1986 PLP 2719 (MLD)

The appellants, Muhammad Naeem, Tariq Mahmood, Umar Daraz and Khalid Mir were tried by the learned Special Judge (Central), Lahore, for the offences punishable under sections 17, 18 and 22 of the Emigration Ordinance, 1979.

2. The learned trial Judge vide his judgment, dated 4‑5‑1983 convicted Muhammad Naeem, Tariq Mahmood and Umar Daraz under section 17(1) of the Emigration Ordinance, 1979 and sentenced each of them to two years R.I. Khalid Mir appellant was convicted under section, 17(2) ibid and sentenced to three years, R.I.

3. Muhammad Naeem, Tariq Mahmood and Umar Daraz have challenged their conviction and sentence through Criminal Appeal No.195 of 1983 while Khalid Mir appellant has impugned his conviction and sentence through Criminal Appeal No.198 of 1983. Both these appeals shall be disposed of by this judgment.

3. The prosecution case, briefly stated, is that Akhtar Zaman Inspector F.I.A. (P.W.8) received secret information that Muhammad Naeem and Tariq Mahmood were being sent abroad on the authority of forged British passports by Khalid Mir. Consequently, the Emigration staff of F.I. A. at Lahore Airport was directed to check all the British passport holders. In this manner, the F.I.A. Emigration staff was able to apprehend Muhammad Naeem, Tariq Mahmood and Umar Daraz appellants at the Lahore Airport while they were attempting to depart on the authority of forged British passports, viz. Exhs. P.W.1/2, P.W.1/1 and P.W.1/3 respectively. These passports were taken into F.I.A. custody vide memo. Exh. P.W.1/7. During the course of investigation, it transpired that in fact the forged British passports were provided to Muhammad Naeem. Tariq Mahmood and Umar Daraz by Khalid Mir who charged Rs.14,000 each for providing these passports. Khalid Mir while in police custody led to the recovery of torn pieces of British passports, Exh. P.W.2/1 from Miani Sahib graveyard vide recovery memo. Exh.P.W.2/2.

4. P.W.1 Shaukat Ali A.S.I. (Passport Cell) F.I.A" Lahore P.W.2 Hamid Ahmad Durrani, a travel agent, P.W.3 Tasaruf Hussain S.I.. F. I. A. Lahore, P.W.4 Kishwar Kiyani, Examiner of Questioned documents, P.W.5 Asim Butt A.S.I. F.I.A. Lahore, P.W.6 Jafar Hussain Inspector F.I. A. Lahore, P.W.7 Mustafa Kamal Pasha, another travel agent and P. W.8 Akhtar Saman Inspector F.I.A. Islamabad testified at the trial as prosecution witnesses. P.W.1 Shaukat Ali A.S.I., P.W.3 Tasaruff Hussain S.I. and P.W.8 Akhtar Zaman Inspector deposed about the recovery of forged British passports from Muhammad Naseem, Tariq Mahmood and Umar Daraz on the night between 21/22‑12‑82 at the Lahore Airport while they were trying to leave Lahore by P.I.A. flight PK‑

231. According to these witnesses, forged British passports P.W.1/1 to P.W 1/3 together with P.I.A. tickets P.W.1/4 to P.W.1/6 were secured by Akhtar Zaman Inspector vide memo. EXh.P.W.l/7. Tasaruf Hussain and Akhtar Zaman have also stated about the alleged recovery of pieces of passports and a stamp at the instance of Khalid Mir from Miani Sahib graveyard vide recovery memo. Exh.P.W.2/2. Hamid Ahmad Khan Durrani disclosed that British passports P. W.1/1 to P.W.1/3 were brought by Mustafa Kamal Pasha, another person, to this witness to get air tickets. The witness, however, stated that the person who had come with Kamal Pasha was not present in Court at the time of recording of the testimonies of this witness. In this manner he did not identify Khalid Mir as the person who allegedly accompanied Mustafa Karial Pasha for getting tickets on the basis for forged British passports. This witness however, was subjected to cross‑examination by learned Public Prosecutor but nothing useful from the prosecution point of view could be elicited from him. Mustafa Kamal Pasha P.W.7 however, stated that Khalid Mir had come to him to obtain tickets for Brussele and that he got arranged the tickets through Hamid Ahmad Khan of Alamgir Travels. This witness stated that he had not seen the passports. Exhs. P. W.1 to P. W.1/3 at that time. Kishwar Kiyani examiner of questioned documents opined that signatures on the forged passports were of Muhammad Naeem, Tariq Mahmood and Umar Daraz.

5. Khalid 'Mir did .not plead guilty to the charge. He denied of having supplied the passports in question as also the P.I.A. tickets to Muhammad Naeem, Tariq Matimood and Umar Daraz. The recovery of passport and the seal at his instance has also been denied by him.

6. The other three appellants, namely, Muhammad Naeem, Tariq Mahmood and Umar Daraz admitted the recovery of forged British passports from their custody at the Emigration counter at the Lahore Airport on the night between 21/22‑12‑1982. They pleaded that innocently obtained these passports from Khalid Mir to whom they paid Rs.14,000 each and that thus they have been by Khalid Mir.

