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Criminal Appeals Nos. 341 and 343 of 1962, decided on 14th January 1963.

Notification intended to remove existing doubt in regard to jurisdiction of Special Judge appointed under previous notification‑Declaratory in nature and not a species of retrospective legislation‑Principles governing declaratory and explanatory Acts‑Apply also to interpretation of Rules and Notifications.

Bindra : "Interpretation of Statutes," 3rd Ed., p. 552 para. 4.

State of Utter Pradesh v. Sat Narain ana others A I R 1959 All. 218.

Crates : "Statute Law", 5th Ed., pp. 56 & 364.

Word "may" in S. 4(1) ‑ Newly‑appointed Special Judge succeeding previous appointee‑Government not bound to issue notification under S. 4 (1) fixing territorial limits of new appointee‑Notification issued under S. 3 (1), held, in circum stance, sufficient.

Crown v. Muhammad Khan P L D 1951 Lah. 254 ; V. M. Rathnavelu v. K. S. lyer A I R 1933 Mad. 765 and Dhingano Khoso v. Gulsher Kambir Khan A I R 1937 Sind 179 ref.

Accused a young man and Government servant liable to dismissal from service on conviction‑Fact to be taken into consideration in assessing quantum of punishment to be imposed‑Prevention of Corruption Act (Il of 1947), S. 5 (2).

Niaz Ali v. The State P L D 1961 Lah. 269 ref.

Azizullah Sheikh and Baqar Hussain for Appellants.

A. K. Sheikh, Asstt. A.‑G. assisted by Imam Bux Sheikh for the State.

Dates of hearing : 5th, 13th, 14th and 15th November, 21st and 22nd December 1962 and 4th January 1963.

This judgment will dispose of Criminal Appeals Nos. 341 and 343 of 1962 preferred on behalf of appellants Abdul Hameed son of Lila Khan and Muhammad Atiq son of Muhammad Sadiq. Both these appellants were tried and con victed by the Special Judge (Central) Karachi Mr. Ghulam Hyder K. S. Pir as under:‑ The appellant Abdul Hamid was convicted of an offence under section 5 (2) of the Prevention of Corruption Act II of 1947 and was sentenced to rigorous imprisonment for fifteen months and a fine of Rs.500 or in default to six months more rigorous imprison ment. The appellant Muhammad Atiq was convicted of an offence under section 165‑A P. P. C. read with section 5 (2) of the Prevention of Corruption Act II of 1947 and was sentenced to rigorous imprisonment for six months and a fine of Rs. 300 or in default to three months more rigorous imprisonment.

2. The complainant in this case one Asan Das son of Ail Mal was formerly employed as a clerk in the office of the Deputy Settlement Commissioner, Mirpurkhas and was retrenched on 31‑5‑1961. On 7‑9‑1961 he made a representation to the Additional Settlement and Rehabilitation Commissioner, Hyderabad, and Khairpur Divisions at Hyderabad as per Exh. 3 in which he pointed out that inasmuch as persons junior in service to him and less efficient than him had not been retrenched, he should be re‑employed and permitted to continue in service. This application was forwarded to the Deputy Settlement Commissioner, Mirpurkhas, for his comments who recommended that Asan Das be re‑employed. The papers then returned to the office of the Additional Settlement and Rehabili tation Commissioner, Hyderabad. The appellant Abdul Hameed was an Establishment Clerk in the office of the Additional Settlement and Rehabilitation Commissioner, Hyderabad, and as such he dealt with these papers. The Additional Settlement and Rehabilitation Commissioner, Hyderabad, agreed with the recommendation of the Deputy Settlement Commissioner, Mirpurkhas, that Asan Das be re‑employed and. he made a similar recommendation to Mr. Rauf Choudhry he Settlement and Rehabilitation Commissioner, Karachi who also approved of the same. In connection with this application the com plainant Asan Das paid several visits in September and October 1961 to the office of the Additional Settlement and Rehabili tation Commissioner, Hyderabad, where be met the appellant who as mentioned above, was dealing with this matter. At one of these meetings on 16‑10‑1961 the appellant showed the papers to complainant Asan Das, told him that his work had been done and' asked him to meet him again at his office at 4 p. m. that evening. Accordingly, complainant Asan Das met the appellant Abdul Hameed at 4 p.m. in this office that evening when the latter took him to Shahi Bazar where he demanded a bribe of Rs. 300 from Asan Das for issuing his order of appointment. Asan Das pleaded that this amount of money was not available with him and that he would try to collect it. Appellant Abdul Hameed directed Asan Das to meet him at his office at 9 a.m. the following morning when they would both go together to a hotel.

