1976 P Cr (PLP)

Date of hearing: 16th March 1976. MUSHTAQ ALI QAZI, J.‑The appellants have been convicted by the Special Court, Sind &. Balochistan, Karachi for offences under section 25 of the Telegraph Act and rule 43 of the Defence of Pakistan Rules for having cut the telegraph‑wires and they have been sentenced to R. I. for 3 years and fire of Rs. 2,000 or in default R. I. for six months for offence under section 25 of the Telegraph Act and to R. I. for 3 years for offence under rule 43, D. P. R. The substantive sentences of imprisonment, to run concurrently.

2. It is the case of the prosecution that Gulsher, Technician, at Mirpur Mathelo along with Lineman Mir Muhammad while testing the lines between Mirpur Mathelo and Daharki found the carrier Development Programme Line to be out of order. Mir Muhammad and Bangal Khan were deputed to locate the fault. They informed the technician at about 10-30 a.m that the C. D. P. line between miles 350/24 and 351/2 had been cut. Under directions of Supervisor Allah Dino, F. I. R. was lodged with police at Mirpur Mathelo Police Station the report was registered by A. S, I. Abdul Sattar. The A. S. I. then visited the scene of offence. The wires were sent cut with the ends hanging from top of the poles. These were footprints of two persons at the scene which were shown to tracker Soomar. The investigation was then taken over by S. H. O. Elamidullah Khan. On 22‑2‑1975 at 9‑30 p.m. the S. H. O. arranged nakabanai operations at Musso Bridge two miles from Mirpur Mathelo. At 11 p.m. the throe present appellants were seen coming, each carrying a gunny bag on his shoulder. They were asked to stop but they treed to run away. They were surrounded and caught. The gunny bags were found to contain copper wire of Telegraph Department. On search a plas was found from the coat pocket of appellant Dost Muhammad used for cutting the copper wire. The quantity of wire contained in the three bags was identical with the quantity actually found missing from the police. While in custody the appellants separately led the police and pointed out the place where the wires were stored after cutting and then taken out. They also pointed out poles 350/24 and 351/2 from where the wires had teen cut on the Mirplur Mathelo Daharki railway line. These wires were shown to the Telegraph Supervisor who gave his certificate that they were of the special gauge and contained the loops used in the Telegraph Department and such wires were not available in the open market. The appellants were then sent up in Court for offences under section 25 of the Telegraph Act, rule 43 of the D. P. R. and also 379/411, P. P. C. 'the Special Court, however, took cognizance of only the scheduled offences under the Telegraph Act and the D. P. R. The accused were found guilty and they were convicted and sentenced as above.

3. Mr. Nooruddin Sarki on behalf of the appellants was hardly disputed the facts appearing in evidence against the appellants. The learned Advocate has first argued that an offence under section 25, Telegraph Act is not made out on the facts which have been established, because the intention to commit mischief has not been proved. A man is, however, presumed to have intended the natural consequences of his act. In this case the Telegraph wires had been cut from the poles and the persons responsible for it must be presumed to have intended to impede the working of the telegraph lines as the natural consequences.

4. It has then been argued by Mr. Nooruddin Sarki that the wire cutting instrument was recovered on search from the coat pocket of only ire of the appellants, namely, Dost Muhammad. The presumption under section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 cannot, therefore, arise against the other two appellants. Under this section here any person accused of having committed a scheduled offence is found be in possession of, or to have under his control, any article or thing rich is capable of being used for, or in connection with, the commission such offence, or is apprehended, in circumstances which tend to raise reasonable suspicion that he has committed such offence be shall be resumed to have committed the offence unless he can prove that he had infact not committed the offence. Thus the burden shifts in such cases on the accused to show that he bad been found in possession of the incriminating article for reasons other than the commission of the said offence. It has been rightly observed by the trial Court that in this case the three ire apprehended while they were proceeding together in one group, carrying the incriminating copper wire and the plas was with cue of the group. The plas was under their control for obvious reasons. That a, presumption would also arise against each of the appellants that they were not the receivers but the persons who actually removed the wire. This removal would also cover the offence of mischief.

5. In the present case the appellants were found in possession of the Telegraph wires of identical gauge and description having the telegraph loops and even the weight of the wires recovered from the three appellants was exactly the quantity found missing oar these poles. The recovery was made shortly after the cutting of the wires after about six days. The conduct of the appellants subsequent to the offence showed that they had knowledge of the place from where the wires were cut and also the place where the wires had been dumped although this factor has not been con sidered its basis for the conviction. The naked footprints of two persons were seen and lantern identified as the footprints of two of the appellants brat even this piece of evidence has been left out by the learned trial Judge. Appellants, however, failed to explain possession of these wires and the wire cutting instrument. They have accordingly beers found guilty of the offences of mischief under section 25 of the Telegraph Act and also of the contravention of rule 43 of the D. P. R. for impeding the working of the Telegraph Lines.

6. The learned Advocate on behalf of the appellants has in the end moved merely for the reduction of the sentence. The instances of cutting of the telegraph wires have, however, been found to be on the increase and since they caused disruption of the communication system, it was considered necessary to amend the Act and prescribe enhanced punishment for these offences. No case has, therefore, been made out for reduction of the sentence of three years.

7. For the reasons discussed above we hardly find any sentence in this appeal which is accordingly dismissed arid the conviction and sentences are maintained. Appeal dismissed. KHUDA BAKHSH MARRI, J. ;‑--I agree.