7. One Muhammad Naeem son of M. Khalid has been examined as D.W.1 in defence by Muhammad Naeem, Tariq Mahmood and Umar Daraz appellants. This witness disclosed that Khalid Mir had sent several persons abroad and this witness and his' friend Qadir introduced Muhammad Naeem, Tariq Mahmood and Umar Daraz to Khalid Mir who was paid Rs.14,000 each by them for sending them abroad.

8. So far as the offence punishable under section 18 of the Emigration ordinance, 1979 is concerned, the prosecution has failed to produce any evidence to prove that the passports had been forged by Khalid` Mir or by other appellants. The torn pieces of British passports alleged to have been recovered at the instances of Khalid Mir were, perhaps, sought to be utilised to prove the forgery on the ground of similarity. It may be observed in this that no evidence about the similarity has been produced. Recovery itself is highly doubtful. Besides the official of the F. I. A., no independent witness has been examined to prove the alleged recovery. Tasaruf Hussain S.I. and Akhtar Zaman Inspector who have been produced as recovery witnesses could not tell as to at what time this effected. They have contradicted each other about the route. which they adopted while going to Miani Sahib graveyard to make the recovery. They have also contradicted each other in respect of many other details. In this manner, no offence punishable under section 18 of the Emigration Ordinance, 1979 against Khalid Mir could be established.

9. So far as the allegation that Khalid Mir supplied forged British passports to the other co‑accused by charging them Rs.14,000 each is concerned, no independent evidence has been produced by the prosecution to substantiate this allegation. Muhammad Naeem, Tariq Mahmood and Umar Daraz appellants have only stated they obtained the forged passports from Khalid Mir after paying him Rs.14.000 each. They being co‑accused are accomplices, their statements are of no value and cannot be utilized against Khalid Mir. Thus, the offence punishable under section 22 of the Emigration Ordinance, 1979 has also not been established against him. The learned trial Judge has convicted Khalid Mir under section 17(2) of the Emigration Ordinance by holding that he arranged tickets EXhS.P.W.l/4 to P.W.1/6 for Muhammad Naeem, Tariq Mahmood and Umar Daraz although he was not a licensed promoter and thus could not assist a person td emigrate. As already observed, Hamid Ahmad Khan Durrani who allegedly issued the tickets recovered from Muhammad Naeem, Tariq Mahmood and Umar Daraz at the time of the raid has been able to identify. Khalid Mir as the person who obtained the said tickets from him. In the light of the testimony of Hamid Ahmad Khan Durrani the allegation that Khalid Mir unauthorizedly promoted the departure of Muhammad Naeem, etc. out of Pakistan is also not proved. The conviction of Khalid Mir, in the circumstances, under sections 17(2) of the Emigration Ordinance, 1979 cannot be upheld.

10. As regards Muhammad Naeem, Tariq Mahmood and Umar Daraz they have admitted that forged British passports were recovered from them when they were attempting to leave Lahore by P.I.A. flight No.PK‑

231. Their contention, however, is that they have been duped in this behalf by Khalid Mir as they innocently paid Rs.14,000 each to his and obtained these passports from him. They were not possessed of the knowledge that these passports were forged ones, In this manner, their plea is that they had no guilty intention.

11. We cannot lose sight of the 'fact that three appellants are simpletons and suffered from the desire of going abroad for which they paid huge amount anal obtained passports. During the trial they have remained behind the bar for 11 months. After their conviction they have also remained in jail for about three months before their sentence was suspended by this Court. They have thus already suffered detention in jail for a period of over four months each.

12. From the evidence on the record the circumstances which is proved against Muhammad Naeem, Tariq Mahmood and Umar Daraz is that they were in possession of forged British passports when they were apprehended at the Lahore Airport while leaving through P.I.A., flight No.PK‑

231. There is nothing on the record as to who forged~ these passports. They are thus only liable for using forged passports. This act at the most falls within the mischief of section 471, P.P.C., for which these three appellants should have been tried by an ordinary criminal Court. By virtue of section 24 of the Emigration Ordinance, 1979, a special Court has the jurisdiction to try an offence punishable under the Emigration Ordinance, 1979. The conviction of these three appellants has been recorded under section 17(1) of the said Ordinance. The said provisions make emigration or departure or attempt to emigrate or depart in violation of the provisions of Emigration Ordinance, punishable with imprisonment for a term which may extend to five years or with fine or with both. The expressions "Depart" and also "Emigration" have been defined in section 2(d) 'and (h) ibid. According to the said definition "Depart" and "Departure" means the departure out of Pakistan of any person of employment or self employment by any means. Similarly, "Emigrate" and "Emigration" means the departure by sea, air or land out of Pakistan for the purpose, or with the intention, of working for hire or engaging in any trade, profession or calling in any country beyond the 'limits of Pakistan. There is nothing on the record of this case to suggest by any, stretch of imagination that Muhammad Naeem, Tariq Mahmood and Umar Daraz intended to depart or emigrate out of Pakistan of employment or for working on hire, for engaging in any trade, profession or calling in a country beyond the limits of Pakistan. In these circumstances, the; attempted departure or emigration on the part of Muhammad Naeem, Tariq Mahmood and Umar Daraz does not fall within the ambit of the Emigration Ordinance. Hence they could not be tried by the learned Special Judge (Central) and convicted under section 17,(1) of Emigrations Ordinance, 1979.

