P L D 2011 Quetta 40
Before Jamal Khan Mandokhail, J
MUHAMMAD SALEEM ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.29 of 2010, decided on 14th March, 2011.
(a) Criminal Procedure Code (V of 1898) ---
----S. 431---Penal Code (XLV of 1860), Ss.409/420/467/468 ---Prevention of Corruption Act
(II of 1947), S.5(2) ---Criminal breach of tru st by public servant, cheating, forgery,
corruption ---Death of accused, a government employee ---Abatement of appeal ---Scope ---
Ordinarily, a criminal appeal would abate on the death of appellant/accused, but S.431,
Cr.P.C. had provided an exception to that general rule ---Under S.431, Cr.P.C. an appeal
against sentence of fine would not abate by reason of death of accused, because it was not a
matter, which would affect his person, but would affect his estate ---Upon death of accused,
his appeal to the extent of a portion of sentence of an imprisonment, would abate, whereas the
appeal to the extent of sentence of fine, affecting the property of accused, would not abate ---
Sentence awarded to a government officer or employee would certainly affect his service; in
such an eventuality, his conviction would also affect his pensionary benefits ---On that score
as well, appeal would not abate ---In the present case, the amount of fine had been ordered to
be recovered from the properties of accused ---Accused being a gover nment employee, his
conviction and sentence, would certainly have an impact not only upon his estate, but also
upon his pensionary benefits ---Appeal to the extent, in circumstances would not abate on
death of accused.
Anwar Hussain Khan v. The State 19 70 PCr.LJ 279; AIR 1957 All. 20=58 Cr.LJ 16 and AIR
1962 Mys. 275 ref.
(b) Criminal Procedure Code (V of 1898) ---
----S.494 ---Penal Code (XLV of 1860), Ss. 409/420/467/468 --Prevention of Corruption Act
(II of 1947), S.S(2) ---Criminal breach of trust by public servant, cheating, forgery,
corruption ---Withdrawal from prosecution ---Scope ---Allegations levelled against accused for
misappropriation had not been supported by any witness ---To the contrary, the reports
exhibited by the prosecution favoured accu sed, which had shown that whatever amount was
allocated to him, was properly spent ---Evidence available on record, was not sufficient to
connect accused with the commission of alleged offence ---Even otherwise, the Trial Court
was also requested by the Pros ecutor, through application for withdrawal of case against
accused ---Trial Court declined such request without assigning any reason --Section 494, Cr. P.
C. empowered a Public Prosecutor to withdraw the case on ground of insufficient evidence ---
Court had a supervisory jurisdiction to see that said power could not be used by an authority
arbitrarily or contrary to the public interest -Court must satisfy itself about the request for
withdrawal by assigning its reasons for the acceptance or rejection of an appea l---For the
purpose of allowing or disallowing a request for withdrawal and assigning the reasons, the
court must not necessarily record evidence and such discretion could also be exercised on the
basis of material available on record --Prosecution had not been able to prove its case against
accused ---Trial Court had not only failed to properly appreciate the evidence, but had also
failed to exercise its jurisdiction for not granting permission for withdrawal of the case on the
ground of meagre evidence ---Trial Court had not advanced any reason while rejecting the
application for withdrawal, which would mean that court had not considered the evidence and
material available before it ---Act of Trial Court not only amounted to misreading and non -
reading of the e vidence, but also amounted to non -exercise of jurisdiction vested in it, which
was an illegality and irregularity ---Impugned judgment was not sustainable, in circumstances
which was set aside.
Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC 451 ref.
Naeem Akhtar Afghan for Appellant.
Abdul Sattar Durrani, Addl. P.G. for the State.
