1969 P Cr (PLP)

Date of hearing : 5th December 1967. NAZEER AHMAD MAHMOOD, J.‑This is an appeal against the acquittal of Syed Musawar Shah respondent who was tried under section 43 (3) Abkari Act, by II Additional City Magistrate, Hyderabad but was acquitted.

2. Briefly stated the prosecution case is that on 22‑8‑1963 Mr. Qamar Ansari, Inspector Excise Intelligence, Hyderabad (P. W. 1) received intelligence that Musawar Shah respondent was keeping some stock of charas in shop No. 68/C, Municipal Market on Station Road near Habib Hotel Hyderabad. On receiving this information Qamar Ansari, requisitioned police help and accompanied by Muhammad Amin, Reserve Police Inspector (P. W. 3) and Mahboob Khan Sub‑Inspector Police Headquarters proceeded to the above‑mentioned address in a police van. When the raiding party came near the Habib Hotel in the Municipal Market Qamar Ansari, Excise Intelligence Inspector (P. W. 3) picked up Mashirs Iqbal Husain (P. W. 2) and Zakir Ali from the road and reaching shop No. 68/C at bout 7.00 p.m., they found Musawar Shah respondent sitting on a cot close to shop No. 68/C. Three other pathans namely Abdul Haq, Sikandar Shah and Shaukat Hussain were also sitting on a separate cot near t‑he aforesaid shop. All these persons were surrounded by the Police. Qamar Ansari P. W. informed Musawar Shah that his personal search had to be effected and that he could search the person of Qamar Ansari before the latter conducted the respondent's personal search. Musawar Shah however, did not search the person of Qamar Ansari who on the other hand secured one key from the right side pocket of the shirt of the respondent on searching his person. Musawar Shah thereafter, when asked as to the place where contraband charas was being stocked by him, led the raiding party to shop No. 68/C and opened the lock thereof with the key that had been secured from his possession and on opening the door of the shop produced two gunny bags which were concealed under two ghaddelas. The two gunny bags revealed slabs and pieces of charas as their contents. Qamar Ansari P. W. took the two bags containing charas, into his possession as also two weighing scales, five weights and two charas‑cutting implements which were found in a basket near the bundles of charas. Qamar Ansari got the two bags of charas weighed, on weighing scales at a short distance from shop No. 68/C, and it was found that the two bundles contained two maunds of charas. The Excise Inspector Qamar Ansari sealed the bundles of charas into parcles ride Mashirnama Exh. 1/A which was attested by Iqbal Hussain and Zakir Ali P. W.'s as Mashirs. Charas from other three pathans was also secured under separate mashirnamas and they were separately challaned with regard to recoveries of charas made from them. Musawar Shah was arrested and Qamar Ansari reported the raid at Police Station No. 8 Sub‑District Hyderabad vide F. I. R. Exh. 1/B which was recorded at the police station on 22‑8‑1963 at 7.00 p.m.

3. The appellant pleaded not guilty and characterized the allegations made against him as false. He denied that his person was searched or any key was recovered on his personal search, He further denied that he opened the lock of the shop in question and that he had produced any charas before Qamar Ansari P. W. He ascribed the case against him to the enmity of Qamar Ansari saying that he had reported against Qamar Ansari and had also informed the local police more than once that Qamar Ansari wanted to implicate him in a false case. He further admitted that he figured in photographs Exhs. 3/A and 3/B, along with other persons (tried separately) but explained that he was sitting in a Hotel from where Qamar Ansari sent for him and asked him to join in the photographs and that the persons who w ere arrested were hand‑cuffed when the photo was taken. Besides his oral statement the accused filed his written statement Exh. 4/A along with two acknowledgment receipts and a copy of leis application sent to higher authorities. In his written statement the respondent has avowed his innocence and has amplified his oral statement and alleged, among other things, that Qamar Ansari bad a bad reputation and was mixed up with charas dealers and that Qamar Ansari suspected that the respondent was responsible for the propaganda against him. The respondent further alleged that Qamar Ansari had got the respondent insured through his wife Mst. Anis Fatima, who was agent of the American Life Insurance Company at Hyderabad, in the suns of Rs. 30,000 but on account of strained relations with Qamar Ansari the respondent stopped meeting him and got his children insured through the relations of Mr. Tirmizi and that this circumstance had further provided annoyance to Qamar Ansari and he started holding out threats to him that he would invoke him in some case or another with the result that the respondent made applications to the local authorities from time to time. Ho disclaimed ownership of the shop in question and contended that he had neither any shop in the Municipal Bazar nor had any concern with the residents there. He produced six witnesses in his defence namely Shaft Muhammad (D. W. 1), Abdul Majid (D. W. 2), Niamdino (D. W. 3), Asnad Ahmad (D. W. 4), Muhammad Hashim (D. W. 5) and Muhammad Izhar Ali (D. W. 6).