13. The upshot of what has been held above is that the conviction of the appellants under sections 17(1) and 17(2) of the Emigration Ordinance, 1979 cannot be upheld. Their appeals are, therefore, allowed and their conviction and sentence are set aside. Khalid Mir appellant is still in jail. He shall be released forthwith if not required to be detained in any other case. Muhammad Naeem, Tariq Mahmood and Umar Daraz who are already on bail shall stand discharged from their bail bonds.

14. P.I.A. tickets which were allegedly recovered from Muhammad Naeem, Tariq Mahmood and Umar Daraz at the time of their apprehension and are admittedly genuine ones shall be returned to them while the forged British passports Exhs. P.W.1/1 to P.W.1/3 shall be destroyed. S. G. D. Appeal allowed. 1986 M L D 2724 [Lahore] Before Sardar Muhammad Dogar, J ABID JAVAID and another ‑‑Petitioners versus THE STATE‑‑Respondent Criminal Miscellaneous No.1719,‑B of 1985, decided on 5th October, 1985. ‑‑‑S.498‑‑Penal Code (XLV of 1860), S. 307/264/325/326/452/109/148/ 149‑‑Bail before arrest, grant of‑‑Alleged abductee released by accused on the very day of occurrence within an hour or so and such abductee not supporting F.I.R. nor same found to be true on more than one aspects by a gazetted Police Officer‑‑Possibility that petitioner was involved due to enmity, also not ruled out‑‑Petitioners allowed bail, in circumstances. Sh. Rafiq Ahmad Bajwa for Petitioners. Mian Abdul .Qayyum Anjum for the State: Ch. Muhammad Tufail Basra for the Complainant,. Petitioners seek anticipatory bail in case F. I. R. No. 158 registered at Police Station Naushehra Virkarr, District Gujranwala, on 22‑6‑1985, under section 264/307/325/326/452/109/148/149, P.P. C. , on the statement of Muhammad Yusaf son of Abdul Latif.

2. According to the complainant, on 22‑6‑1985, at 11/12 a.m., when he was present in his saw mill alongwith his brother Muhammad Ahmad and servant Rehmat Ali. Khalid Javed son of Muhammad Ghaus, came in a car alongwith five others. The complainant came out, on his call. Javed told him that they will teach them a lesson for moving no‑confidence motion. The complainant went back and narrated the incident to, his brother Muhammad Ahmad. In the meantime, Khalid drove the car and stopped at a distance of about 100 yards, where some armed persons were present in a trolly attached with a tractor. They also joined Khalid and his companions. On their query they were told that Hafiz Muhammad Ahmad was, in. All of them entered the premises of saw mill and started beating Muhammad Ahmad. Abbi son of Ghaus, gave a Kulhari blow on his left leg. Nasrullah gave a Kulhari blow on the right leg from its blunt side, Saifullah gave a Sota blow on his head ‑‑‑‑ Muhammad Ahmad fell down. Whereafter, Parvez gave a butt blow with his gun, which struck the eye, Muhammad Asghar, Muhammad Rafiq, Siddique, Yusaf son of Siddique, Shafqat, Nasrullah son of Muhammad Khan, armed with Sotas, Yusaf son of Haider, Azam and Faqir Muhammad, armed with Dangs, caused him injuries with their respective weapons. Muhammad Mansha fired a pistol shot. Muhammad Yusaf son of Allah Ditta was armed with a gun. The accused armed with Sotas were causing injuries, the accused armed with fire‑arms continued firing, saying that if anybody came near them, they would kill him. Motive for the occurrence was that on 3‑6‑1985, Muhammad Ahmad had got moved a no‑confidence motion against Rehmat Ali, Chairman. The other motive was that in a case registered under the Hudood Ordinance, against the accused party, the complainant party was helping the victim (girl), as she belonged to their Beradari. It is also stated in the F.I.R. that after having beaten, Muhammad Ahmad, he was taken away by the accused in the trolly.

3. Learned counsel for 'the petitioner contended: (a) That the petitioners have been involved falsely ; (b) that the statement of the abductee which was recorded on 2‑7‑1985 is contradictory on many points with the F . I . R . ; (c) that the petitioners are innocent. They have been involved because of party faction and political rivalry, and (d) that in case the petitioners are arrested, they will suffer, an irremediable loss.

