CHRISTOPHER ROLLINS KELLY Versus THE STATE

1. The Special Criminal Appeal and the Special Criminal Revision are being disposed of by this common judgment as both are outcome of same F.I.R. and judgment in Case No.161/95 passed by the learned Special Judge, Customs and Taxation, Karachi on 31-10-1995. The learned trial Judge was pleased to convict the appellants under section 156(1)(8) of the Customs Act, 1969, on their own plea of guilt, and sentenced each of them to suffer R.I. for 5 years and to pay fine of Rs.20,00,000 or in default thereof to suffer further R.I. for 2 years:

2. Case of the prosecution is that on the intervening night of 11th/12th July, 1995 at about 3-00 a.m. Customs Officer Abrar Ahmed intercepted the appellants in the International Departure Hall (JTC), Quaid-e-Azam Airport, Karachi, who were bound to leave for New York by flight No.PK-721. The Customs Officer in presence of two witnesses searched the suitcases of the appellants and secured 139 polythene bags containing heroin powder out of which 45 bags (3.20 Kgs.) from appellant Rollins Kelly, 32 packets (3.20 Kgs.) from appellant Ms. Carrie Leigh Dempsy and '36 packets (3.6 Kgs.) from appellant Ms. Jody Lynn Robledo whereas from the suitcase jointly owned by the appellants 26 packets (2 Kgs.) were also recovered. In all the Customs Officer seized 12 Kgs. of heroin powder from all the appellants. He served notices under section 171 of the Customs Act on each appellant and also lodged F.1.R. After completion of the investigation the accused were challaned in the Court where they were convicted and sentenced by the trial Judge as mentioned hereinabove. Hence the present appeal.

3. On the other hand the Federal Government through Collector Customs filed Special Criminal Revision Application No. 10 of 1995 for enhancement of the sentence to R.I. for 14 years and fine of Rs.50,00,000 to each appellant and in default each of them to further undergo R.I. for 5 years.

4. Mr. Rana Muhammad Shamim, learned counsel for the appellant has mainly contended that the lady appellants have recently completed their higher school education and are aged about 18/19 years respectively whereas appellant Christopher is hardly 22 years and is also a student. According to the learned counsel they have committed the offence in mitigating circumstances for which they have-shown remorse and repentance. He next contended that appellants are first offenders and section 562, Cr.P.C. in case of first offender empowers the Honourable Courts to release convicted offenders on probations of good conduct instead of sentencing to punishment. According to him the appellants are foreign nationals and no useful purpose could be served by keeping them in prison except a burden on Government exchequer. Lastly he submitted that in case of foreign national who pleaded guilty in first instance, the Pakistani Courts have always taken a lenient view and reduced the sentence to the period already undergone by them. In support of his contentions he has relied on cases reported in:- .

(1) 1976 PCr.LJ 166. (8) 1991 PCr.LJ 1705.

(2) PLD 1977 Kar. 1049. (9) 1991 PCr.LJ 1920.

(3) 1983 PCr.LJ 1983. (10) 1992 MLD 193;

(4) 1987 PCr.LJ 1114. (11) 1992 PCr.LJ 845 .

(5) 1989 PCr.LJ 840. (12) 1992 MLD 1823.

(6) 1989 PCr.LJ 856. (13) 1993 PCr.LJ 490.

(7) 1990 ALD 48(1). (14) 1995 PCr.LJ 1296.

5. On the maintainability of the revision filed by the Federal Government, Mr. Rana Muhammad Shamim has contended that under Ordinance XXXIII of 1983, Central Law Officers (Amendment) Ordinance, 1970 (VII of 1970) the revision filed through Mr. Fariduddin, Advocate on approved panel of Central Board of Revenue is not legally maintainable.

6. Mr, Fariduddin learned counsel appearing for the State in the revision application has contended that the learned trial Court has failed to appreciate the gravity of the offence committed by the respondents/accused and had it appreciated the gravity sentence for a longer period would have been awarded. According to him as the appellants were caught red-handed while smuggling 12 Kgs. of heroin, the trial Court instead of awarding 14 years' R.I. only awarded 5 years' R. I.

7. Mr. Roshan Essani, learned D.A.-G. has contended that criminal appeal filed by the appellants is not maintainable under section 412 of Cr.P.C. except to the quantum of sentence and that young age is no ground at all for showing leniency. He has submitted that the appellants have committed a gruesome crime, which is highly condemned all over the world. He further, submitted that the State is duty bound to maintain the appellants in prison , and provisions of section 562, Cr.P.C. are not attracted in this case.