4. Muhammad Shafi (D. W. 1) who is Occupation Ledger keeper, Tax Department, Municipality, stated sifter referring to the municipal records for shops at Station Road that shop No. 68/C had been allotted to Sikandar Ali Shah and that no shop art that lane was allotted to Musawar Shah accused respondent. Abdul Majid (D. W. 2) who is clerk in American Life Insurance Company deposed to the effect that Mst. Anis Fatima (the wife of Qamar Ansari P. W.) was the agent of the Insurance Company and her appointment was made on an application Exh. 12/ B made by her. Niamdino (D. W. 3), a person having a shoes shop in Municipal Market area, deposed to the effect that the police had come to the market one evening about 1‑3/‑1 years before and Asnad Ahmad D. W., a carpenter of the locality was sent for by them and he broke open the lock of the shop of one Sikandar and that the respondent who had given him his shoes for polishing was at that time sitting in a Hotel nearby and from there was sent for by the police. He further stated that Sikandar was also arrested by the police on that very day. Asnad Ahmad (D. W. 4) is a carpenter. He corrobo rated Niamdino D. W., by saying that he had been sent for by the police on the alleged day of the raid at about 4 or 5 p.m., and he had broken open the lock of the shop of Sikandar Shah. Muhammad Hashim (D. W. 5) produced two extracts Exhs. 16/A and 16/B of the station diary of City Police Station, Hyderabad. These extracts are to the effect that on 25‑5‑1963 and 28‑5‑1963 Musawar Shah made a report to the effect that he was sought to be falsely implicated in an Abkari case. The first report relates to the threat held out to him by one Gullu and the second report relates to the threat held out to him by Ansari P. W. himself. Muhammad Izhar Ali Tirmizi (D. W. 6) Unit Manager of American Life Insurance Company deposed to the effect that in 1962 he had been residing with Qamar Ansari whose wife is Mst. Anis Fatima and that she was enrolled as agent of the American Life Insurance Company through him in November 1962. He identified her signatures on the application Exh. 12/B. He further stated that the accused was insured through Mst. Anis Fatima for Rs. 30,000 vide Exh. 12/C. His application for insurance was filed in by this D. W., but signed as a witness by Qamar Ansari and by Mst. Anis Fatima. He further deposed to the effect that Qamar Ansari was also insured through Mst. Anis Fatima for Rs. 25,000 with the American, Life Insurance Company vide Exh. 12/E, and that the commission in respect of these two policies was earned by Mst. Anis Fatima. This D. W. further stated that his younger brother was also an agent and that when the accused got his three sons insured through his brother for Rs. 20,000 each, Qamar Ansari was annoyed with this D. W., and made him leave his house as he wanted the children of the accused to be insured through Mst. Anis Fatima. He further stated that the accused frequently used to visit Qamar Ansari at his house.

5. The prosecution version appears in the statements of Qamar Ansari (P. W. 1), Iqbal Hussain mashir (P. W. 2), Zakir Ali inashir (P. W. 4) and Muhammad Amin, Reserve Inspector Police Headquarters (P. W. 3). They all give a substantially identical account of the circumstances under which as a result of the raid, first key of shop No. 68/C was recovered from Musawar Shah respondent and then after the lock of that shop had been opened by Musawar Shah with that key, two maunds of charas was recovered from inside the shop along with two weighing scales and five weights and implements of cutting charas.

6. The learned 11 Additional City Magistrate acquitted the respondent on the ground that the respondent was not proved to have been in exclusive possession of the shop in question and the evidence regarding the recovery of key from the respondent was of doubtful value. Learned 11 Additional City Magistrate further expressed the opinion that Qamar Ansari appeared to have enmity with the respondent.