4. Learned counsel for the State /complainant have opposed the grant of bail.

5. The undisputed facts, between the parties, are:‑‑ (i) that during investigation by the D.S.P., Khalid Javed, Parvez, Yusuf son of Siddique, Yusuf son of Haider, Rehmat Ali Nasrullah, Shafqat, Riaz, Faqir Muhammad and Mansha petitioner were declared innocent; (ii) that Khalid Javed, Parvez, Rehmat, Yusuf son of Siddiq, Yusuf son of Haider, Muhammad Riaz, Shafqat and Nasrullah, have been granted pre‑arrest bail by the Additional Sessions Judge, Gujranwala and no petition for cancellation of bail was either moved by the State or by the complainant; (iii) that Nasrullah son of Ahmad Khan, Azam, Faqir Muhammad and Muhammad Rafiq have been granted bail after arrest by the trial Court; , (iv) that the Investigating Officer came to the conclusion that Munawar, Irshad son of Rehmat, Muhammad Munir, Muhammad Tufail, Abdur Razzaq, Muhammad Afzal another Irshad, Muhammad Nazir and Munir Ahmad son of Ammi (not named in the F.I.R.) had also participated in the occurrence; (v) that Hafiz .Muhammad Ahmad had been let off by the assailants on the same day and he had got himself medically examined from the Medical Officer, Rural Health Centre, Nausheran Virkan, at 12‑45 p.m. on the same day. (vi) that in spite of the orders passed by the Ilaqa Magistrate and the Additional Sessions Judge, for re‑examination of Hafiz Muhammad Ahmad by the Medical Superintendent, he had not submitted himself for re‑examination. In this regard learned counsel for the complainant submitted that the injured had not appeared before the M:S. as second examination could only be conducted by Surgeon General of Punjab; (vii) that Hafiz Muhammad Ahmad in his statement recorded on 2‑7‑1985 had named only Nasrullah son of Ahmad, Saifullah, Abid alias Abbi, Azam and Mansha petitioners as his assailants. In addition he had named one Jagga (not named in F.I.R.). Apart from this he had stated that he would be able to identify the others and that in all 15/16 persons had attacked him; (viii) No identification parade was held. (ix) that Hafiz Muhammad Ahmad, instead of corroborating the F.I.R. about the allegation of Abid alias Abbi having caused, injury to him with his hatchet on his leg, he stated that Abid alias Abbi had given injury on his face with the Butt of pistol, while he was being taken in the trolly. About Saifullah, he stated that‑‑‑ he had lifted him and placed him in the trolly. while it is stated in the F.I.R. that Saifullah had caused him an injury on his head at the spot. About the injuries on his legs, he stated that they were caused by Azam while he was being carried in the trolly. In the F.I.R. injuries on the legs have been assigned to Abid alias Abbi and Nasrullah.

6. Learned counsel for the State/ complainant while opposing the grant of bail laid stress against Abid alias Abbi and Saifullah only. In this regard learned counsel for the complainant particularly submitted that both these petitioners have been assigned specific role of having caused injuries in the F .I . R. , as well as in the statement made by Hafiz Muhammad Ahmad. It has been vehemently contended by the learned counsel that the petitioners do not deserve the concession on grant of pre‑arrest bail by any standard.

7. The facts noted above apparently support the contention of the learned counsel for the petitioners that the complainant, had other considerations in view, that the actual reporting of the occurrence. I have recorded this observation on the basis, that the F.I.R. was neither corroborated by the abductee (the star witness) nor was found to be true on more than one aspects, by the D.S.P., who had investigated the case. Out of the five petitioners before this Court, three have not been named by Muhammad Ahmad, in his statement. Yet the other thing which strikes most important is that Muhammad Ahmad injured was released by the accused on the day of occurrence within an hour or so. His statement was not recorded till 2‑7‑1985, i.e. about ten days after the occurrence, and even in that statement he did not support the F.I.R. either in the matter of naming the assailants or in the matter of the assailants (including the petitioners) having been assigned roles, in the narration given in the F.I.R. The investigation from the very beginning was conducted by a senior Police Officer i.e. D.S.P. I am abstaining from recording any adverse inference on non‑subjection of Muhammad Ahmad for re‑examination by the Medical Superintendent, in spite of orders of the Ilaqa Magistrate and the Additional Sessions Judge, however, I would like to note that the objection raised by the learned counsel for the complainant, is, without any basis because there is no such law that second examination can only be conducted by Surgeon General Punjab. there may be some letter by the Health Department but that cannot be termed as law. The Courts are competent in directing re‑examination of injured by any competent senior doctor.

8. The facts noted above and the contentions raised by the learned counsel for the petitioners tentatively makes out a case that the petitioners might have been involved due to enmity. As such, I feel that a case for confirmation of interim pre‑arrest bail, granted by this court vide order, dated 15‑7‑1985. is made out. The interim pre‑arrest bail is therefore, confirmed, subject to the order that the petitioners shall file fresh bail bonds in the sum of Rs.20,000 each, with one surety each, in the like amount to the satisfaction of Assistant Commissioner, Gujranwala. S.G.D. Bail confirmed. 1986 M L D 2727 [Lahore] Before Muhammad Munir Khan, J ABDUL RASHID‑‑Appellant versus AUSA SHEEDATHE STATE‑‑Respondent Criminal Appeal No.324 of 1984, decided on 1st July, 1985. West Pakistan Arms Ordinance (XX of 1965)‑‑ ‑‑‑S.13‑‑Evidence, appreciation of‑‑Benefit of doubt‑‑Accused allegedly got Churi, recovered ‑from a house jointly occupied by him as well as by his father‑‑Solitary witness to recovery of Churl closely related to deceased and no independent witness of locality joined to witness such recovery‑‑Prosecution failed to prove its case beyond reasonable doubt‑ Conviction and sentence set aside, in circumstances. Ijaz Hussain Batalvi, for Appellant. Rafi Siddique for Respondent. This criminal appeal arises from the judgment of the learned Additional Sessions Judge, Kasur whereby he on 6‑6‑1984 convicted Abdur Rashid appellant under section 13 of the Arms Ordinance, 1965 and sentenced him to six months' R.I. and a fine of Rs.1,000 in default thereof one month's R.I.

