1985 PLP 859 (MLD)

Two Criminal Appeals Nos. 52 of 1985 and 54 of 1985 respectively filed by Muhammad Mahmood Mubashir and Nasir Ahmed arose from the same judgment, dated 20-3-1985 whereby the Additional Sessions Judge, Karachi (Mr. Mahboob Ahmed Siddiqui) convicted both the appellants under sections 380/34 and 466/34, P.P.C. and sentenced them to R.I. for four years and fine of Rs.1,000 or in default R.I. for one month, on each count directing the sentences of imprisonment to run concurrent. After hearing the arguments of the learned counsel for the parties. including the learned State Counsel, the appeals were partly allowed by short order, dated 11-7-1985 for reasons to be recorded separately. By the said order both tile appellants were acquitted of the charge under section 466/34, P.P.C and while maintaining their conviction under section 380/34, P.P.C the sentence of imprisonment was reduced to R.I. for nine months, though the sentence of fine awarded to them was left intact. Following are the reasons in support of the short order referred to above. The learned counsel for the appellants did not question the correctness of the appellants' conviction under section 380/34, P.P.C. They confined their arguments only to the charge under section 466/34. P.P.C. They also pleaded for reduction in sentence awarded to the appellants for the offence of theft. As regards the charge of forgeries it was submitted at the bar that there is absolutely no evidence to sustain the conviction for that charge. According to the learned counsel merely the evidence that the alleged forgeries appeared in the file during the intervening period between the date of removal of the file and the date of the return thereof is not enough to provide sole basis for conviction. P.4V. Qtalandar Bu.: (Exh. 6), the Reader of the Labour Court is the only eye-witness in whose presence the file in question was stolen by appellants. He does not speak of any forgeries made in the file muchless that the appellants have made the alleged forgeries. Apart from him the prosecution have examined P.W. Pervaiz Ali (Exh.8), the process server of the said Court. P.W. Muhammad Azam (Exh.12) S.I.P. , P, W. Khalid Ahmed (Exh.16), the Registrar of Labour Appellate Tribunal, P.W. Muhammad Farooq (Exh.19), Presiding Officer of Labour Court. P.W. Jethanand Rathi (Exh.22), C.O.C. of the Labour Court and P.W Mouladad Khan (Exh.23;) documents-expert, none of these witnesses has claimed to have seen the accused appellants making the alleged forgeries. Even the Expert's evidence is not helpful to the prosecution. On close perusal of his evidence, it is found that he has only described the manner in which the alleged forgeries have been made. There is nothing in his evidence to show that the alleged forgeries are in handwriting of any of the appellants or the forgeries made by typing are typed on typing machine either belonged to or found in possession of any of the accused. However, from the evidence of above witnesses it is proved that the alleged forgeries came to be noticed after the file was returned to the Court. May be that accused had made those forgeries. But conviction cannot be based on such surmise. The impression that the appellants can he responsible for the alleged forgeries? is obviously entertained from the evidence that tile said forgeries appeared in the file during the interval when the file was with they accused. The evidence on which such impression is based could be used as a strong corroborative piece of evidence but it cannot be made the sole basis for conviction. In absence of other evidence to show that the forgeries were the act of the accused /appellants, the evidence giving rise to above impression is of no consequence. Accordingly? that the? prosecution have not been able to establish the charge under section, 4116/34, P.P.C. The learned State counsel also shares this view. Therefore, as? above the appellants were acquitted of the said charge. In support of their arguments on the questions of reduction in sentence in? respect of the charge , of theft, the learned? counsel for the appellants have placed reliance on the following authorities: (1)??????? Additional Advocate-General v. Muhammad Bashir Khan P L D1958 Kar. 312. (2)??????? Choohar and 3 others v. the State 1976 P Cr. L J

623. In the first mentioned case the D.B. of this Court held: "As regards the sentence we have no doubt that all three respondents acted in a most reprehensible, manner and deserve to be visited by the maximum punishment of two years rigorous imprisonment provided by section 101 Railway Act but in view of the fact that these cases have, for various reasons, taken an inordinate length of time (nearly six years) to come to a final conclusion we consider that three months' rigorous imprisonment will meet the cases." In the second case of Choohar the learned Single Judge of this Court reduced the sentence of two years and six months to the sentence already undergone by the accused i.e. three months and 25 days keeping in view that the accused have already suffered the agony of protracted trial for about 5 years. In the instant case also the accused/appellants have braved the ordeal of protracted trial for nearly five years with all attendant consequences. Moreover the file which was the subject matter of the theft committed by the accused /appellants has already been returned to the Court. It seems the accused/ appellants were not in any manner , benefited by the theft of the file. Admittedly the appellant Nasir Ahmed filed no appeal against tile decision of tile Labour Court. Therefore, it could not be argued that the alleged forgeries were intended to bring the filing of the appeal within limitation. Similarly the other appellant against whom some strictures were passed by the Labour Court also did not take any steps for expunction of the said strictures. Thus, ,it was utterly foolish on the part of appellants to have removed the Court's file, as the said removal did not serve any purpose of the appellants. Keeping all these factors in view . I am inclined to feel that sentence of four years' imprisonment is excessive. Accordingly as pointed out above it was reduced to R.I. for nine months. S.G.D.???????????? Order accordingly.