MUHAMMAD AZAM, SUB-ENGINEER, GHAUSEYWALA SECTION, KIRANA DIVISION, IRRIGATION DEPARTMENT, SARGODHA Versus STATE

ORDER

Since both the petitions have arisen out of common judgment for which two separate appeals have been preferred raising similar questions of law and facts, therefore, both the criminal miscellaneous applications are proposed to, be disposed of by single order.

2. The applicant was working as Sub- Engineer in the Irrigation Department, Sargodha and his co‑accused Muhammad Idrees and also a co‑appellant was his S.D.O. at the relevant time. A complaint was lodged against both of them that they after accepting heavy bribe from some Zimindars were supplying them excessive water than their alloted quota which was allegedly causing loss to the other shareholder. A case was accordingly registered by the Anti‑Corruption Department. Both the applicants/appellants/ convicts were sent up for trial and convicted by the learned Special Judge Anti‑Corruption, Sargodha vide his judgment dated 4‑9‑1998 and sentenced to 5 years R.I. under sec tion 5(2) of the Prevention of Corruption Act, 1947. They were further sentenced to fine of Rs.10,000 each and in default of payment thereof to undergo one year R.I.

3. Suspension of sentence is prayed for both the accused on the ground that the case was mala fide and that the conviction was based on insufficient evidence which did not inspire confidence being interested and inimical. The water was allegedly increased by setting up a device known as Ghurloo (hole) in the Mogas in question, which being a matter of technical nature was not proved through the evidence brought on record.

4. Lastly it was contended that none of the witnesses had ever seen the accused setting up the aforesaid Ghurloo and therefore, the case against the applicants/ appellants/convicts was extremely doubtful. The suspension of sentence is prayed while relying on Khalil‑ur‑Rehman v. Muhammad Afzal and another reported as 1998 SCMR 523.

5. The learned counsel for the State opposed the suspension of sentence and grant of bails to the applicants/appellants. In this regard, it was contended that both of them were sentenced to 5 years R.I. on dis interested evidence which belonged to the Irrigation Department and was of technical nature. The site was raided in the presence of a Magistrate and the Ghurloos were detected in the presence of P.Ws., when applicants/ appellants were also present. It was therefore, submitted that there was no case for suspension of sentence. Reliance was placed on 1997 SCMR 1521.

6. I have considered the foregoing facts and the case law cited at the Bar. There is no cudgel with the proposition that the appellate Court has jurisdiction to suspend the sentence and to release the applicants/appellants/convicts on bails if the circumstances of the case so require. However, order of suspension of sentence is to be supported by reasons to be recorded in writing as required by section 426(1), Cr.P.C. In case, the sentence is exceeding 3 years but did not exceed 7 years and the appeal has not been decided within a period of one year of the conviction of the appellant/convict, the latter would have statutory right to ask for bail, refusal of which would be an exception.

7. Keeping in view the above facts, it would be clear from the case in hand that the deeper appreciation of the merits of the case cannot be undertaken at this stage. It is sufficient to say that ex‑facie judgment of the learned trial Court is based on evidence consisting of the Executive Engineer of the Department and the raiding Magistrate who had apparently no malice or ill-will against the applicants/appellant/convicts. In such a situation and for the limited purpose of the disposal of these applications and without entering into deeper appreciation of the case on its merits, there seems to be no good ground to release the petitioners on bail at this stage. Both the applications are accordingly dismissed.

Applications dismissed.

Q.M.H./M.A.K./M‑893/L