' GUL ZARIN KIANI, J.---These two Criminal Appeals Nos. 157 of 1991 and 158 of 1991 and two Writ Applications Nos. 969 of 1991 and 970 of 1991 emerged from somewhat identical factual matrix and present common questions of law for determination, and therefore, it would be appropriate to deal with and dispose them of together in one order.
2. Appellants/petitioners were tried, and convicted in two different criminal cases and sentenced to various terms, payment of fines, and default punishments. For the purpose of this order, the facts of the two cases in which the appellants/petitioners were convicted and sentenced on their plea of guilty need not be enumerated in full detail but only briefly to give a clear view of the events leading to their trials and convictions.
3. In Criminal Appeal No, 157 of 1991, Anwar Jamal Hussain and Masud Hamad Abdullah were found to have secreted 45 packets and 39 packets, respectively in their bodies. Upon medication above packets in shape of capsules were taken out and found to contain 330 and 320 grams of heroin each respectively. Consequently, both the accused were arraigned for trial under section 156(1)(8) read with section 178 of the Customs Act, 1969 before Special Judge (Customs), in Special Case No, 269/89. Both the accused confessed the charge and pleaded guilty to it. They admitted that they attempted to smuggle the above quantity of heroin out of Pakistan. Consequently, Special Judge (Customs) holding them guilty of the offence under section 156(1)(8) read with section 178 of the Customs Act, 1969, sentenced them to 4 years' R.I. Each, plus a fine of Rs,10,000 (Ten thousands) each, and in default, to further undergo simple imprisonment for six months each. In addition Special Judge gave them benefit of section 382-B, Cr.P.C. In the body of judgment, Special Judges observed that since both the accused had frankly confessed the guilt and claimed to be students, he did not award the maximum sentence to them provided by law and took a lenient view about their sentences. The convictions were recorded on 4-7-1989. Against their convictions and sentences the convicts have come up in appeal under section 185-F of Customs Act, 1969, to this Court. The appeals were presented on 14-9-1991. Obviously, the appeals were barred by limitation and had been bled much out of the prescribed period of limitation of sixty days.
4. Alongwith the above Cr.A. No, 157 of 1991, convicts/petitioners have filed a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for a direction to the effect that the sentences awarded to them in result of convictions recorded by Additional Sessions Judge, Rawalpindi, in respect of the offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, be made to run concurrent with the previous sentences awarded to them by Special Judge (Customs).
5. In Criminal Appeal No, 158 of 1991, Peter Erastos, Muhammad Khamis Fataki, Fikry Farid Al-Said and Simai Chum Aimai, on 1441989 were suspected to have concealed narcotics in their bodies.
Suspicion was confirmed upon X-ray of their abdomens. Upon medication in the General Hospital, Rawalpindi, 69, 66, 23 and 40 capsules containing 475, 620, 350 and 420 grams of heroin were respectively recovered from the petitioners, namely Peter Erastos, Muhammad Khamis Fataki, Fikry Farid Al-Said and Simai Chum Aimai. They were taken into custody and later tried, for an offence under section 156(1)(8) read with section 178 of the Customs Act, 1969 before a Special Judge (Customs). Accused/petitioners confessed guilt and admitted the charge levelled against them for attemping to smuggle heroin out of Pakistan. Accepting the plea of guilty, Special Judge (Customs) convicted them of the offence with which they were charged and sentenced them to rigorous imprisonment for four years each plus payment of fine of Rs,5,000 (Five thousands) each and in default to undergo further S.T. For two months each. The accused were, however, given benefit of section 382-B, Cr.P.C. Convictions were recorded on 12-6-1989. Against their convictions and sentences, the convicts have come up in appeal under section 185-F of the Customs Act, 1969 to this Court. Appeal was filed on 14-94991. Obviously, appeal was barred by time and had been filed beyond the period of sixty days prescribed for it.
6. Alongwith the above criminal appeal, the convicts/petitioners have presented a separate application under Article 199 of the Constitution of Islamic Republic of Pakistan, for a direction that the sentences awarded to them on 15-10-1989 by Additional Sessions Judge, Rawalpindi under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 be made to run concurrent with the sentences imposed upon them by Special Judge (Customs) on 12-6-1989.
