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Criminal Petition for Special Leave to Appeal No. 25 of 1982, decided on 20th April, 1982.
(On appeal from the judgment dated 13‑1‑1982 of the Lahore High Court, Lahore in Cr. Misc. No. 4 of 1982 in Cr. Appeal No. 577 of 1981).
-----S. 5(1)(e) & (3)‑Conviction‑Appeal‑Re‑instatement in service Question whether accused petitioner should or should not be retained in service, held, depends, besides other matters, upon whether appeal ultimately succeeds or not‑Petitioner standing convicted on a charge of corruption, taint of conviction continues unless appeal accepted and petitioner not entitled to re‑instatement in service. [Civil services].
Sardar Roshan Ali Sandhu, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 28th March, 1982.
‑‑The petitioner was tried by the Senior Special Judge, Anti‑Corruption, Punjab, Lahore,‑and convicted under section 5(1)(e) read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo rigorous imprisonment for 15 months. His share in the land, covered by Mutation Exh. P. W. 2/A and sale deed Exh. P. W. 7/A, was also confiscated in favour of the State. The petitioner filed Criminal Appeal No. 577 of 1981 in the Lahore High Court against his conviction and sentence, which was heard by a learned Single Judge of the said Court and by an order passed on 21‑11‑1981 the appeal was admitted to a regular hearing and the petitioner was also ordered to be released on bail during the pendency of the appeal. The petitioner, thereafter, submitted another application (Criminal Miscellaneous No. 4 of 1982) under section 426 read with sec tion 561‑A, Cr. P. C. praying that pending decision of the appeal the judgment of the Senior Special Judge, Anti‑Corruption dated 22‑10‑1981 be suspended and the petitioner "be considered to continue in service and an order to that effect be issued to his appointing/removing authority (Assistant Commis sioner, Qasur)".
It appears that after the conviction and sentence of the petitioner by the Special Judge, Anti‑Corruption, he was removed from service.
The last mentioned application was dismissed by the High Court by its order passed on 13‑1‑1982 on the ground that unless the appeal of the petitioner was accepted and he was acquitted he did not have any right to seek re‑instatement in service, as the order of his conviction had not so far been set aside. This petition for leave to appeal is directed against this order.
Sardar Roshan Ali Sandhu, learned Advocate for the petitioner, submits that, alongwith the appeal, an application for interim relief was filed which was submitted under section 426, Cr. P. C. which lays down that "pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended, and, also, if he is in confinement that he be released on bail or on his own bond".
It is submitted that under the said provision of law the execution of the sentence passed by the learned Senior Special Judge, Anti‑Corruption should have been suspended in addition to the order of releasing the petitioner on bail.
The assumption underlying the above submission is that in case the order of the Senior Special Judge, Anti‑Corruption was suspended the petitioner would have been automatically entitled to re‑instatement in service. This assumption is entirely misconceived. The question whether the petitioner should or should not be continued in service depends, besides other matters, upon whether the appeal ultimately succeeds or not At the moment, the position is that the petitioner stands convicted on a charge of corruption, though the correctness of the said conviction has been challenged by way of an appeal. Unless the appeal is accepted the taint of conviction continues. The view taken by the High Court in this respect is perfectly correct. The only remedy of the petitioner is to request for early hearing and not seek modification of interim orders.
This petition is without force and must, therefore, fail and is, accordingly, dismissed.
Petition dismissed
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