1. The appellant was charged under section 156(1)(77) of the Customs Act, 1969, alongwith co- accused Muhammad Akram and M.O.S. Akber, and was tried before the learned Special Judge Customs and Taxation, Karachi, who has convicted the appellant and sentenced him to suffer R.I.
2. For six months, and to pay fine of Rs.10,000 in default whereof to suffer further R.I. For six months, while co-accused were acquitted vide judgment dated 21-12-1989.
3. The brief facts giving rise to the present Appeal are that on 8-6-1985 a transfer residence document was produced for scrutiny to appropriate officer, on which suspicion arose on examination of the passport in which passenger Shamim Ahmed appeared minor. After preliminary investigation it transpired that the claim of baggage under transfer of residence was being initiated fraudulently and the entries were forged and fake. Accordingly, accused Shamim Ahmed son of Nazir Ahmed and his accomplice Muhammad Akram were- arrested for violating the provisions of the Customs Act, 1969. The investigation further reveals that one Usman was also deeply involved in the racket of T.R. Fabricated cases and has played as instrument in this case.
4. After necessary investigation, the accused were sent up before the Court.
5. A formal charge was framed against the accused to which they pleaded not guilty.
6. At the trial prosecution examined Muhammad Ghufran Khan Inspector, Customs Preventive, P.W.1, he has produced the F.I.R. As Exh.4/A, passport, T.R. Form, `A' Form, employment certificate, issued by Messrs Samina Traders Dubai, and affidavit of accused Shamim Ahmed; which have been produced as Exh.4-B/l, to Exh.4-B/5; copy of notice served on accused under section 171 as Exh.4-C, Khuda Dino Memon, Inspector Customs Preventive, P.W.2. Mirza Abdul Ghaffar, Inspector Customs P.W.3 Muhammad Ayub (the then Public Relations Officer, Customs House, Karachi P.W.4, Liaquat Jamali S.P.O. Customs House, Karachi, P.W.5, Muhammad Wasim Khan A.S.I., F.I.A. Karachi, Airport, P.W.6, he has produced true copy of entry of Register as Exh.10/A and true copy of passenger manifest as Exh.10/B, Sahih Yousuf Investigating Officer P.W.7.
7. After close of the prosecution case, the statements of the appellant and co-accused were recorded under section 342, Cr.P.C. In which they have denied the allegations. They have examined themselves on oath as envisaged by section 340(2), Cr.P.C.
8. After taking into consideration, the evidence produced by the prosecution and the statements of the accused, the learned Special Judge was pleased to convict the appellant as described above, while co-accused were acquitted. The present appeal is directed against the above judgment of conviction.
9. I have heard Mr. Rehman, learned counsel appearing for the appellant, Mr. Jalaluddin Baloch learned counsel appearing for the State, and have gone through the R & P of this case.
10. Mr. Ataur Rehman, learned counsel appearing for appellant has not challenged the conviction on merits but he has contended that the appellant had not gained any monetary benefit and he had already undergone agony of protracted trial from 1983. He had further contended that the appellant has remained in custody, as under-trial prisoner for six days, it will not be appropriate to send him back to jail to undergo the remaining sentence. He has further contended that instead of sending the appellant to jail the amount of fine may be increased.
11. Mr. Jalaluddin Baloch, learned counsel appearing for the State has contended that the prosecution has proved its case against the appellant and he was rightly convicted. However, he was also of the view that in view of the fact that the appellant has suffered agony of protracted trial from 1983, the sentence already undergone will meet the ends of justice, and the amount of fine may be increased.
12. I have considered the contention. It is an admitted position that the appellant has remained in custody as under-trial prisoner for six days, and has suffered agony of protracted trial since 1983; the appellant did not gain any monetary benefit but it was just a case of an attempt, the ends of justice will be met if the substantive sentence is reduced to one already undergone and the amount of fine is increased. Therefore, I reduce the substantive sentence from six months to one already undergone, and enhance the fine from Rs.10,000 to Rs.25,000 (Rupees Twenty-Five Thousand), in default whereof, the appellant shall undergo R.I. For three months. The fine to be paid within fifteen days. With the above modification, the appeal is dismissed.
13. I had decided the above appeal on 23-10-1990 by a short order and these are the reasons for the same.
14. N.H.Q./S-903/K