1973 P Cr (PLP)

Date of hearing: 15th February 1973. Appellant Anwer Ali Shah, along with two other persons, was committed for trial by the Joint Civil Judge and F. C. M., Nawabshah for offences under sections 463, 471, 448/34, P. P. C,, to the learned Sessions Judge, Nawabshah who by his judgment dated 29-10-1970, acquitted the other two co-accused but convicted and sentenced the appellant to suffer R. I. for one year and to pay a fine of Rs. 1,000, or in default six months' R. J. for offences under section 468, P. P. C. He was further sentenced to suffer R. I. for one year under section 471, P. P. C. and six months' R. I. for offences under section 418, P. P. C. the sentences of imprisonment to run concurrently. He has challenge9 his conviction.

2. The facts briefly are that on 5-8-1967 one Haji Mohammad Yakoob Khan. Development Officer of the lands of one Mst. Sherimati Peopri Bai, lodged an F. I. R. at Daur Police Station, District Nawabshah, alleging that on 4-8-1967 one Jamadar Naqi Khan sent information to him that appellant along with two acquitted accused persons, forcibly opened the lock of the bungalow belonging to Sherimati Popri Bai and occupied the same, claiming to have purchased it from her. The complainant sent Wassu Ram and two other persons to the land to get full particulars who informed him that the appellant has purchased 640 acres of land along with the garden and bungalow, which had already been occupied, for which the appellant had also showed documents for the transfer of the said property in his favour. When contacted Mst. Sherimati Peopri Bai, she directed her Jamadar to file the F. I. R. at Daur Police Station, District Nawabshah. However, during the pendency of the trial proceedings before the learned Sessions Judge, the appellant moved two criminal transfer applications beating Nos. 43/70 and 105/70, but both were dismissed by this Court.

3. The prosecution in support of its case has examined six witnesses, P. W. I Haji Mohammad Yacoob, who is the complainant, stated that Mst. Sherimati Peoprl Bai had landed property about 1127 acres and he works for her. When it was brought to his knowledge that the appellant has claimed to have purchased property he contacted the owner at Karachi but Mst. Sherimati Peopri Bai had denied to have signed any agreement. The sale agreement was shown to her by the complainant, she stated that she could only sign in English and Gurmukhi as she had never studied Sindhi. Not only this, this witness stated that Mst. Sherimati Peopri Bai was seriously ill in July 1967 and she was removed to a nursing home and during the entire month of July 1967, she never visited Nawabshah. This witness was not cross-examined by the appellant. The other two co-accused persons did not claim any interest in the property, All they stated was that they were hired as labourers by the appellant. P. W. 2 Mst. Sherimati Peopri Bai when examined stated that she has about 1127 acres of land and a bungalow at Nawabshah. She produced her passport in Court which bore her signatures in English and denied that she has sold te land and the bungalow to the appellant and that during the month of July 1967, she was ill and had not visited Nawabshah and stated that the signatures on the documents purporting to be hers, was a forgery and denied to have appeared before Mr. Abdul Aziz, an Advocate and Notary Public; a prosecution witness who has attested the sale agreement Exh. 7 and she denied acquaintance with Abdul Hadi, witness of the agreement and Ghulam Rasool petition writer. Notary Public was shown to her by police, but he could not identify her and stated that she was not the lady who had signed the document in his presence. She was not cross- examined. P. W. Aziz Ahmed, Notary Public and Senior Advocate of Nawabshah stated that a woman claiming to be Peopri Bai had been produced before him on 30-7-1967, by Anwer Ali Shah, who was accompanied by Abdul Hai, petition -writer. The petition-writer however, instead of identifying the lady had in his endorsement on the document identified Anwer Ali Shah, the endorsement reads as under:

"Identified through Mr: Abdul Hai, petition-writer, signed, admitted, contents before me. This endorsement is dated 13-7-1967." This witness clearly stated that Mst. Sherimati Peopri Bai was not the woman who was brought before him by the appellant, stating her to be Mst. Ptopri Bai. P. W. 3 Changanmal, is a shopkeeper and a Mashir also. He accompanied the Police where he found the appellant and two other accused persons sitting on cots in a room of the bungalow. He being the Mashir the police arrested the three accused in his presence and recovered two keys from the possession of Anwer Ali Shah which keys fitted the lock of the store and also the iron rod which was used to break the lock along with the sale agreement Exh: 7 produced by the appellant before the police. Hafiz Beg who is the Investigating Officer, also supported the prosecution case.

