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Criminal Appeal No.l6 of 1987, decided on 30th March, 1987.

---S.4--Penal Code (XLV of 1860), Ss.408 a 477-A--Sentence--Accused issued a pay-order in favour of his landlord which amount he repaid afterwards--Accused faced agony of prolonged trial and dismissal from service--Accused applied for loan against his Provident Fund for making payment to his landlord but his application was declined by Bank although same was recommended by his immediate superior officer--Sentence of imprisonment reduced to one already undergone in circumstances.

Saeed Zakaria v. The State 1972 S C M R 118; M. Habibullah v. The State P L D 1985 Kar. 680; Muhammad Dawood v. The State P L D 1985 Kar. 730 and Nazir Rafat v. The State (Criminal Appeal No.33/87) ref.

Azizullah K. Shaikh for Appellant.

Murtaza Hussain for the State.

Date of hearing: 30th March, 1987.

.--This appeal is directed against the judgment of learned Presiding Officer Special Court (Offences in Banks) Karachi, dated 3-1-1987 whereby the present appellant has been convicted and has been awarded sentence of one year R.I. and a fine of Rs.14,000/ or in default of payment of fine to undergo R.I. of three months under section 408, PPC for misappropriating a sum of Rs.7,000/- by issuing a pay order of the aforesaid sum in favour of his landlord, P.W.3, Abdul Ghaffar, on 2-6-81 which amount was repaid by the appellant on 16-1-87. He has also been convicted under section 477-A, PPC and has been awarded R.I. of one year. Both the sentences were to run concurrently.

2. We have heard the learned counsel for the appellant and have also perused the evidence produced by the prosecution which comprises ocular evidence as well as documentary evidence referred to in the judgment under appeal on the basis of which we are inclined to agree with the conclusion arrived at by the learned Presiding Officer Special Court (Offences in Banks) Karachi. However, in the alternative Azizullah K. Shaikh, learned counsel for the appellant, has contended that in any case the instance case is a fit case in which this Court should reduce the sentence to the period which the appellant has already undergone. The reliance has been placed in support of the above submission on the following cases:

(1) Saeed Zakaria v. The State reported in 1972 S C M R 118, in which the Hon'ble Supreme Court upon the concession made by the learned Assistant Advocate-General reduced the sentence to simple imprisonment till the rising of the Court in substitution of 12 months' R.I.

(2) M. Habibullah v. The State reported in P L D 1985 Kar. 680. In the above case a Division Bench of this Court after taking into consideration the various factors including the factum that the appellant was removed from the service, his prestige was lowered among the society and the protracted trial reduced the sentence to the one which the appellant had already undergone but maintained the sentence of fine.

(3) Muhammad Dawood v. The State reported in P L D 1985 Kar. 730, in which also a Division Bench of this Court reduced the sentence to the period which the appellant had already undergone.

(4) The unreported judgment in the case of Nazir Rafat v. The State (Criminal Appeal No.33/87) decided on 24-3-87 in which also, according to Mr. Azizullah K. Shaikh, the sentence was reduced though we have not seen the judgment.

3. Be that as it may, the learned counsel for the State has candidly conceded that it is a fit case in which this Court might reduce the sentence. We are also of the view that in addition to the prolonged trial, dismissal from service, the factum that the appellant had applied for a loan of Rs.10,000/- for making payment to his landlord against the provident fund which request was declined by bank though recommended by the immediate superior officer is a factor to be taken into consideration. We would, therefore, reduce the sentence to the period which the appellant has already under gone but maintain the sentence of fine.

4. We, therefore, dismiss the appeal with the above modification.

M.Y.H./M-169/K Sentence reduce

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