P L D 1955 Sind 40 (PLP)

CONSTANTINE, C. J.

The Public Prosecutor Karachi, Mr. Raymond has filed this Criminal Acquittal Appeal under instructions from the Chief Commissioner, Karachi, against the Judgment of Mr. Piparwala, then the 20th A. C. M. Karachi, acquitting the three respondents of a charge under section 9A read with section 4 of the Opium Act. The prosecution case in brief is that on the 7th November 1952 the Excise Inspector Mr. Sakhi Muhammad obtained informa tion from a spy that the first respondent Qureshi wished to dispose of a large amount of illicit opium. The Inspector arranged that the witness Fazal Hussain, who is an agent for the sale of opium, should act as a bogus purchaser. Accordingly on the same day, the spy introduced respondent No. 1. and the respondent No. 3 Fatru to the witness in the afternoon. The witness informed the inspector. Next morning, the 8th, the respondent Qureshi came to the witness Fazal and it was arranged that the same afternoon at 3 o'clock the witness should take Qureshi to the place where opium worth Rs. 2000 would be delivered. The inspector was informed, He borrowed Rs. 2000 from a friend Erich Shah and arranged for a Packard car. He himself obtained one mashir Mohsinali who is a witness and got his Excise constable to obtain the other mashir Hamid who is also a witness and by occupation a motor mechanic. It was arranged that Hamid should pretend to be the cleaner of the car, that one Exise constable should pretend to be a servant of the seth, that is to say, the owner of the car and presumably employer of Fazal, and two Exise constables were put inside the boot. The Rs. 2000 were initialled by the Inspector and handed over to Fazal. He was given instructions to remove his goggles as a signal as soon as the opium was received Mashirnamas incorporating these arrangements were prepared. Respondents Qureshi and Fatru came as agreed and the car started off and picked up respondent No.

2. Latif Khan on the way. The car was followed by a taxi containing the mashir Mohsin and the Inspector and Excise constables. Respondent Qureshi was employed in Pakistan Aviation. The enormous hangar built for the ill-fated R. 101 was occupied by this company and' the car stopped near the hangar. Respondent Qureshi wished Fazal to go inside the prohibited area to take delivery, but Fazal refused. Hence while Fazal and Fatru stayed outside, the car went inside the premises, and there according to mashir Hamid, Qureshi went into some building and came out with the opium. The car returned to the main road and respondent Qureshi called Fatru who told Fazal that the opium was ready for delivery. Thereupon Fazal removed his goggles and the taxi containing the excise party and the other mashir rushed to the scene ; the boot was opened by Hamid ; all the three respondents were found inside the car together with the opium. A small pill of opium was found on the person of the respondent Qureshi. While the Inspector was busy writing the mashirnama, respondent Qureshi started running towards the railway line chased by the two constables who had been in the boot. Qureshi slipped and hit his head with the railway line, and was over-powered and arrested. On return to Karachi the opium in four tins was weighed and found to amount to 8 seers and 57 tolas. The respondents were released on bail, defence witness Haji Muhammad standing surety for all the three. The Inspector showed the mashirnama the same evening at about 10 p. m. to the Excise Superintendent who initialled them and upon two of them wrote the word "seen". The prosecution evidence consisted of the Excise Inspector, the bogus purchaser Fazal, and the two mashirs Hamid and Mohsin. The learned Magistrate in contravention of this Court's Criminal Circulars regarding section 342 Cr. P: C., contented himself with recording written statements of the accused. The defence was that the respondent Qureshi being a Security Officer of Pakistan Aviation found a motor car and a motor rickshaw within the prohibited area and a quarrel going on. He and respondent Latif went to the spot and asked what was happening. The Excise Inspector said that he was an Excise Inspector and asked who the respondent was that he should stop him. The respondent replied that he was the Security Officer and when the Inspector replied that he was an Excise Inspector, the respondent became enraged and said "Damn yourself, go away from here." Thereupon the Inspector started quarrelling, and when the respondent caught hold of his hand, one of his companions gave respondent a blow on the head with a `danda'. He became unconscious. The respondent 2 who had gone to the place to get payment of some printing bills, adopted and supported this defence. He said that when he went to intervene he also was arrested. Respondent 3 stated that he knew Fazal and had accepted his casual invitation to join him in going to the Airport which he had never seen before. The car stopped at some distance from the hangar and Fazal got down. A motor rickshaw came and three men got down from it saying that they wished to search the car. One of these, the Excise Inspector, said that he had come to arrest them. On his cries two people came from the hangar and the quarrel took place during the course of which the respondent Qureshi was hit on the head by a club. It is the case of respondents 2 and 3 in their written statements that on the way Fazal entreated the Inspector to save him. .And thus it is argued that the Excise Inspector has made the three respondents accused in this case instead of the real culprit Fazal. The reason why Fatru has been implicated is that he had a quarrel with one Ghulam Nabi, who met and colluded with the Inspector and other Excise officers. This is, however, inconsistent with the rest of the defence as the reason why Fatru was also implicated and why Fazal the real culprit was let off. The defence led eight witnesses. Two were Doctors and the effect of their evidence is that a lacerated wound 2 " x 1 " bone deep on the forehead was more likely to have been caused by a blunt weapon like a lathi then by falling on the railway line and that the congestion of the skin on the neck was likely to have been caused by squeezing. There was also a contusion 3" x 2" on the front aspect of the right knee. The learned Public Prosecutor concedes that it is quite likely that the injury was caused by a lathi and not by a fall on the railway line, but he argues that this does not detract from the force of the rest of the prosecution case. The defence witness Haji Muhammad alleged that the Inspector wished him to state falsely that the witnesses were given bail at 4-30 instead of the true hour of 7-30 and to endorse this on the bail forms. We see no reason why this should have been done by the Inspector. It was argued that times had been written on these forms and obliterated by overwriting dates. We have seen the forms, but see no ground for such allegation. On the other hand, the prosecution points out that this man was ready to stand surety for all the accused, while according to the defence Fatru should have had no connection with Qureshi or Latif. In fact this witness states that Qureshi had introduced Fatru to him before this incident. We then have two witnesses. One is the General Manager of Pakistan Aviation and the second a clerk to the Personal Officer of this concern. The purport of this evidence is that Qureshi could not have been in Karachi on the afternoon of the 7th or on the morning of the 8th at 9 a. m. since he must then have been at Drigh Road in performance of his duty. The register of leave was produced by the clerk, but this has been signed by no officer and no entry of leave of any one is recorded in it, which appears to us a surprising matter. The General Manager deposed that every morning he did around between 9 and 10-30 and that the accused Qureshi accompanied him. He was asked at the end of his cross- examination and stated that on both the 7th and 8th Qureshi was with him between 9 and

