' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Both the above appeals are directed against the judgment dated 19th December, 2002, passed by the learned Special Judge (Customs and Taxation), Karachi, in Case No,6 of 2002.
2. Both the appellants were charged for commission of the offences punishable under section 156(1) clauses (8) (14) (82) read with section 178 of the Customs Act, 1969.
3. However, a perusal of the impugned judgment shows that in the title and first para. Of the judgment it is stated that the appellants/accused were challenged to face trial for offence punishable under section 156(1)(8)(14)(77) and (81) of the Customs Act, 1969. On typed page 4 of the impugned judgment also, it is stated that charge was framed against both the appellants under section 156(1)(8)(14)(77) and (81) read with section 178 of the Customs Act, 1969. This shows that lack of application of mind on the part of learned trial Judge. It is very much apparent on the face of record that no charge was framed for commission of offence under clauses (77) and (81) of section 156(1) of the Customs Act, 1969, but these clauses have been referred time and again in the judgment. Again I have found that the learned trial Judge has not awarded any conviction for the commission of any offence and the sole finding in this behalf is as follows:--- "That the accused Jamshed Khan being the Customs Examiner of the consignment had cleared the same without examining the consignment in connivance and abetment of the offence committed under the provisions of section 178 of the Customs Act, 1969 which stand fully proved against the accused Jamshed Khan. I, therefore, decide points Nos.1 and 2 in the affirmative."
4. Mr. Sohail Muzaffar, learned counsel for appellant Jamshed Khan and Mr. Ghulam Shabbir Baloch, learned counsel for appellant Muhammad Amjad have assailed the sentences awarded to appellants on merits.
5. The learned Standing Counsel has not supported the conviction awarded to appellant Muhammad Amjad but has supported the sentence awarded to appellant Jamshed Khan.
6. The attention of learned Standing Counsel was drawn to the fact that the learned trial Court has not awarded any conviction and was asked to address the argument whether any sentence can be awarded without first convicting an accused person for commission of offence specified in the judgment.
7. The learned Standing Counsel has frankly stated that in every criminal case the conviction should precede the awarding of sentence. I have further asked him to read section 178 of the Customs Act, which according to the learned trial Court stands proved against accused Jamshed Khan. Section 178 of the Customs Act, 1969, reads as follows:--- "178. Punishment of persons accompanying a person processing goods liable to confiscation.---If any two or more persons in company are found together and they or any of them, have goods liable to confiscation under this Act, every such person having knowledge of this fact is guilty of an offence punishable in accordance with the provisions of this Act as if goods were found on such person."
8. The learned Standing Counsel was asked whether appellant Jamshed Khan, the then Custom Examiner accompanied the person possessing goods liable to confiscation. He frankly stated that it is not the prosecution case. The case against appellant Jamshed Khan is that he connived with the exporter and thereby facilitated the attempt for exporting counterfeit Cigarettes out of country.
He pointed out that the said act is an offence punishable under clause (82) of section 156(1) of the Customs Act. However, neither there is any finding to the effect that appellant Jamshed Khan committed offence under clause (82) of section 156(1) of the Customs Act, nor there is any conviction for the commission of offence under this provision, as required under section 367, Cr.P.C.
9. In view of the fact that the learned Standing Counsel has not supported the sentence awarded to appellant Muhammad Amjad, and the sentence awarded to the appellant Jamshed Khan is not sustainable in the absence of conviction for the commission of offence under section 156(1)(82) of the Customs Act, 1969. I am of the considered opinion that the sentences awarded in the impugned judgment are not sustainable in law, which are hereby set aside. Both the appeals are allowed accordingly.
10. Appellant/accused Muhammad Amjad is on bail, his bail bond is discharged.
Appellant/accused Jamshed Khan was awarded sentence of imprisonment already undergone and was further sentenced to pay fine of Rs,1, 00,000 (Rupees one lac). He had deposited the fine with the trial Court. The trial Court is directed to refund amount of fine to appellant Jamshed Khan.