1. JAMAL KHAN MANDOKHAIL, J.---This appeal has been presented against judgment dated 7-10- 2009, passed by the Special Judge, Anti-Corruption Balochistan, Quetta, whereby the appellant has been convicted and sentenced as under:-- "accused Muhammad Saleem son of Juma Khan, is convicted under section 409, P.P.C. And sentenced him to suffer R.I. For 7 years with fine of Rs,50,000 or in default of payment of fine to further suffer S.I, for six months. The accused is further convicted under section 420, P.P.C. And sentenced him to suffer R.I. For 5 years with fine of Rs,30,000 or in default of payment of fine to further suffer S.I. For four months. The accused is also convicted under section 467, P.P.C. And sentenced him to suffer R.I. For four years with fine of Rs,40,000 or in default of payment of fine to further suffer S.I. For four months. The accused was also convicted under section 468, P.P.C. And sentenced to suffer R.I. For 3 years with fine of Rs,30,000 or in default of payment of fine -to further suffer S.I. For three months. The accused is also convicted and sentenced under section 5(2) of Act-II of 1947 to suffer R.I. For four years including fine of Rs,30.00 million which shall be recoverable from movable and immovable properties owned by the accused/convict. Process as provided under Section 386, Cr.P.C. Be issued to District Officer Revenue, Quetta for attachment of properties owned by the accused/convict and their sale by way of auction to satisfy the sentence of fine. If the amount of fine in whole is not recoverable from the properties, owned by the accused/convict, in that case he will further suffer R.I. For six months. Benefit of section 382-B, Cr.P.C. Is extended in favour of accused. All sentences awarded to the accused shall run concurrently." Briefly stated facts of the case are that the appellant was posted as Executive Engineer, C&W Department at Dhadar. An allegation was levelled against him for misappropriation of an amount to the tune of Rs,30.00 million. After departmental enquiry, an F.I.R. Under section 409/420/467/468, P.P.C. Read with section 5(2) Act-II of 1947, at the request of the Secretary S&GAD Department Government of Balochistan, Quetta, was registered by Anti-Corruption Establishment Quetta against him. Challan was submitted before the Special Judge, Anti-Corruption, Balochistan, Quetta, for trial. The prosecution in order to prove its case, has produced ten witnesses, while the appellant was examined under section 342, Cr.P.C. On the conclusion of the case, the trial Court has convicted and sentenced the appellant as mentioned herein above, hence this appeal. It is important to mention here that during the pendency of the appeal, the appellant has died. The learned counsel was asked as to whether on the death of the appellant, the appeal has become infructuous. The learned counsel for the appellant submitted that since the appellant has been awarded a fine, which is recoverable from his estate, moreover, the fate of the pensionary benefits of the appellant is also dependent upon the outcome of the appeal, as such, the appeal does not abate and has to be decided in accordance with law. He argued that the trial Court has failed to consider the fact, that during the enquiry no substantial evidence was found against the appellant, therefore, the department had requested the competent authority for withdrawal of the case. During the trial too, a request for withdrawal of the case was made by the prosecution, but the trial Court without any reason, has dismissed the application, which is an illegality. According to him, the prosecution witnesses have failed to prove the allegation, therefore, the impugned judgment suffers from misreading and non-reading of evidence which is again an illegality and irregularity. The learned Addl: Prosecutor-General stated that due to the death of the appellant/convict, his appeal had abated and there was no need to dilate upon the same. He has however, supported the impugned judgment and stated that the same was based on proper appreciation of evidence, as such, the appellant had rightly been convicted and sentenced.