4. The appellant however, refused to give any statement under section 342, Cr. P. C. before the trial Court and stated that he has made a transfer application before this Court in spite of the opportunity given by the trial Court. The other co-accused Ghulam Abbas and Allah Bux stated that they had been hired by the appellant at Nawabshah to carry his household articles from Nawabshah to Daur as ordinary labourers. They carried, his personal effects to the bungalow of Mst. Peopri Bai. One room was found open and the other locked. The appellant occupied, the house, later on some people came and talked to the appellant 'and brought the police as well. 'I hey claimed no interest in the property. They are only hired labourers. I may observe, however that at the very, outset Mr. Jatai, learned counsel for the appellant has stated that he is not going to challenge the judgment on questions of fact.' All he argued was that the appellant was not given opportunity to defend himself and that the matter may be remanded so that the appellant may be able to cross-examine the witnesses produced before the trial Court. There is sufficient evidence produced by the prosecution proving the offence against the appellant that is why perhaps the matter was not challenged on facts by counsel for the appellant. With regard to submission for remand of the case on behalf of the appellant because no opportunity was given to him to cross-examine the witnesses and produce defence witnesses. I cannot agree with this submission of the counsel, because the appellant, himself refused to answer questions put to him because under section 342, Cr. P. C. as is revealed" from the judgment of the trial Court. He had full opportunity throughout the trial as he was present during the trial to cross-examine the prosecution witnesses but he did not do so at his own risk. He cannot be allowed to raise that objection at this late stage. Over and above, admittedly the appellant's two transfer applications' have been rejected by this Court. Thereafter, it was not open to the appellant as an accused person to refuse to answer questions put to him under section 342, Cr. P. C. This section is provided by the Legislature for the benefit of the accused persons wherein they are given full opportunities to defend themselves and explain the circumstances or deny the allegations, but when an accused person being in full senses having his two transfer applications been dismissed by this Court deliberately forgot his right to produce defence witnesses and cross-examine the prosecution witnesses, he cannot be allowed under the law at this stage to agitate that he was not given any opportunity to defend himself as in this case. It is observed by the learned trial Court that the trial of this case has been protracted through the mechanization of the accused, because the matter was committed for trial on 10-7-1969 and on 2-3-1970, when the case came up for hearing, an application was moved by the appellant for stay of proceedings alleging that a transfer application has been moved before the High Court, the matter was stayed and several adjournments were granted to the appellant until 7-5-1970, when the orders of the Chief Justice were received by the trial Court intimating the dismissal of the appellant's transfer application. The case was again fixed for trial on 9-6-1970. All the witnesses were served but on that date the appellant remained absent. The case was again fixed for 10-7-1970, the appellant did appear and he was sent to custody. The case was fixed for 11-8-1970. In the meanwhile on 23-7.1970, the appellant was released on bail but on the next date of hearing i.e. 11-8-1970, the appellant moved an application with a certificate that he has moved a second transfer application before the High Court. Again the proceedings were stayed, on the next date the appellant remained absent and sent an application with a medical certificate. This medical certificate was treated to be bogus and rejected by the learned trial Court and when the Doctor was called to satisfy the Court with regard to the issuance of the certificate concerning the illness of the appellant, in the meanwhile the second transfer application was dismissed on 17-8-1970. The case was again adjourned to 10-9-1970 but the appellant again remained absent and the surety of the appellant was granted time to produce him on the next date of hearing but again the appellant remained absent in spite of the efforts of the surety to secure him at the same time and he had been sending medical certificates for adjournment as observed by -the learned trial Court, from different places of the country namely, Hyderabad, Sukkur, Quetta and Kalat. Proceedings under sections 87 and 88,; Cr. P. C. were also ordered. However, on 13-10-1970 Dr. Deheri the surety was able to produce the appellant and was taken into custody. When the case again came up on 22-10-1970 another application was moved for stay of proceedings which was and the prosecution evidence was recorded. The appellant neither cross-examined any witness nor led any defence and the learned trial Court was convinced on the evidence produced by the prosecution which is unimpeachable that the offence has been committed and proved by the prosecution against the appellant; therefore, he has convicted him as above.

5. The narration of the above facts became necessary because this matter yeas heard and argued only on the point that he was not given any opportunity to defend himself. But it is quite clear that the appellant was shown over indulgence by the learned trial Court and many adjournments were granted to him on flimsy grounds, I am of the opinion that it cannot be said that no opportunity was given to the appellant to defend himself. I therefore, repel this argument of the counsel for the appellant. It is, apparent that he, has no defence to make in view of overwhelming evidence against him for his dare-devil Way of taking illegal possession of the property of any other person. He went to .the length of preparing forged document Exh. 7, the alleged sale deed but he has also not been able to support his case by the evidence of Notary Public who clearly stated that .the alleged seller of the land Mst. Peopri Bai was never produced before him. I therefore, see no substance in this appeal, and I am also of opinion that no purpose would be served to remand of the case, because there is sufficient evidence on record, the guilt of the appellant has been proved beyond any reasonable doubt by the prosecution.

6. The result is, I see no substance in this appeal which is hereby dismissed. The appellant's bail bonds are cancelled. He may be taken into custody and must serve his sentence Imposed upon him. Appeal dismissed.