1. MUHAMMAD ZAHOORUL HAQ, J.-The appellant challenges the Judgement of Sessions Judge, Larkana dated 27th September, 1979, whereby the appellant was convicted under section 457, P. P.
2. C. And sentenced 4 years' R.I. And under section 9 of Hudood Ordinance VI of 1979, the amputation of right hand of the appellant by wrist joint was ordered.
3. The relevant facts are disclosed in F. I. R. Exh. 6, which was file on 23May, 1979 at 5-30 a. m. By complainant, Fateh Mohammad P. W. 1 at Larkana Taluka Police Station, which was 3 miles distant frog the place of offence. The contents of the F. I. R. Are reproduced herein as under:- "My complaint is that I am residing in village Wada Phu], my pace house is built in village Wada Phu] with the entrance door from eastern side. On 22nd May, 1979 at about 9-00 p. m. We family members and my maternal nephew Abdul Rehman's s/o Ghulam Nab slept in the house and locked the outer door from inside. A about 03-00 a. m. I felt heat due to the stoppage of the fan and got up at once and I saw one person, namely Yakoob s/o Dauc Phu] no Wada Phul who was stealing my fan and going toward; the outer door. I raised cries of thief! Thief! And followed., Or my cries of thief! Thief! My nephew Abdul Rehman's got up and came behind me. We both tried to catch hold of him, accused attacked me with hatchet. I gave the arm, the handle of hatchet struck on my arm due to which it was broken. Then we both grappled him and fell him. In the fighting he received injuries on the left arm and other parts of body. On our cries of thief! Thief! Kadir Bux s/o Suhrab Phul, Ghulam Nabi s/o Lakhmir Phul and other: arrived at the door. I at once opened the door and they came inside, and saw the accused and identified. I narrated the above fact to them.
4. Thereafter, I left the thief at vardat under the supervision of above witnesses and came now for report. Accused Yakoob at night time climbed from chapra of Mehar Phul standing on the outerrd door of my house and came to my house and commit--ted theft of fan. Description of it is as under. On awakening we caught him with fan. I am complainant. Investigation may be made."
5. The F. I. R. Was recorded by P. W. 6 Mumtaz Ali A. S. I. In the case who proceeded to the wardat on the same day with the complainant and prepared Memo of wardat in the presence of Mashirs, one of whoa; was Mohammad Hasan P, W.
5. The Memo of wardat is Exh. 12, which also shows that broken hatchet was secured from the wardat. He also secured the arrest of the accused who was, sitting in the house of the complainant under the supervision of P. Ws. Abdul Rahman and Ghulam Ali and Electric Fan, which was also lying near the accused was secured by the Police. Mashirnama of arrest and securing of the Fan was prepar--ed and the same is Exh.
11. He then recorded the statements of P. W,. Ghulam Nabi, Abdul Rehman's and Qadir Buksh.
6. The case of the prosecution has been supported by two eye-witnesses --namely, P. W. 1 complainant Fateh Mohammad and P. W. 2 Abdul, Rahman, who is nephew of the complainant and residing with him. The corroborating witnesses are P, W. 3 Qadir Buksh, who is Rajman of the complainant and P, W. 4 Ghulam Nabi, who is the father of P. W. Abdul Rahman. The arrest of the accused from the house of the complainant and the securing of the broken hatchet and Electric Fan has been proved by the Mashir Mohammad Hasan P. W. 5 who is cousin of P. W. Abdul Rahman and Mumtaz Ali P. W. 6, who was A. S. I. Of Police who investigated the case, The accused in his statement has alleged that he was falsely involved as he was suspected of illicit intimacy with Mst. Sakina, were of the complainant whom he had divorced. He further alleged that his mother Mst. Arbab Khatoon had filed 107, Cr. P. C. Proceedings against the complainant and P.
7. Ws. Abdul Rahman, Ghulam Nabi and one Mohammad Sharif. He had asserted that at about 10-00 p. m. He was passing by the street when l'. W. Abdul Rahman and Ghulam Nabi the instance of complainant Mohammad Fateh caused hatchet and lash; injury to him and dragged him in the house of the complainant and involved him.
