JUAN SULLIVAN vs The STATE

1. S. A. RAHMAN, J.-The appellant, Juan Sullivan and his wife, Mrs. Maria Veronics, were convicted by a Special Judge for an offence under section 167(8)(u) of the Sea Customs Act, 1878, read with Ordinance No. 58 of 1962. On the appellant, a sentence of two years' rigorous imprisonment together with a fine of Rs. 3,00,000 or in default, twelve months rigorous imprisonment further, was imposed. His wife received a sentence of three month's rigorous imprisonment and a fine of Rs.

2. 5,000 or in default, three months' rigorous imprisonment further. Smuggled gold had been seized from their possession along with a revolver and some cartridges. Cash in the form of eleven hundred U. S. Dollars was also recovered from the person of the appellant.

3. On appeal, a learned Judge of the High Court of West Pakistan, Karachi Bench, upheld the conviction of the appellant but reduced his sentence of imprisonment to the term already undergone. With regard to the sentence of fine, it was directed that in view of the fact that the appellant was a foreigner without any ostensible means of living in Karachi, his fine would be remitted, except to the extent of the eleven hundred U. S. Dollars, which had been taken from his person.

4. Special leave to appeal was granted in this case as the High Court gave him no relief when he applied for the remission of the sentence of fine on the ground that the authorities bad released the 1100 Dollars in favour of his wife for her passage money, when she came out of Jail, with the permission of the State Bank and the money was thus not available towards payment of the fine imposed on him. He had no other resources on which he could draw for the payment of the fine.

5. The High Court turned down his prayer on the ground that a judgment in a criminal case could not be reviewed in the face of the provisions of section 369 of the Code of Criminal Procedure.

6. Leave to appeal was granted to consider whether the High Court might not have appropriately substituted another sentence for the sentence of fine confined to a specific sum of money, when it was found later that the suns originally intended for appropria--tion towards the fine was not available. A further question was also left open whether this Court, in its power to do full and complete justice in the case, should not itself make such an order.

7. We have heard Mr. Riaz Hashmi for the appellant and the learned Additional Advocate-General for the State. Mr. Hashmi attempted to argue that the High Court could have revised its own order under section 439 of the Code of Criminal Procedure. This contention is without force as that section clearly applies only when orders passed by Courts subordinate to the High Court call for consideration. The High Court were apparently right in holding that section 369 of the Code of Criminal Procedure precluded them from reviewing the order.

8. It is clear, however, on a perusal of the judgment of the High Court, that the learned Judge who passed that order clearly intended that the fine should be paid, if at all, out of the money seized from the appellant. Apparently, it was not brought to the learned Judge's notice that the money had, in the meantime, been released in favour of the appellant's wife for her passage money, with the requisite permission of the relevant authorities. If this fact had been known, the learned Judge might not have considered it necessary to impose any substantial fine on the appellant, having regard to his impecunious circumstances.

9. Mr. Abdul Kadir, the learned Additional Advocate-General for the Province, conceded that the words of section 167(8)(a) of the Sea Customs Act, did not make it obligatory to impose a fine in this case. But we consider that a small fine would meet the interests of justice, having regard to the circumstances in which the appellant is placed. We, therefore, reduce the fine of the appellant to a sum of Rs.

100. In default of payment, he would suffer one week's rigorous imprisonment further. The appeal is allowed to this extent.