10. The same witness order of then Chairman. The General Manager gave his evidence in May 1953 and there is nothing to show that at that date six months later he was not relying merely upon routine and general impression for it is to be noted that in his examination-in-chief he had stated that on the 7th, a full working day, the respondent was in the office from 6-45 to 3-45 p. m. and on the 8th a half working day from 6-45 to 11-45 a. m. these were working hours, and it appears that the General Manager relied upon this fact for his statement. The next witness Salimullah states that he went to the office of Qureshi on the 8th (so he thinks) and found him there. This witness confessedly is not certain of the exact day and also had been a friend of the respondent for three years. We do not think importance attaches to his statement. We are then left with two witnesses who state that they saw a car and a motor rickshaw and the respondent being given a blow by the Inspector. One of these, an employee on Rs. 68 basic pay of the Post and Telegraph Department, states that he was doing telephone work, but could not say whether it was maintenance work or merely attending to faults. He did not produce any diary. The other person a small business man and states that he was waiting on the main road to catch a bus. He happened 2 months later to meet Qureshi and recognized him and asked him what had been happening on that occasion. The learned Magistrate in his judgment said that the scuffle described by the defence was far more likely than the story of his running away since the Doctor's evidence showed that he had been nit and had not received the injury, by falling on the railway line, He stated "I am not going to search for truth in the statements of the prosecution witnesses who have obviously spoken lies". He relied on the evidence of the General Manager that the accused could not have met the bogus purchaser at 9 a. m on the 8th. The Magistrate lastly considered that there was no reason why Qureshi himself should have given delivery since he had two associates who could have acted on his behalf, alterna tively if Qureshi could himself deliver the matter why should two other persons have been brought into the negotiations. He considered the prosecution witnesses to be parrot-like and the mashirs to be low class. The principles on which we should deal with an appeal from acquittal have been laid down in Sheo Swarup's case (611 A 398.) and affirmed in A I R 1945 P C

