Barkat Ali, his son Muhammad Akram, the appellants alongwith Muhammad Tufail were tried by Raja Muhammad Shafiq, Magistrate- Section 30 (Civil Judge 1st Class), Narowal for offences under section 420/468/471/109, P.P.C. Vide judgment, dated 20-12-1989 the appellants were convicted and sentenced as under while Muhammad Tufail was acquitted:-- Under section 420. P.P.C.: 7 years' R.I. Each.
Under section 408, P.P.C.:. 3 years' R.I. Each.
Under section 471, P:P,C.:4 ears' R.I. Each.
At the same time he observed, ---Same punishment (the conviction and sentence mentioned above with respect to bath the appellants) is awarded to at Ali under section 109, P.P.C."
He further recorded the order 'In all they should undergo R.I. For l4 years. All the punishments shall run concurrently i.e. One after the other------..---
2. At the very outset it may be observed that the learned Magistrate perhaps had no idea at all what is meant by concurrent/consecutive sentence. He is advised to have a look at section 35 of the Criminal Procedure Code and to digest the provisions thereof. `Concurrent' refers to the sentences for various offences which are, to run at the same time and 'consecutive' when they are recorded to run one after the other. He wanted to say that all the sentences would run one after the other i.e. The 14 years, but he described the same as 'concurrent'.
3. Not only the incompetency noted above, the learned Magistrate prepared the record of the case so badly that one can make neither head nor tail of major portions of the statements of the witnesses. He should improve upon his command of Urdu language at least so that whatever is recorded makes sense.
4. Mr. Mubashar Raza (P.W.15) was Assistant Commissioner, Pasrur on 1-11-1987. He rece;ved a direction from the Deputy Commissioner, Sialkot, and arranged a raiding party consisting of himself, Malik Abid Hussain, Tehsildar (P.W.12), Muhammad Younas Sub-Inspector (P.W.13) and Nabi Ahmad A.S.I. (P.W.9). Raid was conducted at a place near the graveyard of Qila Kalar Wala where there was an office under the name of 'Hegira Corporation' where Muhammad Akram appellant was present. He was selling fertiliser where a bag was lying on which was written 'Government of Pakistan, Messrs B.H. Corporation'. In the office the documents relating to the corporation also lying.
According to the statement of the Assistant Commissioner after interrogation Akram appellant led to village Chaad on Narowal-Muridke Road, opened a room with his key and got recovered 148 fertiliser bags. He led to another place in village Domala and got recovered 150 bags after opening the premises with his own key. The statement continues that Muhammad Akram appellant made further disclosures that fertiliser was prepared in their factory near T:V. Booster Pasrur, and led to a place near the factory where Sugar-Mill's waste and implements of the factory were lying. He is corroborated by Nabi Ahmad A.S.I., Malik Abid Hussain, Tehsildar and `Muhammad Younas, Sub- Inspector, the Investigator (P.Ws. 9,12 and 13).
5. Giving .The above version in brief complaint was drawn up by Muhammad Younas S.I. (P.W.13) and he sent it to Police Station Oila Kalar Wala where formal F.I.R. (Exh.P.C./1) was registered by Adil Hussain Muharrar A.S.I. (P.W.8). Aft& investigation the appellants and co-accused were challaned to the Court and tried.
Learned counsel for the appellants and the State have been heard. While going through the statements of the witnesses, as already observed, they felt much difficulty in making head or tail of the depositions recorded by the Magistrate. Reading the whole of the statements what one can make out is that Heera Corporation was vending fertilizer bags in the district, the bags were having the caption 'Government of Pakistan, B.H: Corporation'. Perhaps the complaint was received by the Deputy Commissioner and he deputed the Assistant Commissioner to conduct the raid. As noted above, the raid was conducted at the office of the Heera Corporation near the- graveyard of Qila Kalar Wala, Muhammad Akram appellant was present, a bag of fertiliser was lying there, he was questioned by the raiding party including the Assistant Commissioner and he disclosed that their factory was near T.V. Booster at Pasrur and in the factory sugar mill's waste was lying with other implements and from villages Chaad and Domala from the premises under the lock and key of the appellant fertiliser bags were recovered. It is also clear from the statements of the A.C., the Tehsildar and the Investigator that the samples were taken from the bags and sealed but we have no evidence on the record as to where these were kept and sent for analysis. Anyhow Dr. Muhammad Hanif Ch. Of P.C.S.I.R. Laboratories Lahore (P.W.14) was produced to prove the opinion regarding the contents of the samples. As noticed above, the samples taken not having been proved to have been sent to the Laboratories of Dr. Muhammad Hanif Ch. In due course the opinion would be of no avail. Furthermore there is no evidence on the record as to what contents 'fertiliser' should have and what were being represented to be the contents of their (appellants' fertiliser.
