' The appeal captioned above emanates from the decision, dated 2nd March, 1982 passed by the learned Presiding Officer, Punjab Labour Court No, 6, Rawalpindi. Whereby the respondent was directed to be re-instated in service with back benefits.
2. The prosecution version is that Mr. Anwar Baig Durban, actually saw the respondent removing a packet of cigarettes from machine No, 5 and when he later left the packing section, he admitted on the enquiry of Anwar Baig that he had removed the packet. The respondent was taken to the gate house by Anwar Baig and at south corridor gate the latter asked the gatemen not to search the respondent. At gate house Iqbal Darban effected the personal search of the respondent but could not recover anything. Thereafter, Anwar Baig effected the search and recovered the packet of cigarettes. The defence version as given by the respondent in his statement made before the enquiry officer is that outside the fitting shop he found a packet of cigarettes which he picked up, whereupon Anwar Baig said "he had been caught", to which the respondent replied that he had not picked up the packet in order to steal it but to remove it from way and ultimately placed the packet at Machine No, 5, that when he proceeded further alongwith two other persons, Anwar Baig said to the respondent that a guest of his was waiting for him at the gate house, that when they reached the gate house no guest was found, that on the asking of Anwar Baig, his search was affected but nothing was recovered from him and that Anwar Baig planted a packet of cigarettes upon him. His version is not plausible. This is not believable that a packet was lying in the way and in order to remove it from there the respondent had picked it up. Anwar Baig after that remained in the view of the respondent, therefore, the respondent could not have believed him that a guest was waiting for him at the outer gate. The respondent was not employed in the packing section, so act of removing the packet from there constituted theft. As soon as he removed the packet, the offence of theft was completed. The evidence of Anwar Baig, an eye-witness of the theft, was sufficient to prove the guilt. Since the packet was in the pocket of Saluka, so at the gate house it may not have been detected by lqbal. Needless to say that Saluka is worn under the shirt and is not visible. As Anwar Baig had actually seen the respondent putting the packet in the Saluka's pocket so he was in a position to recover it.
3. The story of enmity is palpably false. The respondent said that near the level crossing altercation had taken place between him and Anwar Baig on the rate of milk but the defence witness namely Muhammad Sher said on the contrary that he was sleeping at night and attracted by the loud speaking of the respondent and Anwar Baig went to them. According to the respondent, his altercation took place with Anwar Baig at railway crossing situated adjacent to the factory, meaning that the quarrel took place outside the factory, but statement of Sher Muhammad shows that the incident took place inside the factory. The quarter of Sher Muhammad wherein he was sleeping must be situated inside the factory. The respondent spoke of one other person also who too according to him had intervened but Sher Muhammad does not speak of him. So, the story of enmity is a concoction. Since there was no enmity of the respondent with Anwar Baig, why the latter should have without nothing implicated him in a false case. The other two witnesses, according to their depositions were not present when the respondent had picked up packet of cigarettes either from Machine No, 5 or from the way, therefore, so far as the question of actually stealing the packet is concerned, their deposition is not helpful to the respondent. So far as the recovery of the packet- is concerned, one Muhammad Ashraf, D. W., has not said anything. The evidence of Ghulam Mustafa (D. W. 1) does not show that the packet was planted upon the respondent. He did not say that the packet was already in the hand of Anwar Baig when he had put his hand under the shirt of the respondent. A packet of Capstan cigarettes is not a tiny thing like a pin that it could not be seen in the hand of Anwar Baig before he effected the search. The length of such a packet is about 3" or four inches and breadth is about 2 (1/2) inches. The thickness may be about of an inch. Such an article cannot be concealed under the palm of the hand, unless the person holding it is a juggler. Even a juggler cannot conceal it in the hand but may conceal it in the leave of his shirt. The learned lower Court has laid much stress on this that Iqbal Darban could not recover the packet during the search and that Anwar Baig had taken the respondent to the gate house and had asked the Darban at the south corridor gate not to effect the search of the respondent. The prosecution had to examine the person who had recovered the stolen packet.
Since Iqbal Darban could not recover the stolen article, he was not a relevant witness. Iqbal was a necessary witness for the defence but was not examined. If he had been examined in defence and he had stated that he had searched the pocket of Saluka also, there could have been some scope to say that the recovery by Anwar Baig was doubtful. The witnesses examined by the parties have not said that lqbal had searched the Saluka also. Anwar had effected the search with the permission of the Darban, so it was not illegal. As I have observed in the earlier part of the judgment that as Anwar Baig had seen the respondent putting the packet in the pocket of his Saluka, so he took it out easily. Iqbal did not know if the respondent was wearing a Saluka also he, therefore, might have searched the pockets of the out shirt only. No doubt Anwar Baig had asked the Darban of south corridor gate not to effect the search of the respondent but he in cross- examination explained the reason which is that if search had taken place, then sufficient evidence would not have been available. It was his own way of thinking but it cannot be said that the recovery is false. If packet was to be planted, it could be done at the gate of south corridor gate also. D. Ws. 1 and 3 stated that Anwar Baig had told the respondent that a guest was waiting for him at the gate house but when they reached there no guest was found and instead the respondent was on the asking of Anwar Baig searched. The prosecution witnesses have not accepted this suggestion but even if this version is accepted, it does not create any doubt. The statement of the respondent made before the enquiry officer shows that removing of the packet of cigarettes in the presence of Anwar Baig is an admitted fact. The only difference is that according to Anwar Baig, the packet was removed by the respondent from Machine No, 5 and put it into the pocket of his Saluka, whereas according to the respondent. The latter had picked up the packet from the path and placed it at Machine No,
5. So, the respondent knew that Anwar Baig had seen him removing the packet. So, the purpose of Anwar Baig of taking the respondent to the gate house and telling him wrongly that a guest was waiting for him was that the respondent may not in any manner dispose of the stolen packet by getting time and not that at the gate house a packet be planted upon him. This is noteworthy that Anwar Baig was also a Darban whose duty was to check that no property of the factory be stolen or removed illegally. Since he alone had seen the commission of theft, so considering that his evidence may be taken to be insufficient he wanted that the respondent be searched and the stolen packet recovered at the gate house where many persons are on duty. He was not on duty but he would have been guilty of neglect of duty if he had overlooked the incident of theft of which he was the eye-witness. So, he did his duty and his act was not in any manner mala fide. The learned lower Court did not go deep into the matter and thus fell in error in holding that no recovery of packet was effected and that the packet was planted upon the respondent.
4. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, restore the order of dismissal and dismiss the grievance petition of the respondent.