SULTAN KHAN Versus STATE

MIAN BURHANUDDIN KHAN, J.-- This judgment shall dispose of both the above-mentioned appeals which arise out of a single order of the Lahore High Court, Multan Bench, dated 28-3-1983, passed in Criminal Appeal No.843 of 1976, whereby conviction of the accused /appellant in Criminal Appeal No. 70 of 1987, under section 409 P . P. C.. read with section 5 (2) of the Prevention of Corruption Act, 1947, was maintained. However, sentence of imprisonment, awarded to him by Special Judge, Anti-Corruption, Multan was reduced from 4 years' R.I. to the imprisonment already undergone and fine reduced from Rs.4,500 to Rs.2,000.

2. Prosecution case against the appellant is that a complaint Exh. P.B. was made by a a retired S.I., Muhammad Ali to Shuja Abad Police Station on 30-4-1974 alleging that he had come to know through Ashiq All and Hafiz Abdul Wahid, Lambardar that the Inspector and Supervisor of the Food-grain Department Shuja Abad, in collusion with Muhammad Amir, had misappropriated huge quantity of wheat and sugar from the Government Godown, and if the Godown is checked immediately the said shortage would be traced. On this report, Shuja Abad Police Station registered a case vide F . I . R . No. Exh . P . W .17/A . The investigation was taken into hand. Record of the Food-grain Department of this Godown such as Stock Report Register etc. P-1 to P-4 were secured vide Memo Exh. PA on the same day. 922 bags containing sugar with two more bags were found in the godown and were sealed vide memo Exh . P. C . On 7-6-1974 the accused were arrested. Muhammad Amir, acquitted /accused pointed out Qammar Flour Mill, Multan and got recovered 51 bags of wheat from there vide Memo Exh.P.W.13/A. Some samples from this recovered wheat were taken and sent to the analyst and the latter reported that these food-grains were of old wheat, and not of any fresh crop. On these discoveries, applications were moved by the relatives of Sultan accused/appellant and Abdul Naeem to the Food Department that the real culprit was Muhammad Amir, and Sultan and Abdul Naeem were pressurised by him to participate in the misappropriation of wheat grain and sugar etc. and they deposited Rs.11,000 each for Sultan and Abdul Naeem in the Government Treasury. According to Stock Report, 1392 maunds and 7 chattanks of wheat was in balance at Shuja Abad Godown which was in the custody of Sultan Khan accused and Abdul Naeem as Inspector and Supervisor respectively; that this balance was upto 12-4-1974 which was found short. After this, till 30-4-1974 no record was received from Shuja Abad and, therefore, it was not possible to say as to what was the exact balance on 30-4-1974. It was also pointed out that the wheat from the Godown is issued only to the depot-holders after the latter had deposited the cost in the Government Treasury.

3. In support of the case, the prosecution examined 19 witnesses. The learned trial Court held the accused /appellant guilty, and sentenced him as stated above. On appeal, the learned High Court Judge also found the evidence sufficient to warrant the conviction of the accused/appellant. However, the sentence awarded to the accused was reduced, as mentioned in paragraph above.

4. Learned counsel for the accused /appellant assailed the judgments of the Courts below and submitted that the charges against the accused have not been proved beyond reasonable doubt; that' conviction of the accused/ appellant solely on the evidence of Malik Haq Nawaz P.W.3 has occasioned miscarriage of justice because the witness did not disclose in his deposition at the trial, the total quantity of wheat stored in the Godown on the relevant date, how the shortage was estimated by him and what was the basis of his estimate of the shortage of wheat. The learned counsel further contended that there is no evidence to prove that the accused /appellant alone, was entrusted with the control of wheat at Shuja Abad godown or to maintain the stock register and account books in respect of the store or to keep the keys of the Godown. Lastly, the learned counsel, regarding the sentence, cited Abdul Hamid and another v. The State P L D 1963 W.P. Kar. 363 wherein the sentence of imprisonment imposed by the trial Judge was reduced to the period of detention in jail already undergone as the learned High Court Judge observed as follows:-

"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."

He also referred to Saeed Zakria v. The State and another 1972 SCMR 118 wherein this Court maintained the conviction of the appellant under section 409 P.P.C. but reduced the sentence of imprisonment passed on him to simple imprisonment till the rising of the Court.

We have considered the submissions made by the learned counsel for the accused/appellant and gone through the record. We find no misreading or non-reading of record. His conviction is based on correct appraisal of evidence.

It has been held by this Court in Muhammad Amin v. The State P L D 1984 S C 343 as under:-

"The evil of corruption can never be eradicated unless it is dealt with an iron hand. The punishments awarded by the Courts should be deterrent and not as light as has been awarded in the present case because such light punishments will not serve any purpose and only act as an inducement to other public servants who ask for and obtain bribes, because of the belief that even if they were caught, which is rare, the punishment likely to be awarded, would only be trivial."

Same view has been taken in Qazi Salahuddin v. The State P L D 1986 S C 548.

Moreover, we find that the prosecution has proved its case against the accused/appellant beyond any reasonable doubt. He was the person dealing with the storage and disposal of food-grains and sugar stocked in the Godown. The very fact that his relatives readily deposited the amount of Rs.11,000 in the Government Treasury to repay the cost of the misappropriated quantity of food-grain, leaves no doubt about the guilt of the accused /appellant. Hence, we find no merit in this appeal which is, consequently, dismissed.

Criminal Appeal No.71 of 1987

5. In the captioned appeal the learned counsel for the State submitted that after having found that the charge of criminal breach of trust as public servant had been brought home to the respondent, the learned High Court erred in law in reducing the sentence of imprisonment and also the amount of fine; that while reducing the sentence of imprisonment the learned High Court did not take into consideration the material fact that the respondent was on bail, and as a result of reduction of sentence of imprisonment to imprisonment already undergone the respondent suffered practically no imprisonment; and that while reducing the sentence the learned High Court was guided by extraneous consideration and did not exercise its discretion in a judicial manner. The charge being criminal breach of trust by a public servant, the respondent deserve severe sentence which should serve as a deterrent to other public servants.

We find considerable weight in the submissions made by the learned Assistant Advocate-General with regard to the offence with which the respondent was charged. The principle of law regarding the question of sentence is that the punishment must commensurate with the gravity of the offence. A public servant is custodian of and has domain over the public property through Government Agencies should not, with impunity, commit misappropriation of public property. We consider that such acts of delinquency should be dealt with a heavy hand as has been rightly stressed in the above-quoted case Qazi Salahuddin v. the State P L D 1986 S C 548.

We, therefore, set aside the impugned order of the learned High Court, passed in Criminal Appeal No.843 of 1976 and restore that of the learned trial Judge dated 31-7-1976. The respondent Sultan Khan shall undergo R.I. for four years after deducting the period he remained in jail after his conviction, and shall pay fine of Rs.4,500 in default, .he shall suffer R.I. for further six months. Appeal allowed.

S.Q./S-65/S ----- Order accordingly.