' The appellant was tried for an offence under section 156(1)(8) of the Customs Act, 1969, by the learned Special Judge (Customs & Taxation), Karachi and- by judgment dated 26-3-1998 he was convicted and sentenced to suffer R.I. For three years and to pay a fine of Rs,75,000. In default of payment of fine appellant was ordered to suffer R.I. For nine months more with benefit of section 382(b), Cr.P.C.
2. The brief facts of the prosecution case are that on 23-7-1997 at about 6-35 p.m. Zahoor Ahmed, Preventive Officer, Customs, on suspicion interpreted the appellant Mark Mitsud, a British National, in the International Departure Hall, Jinnah Terminal, Karachi Airport, while he was bound to leave for London via Bahrain and Malta by Gulf Air Line Flight No, CF-733. The customs officer asked the appellant if he was carrying any contraband to which he replied in negative. Being dissatisfied with the reply of the appellant the Customs Officer in presence of two persons i.e, M. Mohsin Malik and Muhammad Nawaz searched the baggage of the appellant, which consisted of two suit cases. The Customs Officer secured 2,800 grams of hereoins powder, which was concealed in handle/carriage console and front wall of the suit case. Customs Officer prepared the samples from the seized heroine powder and sealed the same in presence of Mashirs and obtained their signatures thereon. Thereafter, Customs Officer seized the heroins powder, travelling documents of the appellant and arrested him under Mashirnama. A notice under section 171 of the Customs Act, 1969 was also served upon appellant and F.I.R., was lodged.
3. After usual investigation appellant was sent-up before the Court of learned Special Judge (Customs & Taxation), Karachi, to stand trial.
4. The trial Court framed charge against the appellant under section 156(1) (8) of the Customs Act, 1969, to which appellant pleaded not guilty and claimed to be tried.
5. In support of its case the prosecution examined P.W.1 Zahoor Ahmed, informant/seizing officer and P.W.2 Fazal Ahmed Samoo, Investigating Officer, Both the prosecution witnesses were not cross-examined by the appellant or his counsel with the result their evidence went unchallenged.
Learned counsel stated before the trial Court that appellant wants to plead guilty. Prosecution closed its side and statement of appellant under section 342, Cr.P.C. Was recorded wherein he admitted the prosecution case. Appellant also filed written inculpatory confession of his guilt as Exh. 5/A and requested the trial Court for leniency in awarding the sentence. The appellant was convicted and sentenced as stated above.
6. Rana M. Shamim, learned counsel for the appellant, at the very outset contended that he does not press the grounds urged in the memo. Of appeal but requests for reduction in sentence on the ground that appellant is not a previous convict and he is a foreign national; that the appellant repents for the offence, which he had committed; that the appellant undertakes not to repeat such an offence in future; that there is nobody in United Kingdom to look after his step son; that the appellant has pleaded guilty. He has placed reliance on the authorities Muhammad Iqbal v. The State (1991 PCr.LJ 1323), Nick Kai Tazi v. The State (PLD 1977 Karachi 1049), Obie Puns Emanuel v. The State (1992 PCr.LJ 1705) and Unchena Ibe Neme v. The State (1991 M LD 1823).
7. Syed Tariq Ali, learned Standing Counsel, appearing on behalf of the State, has contended that the act of the appellant is not condonable as he is involved in the smuggling of heroine, which is hazardous for the whole society; that there is no mitigating circumstances in the case; that the trial Court had already taken lenient view of the matter; that the appeal is not maintainable and is liable to be dismissed.
8. I have heard the learned counsel for the parties and have also perused the impugned judgment and material placed on record.
9. The appeal has been preferred under section 412, Cr.P.C. For the sake of convenience section 412, Cr.P.C. Is reproduced hereinbelow:-- ' "412. No appeal in certain cases when accused pleads guilty.-- Notwithstanding anything herein before contained where an accused person has pleaded guilty and has been convicted by a High Court, a Court of Sessions or Magistrate of the First Class on such plea, there shall be no appeal except as to the extent or legality of the sentence."
10. The bare reading of section 412, Cr.P.C. Reveals that the person convicted on his own plea of guilt is not entitled to challenge his conviction, therefore, on this sole ground appeal is not maintainable.
Merely, appellant pleaded guilty is also no ground for the lenient view and reduction in his sentence.