3. The following morning, 17‑10‑1961, complainant Asan Das went instead at 9 a.m. to the office of the Anti‑Cor ruption Inspector Mr. Abdul Jabbar P. W. 4 and informed him of these happenings. Inspector Abdul Jabbar thereupon addressed a letter Exh. 10 to the A. D. M., Hyderabad request ing him to depute a Magistrate to lay the necessary trap within the limits of Hyderabad Town and the A. D. M. Hyderabad accordingly deputed the Head Munshi and 3rd Class Magistrate Hyderabad, Mr. Basaruddin P. W. 3 for this purpose. Mr. Basaruddin then went to the office of the Anti- Corruption Inspector and recorded the statement of complainant Asan Das as per Exh. 4. A mashir Mazhar Husain Shah was sent for and in his presence the personal research of com plainant Asan Das was taken and a sum of Rs. 300 given to him as per mashirnama ‑ Exh. 5 in which the numbers of the currency notes were duly entered. Complainant Asan Das then took the mashir, the Magistrate Mr. Basaruddin and the Anti‑Corruption Inspector Abdul Jabbar to the Sultan Hotel where the appellant had agreed to meet him. Asan Das then left for the appellant's office where he found the appellant No. 2 Muhammad Atiq sitting with appellant No. 1 Abdul Hameed. The appellant Abdul Hameed enquired from comp lainant Asan Das whether he had brought the money and on receiving a reply in the affirmative the appellant wrote out the draft appointment order Exh. 6 and sent it to the Additional Settlement Commissioner for his approval. The appellant No. 1 then directed the appellant No. 2 to take the sum of Rs. 300 from complainant Asan Das adding that the three of them would then proceed to the hotel. At about 1 p. m. comp lainant Asan Das and the two appellants left the office of the Addi tional Settlement Commissioner, Hyderabad and went to the Sultan Hotel where they took their seats around a table in the gallery. Wooden partitions separated the tables in this gallery and at an adjoining table across the gangway were seated the Magis trate, the mashir and the Anti‑Corruption Inspector. From their seats at this table the trapping party were in a position not only to hear but also to see whatever transpired at the table at which the complainant and the two appellants were seated. The complainant ordered food and in the course of the meal he offered Rs. 300 to the appellant No. 1 Abdul Hameed who did not accept the money but asked the complainant to hand it over to the appellant No. 2 Muhammad Atiq, who, he said, was his friend and that it meant the same thing. On finishing the meal Muhammad Atiq went to the hotel, cashier Foji P. W. 2 handed him a ten‑rupee note receiving back the change of Rs. 6‑4‑0. As to the appellants and the complainant were about to leave this hotel they were pounced upon by the raiding party and the sum of Rs. 290 together with the balance of Rs. 6‑4‑0 were secured from the appellant No. 2 Muhammad Atiq as per mashirnama Exh. 12. The ten‑rupee note was also recovered from cashier Foji as per mashirnama Exh. 8.

