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Criminal Revision No. 356 of 1959, decided on 30th September 1959.
Sind Abkari Act (Y of 1878), S. 43 (3)‑Possession‑Contra band‑ Possession Contraband---Passed one person to another and both arrested irrzmedi ately‑Both held to be in Possession of contraband.
Appellants through jail.
A. K. Shaikh A. A. G. for Respondent.
Date of hearing : 30th September 1959.
This is a criminal revision against the judgment of the 1st Additional Sessions Judge, Tharparkar at Mirpurkhas upholding the judgment of the Extra Joint Sub‑Judge and A. R. M., Mirpurkhas, whereby he convicted both the petitioners under section 43 (3) of Sind Abkari Act (Sind) and sentenced them each to undergo rigorous imprisonment for one year and a fine of Rs. 1,000 or in default to undergo rigorous imprisonment for three months more.
On 4th October 1958, the S. 1. P. Zarin Khan received secret information, went with the mashirs to the Kassab Hotel at Mirpurkhas at about 8‑30 p.m. when they saw the petitioner Pir Badshah coming with a gunny bag in his hand which he passed on to the other petitioner Millat Shah, who was his brother. Both these petitioners were apprehended more or less on the scene and the gunny bag was found to contain 31J seers of Charas.
The above version was supported by the evidence of the S. I. P. Zarin Khan, the mashir Ghulam Kadir and the other witness Miskin lllah. The defence of the petitioners was that they had been involved falsely by the mashir Ghulam Kadir. This defence was rejected by the two Courts, and having examined the record and gone through the evidence, h have not the slightest doubt that the defence was untrue. Before the Additional Sessions Judge, the A. P. P. appearing for the State did not support the conviction of the petitioners on two grounds: firstly, ,that the police party should have immediately arrested Pir Badshah when they saw him with the gunny bag if their story was true and should not have waited for the bag to be passed on by Pir Badshah to Millat Shah. There is nothing unnatural in the manner in which this incident is stated by the prosecution witnesses to have occurred and this ground was not enough to displace all the prosecution evidence in this case.
The next point urged by the A. P. P. in favour of the petitioners was more startling. He urged that the Charas in this case had not been tested and found as contraband. There was the evidence of the Sub‑Inspector that the Charas was contraband and the fact had never been questioned by anyone. In fact, the whole quantity of Charas was in Court and. the A. P. P. might as well have satisfied himself whether the allegation of the Sub‑Inspector that the Charas was contraband, was or was not true before raising this question.
The more substantial question raised by the counsel appearing for the petitioners before the Additional Sessions Judge was, that the Charas having been seized from the possession of Millat Shah, the conviction of the other petitioner Pir Badshah under section 43 (3) of the Abkari Act (Sind) was not correct. The argument was plausible but it has been rejected by the Additional Sessions Judge, and I do not think that his conviction was not correct. Both these persons were found at one time or the other in possession of the same Charas and they were arrested almost immediately after the Charas passed hands. They must both be held to have been in possession.
For the reasons given above, I do not find any ground to interfere with the judgment and sentence passed by the Magistrate which was confirmed by the learned Additional Sessions Judge, I therefore dismiss this revision application.
K. B. A./A. H.
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