1985 P Cr (PLP)

(c) Customs Act (IV of 1969) - ‑‑‑S. 156(1)(8)‑‑Sentence‑‑Occurrence eleven and half years old‑‑Appeal being heard after about eight years‑‑Accused already suffered agony and expenses of protracted trial‑‑Sending accused back to jail, held, would not serve any purpose‑‑Sentence reduced to one already undergone.‑‑[Sentence]. Ch. Ghulam Sarwar for Appellant. Walayat Umer for the State. Date of hearing: 4th March, 1984. The appellant, Ghulam Rasool (aged 45 years) was convicted by the Special Judge (Customs), Lahore of an offence under section 156(1)(8) of the Customs Act and was sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.5,

000. In default of payment of the fine he was to suffer further rigorous imprisonment for a period of one year. The appellant has filed this appeal against the conviction and sentences.

2. The case of the prosecution against the appellant was that on the evening of 25th August, 1972 S.I. Muhammad Khan, P.W.1 of the Border Force had, on receipt of a secret information, set up a Nakabandi near village Gujjar Toor at a short distance from the Indo‑Pakistan Border. The appellant reached there on a horse at 11 p. m. He was stopped. Three tins containing 58 pounds of menthol were found loaded on the horse. An F.I.R. of this incident was lodged at Police Station Shah Gharib on 1st September, 1972. A case under section 156(1)(8) of the Customs Act was registered against the appellant.

3. The appellant pleaded not guilty to the charge against him. He stated that at the relevant time he was carrying two tins entrusted to him by one Kaka for delivery to another village. A raiding party caught hold of him and seized the goods from him. He also stated that he had been falsely implicated by S.I. Muhammad Khan whom he had declined to help in abducting a girl. He produced two witnesses in his defence.

4. The case of the prosecution against the appellant rests upon the testimony of S.I. Muhammad Khan, P.W.1 and Sepoy Muhammad Jalil, P. W.2. Both these witnesses stated that they were members of the Nakabandi party and had arrested the appellant from near the Indo‑Pakistan Border while carrying three tins containing menthol on a horse. So far as Sepoy Muhammad Jalil, P.W.2 is concerned he had no enmity at all with the appellant. As regards S.I. Muhammad Khan, P.W.1 the appellant kept on improving his case as the trial proceeded. When S.I. Muhammad Khan, P.W.1 appeared in the trial Court he was asked whether he had sought the help of the appellant in abducting a girl. Of course S.I. Muhammad Khan denied this allegation. Later, when the appellant examined his own witnesses in defence his case was that he had been asked by S.I. Muhammad Khan P.W.1 for the loan o a horse and when the appellant refused to oblige him he involved him in this case. It is also to be noticed that just before the trial started A the appellant admitted that he had been arrested with two tins which he was carrying with him. Taking all the circumstances in consideration I am unable to find the defence version worthy of credit.

5. No doubt there is a delay of about six days in the lodging o the F.I.R. The prosecution has offered a satisfactory explanation. Its case is that the local officers were not sure if smuggling of menthol was an offence and some time was spent in obtaining legal opinion in this regard.

6. From the statements of S.I. Muhammad Khan, P.W.1 and Sepoy Muhammad Jalil, P.W.2 I am satisfied that the appellant was in fact found while in the process of smuggling menthol out of Pakistan. He was thus rightly convicted by the learned Special Judge (Customs) of an offence under section 156(1)(8) of the Customs Act. The question of sentence, however, requires consideration. The incident took place more than eleven and a half years ago. The appellant's appeal has remained pending for more than 8 years ago. The appellant had already undergone the agony and expense of a protracted trial. It will not serve any purpose now to send him to jail to serve the un-expired portion of his sentence. I would accordingly reduce his sentence to the period already undergone by him. The sentence of fine is also set aside. The appeal is disposed of accordingly. The appellant is on bail. His bail bond shall stand discharged. S.A. Sentence reduced.