4. The Magistrate Mr. Basaruddin then recorded the statements of the two appellants as per Exhs. 12 and 13. A sketch of the gallery showing the respective tables at which each of these two parties had sat was then prepared as per Exh. 14 and thereafter the Magistrate submitted his trap report to the Circle Officer, Anti‑Corruption Department, Hyderabad City, Exh. 15. The papers in this case were then made over to the Anti‑Corruption Inspector Mr. Abdul Jabbar P. W. 4 who after incorporating the trap report Exh. 15 in his F. I. R. Exh. 18, after obtaining the necessary permission from the A. D. M. Hyderabad as per Exh. 19 for investigating this case then interrogated and arrested the two appellants, examined the prosecution witnesses, obtained the necessary sanction Exh. 20 and submitted a charge‑sheet against the two appellants in the Court of the Special Judge, Hyderabad, on 11‑1‑1962.

5. The two appellants in their statements in Court deny having committed any offence. The appellant Abdul Hameed admitted the visits to him in his office on 16‑10‑1961 and accompanied by the appellant No. 2 Muhammad Atiq. At 1‑15 p.m. as usual he went to have his lunch at the Sultan Hotel where he saw both Asan Das and appellant Muhammad Atiq sitting together. They beckoned to Abdul Hameed who went and joined them, ordered his meal separately and sat and ate it at that table. Appellant No. 2 Muhammad Atiq offered to pay the bill which he did and as they were leaving the hotel premises they were pounced upon by the raiding party. Appellant Abdul Hameed further admits having given the statement Exh. 13 to the Magistrate but adds that it is not a correct statement and that he signed it without reading it. The appellant No. 2 Muhammad Atiq also denies all knowledge of this offence. He claims to be an Inter Arts student and after returning from his examination on that day he dropped in at the office of appellant No. 1 who was an old friend of his to see him. He accompanied the appellant No. 1 and the complainant to the Sultan Hotel where the appellant No. 1 demanded Rs. 300 from complainant Asan Das and asked him to pay the money to the appellant No. 2 Muhammad Atiq which he did and which this appellant accepted in compliance with the direction of the appellant No. 1. He adds that he had no knowledge that this was bribe money. He admits having paid the lunch bill that day and that the balance of Rs. 290 and Rs. 6‑4‑0 were voluntarily produced by him before the Magistrate at his instance.

6. The appellant No. 1 examined one defence witness by name Azizullah then Head Clerk in the office of the Additional Settlement Commissioner, Hyderabad. I his witness admitted that the appellant Abdul Hameed was employed under him in his office : that complainant Asan Das had come there with an application for his re‑instatement duly recommended by the Deputy Settlement Commissioner, Mirpurkhas, and that he had referred him to the appellant as the Establishment Clerk responsible for dealing with such matters. To his cross -examination this D. W. 1 Azizullah produced as Exh. 24 a note in the hand‑writing of the appellant No. 1 strongly recommending the case of complainant Asan Das for re‑employment. Appellant No. 2 examined two witnesses namely Aziz Ahmad and Muhammad Umar. The former testified to appellant No. 2 having appeared in the Inter Arts Examination and being a former employee in the office of the Settlement Commissioner, Hyderabad. The latter, a Divisional Accountant in the office of the XEN Dadu Road Division, also deposed that this appellant had appeared in the examination on the morning of 17‑10‑1961, had met him at 11 a. m. in his office and that he had not seen him thereafter.

