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Criminal Appeal No.29 and Criminal Petition No.3‑P of 1985, decided on 10th March, 1985.

(From the judgment of the D.I.Khan Bench of the Peshawar High Court, dated 16‑1‑1985, passed in Criminal Appeal No.24 of 1984).

Penal Code (XLV of 1860)‑‑

‑‑‑S.409‑‑Prevention of Corruption Act (II of 1947), S.5 (2)‑ Sentence‑‑Concerned authorities without whose active connivance criminal misappropriation could not have been made, trying to help accused after registration of case‑‑Accused likely to be dealt with departmentally in consequence of his conviction‑‑Scope of reduction in sentence of accused, held, was present in circumstances‑‑Sentence of accused, therefore, was reduced.

Tariq Pervaiz, Advocate Supreme Court instructed by Nur Ahmad Khan, Advocate‑on‑Record (absent) for Appellant.

Bashirullah Khan, Assistant Advocate‑General, N.‑W.F.P. for the State.

Date of hearing: 10th March, 1985.

The petitioner who has filed this petition for leave to appeal, is aggrieved by the dismissal of his appeal, by the D.I.Khan Bench of the Peshawar High Court, against his conviction recorded by the special Judge Anti‑Corruption, Peshawar (Provincial), under section 409, P.P.C. read with section 5(2) of Act 11 of 1947, though his substantive sentence was reduced from R.I. for three years to R.I. for two years and the fine of Rs.10,000 to Rs.5,000.

2. After hearing the petitioner on 20‑2‑1985, notice was issued to the Advocate‑General, N.‑W.F:P., only on the question of the sentence.

3. The petitioner, who was employed as Mechanical Supervisor of the Municipal Committee, D.I.Khan, was paid Rs.8,000 by Voucher No.115 Cheque No.530759, dated 17‑6‑1981 from the Municipal Committee Funds for the purchase of an electric Motor for the Committee, but as neither the pump was purchased nor was the money accounted for, the matter was reported to the police, in the result of which he was put to trial. The petitioner admitted the receipt of the cheque but stated that he had paid the amount to Abdur Rashid alias Dalda, the convenor of the Health Sub‑Committee of the Municipal Committee, D.I.Khan, who was to purchase the pump; that a sum of Rs.3,000 was paid to M/s. Pasha Engineering and that the balance of 8.5,000 was still available with the said Abdul Rashid alias Dalda. However, he neither produced any receipt from Abdul Rashid alias Dalda nor examined him to support his assertion. The prosecution evidence, on the other hand, showed that though Abdur Rashid alias Dalda had negotiated the purchase of the pump from M/s. Pasha Engineering, a sum of Rs.1,000 had been paid to that Firm by the petitioner in the first instance, followed by another sum of Rs.2,000 by him. Since the petitioner had admittedly received the money from the Municipal Committee but had failed to account for the same, he was found guilty and convicted and‑ sentenced as aforesaid.

4. After going through the record and hearing his counsel Mr.Tariqj Pervaiz and the Assistant Advocate‑General Mr. Bashirullah Khan, we feel satisfied that no case is made out for setting aside the concurrent finding of guilt recorded against the petitioner. However, we notice that the High Court had observed: ‑

"It is evident from the evidence led by the prosecution that after the registration of the case the concerned authorities. without whose active connivance criminal misappropriation could not have been made, tried to help the accused by introducing Sheikh Abdur Rashid (Dalda) in the affairs."

In view of this observation of the High Court and also because the petitioner is likely to be dealt with departmentally in consequence of his conviction, we are of the view that there is scope for reduction Of his sentence. It is stated by his counsel that he has already undergone imprisonment for four months.

5. We accordingly convert this petition into appeal and allow it to the extent that the substantive sentence awarded to the petitioner is reduced to the period of imprisonment already undergone but the amount of the fine is enhanced to Rs.10,000 (rupees ten thousand only) while maintaining the period of R.I. for six months in lieu of default. Out of the amount of the fine if realized, a sum of Rs.5,000 shall be paid to the Municipal Committee, D.I. Khan.

M. Z. M. Order accordingly.

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