GUL REHMAN vs The STATE

OPINION ZAFFAR HUSSAIN MIRZA, J.--Petitioner Gul Rehman, was tried and convicted for offences under sections 409,. 468 and 471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, by the Special Judge, Anti-Corruption, N.-W.F.P., Peshawar. He was sentenced to 7 years' R.I. And fine of Rs.30,000 or in default further undergo S.I. For one year. His appeal against his conviction was dismissed by a learned Single Judge of the Peshawar High Court, but his sentence was reduced to five years' R.I. And fine of Rs. 20,000 or in lieu thereof sentence of simple imprisonment for six months, He has filed this petition for leave to appeal froth jail. The office has raised objection that the petition is barred by 4 days. But in his application for condonation of delay the petitioner has submitted that the petition is within time as he had received the copy of the judgment on 7th February, 1985, on an application for copy made on the same day when the case was decided and the, petition was forwarded by the Superintendent, Central Jail, on 7th March, 1985. The delay if any is accordingly condoned.

2. The charge against the petitioner was that as Pay Officer of the Office of S.P., Dir, during the years 1972-1974, he by abusing his official position misappropriated an amount of Rs. 10,577.40. In the evidence produced by the prosecution, it appears that the amount of Rs. 10,577.40 with the misappropriation of which the petitioner was charged comprised various sums allegedly drawn by the petitioner from Government funds at different times for disbursement to police personnel. The evidence further reveals that the items of misappropriation were more than three in number. The grievance of the petitioner is that on internal audit by the department there was found to be no misappro--priation or defalcation of accounts. However, on a special audit it was alleged that the petitioner had committed misappropriation of Government funds. He submits that the report of the departmental audit was produced by him in his defence but the same was not taken into consideration by both Courts below. Further, his grievance is that the writer of the complaint and Abdul Hayee who conducted the special audit were both not examined as witnesses for the prosecution.

3. On examining the record I find that the question whether the trial of the petitioner for more than three offences of the same kind allegedly committed in a period of more than one year was lawful arid whether the joinder of charges has caused prejudice to him in his defence requires to be considered. Another point for consideration would be whether the evidence recorded by Special Judge, Anti-Corruption, Malakand Division, from whose Court the case was transferred on reference on the ground of want of jurisdiction to the Court of Special Judge, Anti-Corruption, N- W.F.P. Peshawar, could sustain the conviction recorded by the latter Court. In my opinion the aforesaid points and other grounds raised in the petition need consideration and, therefore, I would grant leave to appeal.

ORDER OF THE COURT Leave to Appeal is granted