Date of hearing: 26th November, 2010.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---This appeal has been presented against judgment
dated 7 -10-2009, passed by the Spe cial Judge, Anti -Corruption Balochistan, Quetta, whereby
the appellant has been convicted and sentenced as under: --
"accused Muhammad Saleem son of Juma Khan, is convicted under section 409,
P.P.C. and sentenced him to suffer R.I. for 7 years with fine o f Rs.50,000 or in default
of payment of fine to further suffer S.I. for six months. The accused is further
convicted under section 420, P.P.C. and sentenced him to suffer R.I. for 5 years with
fine of Rs.30,000 or in default of payment of fine to further s uffer S.I. for four
months. The accused is also convicted under section 467, P.P.C. and sentenced him to
suffer R.I. for four years with fine of Rs.40,000 or in default of payment of fine to
further suffer S.I. for four months. The accused was also convict ed under section 468,
P.P.C. and sentenced to suffer R.I. for 3 years with fine of Rs.30,000 or in default of
payment of fine to further suffer S.I. for three months. The accused is also convicted
and sentenced under section 5(2) of Act -II of 1947 to suffe r R.I. for four years
including fine of Rs.30.00 million which shall be recoverable from movable and
immovable properties owned by the accused/convict. Process as provided under
Section 386, Cr.P.C. be issued to District Officer Revenue, Quetta for attachm ent of
properties owned by the accused/convict and their sale by way of auction to satisfy
the sentence of fine. If the amount of fine in whole is not recoverable from the
properties, owned by the accused/convict, in that case he will further suffer R.I. f or
six months. Benefit of section 382 -B, Cr.P.C. is extended in favour of accused. All
sentences awarded to the accused shall run concurrently."
Briefly stated facts of the case are that the appellant was posted as Executive Engineer, C&W
Department at D hadar. An allegation was levelled against him for misappropriation of an
amount to the tune of Rs.30.00 million. After departmental enquiry, an F.I.R. under section
409/420/467/468, P.P.C. read with section 5(2) Act -II of 1947, at the request of the Secret ary
S&GAD Department Government of Balochistan, Quetta, was registered by Anti -Corruption
Establishment Quetta against him.
Challan was submitted before the Special Judge, Anti -Corruption, Balochistan, Quetta, for
trial. The prosecution in order to prove its case, has produced ten witnesses, while the
appellant was examined under section 342, Cr.P.C. On the conclusion of the case, the trial
Court has convicted and sentenced the appellant as mentioned herein above, hence this
appeal.
It is important to m ention here that during the pendency of the appeal, the appellant has died.
The learned counsel was asked as to whether on the death of the appellant, the appeal has
become infructuous.
The learned counsel for the appellant submitted that since the appel lant has been awarded a
fine, which is recoverable from his estate, moreover, the fate of the pensionary benefits of the
appellant is also dependent upon the outcome of the appeal, as such, the appeal does not abate
and has to be decided in accordance with law. He argued that the trial Court has failed to
consider the fact, that during the enquiry no substantial evidence was found against the
appellant, therefore, the department had requested the competent authority for withdrawal of
the case. During the tr ial too, a request for withdrawal of the case was made by the
prosecution, but the trial Court without any reason, has dismissed the application, which is an
illegality. According to him, the prosecution witnesses have failed to prove the allegation,
there fore, the impugned judgment suffers from misreading and non -reading of evidence
which is again an illegality and irregularity.
The learned Addl: Prosecutor -General stated that due to the death of the appellant/convict, his
appeal had abated and there was no need to dilate upon the same. He has however, supported
the impugned judgment and stated that the same was based on proper appreciation of
evidence, as such, the appellant had rightly been convicted and sentenced.
I have heard the learned counsel for the parties and have gone through the record. Ordinarily,
a criminal appeal abates on the death of an appellant, but section 431, Cr.P.C. provides an
exception to this general rule. It says that an appeal against a sentence of fine shall not abate
by reas on of death of an appellant, because it is not a matter, which affects his person, it
would certainly affect his estate. Thus, upon death of an appellant, his appeal to the extent of
a portion of sentence of an imprisonment, abates whereas, the appeal to t he extent of sentence
of fine, affecting the property of an appellant, shall not abate.
Moreover, a sentence awarded to a Government official or employee would certainly affect
his service. In such an eventuality, his conviction would also affect his pen sionary benefits.
Thus, on this score as well, the appeal does not abate. In the present case, the amount of fine
has been ordered to be recovered from the properties of the appellant, beside the fact that, he
was a Government employee, therefore, his conv iction and sentence would certainly have an
impact not only upon his estate, but also upon his pensionary benefits. Hence, in the
circumstances, his appeal on his death does not abate. In this behalf I have been fortified by a
judgment in case titled as An war Hussain Khan v. The State reported in 1970 PCr.LJ 279.
Relevant portion of which is reproduced hereinbelow: --
"Ordinarily a criminal appeal abates on the death of the appellant. But section 431, Cr.
