The appellant, Kennith S. Ziebelman, who holds a U.S. Passport, was, convicted by the Special Judge, Customs, Lahore, of an offence under section 156(1)(89) of the Customs Act IV of 1969, and was sentenced to suffer imprisonment for a period of six months and also directed to pay a fine of Rs, 5,000 in default of payment of the fine, he was to receive simple imprisonment for a further period of six months. He has filed this appeal against his conviction and sentence. As the sentence appeared to be grossly inadequate, a notice was issued to him why it should not be suitably enhanced. This judgment will dispose of both these matters.
2. The appellant was searched at the Islamabad International Airport on 9-11-1984, at 9-00 a.m., when he was about to board a plane for Karachi on his way to the United Kingdom. The plane was on a domestic flight. The search led to the recovery of 250 grams of Heroin from his person.
Consequently, a case under section 156(1)(89) of the Customs Act was registerd against him.
3. At the trial, the learned Special Judge charged him as follows:- "That on 9-11-1984 at 9-00 a.m. At Islamabad International Airport within the area of P.S. Civil Lines, Rawalpindi you while going to U.K. Via Karachi through domestic flight you were checked by the A.S.F. Staff which led to the recovery of 250 grams of Heroin concealed in your shoes wrapped under your feet which you had attempted to smuggle out of Pakistan and thereby you committed an offence under section 156(1)(89) of the Customs Act, 1969 which is within my cognizance."
' The appellant pleaded guilty and stated:- "I am a carpet dealer and came to Pakistan to purchase some carpets and was staying in the hotel in Islamabad. I was provided with a guide named Farooq Ahmad who took me to different places and in the meantime offered me some stuff (Heroin) for which he explained to me that it is an intoxicant and I can smoke it and this is not an offence under the law prevailing in Pakistan. I purchased it from him and was taking the same to Karachi for my personal use."
The learned Special Judge accepted the plea of guilty and proceeded to convict and sentence him in the manner already indicated. From the order of the learned Special Judge the appellant has preferred this appeal.
4. In support of this appeal it was contended by learned counsel appearing on behalf of the appellant that if the statement which he made at the trial was read as a whole it did not amount to the plea of guilty and as such the Special Judge ought not to have convicted him without a regular trial.. Without going into the merits of this contention I offered to learned counsel that I was prepared to set aside the appellant's conviction and sentence and order a re-trial. It may be mentioned that it is a matter of discretion with the trial Court to proceed or not to proceed with a trial even when the accused pleads guilty to the charge framed against him. Learned counsel then abandoned his contention and took up the position that this appeal should be heard on the basis as if there was an unqualified plea of guilty by the appellant.
5. Ordinarly, as provided by section 412 of the Code of Criminal Procedure an appeal does not lie against conviction when it is based upon a plea of guilty. However, this does not preclude the appellant from showing that the facts diclosed in the charge do not constitute C the offence of which he has been convicted even though he had pleaded guilty at the trial. In support of this legal position I may refer to Bulo Khan v. State PLD 1967 Kar. 608 and In re: Ramaswa mi AIR 1954 Mad.
1020. In Bulo Khan v. State, Sajjad Ahmad, J. Observed:- "If the facts alleged against an accused person do not themselves constitute an offence, even if they are proved or admitted, the plea of guilty by an accused person in relation to those facts would amount to admission of proved facts against him without converting those facts into a penal offence, of which each ingredient has to be satisfied according to law. In the present case, what the plea of guilty made by the accused amounts to, is this much, and no more that they had as alleged by the prosecution, cultivated the survey numbers and sown paddy crops therein, in Kharif 1964-65; but if their doing so at the time was not an offence, by no stretch of imagination can it be said that they confessed to their guilt in regard to an offence."
' Similarly, In re: Ramaswa mi the view expressed was:- ' ordinarily on a plea of guilty there is a bar under section 412 for an appeal except as to the legality or extent of sentence, still if the facts do not amount to an offence, the plea of guilty is no bar for an appeal on merits and it does not stand in the way of the accused being acquitted."
There is another aspect of the matter also. A notice has been issued to the appellant why his sentence should not be enhanced. Now, under section 439 (6) of the Code of Criminal Procedure the appellant has a right to show that his conviction is illegal. In doing so, it is open to him to argue that the facts as stated in the charge do not constitute the offence of which he has been convicted. In support of this view, reference may be made to Nqa Ywa and another v. Emperor AIR 1935 Rang. 49 wherein it was observed by a Division Bench that an accused was entitled to appeal both against his conviction and sentence notwithstanding his plea of guilty when notice of enhancement of sentence was served upon him. In Superintendent and Remembrancer of Legal Affairs v. Jananendra Nath Ghose AIR 1929 Cal. 747 although the point did not directly arise before him, Buckland, J. Observed that the accused could while appearing in response to a notice for enhancement, show that there was some defect in proceedings or that the acts to which he confessed by his plea of guilty did not amount to an offence or the offence of which he had been convicted.
6. That being the position in law I have examined the legality or otherwise of the conviction of the appellant from ,the aspect whether the facts to which he pleaded guilty constituted the offence of which he has been convicted. As already mentioned the conviction of the appellant has been recorded under clause (89) of section 156(1) of the Customs Act. This clause prohibits the acquisition, possession, carrying removing, depositing, harbouring, keeping, concealing or in any manner dealing with goods which are known to be smuggled or in respect of which there may be reasonable apprehension that they had been smuggled. Shortly speaking the offence created by this clause relates to smuggled or suspected to be smuggled goods. Now when I examine the charge which was read out to the appellant at the trial I find there is no allegation that the Heroin recovered from the possession of the appellant had been smuggled into Pakistan or there were reasons to believe that it had been brought illegally here. On. The other hand the gravamen of the charge appears to be that he was intending to smuggle heroin recovered from his possession out of Pakistan. That being so, the appellant could neither be charged with nor convicted of an offence created by clause (89), ibid. On the other hand, if at all, his case fell under clause (8) of the same section. Thus, the conviction of the appellant as recorded by the learned Special Judge was entirely illegal. It may also be mentioned that in exercise of revisional jurisdiction I cannot convict the appellant of the offence under clause (8) which is of a far more serious and graver nature than the offence under clause (89), and it carries a minimum penalty of imprisonment of not less than five years.
7. For the reasons stated above, I am constrained to set aside the conviction of the appellant. He shall be set at liberty forthwith if not required in any other case. The quashment of the appellant's conviction would not prevent the State, if it so decides, to prosecute him under the appropriate provision of law.
Acquittal ordered.