' ASSADULLAH KHAN CHAMKANI, J.---Muhammad Ali Shah, the convict appellant, is involved in case F.I.R. No,1 dated 12-8-2008 registered under section 409, P.P.C. Read with section 5(2), P.C. Act at Police Station ACE, Chitral on the allegation that he while being Supervisor Incharge of Food Grain PRC Centre Kosht and Gohkeer, District Chitral, had fraudulently and dishonestly misappropriated an amount of Rs. 28,00,198 in the sale of wheat, sugar and empty gunny bags and, thus, committed a criminal breach of trust.
2. The case was earlier investigated and Challan against the appellant-convict was submitted in the Court of Maga Qazi, who vide judgment dated 29-1-2001, convicted and sentenced him 2-1/2 years' R.I. With a fine of Rs.3,000 and in default to suffer two months' SI under section 409, P.P.C. The convict-appellant challenged in appeal his conviction and sentence which was maintained, vide judgment dated 22-5-2002, however, in Criminal Miscellaneous (Quashment) Petition No,276 of 2002, his conviction and sentence was set aside on the ground that the decision was awarded by a forum lacking the jurisdiction and the case was sent to Anti-Corruption Establishment at Chitral.
3. The case in hand was re-investigated and upon taking cognizance of the case, the learned Special Judge, Anti-Corruption, passed the impugned judgment dated 24-1-2011, vide which the appellant was convicted and sentenced to the extent of one year's RI. With a fine of Rs.50,000 or in default thereof shall undergo SI for four months.
4. Feeling aggrieved, the appellant-convict, filed the instant criminal appeal.
5. Learned counsel for the appellant argued that the judgment of conviction is wrong, illegal and against the facts. He further argued that the learned trial Court has failed to appreciate the evidence on record on its true perspective and the impugned judgment is not based on correct appreciation of evidence on record. He further argued that the appellant has already undergone more than the period of sentence on the same charges, therefore, the judgment of conviction is liable to be set aside.
6. Learned A.A.-G. Appearing on behalf of the State argued that the prosecution has brought on record sufficient evidence to prove the guilt of the accused. He further argued that the learned trial Court has already taken a lenient view in awarding sentence to the appellant and supported the impugned judgment of conviction.
7. From the material available on record it is evident that the prosecution has been able to bring home the charge against the appellant and there is nothing on the record to establish the of the Anti-corruption authorities against the appellant. I am fully convinced that the evidence available on record has been rightly and justifiably relied upon by the Court below and the conviction is based on legal and admissible evidence on record and, as such, the same is maintained.
' However, the contention of learned counsel for the appellant that earlier the appellant has already spent sufficient period in jail but the learned trial Court while passing the impugned judgment of conviction has not considered the same in favour of the appellant has got force. No doubt, earlier the appellant was convicted. And sentenced under section 409, P.P.C. By the Judicial Magistrate on 29-1-2001 but, later on, his conviction and sentenced was set aside by this Court, vide judgment dated 6-6-2005 passed in Criminal. Miscellaneous No,276 of 2002. The relevant Para No,5 of the judgment is reproduced as under:- "I have gone through the record and it appears that investigation was not conducted by. Anti- Corruption Establishment but, by regular police. Section 409, P.P.C. Is scheduled offence to Pakistan Criminal Law Amendment Act, 1958 and under section 5 of the Act ibid offence under section 409, P.P.C. Is exclusively triable by a Special Judge appointed under section 3 of the Act; ibid, therefore, conviction and sentence would be illegal as passed by forum which had no jurisdiction. I accordingly allow this petition. Conviction and sentence are set aside. Petitioner, wh6 has already undergone the sentence, is present in Court. He is directed to furnish personal bonds in the sum of Rs.10,000 to the satisfaction of Additional Registrar of this Court for his appearance before the leaned trial Judge with direction that the matter be sent back to Anti-Corruption Establishment at Chitral, which shall register the F.I.R., if a case is made out, shall investigate and shall file the Challan in the Court of learned Anti-Corruption Judge having jurisdiction of the matter.
' However, if the petitioner is to face a trial before Judge Anti-Corruption, in case of his conviction, period which he already spent in Jail shall be kept in sight. This petition is disposed of accordingly".
8. Since both the crimes are one and the same, therefore, the trial Court while passing the judgment of conviction and sentence in the second round ought to have exercised this discretion in favour of the appellant. Non-exercise of discretion in favour of appellant amounts to miscarriage of justice. As the trial Court has not kept in sight the observation of this Court in Criminal Miscellaneous supra, therefore, I feel it will be in the interest of justice to order that the second round of sentence is converted into the period which the appellant has already spent in jail in the previous round. As such, while maintaining the conviction recorded by the trial Court, it is converted into the one already undergone by the appellant in the previous round.
' This criminal appeal is disposed of accordingly.