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Special Criminal Appeal No. 44 of 1983, decided on 5th February; 1984.

-- Ss. 156(8) read with S. 178-Smuggling of goods - Accused, a foreigner, in no way concerned with sale of smuggled goods nor beneficiary thereof-Not in a position to furnish surety on grant of bail nor to pay heavy fine being a foreigner and having no source of income in Pakistan nor any relatives to help him-Sentence reduced.-[Sentence].

1976 S C M R 190 and 1978 P Cr. L J 209 and 1978 P Cr. L J 633 rel.

Kaikobad for Appellant.

Abdul Sattar for the State.

Date of hearing: 22nd January, 1.984.

Appellant abovenamed was convicted under section 156(1)(8) read with section 178 of Customs Act, 1969, on his own plea of guilt by Special Judge (Customs and Taxation) Karachi, in Case No. 140/83, vide judgment dated 7th December, 1983 and sentenced to suffer R. I. for 18 months and to pay fine of Rs. 50,000 or in default to suffer further R. I. for three months, has preferred the above appeal under section 185-F of Customs Act, 1969, read with section 412, Cr. P. C., on the following facts and grounds:-

That the appellant is a foreigner-Greek national.

It is alleged by the prosecution (Pakistan Coast Guards) that on 27^th November, 1982 they seized a vessel "m. v. DODO" which Bias in the high Seas 8 to 13 miles West of Cape Monze, as it was reported to contain a large quantity of crates of foreign liquor. It is the case of the complainant, that on search the Coast Guards recovered large quantity of crates of foreign liquor (7094 crates) from the vessel and after complet ing the necessary formalities, seized the vessel end the cargo and arrested the crew viz. the appellant and 8 others. Thereafter the complainant lodged a First Information Report on 27th November, 1982.

The prosecution further alleged, that following this recovery they arrested the owner of the vessel Stavros Vatikiotis from Sheraton Hotel, along with large quantity of currency, foreign as well as Pakistan. The said Stavros was also arrested.

It is also an admitted position, that pending their detention in the Central Prison, the D. M. L. A. ordered release on bail pending investiga tion, inquiry and trial of the appellant as well as owner in the sum of Rs. 50,000 each. The owner of the vessel, who managed to deposit cash security of Rs. 50,000 was released on bail, while the appellant who could not arrange his bail remained in custody and was produced as such for the first time along with the remaining crew, in the Court of the Special Judge (Customs) Karachi on 15th August 1983 when the challan was submitted.

That in the meantime the principal accused and owner of the vessel and the goods, Stavros absconded and 512 proceedings were taken against him by the trial Court. That in the meantime, the Coast Guards under took adjudication proceedings before the Deputy Collector Customs, wherein by order dated 28th November, 1983 the Deputy Collector Customs has confiscated the vessel and the goods as well as the Foreign Exchange and apart from heavy fine on the owner of the Shipping Company and the absconding appellant, levied cash penalty on the appellant.

That at the trial the appellant and the remaining co-accused pleaded guilty on the very first available opportunity and placed themselves at the mercy of the Court.

That the appellant is a patient of Asthama, which sickness has been aggravated during detention and there is a medical certificate of the Jail Doctor available on the record of the trial Court.

The appellant, therefore, submits, that there is no justification for distinguishing his case from the remaining accused, because be and t he co-accused are all to be considered as crew as against the owners of the vessel and as such in view of the observations of the Supreme Court reported in 1976 S C M R 190, the appellant prays that the sentence awarded to him should have been at par with the remaining co-accused.

That ends of justice have already been met with by confiscation of the vessel, the goods, which are valued at over Rs. 5 crores. With regard to the appellant and the other co-accused, they have suffered considerable detention in Central Prison and remission of a few months will not defeat the ends of justice.

In support of above grounds, the learned counsel for the appellant relied upon cases reported in 1978 P Cr. L J 209 and 633 and submitted at appellant has remained in custody right from the date of his arrest i.e., 27th November, 1982 as he was unable to furnish surety and is not position to pay heavy fine imposed on him, as he has no source of income at all in Pakistan nor any relatives and as such his further detention is using extreme hardship to his family and leas seriously affected his health as he is chronic patient of asthma and consequently sentence undergone by him be considered as sufficient punishment m his case, s he was not the beneficiary of the goods in question. In addition to this there is nothing in F. I. R. to suggest, that be was in any way involved in sale and disposal of goods in question.

Learned counsel appearing for the State on the other hand submitted, that fine imposed on the appellant may be reduced to Rs. 10,000 and imprisonment to the period already undergone by him, as present appellant was not directly involved in sale of the smuggled goods.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through the impugned judgment. It is admitted position, that the present appellant is in no way concerned ink sale of the goods in question, which is evident from F. I. R. as impugned judgment. It is also admitted position, that this appellant was not in position to furnish surety on grant of bail nor he is in position to pay heavy fine imposed on him, as he is foreigner and has no source of income in Pakistan nor any relatives to help him. Keeping in view these admitted facts on record, the cases cited by the learned counsel for appellants are applicable to the facts of the present case.

Therefore I allow the above appeal to the extent, that sentence awarded to appellant is reduced from 18 months to the period already undergone by him and fine of Rs. 50,000 imposed on him is reduced to Rs. 5,000 or in default to suffer further R. I. for one month only, as present appellant is neither beneficiary of goods m question nor directly involved in sale of smuggled goods, specially as appellant is chronic patient of asthma and as such reduction of sentence awarded to him by this judgment would meet the ends of justice, in view of the facts of the present case.

The above appeal is disposed of in the terms of above judgment.

M. Y. H. Appeal partly allowed.

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