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Criminal Petition No.365 of 1984, decided on 10th December, 1984.
(On appeal from the judgment, dated 10‑10‑1984 of the Lahore High Court, Lahore in Cr.A. 612 of 1981).
‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), 5.161‑‑Criminal Procedure Code (V of 1898), S.423‑‑Conviction not challenged in appeal by petitioner but request for leniency granted and sentence reduced‑‑Order impugned on ground that it was not a legal disposition of case‑‑High Court having found 'ample evidence' to connect petitioner with crime, contention that non‑appraisal of evidence required under S.423, Cr.P.C. had resulted in miscarriage of justice, not sustained‑‑Petition having no fore leave to appeal refused.
Abdul Siddique v. The State 1971 S C M R 628 ref.
Sh. Zamir Hussain, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing: 10th December, 1984.
‑The petitioner, who was serving as Line Superintendent in Sub‑Division, Salamatpura, WAPDA, Lahore on 18‑10‑1979 , was tried under section 161, P . P . C . read with section 5 (2 ) of the Prevention of Corruption Act, 1947, on the allegation that he had demanded Rs.600 and accepted Rs.300 as' illegal gratification to favour the complainant Abdul Qadeer alias Muhammad Akram, P.W.1, in connection with the installation of a meter at his house.
The learned trial Judge, vide his judgment dated 10‑11‑1981, convicted the petitioner under section 161, P.P.C. and sentenced him to one year's R.I. and a fine of Rs.1,000. In default of payment of fine he was ordered to undergo two months' R.I. The petitioner was, however, acquitted of the charge under section 5(2) of the Prevention of Corruption Act, 1947.
The petitioner filed an appeal against the judgment of the trial Court dated 10‑11‑1981, which was heard by a learned Single Judge of the Lahore High Court. At the time of the hearing of the appeal the learned counsel for the petitioner did not challenge the conviction but requested for leniency in the sentence. The learned Judge considering that the petitioner had already suffered the agony of a protracted trial and that the illegal gratification accepted by him was only Rs.300 was pleased to view this submission with sympathy and proceeded to alter the sentence of one year's R.I. and a fine of Rs.4,000, in default of payment of this fine he was ordered to undergo R.I. for six months. The fine of Rs.1,000 and the sentence in' lieu thereof was, however, maintained. This order was passed vide judgment dated 10‑10‑1984.
The petitioner has now filed this petition for leave to appeal in this Court and has submitted that despite the plea of his counsel that he was not challenging the conviction recorded by the High Court the learned Court itself was obliged in view of the provisions of section 423 , Cr. P . C . to appraise the evidence afresh and in failing to do so miscarriage of justice had occurred . It was further submitted that the impugned judgment, dated 10‑10‑1984 was not a legal disposition of the case, as it was passed without perusing the record or examining the evidence thereon. In support of this contention reliance has been placed on a decision of this Court reported as Abdul Siddique v. The State 1971 S C M R 628.
After hearing Mr. Zamir Hussain in support of this petition we are not inclined to agree with him that the learned Judge in the High Court did not examine the record or failed to peruse the evidence, This is evident from the following observation made by the learned Judge in the impugned judgment:‑
"The learned counsel has not challenged the conviction and rightly so because there is ample evidence to connect the appellant with the commission to crime.' (Underlining is ours).
The above observation clearly shows that the learned Judge had perused the evidence on the record and it was because he had done so that he was able to remark that there is "ample evidence" to connect the petitioner with the crime.
There is no force in this petition. It is, accordingly dismissed hereby.
M.I. Petition dismissed.
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