2. The charge against the appellant was that he was found in possession of unlicensed Churi P.1 which he got recovered from his house on 8‑2‑1980. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution produced Maqbool P.W.4 and LAI Din A.S.I. P.W.2 who stated that the appellant had led to the recovery of Churi P.1 from his house.

4. The‑learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubt; that Maqbool P. W. is related to the deceased in the main case and that no independent person of the locality was joined in the investigation. Conversely the learned counsel for the State has supported the judgment of the trial Court.

5. I have considered the submissions made by the learned counsel for the parties with care. I find that Churi P.1 was recovered from a house which was jointly occupied by the appellant and his father namely Jan Muhammad and as such it cannot be said that Churi P.1 was in the exclusive possession of the appellant. There were two attesting witnesses of the recovery of memo, one was produced and the other was given up and the witness who has been produced is closely related to the deceased. No independent witness 'of the locality was joined to witness the recovery of Churi P.1 from the appellant. For all these reasons I am of the view that the prosecution has failed to prove its case beyond reasonable doubt.'' For what has been said above, while giving the benefit of doubt to the appellant, he is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case. S. G. D. Appeal accepted. 1986 M L D 2728 [Karachi] Before Abdul Qadeer Chaudhry, Actg. C J Syed MUHAMMAD ABBAS ZAIDI‑‑ Appellant versus THE STATE‑-Respondent Criminal Appeals Nos.105 and 107 of 1984, decided on 24th September, 1986. ‑‑‑S.409‑‑Prevention of Corruption Act (II of 1947), S. (2)‑‑Evidence, appreciation of‑‑Every word of prosecution story contradicted by itself‑‑ Solitary statement of prosecution witness about payment of illegal gratification not supported by any evidence nor such amount secured from accused‑‑Conviction and sentence set aside, in circumstances. Muhammad Hayat Junejo and Muhammad Asghar Khan for Appellant. Abdul Waheed Siddiqui for the State. Dates of hearing: 9th, 10th and 14th September, 1986. This judgment would dispose of the two appeals filed by the appellants against the conviction recorded against them by the learned Special Judge, Anti‑Corruption, whereby he convicted the appellants under section 409/34, P.P.C. read' with section 5(2) of Prevention of Corruption Act, 1947 and sentenced each of the appellants to suffer R.I. for six months arid to pay a fine of Rs.5,000 or in default of payment of fine to undergo R.I. for three months.

2. The facts in brief are that P.W. Haji Muhammad Saleem had made an application against the appellants on the allegation that they had received As.12,500 on the ‑pretext of supplying the fodder for birds/cattle. The report was recorded on behalf of the Anti‑Corruption Department on the report of Ghulam Mustafa Khan, Director Anti Corruption Establishment wherein he has stated that during the course of inquiry it transpired that on 28‑12‑1978 appellant Abdul Jabbar, Storekeeper, Livestock Experiment Station (Department of Animal Husbandry) Korangi in collusion with one Haji Muhammad Salim on the authority of Dr. Zaidi Incharge Livestock Experiment Station took delivery of 500 bags. of Wheat Soya Dry Mix (WSDM) containing weight 50 lbs. of each bag from UNICEF stores for livestock consumption, but instead of bringing the stock in the Experiment Station Korangi at his store disloaded the trucks in Sind Feed and Allied Products and sold it to proprietor Muhammad Anwar of Sind Feed at a consideration of Rs.50 per bag. The management found the stock unfit for poultry consumption and after consuming 203 bags, returned 297 bags to Muhammad Saleem who had conducted the transaction on behalf of appellant Abdul Jabbar and brought 297 bags to Livestock Experiment Station on or about 12‑1‑1979. The stuff was donated by UNICEF to Director Animal Husbandry Sind free of cost. This report was lodged on 13‑2‑1979 on behalf of the State by Ghulam Mustafa Khan. On 17‑1‑1979 P.W. Haji Muhammad Saleem made a complaint (Exh.3) addressed to Superintendent Anti‑Corruption, Karachi and on the basis of this complaint investigation started.