2. I have heard the learned counsel for the parties and have gone through the record. Ordinarily, a criminal appeal abates on the death of an appellant, but section 431, Cr.P.C. Provides an exception to this general rule,. It says that an appeal against a sentence of fine shall not abate by reason of death of an appellant, because it is not a matter, which affects his person, it would certainly affect his estate. Thus, upon death of an appellant, his appeal to the extent of a portion of sentence of an imprisonment, abates whereas, the appeal to the extent of sentence of fine, affecting the property of an appellant, shall not abate. Moreover, a sentence awarded to a Government official or employee would certainly affect his service. In such an eventuality, his conviction would also affect his pensionary benefits. Thus, on this score as well, the appeal does not abate. In the present case, the amount of fine has been ordered to be recovered from the properties of the appellant, beside the fact that, he was a Government employee, therefore, his conviction and sentence would certainly have an impact not only upon his estate, but also upon his pensionary benefits. Hence, in the circumstances, his appeal on his death does not abate. In this behalf I have been fortified by a judgement in case titled as Anwar Hussain Khan v. The State reported in 1970 PCr.LJ 279. Relevant portion of which is reproduced hereinbelow:- - "Ordinarily a criminal appeal abates on the death of the appellant. But section 431, Cr.P.C. Seems to have made an exception to this general rule. A careful perusal of the section will show that an appeal against a sentence of fine shall not abate by reason of the death of the accused-appellant, because it is not a matter which affects his person, but one which affects his estate. Where an accused has appealed against the sentence of imprisonment and fine and before the appeal comes for hearing he dies, that part of the appeal which relates to the sentence of imprisonment shall abate on the death of the appellant but the, other part which relates to the sentence of fine shall not abate on the death of the appellant. The view receives support from the cases AIR 1957 All.
3. 20=58 Cr.LJ 16 and AIR 1962 Mys. 275: If the appeal against a sentence of fine does not abate then the appellate COurt may look into the propriety and legality of the sentence of fine imposed upon the accused and set aside the said fine or remit it in fit cases, in consideration of the hardship and surrounding facts and circumstances of the case." Now dilating upon the case, it is to be noted that after receiving a complaint, a departmental enquiry against the appellant was ordered and assigned to the Chief Engineer (P.H.E. Department).
4. He along with the Investigating Officer and other officials of C&W Department, inspected different projects, supervised by the appellant, probed into the matter and submitted his report with his technical opinion. The report was produced before the trial Court as Article A/48. Its concluding para is reproduced as under:-- "Since I was directed to inspect only those schemes which were carried out under head Non- Development budget, hence I kept my visit/inspection to those schemes only which were identified by the higher ups. A sum of Rs,30.00 Million has been released to the XEN Kacchi for expenditure during the month of May, 2009, However, the above works have been completed. Though the expected quality could not be achieved by the field staff yet quantity wise the works are completed accordingly.
5. CONCLUSION The undersigned visited all the above mentioned sites personally along with the concerned field staff and tried to ascertain the quality as well as quantity of the' work of roads carried out recently. I had to rely upon the statement of the field staff and personal observations. Though the assessm ent of exact quantum of work was not possible yet physically the repair/rehabilitation works have been completed. Nevertheless, the flaws/shortcomings can easily be rectified at the risk and cost of contractor by charging the amount involved to the security deposit of the contractor lying with Executive Engineer, (Prov.) Kachhi B&R and there will be no loss to the state. I conclude that the quality of work done at various sites is satisfactory.
6. Sd/- Chief Engineer, (North)
7. PHE Department, Quetta." The case was initiated against the appellant on the basis of a complaint, allegedly received from one Gul Muhammad Jatoi, a Government Contractor, Sub-Division Dhadar District Kechhi. He later- on submitted a letter to the Chief Secretary, wherein he has categorically disowned the complaint.
8. He stated that he had never filed any such application, nor has raised any objection in respect of any of the schemes, completed under the supervision of the appellant. Keeping in view the material collected during the departmental enquiry as well as during the 'course of investigation, on 2-3-2010 the Deputy Secretary (Judicial/Enquiry) S&GAD Government of Baluchistan, Qeutta, had requested the Superintendent of Police, Anti-Corruption Establishment, Balochistan Quetta, for withdrawal of the case against the appellant, but instead, he preferred the challan in the Court.
9. Though the prosecution has produced ten (10) witnesses, but one of the material witnesses in the case is P.W.5, the author of the report. In his cross examination, confirmed the fact that at the time of inspection of the projects, the Investigating Officer of the case as well as the officials of the C&W Department were also present. Record reflects that none of them had pointed out any defect in any of the projects. The allegation against the appellant was since technical in nature that is why, an Engineer was deputed as an Enquiry Officer. His report is self explanatory, as he did not find any defect in the projects, nor has brought any thing on record, showing loss to the government exchequer. He did not hold the appellant responsible for any criminal act, nor has pointed out any negligence on his part in the projects.
