' B.G.N. KAZI, J.--Arbab son of Ghazi, Muslim adult by caste Bullo resident of Garkko Taluko Pano Akil, District Sukkur, was tried on the charges, that he alongwith two others committed theft of a pair of bullocks valued at Rs, 10,000 belonging to complainant Abdul Majid from his Hirz on 11th October, 1980 at 2-00 a.m. An offence punishable under section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), and further that on the same date and time he alongwith two other persons voluntarily caused hurt to Sardar Bukhsh by means of Danda, which was weapon of offence, outside the house of the complainant and thereby committed an offence under section 323, P.P.C. The Additional Sessions Judge, Sukkur, who tried on the aforesaid charges, found him guilty and convicted him under section 9 of the Ordinance and sentenced him to amputation of his right hand from the joint of the wrist and also convicted him under section 323, P.P.C. And sentenced him to suffer S .I. For three months and also fined Rs, 200 and in default to suffer further S .I. For one month. The appellant has filed appeal against the aforesaid convictions and sentences and the learned Additional Sessions Judge, Sukkur has also made reference under section 9(4) of the Ordinance for confirmation of the sentence of amputation of right hand. Both the appeal and the reference are being dealt with in this judgment.
2. The prosecution case briefly stated is that complainant Abdul Majid son of Haji resident of village Kirir Indhar reported at Police Station Pano Akil on 11-10-1980 at about 7-00 a.m. That he had tethered two bullocks, a cow and buffalo the previous night within the compound of his house and he his brother Allah Jurio and nephew Sardar Bukhsh were sleeping nearby when at about 2 a.m.
He woke up on the barking of dogs, and saw three persons committing theft and taking away his pair of bullocks. He raised cries which attracted his brother Allah Jurio his nephew Sardar Bukhsh and Abdul Aziz son of Muhammad Luqman Indhar who ran after the thieves and chased them.
Abdul Aziz flashed his torch but the thieves were not identified as they were not known to them.
Sardar Bukhsh however caught hold of one of the thieves and other thieves ran away towards the north leaving the bullocks. The thief who was caught had struck Sardar Bukhsh a blow with Lathi causing injury to his head. In the morning the complainant took the thief who had disclosed his name as Arbab son of Ghazi Bulloo resident of Lalpir to the Police Station along with the Lathi, torch and bullocks and lodged F.I.R. With Syed Shahid Hussain, S.H.O., Pano Akil. The witnesses had accompanied the complainant. The S.H.O. After registering the report of the complainant arrested the accused and prepared such memo. (Exh. P.A.). The accused had injuries on his person was referred (Exh. P.B.) to Dr. Yar Muhammad, M.O. Pano Akil for examination and certificate. P.W. Sardar Bukhsh also had injuries and such memo. (Exh.12-C) was prepared and he too was referred to M.O.
(Exh. 12-D). The S.H.O. Recorded statements of witnesses and prepared memo. With regard to torch produced before him (Exh. 12-E). The bullocks were returned to complainant on his executing Superdigi bond. He visited the place of incident and prepared such memo. (Exh. 10-A) before Mashirs. After completing investigation Syed Shahid Hussain S.H.O. Sent up the accused appellant for trial.
3. The accused appellant did not plead guilty to the charge and at that early stage took the plea also that the bullocks produced by the complainant before the Court would be of the value of 1,300-1,400 rupees only and that he was not a thief nor did he know anything about the alleged incident.
4. At the trial P.Ws. Abdul Majid, Sardar Bukhsh, Abdul Aziz, Mazhar Mashir of Vardat, besides Dr. Yar Muhammad, M.O. And Syed Shahid Hussain, I.O., were examined. Accused Arbab in his statement before the Court denied all the allegations about the theft and stated that complainant was inimical towards him as they had dispute over land. The complainant party had filed also cases against him in which he had been acquitted. He produced certified copies of order of acquittal and of deposition of Bachal. It was further his case that on the day of incident he was coming from Pano Akil and going towards his village when at Pirwah the complainant and P.W. Sardar Bukhsh who were coming from their village attacked him and forcibly took him to their village from where he was taken to police station. The incident was seen by Saleem. He had examined Saleem as D.W.
Who had supported his version.
5. We have heard the arguments of the learned counsel of the parties and gone through the record of the trial. It is apparent that the conviction of the appellant for theft liable to Hadd cannot be sustained for the following reasons:-
(1) That the requirements of Tazkiya Al-Shuhood about the witnesses being truthful persons abstaining from major sins (Kabair) were not properly observed. In explanation to section 7 of the Ordinance it has been made quite clear that Tazkiya-Al-Shuhood means the mode of inquiry adopted by a Court to satisfy itself as to credibility of a witness. It is further clear that an inquiry into the antecedents of the witnesses is envisaged but the mode adopted in the instant case of merely asking each witness a question whether he has respect for the Court and whether he has not committed a major sin is not the sort of inquiry envisaged.
(2) That the provisions of section 6 of the Ordinance regarding the Nisab have not been complied with although even at the stage of charge the appellant had sought to point out that the alleged stolen property did not constitute Nisab. No evidence was recorded about the value of four decimal four five seven (4.457) grams of gold on the date of the offence of which burden lies on the prosecution and no expert evidence was brought on the record, about the value of alleged stolen bullocks.
(3) That there is no indication on record that the provisions of section 8 of the Ordinance were taken into consideration though theft of two bullocks was allegedly committed by three persons, i,e, more than one person, and the aggregate value of stolen property had to be divided equally amongst all the three of them if they had entered the Hirz and each of them gets a share which amounts to or exceeds, the Nisab.