8. I have gone through the material placed before me and also considered the arguments advanced by the learned counsel appearing for the parties. So far as maintainability of Special Criminal Revision is concerned it would be pertinent to refer to the relevant provisions of Central Law Officers (Amendment) Ordinance, 1985 which reads as under:--

9. "4-A. Central Law Officers to be deemed to be public prosecutors, etc. ---

10. Notwithstanding anything contained in any other law for the time being in force, all Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel shall be deemed to be public prosecutors and shall be competent, to institute, file and conduct any proceedings, including appeal and revision, for and on behalf of the Federal Government before any Court or Tribunal, including a Special Court constituted under any law."

11. I have also perused the Notification No. Dy. No.273-JS-Legal/94, dated 4th December, 1994 issued by Central Board of Revenue, Government of Pakistan in which name of Mr. Fariduddin, Advocate does appear as an Advocate on Panel of Central Board of Revenue. The revision filed by the Federal Government is not signed by the Collector of Customs himself but someone else whose name and designation is not ascertainable. Furthermore, Central Law Officers (Amendment) Ordinance, 1985 authorises only Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel to file appeal and revision for and on behalf of the Federal Government before any, Court or Tribunal including Special Courts. As such, the notification appointing Mr. Fariduddin to file the revision as an Advocate on Panel on behalf of the Federal Government does not legally entitle him to do so. Under these circumstances, I am of the firm opinion that this revision is not maintainable.

12. Mr. Rana Muhammad Shamim has based his arguments entirely on the fact that lenient view should be taken in deciding the appeal, in view of the case- law referred hereinabove where the Honourable Judges have considered the cases of the appellants before them and awarded lesser punishment in the offences involving drug trafficking. I have perused and considered the authorities referred to by the learned counsel but I may add with due respect that much water has flown under the bridge since the time the above judgments were pronounced. The drug trafficking and involvement of the people in narcotics has taken a shape of inhuman trade and it has created problems for the society at large. It is, however, pertinent to state that the national survey on drug addiction carried out by the Pakistan Narcotics Control Board, estimates the rate of addiction in the country at about over 15 % amongst the youth. In 1995 the total number of addicts in the country was 3.01 million and the rate of increase is said to be 40,000 per year. The most disturbing fact revealed by the survey was the growing number of heroin addicts in the country with the average age of users between 9 to 24. According to the survey estimate, there are over 1.52 million heroin addicts in Pakistan. Overall this is very alarming situation and Courts cannot be oblivious of the circumstances prevailing across the globe. There is alarming increase in such cases mainly due to the lenient view in awarding sentences. It is important to state that such situation arises not from the law itself but from their defective understanding and interpretation. The sentence should, not be lenient as to make crime of this nature still lucrative. The foreigners who are involved in such heinous offences are not entitled to any preferential treatment. The object of awarding sentence is to provide deterrent effect on others. In this regard I am fortified by the judgment of the Honourable Supreme Court in case of Bonifacio A. Bureyag v. The State reported in PLD 1991 SC 988 where it has been held that:--

13. "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 SC 500. We may add that while awarding the sentence in a case, regard has to be had if there existed extenuating circumstances 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, v. 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 a narcotics on the fabrics 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."

14. Reference in this regard may also be made to 1996 SCMR 247 where it has been held that:--

15. "(3) Mr. Saadat Hussain, learned Deputy Attorney-General appearing on behalf of the State contends that merely because respondent No. 1 had pleaded guilty does not legally entitle him to any uncalled for leniency in the matter of sentence particularly when the offence committed was of smuggling of huge quantity of 8500 Kgs. of contraband narcotics, He further urged that the learned Special Judge had already dealt with respondent No. 1 very leniently and further leniency shown by the learned Chief Justice of the High Court would set the whole operation at naught,

(4) The aforenoted contentions need consideration. Leave is, therefore, granted in this case."

16. A perusal of section 412 of Cr.P.C. reveals that where an accused person has pleaded guilty and has been convicted by a Court on such plea, there shall be no appeal except as to the extent or legality of the sentence. As such, Mr. Rana Muhammad Shamim has very rightly placed his submission for' reduction of the sentence. The imprisonment for offence punishable under section 156(1)(8) of the Customs Act is 14 years whereas the appellants were, awarded sentence for only 5 years' R.1. and fine of Rs.20,00,000.

17. There is hardly any substance in the submission advanced by the learned D.A.-G. that provisions of section 562, Cr.P.C. are not attracted in this case. In fact, this section has been omitted from the Cr.P.C, w.e.f. 1-7-1961 with the promulgation of the Probation of Offenders Ordinance (XLV of 1960).

18. In my humble view sentence of fine of Rs.20,00,000 is very harsh, Accordingly while maintaining the sentence of 5 years' R.I, I modify the sentence of fine to Rs.5,00,U00 only or in default each of the appellants shall undergo further R.I, for six months.

19. With this modification the appeal is otherwise dismissed.

20. N.H.Q./C-6/K Order accordingly,