Z. C. Valliani, J.-The State being aggrieved by judgment dated 29th June, 1983 of learned Addl.
District and Sessions Judge, Karachi, who was at the relevant time Incharge District and Sessions Judge, Karachi, in case No. 142/82 by which respondent was convicted on his own plea of guilt and sentenced to fine of Rs 25000/- only under section 156 (89), Customs Act, 1969, has preferred the above petition on the facts and grounds mentioned in the memo of the above petition.
2. The above petition has been taken up for regular hearing today as a result of Misc. Apple. No. 1046/83 made by the respondent, which was granted by consent.
3. The learned advocate appearing for the State in support of the above petition submitted as under :
(a) That the Teamed Incharge District and Sessions Judge had no jurisdiction to hear and pass the impugned judgment in the case in question as Special Judge by his order dated 11th June, 1983 under section 185(4) of the Customs Act, 1969 had only authorised the Sessions and District Judge, Karachi to dispose of urgent work of this court during summer vacations from 12th June, 1983 to 2nd July, 1983.
(b) That under the provisions of Section 156 (89), Customs Act, 1969 awarding of sentence is must in addition to the fine as mentioned in the said provisions, but the learned Incharge District and Sessions Judge, Karachi, did not award any sentence to the respondent, but only fined him as hereinabove mentioned and consequently the sentence imposed on the respondent, by the impugned judgment, is not in accordance with the law and consequently the State has rightly urged for enhancement of the sentence specially in respect of the imprisonment, which was not at all awarded to the respondent by the impugned judgment, (c) That benefit of provisions of section 382-B Cr. P. C. Could have been granted to the respondent but only after passing of sentence and not otherwise.
(d) That punishment for carrier as well as beneficiary provided under section 156(8) of the Customs Act, 1969, is same and as such whether the respondent was a broker or a carrier or a beneficiary was immaterial for purposes of awarding sentence.
(e) That the learned Incharge District and Sessions Judge, and anti dated the case without any notice to the State and consequently the State had no opportunity to urge before the learned Judge in question regarding the sentence to be passed against the respondent, even on his own plea of guilt otherwise the filing of the above petition would not have been necessary.
4. In view of the above contentions the learned advocate for the State submitted, that if heir contentions in respect of clause (a) are accepted, then the impugned judgment be set aside and the case be remanded back to the Special Judge, for hearing on merits, otherwise this Hon'ble Court in exercise of its powers under section 439 Cr. P. C. May pass the appropriate sentence of imprisonment as well as may be pleased to enhance the fine imposed on the respondent, in accordance with the provisions of section 156 (89) of the Customs Act, 1969.
5. The learned advocate appearing for the respondent on the other hand submitted, that during the relevant period Mr. Ali Ahmad Junejo IIIrd. Add!. Sessions Judge, Karachi was acting as Incharge District and Sessions Judge, Karachi according to order dated 11th June, 1983 passed by the District and Sessions Judge, Karachi in respect of summer vacations in question and as such by virtue of the order dated 11th June, 1983 passed by the Special Judge (Customs and Taxation), Karachi under section 185(4) of the Customs Act, 1969, he was fully competent to hear the case and pass the impugned judgment on the basis of the said order of the Special Judge, Karachi. As far as urgency of the case on the basis of which the learned Incharge District and Sessions Judge, Karachi anti-dated the said case and heard and dispensed of the same on 29th June, 1983, the learned counsel submitted, that part 2 of the impugned order clearly mentions the said reasons which in his opinion were sufficient for the learned Judge to anti-date the case. As far as giving of notice to the State was concerned, since the respondent in writing had pleaded guilty it was not necessary for prosecution to lead any evidence and consequently the learned Judge in view of the urgency on the basis of which he had atni-dated the case, did not think necessary to issue notice to the State. The learned counsel further submitted, that even if the notice was given to the State, the State would not have lead any evidence in the face of the plea of guilt of the respondent given in writing and as such no prejudice was caused to the State.