3. At the trial the prosecution examined 11 witnesses. P.W.1 Haji Muhammad Saleem in his deposition has stated that he used to purchase milk powder from Mr. Zaidi, who was Director Milk Plant. He had milk powder available with him and that he should purchase it. The appellant showed him the sample and the rate was settled at Rs.25 per bag containing 50 lbs. He purchased 500 bags of milk powder from the accused. On 26‑12‑1978 he gave Rs.5,000 to accused Zaidi in his office and on 27‑12‑1978 as per direction of Mr. Zaidi gave remaining amount of Rs.7,500 to co‑accused Jabbar who was working as cashier under him. He showed the sample to Muhammad Anwar owner of Sind Feed and sold him the milk at the rate of Rs.50 per bag. Accused Abdul Jabbar gave him 500 bags from the store. P.W.2 Abdul Shakoor was incharge of godown and he has deposed that Abdul Jabbar came with Saleem and lifted WSDM on the basis of letter of authority Exh.6. P.W.3 Muhammad Aslam was Veterinary Officer. He has deposed that on 28‑12‑1978 he was incharge of Livestock Experiment as Mr. Zaidi was on leave. Accused Abdul Jabbar brought a letter addressed to Messrs Swabi Goods Transport Company. The letter was in connection with the acceptance ct the quotations for lifting the goods from UNICEF and he had signed the letter and put the date as 28‑12‑1978 at the instance of accused Abdul Jabbar. P.W.4 Qadir Bux was the peon and he has deposed that accused Jabbar and Saleem in January, 1979 brought a truck loaded containing 298 bags. He issued the receipt Exh.13 but the date was put on the receipt as 28‑12‑1978 at the instance of Abdul Jabbar. P.W.5 Nazir Ahmad Butt has deposed that Zaidi demanded a quotation for lifting 600 bags from Gul Bai godown situated at Mauripur and to be taken to Korangi. He has stated that he had not lifted the goods but he had issued a receipt of 500 bags and the date was mentioned as 28‑12‑1978. He antidated the receipt at the instance of accused Abdul Jabbar and Saleem. According to him he found two trucks loaded with the goods. P.W.6 Jan Muhammad supplied 500 bags to Abdul Jabbar who was an employee of UNICEF. P. W.7 Abdul Karim is broker who arranged the deal between Saleem and Anwar. P. W.8 Abdul Salam is Assistant in the office of Livestock Experiment Station Korangi. He has deposed that letter Exh.11 accepting the tender of Swabi Goods was despatched on 28‑12‑1978. He produced entry with regard to the letter in the despatch register. The above letter was addressed to Swabi Goods and the date of despatch was shown in the register as 28‑12‑1978. The above letter was given to him by Abdul Jabbar who told him to show the date of despatch as 28‑12‑1978. P.W.9 Muhammad Anwar had purchased 500 bags from Saleem through A. Karim and transported through Qalandar Bux, in two trucks. P.W.10 Mazhar Ahmad is a formal witness and P.W.11 Ghulam Mustafa is the Investigating Officer. The trial Court accepted the prosecution version and convicted and sentenced the appellants as stated above.

4. The case against appellant Zaidi is based on the statement of P.W. Saleem who has stated that he had made payment of Rs.5,000 to him. P.W.5 Nazir has only stated that the accused had asked him to give the quotation for lifting the goods. According to him the appellant was on leave on that day and it is also clear from the statement of P.W.2 Muhammad Aslam and the relevant record. The case of Muhammad Saleem in the beginning was that he had purchased the WSDM but at the trial he turned somersault and stated that the transaction was between him and appellant Zaidi for the purchase of milk powder. This stand was tak3n in view of the fact that WSDM could not be sold by the accused persons as it was supplied by the UNICEF free of cost and, therefore, it was not a purchasable commodity. In his cross -examination he has admitted that he met accused Zaidi for the first time on 26‑12‑1976 which belies his statement that he knew the accused from the year 1975. Additionally if there was a fair deal then there must have been some quotations or tender because every transaction with the Government has to be done through certain procedure but there is no documentary evidence on the record that the appellant had agreed to sell milk powder to P.W. Saleem. Thus, there is only oral statement of P.W. Saleem that he had made payment of Rs.5,000 to appellant Zaidi. If it was illegal gratification then this witness has himself committed a crime as he had offered bribe to a Government official. Though the statement of an accomplice can be considered in evidence and conviction can be recorded on the sole testimony of an accomplice but it is a rule of prudence as required under section 114(b) of the Evidence Act, that the statement of an accomplice must be corroborated by some independent evidence. It appears that P.Ws. Anwar and Saleem and the appellants formed a gang and there is also force in the observation of the learned trial Judge that if the amount of 298 bags had been returned to Muhammad Saleem then he would not have lodged the complaint but in spite of these facts the accused cannot be acquitted on presumptions. It is cardinal principle of criminal jurisprudence that there should not be missing links in the chain of. facts. In the instant case the solitary statement of P.W. Saleem about the payment of illegal gratification is not supported by any evidence. Amount had not been secured and the accused have denied the payment of Rs.12,

500. It is stated that Rs.5,000 have been paid in presence of Shahabuddin and Rs.7,500 had been paid at the instance of the appellant Abdul Jabbar in presence of Abdul Sattar and Ikram but these witnesses have not been examined by the Investigating Officer, therefore, there is nothing on the record to substantiate the prosecution allegation that illegal gratification has been accepted by the two appellants. P.W. Saleem is also a previous convict. Though the statement of such a witness cannot be ruled out of consideration if it inspires confidence but the fact that he was dealing in illegal transaction makes his statement doubtful that he had given Rs.5,000 to Zaidi and Rs.7,500 to accused Jabbar, in absence of non‑examination of the witnesses in whose presence illegal gratification had allegedly been made. P.W. Saleem has stated that he had not gone through the contents of the F.I.R. In fact every word of the prosecution story is contradicted by itself. As such the case against appellant Zaidi has not been established beyond all reasonable doubt.

