1. This appeal arises out of the order dated 23rd of January, 1978 passed on a plea of guilty by the present appellant, whereby the learned Special Judge (Customs and Taxation) Karachi convicted the appellant under Item (8) of section 156 (1) of the Customs Act, 1969 and sentenced him to undergo simple imprisonment for 3 months and to pay a fine of Rs. 50,000 or in default to undergo a further simple imprisonment for 12 months.
2. Briefly the facts of this case are that on receipt of information the Customs Intelligence Officer, secured from the co-accused Micheal Quellet, 8 bales of denim cloth from the premises known as Rahim Court where he was staying as a paying guest. The bales were opened and were found to contain charas lying concealed, which weighed 160 seers. The co---accused disclosed to the Customs Authorities that the seized bales were the property of the present Appellant who is a Canadian national. In consequence of this information the present appellant was arrested and from the documents secured from his possession it was revealed, that he had arranged for the export of these bales and had also issued a bank draft for U. S. Dollars 4705 in favour of Hussain & Co. Towards export charges. After usual investigation the two accused were sent up for trial in the Court of Special Judge (Customs and Taxation) Karachi on 29th December, 1977.
3. On 22nd January, 1978 in answer to the charge the two accused pleaded guilty and filed written pleas before the trial Court. The present appellant in his written plea submitted that the co- accused Micheal was innocent and had nothing to do with the cloth bales of which he claimed ownership. He also admitted that he had requested co-accused Micheal to keep in his house the aforesaid bales to be later on collected and exported through his agent, Messrs Hussain & Co.
4. Finally he pleaded guilty to the charge and placed himself at the mercy of the Court. Co-accused Micheal also stated in his written pleas substantially the same facts but in the end prayed for mercy. The learned trial Court accepted the pleas of guilty of the two accused and convicted them awarding the appellant the sentence as stated above. The Court, however, taking into consideration the facts and circumstances of the case awarded lesser sentence to co-accused Micheal on the ground that he deemed to be merely responsible as a carrier. The sentence awarded to the co-accused was imprisonment till the rising of the Court and fine of Rs. 50,000 or in default 12 months' imprisonment.
5. By the present appeal the appellant seeks to challenge the extent of the sentence imposed upon him. In support of the appeal Mr. Rustom J. E. Kaikobad, learned counsel appearing for the appellant submitted that all the relevant circumstances appearing in this case have not been taken into consideration while awarding the sentence of imprisonment for 'a period of 3 months. In this connection learned counsel referred to the fact that the appellant pleaded guilty to the charge at the earliest oppor--tunity and made a clean breast of the facts constituting the offence. It was also pointed out that the appellant had pleaded for mercy in view the special circumstances that the wife of the appellant is pregnant and that he was badly required to be by her side and with his 2 children. In this Court a cable-gramme has been produced which states that the appellant's wife had suffered nervous breakdown resulting in complications in her pregnancy and that the appellant's signature was required in case of possible abortion.
6. No grievance was made at the bar as regards the quantum of fine imposed upon the appellant ; on the contrary a suggestion was made that in view of the peculiar circumstances in which the appellant was placed the amount of fine may be increased and the period of imprisonment reduced proportionately.
7. As pointed out by me in Nrck Kafnazi v. The State (PLD 1977 Kar. 1049), the sentence for a conviction under the penal law of the land cannot be determined by a mere process of calculation as a tarrif charge. It was further observed that where a culprit genuinely expresses remorse for his crime and the. Court is convicted that he is repentant for what he has done, the plea of guilty positively calls for due consideration in the matter of sentence.
8. It seems the appellant was arrested on or about 15th December, 1977, and had remained as an under-trial prisoner for one month and 9 days. Thereafter the appellant has served out about 2 months and 3 days sentence of imprisonment. He is not likely to undergo the alternate sentence of imprisonment in default of fine as his counsel categorically stated that he is prepared to deposit the amount of fine immediately.
9. On an overall consideration of the facts and circumstances of this case it seems, quite apparent that the appellant has suffered sufficient humiliation and mental agony on account of his family circumstances and the loss of his job. In addition sentence of heavy fine must greatly burden his pocket depriving him and his family of the advantages and conveni--ances secured with the help of money.
10. The learned Dy. Attorney-General submitted that the cable-gramme is not sufficient proof of the fact that the wife of the appellant is sick or that complications have arisen in connection with her pregnancy. However, it was rightly contended by the learned counsel for the appellant that at the earliest opportunity on 22nd January, 1978 the appellant had personally informed the trial Court about the illness of his wife.
11. After taking into consideration the aforesaid circumstances I am of the view that the substantive sentence of the appellant must be reduced to imprisonment already undergone tut at the same time the sentence of fine must be increased by a further sum of Rs. 10,000 which will make the total amount of fine at Rs. 60,000 or in default simple imprisonment for 12 months, which in my opinion would sufficiently meet the ends of justice. I might mention here that the legality of enhancing sentence of fine has received my consideration and the learned counsel for the appellant has placed before me cases reported in 50 Cr. L J 353, AIR 1940 Lah. 539 and P. L D 1961 Azad J & K 23 which seem to lay down that where the sentence of fine is enhanced but the alternate sentence' of imprisonment is maintained as originally imposed, the total effect will not A result legally in the enhancement of sentence as a whole.
12. The appeal is, therefore partly allowed in terms stated above and appellant shall be released forthwith upon payment of the fine as altered in this judgment if not required in any other case.