1988 SCMR 1961

M USARRAT BIBI Versus STATE

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Citation1988 SCMR 1961

CourtSupreme Court of Pakistan

Case No.Criminal Petition No.26‑R (S) of 1987

Date1988-07-31

Judge(s)Nasim Hasan Shah, Pir Muhammad Karam Shah and Maulana Muhammad Taqi Usmani

Authored byNasim Hasan Shah

ResultAppeal partly allowed

AI Summary — generated from this judgment; read the full text below and verify before relying on it.

This matter concerns a petition for leave to appeal against a judgment of the Federal Shariat Court, which had reversed an acquittal order and convicted the petitioner, Mst. Musarrat Bibi, for the transportation of narcotics. The petitioner was apprehended on a train with 250 grams of heroin and 150 grams of opium in her possession. The core legal question was whether the conviction under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, was appropriate given the petitioner's status as a first-time offender and her background. The Supreme Court, upon review, acknowledged the argument that the petitioner did not appear to be a person engaged in trafficking narcotics. Consequently, the Court held that while the conviction stood, the ends of justice required a modification of the sentence. The Court reduced the substantive imprisonment to the period already undergone by the petitioner, while maintaining the sentence of fine. The principle laid down is that the status of an accused as a first-time offender is a significant mitigating factor that must be duly considered in sentencing under the Prohibition (Enforcement of Hadd) Order, 1979.

Questions settled in this judgment

Does the status of a first-time offender constitute a mitigating factor for sentencing under the Prohibition (Enforcement of Hadd) Order, 1979?
Can the Supreme Court reduce a sentence of imprisonment to the period already undergone while maintaining a fine in a narcotics case?

Laws & provisions referred

Article 3, Prohibition (Enforcement of Hadd) Order 1979
Article 4, Prohibition (Enforcement of Hadd) Order 1979

narcoticstransportation of intoxicantssentencing mitigationfirst offenderProhibition (Enforcement of Hadd) Ordercriminal appealreduction of sentence

ORDER

1. NASIM HASAN SHAH, J.‑‑ The relevant facts briefly stated are that a police party headed by Noor Khan A.S.I. was deputed to search for contraband and in pursuance of this objective they entered a compartment of 2‑DN Khyber Mail at Railway Station, Attock wherein the petitioner (Mst.Musarrat Edhi) was also travelling. One of the members of the police party suspected that some narcotic substance was present in her purse. Noor Khan A.S.I. took her purse and on opening it found two packets therein of polythene; one contained 250 grams heroin and the other 150 grams opium.

2. Mst.Musarrat Bibi was tried on charges under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 but was acquitted by the learned Additional Sessions Judge, Attock vide order dated 24‑11‑1985.

3. The State preferred an appeal against the said order and the Federal Shariat Court vide judgment dated 4‑3‑1987 held that the prosecution had proved its case against the respondent and held the order passed by the learned Additional Sessions Judge to be unsustainable. The same was, therefore, set aside. Mst.Musarrat Bibi was convicted of the charge under Article 3 of the Order namely transporting heroin and opium and sentenced to two years' R.I. with a fine of Rs.20,000 or in default one year R.I. Hence this petition for leave to appeal.

4. Article 3 of the Prohibition Order is in the following terms:

5. "3. (1) Prohibition of manufacture, etc. of Intoxicants.--- Subject to the provision of clause (2), whoever:

(a) imports, exports, transports; manufactures or processes any intoxicant; or

(b) bottles any intoxicant; or

(d) allows any of the acts aforesaid upon premises owned by him or in his immediate possession; shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping nor exceeding thirty stripes and shall also be liable to fine.

(2) Whoever,‑‑

(i) imports, exports, transports, manufactures, or traffics in, opium or coca derivatives, shall be punishable with imprisonment, for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine."

6. It is submitted that the above provision applies to persons who import, export, transport, manufacture or traffic in opium or coca derivatives. The lady was found carrying 150 grams of opium in her person but the learned Federal Shariat Court has itself observed that she was a first offender and belonged to a respectable family and, therefore, does not appear to be a person who was trafficking in narcotics. Hence Article 3 of the Order was not attracted.

7. As there is some force in this argument we heard Mr.S.D. Qureshi, Advocate, learned counsel for the State who was appearing to oppose the grant of leave.

8. After hearing him we feel that the circumstance that the petitioner was a first offender has not been given the attention that it deserved in the context of the provisions of Article 3 of the order and that the ends of justice will be served if the sentence of the petitioner is reduced to that already undergone by her. The sentence of fine, however, imposed on her appears to be appropriate.

9. Accordingly, this petition is converted into an appeal and partly allowed. The sentence of two years' R.I. imposed on the appellant is reduced to that already undergone but the sentence of fine for Rs.20, 000 or in default one year further R.I. is maintained.

10. This petition is allowed in the above terms.

11. M . Y. H . / M‑552/ S Appeal partly allowed