6. The learned advocate for the respondent however, conceded, that under the provisions of section 156 (89) Customs Act, 1969, awarding of sentence of imprisonment is mandatory, but in the present case since the learned Judge took into consideration the period of detention of the respondent as under trial prisoner, which in fact was one month and 18 days and not 24 days, he granted benefit of section 382-B Cr. P.C. In respect of sentence of Imprisonment he imposed only fine. The judgment clearly shows, that the learned trial court considered the detention of the respondents under trial prisoner as the imprisonment awarded to him and in view of section 382-B Cr. P.C. Did not pass any additional sentence of imprisonment, but basically the mandatory provisions of sentence as envisaged by section 156 (89) of the Customs Act, 1969 were complied with, in his opinion.
7. I have carefully considered the above submission made by the learned advocate before me and have gone through R&P, the impugned judgment as well as order dated 11th June, 1983 passed by the Special Judge. Karachi u/s. 185 (4) of the Customs Act, 1969 by which he had authorised the District & Sessions Judge, Karachi, to handle the case under the Customs Act during vacations, as well as order dated 11th June, 1983 of the District & Sessions Judge, Karachi regarding appointment of Mr. Ali Ahmed Junejo as Incharge District & Sessions Judge, Karachi from 27th June, 1983 to 11th July, 1983, as well as through the plea of guilt given in writing by the respondent. All these papers have been produced by the learned advocates in the course of their arguments before me.
8. As far as the contentions of the learned advocate for the State, that Mr. Junejo, as he was basically additional District Judge, was not empowered by order dated 11th June, 1983 of the Special Judge, Karachi, to deal with the case in question is concerned, I see no force in the said arguments, as Mr. Junejo, while disposing of this case did not act as an Addl. District & Session Judge as basically he was but on account of the orders of the District & Sessions Judge, dated 11th June, 1983, in his capacity as the Incharge District and Sessions Judge, Karachi during summer vacation, dealt with the case in question as Incharge Special Judge, Customs Karachi, which is evident from his impugned order, on the basis of orders dated 11th June, 1983 of the Special Judge Karachi the certified copy of which has been produced by the learned State counsel before me. In view of this in my opinion, the impugned judgment was not passed without jurisdiction, as urged by the learned advocate for the State.
9. As far as second contention of the learned counsel for the State regarding mandatory sentence provided u/s. 156 (89) of the Customs Act, 1969 are concerned, I find great force in the said contention, as the learned trial court put the cart before the horse by misreading the provisions of section 382-B Cr. P.C. By not awarding any sentence by his impugned judgment in view of the period of the detention undergone by the respondent as under trial prisoner. This is a technical flaw in the judgment of the learned trial court and as such it could be rectified by the Court, under the provisions of section 439 Cr. P.C., specially as notice for enhancement of the sentence has already been given to the respondent. As far as quantum of the sentence is concerned, the contentions of the learned counsel for the State are, that the punishment provided for beneficiary and/or carrier or broker u/s. 156 (89) Customs Act, 1969 is same and as such a very lenient sentence has been awarded to the respondent and consequently the same may be enhanced, lt is true that the sentence for carrier as well as beneficiary as provided by section 156 (89) Customs Act, 1969 are same However, Courts always have taken into consideration the fact whether the accused person is carrier or beneficiary in awarding sentence. Even in cases of grant of bail, the question whether the accused is a carrier or beneficiary is also taken into consideration and therefore, normally the sentence awarded to the carrier/broker are always less than what are awarded to the owner and/or beneficiary in such cases. Keeping in view this position, I would allow the above Revision petition to the extent of punishment awarded to respondent, in view of the clear provisions of section 156 (89) Customs Act, 1969 and sentence the respondent to suffer R1, for 24 days and enhance the fine imposed on him from Rs. 25,000/- to Rs. 30,000/-. However, I grant benefit of section 382-B Cr. P.C. To the respondent in respect of his period of detention as under trial prisoner, which according to the impugned judgment was 24 days and consequently it is not necessary to remand back the respondent to judicial custody in respect of the sentence of imprisonment awarded to him by this judgment. However, I grant one week's time to the respondent to pay the difference of fine of Rs. 5000/- or in default to suffer further R.I. For 6 months. The learned trial court is directed, that in case the respondent does not deposit the additional fine of Rs. 5000 imposed on him within one week from today, non-bailable warrants be issued for his arrest and on his arrest he may be remanded back to the judicial custody to serve out the sentence in lieu of fine imposed by this judgment. In case additional fine is deposited by the respondent, the bail bonds if any executed by the respondent in the above petition shall automatically stand discharged.