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Criminal Petition No. 394 of 1983, decided on 14th March, 1984.
(On appeal from the judgment dated 31‑10‑1983 of the Lahore High Court in Cr. A. No. 193/1981).
‑‑‑Art. 185(3)‑‑Prevention of Corruption Act (11 of 1947), Ss. 5 (1)(c) 5‑C‑‑Penalty of forfeiture of property‑‑Plea of discrimination between Provincial and Central Government employees offending equality clause provided for in Constitution‑‑Fundamental Rights having been suspended, could not be invoked‑‑Petition for leave to appeal dismissed.
Sh. Nisar Qutab, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Date of hearing: 14th March, 1984.
The petitioner was tried by the Special Judge, Anti‑Corruption, Lahore, who convicted and sentenced him as under:‑
(1) One year R.I. under section 411, P.P.C.
(2) Six years' R.I. and fine of Rs. 50,000 under section 466, P.P.C.
(3) Six years' R.I. and a fine of Rs. 50,000 under section 473, P.P.C.
(4) Seven years' R.I. and a fine of Rs. one lac (1,00,000) under section 5‑C of the Prevention of Corruption .Act, 1947. In default of payment of fine to undergo further R.I. for one year and 9 months on each count.
The learned trial Court also ordered that Rs. 1,35,010, Car LED 3432, Scooter LEX 9229, Urdu and English Type‑Writers, Refrigerator and Radiogram be confiscated in favour of the State.
The petitioner filed an appeal against the order of his conviction and sentence before the Lahore High Court. A learned Single Judge of the said Court acquitted the petitioner on the first three counts but upheld the conviction and sentence on the fourth count, namely, under the charge under section 5‑C of the Prevention of Corruption Act, 1947. However, the sentence was reduced from 7 years to 4 years' R.I. and the fine reduced from 1,00,000 to Rs. 50,000, in default whereof he was to undergo further R.I. for one year. He was also given benefit under section 382‑B, Cr. P.C. in the matter of computation of sentence. The petitioner has now moved this Court by this petition for leave to appeal.
His main contention is that section 5‑C of the Prevention of Corruption Act, 1947, which was brought on the statute book by an amendment made through Ordinance No. 17 of 1960 was applicable to the servants of the Government of West Pakistan only. According to the provisions of the newly inserted section 5‑C of the Prevention of Corruption Act, 1947, no public servant, who is in possession of any property, movable or immovable, either in his own name or in the name of any other person, which there is reason to believe, has been acquired by improper means and is proved to be disproportionate to the known sources of income of such public servant shall, if he fails to account for such possession to the satisfaction of the Court trying him be punishable with imprisonment for a term which may extend to seven years with fine and on such conviction the property found to be disproportionate to the known sources of income of the accused by the Court shall be forfeited to the Provincial Government.
However, clause (e) of section 5(1) of the Prevention of Corruption Act, 1947, which was added through Act No. XII of 1965, which is applicable to employees of the Central Government although providing a sentence of 7 years' R.I. or with fine or with both in similar circumstances does not provide for the sentence of confiscation of property. This, according to the learned counsel, shows that there is a discrimination being made in the said two penal clauses of the Prevention of Corruption Act, 1947. Hence, the penalty of forfeiture of the property is discriminatory and offends the equality clause, enshrined in the Fundamental Rights provided for in the Constitution of 1973.
Leaving aside the question whether there is, indeed, any discrimination being practised, the greater obstacle in the way of the success of this contention is that the Fundamental Rights are presently suspended and cannot be invoked.
This petition must, therefore, fail and is, accordingly, dismissed hereby.
M.I. Leave refused.
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