P. C. seems to have made an exception to this gener al rule. A careful perusal of the
section will show that an appeal against a sentence of fine shall not abate by reason of
the death of the accused -appellant, because it is not a matter which affects his person,
but one which affects his estate. Where an a ccused has appealed against the sentence
of imprisonment and fine and before the appeal comes for hearing he dies, that part of
the appeal which relates to the sentence of imprisonment shall abate on the death of
the appellant but the, other part which rel ates to the sentence of fine shall not abate on
the death of the appellant. The view receives support from the cases AIR 1957 All.
20=58 Cr.LJ 16 and AIR 1962 Mys. 275.
If the appeal against a sentence of fine does not abate then the appellate Court may
look into the propriety and legality of the sentence of fine imposed upon the accused
and set aside the said fine or' remit it in fit cases, in consideration of the hardship and
surrounding facts and circumstances of the case."
Now dilating upon the case , it is to be noted that after receiving a complaint, a departmental
enquiry against the appellant was ordered and assigned to the Chief Engineer (P.H.E.
Department). He along with the Investigating Officer and other officials of C&W
Department, inspected different projects, supervised by the appellant, probed into the matter
and submitted his report with his technical opinion. The report was produced before the trial
Court as Article A/48. Its concluding para is reproduced as under: --
"Since I was direct ed to inspect only those schemes which were carried out under
head Non -Development budget, hence I kept my visit/inspection to those schemes
only which were identified by the higher ups. A sum of Rs.30.00 Million has been
released to the XEN Kacchi for exp enditure during the month of May, 2009.
However, the above works have been completed. Though the expected quality could
not be achieved by the field staff yet quantity wise the works are completed
accordingly.
CONCLUSION
The undersigned visited all the above mentioned sites personally along with the
concerned field staff and tried to ascertain the quality as well as quantity of the work
of roads carried out recently. I had to rely upon the statement of the field staff and
personal observations.
Though the assessment of exact quantum of work was not possible yet physically the
repair/rehabilitation works have been completed. Nevertheless, the
flaws/shortcomings can easily be rectified at the risk and cost of contractor by
charging the amount involved to the security deposit of the contractor lying with
Executive Engineer, (Prov.) Kachhi B&R and there will be no loss to the state. I
conclude that the quality of work done at various sites is satisfactory.
Sd/- Chief Engineer, (North)
PHE Department, Que tta."
The case was initiated against the appellant on the basis of a complaint, allegedly received
from one Gul Muhammad Jatoi, a Government Contractor, Sub -Division Dhadar District
Kechhi. He later -on submitted a letter to the Chief Secretary, wherein h e has categorically
disowned the complaint. He stated that he had never filed any such application, nor has raised
any objection in respect of any of the schemes, completed under the supervision of the
appellant.
Keeping in view the material collected du ring the departmental enquiry as well as during the
course of investigation, on 2 -3-2010 the Deputy Secretary (Judicial/Enquiry) S&GAD
Government of Baluchistan, Qeutta, had requested the Superintendent of Police, Anti -
Corruption Establishment, Balochistan Quetta, for withdrawal of the case against the
appellant, but instead, he preferred the challan in the Court.
Though the prosecution has produced ten (10) witnesses, but one of the material witnesses in
the case is P.W.5, the author of the report. In hi s cross examination, confirmed the fact that at
the time of inspection of the projects, the Investigating Officer of the case as well as the
officials of the C&W Department were also present. Record reflects that none of them had
pointed out any defect in any of the projects. The allegation against the appellant was since
technical in nature that is why, an Engineer was deputed as an Enquiry Officer. His report is
self explanatory, as he did not find any defect in the projects, nor has brought any thing on
record, showing loss to the government exchequer. He did not hold the appellant responsible
for any criminal act, nor has pointed out any negligence on his part in the projects.
Similarly the Secretary C&W Department, Balochistan Quetta appeared as P.W.6 . He, in his
statement stated that, when he was the Chief Engineer Design, he inspected the sites, which
were under the supervision of the appellant, prepared a report, which was produced in the
court as Article A -14. The Engineer, in his report, did not p oint out any criminal liability of
the appellant, while performing his duties. His report and statement before the trial Court in
no way supports the prosecution case.
P.W.8 Mr. Hassan Shah Sherani, Chief Engineer -I, C&W Department Balochistan Quetta,
also visited the schemes, prepared his report and submitted it in the court as Art. A/43. In his
report too, nothing has been disclosed to hold the appellant responsible for any act of causing
loss to the Government exchequer. The Investigating Officer subm itted his challan, but it also
does not disclose, as to in what manner, the appellant is responsible for causing loss of
Rs.30:00 million. For that reason, the Investigating Officer, during the course of
investigation, requested the Anti -Corruption Establi shment for discharge of the appellant.