7. The case for the prosecution against the two appellants rests in the main upon the evidence of the four witnesses namely complainant Asan Das P. W. 1, Foji Cashier P. W. 2, Mr. Basaruddin the Head Munshi and 3rd Class Magistrate, Hyderabad, P. W. 3, and Mr. Abdul Jabbar Anti‑Corruption Inspector, Hyderabad P. W. 4. In addition to the evidence of these four witnesses there are also on record the application for re‑employment Exh. 3 made by complainant Asan Das, the favourable note thereon in the handwriting of the appellant No. 1 produced by the head clerk Azizullah D. W. 1 as Exh. 24 and the office order re‑instating Asan Das also in the handwriting of the appellant No. 1 as per Exh. 6. All this evidence fully established the guilt of the two appellants and in view. of the admission of the learned counsel at the Bar that on facts this is not a good case, it becomes unnecessary in this judgment to set out or to discuss this evidence in any detail. It will since to say that the complainant Asan Das has in his deposition reproduced the prosecution story as set out in paras. 2 and 3 above and that with regard to the happenings in the Sultan Hotel on 17‑10‑1961 his evidence is fully corroborated and supported by that of the hotel cashier Foji P. W. 2, the Magistrate Mr. Basaruddin P. W. 3, and the Anti‑Corruption Inspector Abdul Jabbar P. W. 4. In view of this position, then, it is unnecessary to devote any more space in this judgment to the facts of this case. It would be far better to proceed at once to the two points of law raised by Mr. Azizullah Shaikh, Barrister‑at‑Law, appearing on behalf of the appellant No. 1.

8. The first point of law raised by the learned counsel on behalf of the appellant No. 1 is that the Special Judge, Anti‑Corruption (Central) Karacbi Mr. G. K. Pir who convicted the appellant in this case is Special Judge only for Karachi and not for the Hyderabad and Khairpur Divisions.

The offence in this case admittedly was committed in Hyderabad and, therefore, this Special Judge had no jurisdiction to try this offence. The second point of law urged by the learned counsel is that the sanction granted for this prosecu tion is mechanical and not in accordance with law. The learned counsel argued that the Settlement and Rehabilitation Commissioner, Hyderabad and Khairpur Divisions Mr. Abdul Rauf Choudhry who had granted the sanction for the prosecution Exh. 20 in this case had done so mechanically and without applying his mind to the facts of this case.

9. Elaborating his first legal contention Mr. Azizullah Shaik referred in the first instance to sections 3 (2) and 4 (1) of the Pakistan Criminal Law Amendment Act, 1948 (Act XIX of 1948) which provided for the appointment of Special Judges and the fixation of their jurisdiction. He referred to Notification No. F.‑36 (2)/53‑E, dated 14‑12‑1953 appearing in the issue of the Gazette of Pakistan Extraordinary of that date appointing Mr. Syed Ahmad Muhammad Ghaznavi, Barrister‑at‑Law, to be a Special Judge under the said Act with effect on and from the date on which he will assume duties of the said Judge at Karachi and stating that he shall have jurisdiction to try offences under the said Act within the Chief Commissioner's Province of Karachi and Sind. He next referred to Notification No. F.‑Adm.‑15‑5/58 (1) appearing in the issue of Gazette of Pakistan Extraordinary, dated 29‑5‑1958 appointing Mr. Kamberali Beg Manuchehar Beg Mirza "to be a Special Judge under the said Act with effect on and from the date he assumes charge of his duties as such Judge at Karachi and shall have jurisdiction to try offences under the said Act within the Federal Capital and the Hyderabad and Khairpur Divisions of the Province of West Pakistan." The appointments in the above two cases were made under the relevant sections of the Pakistan Criminal Law Amendment Act 1948 (Act XIX of 1948). But on 23‑9‑58 the Pakistan Criminal Law Amendment Act of 1958 (Act XL of 1958) came into effect. Sections 3 and 4 of this Act, like the similar sections of the previous Act of 1948, also dealt with the appointment of Special Judges and with the fixation of their jurisdiction. Under this Act XL of 1958 a fresh notification was published in the Gazette of Pakistan, dated 5‑12‑1958 being Notification No. F.‑Adm.‑15‑8/58 (I1I), dated 26‑11‑1958 which is in these words :‑

" In exercise of the powers conferred respectively by subsection (1) of section 3 and subsection (1) of section 4 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) and in supersession of the Ministry of Law Notifica tion No. F.‑Adm.‑15‑5/58 (1), dated the 29th May 1958, the Central Government is pleased to appoint Mr. Kamberali Beg Manuchehar Beg Mirza to be a Special Judge for the trial of offences under the said Act within the Federal Capital and the Hyderabad and Khairpur Divisions of the Province of West Pakistan."

