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Criminal Appeal No. 21 of 1981, decided on 15th March, 1986.
--S. 409--Prevention of Corruption Act (II of 1947), S. 5(2)--Sentence- Misappropriation--Order of Trial Court convicting accused based on material available on record--Appeal not pressed on merits but on question of sentence--Ac.: used, suffering agony of protracted litigation, placed under suspension and departmental inquiry started against him; lost his job upon conviction and remained in jail; not only sustained financial loss but also ruined morally; enjoyed concession of bail for over five years and sending him back to jail to serve out remaining sentence not appearing desirable--Sentence of imprisonment reduced to one already undergone in circumstances.
A.Q. Halepota for Appellant.
Abdul Wali Makhdoom for the State.
Date of hearing: lath March, 1986.
This appeal is directed against the judgment of Special Judge, Anti -Corruption (Central), Karachi, dated 29th January, 1981. By this judgment the appellant Hamzo Khan was convicted under section 409, P.P.C. r/w section 5(2), Act II of 1947 and sentenced to R.I. for eighteen months and fine of Rs.12,000 or in default R.I. for six months.
The allegations against the appellant are that while he was posted as booking clerk at Khudadad Railway Station from 19-6-1977 to 2-10-1977, he realized an amount of Rs.11,220.70 from sale of railway tickets but he did not remit the said amount to the Chief Cashier/Treasurer, Lahore as per rules and had misappropriated the said amount. The case was registered with police and after due investigation by F.I.A. police the accused was sent up to face his trial for offences punishable under section 409, P.P.C. r/w section 5(2) Act, II 1947.
Prosecution examined Fazal Rab (P.W.1), Abu Bakar (P.W.2), Qazi Alrnul Huda (P.W.3), Ghulam Hussain (P.W.4), Mewal Khan (P.W.5), N.H. Khilji (P.W.6) in support of their case.
The appellant in his statement under section 342, Cr.P.C. admitted that he was employed as clerk at Khudadad Railway Station during the disputed period. He also admitted that he realised the amount of Rs.11,220.70 from the sale of railway tickets. However, according to the explanation furnished by him, he could not send the money to Lahore because the railway track was damaged and as such it was not safe to remit the cash to Lahore. He further stated that he had, handed over the amount in dispute to his successor namely Mewal Khan who had even given receipt in acknowledgement thereof. In support of his version he examined Ashraf Husain (D.W.1).
After appreciation of prosecution evidence in the light of appellant's statement, the learned trial Judge held the appellant guilty u/s 409, P.P.C. r/w section 5(2) Act 11 of 1947 and by impugned judgment convicted him for the said offence and awarded him the sentence of imprisonment besides the sentence of fine. I have gone through the judgment of the trial Court. It is well-reasoned. In my opinion the learned trial Judge came to right conclusions on the material available before him and consequently he has rightly convicted the appellant. Even the learned counsel for the appellant did not press the appeal on merits.
However, the learned counsel for the appellant prayed for reduction in sentence. After hearing his arguments and the arguments of the learned State counsel the appeal was disposed by short order, dated 13-3-1986 for reasons to be recorded separately. Apart from what has been stated in the foregoing paragraphs, following are the reasons in support of the short order.
The case against the appellant was registered on 6-2-1978 when the F.I.A. recorded the formal F.I.R. Obviously the appellant has suffered the agony of protracted litigation since then. Prior to that date he had also faced departmental inquiry and was placed under suspension.
Ultimately consequent upon his conviction he also lost his job. The appellant is also shown to have undergone imprisonment for some period. In this way he has been dragged in this case for nearly a decade. In the meantime he has not only sustained financial loss but has also been ruined morally. In this way he has suffered (illegible) punishment. After the admission of his appeal by this Court he has enjoyed the concession of bail for over 5 years. It may, therefore, not be desirable to send him back to jail to serve out the remaining sentence of imprisonment.
Keeping the above considerations in view, while maintaining the conviction of the appellant the sentence of imprisonment awarded to him was reduced to the one he has already suffered. However, the sentence of fine awarded to him was ordered to remain intact. Subject to this modification in the sentence the appeal preferred by the appellant was dismissed.
M.Y.H./H-25/K Appeal dismissed.
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