After going through the entire case, statement of the witnesses and material available on
record, the allegations levelled against the appellant for misappropriation has not been
supported by any witness. To the con trary, the reports exhibited by the prosecution, favour
the appellant, which shows that whatever amount was allocated to him, was properly spent on
the schemes. The evidence available on record, is not sufficient to connect the appellant with
the commissio n of alleged offence.
Without prejudice to the above, even otherwise the trial Court was also requested by the
Prosecutor, through an application dated 3 -3-2010 for the withdrawal of the case. Section
494, Cr.P.C, deals with the withdrawal of the case, w hich reads as follows: --
"Section, 494. Effect of withdrawal from prosecution .-- Any B Public Prosecutor
may, with the consent of the Court, before the judgment is pronounced, withdraw
from the prosecution of any person either generally or in respect of any one or more
of the offences for which he is tried, and upon such withdrawal:
(a) if it is made before a charge has been framed, the accused shall be discharged in
respect of such offence or offences;
(b) if it is made after a charge has been framed , or when under this Code no charge is
required,. he shall be acquitted in respect of such offence or offences; "
The trial Court has declined the request, but no reason was assigned. The above provision of
law, empowers a Public Prosecutor to withdraw t he case on any ground mentioned therein,
which includes a ground of insufficient evidence. The Court has a supervisory jurisdiction to
see that the power may not be used by an authority arbitrarily or contrary to the public
interest.
The court must satis fy itself about the request for withdrawal, by assigning its reasons for the
acceptance or rejection of an appeal. For the purpose of allowing or disallowing a request for
withdrawal and assigning the reasons, the court must not necessarily record evidence , and
such discretion could also be exercised on the basis of material available on record. .
In this behalf, reliance is placed on a case titled as Mir Hassan v. Tariq Saeed and 2 others -
reported in PLD 1977 SC 451. The relevant portion whereof is repro duced hereinbelow for
ready reference: --
"Section 494 is an enabling provision, and vests in the public prosecutor the initiative
and the discretion to apply to the Court for its consent to withdraw from the
'prosecution of any person. What the Court has to determine in such a case, for the
purpose of giving consent, whether the general executive discretion given by law to
the public prosecutor has not been improperly exercised or that it is not an attempt to
interfere with the normal course of justice fo r reasons not related to the public
interest. The application for withdrawal can be made on many possible grounds which
may include the inexpediency of prosecution on grounds of public policy or in the
interest of public peace, or the undesirability of per mitting the prosecution to continue
where there is insufficient or meagre evidence to justify a conviction. In making such
an application the public prosecutor may legitimately be instructed by the
Government which, under the legal system obtaining in Paki stan, is responsible for
the prosecution of all cognizable offences.
The discretionary power having been vested in the public prosecutor by the statute,
the Court acts, so to say, in a supervisory capacity, to see that the power is not abused
in any mann er exercised arbitrarily and contrary to the public interest so as to amount
to an interference with the ordinary course of justice. The Court must, therefore,
satisfy itself that there do exist on the record grounds to sustain the reasons advanced
by the public prosecutor for his withdrawal from the prosecution. It is clear that this
supervisory function of the Court can be exercised ' only on a consideration of all the
facts and circumstances of the case available to the Court, and not in disregard of any
material factor or circumstances having a bearing on the issue."
In present case, the trial Court has miserably failed to go through the entire material available
on record and while rejecting the request, no plausible justification or reason has been
advanced. Having regard to the above discussed Provision of law as well as material
available on record, it is concluded that the prosecution has not been able to prove its case
against the appellant. The trial Court has not only failed to properly appreci ate the evidence,
but has also failed to exercise its jurisdiction for not granting permission for withdrawal of
the case on the ground of meagre evidence. The trial Court has failed to advance any reason
while rejecting the application for withdrawal, whi ch means that it has not considered the
evidence and material available before it, The act of trial court not only amounts to
misreading and non -reading of the evidence, but also amounts to non -exercise of jurisdiction
vested in it, which is an illegality and irregularity, as such, the impugned judgment is not
sustainable.
In view of what has been discussed hereinabove, I am inclined to accept the appeal and set
aside the impugned judgment dated 7 -10-2009 passed by the Special Judge, Anti -Corruption
Baloc histan, Quetta.
H.B.T./13/Q Appeal accepte
Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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