DOST MUHAMMAD Versus THE STATE
1. Dost Muhammad (59) (at the time of trial in May 1988) while serving as Naib-Nazir for the Court of Senior Civil Judge, Jhang, was tried by Special Judge, Anti-Corruption Sargodha (Camp at Jhang), under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947, for having accepted a sum of Rs 20 as illegal gratification from Waryam for helping him in the service of the notices issued to the respondents in the suit for share of produce filed by Waryam in Court of Tehsildar.
2. Learned trial Judge vide judgment, dated 31-8-1988 convicted him under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to imprisonment till the rising of the Court plus to pay a fine of Rs.1,000 in default whereof to undergo S.I. for three months. He preferred appeal challenging his conviction and sentence.
3. While admitting the appeal, suo motu notice was given to him to show cause that in case the appeal filed by him fails why the sentence be not enhanced. The appeal and the revision petition arising out of the notice issued for enhancement are being taken up together.
4. 2 Learned counsel for the appellant after having argued the appeal at some length decided not to press the appeal. He prayed for permission to withdraw the same.
3. Since the counsel for the appellant opted not to press the appeal and instead had prayed for permission to withdraw the same, the appeal is disposed of as having been withdrawn. However, as the withdrawal of the appeal did not necessarily mean vacation of the notice issued to the convict for enhancement, I have considered the case of the convict on merits and I am convinced that the judgment of conviction passed by the trial Judge is based on correct appreciation of the evidence on record. Obviously, the sentence of imprisonment till the rising of the Court in a corruption case cannot be termed, by any means, as a just punishment but in the circumstances of this case, a lenient view is required to be taken. In that, the convict was 59 years in 1988. Although he had yet to remain in service for a year more but he was retired compulsorily. It is in evidence that he was a T.B. patient and was suffering from the disease for 4/5 years prior to May, 1988. About three years have already passed. He would now be 62 years. It is stated at the Bar that he is father of four unmarried daughters and his sons being minor are not earning for the family. In the circumstances, this is a case in my view where the principle of Adal-Bil-Ahsan (justice tempered with mercy) warranted in Surah `Al-Nahal' of Qur'an Sharif needs to be followed.
5. Suo motu notice for enhancement of sentence issued to the convict is withdrawn and he is let off with the sentence already awarded. He shall pay the fine of Rs.1,000 within thirty days. In case he fails to- pay the fine, he shall be caused to be arrested through non-bailable warrants and lodged in jail to undergo the sentence awarded in lieu thereof. Learned counsel for the appellant has undertaken to inform the convict.
6. S.A./D-73/L Order accordingly.