10. Similarly the Secretary C&W Department, Balochistan Quetta appeared as P.W.6. He, in his statement stated that, when he was the Chief Engineer Design, he inspected the sites, which were under the supervision of the appellant, prepared a report, which was produced in the court as Article A-14. The Engineer, in his report, did not point out any criminal liability of the appellant, while performing his duties. His report and statement before the trial Court in no way supports the prosecution case. P.W.8 Mr. Hassan Shah Sherani, Chief Engineer-I, C&W Department Balochistan Quetta, also visited the schemes, "prepared his report and submitted it in the court as Art. A/43. In his report too, nothing has been disclosed to hold the appellant responsible for any act of causing loss to the Government exchequer. The Investigating Officer submitted his challan, but it also does not disclose, as to in what manner, the appellant is responsible for causing loss of. Rs,30.00 million. For that reason, the Investigating Officer, during the course of investigation, requested the Anti- Corruption Establishment for discharge of the appellant.
11. After going through the entire case, statement of the witnesses and material available on record, the allegations levelled against the appellant for misappropriation has not been supported by any witness. To the contrary, the reports exhibited by the prosecution, favour the appellant, which shows that whatever amount was allocated to him, was properly spent on the schemes. The evidence available on record, is not sufficient to connect the appellant with the commission of alleged offence. Without prejudice to the above, even otherwise the trial Court was also requested by the Prosecutor, through an application dated 3-3-2010 for the withdrawal of the case. Section 494, Cr.P.C, deals with the withdrawal of the case, which reads as follows:-- "Section 494. Effect of withdrawal from prosecution.-- Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried, and upon such withdrawal:
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences; " The trial Court has declined the request, but no reason was assigned. The above provision of law, empowers a Public Prosecutor to withdraw the case on any ground mentioned therein, which includes a ground of insufficient evidence. The Court has a supervisory jurisdiction to see that the power may not be used by an authority arbitrarily or contrary to the public interest. The court must satisfy itself about the request for withdrawal, by assigning its reasons for the acceptance or rejection of an appeal. For the purpose of allowing or disallowing a request for withdrawal and assigning the reasons, the court must not necessarily record evidence, and such discretion could also be exercised on the basis of material available on record. In this behalf, reliance is placed on a case titled as Mir Hassan v. Tariq Saeed and 2 others- reported in PLD 1977 SC 451. The relevant portion whereof is reproduced hereinbelow for ready reference:-- "Section 494 is an enabling provision, and vests in the public prosecutor the initiative and the discretion to apply to the Court for its consent to withdraw from the prosecution of any person.
12. What the Court has to determine in such a case, for the purpose of giving consent, whether the general executive discretion given by law to the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for reasons not related to the public interest. The application for withdrawal can be made on many possible grounds which may include the inexpediency of prosecution on grounds of public policy or in the interest of public peace, or the undesirability of permitting the prosecution to continue where there is insufficient or meagre evidence to justify a conviction. In making such an application the public prosecutor may legitimately be instructed by the Government which, under the legal system obtaining in Pakistan, is responsible for the prosecution of all cognizable offences. The discretionary power having been vested in the public prosecutor by the statute, the Court acts, so to say, in a supervisory capacity, to see that the power is not abused in any manner exercised arbitrarily and contrary to the public interest so as to amount to an interference with the ordinary course of justice. The Court must, therefore, satisfy itself that there do exist on the record grounds to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution.
13. It is clear that this supervisory function of the Court can be exercised only on a consideration of all the facts and circumstances of the case available to the Court, and not in disregard of any material factor or circumstances having a bearing on the issue." In present case, the trial Court has miserably failed to go through the entire material available on record and while rejecting the request, no plausible justification or reason has been advanced.
14. Having regard to the above discussed Provision of law as well as material available on record, it is concluded that the prosecution has not been able to prove its case against the appellant. The trial Court has not only failed to properly appreciate the evidence, but has also failed to exercise its jurisdiction for not granting permission for withdrawal of the case on the ground of meagre evidence. The trial Court has failed to advance any reason while rejecting the application for withdrawal, which means that it has not considered the evidence and material available before it, The act of trial court not only amounts to misreading and non-reading of the evidence, but also amounts to non-exercise of jurisdiction vested in it, which is an illegality and irregularity, as such, the impugned judgment is not sustainable. In view of what has been discussed hereinabove, I am inclined to accept the appeal and set aside the impugned judgment dated 7-10-2009 passed by the Special Judge, Anti-Corruption Balochistan, Quetta.