8. The complainant in his deposition has substantially reiterated the contents of the F. I. R. By stating that he and Abdul Rahman P. W. Slept in the house. The outer door was locked from inside. He felt uneasiness at 3 a. m. And found the fan missing and found a thief carrying his Fan in one hand and the hatchet in another hand. He identified the accused/appellant Yaqoob and raised cries, which attracted Abdul Rahman. P. W. And they grappled with accused/appellant, who attacked him with hatchet and the handle of the hatchet fell on his arm and the handle was --broken. They, however succeeded in overpowering the accused /appellants. Qadir Buksh P. W. And Ghulam Nabi P. W.
9. Were attracted on the cries and they knocked at the door and the complainant Fateh Mohammad unlocked the door, while Abdul Rahman was holding the accused appel--lant. They saw the accused/appellant having been caught of the table Fan, which was lying near about. In cross- examination, he gave the purchase price of fan Rs. 500 which was purchased 3 years back. He admitted that accused appellant lives 100 or 150 paces away from him and there are houses of potters to the west of his house. He also admitted that P. W. Abdul Rahman is son of P. W. Ghulam Nabi, who lived at a distance of 40-50 paces. He denied the suggestion that he bad divorced his were Mst. Sakina because he had suspected her to be on illicit terms with the accused/appellant.
10. He, however, admitted that Mst. Sajan the mother of Mst. Sakina had filed 107, Cr. P: C. Proceedings against him, Ghulam Nabi P. W. And Abdul Rahman. He also admitted that the mother of accused/appellant Yaqoob had also filed 107, Cr. P. C. Proceedings against him and P. Ws. Ghulam Nabi and Abdul Rahman about 2 years back. He denied the suggestion that P. W. Abdul Rahman was accused of having caused injuries to Banho and two others.
11. However, this factum was admitted by P: W. Abdul Rahman him--self, and therefore, t6t this extent this complainant Fateh Mohammad has made a false statement. He stated that the wall of his house was about 8 feet high on both sides and it was having broken glasses fixed on one side. He denied the suggestion that he had filed the present case against the accused because the mother of accused/appellant had involved him earlier in a case under section 107, Cr. P. C. He volunteered to state that the case had tended into compromise. He denied that he is considered to be a big zamindar in the village. He denied the suggestion that P. W. Ghulam Nabi and Abdul Rahman had inflicted injuries on the accused/appellant and falsely implicated him in this case. He, however, made an important admission that he had given hatchet blow on the left arm of the accused/appellant. He asserted that P. W. Kadir Buksh bad given lathi blow on the head of the accused/appellant but we may state here that P. W. Kadir Buksh had denied that suggestion, and therefore, to that extent the complainant has made an incorrect statement. When be was confronted that he had not mentioned in the F. I. R. That Kadir Buksh had given lathi blow on the head of the accused /appellant, he denied that he had not stated so but the perusal of the F. I. R.
12. Shows that he had not stated in the F. I. R. That Kadir Buksh gave any lathi blow to the accused.
13. P. W. 2 Abdul Rahman, who is nephew of the complainant made almost the same statement as that of Fateh Mohammad. He also added that complainant Fateh Mohammad, when he was grappling with the thief had caused him injuries with broken handle hatchet of accused/appellant.
14. In cross-examination he admitted that he had been challaned in case of injuries to Banho and two others. He gave the height of the two walls of the house of complainant 12 feet, but stated that there were broken glasses on the top of both the walls. He denied that he and his father had caused injuries to the accused/appellant. He admitted that Fateh Mohammad is influential zamindar. He denied that he did not sleep in the house of the complainant on that night. He further stated that both the blows were given to the accused by complainant, which shows that the statement of the complainant that Kadir Buksh gave lathi blow was not correct. In answer to a question from the Curt he stated that he did not possess house of his own and he had all along been staying with the complainant in his house.
