' B.G.N. KAZI, J.-- The appellants who were tried on the charge of committing theft from the houses of Zahid Naseem, Muhammad Bashir and Malik Allah Bakhsh, in Lala Rukh Colony, Wah Cantonment, District Rawalpindi, and with making a show of force while taking away the property an offence punishable under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), by the Additional Sessions Judge, Rawaipindi, were found guilty of the aforesaid offence and were convicted and sentenced each to amputation of the right hand from the wrist and the left foot from the ankle; have made the instant appeal against the conviction and sentence. There is also criminal reference from the Additional Sessions Judge, Rawalpindi for confirmation of sentence. Both the appeal and the reference are being dealt within this judgment.
2. The prosecution case against the appellants briefly stated is that on 5th May, 1983 at about 10-30 a.m. Appellant Ali Ahmad armed with a pistol and appellant Itbar Khan having a dagger had committed theft of four bangles and ring all made of gold and Rs,400 in cash consisting of four one hundred rupee currency notes from the house of Zahid Naseem, besides breaking the locks of houses of P.Ws. Muhammad Bashir and Malik Allah Bakhsh. Zahid Naseem, who works as chargeman in the Wah Ordnance Factory had gone on duty, while his wife had locked the house and gone for shopping. He was informed on phone that theft had taken place and rushed back but his wife had reached home earlier. On search he came to know that 4 bangles and ring made of gold belonging to his wife and Rs,400 in cash had been stolen. He also came to know that thefts had been committed from the houses of Malik Allah Bakhsh and Muhammad Bashir. He accordingly left for reporting the matter to police. In the meantime Muhammad Javaid who owns a tea shop and Muhammad Akram, who owns a Kiryana shop near the tea shop of Javaid, were present when they heard cries of 'thief', 'thief' in their street and saw two persons running in the street. They asked them to stop. One of them was armed with a pistol and the other with a knife.
The one whose name they later learnt was, All Ahmed fired at Javaid with pistol but did not score a hit. The two witnesses chased them and meantime many other persons collected on the spot.
While rounding a corner the two accused fell in a pit. Javaid gave a Danda blow to All Ahmed accused and snatched the pistol from him while Muhammad Akram snatched the knife from accused Itbar. They apprehended both the accused.
3. On search of their persons two gold bang'es and two currency notes of Rs,100 each were secured from each of them. Javaid and Muhammad Akram were taking the accu.,ed towards Police Station when on the way at Chowk Lela Rukh they met S.I. Muhammad Nawaz who recorded their statements and prepared Memos. Exh.P.F., Exh.P.G., Exh.P.H. And Exh.P.l. Which the two witnesses signed at the spot. The bangles, the currency notes, pistol and dagger were taken into possession by the police vide the aforesaid memos. And they also took away the accused. Zahid Naseem's statement was recorded at Lela Rukh Wagon Stand. It was read over to him and he signed it. He and his wife identified the bangles and currency notes after 8 days, at the Polie Station, whereas his statement recorded earlier on 5-5-1383 had been registered by Abid Hussain Shah as F.I.R. The same day. S.I. Muhammad Nawaz prepared the rough sketch of the place of recovery Exh.P.J. He also prepared sketch of the place of occurrence Exh.P.K. And he visited the houses of Muhammad Bashir and Allah Bakhsh and prepared sketches Exh.P.L. And Exh.P.M. The two accused had injuries and he prepared injury statements Exh.P.N. And Lxh.P.O. And had them examined by Dr. Muhammad Khan, M.O. After completing the investigation he sent up the appellants for trial.
4. We have heard the arguments of the learned counsel for the parties and examined the record of trial proceedings. P.W. Zahid Naseem, his wife Kulsoom Akhtar, besides P.Ws. Javaid, Munammad Akram, Muhammad Bashir and Investigating Officer S.I. Nawaz were examined. Muhammad Raman a goldsmith was examined as Court witness to determine the value of gold bangles and ring with the view to consider whether the stolen property constituted Nisab. In their statement under section 342, Cr.P.C. The appellants denied the prosecution allegations and except for the four currency notes of Rs,100 each which according to appellant ltbar Khan belonged to him, the recovery of bangles was denied. He explained that the police took money from his possession at Police Station. It was the defence of the appellants that they were travelling from Hassan Abdal to Rawalpindi carrying cloth of foreign origin to be supplied to cloth Merchants, in a wagon which was checked by S. I. Muhammad Nawaz and 2 constables near Lala Rukh Chowk. The S.1. Demanded Rs,100 from each as bribe for clearing the wagon but they insisted on paying Rs,50 each. There was, therefore, scuffle and the two constables who were carrying sticks dragged the appellants from the wagon and they fell down on wood sacks and were given also stick blows and were deadly injured.
