ARSHAD MAHMOOD vs The STATE
This matter arises from a petition for leave to appeal filed against the judgment of the Lahore High Court, whereby the petitioner's conviction under section 161 of the Pakistan Penal Code was maintained, but his sentence was altered. The core legal question raised was whether an appellate court is legally obliged to appraise the evidence afresh under section 423 of the Code of Criminal Procedure 1898 even when the counsel does not challenge the conviction, and whether the High Court failed to peruse the record before disposing of the appeal. The Supreme Court held that the High Court had indeed perused the evidence, as evidenced by its explicit observation that ample evidence connected the appellant to the crime, and dismissed the petition. The key principle laid down is that an appellate court satisfies its duty to examine the record when it records its assessment that ample evidence supports the conviction, even if the appellant's counsel chooses not to orally challenge the conviction on merits.
- Is an appellate court obliged to appraise the evidence afresh under section 423 of the Code of Criminal Procedure 1898 when the counsel does not challenge the conviction?
- Whether an appellate judgment is illegal if passed without perusing the record or examining the evidence?
- Can a sentence of rigorous imprisonment be altered on the ground of a protracted trial and small amount of illegal gratification?
- Section 161, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 423, Code of Criminal Procedure 1898
ORDER
1. NASIM HASAN SHAH, J.--The petitioner, who was serving as Line Superintendent in Sub-Division, Salamatpura, WAPDA, Lahore on 18-10-1979 , was tried under section 161, P . P . C . Read with section 5 (2 ) of the Prevention of Corruption Act, 1947, on the allegation that he had demanded Rs.600 and accepted Rs.300 as' illegal gratification to favour the complainant Abdul Qadeer alias Muhammad Akram, P.W.1, in connection with the installation of a meter at his house.
2. The learned trial Judge, vide his judgment dated 10-11-1981, convicted the petitioner under section 161, P.P.C. And sentenced him to one year's R.I. And a fine of Rs.1,000. In default of payment of fine he was ordered to undergo to months' R.I. The petitioner was, however, acquitted of the charge under section 5(2) of the Prevention of Corruption Act, 1947.
3. The petitioner filed an appeal against the judgment of the trial Court dated 10-11-1981, which was heard by a learned Single Judge of the Lahore High Court. At the the of the hearing of the appeal the learned counsel for the petitioner did not challenge the conviction but requested for leniency in the sentence. The learned Judge considering that the petitioner had already suffered the agony of a protracted trial and that the illegal gratification accepted by him was only Rs.300 was pleased to view this submission with sympathy and proceeded to alter the sentence of one year's R.I. And a fine of Rs.4,000, in default of payment of this fine he was ordered to undergo R.I. For six months. The fine of Rs.1,000 and the sentence in' lieu thereof was, however, maintained. This order was passed vide judgment dated 10-10-1984.
4. The petitioner has now filed this petition for leave to appeal in this Court and has submitted that despite the plea of his counsel that he was not challenging the conviction recorded by the High Court the learned Court itself was obliged in view of the provisions of section 423 , Cr. P . C . To appraise the evidence afresh and in failing to do so miscarriage of justice had occurred . It was further submitted that the impugned judgment, dated 10-10-1984 was not a legal disposition of the case, as it was passed without perusing the record or examining the evidence thereon. In support of this contention reliance has been placed on a decision of this Court reported as Abdul Siddique v. The State 1971 SCMR 628.
5. After hearing Mr. Zamir Hussain in support of this petition we are not inclined to agree with him that the learned Judge in the High Court did not examine the record or failed to peruse the evidence, This is evident from the following observation made by the learned Judge in the impugned judgment:- "The learned counsel has not challenged the conviction and rightly so because there is ample evidence to connect the appellant with the commission to crime.' (Underlining is ours).
6. The above observation clearly shows that the learned Judge had perused the evidence on the record and it was because he had done so that he was able to remark that there is "ample evidence" to connect the petitioner with the crime.
7. There is no force in this petition. It is, accordingly dismissed hereby.