' The appellant/accused Syed Khalilur Rehman of Rehman Silk Industries Ltd. Has preferred this Appeal against his conviction by the Sind Labour Court No. III, Karachi, for an offence under section 8(A) of the Industrial Relations Ordinance, 1969, punishable under section 53(1) of the same Ordinance and the sentence of a fine of Rs. 2,000 or in default 3 months' R. I. Imposed upon him.
2. It is, perhaps, unnecessary to set out here the facts giving rise to this matter in any detail as the same appear in full in the impugned Judgment of the Court below. It will suffice to say that the appellant/accused has been convicted under section 8(A) of the Industrial Relations Ordinance, 1969, for discharging from his service the complainant Khan Gul and the other office-bearers of a newly-formed Rehman Silk Industries Workers' Union on coming to know of the formation of this Union. It is the case for the Prosecution that this Union was formed through an application dated 10-6-1976, submitted to the Registrar of Trade Unions on that date. That after formation of the Union, the same was kept secret for fear of victimization for a few days until 15-6-1976 when the complainant sent a telegram to Rehman Silk Industries Ltd., informing them of the formation of this Workers Union and giving them the names of the 5 office-bearers, namely President, General Secretary, Joint Secretary, Propaganda Secretary and the Treasurer. It is further the case of the Prosecution that this telegram was delivered to the Chowkidar of the Mill by a Telegraphic Peon at 7-30 a.m. On 16-6-1976 and that the accused Syed Khalilur Rehman was handed over this telegram at 8-30 a.m., the same morning whereupon he promptly discharged all these office-bearers from his service. Now, it is the case for the accused that no such intimation of the formation of this Workers' Union had been conveyed to or received by him prior to the discharge of the Officers of this Union from his service. In his statement under section 342, Cr. P. C., as well as through his Defence Witnesses, he has given the dates of the discharge of these workers and these are all dates in June 1976 but prior to the 15th June 1976. It is also the case for the Accused that no copy of the application for registration of this Union made to the Registrar, was ever supplied to him, nor had the Registrar informed him of the formation of this Union. Thus, the sole point for determination in appeal this is whether the appellant had knowledge of the formation of this Union before discharging the complainant and his fellow Union Officers from his service on the morning of 16-6- 1976.
3. In considering this sole point for determination in this appeal, I am overwhelmed or shall I say overweighed by the fact that neither the Telegraphic Messenger who carried this telegram of 15-6- 1976 to the Accused's address; nor the Chowkidar who received this telegram had even been cited as witness in this case and of course at no time examined, nor has any receipt for this telegram been produced in evidence; nor the cover of the telegram with the usual endorsement 'Refused'. All that we have on record is Exh. P. 9 produced by Muhammad Haroon P. W. 2, a Town Inspector of Central Telegraph Office indicating that the telegram was refused by the addressee as it did not concern him. This endorsement is dated 17-6-1976, i.e., to say 2 days after the despatch of the telegram and it is not clear from the record as to how this document Exh. P. 9 came into being.
4. In my opinion the crux of the matter in upholding the conviction of this appellant/accused is whether from the record, as it stands, it has been satisfactorily and fully established that this telegram Exh. P/5 was actually received by him in the Factory on the morning of 16-6-1976. As mentioned above, the 2 principal witnesses connected with this telegram and its alleged receipt at the premises of the accused are the Telegraphic Peon or the Messenger who carried the telegram and the accused Chowkidar who received it on behalf of the accused. Neither of these witnesses have been examined or for that matter even shown as Prosecution witnesses. In this state of affairs, a presumption arises under section 114 of the Evidence Act that they have not been examined because they were not prepared to support the Prosecution case. The List of the witnesses filed along with the Complaint shows 7 Prosecution witnesses from which List, only 2 have been examined namely Ghulam Qadir P. W. 1, Labour Officer (West Division), Karachi, and Maroon, the C.
T. D. Town Inspector. In addition to these 2, there is the evidence of Khan Gul the complainant himself. I am not satisfied that the evidence of these 3 prosecution witnesses has satisfactorily established the guilt of this appellant/accused in relation to the offence with which he is charged.
The best evidence that could be led to establish the receipt of this telegram Exh. P/5 by the accused on the morning of 16-6-1976 has not been led, for reasons best known to the prosecution.
With the evidence for the prosecution, then, in this fluid condition I reached the conclusion in Court that the guilt of the appellant/accused has not been fully and satisfactorily established and, therefore, I passed a short order in Court giving him the benefit of the doubt, setting aside his conviction and directing that he be acquitted. The fine, if paid, will be refunded. This judgment contains the reasons for that short order.