ORDER NAIMUDDIN, The petitioner has been convicted under section 156(1 )(8) of the Customs Act, 1969 and has been sentenced to suffer rigorous imprisonment of 7 years and to pay a fine of Rs.
5,00,000, failing payment thereof he is to undergo a further rigorous imprisonment for 2 years, by the Special Judge, Customs and Taxation, Karachi. He was also given the benefit of section 382-B, Cr.P.C. The petitioner, in his statement recorded under section 342, Cr.P.C, had frankly admitted the prosecution allegation and stated that he had purchased heroin powder in Spain and from there he brought it to Pakistan and he wanted to take it away to Amsterdam, when he was caught. The quantity of heroin powder. Secured from his possession was 8 Kgs. Which he attempted to smuggle.
2. From his conviction and sentence he appealed to the High Court but the High Court rejected the appeal by the judgment dated 26th July, 1990. By this petition, petitioner seeks leave to appeal from this judgment of the High Court.
3. The only ground urged in support of this petition by Mr. Rustam Kaikobad, learned counsel for the petitioner, is the quantum of sentence awarded to the petitioner. The petitioner's counsel submitted that the sentence awarded to the petitioner is very harsh taking into consideration the quantity of the heroin secured from the petitioner.
Maximum sentence that could be awarded to him under the law is life imprisonment. In our view by awarding to him 7 years' R.I. He has not been treated very harshly. learned counsel relied on two judgments of this Court. The first case is that of Muhammad Rafique v. The State 1990 SCMK 602. In this case the Shariat Appellate Bench of this Court observed as under: "On the question of sentence we devoted our anxious consideration to the peculiar features. Learned Judges of the Federal Shariat Court were right in observing that a case like the present one would justify a severe sentence. They are also right that "the heroin has become a menace for the society." But this and other considerations were not at all ignored by the learned trial Judge. He, keeping in view the circumstances of this case, awarded somewhat heavy sentence of 7 years' R.I. And a fine of Rs.
10,000 together with 10 lashes (stripes). It appears that the learned Judges of the Federal Shariat Court took note of one aspect of the case only in matter of sentence and failed to notice the extenuating circumstances found in the admissions of Captain Raees Ahmed Khan a star prosecution witness. We have already noticed them. The witness has been allowed due benefit in this behalf, on the question of credibility. The admissions in so far as they go in favour of the appellant were, it appears, kept in view by the trial Court but ignored by the Federal Shariat Court.
Moreover, the highest punishment of imprisonment for life, if is awarded to a person who is neither owner smuggler nor a carrier but only is found in possession of the narcotics, what higher punishment would be reserved for a carrier, owner, and still higher (or highest) for a racketeer smuggler. In the present case, this aspect also, it seems, was not kept in view by the Federal Shariat Court." Relying on this case the learned counsel submitted that the learned Special Judge has not taken into consideration that (i) the petitioner was not a previous convict, (ii) the petitioner has pleaded guilty and (iii) the petitioner was only a carrier.
4. So far as the first ground is concerned, no such plea has been taken before the trial Court or the Appellate Court. As regards the second ground, the reply is found in the following observations made by the High Court: "It is mentioned here that statement of accused was recorded on 14th March, 1990 and thereafter the case was adjourned to 21st March, 1990. On the last mentioned date; the learned counsel for accused moved an application for adjournment and the matter was put off to 26th March, 1990. On this date, accused submitted an application that when his statement was recorded he was nervous and did not understand "his responsibility". He desired that his statement be recorded again. It is noted that statement of accused was recorded in open Court and at that time, besides learned prosecutor Mr. Shamim Raza two Advocates from Hyderabad namely Mr. Aslam Shaikh and Mr. Habib Ahmed were also present. Each and every question was explained to accused 2/3 times and he fully understood the same. The plea, that he was nervous and did not understand proceedings, is on the face of it, false and afterthought." As regards the third ground, the observations made in the case relied upon by the learned counsel for petitioner do not support him. On the contrary a carrier according to the observations, is liable to be awarded the highest punishment of imprisonment for life.
5. The learned counsel also relied on another decision of the Shariat Appellant Bench of this Court in the case of Nadir Khan v. The State (1988 SCM R 1899), wherein it was observed as follows: "As regards the lenient treatment to be afforded to the petitioners as mere carriers: It is one of the maxims of the criminal law that a confessing accused is to be dealt with leniently. There are reasons for it because though belated such a confession assists the administration of justice, lends credibility to the prosecution and helps locating the persons who have greater responsibilities in the matter than the criminal himself. But such leniency cannot be claimed or shown to a person who denies the commission of the offence itself to the end rendering no help to identify the real and major culprits and only resorts to it by way of an alternative argument to rely on being a helpless carrier. There is no principle on which such a mitigation can be claimed after the mitigation allowed by the Federal Shariat Court." !
6. These observations, in our view, do not support the plea of reduction of sentence awarded to the petitioner, for, firstly after making an admission in the statement recorded under section 342, Cr.P.C., the petitioner attempted to resile from it, as stated hereinabove.
7. Where a legal sentence has been awarded and the discretion has been properly exercised, generally speaking, this Court seldom interferes with the sentence awarded to a convict. In the present case, in our view, the petitioner has been treated quite leniently as instead of awarding him (he being a carrier) a sentence of life imprisonment, he has been given only 7 years' rigorous imprisonment. It may be remembered that it is hardly conducive to the welfare of the society to give an impression that the Courts are more concerned with the welfare of convicts rather than that of the society. See Malik Muhammad Khan v. The State PLD 1987 SC 500. We may add that while awarding the sentence in a case, regard has to be had if there existed extenuating circumstances and also to the nature of the offence committed, its effects on the victim and the society. The rule of leniency while awarding the sentence is, therefore, to be applied with care and caution. Reliance is placed on Gulzar Khan v. The State PLD 1987 SC (AJ&K)
9. In the present case there are no extenuating circumstances. The effect of smuggling, dealing and unlawfully selling of narcotics on the fabric of society is disastrous. The petitioner was smuggling heroin powder in the quantity of 8 Kgs. This quantity had the potential of destroying the health and family life of a large number of people. The appellate Court has dealt with this aspect of the matter very elaborately. 8.
We, therefore, find no merits in this petition and accordingly dismiss it.