QAISAR AHMAD HAMIDI, J.- Appellant Jonathan New House, a citizen of United States of America, was tried by Mr. Nazim Hussain Siddiqui (now Mr Justice Nazim Hussain Siddiqui), Special Judge (Customs and Taxation) Karachi, for the offence under section 156(1) (8) of the Customs Act, 1969, who convicted him on his own plea of guilt and sentenced him to suffer R.I. For four years and to pay a fine of Rs.2,00,000/-(Rs Two lacs) or in default to suffer R.I. For six months. The benefit of section 382-B Cr.P.C., was also extended to the appellant. By this appeal filed under section 185-F of the Customs Act, 1969, read with section 410 Cr.P.C, the appellant has challenged his conviction and sentence.
2. On 15.2.1992 the appellant was detained by Muhammad Riaz, Preventive Officer, Pakistan Customs, at the Passenger Pier, Keamari, Karachi, on being found in possession of two cushions containing 14 kgs was contraband charas. Such seizure memo was prepared and the appellant was served with a notice under section 171 of the Customs Act, 1969. On the same day Muhammad'
Riaz, Preventive Officer lodged FIR on behalf of State. After usual investigation the appellant was sent up before Special Judge (Customs and Taxation) Karachi, to stand trial for the said offence.
3. On 7.3.1992 charge under section 156(1 )(8) of the Customs Act, 1969, was framed against the appellant who was asked whether he pleads guilty or has any defence to make. The appellant who pleaded guilty was convicted and, sentenced as mentioned above for the following reasons:- "The accused pleaded guilty voluntarily. His plea of guilt is not because of any inducement, threat, or promise from any quarter. On the contrary, it is for the reason that, now, he has realised that he had committed the said offence. He expressed remorse in Court for having committed the said offence. On the ground of illness of his parents and pregnancy of his wife he pleaded for lenient view. Value of the seized Charas, as shown in the charge sheet at Rs.14,000/-, is extremely on lower side. Some time the Investigating Agency calculates the value prevailing in Pakistan and some time the criterion is the place where ultimately narcotics is to be smuggled. In any cases the value of 14 kgs. Charas in Pakistan, particularly in Karachi, cannot be less than Rs.25,000/-. From his plea of guilt, the case of prosecution against him stands proved beyond any shadow of doubt.
Accordingly, I convict the accused under section 156(1)(8) of the Customs Act, 1969 and sentence him to suffer R.I. For four years and to pay fine of Rs.2,00,000/-(Two lacs) or in default thereof to suffer R.I. For further period of six months. The punishment awarded would meet the ends of justice.
He is entitled to the benefit of section 382-B Cr.P.C."
4. Section 412 Cr.P.C., provides in clear terms that there shall be no appeal except to the extent or legality of the sentence, where the accused person has pleaded guilty and has been convicted on such plea. Obviously, therefore this appeal was admitted to this limited extent.
5. It is contended on behalf of the appellant that sentence awarded by the learned Special Judge is excessive and out of proportion to the admitted facts and circumstances of the case. An attempt has been made to make it a case for reduction of sentence for the following reasons:-
(i) That the appellant is a sick man awaiting surgery.
(ii) That the parents of appellant are of advanced age and of critical health.
(iii) That the wife of the appellant was in family way.
(iv) That the appellant had no previous criminal record.
(v) that the appellant had entered a plea of guilt at the first available opportunity.
(vi) That the appellant had suffered adverse publicity in the newspapers, both locally and in United States of America and his career as Merchant Marine Officer has been ruined.
(vii) That the appellant would further have to submit himself to the adjudication proceedings before the Assistant Collector (Customs) Karachi.
(viii) That the offending drug was a soft drug as compared to powder of heroin.
6. The question of sentence in cases of this nature was considered by this Court in the case of Mrs. Munasingh Arachchinge vs. The State, reported in 1990 P.Cr.L.J. 62, wherein it was observed:- "Section 412, Cr.P.C., bars an appeal where an accused pleads guilty, except to the extent or legality of sentence. There is nothing illegal in the sentence awarded to appellant. The sentence in fact leans towards leniency. The object of punishment, as pointed out by Tyron Edward, is 'three-fold: for just retribution: for the protection of society; for the reformation of the offender'. The length and severity of the sentence has, therefore, to be determined on the circumstances of each case, keeping in view the object of punishment.
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."
7, This view was reiterated in the case of Boni-facio-A-Burayag, vs. The State, reported in 1991 P.Cr.L.J. 22, in the following words:- "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."
8. The view taken in the above case was examined by the Supreme Court in the case of Bonifacio A.
Burayag vs. The State, reported in PLD 1991 S.C. 988, and was confirmed in the following words:- "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 S.C. 500. We may add that while awarding the sentence in a case, regard has to be had if there existed extenuating circumstance 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 vs 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."
9. While considering this question in the case of Anthony George vs The State, reported in 1992 M LD 2202, this Court again observed as follows:- "It must, however, be remembered that undue leniency far from having a deterrent effect, which is the end and aim of all punishments, tends to result in offences of this nature being repeated or made widely committed. The main object of punishment is not revenge but the protection of society."
10. Punishment is, before all things deterrent, and the Chief end of the law of crime is to make the evil doer an example and a warning to all that are like minded with him. In the words of Salmond:- "If a man is destitute of the affections and social instincts of humanity, the judgment of common sense upon him is not that he should be treated more leniently than the normal evil doer-not the society should cherish him in the hope of making him a good citizen-but that by the rigour of penal discipline his fate should be made a terror and a warning to himself and others." (Jurisprudence, page 119).
11. No leniency on the ground of sympathy should be extended to such a person. Sympathy for such a person means lack of sympathy for drug addicts and their weeping relatives and dependents. If the reasons advanced on behalf of appellant (except few which have already been considered by learned Special Judge) are to be accepted, it would mean that an accused with old parents should not be sent to prison at all. On conviction an accused has to be treated as a criminal. The offence with which the appellant was charged and convicted is punishable with imprisonment for 14 years.
The appellant was sentenced to suffer R.I. For four years and to pay a fine of Rs.200,000/-(Rs. Two lacs). The. Sentence was, therefore, appropriate and does not call for any interference.
12. In the result the appeal fails and is dismissed. The perusal of the record, however, indicates that the appellant is a sick person and he needs immediate surgery. In such a situation the appellant may approach the concerned Government for remission of sentence, under section 401 Cr.P.C, if so advised. The case of Behram vs The State, reported in PLD 1965 Quetta 15, serves as a guide-line.