7. It may be noted with advantage that in both the criminal appeals, the appellants apart from the trials for offences under Customs Act, 1969, were also tried under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 for being in possession of heroin and having confessed and pleaded guilty to the offence were sentenced to various terms, payment of fines, and default punishments. Further, they were sentenced to whipping numbering five stripes each. In case of Peter Erastos and others (Writ Petition No, 970 of 1991), convictions were recorded and sentences were passed on 15-10-1989 by Additional Sessions Judge, Rawalpindi, whereas in case of Anwar Jamal Hussain and another (W.P. No, 969/91) convictions were made and sentences passed on 6- 12-1989 by Additional Sessions Judge, Rawalpindi. In case of Peter Erastos, etc., the trial Court gave benefit of section 382-B, Cr.P.C. To the convicts, whereas, similar concession was not extended to Anwar Jamal Hussain and Masud Hamad Abdullah.
8. Learned counsel for the appellants/petitioners and learned Assistant Advocate-General for State have been heard at length. I shall first like to deal with the criminal appeals. Section 412, Criminal Procedure Code is a bar to appeal in the event of conviction recorded on plea of guilty except to question the extent or legality of the sentence. The principle underlying the section is that a plea of guilty by the accused person operates as a waiver of his right to question the legality of the conviction based on such a plea, but the section is an exception to the rule, that in case, where the conviction has taken place on an admission of guilty by the accused person it provides him with a right to question the extent and legality of the sentence passed by the Court. The jurisdiction of the Appellate Court extends, in view of this section, only to question the extent and legality of sentence and not to the question of legality of conviction. Therefore, the Court in an appeal is supposed to look into the question of sentence and its extent, whether it was commensurate with the nature of the offence. Learned counsel for the appellants referred to two decisions of this Court In re: Rodolf Josef v. The State 1983 PCr. LJ 1983 and Obie Funs Emanuel v. The State 1991 PCr. LJ 1705 to argue that in case of foreigners/accused who intend to leave Pakistan after release from jail, no useful purpose would be served by keeping them in jail, and therefore, the sentences awarded to them by Special Judge (Customs) may be reduced. Both the cases pressed for reduction in sentences involved recovery of heroin and charas from the foreigners and were tried by Special Judge (Customs) in respect of offence under section 156(1)(8) of Customs Act, 1969. In Rodoif Josef's case, the Court observed:--- "As the appelalnts intend to leave Pakistan as soon as they are out of jail, I do not think any purpose will be served by keeping them here any longer. I would, therefore, reduce their sentences of imprisonment to the period already undergone. However, I would enhance their sentences of fine."
' In the other case, Special Judge (Customs) had awarded sentence of four years' R.I. Plus a fine of Rs,10,000, in default to undergo further S.I. For a period of six months with benefit of section 382-B, Cr.P.C. Here also, the conviction was recorded on plea of guilty. In appeal, the Court observed: "The learned trial Court had observed that he was not the real beneficiary and thus took a lenient view. The appellant is a foreign national and undertakes to leave the country as soon as he is released from jail. He has already undergone sufficient imprisonment. Taking in view the above circumstance, I reduce the period of his imprisonment to the one already undergone by him plus the same fine as awarded by the learned trial Court. He shall be released on payment of the above fine failing which he will undergo 6 months' S.I."
The question relating to sentence is not a rule of law. It depends on the nature of the offence, manner of its commission and impact as a whole on human society. Each case has its own features to present and no generalised rule could be laid down for application to all types of cases.