They were taken to police station and were arrested and the foreign cloth taken. One licenced revolver was recovered from Ali Ahmad and another pistol shown as recovery. All this had been done to misappropriate the foreign cloth. The alleged recoveries had been planted on them at the instance of S.I. Muhammad Nawaz and false case fabricated in collusion with P.Ws. Since they were Pathans from North West Frontier Province they could not examine any witness it their defence. The appellants were also further examined with regard to their age and about antecedents of P.Ws.
5. After hearing the arguments of the learned counsel we were of the opinion that the conviction of the appellants could not be sustained and a short order was issued to the jail authorities advising them about acceptance of the appeal and acquittal of the appellants and accordingly ordering their release. The reasons for our decision are recorded as hereunder.
6. There is no evidence on record to prove theft liable to Hadd as required by the provisions of section 7 of the Ordinance, as there is no proof at all of commission of theft. Complainant Zahid Naseem, was admittedly away on duty and he did not see the actual commission of theft. It is his case that he got phone call from one Javaid that theft had been committed from his house. Firstly, no such informer who phoned Zahid Naseem has been examined and if it was P.W. Javaid he only saw the two persons running away, gave chase and apprehended them. He could not have got opportunity of phoning Zahid Naseem. Secondly Zahid admitted that when he reached home the accused were not seen by him there. Although all the three houses according to prosecution were found with locks broken no such locks were secured during the investigation and none were produced as evidence. There is no evidence of any witness who could say that the accused were seen inside the houses. On the contrary there is admission of P.W. Muhammad Akram that the house of Zahid Naseem cannot be seen from his shop, as it is situated in the street on the back side of his shop.
7. The two eye-witnesses for the prosecution, namely Javaid and Akram both state that their attention was attracted as there were cries of 'thief', 'thief' and 'route' but no evidence is on the record to show who was raising such cries.
8. The very version of the prosecution that two thieves one armed with pistol and the other with dagger were overpowered by the two witnesses is very hard to believe, specially as there was alleged recovery of live bullets along with the pistol. Further, although some plausibility has been sought to be given by stating that the thieves fell in a pit, no such pit is shown in the sketch of the place of recoveries.
9. The very evidence about the filing of F.I.R. Is to say the least very defective and inconvincing.
None of the two witnesses, namely, Javaid and Akram state that complainant Zahid Naseem came while the accused were being chased and apprehended and recoveries made. Zahid himself in his examination-in-chief stated that he did see the accused at the spot and he had seen them at the police station and that after the theft he came at the police station where he identified the bangles and rupees 400 which were lying on the table. He further added that statement Exh.P.A. Was recorded at Lala Rukh Wagon Stand. If we believe his statement in this respect it could only have been registered as F.I.R. At the police station and presumably after he had identified the bangles, but the memos. Of recoveries prepared at Lala Rukh clearly give the crime No, etc. Showing that the same were prepared after registration of F.I.R. Thus the only evidence about recovery of bangles from the prossession of the accused is very doubtful and the memo. Could not have been completed at Lala Rukh Wagon Stand. The numbers of currency notes recovered were not mentioned even in the memos. Of recoveries and, therefore, there could be no question of identification of the same as one currency note looks very much like the others, specially of the same denomination.
10. The medical evidence about the injuries on the person of the accused does not at all support the prosecution evidence and rather supports the defence version. The evidence is to the effect that Javaid gave a Danda blow to All Ahmad. Only one blow is mentioned but Doctor Mahmood Khan found as many as four injuries on the person of All Ahmad and 3 on the person of Mbar Khan on various parts of their bodies. Moreover, the Danda allegedly used by Javaid was not produced before the police. The Doctor in his examination had admitted that injury No,1 could be the result of fall from running wagon.
11. The prosecution version that All Ahmad had fired his pistol at Javaid makes it difficult to understand the blow given by Danda as at the time All Ahmad is said still have the pistol with two live bullets.