Mr. Azizullah next referred to the Gazette of Pakistan of 29‑7‑1961 at page 227 where Notification No. F. 1‑7/61‑A. II dealing with the appointment of Mr. G. K. Pir appears. This notification is in these words :‑

"No. F.‑17/61‑A. Il, dated Rawalpindi: 29th July, 1961. The President is pleased to appoint Mr. Ghulam Hyder Kamaluddin Suharwardy Pir, at present District and Sessions Judge of Khairpur Mir's as Special Judge (Central) Karachi, with effect from the date Mr. Pir joins his duties as such vice Mr. Kamber Ali Beg Mirza transferred as District and Sessions Judge, Sukkur." ,

A further notification at page 252 of this same Gazette of Pakistan, dated 30‑8‑1961 was also referred to and it is in these words :‑

"No. F.‑1/71/61‑A. II, dated the 30th August 1961. Mr. Ghulam Hyder Kamaluddin Suharwardy Pir lately a District and Sessions Judge in the Province of West Pakistan, has assumed charge of the Office of the Special Judge (Central) Karachi, in the afternoon of the 22nd August 1961."

It was argued by Mr. Azizullah that the notifications relating to the appointment of Mr. G. K. Pir were only under section 3 of Act XL of 1958 but not under section 4 (1) of that Act. No notification under section 4 (1) had been issued in respect of Mr. G. K. Pir and, therefore, the jurisdiction for the Divisions of Hyderabad and Khairpur had not been conferred upon him and he had, therefore, no jurisdiction to try this case in which the offence admittedly was committed in Hyderabad.

10. The above arguments were urged before me when these two appeals were first taken up for hearing on 5‑11‑1962. The hearing, however, was not concluded on that day and had to be adjourned as I considered it necessary to issue notice to the Additional Advocate General, West Pakistan, Karachi Bench, to reply to the two legal contentions raised by Mr. Azizullah. Thus, there was some delay in the hearing of this appeal and the matter only came up for hearing again on 21‑12‑1962. At the hearing on this date Mr. Azizullah invited my attention to a very recent notification of the Government of Pakistan in its Ministry of Law, dated 20th November 1962, which is in these words :‑

"No. F. 1‑7/61‑All. In exercise of the powers conferred by sections 3 and 4 of the Pakistan Criminal Law (Amendment) Act, 1958 (XL of 1958), the Central Government is pleased to appoint Mr. Ghulam Hyder Kamaluddin Suharwardy Pir, District and Sessions Judge of Khairpur Mir's as Special Judge (Central), Karachi, with effect from the forenoon of the 22nd August 1961, vide Mr. Kamberali Beg Mirza, and to fix the territorial limits of his jurisdiction to be and at all material times to have been the Divisions of Karachi, Hyderabad and Khairpur.

(Sd.)

(M. A. Ameen)

Deputy Secretary to the Government of Pakistan." Mr. Azizullah vehemently contended that it is beyond the scope of the Government by notification to legislate retrospectively and that it is only the Legislature that can give retrospective effect to the laws it passes. He referred to para. 4 at page 552 of the Interpretation of Statutes by M. S. Bindra, Third Edition, 1961, and to State of Uttar Pradesh v. Sat Narain and others (A I R 1959 All. 218).

11. Replying to the contentions of the learned defence counsel Mr. Abdul Kadir Shaikh, Assistant Advocate General, first argued that the notifications of 29‑7‑1961 and 30‑8‑1961 fully entitle Mr. G. K. Pir to try this case. These notifications, he contended, do not create an Anti‑Corruption Court in Karachi or Sind for the first time but they merely serve to announce a transfer in the personnel of that Court and to say that Mr. G. K. Pir replaces Mr. K. M. Mirza. Secondly, the learned Assistant Advocate‑General contended that the notification of 20‑11‑1962 is merely declaratory and for the purpose of removing of any doubt that may have occurred as a result of the two previous notifications of 29‑7‑1961 and 30‑8‑1961 concerning the appointment of Mr. G. K. Pir as Special Judge (Central) at Karachi. Mr. Abdul Kadir Shaikh referred to a wealth of case‑law on the two points that there can be a Declaratory Act to cover up a previous judicial error and that the same principles of interpretation which govern the interpretation of Acts can also apply to the interpretation of notification. Finally, Mr. Abdul Kadir Shaikh argued that section 531, Cr. P. C. serves to cure the defect, if any, in this trial in the Court below.

