' KHALID MEHMOOD, J.---Convict-appellant Umar Farooq was tried under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act and on conclusion of trial, vide impugned judgment dated 30-8-2012, he was convicted under section 409, P.P.C. To 4 years' R.I. With a fine of Rs,1,00,000 or in default thereof to undergo six months' S.I. And under section 5(2) of the P.C. Act to 2 years' R.I. With a fine of Rs,50,000 or in default thereof to undergo six months' S.I. Both the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was, however, extended to him.
2. Briefly stated facts of the prosecution case are that Principal, Government Post Graduate College No,1 Abbottabad vide letter No,415 dated 18-3-2009 lodged a complaint to the effect that during audit an amount of Rs,16,00,000 is found less in the college hostel No,1 's fund: Upon such complaint, C.O. ACE Abbottabad got permission for open inquiry and during inquiry an amount of Rs,15,76,291 were detected to have been embezzled from hostel No, l's funds whereas the auditor also reported for verification of Rs,5,64,000 from the bank. On the basis of audit report, permission for registration of case was sought, which was allowed and case Exh.PA was registered against accused.
3. After completion of investigation challan was put in court and trial commenced. Accused pleaded not guilty and claimed trial. The prosecution examined four witnesses in order to prove its case. The trial Court also examined Muhammad Ashraf, Retired Chairman, Department of English and Mat-Hussain Khattak, Associate Professor, Government College No, 1, Abbottabad as Court witnesses. After close of prosecution evidence statement of accused was recorded under section 342, Cr.P.C., who did not wish to be examined on Oath under section 340(2), Cr.P.C.
4. At the conclusion of trial, after hearing the arguments of learned counsel for the parties with reference to the material on file, the learned trial Judge convicted and sentenced the accused appellant, as noted above.
5. Learned counsel for appellant contended that prosecution has failed to prove its case against appellant beyond any shadow of doubt. It was argued that the alleged amount has been deposited and appellant is at the verge of his retirement as only one year is left for his retirement. It was also argued that the prosecution failed to record the statement of any student was recorded.
He also argued that all the P.Ws. Are highly interested witnesses and have contradicted each other on material points. Learned counsel while concluding his arguments submitted that appellant is entitled to be acquitted by extending benefit of doubt, as a single doubt in the case would be sufficient for the purpose of acquittal. He further reluctantly argued that if the appellant is not extended benefit of doubt for his acquittal then the punishment so awarded be reduced, as the alleged embezzled amount has already been deposited.
6. On the other hand, learned AAG argued that the prosecution version is supported by the P.Ws. It was argued that sentence awarded by the trial Court meets the ends of justice, which may be confirmed.
7. Arguments heard and record perused.
8. The prosecution in support of its case examined four witnesses whereas the trial Court also examined Muhammad Ashraf, Retired Chairman, Department of English and Iltaf Hussain Khattak, Associate Professor, Government College No,1, Abbottabad as Court witnesses in order to further clarify the matter. During the course of investigation the appellant had deposited the alleged embezzled amount of Rs,21,40,291. The prosecution has produced the record coupled with the audit report which confirms the embezzlement committed by the appellant. The appellant has also submitted affidavit during the investigation wherein he also admitted the commission of offence.
All the P. Ws. Are disinterested witnesses having no enmity to falsely implicate the appellant in the present case. The appellant was serving as Professor/Senior Warden of the Hostel in the Education Department in BPS-20, which is a noble profession and for the advancement of not only the education but also for character building of future nation. Counsel for the appellant failed to point out any contradiction or material irregularity etc. In the impugned judgment. The evidence produced by the prosecution is straightforward, confidence-inspiring and corroborated by the documentary evidence coupled with the affidavit furnished by the appellant along with the receipt regarding deposit of embezzled money in the Government exchequer, are sufficient to hold that the prosecution has proved its case beyond any shadow of doubt.
9. It is also an admitted fact that the appellant is serving in the Education Department for the last about 30 years and now he is at the verge of his retirement and due to 03 conviction in the present case he has to lost his pensionary benefits. Keeping in view the status, due to conviction, additional punishment in the shape of depriving appellant from the pensionary benefits are the grounds which, demand reduction of punishment. The wisdom can be drawn from the case of Saeed Zakaria v. The State and another reported as 1972 SCM R 118, wherein it was held as under-- "Criminal misappropriation-,- Sentence-Person convicted and sentenced to imprisonment for 12 months and to a fine of Rs,.5,000 for misappropriating Rs,16,600---Convict in appeal before Supreme court agreeing to repay entire amount misappropriated-supreme Court, w circumstances; modifying sentence by imposing fine of Rs,17,000 and simple imprisonment till rising of Court-Out of ,fine realized Rs,16.600 paid to complainant and Rs, 400 as fine to State".
10. In similar cases of M. Habibuilah v. The State (PLD 1.985 Karachi 680, Muhammad lqbal and another v. The State (1985 PCr.LJ 2774) and Muhammad Akram v. The State (1988 PCr.LJ 392) wherein it is held that after deposit of embezzled amount, the loss to the Government exchequer has been recovered and at the same time government servant has not only lost the service but also the pensionary benefits, due to the said reasons the conviction awarded to the accused were reduced to one till rising of the Court upto six months' R.I.
11. However, in the present case the appellant has deposited the embezzled amount and remained behind the bars for more than four months. On the basis of reasons so rendered the sentence awarded to the appellant requires modification. Hence, by way of modification, the sentence under section 409, P.P.C. To one year's R.I. With a fine of Rs,1,00,000 or in default to further undergo six months' S.I. And under section 5(2) of the Prevention of Corruption Act from two years' R.I. To one year's R I. With a fine of .Rs,50,000 or in default thereof to further undergo six months' S.I. Both the sentences shall run concurrently.
12. In the light of the above, the appeal is partially allowed and conviction and sentence of appellant stands modified accordingly.