11. In the case of Jonathan New House v. The State (1993 PCr.LJ 823), it was held by this Court in a case under section 156(1)(8) of the Customs Act, 1969 " that accused after having pleaded guilty was convicted on such plea to be treated as a criminal. The accused Jonathen New House, an American National, was sentenced to suffer R.I. For four years with a fine of Rs,200,000. It was further observed that offence was punishable with imprisonment for 14 years, therefore, sentence awarded to accused was appropriate and did not call for any interference towards reduction. In that case Charas was secured from the possession of accused Jonathen New House.
12. In the early Eighties heroine and its adulterated form Brown Sugar gripped the Society in its tentacles. The menace was speading insidicously and now addiction has spread throughout the world like a bush fire. The number of addicts now runs in millions. It is a highly addictive drug whose sale is illegal throughout the World, never the less its use is unfortunately very wide spread. Many addicts pay for their habit through crime, often thefts from residences or muggings. There is a relationship between the crime rate and the use of drugs such as heroine. The narcotic trafficking undermines democracy, rule of law and free market economies abroad, endangering basic foreign policy interests. If it is left unchecked, drug related corruption will reach to the highest levels of Government. This can even bring geographical changes. Commissioner Lin's crack down on the British opium merchants sparked the 1st opium war which ended in disaster for China because it was forced to cede Hong Kong to Britain after the 1842 Treaty of Nanjing. Drug trafficking destroys all basis of trust between Governments. The traffickers weaken democracies through their deliberate and effective penetration of legislatures, security forces even the media. This destroys trust between citizens and their Government. The large doses of drug money distort econmies and income, undermines the legitimate business and imperiling free market examines. The heroine industry seems to be counting on a new generations ignorance of its devatating consequences in order to develop a secure and lucrative market in the Western Hemisphere. Europe is a steadily growing market for South West Asian heroine. The lives of the young generation are in peril of this epidemic (heroine). If we put a glance in this context over the global conditions we will find that today young people are dying because of this epidemic as it is generated in the institutions. The people who are often very sick and dying, in some cases are being harassed out of their homes because they are addicted to heroine. Heroin is different to most other drugs because it is also used intravenously and has led through sharing needles, to users becoming HIV. Heroine addiction leads to crime and violence, and it is the working class communities who have to bear the brunt of it. It also leads to HIV infection and AIDS. It kills people. Addiction is a disease which affects a person at many levels. It affects every aspect of afflicted persons life; at the physical and mential level; in all the persons relationship and even causes the person to loose all sense of morality. Addiction and alcholism have spread their tentacle and have a stranglehold on society. If left unchecked it threatens to overwhelm society like a tidal wave. This makes it an anti-social drug. The drug trafficking is hazardous to the public at large. The drug paddlers and their coaccociates, who indulge in such nefarious activities deserve no sympathy and leniency and they are to be dealt with iron hand. In this context, I quote Gerry Dicknson, who said that "Drug pushers are the lowest of the low. I have no qualms, no thoughts on giving them anything in their favour. They are just the lowest of the low." The drug trafficking has become more lucrative for foreign drug paddlers particularly belonging to western countries as they exact lot from the sale of narcotic in International Market. Due to this reason they after crossing thousands of miles are roaming in search of it in Asian countries.
13. The citations relied upon by the learned counsel for the appellant are of no avail and help to him. The citations are of the days when drug trafficking was not so rampant. The Courts have to mould themselves looking towards the changing circumstances.
14. The impugned judgment is neither harsh nor illegal but it is just and proper which does not call for any interference.
15. In the case of Mrs. Munasingh Arachchige v. The State (1990 PCr.LJ 62) this Court has observed as under:-- ' "4. Section 412, 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 retibution; 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.
5. 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 award in sentence is to provide a deterrent effect on others."
16. In yet another case of Jonathan New House v. The State (1993 PCr.LJ 823), it was observed by this Court-as under:-- "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..............................................................................
' While considering this question in the case of Anthony George v. 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 object 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 commonsense upon him is not that he should be treated more leniently than the normal evit 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).
' 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,2,00,000 (Rs, two lacs). The sentence was, therefore, appropriate and does not call for any interference."
17. The upshot of the above discussion is that merely because the appellant had pleaded guilty and is foreign national did not legally entitled him to any leniency in the matter of sentence in the offence of smuggling of heroin. The offence with which appellant is charged is punishable with imprisonment for 14 years and fine. The trial Court had already taken lenient view of the matter. The impugned judgment does not suffer from any infirmity. Consequently, appeal merits no consideration and is dismissed.