12. Since the alleged witnesses, namely Javaid and Akram, who according to the learned Additional Sessions Judge satisfied the requirements of Tazkiya Al-Shuhood had not witnessed the occurrence of theft and since there was no confession, the provisions of section 7 of the Ordinance were not complied with as neither they nor the victim of theft had seen the occurrence of theft. For reasons given above no reliable evidence with regard to recocveries is on record and, therefore, the accused could not be considered to have committed offence under section 411, P.P.C.
13. The record of the trial and even the very judgment show that a very novel method of adjudging the case was adopted by the learned Judge. The requirements of Tazkiya Al-Shuhood have to be satisfied with regard to the alleged eye-witnesses. For the purpose of such inquiry he visited the neighbourhood and inquired from two old ladies, "all of a sudden". He has further observed as under:- "These two ladies were residing near to the house of P.W. Zahid Naseem. Both these ladies told me that the theft was committed in the house of P.W. Zahid Naseem by two Pathans at about 10 a.m. In the last year Therefore, from my own visit at the spot, I am convinced that accused All Ahmad and Itibar Khan committed the theft in the house of P.W. Zahid Naseem and when they were taking away the stolen property they made a show of force to P.Ws. Stated above and there was nothing to disbelieve on the credibility of the prosecution eye-witnesses stated above 14. The aforesaid observation of the learned Judge shows that besides making inquiries about the antecedents of the eye-witnesses, he was prejudiced by irrelevant evidence of the two old ladies who had not figured as P.Ws. And who had not even been put to identification test of the two Pathans mentioned by them. The Ordinance does not give the powers of inquisition to the trying Judge and section 24 makes the provisions of the Code of Criminal Procedure, 1898 applicable mutatis mutandis, in respect of cases under the Ordinance. The oral statements of old ladies without giving the accused opportunity of cross-examination could not be considered as evidence.
15. There was delay in identification of the recovered articles which has not been properly explained. The memo. With regard to Zahid Naseem and his wife identifying the bangles and currency notes was prepared after 8 days and the only explanation is that one of the accused was being treated in the hospital and the S.I. Was otherwise busy. Every police officer is busy but this is no reason for stopping investigation of a serious crime punishable with Hadd. The non-availability of one of the accused had no connection with identification of stolen property.
16. The charge framed against the accused mentions thefts also from houses of Muhammad Bashir and Malik Allah Bakhsh though no theft of any specified articles was mentioned.
Muhammad Bashir had stated that no article was stolen from his house and Malik Allah Bakhsh was given up. Adverse presumption can be drawn that if he had been examined he would not have supported the prosecution. There are contradictions regarding the articles recovered as Muhammad Javid stated in examination-in-chief that there was one bullet and two empties along with pistol but later while producing the Memo. (Exh.P.13) he stated that two live cartridges and one empty cartridge were secured. Bullet is different from cartridge. Any way the mixing up of live ammunition with spent one creates serious doubt as Javaid is the person who is said to have disarmed All Ahmed accused and to have secured the pistol and the bullets.
17. The learned Additional Sessions Judge, has quoted verses from the Holy Quran about importance of imposing Hadd punishments but the most important thing for his decision was whether at all guilt of the accused was properly proved through prescribed and authentic evidence. There is Hadis of the Holy Prophet (P.B.U.H) on the point of benefit of doubt. In Mishkat-ul- Masabih (Vol. II p.544) Maulana Fazal-ul-Karim (an eminent Jurist and Judge) has translated in English the Hadis as under:- "Ayesha reported that the Messenger of Allah said: Drive off the ordained crime from Muslims as far as you can. If there is any place of refuge for him, let him have his way, because leader's mistake in pardon is better than his mistake in punishment."
' Maulana Fazal-ul-Karim comments on the aforesaid media as under:- "The principle that it is better to acquit ten guilty persons than to punish an innocent one has been proclaimed by the Prophet of Islam 1400 years ago in the desert of Arabia. It has been now the guiding factor for the judges and magistrates in civilized countries."
18. In the instant case of the appeals there is no reliable or adequate evidence with regard to the fact that theft was actually committed by the two accused and even the evidence of recoveries from their possession is not free from doubt due to the reasons already mentioned. It is, therefore, apparent that proof of theft liable to Hadd as required by section 17 of the Ordinance is not forthcoming and under the ircumstances there is no reliable evidence even with regard to the offence punishable under section 411, P.P.C. As the memos. Evidencing recoveries were prepared before filing of the F.I.R., and apparently were fabricated inasmuch as the number and particulars of F.I.R., were mentioned in the same. We, therefore, allow the appeal of the two, appellants and set aside their convictions and acquit them.