NAIMATULLAH PHULPOTO, J. Appellant Waqar Ali Awan was tried by learned Judge, Accountability Court, Sukkur, in Reference No.02 of 2016, for offences under Sections 9 and 10 of National Accountability Ordinance, 1999. Trial Court found him guilty and vide judgment dated 09.06.2017, convicted and sentenced the appellant for 14 years R.I and to pay fine of Rs.89,183,430/- (Rupees Eight Crores, Ninety One Lacs Eighty Three Thousand Four Hundred and Thirty Only). In case of failure thereof, fine shall be recovered as arrears of land revenue in terms of Section 33-E of National Accountability Ordinance, 1999.
2. Brief facts of prosecution case/reference are that on receipt of information regarding misappropriation of wheat stock by the officials of Food Department in Sukkur and Larkana Regions, an inquiry was authorized, which was subsequently converted to investigation. It is alleged that appellant was posted as Food Inspector/Incharge at PRC SITE Godown Sukkur at the relevant time. It was found that during the wheat crop 2010-2011 and 2011-2012 misappropriation of 12446 wheat bags was noticed, which caused loss of Rs.37,338,000/- to the public exchequer. According to prosecution case, appellant Waqar Ali Awan misappropriated 28261 wheat bags and caused loss of Rs.89,183,430/- to the Government exchequer thus, committed an offence of corruption and corrupt practices as envisaged under Section 9(a) of NAO, 1999, punishable under Section 10 of the Ordinance. Trial Court framed the charge against the appellant, he pleaded not guilty and claimed to be tried. In order to prove its case, prosecution examined as many as 16 witnesses, who produced relevant record. Thereafter, prosecution side was closed. Trial Court recorded statement of appellant under Section 342, Cr.P.C in which he denied allegations of misappropriation. He examined himself on oath and produced some documents. However, appellant did not plead evidence in defence. Trial Court, after hearing, learned Counsel for the parties and assessment of evidence, convicted and sentenced the appellant as stated above. Appellant challenged his conviction and sentence recorded by learned Accountability Court, Sukkur.
3. Mr. Awan, learned advocate for the appellant candidly conceded that prosecution has proved its case and on the instructions he does not want to press appeal on merits, prayed for reduction of sentence. It is argued that appellant is advance aged person, his health is deteriorating and he is in custody since 09.06.2017. As per jail roll, he has served 12 years one month and seven days including remissions. However his unexpired portion is 01 year 10 months and 23 days. It is submitted that appellant is first offender and he has suffered agony of investigation and trial. In support of his contentions, he has placed reliance on the cases of Abdul Jabber and others v. The Director General, NAB and others (2021 PCr.LJ 1603).
4. Learned Special Prosecutor NAB based on the mitigating circumstances put forward on behalf of the appellant did not agree to a reduction in sentence for the appellant, however when confronted by the court that why based on the particular facts and circumstances of the case the appellants was not entitled to any reduction in their sentence of imprisonment, he had no answer except to submit that the prosecution had proved its; case against the appellant beyond a reasonable doubt and his sentence was in accordance with law.
5. Having gone through the evidence on record and the impugned judgment we are of the view, that the prosecution has proved its case against the appellant beyond a reasonable doubt in respect of the offence for which he was charged based on both oral and documentary evidence and thus the only issue before us is one of sentencing.
6. We note that sentencing is at the discretion of the court and is not a mechanical exercise. It exercising its discretion the court should consider numerous factors such as minimum and maximum sentence which can be imposed on conviction, the role of the accused, the gravity of the offence, in a NAB case the amount of loss caused to the State, whether the accused shows any kind of remorse, whether the accused is capable of reformation, the age of the accused, the health of the accused, his conduct in jail and how long he has already spent in jail etc. In this respect reliance is placed on Muhammad Juman v. State (2018 SCMR 318) which held as under at P322; "Inflicting conviction and imposing sentence is not a mechanical exercise but it is onerous responsibility to inflict, fair, reasonable and adequate sentence, commensurate with gravity and or severity of crime, looking at the motive, attending and or mitigating circumstances that provoked or instigated commission of crime and it involves conscious application of mind. No mathematical formula, standard or yard stick could be prescribed or set out to inflict conviction and sentence, such factors vary from case to case and while undertaking such exercise Court must keep in light provisions contained in Chapters-III and IV of the P.P.C. Unfortunately, no sentencing guidelines is laid down in Pakistan, though Courts have set out certain parameters in many cases as to what is mitigating and or aggravating circumstances that may warrant alteration and or varying in conviction and or sentence within the parameters provided under the charging or penal provision".
7. We find the mitigating factors made out by the appellant do justify a reduction in his sentence keeping in view that NAB was unable to give any cogent reason as to why the 14 years sentence of imprisonment imposed on appellant should be maintained. This is especially so keeping in view the various factors mentioned above which should be taken into account whilst exercising our discretion on sentencing and the mitigating factors put forward by the appellant. For example, in this case the-maximum sentence was 14 years under the NAO, which was awarded and the appellant served more than 12 years. Thus, whilst taking into consideration the arguments/mitigating factors justifying a reduction in Sentence of the appellant, we hereby by exercising our judicial discretion under section 423, Cr.P.C. maintain the conviction of appellant but modify the sentence of the appellant to the time which he has already undergone in custody. The appellant shall be released unless he is not wanted in any other custody case. With regard to the fine, it is made clear that appellant is still liable to pay fine which shall be recovered in the manner laid down in the NAO and appellant shall also be subject to the same disqualifications as imposed in the impugned judgment.
8. However, while relying on case titled "Muhammad Ashraf alias Chaudhry v. The State" (1994 SCMR 667) and while taking into consideration that the Appellant Waqar Ali Awan is an old man with poor health condition, whereas he has already undergone substantial part of sentence recorded by the court, we deem it appropriate to meet the ends of justice to reduce the sentence already inflicted upon the Appellant from fourteen years to already served while maintaining the sentence of fine of Rs.89,183,430/- In the above said terms, conviction is maintained and sentence is reduced to already undergone, however, fine shall be recoverable as arrears of land revenue in terms of Section 33-E of National Accountability Ordinance, 1999.
9. In the view of above, instant appeal is disposed of in the above terms.