5. As regards accused Abdul Jabbar it is an admitted fact that he has taken the delivery of 500 bags but his plea is that he had entrusted the goods to Messrs Swabi Goods and Mr. Butt P. W.5 was admitted that he had passed a ,receipt of 500 bags and it is, dated 28‑12‑1978. He has antidated this receipt at the instance of Abdul Jabbar in spite of the fact that he had not transported the goods. He has admitted that when he went to the godown he found that two trucks had already been loaded. If he had not loaded the goods then why he had issued the receipt. Learned trial Judge has not taken into consideration the defence of appellant Jabbar in juxtaposition with the prosecution evidence. There is on record the report of Abdul Jabbar, dated 30‑12‑1979 wherein he has stated that he had taken delivery of 500 bags of WSDM from UNICEF stores on 28‑12‑1979. The delivery was handed over to Messrs Swabi Goods through Mr. Saleem, Commission Agent but only 298 bags were received by Qadir Bux Storekeeper on 28‑12‑1978 and 202 bags had not been transported so far.. Then another report was given by the appellant which states that he contacted Mr. Butt and he informed him that the goods will be supplied within few days. Then there is another note, dated 13‑1‑1979 which shows that appellant Jabbar contacted Messrs Swabi Goods Company and they were informed that if the goods were not returned immediately report will be lodged with the police. On 8‑1‑1979 they paid Rs.7,500 as security with a promise to return the goods within two or three days. It is, therefore, contended on behalf of the appellants that as the report was being lodged by the accused persons, therefore, as a counterblast the report has been lodged by Saleem. Rs.7,500 are still lying with the Department. Thus, apart from the fact that Nazir Butt had issued receipt in spite of the fact that he had not received the goods, the plea of the appellant requires consideration. P.W. Qadir Bux had also issued the receipt on 28‑12‑1978 showing that he had received a truck load of 298 bags. P.W.3 Aslam who was officer of appellant Jabbar has also admitted that he has issued the letter on 28‑12‑1978 and the date was mentioned at the instance of Abdul Jabbar but none of these witnesses have given any reason as to why they have obliged Abdul Jabbar. They were not relations of Abdul Jabbar. P.W.3 was officer of Abdul Jabbar and P.W.4 was also not his subordinate. Qalandar Bux and truck driver have not been examined by the police. P.W. Muhammad Anwar had purchased the milk powder without observing the normal procedure for the purchase of such goods from the Government agency. The allegation is about the fodder and not about the milk and, therefore, the P.Ws. have deposed against facts alleged against the appellant. In any case the defence of the appellant has not been considered by the trial Court. The appellant Abdul Jabbar is, therefore, also entitled to the benefit of doubt.

6. In the result the appeal is accepted and the conviction and sentences recorded against the appellants are set aside. The appeals were disposed of by the short order, dated 14‑9‑1986 and the above are reasons for the same. S. G. D. Appeals allowed. 1986 M L D 2732 [Lahore] Before Saad Saood Jan and Akhtar Hasan, JJ PROVINCE OF PUNJAB through Land Acquisition Collector, Faisalabad and others‑‑Appellants versus Ch.UMAR DRAZ KHAN and another‑‑Respondents Regular First Appeal No. 36 of 1980, decided on 24th October, 1983. (a) Land Acquisition Act (I of 1890‑‑ ‑‑‑S.18‑‑Enhancement of compensation‑‑Reference to Court‑‑Application for‑‑Objection on point of limitation‑‑Effect when not taken‑‑Where objection of limitation, in respect of application for making reference to Court had not been taken earlier by Collector, Court, held, could not go into question whether application was barred by limitation. Government of West Pakistan v. Asmat‑un‑Nisa P L D 1983 S C 109 ref. (b) Land Acquisition Act (I of 1894)

‑‑‑Ss.4, 11, 15 & 18‑‑Acquisition of land‑‑Average price‑‑Determination of‑‑Reference to Court‑‑Acquired land although was being used for agricultural purposes, but admittedly had attained urban character in all respect and had become potential building area‑‑Working out average price of such land by Collector on basis of sale of rural agricultural land situated far away from acquired land, held, could hardly furnish reliable guide for determining price of said land‑‑Determination of average price of such land by taking into consideration sale price of contiguous land, as well as urban character of acquired land was justified in circumstances. (c) Land Acquisition Act (I of 1894)‑‑ ‑‑‑Ss. 4 s 18‑‑Acquisition of land‑‑Reference to Court‑‑Dispute over portion of acquired land‑‑Determination of‑‑Acquiring Authority refused to pay price of certain portion of acquired land alleging that same fell under municipal road‑‑No evidence on record about circumstances under which such road was built or whether area covered by road was ever acquired by Municipal Corporation‑‑Acquiring Authority, held, should take dispute in respect of. such portion of acquired land with Municipal Corporation as Notification of acquisition issued by Acquiring Authority covered disputed portion as well. (d) Land Acquisition Act (I of 1894)‑‑ ‑‑Ss.18 & 28‑‑Interest payable on excess amount of compensation‑ Starting date of payment‑‑Interest on excess amount of compensation worked out by Court on reference, held, would be payable from date on which Collector took over possession of acquired land and not from date of acquisition. Zia Mahmood Mirza for Appellants. Syed Zamir Tirmizi for Respondents. JUDGMENT SAAD SAOOD JAN, J.‑‑This regular first appeal arises out of a reference made by the Land Acquisition Collector, Faisalabad to the Court of the Senior Civil Judge, Faisalabad, under section 18 of the Land Acquisition Act.

2. On 21‑3‑1970 a notification was published by the Collector for the acquisition of 5 Acres, 3 Kanals and 18 Marlas of land situated in Square No.52 of Chak No.207/R.B. for the construction of a Microwave Station in Faisalabad. This notification was followed on 28‑5‑1971 by another notification under section 17(4) of the same Act. Subsequently, proceedings for the determination of compensations were initiated. On 28‑4‑1973 the Land Acquisition Collector made his award. He fixed the price of the land at Rs.1,00,000 per Acre. He further allowed a sum of Rs.15,000 per Acre on account of the compulsory nature of the acquisition. The respondents were not satisfied with the amount of compensations assessed by the Collector and they moved the latter for making a reference to the Court under section 18 of the Land Acquisition Act. On 13‑6‑1973 the Collector allowed the application and made the sought for reference.

