S. No. (ii) his Lordship Zaffar Hussain Mirza, J. (a's he then was) after discussing the aims of penal system and theories of punishment observed, as follows:-- "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 like a tariff charge."
8. The ratio of the remaining authorities is that question of sentence is to be determined on facts of each particular case and no hard and fast rule can be laid down. 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. In fact the learned Special Judge has followed the view taken by me in Mrs. Munasingh Arachchige v. The State, reported in 1990 P. Cr. U 62. Paragraph 5 of this judgment is relevant and is reproduced below:- 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."
9. In the result the appeal fails and is dismissed accordingly.