There is no evidence what part was played by Barkat p appellant except the disclosures made by his scan Muhammad Akram appellant regarding him. These disclosures cannot take the place of positive proof.
7. The upshot is that so far as Barkat appellant is concerned there is no evidence against him. His appeal is, therefore, accepted and' he stands acquitted. He.Be set at liberty forthwith if not required to be detained in any other case.
8. From the statements of the members of the raiding party as noted above, it is clear that Muhammad Akram appellant was the incharge of the operation of the sale of the so-called fertiliser of Hegira Corporation. Roshan Din (P.W.11,) is a cultivator of the area and told that he went to village Chaad, B purchased 6 bags of Heera Khaad for Rs.660 from Muhammad Akram appellant, when it was applied to the land it proved to be so fake and damaging that the wheat seed did not sprout at all. He also told that Akram appellant did not issue him any receipt. He is an.
Independent, disinterested and straightforward witness and there is no reason to disbelieve him.
Munir Ahmad (P.W.4) seems to have been very active against the sale of the fake fertiliser and even moved the, Ombudsman about the fraud. He also produced documents (Exh.P.1 to P.4) relating to the working of the appellant's business but his statement has been so carelessly recorded that in the final analysis it, does not make any sense or give any definite clue to be utilised against the appellants. He further claims that he had gone to the premises of Akram appellant and Mustafa (who this Mustafa is, there is no indication) where on the assurance of one Rafiq perhaps from Islamabad, he purchased 60 bags of Khaad of Heera Marka for Rs.6,000 which he had paid Rs.6,000 and the amount was never returned to him in spite of his demand. In. Cross-- examination, he also claims to have sent the samples of the fertiliser to Islamabad for analysis but he could not give the name of the office of analysis. Ali Ahmad (P.W.5) is the Security Officer Sugar Mills, Pasrur and Muhammad Altaf (P.W:6) was the Chief Chemist over there. According to their statements the accused had removed the mud of their mills. Muhammad Tufail acquitted accused made statement on Oath (D.W.2) and informed the Court that he had told the A.C. That he had purchased the fertiliser for Rs.6,000 from Barkat and claimed the return of his money. In cross- examination, he told that he had purchased 61 bags from Barkat and Akram appellants. His statement also implicates Akram appellant but his statement as against Barkat cannot take the place of definite proof without any other corroboration.
9. Learned counsel for the appellants contended that no offence under section 468/471, P.P.C. Had been made out. What documents the appellants had forged and who was wronged thereby is neither here nor there. This position was frankly conceded by the learned counsel for the State.
There was 'also no question of the conviction of Barkat appellant under section 109, P.P.C. So far as Akram appellant is concerned the statements of Nabi Ahmad, A.S.I.. Malik Abid Hussain, Tehsildar, Muhammad.Younas S.I. And Mr. Mubashar Raza, Assistant Commissioner (P.Ws. 9, 12, 13 and ,15) clearly show that he was engaged in the selling of fertiliser and he actually sold to Tufail co- accused and Roshan Din (P.W.11): It was so damaging, perhaps having been prepared from the refuse/mud of the sugar mills of P.Ws. 5 and 6, that it, instead of being of any help, damaged the wheat seed of Roshan Din. He has, therefore, been guilty of the offence under section 420, P.P.C. His conviction for the same is upheld.
10. The upshot is that the appeal of Barkat fully succeeds as noted above. The appeal of Muhammad Akram appellant partly succeeds and his conviction under section 468/471, P.P,C. Is set aside. His conviction under section 420, p P.P.C. Is maintained. However, his sentence is reduced to four years' R.I. And a fine of Rs.5,000 or in default thereof one year's R.I. Rs.1,000 out of the fine, if realised, shall be paid to\Roshan Din P.W. As compensation. The appellant would have the benefit of the provisions of section 382-B, Cr.P.C.
11. A copy of the judgment to be placed before my learned brother, Incharge of the District, where; Raja Muhammad Shafiq, Magistrate Section 30 (Civil Judge ist Class) is posted, for appropriate action.