15. P. W. 3 Kadir Buksh stated that he heard cries of `thief'! `thief'! And he knocked at the door and complainant opened the door. P. W. Ghulam Nabi and others had also reached by that time. When they went inside the house they saw the accused/appellant having been caught by the complainant and Abdul Rahman, the Fan was lying beside the accused appellant, hatchet was also lying beside the accused /appellant and complai--nant told them that accused /appellant was committing theft of his Fan when he got up and raised cries and caught the accused /appellant. In cross-examination, he denied that there was any enmity between the accused/appellant and complainant. He admitted that he was a Rajman of complainant. The significance of this admission is that this P. W. According to the local custom was available at the beck and call of the complainant. This P. W. Admitted that the accused/appellant was bleed--ing from the arm. He could not name the persons who were attracted on the cries except Ghulam Nabi P. W. He denied that the complainant suspected the accused/appellant to be on illicit terms with his were. He stated that the accused does not do any work and he roams here and there. He admitted that he had seen the Mehar Ful at the wardat.
16. P. W. 4 Ghulam Nabi made the same statement as that of P. W. Kadir Buksh that they knocked at the door and when they went inside they saw Abdul Rahman catching hold of the thief and fan was lying near the thief as well as the hatchet with broken handle. . Same story was related to him by the complainant. He stated that the accused/appellant had an injury on his arm which was bleeding. In cross-examination he denied the suggestion that there was any enmity between him and the complainant on one side and accused on the other side. He admitted that Muharram, Haji Phul and also Sohrab were amongst the villagers who arrived at the wardat. He denied that he and his son had, caused injuries to the accused/appellant and involved him in a false case. In reply to a Court question he stated that Mr. Ghulam Hussain is the naik--mard of the village.
17. P. W. 5 Mohammad Hussain was the Mashir of the securing of the Electric Fan and hatchet from the wardat. This witness is a cousin of P. W. Abdul Rahman. He admitted that the accused was bleeding from his arm. He produced Mashirnama Exh. 11 whereby the Police had secured the stolen fan from the wardat at 700.00 hours on 23rd May, 1979. He also produced wardat Memo. Exh. 12 where a hatchet is shown lying and one cot was also shown in the courtyard of the house of the complainant.
18. P. W. 6 Mumtaz Ali was the Investigating Officer in the case he stated the steps which he took in the investigation, and in cross-examination he admitted that he found injury on the arm of the accused/appellant, but no head injury. He did not send the accused/appellant to the Medical.
19. Officer. He had seen only one cot at the wardat. He stated that complainant had some swelling on his arm and he did not send him to the Medical Officer. He had stated that the complainant had come to the Police Station in Tonga, whereas, he went to the wardat in jeep and he paid Rs. 30 in cash to the Taxi Driver.
20. Mr. Mohammad Hayat Junejo has argued that the offence under section 9 of Hudood Ordinance VI of 1979, even if it was admitted that there was a theft; has not been proved as required under section 7 of the same Ordinance. He pointed out that section 7 (b) requires that proof of theft liable to "Hadd" should be proved by at least 2 Muslims, about whom Court is satisfied that they are truthful persons and abstain from major sins and gave evidence as eye-witnesses of the occurrence, and these two witnesses should be other than the victim of the theft. He points out that there are only two eye-witnesses to the alleged occurrence of theft in the house as the occurrence was completed as soon as the appel--lant had been apprehended and the fan had been snatched from, him and therefore, P. W. Kadir Buksh and P. W. Ghulam Nabi, who came inside the house after the accused/appellant had been apprehended were not the eye-witnesses of the occurrence but merely corroborative witnesses to whom the incident of the occurrence was related by the complainant. These are however academic points as in this case we are holding that theft has not been proved. We are, however, discussing the submissions as the points was argued from both sides.
21. This submission is quite justified from the reading of section 7 of Ordinance V1 of 1979. It is correct that whatever the occurrence of the alleged theft was had been completed before the arrival of the P. Ws. Kadir Buksh and Ghulam Nabi, and therefore, they could not be called as eye-witnesses of the occurrence, and hence, this is not a case, where the punishment of "Hadd" could be inflicted on the alleged theft.
22. Mr. Sarfraz Ahmed, Assistant Advocate-General assisted by Mr. Samiuddin, Advocate had tried to argue that the word `occurrence' should be given a wider meaning than the word `theft', and therefore, the factum if the accused/appellant having been seen as caught by Abdul Rahman P. W.