12. I have listened attentively to the arguments advanced before me on this first point of law raised by the learned counsel for the appellant No. 1. It seems to me that the learned defence counsel is right when he says that the notifications dealing with the appointment of Mr. G. K. Pir appear to be only under the provisions of section 3 of Act XL of 1958 and not under the provisions of section 4 (1) of that Act. In fact the first Notification under section 4 (1) so far as Mr. G. K. Pir is concerned is the recent Notification of 20‑11‑1962 which appeared on the scene after this case had been argued and this lacuna pointed out by the learned defence counsel. But, yet at the same time, there is also force in the contention of the learned Assistant Advocate‑General that the notifications dealing with the appointment of Mr. G. K. Pir are really notifications of transfer and not of creating a new Court or of making an appointment thereto for the first time. The notification of 29‑7‑1961 specifies Mr. G. K. Pir as the new Special Judge (Central) at Karachi who takes over from the previous Special Judge Mr. Kamberali Beg Mirza and, therefore, may be said to step into the shoes of Mr. K. M. Mirza, to do the same work he was doing and to have the same jurisdiction that he had. In this view, then, although the appointment of Mr. G. K. Pir was only limited as it were to section 3 (1) of Act XL of 1958 and with no reference to section 4 (1) of the same Act yet, it may well be taken that a notifi cation under section 4 (1) of the Act was unnecessary because Mr. G. K. Pir was only replacing Mr. K. M. Mirza. Besides, Mr. Abdul Kadir Shaikh in the course of his arguments pointed out that the verb used in section 4 (1) is "may" and that, therefore, the appropriate Government may issue a notification fixing the territorial limits of the newly‑appointed Special Judge. The appropriate Government is not bound to do so and in a case like this where the new appointee Mr. G. K. Pir merely succeeds the previous appointee Mr. K. M. Mirza the Provincial Government may well have considered a notification under section 4 (1) as being altogether unnecessary. I am inclined to agree with this contention of the learned A. A.‑G. and to hold that although the two notifications concerning Mr. G. K. Pir of 29‑7‑1961 and 30‑8‑1961 were only under section 3 (1) of Act XL of 1958 and not under section 4 (1), yet having regard to the circumstances of the case and the language of these notifications it was unnecessary for the Provincial Government to issue a further notification under section 4 (1) stating the precise jurisdiction of Mr. G. K. Pir.

13. Nor am I prepared to accept the contention of the learned defence counsel that the notification of 20‑11‑1962 is a species of Retrospective Legislation and is, in any case, an admission by the Government concerned that there was a lacuna in the previous notifications dealing with the appointment of Mr. Pir which required to be implemented. This notification of 20‑11‑1962 appears to me to be in the nature of a Declaratory Notification intended for the same purpose and meant to perform the same service as an Explanatory or Declaratory Act. Craies in his book of Statute Law 5th Edition at page 56 and again at page 364 has dealt with Declaratory and Explanatory Acts and with the purpose that such Acts are meant to serve. Such a purpose often is to remove existing doubts and to set aside a judicial error whether irk the statement of the common law or in the interpretation of statutes. The same principles which apply to the interpretation of statutes or Acts also apply to the inter pretation of rules and notifications. In dealing with the appoint ment of a Special Judge we are entirely in the realm of notifications : the appointment is made in the first instance by a notification and, therefore, any correction can also be only be made by a notification. The not fication of 20‑11‑1962 does not appoint Mr. Pir for the first time as Special Judge but merely serves to declare the area over which his jurisdiction extends without conferring it upon him for the first time. Therefore, also, it cannot in my opinion be said that this notifica tion is as it were an admission on the part of the Government that the two previous notifications concerning Mr. Pir were inadequate or were wanting in any respect. It seems to me that Mr. Pir having stepped into the shoes of Mr. Mirza has taken upon himself the jurisdiction exercised by Mr. Mirza. The mantle of Mr. Mirza may be said to have fallen on the shoulders of Mr. Pir and in this view Mr. Pir from the moment 'of his assumption of the office of Special Judge at Karachi enjoyed the same jurisdiction that was enjoyed by Mr. Mirza.

