Appellant above-named, being aggrieved by judgment dated 30th October, 1976 of the Special Judge, Customs in Criminal Case No. 123/75, by which appellant has been convicted under clause 89 of section 156 (1) of Sea Customs Act sentenced to undergo R. I. For one year and to fine of Rs.
5,000 or in default t suffer further R. I. For one year, has pre--ferred the above appeal, on the following facts and grounds :-
2. According to prosecution, on 3rd April, 1975, a joint raiding party consisting of officers of Customs Intelligence and Pakistan Narcotics Control Board was formed and said party proceeded to Super High Way opposite Al-Azam Square, Karachi, in consequence of receipt of some spy information, that certain smuggled watches would be delivered to somebody at a particular place. The joint raiding party spotted appellant Iqbal Ahmed getting down from a rickshaw at 11 p. m. At the place opposite Al-Azam. The appellant was carrying one basket and one cloth bag. He was stopped and interrogated and searched. The basket and the cloth-bag, being carried by the appellant, were found to contain 233 foreign smuggled watches. The appellant could not give lawful excuse for possessing such huge quantity of foreign smuggled watches, which were secured and seized and the appellant was arrested under a Mashirnama. Subsequently, the appellant was taken alongwith case property to the Directorate of Customs Intelligence, where F. I. R. Was lodged for offence under the Customs Act by A. G. Khan, Superin--tendent of Customs, who challaned the appellant.
3. Substance of accusation Exh. 1 was read over and explained to the appellant, who was called upon to show cause, as to why he should not be convicted under the Customs Act. The appellant pleaded not guilty and claimed trial.
4. Prosecution examined Faryad Hussain Exh. 2, Muhammad Exh. 4, Nadim Hussain Exh. 5, Muhammad Mehdi Exh. 7 and Ghulam Shafi Exh.
8. The prosecution was closed under the statement Exh.
9. Later on Abdul Hamid Khan Exh. 18 was examined.
5. In his statement Exh. 10, the appellant denied the prosecution allegations and disowned the watches numbering 233 and the basket and the bag allegedly secured from his possession. The appellant also filed statement in writing Exh. 11, wherein he stated, that on 3rd April, 1975 at 10 p. m., he came out of- his house in Paposhnagar, Nazimabad and started looking for some conveyance to reach Al-Azam Square. Where he used to go for studies to a senior student of his college. The appellant added, that while he was looking for conveyance a rickshaw came there, but the same was occupied by another person carrying a basket in his hand. Since no other rickshaw was available, the appellant shared the rickshaw with the person carrying the basket. The appellant added, that on reaching Al-Azam Square, he got down from the rickshaw and was about to pay the agreed fare to the rickshaw driver, when all of a sudden a jeep came there and a few persons surrounded the rickshaw. That the other person with the basket got down from the rickshaw and went towards Liaquatabad. That the persons from the jeep chased the person with basket, but the latter took short turn into a bye lane. The appellant was, however, caught by the persons, who came from the jeep while the persons, who had chased the other person with basket came back with the basket without catching its owner. The appellant further stated that he was forced to sit into the jeep and upon this, people, who assembled there, objected. That the persons in the jeep disclosed, that they were persons of Narcotic Control Board and that they were taking him to their office for interrogation. The appellant added, that he was confined in office of Narcotic Control Board for a couple of days and then he was shifted to Directorate of Intelligence (Customs), where he came to know that 230 foreign smuggled watches had been foisted upon him. The appellant stated, that the witnesses" for the prosecution were employees of Customs or the Narcotic Control Board or they were hired witnesses. He examined D. W. Akbar Kareem Exh. 13.
6. The learned trial Court taking into consideration the evidence adduced before it. Convicted and sentenced the appellant by impugned judgment as here in before mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
7. The learned Advocate appearing for the appellant at the outset stated, that he was not pressing the above appeal on merits, but only in respect of the sentence awarded to the appellant, as the said sentence in view of the facts and circumstances of the present case was harsh.
8. The learned Advocate appearing for the State also submitted, that due to the prolonged trial and as it is an old case, in his opinion the ends of justice will be met, if the sentence of the appellant is reduced to one already undergone by him and the fine is also reduced to Rs. 1,000, as the appellant at the time of the incident in question, is alleged to have been a student.
9. I have taken into consideration the above submission made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as the impugned judgment.
10. I find that the prosecution has established its case for recovery of the watches from the appellant, beyond reasonable doubt by prosecution witnesses, against whom no enmity is alleged.
The learned trial Court taking into consideration the evidence adduced by the prosecution and after due appraisal thereof, including the evidence led by the appellant, for cogent reasons has convicted and sentenced the appellant as herein---above mentioned and I see no reason to disagree with the conclusions and findings of the learned trial Court. Even the learned Advocate for the appellant did not press the above appeal, perhaps in view of this position, on merits.
11. The only point urged by the learned Advocate for the appellant before me was, that the appellant on the day of the incident was student and has remained in Jail for a total periol of about one month and since the incident is of 3rd April, 1975 and the appellant has been on bail since November, 1976, the ends of justice would be fully met, if the sentence of imprisonment awarded to the appellant is reduced to one already under--gone by him and the fine imposed on the appellant is also reduced to Rs. I,000, in view of the facts and circumstances of this case and keeping in view the admitted facts on record, that appellant was the student at the time of the incident in question. In support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1973 Kar. p. 659 as well as on unreported decision of the hon'ble Supreme Court in Muhammad Umer Soni v. The Sate (Criminal Appeal No. K-26/73. Dated 17th August, 1980.
12. I have carefully considered the above submissions made by the learned Advocate for the appellant and have gone through the cases cited by the learned Advocate for the appellant in support of his contention. Keeping in view the two cases cited by the learned Advocate for the appellant, which I have carefully gone through and keeping in view the evidence brought on record by the prosecution before the learned trial Court, as well as the fact, that appellant was a student at the time of the incident in question and watches recovered from the appellant are not costly watches, in my opinion, ends of justice would be fully met, if the sentence of imprisonment awarded to the appellant is reduced to one already undergone by him and the fine of Rs. 5,000 imposed on him, is reduced to Rs. 2,500 as the incident is of April, 1975 and the appellant has been on bail since November, 1976 it would not be proper to remand him back to custody, to serve out the remaining sentence.
13. Therefore, while dismissing the above appeal on merits, I alter the sentence awarded to the appellant in respect o--- the imprisonment, to the period already undergone by him and reduce the fine from Rs. 5,000 to Rs. 2,500 and in default of payment of fine to suffer further R. I. For one year. However, I grant two weeks time to appellant to pay the fine of Rs. 2,500 from today, failing which, the learned trial Court is directed to issue non-bailable warrant for his arrest and on his arrest to remand hi to judicial custody to serve out the sentence in lieu of the fine, as herein above mentioned.
14. The above appeal stands disposed of in terms of the above judgment.