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Criminal Revision No. 101 of 1965, decided on 21st September 1973.

‑‑S. 61(1)(a)‑Large number of bottles containing rectified spirit recovered from godown opened by keys allegedly supplied by accused‑Accused's contention being of godown possessed by his son, a chemist‑Son appearing as defence witness supporting defence version‑No witness of locality called into witness search --Search witnesses mere stock witnesses‑Not safe to hold key being supplied by accused‑Possession of accused not established-- Accused being a Dental Surgeon material found in godown not needed for dental work‑Son on leaving station for another place likely to leave key with father‑Prosecution, held, failed to prove exclusive or joint possession of accused‑Conviction set aside.

Inayat Ullah Cheema for Petitioner.

Ch. Qamar‑ud‑Din Meo for A. G. for the State.

Dates of hearing: 4th and 5th July 1973.

(Doctor) Hassan Din, a Dentist of Kucha Sethani near Paniwala Talab, Lahore, was convicted under section 61(la) of the Punjab Excise Act, 1914 by Magistrate 1st Class, Lahore. He was fined Rs. 500 or in default to undergo six months' rigorous imprisonment. His appeal was dismissed by the Additional Sessions Judge, Lahore. His revision is now before me.

2. On receiving secret information, Abdul Karim, Excise Sub‑Inspector organized a raiding party including Muhammad Sharif (P. W. 2) Syed Qamar Shah (P. W. 3), Nisar Agha Hussain Head Constable (P. W. 4) and Anwar Ahmad Tarar, Excise Sub‑Inspector (P. W. 7) and went to Haveli No. C/563 in Kucha Sethani near Paniwala Talab, Lahore on the evening of 25th July 1962. A locked godown attached to the Haveli was opened with a key, which was said to have been supplied by the petitioner. 299 bottles in all of rectified spirit contained in two wooden boxes and two barrels acre found lying there among various other articles. Abdul Karim took one sample each from every box and drum and sent the samples to the Chemical Examiner. His report Exh. P. C. is that all the four samples contained spirituous preparation. In view of the definition of the word "intoxicant" by sec tion 61(1)(a) of the Excise Act, the only question for determination, therefore, is whether the incriminating material was recovered from the possession of the petitioner as alleged.

3. The petitioner's contention is that the godown was in possession of his son Mohd. Younas, who was the proprietor of Jammu Medical Stores. Muhammad Younas himself appeared as D. W.1 and supported the petitioner to prove his independent business he produced receipts Exhs. D. 1 to D. 27 showing that he had purchased medical and Chemical articles worth Rs. 40,000 from military Stores Department, Lahore for his shop. Two neighbours of the petitioner namely, Rafiq Ahmad (D. W. 2) and Muhammad Sultan (D. W. 3) also supported the defence. They deposed that the lock of the godown was broken open by the raiding party at a time, when the owner of the godown was in Abbottabad and that they had told the officers that the petitioner had no concern with the godown. The lower Courts rejected this evidence on the ground that the key of the godown was supplied by the petitioner, who was present in the courtyard of the haveli at the time of the raid. But this view is not well founded. The Sub‑Inspector did not call any neighbour of the petitioner at the tile of the raid: The two non official witnesses Muhammad Sharif and Syed Qarar Shah admitted that they were stock witnesses and they did not belong to the locality. It would not therefore, be safe to bold that the lock was opened with a key supplied by the petitioner. Assuming that their evidence was correct, it would not establish the possession of the petitioner. The petitioner is a Dentist and the material found in the godown would not be needed for dental work. On the other hand, the petitioner's son was proved to be a purchaser of such material. As the son of the appellant had left Lahore before the raid, he was likely to leave the key of the godown with his father, who lived in the haveli. It was for the prosecution to prove that the godown was either in the exclusive or in joint possession of the petitioner. But the S. I. could not even say to whom the haveli had been transferred by the Settlement Department.

4. As I am not satisfied about the guilt of the petitioner, I accept his revision petition, set aside his conviction and sentence.

Petition accepted.

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