3. On the pleadings of the parties the learned Senior Civil Judge framed the following issues:‑‑ (1) Whether the reference is within time ? (2) Whether the reference is not maintainable on the ground that the petitioners have not fulfilled the requirements of law ? (3) Whether the reference is bad for non‑joinder of necessary parties? (4) What should be the compensations of the land acquired ? and (5) Relief. . The learned Senior Civil Judge held that the reference was within time. He also decided issues Nos.2 and 3 in favour of the respondents. On issue No. 4 his finding was that the rate of compensations fixed by the Land Acquisition Collector was on the low side. Accordingly, he raised it to Rs.1,15,933 per Acre. He further directed that the respondents should, be given interest at the rate of 8% on the unpaid amount from the date of acquisition. The decision of the learned Senior Civil Judge has been challenged in this appeal.

4. It is contended on behalf of the appellants that the application made by the respondents to the Collector for making reference before the Court was barred by time and as such there was no proper reference to the learned Senior Civil Judge. It is to be noticed that the objection of limitation was not taken by the Collector. Consequently, as ruled by the Supreme Court in Government of West Pakistan v. Asmat‑un‑Nisa PLD 1983 S C 109 the Court could not go into this question. We must, therefore, repel this objection taken on behalf of the appellants.

5. The main question for consideration is whether the learned Senior Civil Judge was right in interfering with the amount of compensation as determined by the Collector. It is to be noticed that the land in dispute was included within the municipal limits of Faisalabad in 1948. A municipal road passes through it. Mohalla Negehbanpura which is spread over two squares adjoins the acquired land. Close to this Mohalla is another locality known as Mohalla Chibban. Mohalla Tariqabad is at a distance of half a square from it. Even around the land in dispute constructions were being made at several places. Thus, although at the time of acquisition the land in dispute was being used for agricultural purposes it had become a potential building area. In coming to this conclusion we are supported by certain admissions made by Aziz Din Qanungo (R.W.1) who was examined by the appellants as their only witness. He stated that the land in dispute was assessed to property‑tax before its acquisition and that it had attained urban character. Respondent No.1 Umar Daraz claimed that he had got a housing plan sanctioned for the land in dispute but he did not support his assertion by any documentary evidence. However, that may be, it will not be fair to treat the land in dispute as just agricultural land.

6. In respect of their respective both sides produced statements of average prices. The one upon which the appellants rely is Exh.R.2. According to this document the average price in the area was Rs.23,702.40 per Acre. But then Aziz Din (R.W.1) who worked out the average price admitted that the mutations which formed the basis o the statement (Exh. R.2) related to areas far away from the acquired land. For obvious reason the average price so worked out can hardly furnish a reliable guide for determining the price of the said land.

7. On the other hand the statement (Exh.A.l) produced by the respondent is based upon sales made in Square No.51 which is contiguous to the land in dispute. These sales took place between 16‑8‑1969 and 15‑4‑1970 which period is fairly near to the date of the notification under section 4 of the Land Acquisition Act. We should therefore, think that these provide a good indication of the prices of land in the area. An examination of these sales indicates that the price of land in Square No.51 varied between Rs.64,000 to Rs.7,90,588.24 per Acre. We have also before us copy of registered. sale‑deed (Exh.A.2) which relates to a sale affecting land in the said square. It was executed in May, 1965. By this deed 5 Marlas of land was sold for Fts.5,

000. This would give a rate of Rs.1,60,000 per acre. It is not contended on behalf of the appellants that the prices of land in the municipal limits of Faisalabad have depreciated since 1965.

8. Considering the price of land in the contiguous square as well as the urban character of the land in dispute we are unable to hold that the learned Senior Civil Judge erred in assessing the compensation at Rs. 1,15,933 per Acre.

9. It was contended on behalf of the appellants that a part of the land acquired which measured one Kanal and 15 Marlas fell under the municipal road and that they should not have been made to pay compensations to the respondents for this area also. It may be mentioned that there is no evidence on record about the circumstances under which this road was built or if the area covered by the road was acquired by the Municipal Corporation. The notification of acquisition covered this area as well. Instead of raising this appeal it would be more appropriate for the appellants to take this, matter with the Municipal Corporation Faisalabad for in the total absence of any evidence no finding can be recorded with regard to the ownership of the area falling under the road.

10. The learned Senior Civil Judge has awarded interest on the excess amount of compensations as worked out by him from the date of acquisition. This is not in accordance with the provisions of section 28 of the Land Acquisition Act which reads as follows. "If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the collector did award as compensation, the award of the Court may direct that the Collector shall pay compound interest on such excess at the rates of eight per annum from the date on which he took possession of the land to the date of payment, of such excess into Court. Accordingly we would direct that the ,interest on the excess amount shall be payable from the date on which the Collector took over possession of the land in dispute till the excess amount is deposited in Court.

11. But for the above modification this appeal is hereby dismissed with costs. H. B. T. Appeal dismissed.