23. And allegedly stolen articles lying nearby should be regarded as a part of the occurrence itself.
24. We do not agree that in the circumstances of this case the occurrence' could be stretched to the point that even after the alleged thief had been caught, and thereafter, the complainant had opened the lock of the door at that time two P. Ws. Were allowed inside the house and even up to that time the occurrence of theft should be treated to have continued. This would be against all the accepted notions of law and also against the Islamic injunctions, where very strict proof is needed before applying "Hadd" against any person and there are admitted instructions that the "Hadd" should not be applied against Muslims, if any way can be found of avoiding the same, as forgiving a culprit by mistake by the Imam is better than punishing him by mistake. (see page 2 of "Kitabul Ikhtiar" as translated and published by Hyder Mirza, Academy; Karachi'). The same book on page 3 contained quotation from `Fathul Qadir' that it is established proposition amongst the learned in the Shariah that doubt can be the cause of avoiding the `Hadd'. We would, therefore, hold in this case that the occurrence of theft, if any, concluded when the appellant had been caught and fan was snatched from him and up to this time there were only two alleged eye-witnesses to this occurrence and thus there are only two alleged eye-witnesses of the occurrence in this case and one of them is the victim of theft, and therefore there is only one eye-witness according to the provision of section 7 of Hudood Ordinance VI of 1979, and therefore, conviction under section 9 of the same Ordinance could not be made in this case, even if the theft had been proved, and therefore, there was no question of any conviction under section 9 of Hudood Ordinance VI of 1979, which is hereby set aside.
25. The next submission by Mr. Mohammad Hayat Junejo is that the circumstances of this case do not show that the theft alleged in this case is even liable to Tazir. The learned counsel has argued that admittedly there is only one door to the house, which was locked from inside as stated by all the P.
26. Ws. And there are only two walls of the house both of which are at least 8 feet high as stated by the complainant and they are 12 feet high as stated by Abdul Rahman, and since, both the walls have got broken glasses on top as stated by P. W. Abdul Rahman, therefore, it was almost improbable for any one to remove the fan by scaling over the high walls particularly when the Fan is a heavy article.
27. Mr. Sarfraz Ahmed, learned Assistant Advocate-General had answered the same by pointing out that there were four eye-witnesses to the factum of the Fan having been removed by the appellant and found lying near him.
28. Submission of Mr. Sarfaraz Ahmed, Assistant Advocate General is correct, but one cannot loose sight of the fact that removal of a heavy Fan in face of the locked door and 8 feet high walls was not easy to accomplish and therefore attempt at theft seems to be an exaggeration. No thief could expect to succeed in this attempt of removal of fan in these circumstances, as he was quite likely to were up the complainant and other inmates of the house, and any thief with the least of sense with him should have first made some arrangement for either scaling over the high wall with the heavy fan or should have opened the lock of the door, and without doing anyone of these things it was just futile to remove the fan and were up the inmates. There is no evidence on record that the appellant had opened the lock of the house as it was admittedly opened by the complainant and further there is no evidence that the appellant had made any arrangement for scaling over the high wall. He had not implements for that purpose, and therefore, allegations about the removal of the Fan is rather difficult to believe in the circumstances. We cannot loose sight of the fact that admittedly there has been bad blood between the mother of the appellant, who had filed 107/117, Cr. P. C. Proceedings against the complainant as well as P. Ws. Abdul Rahman and Ghulam Nabi, therefore, P. Ws. Fateh Mohammad, Ghulam Nabi and Abdul Rahman were not completely disinterested P. Ws. And some exaggeration was quite possible. Therefore, it may be possible that the appellant who had trespassed into the house of the complainant at midnight time, he may have been burdened with the allegation of removal of fan in order to get him punished effectively.
29. Even the 4th P. W. Kadir Buksh had impliedly admitted that he was available at the beck and the call of the complainant when he had admitted that he was a Rajman of the complainant, and therefore, he was quite likely to accept as true whatever was told to him by the complainant. We are also conscious of the fact that some more witnesses had come to the wardar but they have not been examined, and, therefore, on adverse presumption can be drawn against 'the prosecution that those witnesses, if they had been examined, they would not have supported the prosecution to the extent of the theft.