14. There still remains section 531 of the Code of Criminal Procedure which serves to cure the defect if any in the juris diction of Mr. Pir when trying this case. While dealing with this point the learned Assistant Advocate‑General cited Crown v. Muhammad Khan (PLD 1951 Lah. 254), V. M. Rathnavelu v. K. S. Iyer (A I R 1937 Mad 765) and Dhingano Khoso v. Gulsher Kamber Khan (A I R 1937 Sind 179). It was held in all these cases that section 531, Cr. P. C. applies to pro ceedings held in a Court not having territorial jurisdiction and that unless it can be shown that there has been a_ failure of justice the decision of that Court whether it be one of conviction or of acquittal should not be disturbed or set aside. Section 531, Cr. P. C., then, furnishes an additional reason for holding that the decision of the Court below in this case should not be disturbed or set aside in this appeal on the sole plea of want of jurisdiction. Therefore, for all the reasons mentioned above I hold that Mr. Pir had jurisdiction to hear and try this case and I reject the first point of law raised by the learned defence counsel.

15. With regard to the second point of law it is unnecessary to deal at any length with this point : nor did the learned counsel press it with any favour. Under S. R. O. 1122 (K)/61, dated 10‑11‑1961 Mr. Rauf Choudhry was fully authorised to grant the sanction in this case and the mere fact that a different notification number is given in the sanction order is not sufficient for holding that the sanction giving officer did not fully apply his mind to the facts of this case. I, therefore, see no substance in this second legal contention.

16. These two appeals must, therefore, be dismissed but I find I cannot do so without considering the sentences and the punishment awarded to the two appellants by the Court below. Both the appellants are young men in their early twenties. The appellant No. 1 is a Government servant who as a result of this conviction will loose his employment with the Government, his years of service with them together with all other emoluments such as the provident fund, pension etc. that he may have earned: In the case of Niaz Ali v. The State (P L D 1961 Lah. 269) Sajjad Ahmad, J. expressed the view that where the accused a Government servant after his conviction would merit dis missal from service, this fact can be taken into consideration in assessing the quantum of punishment to be imposed upon such an accused. I find I cannot also put away from my mind the thought that a seeming lacuna in the appointment of the trial Judge was discovered by the learned counsel of this appellant in this matter and was considered by the Central Government to be of sufficient importance for them to issue a fresh notification filling up the gap. The appellant No. 2 also is a young student who, but for his unfortunate visit that afternoon on his return from the examination hall to the office of the appellant No. 1, would perhaps never have been involved in this case at all. For all these reasons, therefore, while upholding the convictions of these two appellants and dismissing their appeals I would direct that the sentence of imprisonment imposed upon them by the trial Judge be reduced to the period of detention in jail already undergone. The sentences of fine and of imprisonment in lieu thereof, however, will continue to stand. The appellant No. 1 is now in jail, he will be released on payment of the fine imposed upon him or on serving out the sentence of imprisonment in lieu thereof. The appellant No. 2 is on bail. He is remanded to custody until payment of the fine imposed upon him or after serving out the period of imprisonment in lieu thereof. Therefore, with this modification in the sentences, these two appeals are dismissed.

K. E. A.

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