EMPEROR Vs. ABDUL HAFIZ HASSAN

JUDGEMENT

(1.) THIS is an appeal by the Government of the Province of Bombay against the acquittal of Abdul Hafiz Hassan who was tried in the Court of the Special First Class Magistrate (Riots), Ahmedabad, on a charge under Section 19 (e) of the Indian Arms Act, 1878, for contravention of Section 13 which prohibits every person from going armed with any arms except under a licence and to the extent and in the manner permitted thereby. The prosecution case was as under. On July 1, 1946, a communal riot broke out in Ahmedabad City. On July 4, at about 2-30 a. m. Head Constable Natwarlal received a telephone message that stones were falling in Dudwali Pole. He at once started with two other policemen, namely, Head Police Constable Bahudinkhan and Police Constable Jayantilal, and went in a bus to Dudwali Pole. He was told there that the stones were coming from the Muslim locality nearby in Rentia Wadi and accordingly the police party went to that Muslim Mohalla in the said Wadi. There they found 6 or 7 persons who ran away on seeing the policemen. The accused, however, was found sitting on the otla of his house with two dharias in his hands. The accused was at once arrested and taken to the police chowki. The defence was that the accused was inside his house, that as he had kept his doors slightly open and a light inside his room he was called out by the police and asked his name, that when he gave his name he was taken away by the policemen and that before the accused had been called out, the police had found two dharias lying on the road, the suggestion being that a false case was made against the accused with the help of the said two dharias. The learned Magistrate disbelieved the prosecution evidence, holding particularly that the evidence of Bahudinkhan had been subsequently put in and that on the facts of this case it could not be said that the accused was "going armed" at the time of his arrest, because the phrase implied moving about with arms. He was inclined to believe that certain Muslims while running away might have put their dhavias into the hand of the accused and that, therefore, the accused was not guilty.

(2.) THE evidence for the prosecution consisted of the testimony of Natwarlal, Police Jamadar, the report made on July 4 by Natwarlal and the testimony of two other policemen Bahudinkhan and Jayantilal. THE accused examined one Nisarbeg who stated that he saw from his house the police party picking up two dharias which were lying on the road and that thereafter they called out the accused, and on his coming out took the accused with them in their bus. Another witness examined by the accused was one Abdul Gani, an old man of 70, who also gave more or less the same story. One document on which the accused relied appears to be an application made to the District Superintendent of Police on July 4, 1946, stating that Natwarlal came to the Mohalla a second time during the day and that he wanted "to create some dispute so that he might have a chance to use his lathi" up in the Muslim inhabitants of the Mohalla. THE defence evidence was not noticed or discussed by the learned Magistrate.

(3.) AS to the defence evidence, the writer of the document which was sent or presented to the District Superintendent of Police on July 4 has, no doubt, been examined, but he has not said that he was an eye-witness to what was stated in the application; and though that application has been signed by several persons, none of the signatories have been examined as witnesses. The two other witnesses, Nisarbeg and Abdul Gani, who have been examined for the defence, are not signatories to the application. Again, whereas in the application it is stated that Natwarlal wanted to create some dispute in the Mohalla so that he might have a chance "to use his lathi" against the inhabitants of the Mohalla, what the two witnesses say is that later on, on July 4, Natwarlal came again to the Mohalla and said that he had taken only one Muslim and that he would take 4 or 5 more from the Mohalla. It does not appear to us that either of the two defence witnesses is reliable. Both of them admit that at the beginning of the incident 4 or 5 Muslims ran away, Nisarbeg alleges that he saw and heard everything from inside his house, namely, the police party picking up two dharias, their shouting to Abdul Gani to come and show the Mohalla to the police and their calling out the accused and the accused being subsequently taken away. This witness has also stated that one of the police party was Natwarlal, although he did not see his face and had not known Natwarlal before, and he says "by guess-work" that that man must be Natwarlal. He includes himself amongst the persons who were instrumental in getting the application written, but he has not signed it, nor as regards the later incident, when Natwarlal is alleged to have come again, can he say where the people were sitting at that time. It seems to us that this witness must be regarded MS thoroughly unreliable. Similarly Abdul Gani, who poses as an important person and a Haji who had gone to Haj four times, would, if he knew some material facts of the case, certainly have been included amongst the signatories of the application, but we do not find his name in it. He describes the picking up of the two dharias by the police party, their calling him out, their calling out the accused and finally their taking the accused away. At the same time he has admitted that he sees "a little dimly. " He has not said that he was not standing or sitting close to the place where the two dharias were lying and it seems improbable that he could have noticed all the incidents that he describes. AS to the application, he has said that he asked the writer to write about the previous night's incident, though he does not know what was written. Not only is it not stated in the application that the policemen picked up the dharias and so forth, but, as I have already said, this witness's name does not appear at the bottom of the application. It seems to us, therefore, that this witness is also an untruthful witness. We are, therefore, satisfied that the accused was actually found carrying two dharias on his otla on the night in question.