7. We have gone through the record of the case and we find it difficult to disagree with the learned A. D. M. in the view that he has formed on the merits of the case. Unimpeachable evidence has been led by the respondent to the effect that the shop from where the alleged recovery of the charas is said to have been made does not belong to the respondent but belonged to one Sikandar Shah who was also one of the persons who was arrested during the alleged raid and was separately challaned for being in possession of contraband charas. Qamar Ansari admitted in the course of his statement that he made no inquiry as to whether shop No. 68/C belonged to the accused or to somebody else. In his written statement Exh. 4/1, the respondent stated that he had neither any shop in Municipal Bazar nor had he any concern with the residents there. Merely because the key of the shop was recovered from the respondent would be no basis for the inference that the contraband charas that was allegedly recovered from inside that shop was in possession of the respondent, especially when it is in evidence that Sikandar Shah, the owner of the shop was also sitting on a charpoy nearby and was also separately challaned for being found in possession of contraband charas. But as remarked by the learned II Additional City Magistrate the evidence regarding the recovery of key from the respondent was not free from doubt. We are not satisfied that the evidence regarding the recovery of key from the respondent produced by the prosecution has to be accepted as correct. The learned 11 Additional City Magistrate has expressed the opinion that the recovery of key has merely been fastened on the respon dent. It appears to us that his assessment of the evidence of the recovery of the key cannot be pronounced as wrong. Beyond all doubt Qamar Ansari was not on good terms with the respondent. The extracts Exhs. 16/A and 16/B show that quite a few months before the alleged raid by Qamar Ansari of shop No. 68/C, Musawar Shah had made reports at the Police Station expressing apprehension that he was likely to be involved in false cases at the instance of one Gullu and Qamar Ansari, respectively. Qamar Ansari P. W., admitted in his cross‑examination that he had already challaned the respondent on 28‑5‑1963 in another case but that the respondent was discharged as no P. W., supported the prosecution case. Judgment Exh. 18 which has been brought on the record also shows that the accused was discharged under section 258, Cr. P. C. because the respondent's identity as the culprit was not substantiated by the evidence produced by the prosecution against him. Qamar Ansari has not impressed us as a straightforward witness. When asked whether he knew if the accused Musawar Shah lead made any complaint against him at City Police Station he denied all knowledge. This is improbable. He further denied that he had any dispute with the respondent over commission of an insurance company but on going through the record we do not think that he was being truthful in this assertion. He admitted that his wife was the agent of American Life Insurance Company but he denied all knowledge as to whether the accused had been insured for Rs. 30,000 with the American Life Insurance Company through his wife or that the children of the accused were insured through one Tirmizi and that he had wanted the children of the accused to be insured through his wife Mst. Anis Fatima. He even denied that the accused had never visited his house. But he had to admit when confronted with document Exh. 12/C that this application for his insurance made by the accused had been signed not only by his wife Mst. Anis Fatima but by Tirmizi and by this P. W. himself. It is really hard to believe that Qamar Ansari had forgotten the accused having insured himself with American Life Insurance Company through his wife, when he was actually present when the insurance application was filled up and he had himself signed it. Izhar Ali Tirmizi D. W. has made a categorical statement to the effect that Qamar Ansari resented the respondent having got his three sons insured through the brother of Izhar Tirmizi rather than the wife of Qamar Ansari P. W. Mr. Tirmizi stated that Qamar Ansari felt so annoyed over this circumstance that he made this D. W., leave leis house. In the circumstances it is difficult for us to resist the suspicion that Qamar Ansari had a personal grudge against the accused and his testimony against the respondent therefore, cannot be treated as of a disinterested and independent person. It is significant that Muhammad Amin and Qamar Ansari have given inconsistent versions on a material point while Qamar Ansari stated that when he offered to the accused to search his person before he (Qamar Ansari) conducted the accused's personal search the accused had refused to search his person, Muhammad Amin deposed to the effect that the accused did search the person of Qamar Ansari and found nothing in his pants etc. It appears to us that if indeed the raid was conducted in the circumstances alleged by Qamar Ansari, Muhammad Amin P. W., would not live made a discrepant statement on the above‑mentioned point, It is also noteworthy that Iqbal Hussain one of the mashirs of the alleged recovery failed to appear for his further cross- examination and only that part of his statement which preceded his further cross‑examination was allowed to be retained on the record on a statement made to the effect that lie had become untraceable. None of the witnesses who could have made efforts to trace Iqbal Hussain P. W. himself appeared in the witness‑box to give evidence regarding the untraceability of Iqbal Hussain. Only an application Exh. 8 was made by the Abkari Inspector and on that basis the evidence of Iqbal Hussain P. W., was retained on the record. In the context of the circumstances set out above, we are not quite sure that Iqbal Hussain P. W., had actually become untraceable and he was not really being withheld from the witness‑box to avoid uncomfortable further cross‑examination. The other mashir namely Zakir Ali (P. W. 4) appears to be a stock witness of the Excise Department. He admitted that he had been appeared in several such cases as the mashir, before.

8. We are not satisfied that the evidence regarding the recovery that leas been produced by the prosecution can be treated as of unimpeachable worth. The result is we do not think that the order of acquittal of the respondent made by the trial Court was unwarranted and perverse. We therefore see no good ground for setting it aside. The appeal is accordingly dismissed. Appeal dismissed.