51. We consider the learned Magistrate's reasons as far from l satisfactory. That blows instead of a fall caused the in juries may be conceded, but we see no reason to think that therefore the scuffle described by the defence is more likely than that the accused should have received the blows in trying to escape. The Exise constable may very well have beaten him because he tried to escape : but to avoid any trouble they may well have decided to attribute the injuries to a fall. The maxim falsus in uno falsus in omnibus is not to be applied` so as to excuse a Court from considering the case as a whole. We have already dealt with the defence evidence, and have pointed out the defects in the evidence of the General Manager and of the clerk of the concern. We attach little importance to the argument that respondent 1 should either have given delivery through the other two respondents or `without the other two respondents. A perusal of the prosecu tion evidence and the long cross-examination show that their deposition are far from parrot-like ; in fact, as will be seen, counsel for the defence rely upon inconsistencies between the witnesses to show that they are not speaking the truth. Nothing in the evidence shows that the mashirs were not respectable or that they were habitual and professional) mashirs. The Magistrate's judgment is seriously at fault in that he has refused to consider the case as a whole. One salient point is that eight seers of opium were found. This has not been disputed by the defence : in fact, it is tacitly admitted that opium was found since the defence is that instead of the true offender Fazal the respondents were falsely challaned,, the first two respondents because of the quarrel and the third because by an unfortunate coincidence he had accepted an invitation to the Air Port. It is to be noted that if Fazal was really the offender than he could not have been privy to any plot to get respondent Fatru falsely implicated by inviting him, and if he was on nefarious errand, we consider he would hardly have invited an innocent spectator : furthermore, the defence witness who stood surety for all three, has stated that respondent 1 had previously introduced respondent 3-to him. Friendship between respon dents 1 and 2 seems indicated because respondent 1 was going to take him to the General Manager to secure payment of his printing bills, an action not attributable to a Security Officer 's duty. Thus the seizure of the opium and previous connection between the three respondents is established while the defence version of a scuffle with the first two respondents, the strange coincidence of the presence (by invitation of the true offender of an enemy of Ghulam Nabi) himself a friend of Excise officials, and the substitution of these three for the true offender, is extremely unlikely. Counsel for respondents 1 and 2 argued (and counsel for respondent 3 adopted those arguments) that the prosecution case was falsified by the General Manager's evidence, the medical evidence and the evidence of the defence surety: we have already discussed these. He than relied upon discrepancies between the prosecution witnesses and upon what he submitted were circumstances disproving the prosecution. The Inspector said he took the informer to Fazal, but Fazal said in cross examination, he was not introduced to him by any one. Whether this' is a contradiction is doubtful, since introduction may be understood as announcing the man's name. It was argued that evidence regarding the car and the taxi had been withheld : but the mashirnamas gave the numbers of these, and. if the accused had wanted they could have secured the owners. The inspector had not yet put in his T.A. bills : that however is hardly evidence that he did not use the taxi which he claims to have done. Discrepancies whether the two constables were in the boot before or after Fazal went inside his shop or how the key or keys to the boot changed hands before Hamid unlocked the boot are in our opinion trifling. It was argued that the Inspector should have searched the premises from which respondent 1 had got the opium. The Inspector however said Hamid told him he did not remember the quarter, and Hamid says he did not tell the Inspector. Quite probably the Inspector was satisfied with his coup, and wished to concentrate upon what he had already secured: We agree that the mashirnama's statement that each accused was found holding one or two of the four tins is belied by prosecution witnesses who say the opium was in the car at their feet, but this is not sufficient in our opinion to discredit the finding of opium. We think it was possible to return to Karachi if not at 4, yet soon after and even if 4 is a mistake, we think nothing in turns upon it. Whether the entrance to the prohibited area has a gate or not is immaterial. Hamid says Choukidars were at the gate, but the prose cution case is that no crowd collected. We see nothing in this discrepancy. Fazal states that the Superintendent was present at the Excise Office at 4 on their return. In that case it is argues that his initials should have been obtained then instead of at his bungalow at 10 p. m. But the Inspector had weighing of the opium and the bailing of the accused to arrange. We are therefore of opinion that the prosecution has proved that the 3 respondents, known to each before, proceeded in the car with Fazal and that they were all privy to the intended illicit purchase, and that the opium was found in the car where all the three were seated. We find therefore A. H. Respondents convicted.