1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- Through this Jail Appeal, the appellant Hilam Mutema, Kenyan National has prayed for reduction in the sentence and mercy. The appellant has been convicted by the learned Judge, Special Court (Control of Narcotics Substances), Karachi Division, under section 9(b) of Control of Narcotic Substances Act, 1997, and has been sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs,50,000. In default of payment of fine, he has been sentenced to suffer further rigorous imprisonment for three months. The benefit of sections 382-B, Cr.P.C. Has been extended to the appellant.
2. ' The prosecution case is that Mr. Zahoor Ahmed, Preventive Officer of Custom House, Karachi lodged F.I.R. On 9-8-2001, at-2-00 p.m. Stating therein that on the night intervening 7th and 8th August, he was performing his duty as Preventive Officer at International Departure Hall, Jinnah Terminal Complex, Quaid-e-Azam International Airport, Karachi. On suspicion he intercepted an African passenger namely, Hilam Mutema Njeru, a Kenyan National, who was leaving for Mumbai (India) by P.I.A. Flight No,PK-274. He was asked to declare whether he was carrying any contraband goods, viz. Narcotics etc. In his baggage or on his person, which he denied. Being dissatisfied with the passenger's declaration, his baggage was searched but nothing incriminating was recovered.
3. He still suspected that the passenger must have concealed some narcotics in his body cavities and, therefore, he was escorted to a nearby clinic for radiological examination. On body X-Ray the presence of heroin filled capsules inside his body cavities were confirmed. He was then taken to Jinnah Postgraduate Medical Centre, to initiate the excretion process for the recovery of heroin filled' capsules. He was admitted in- Ward V. By the time of lodging F.I.R., 11 capsules were excreted filled with 110 grams of heroin. It was further stated in the F.I.R. That the recovery process was in progress and on completion of the recovery process, the exact number of capsules and weight of heroin shall be intimated. After usual investigation the appellant/convict was sent to face trial on 25-8-2001. It was stated in the charge-sheet that, even after lodging of F.I.R. The accused continued with the excretion process and 30 more capsules were recovered from his body cavity. It was averred that, 41 capsules in all, containing 650 grams (gross) heroin were recovered.
4. Alongwith the charge-sheet, the copies of F.I.R. And Mashirnama were also forwarded to the Court.
5. The Mashirnama is dated 15th of August, 2001. The Mashirnama contains that, the accused was arrested from Airport and sent to hospital. During the process of recovery 41 capsules weighing 650 grams of heroin were excreted, seized and sealed. An application by the complainant addressed to Special Judge for Offences under Control of Narcotics Substances Act, 1997 was also produced to the effect that, the process of recovery was completed on 15-8-2001 and that, it may be treated as integral part of F.I.R. The application is undated.
6. ' On 5-3-2002 the learned trial Court framed the charge under section 9(b) of the N.C.A. Act, 1997 and the accused pleaded guilty to the charge. On plea of guilt he was convicted as narrated above. We have heard the appellant produced in custody and Mr. Shoaib Ashraf, learned Special Public Prosecutor, A.N.F., holding brief for Mr. Khursheed Ahmed Hashmi, learned Dy.A.-G.
7. ' The appellant has submitted that the very small quantity of heroin was recovered from his possession and the remaining capsules were subsequently, foisted on him. He submitted that he is victim of circumstances. According to him he was tempted into the business of narcotics due to extreme poverty in his country. According to him, he has two children and his wife was in advance stage of pregnancy, when he left his country. He has earnestly prayed for mercy, submitting that he is not a criminal and, therefore, as soon as he was apprehended, he admitted everything.
8. The learned Special Prosecutor, supported the conviction and sentence but when asked to explain the extremely dubious circumstances of the case w,e,f,, the excretion of 11 capsules, containing 110 grams of heroin by 9-8-2001 when the F.I.R. Was lodged although the appellant was apprehended on 8-8-2001 in early hours of the day and subsequent addition of 30 capsules containing 540 grams of heroin, he was not able to give any satisfactory explanation. He was pointed out that no Mashirnama of seizure of capsules containing heroin was prepared on 9-8-2001 before the lodging of F.I.R. And the heroin is alleged to have been recovered under one Mashirnama, dated 15-8-2001 from which, it is manifested that the Mashirnama has been prepared in the office of Preventive Officer. The learned Special Prosecutor conceded that, in the absence of Mashirnama of seizure of the capsules containing heroin there is serious flaw in the prosecution case. He was further pointed out that according to F.I.R. Each of the capsule allegedly recovered by 9-8-2001, was containing 10 grams of heroin while the subsequently recovered capsules are alleged to have contained 18 grams of heroin each. He was called upon to reconcile this discrepancy as well. The learned Special Prosecutor was asked to satisfy us, if on the basis of material produced by the prosecution the appellant could be convicted by the trial Court, notwithstanding the plea of guilt. The Special Prosecutor had no explanation at all.
9. ' It appears to us that, the appellant a Kenyan National, who was not in a position to engage an Advocate, deemed it fit to plead guilty and to pray for mercy in order to get the process of proceedings completed as soon as possible. He was continuously in custody from 8-8-2001 and was without any legal aid, and therefore, there is every possibility of his receiving advice from the jail inmates to plead guilty, as he had no other option. No doubt, the trial Court could convict the accused on plea of guilty. However, every Court is required to exercise that discretion with all due care and diligence. When a person is without legal aid the more oneruous responsibility is laid on the shoulders of the Court to apply its mind to all the circumstances of the case. It appears that, the trial Court has framed the charge in a stereotyped and mechanical manner, as a perusal of lower Courts record shows that, pro forma charge has been inserted in the file with filling in of the blanks. The learned trial Court did not apply its mind to the serious lacuna in the prosecution case as discussed above. It is trite law of the criminal administration of justice that, the benefit of doubt is to be extended to an accused person whether pleaded by the accused or not.
10. ' For the foregoing reasons, we are of the opinion that the appellant is entitled to the benefit of doubt, as the prosecution case is not free from serious doubts and lacuna. The appeal is, therefore, allowed. The conviction and sentence is set aside. The appellant, who is present in custody, is remanded back in custody to the Central Jail, Karachi, with the direction to release him forthwith, if not required in any other case.