(4) What is more important, there is no evidence at all about any of the witnesses seeing accused actually entering "Hirz" or untethering the bullocks from pegs to which they were tethered.
Admittedly the three thieves taking away the bullocks were chased and the evidence even of the complainant is that the appellant was captured outside the courtyard, while two other thieves were also chased and ran away towards north leaving the two bullocks."
6. Under the circumstances it is clear that the proof of theft liable to Hadd is not in the forms indicated in section 7 of the Ordinance and there are loopholes or defects in the same as according to the law of Sharia punishment is not given until the crime is properly proved through prescribed and authentic evidence. In offences punishable with Hudood there are Ahadis of the Holy Prophet (P.B.U.H.) as under:- "Drive off all the Hudood from the Muslim as far as you can. If there is any place of refuge for him, let him have his way, because the Judge's mistake in pardon is better than his mistake in punishment." (Misqat Vol. II, p. 454)
"Remove Hudood if there are doubts in their proof." (Tirmizi Vol. II, p.146).
' The Muslim Jurists are united in the opinion that mere suspicion, blame or doubt may lead to mistake or wrong decision and when proof is so based the offender should not be convicted or punished. (Nal-ul-uttar Vol. VII, p. 113).
7. We have also given full consideration to the provisions of section 13 of the Ordinance about liability of Tazir but there are discrepancies and weakness in the case which create doubt the guilt of the appellant, benefit of which must be given to him. For instance although complainant Abdul Majid stated that he, Sardar Bukhsh, Allah Jurio, Abdul Aziz were sleeping in the courtyard of his house at the time of the occurrence and further that Abdul Aziz is his relative and had been residing with him in the same house since 2 years prior to the date of incident, and P.W. Sardar Bakhsh also states that Abdul Aziz is their relative residing in the same house since 4/5 years prior to the incident, Abdul Aziz stated he was sleeping in his brick-kiln in a place 5/6 paces from the courtyard of the complainant and he has definitely stated that complainant Abdul Majid and P.W.
Sardar Bukhsh are only his caste-fellows and not relatives. In his cross-examination he also admitted that his village is one furlong away from the house of the complainant and is known as Khuda Bux village and he resides about 20-25 paces away in front of house of complainant where he has kiln and had been residing there 12 months prior to the incident and further that he was at the time of the incident in the "Chhapra" whereas P.Ws. Nos. 1 and 2 were sleeping in their houses.
There is inconsistent and contradictory evidence of the different witnesses about the facts deposed to by them. For instance it was the defence-version that accused was going to his village from Pano Aqil when he was attacked by Abdul Majid and Sardar Bukhsh near Pir Wah. The complainant at one stage had stated that Pir Wah is about 2/3 furlongs to the north of his house but later denied in his cross-examination that there was any Pir Wah in the entire village or near the village. According to the complainant there are 2/3 houses near his house and many persons had come after capture of the thief but he admits that he does not remember their names. No independent witness of the locality was examined at the trial.
8. According to the statement in' F.I.R., the report was lodged at 7 a.m. And it is the version of the complainant that the incident took place at 2 a.m. And that he had taken the thief to police station alongwith Abdul Aziz, Sardar Bukhsh and Allah Jurio after tying his hands with rope. There is no evidence as to who kept watch over the thief from time of capture to his production at the police station. According to P.W. Abdul Aziz the hands of the accused were tied with a turban and not a rope and he had been kept in otak under custody before being taken to police station which they reached at about 8 or 9 a. m.
9. Although Abdul Aziz is stated to have flashed a torch at the other two thieves none is able to say with what weapons they were armed. It is not' the case of the prosecution that the witnesses who chased the thieves were armed with any weapons, which to say the least is unusual, but it is stated that Sardar Bukhsh and Majeed grappled with the appellant. However, Dr. Yar Muhammad who examined the injuries on person of the appellant stated that all the eight injuries were caused by hard and blunt weapon. Thus there is no explanation' about the causing of the injuries to the appellants.
10. Sardar Bukhsh according to the prosecution version went to police station alongwith the complainant and since he had injuries was sent to the M.O. On the same day but Dr. Yar Muhammad stated that he had been sent to him the next day and not on 11-10-1980.
11. P.W. Mazhar the Mashir in whose presence the Vardat was shown the I.O. States that co-Mashir Gul Muhammad was not present there. According to him the place where the accused was caught was a place 20 paces away from the house of the complainant as shown by the complainant himself. There were no footprints except marks of grappling. Syed Shahid Hussain the I.O. However, stated that there were no marks of grappling at the Vardat.
12. It is also significant to observe that no memo. Of recovery of bullocks is on the record. The 1.0.
Has also denied the statement of Dr. Yar Muhammad that Sardar Bukhsh injured was sent on the next day.
13. The appellant had explained that he had dispute over land with complainant party and complainant and P.Ws. Were put the question in cross-examination about relationship with Abdul Hakeem, Ilyas and Bacho but they denied such relationship. The appellant also produced certified copies of judgment of acquittal and deposition of Bachal (Exhs. 14-A and 14-B) which due to denial of relationship with Ilyas Bach etc. Do not prove enmity of the complainant and P.Ws.With the accused appellant. However, it is not for the accused to prove his innocence and the contradictions and inconsistencies in the prosecution evidence referred K to above create a doubt about the case against the accused who is therefore entitled to the benefit of doubt. Under the circumstances we give him the benefit of doubt and acquit him of the charges. He is stated to be in jail custody and it is hereby ordered that the jail authorities should release him forthwith if he is not required in any other case.