30. We are, therefore of the opinion that allegation in respect of the theft of Fan has not been proved by reliable and unimpeachable evidence and there are circumstances in the case, which make the theft as improbably, and therefore, we cannot convict the appellant even under section 380, P. P. C.
31. Read with section 14 of Hudood Ordinance VI of 1979.
32. The last question is as to whether the accused has committed the offence under sectionc456, P. P.
33. C. In this respect the most important point is that the accused in his statement under section 342, Cr. P. C. Has admitted that he was caught from the house of the complainant and involved in this case and his explanation is that about 10-00 p. m. He was passing by the street when P. Ws. Abdul Rahman and Ghulam Nabi at the instance of complainant Fateh Mohammad had caused hatchet and lathi injury to him and dragged him in the house of the complainant and involved in this case.
34. Therefore, the presence of the appellant in the house of the complainant at the relevant time is admitted and hence, the statement of the P. Ws. At least to the extent that the appellant was present in the house of the complainant at 3-00 a. m. Cannot be doubted at all. The controversy is restricted to the question of believing whether the version of P. Ws. Is true or that of the appellant is true. We have held that the allegation of theft against the appellant does not seem to be reasonable in the circumstances of the case but the factum of the accused having trespassed into the house of the complainant by scaling over the wall in the middle of the night or thereafter, is proved by the statement of the complainant, Fateh Mohammad, statement of Abdul Rahman whose presence in the house of the complainant has not been seriously challenged, and by the statement of Kadir Buksh and Ghulam Nabi out of whom Kadir Buksh could be reasonably believed to the extent of saying that he found the accused/appellant inside the house of the complainant when the door of the house of the complainant was unlocked by the complainant in the night. The accused, appellant has been secured by, the Police early in the morning from the house of the complainant and if the statement of the appellant that he was apprehended at 10-00 p. m. And dragged in the house after having been beaten, had even a segment of truth in it then the accused/ appellant would have, made a lot of cries and many persons in the village would have been attracted at 10-00 p. m. In the month of May. 1979, but there is no such evidence forthcoming.
35. The house of the accused/appellant himself, according to his version is 40-50 paces away as suggested by him. In cross-examination to appellant Fateh Mohammad, and therefore, even his own household folks would have been attracted if he had raised cries and his mother, who had already filed 107, Cr. P. C. Proceedings against the complainant would not have been allowed the appellant to be detained in his house by the complainant and Abdul Rahman P. W. Even the other villagers in the village could not have pocketed this highhandedness on the part of the complainant and his relations that a person of the village was taken inside the complainant's house and a charge of theft was brought against him in the morning unless the appellant had been at least guilty of lurking house trespass and was caught inside the house itself. Moreso when we know from the record of this case that there is a Retired Deputy Commissioner Mr. Ghulam Hussain, who is naikmard of the village and he is also a Zamindar. If the appellant's contention had been true then at least the villagers or the relations of the appellant would have at once brought it to the notice of the Retired Deputy Commissioner Mr. Ghulam Hussain, but nothing of such type was done and the appellant did not even examine any person in his defence. Therefore, the prosecution witnesses can be believed to the extent that the appellant committed lurking house trespass in the house of the complainant after mid-night. Of course the purpose of the lurking house trespass is shrouded in mystery as the alleged offence of theft has not been believed and there is no other allegation of the commission of any offence punishable with imprisonment. But even simple lurking house trespass is punishable, The only effect of failure to prove intention to commit an offence punishable with imprisonment is that conviction under section 457, P. P. C.
36. Cannot be maintained. But, since, the offence of commission of lurking house trespass has been clearly proved beyond any reasonable doubt, as the appellant could have gone into the house of the complainant by only scaling over the wall, therefore offence under section 453, P. P. C. Is proved and we, therefore, alter the conviction from section 457, P. P. C. To one under section 453. P. P. C.
37. And sentence the appellant to 1-- years R. I. Plus a fine of Rs. 1,000 (Rupees One thousand) or in default to 6 months further R. I.
38. With this modification in the conviction and sentence the appeal is, hereby, dismissed, but the conviction under Section 9 of Hudood Ordinance is set aside and to that extent the appeal is