It is for the Court to judge and decide on facts of each case as to the quantum of punishment meeting the requirements of law and justice. Merely, that an accused was a foreigner and intended to leave the country on release from jail, in my humble opinion, may not be a good ground and a relevant circumstance to deal with him leniently. Smuggling in heroin has assumed the proportions of an epidemic. It attracted foreigners to make Pakistan the base of their activities and by smuggling out heroin, tarnish its fair name in the international community. It is in this perspective that a lenient view of the offence could really be harmful to our ownself and existence. Nonetheless, keeping in view the vast change that the concept of penology has undergone in more recent time because of the shifting of emphasis on reforming an accused rather than penalising him severe sentence was neither appropriate nor desirable. Appellants have been tried, convicted, and sentenced to substantial terms of imprisonments in separate trials by Special Judge (Customs) and the Courts under the Prohibition Order for possessing and attempting smuggling heroin out of Pakistan. Offences tried under Customs Act, 1969 and Prohibition Order, 1979 are akin and intimately connected with each other. Appellants are foreign national, Anwar Jamal Hussain and Masud Hamad Abdullah (in Cr.A. No, 157/91) claimed to be students. They were arrested in April, 1989 and convicted and sentenced on 4-7-1989. By this time, they have already undergone a substantial portion of their sentences and, I think, it must have served them a sufficient lesson. Therefore, having regard to their being first offenders and also students, a reduction in sentence is called for.
In the other appeal (Cr. A. No, 158/91). Peter Erastos and Fikry Farid Al-Said are also stated to be students whereas Muhammad Khamis Fataki and Samai Chum Aimai are mechanics by profession. I think, they also deserve similar treatment in regard to reduction in sentence. As for time bar and late filing of criminal appeals, Appellate Court has power to excuse and condone delay and admit time-barred appeals, if the Court is satisfied that the appellants had sufficient cause or a good reason for not preferring the appeals within a period of limitation prescribed for them. The Courts, as a rule, show indulgence under section 5 of the Limitation Act, in case of criminal appeals. As the appellants were foreigners and had none to look after their defence and advise them properly, delay in filing appeals by them is excused and condoned.
9. In view of the circumstances enumerated above, while maintaining the sentence of fines awarded to the appellants and the sentences in lieu thereof in two criminal appeals, their sentences of imprisonment are reduced to the ones already undergone by them. Resultantly Cr. A.
No, 157/91, CrA. No, 158/91 are allowed only to the extent of reduction in sentence as indicated above.
10. After having dealt with the above criminal appeals and directing reduction in sentences, I shall now advert to two writ petitions containing a similar prayer that the sentences imposed upon and awarded to the petitioners by a Court under Article 4 of the Prohibition Order, 1979, be made to run concurrent with the sentences earlier imposed upon them by Special Judge (Customs) under Customs Act, 1969. As section 397, Cr.P.C. Itself shows the ordinary rule is that when a person is undergoing a sentence of imprisonment and is consequently sentenced to another term of imprisonment, such imprisonment would commence at the expiration of the sentence of imprisonment which was imposed upon him in the previous case. It is for the Court dealing with the subsequent case, if it feels called upon to do so, to pass an order that the sentences should run concurrently with the previous sentence. No such order was made by the Courts trying the offence under Article 4 of the Prohibition Order, 1979 sentencing the petitioners in respect of it. Firstly, it is for the Court trying the s .Thsequent case and thereafter, for the Court hearing appeal or revision to pass an order to the effect that a sentence of imprisonment awarded to a person on a subsequent conviction when he is already undergoing a sentence of imprisonment on an earlier conviction, shall run concurrent with such previous sentence. Admittedly neither appeal nor revision was filed by the petitioners from the convictions recorded in the cases tried under the Prohibition Order, 1979.
There is no doubt, that the appeal/revision against the sentences lay to Federal Shariat Court and it was for that Court to make a direction that the subsequent sentences shall run concurrent with the previous sentences which had already commenced. Neither under inherent powers preserved under section 561-A, Cr.P.C., nor in supervisory jurisdiction vested in the Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, it shall be appropriate to direct or substitute an order for running of the subsequent sentences concurrent with the earlier sentences, which the petitioners were undergoing when the subsequent convictions were recorded and sentences passed. If advised, the petitioners can agitate this point before the competent Court and it shall be for that Court to judge and decide, whether the subsequent sentences shall run concurrent with the previous sentences of the petitioneRs, See Mahant Purushottam Dass and others v. Har Narain and others AIR 1978 Delhi 114. In making this observation, I may not be taken to have finally decided that the supervisory jurisdiction of the High Court conferred under Article 199 of the Constitution was excluded to intervene in appropriate cases.
' As the petitioners had an alternate statutory remedy in appeal/revision, intervention by this Court is not required. Writ petitions are accordingly dismissed in limine.