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Petition for Special Leave to Appeal No. 260 of 1971, decided on 29th May 1972.
(On appeal from the judgment and order of the Lahore Nigh Court, Lahore, dated 27th July 1971, in Criminal Appeal No. 642 of 1970).
(a) Criminal Procedure Code (V of 1898),
S. 238‑‑Person convicted of offence under S. 420/511, P. P. C.‑High Court, on appeal, altering conviction from S. 420/511 to S. 420/116, P. P. C.‑Contention that conviction could not be altered without framing charge under S. 420/116., P. P. C.‑Held, abetment, being minor offence, accused could be convicted for that without framing a charge.
(b) Penal Code (XLV of 1860),
S. 116‑Abetment‑Person instigating Government Officer to accept his offer to defraud Govern ment‑Action amounts to abetment.
Irshad Hassan Khan, Advocate Supreme Court instructed by Syed Inayat Hussain Shah, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 29th May 1972.
The petitioner, who was Assistant Superintendent, Irrigation Section, in the Office of the Accountant General, Lahore, was tried by the Special Judge (Central), Lahore, for offences under sections 467, 468, 419 and 420, P. P. C. read with section 511, P. P. C. and 5 (2) of the Prevention of Corrup tion Act. He was convicted by order dated 3rd October 1970, under section 420/511, P. P. C. and sentenced to two years' rigorous imprisonment and a fine of Rs.500. The petitioner challenged this order in appeal before the Lahore High Court and a learned Single Judge. by order dated 27th July 1971, altered the conviction of the petitioner from section 420/511, P. P. C. to section 420/ 116, P. P. C. and reduced his sentence to that already undergone. The sentence of fine was maintained. The petitioner seeks permission to file an appeal against the said order.
The prosecution case is that the petitioner got himself introduced into the office of the Secretary, West Pakistan Land and Water Development Board, Lahore, at about 11‑10 a.m. as representative of Light Heart Medical Stores, Lahore, with the message that he was sent by somebody from the Accountant‑General's office with the intention that if the Secretary co operated, a sum of Rs. 2,94,500, the grant‑in‑aid already drawn by the said Board could be re‑drawn, on the basis of a duplicate authority.
Mr. Irshad Hassan Khan, learned counsel for the petitioner, has contended that the petitioner was not tried by the trial Court for the offence under section 107, P., P. C. which is a separate and distinct offence than the offences under sections 467, 468, 420/511 and 419, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, for which he was tried. According to the learned counsel, the conviction cannot be altered without framing a specific charge. The contention of the learned counsel has not impressed us. On the facts of the present case, section 238, Cr. P. C. is applicable and the petitioner could be convicted without framing a charge under section 420 read with section 116, P. P. C. The abetment on the facts of the present case was a minor offence and the petitioner could be convicted for that without framing a specific charge. It was also urged on behalf of the petitioner that the offence does not amount to abetment This also has no force. The petitioner instigated the officer concerned to accept his offer to defraud the Government. This amounts to abetment.
After going through the judgment of the High Court, we are satisfied that the petitioner has been rightly convicted under section 420/116, P. P. C. read with section 5 (2) of Prevention of Corruption Act. No ground has been made out to interfere. The petition is dismissed.
Leave refused.
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