1998 PLP 1401 (SCMR)

KHALIL-UR-REHMAN KHAN, J.

Jamshaid Ali Khan/complainant seeks leave to appeal against the judgment dated 31-10-1993 of the Federal Shariat Court whereby respondents Nos. l and 2/accused were acquitted and the judgment dated 16-3-1993 of the learned Additional Sessions Judge, Pakpattan Sharif awarding sentence of death to the respondents Nos. l and 2 under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Ordinance VI of 1979) was set aside. 2., The prosecution at the trial produced 21 witnesses and it relied upon ocular account of the occurrence given by Jamshaid Ali Khan P. W-2 and Iftikhar Ahmad Khan P.W.11, identification of the accused, recoveries, evidence of purchase of Motorcycle by Abdul Sattar P.W-15 from the accused and the medical evidence. Learned trial Court relied upon the testimony of Jamshaid Ali Khan P. W-2 and Iftikhar Ahmad Khan P. W-11 as to the main occurrence as well as the evidence of identification of Respondents/accused. The recovery of Pistol was held to be of no value as it did not provide corroboration to the prosecution ,story as no empty was recovered. However, other recoveries of photostsat copy of National Identity Card of deceased, and handkerchief were believed, so also the sale of motorcycle of the deceased to Abdul Sattar P. W-15. Learned trial Court was also of the view that medical evidence also provided corroboration to the ocular account.

3. As against the above conclusions of the learned trial Court, learned Judges of the Federal Shariat Court after close scrutiny of the evidence came to the conclusion that ocular testimony of both the witnesses is neither credible nor trustworthy and is entirely insufficient to prove the guilt of the accused/respondents. The receipt Exh.P.L of purchase of motorcycle and the recovery of handkerchief and photostat copy of Identity Card were also held, in view of the circumstances noted in the judgment, to be of no corroborative value. The imposition of Hadd without following the process of Tazkiyah-al Shahood, it was held, was not legal.

4. Learned counsel for the petitioner took us through the evidence on record with a view to support the reasoning given by the learned trial Judge for basing the conviction of the accused respondents. 'He argued that the learned Judges of Federal Shariat Court have rejected the oral account of the prosecution witnesses who had no motive to falsely involve the accused/respondents on conjectures, surmises and unreal hypothesis. According to the learned counsel the oral testimony stood supported with the evidence of identification and recovery of incriminatory articles and the motorcycle. The sale of motorcycle to Abdul Sattar P.W-15 by the accused/respondents was amply proved by producing the attesting witness, the receipt itself and by admission of the accused that thumb7impressions on the receipt are their though they added that these were obtained by the Police later.

5. We have given serious consideration to the submissions of the learned counsel but find them without merit. The appraisal of the evidence made by the learned Judges of the Federal Shariat Court suffers neither from non-reading nor from misreading of the material on record nor the conclusions recorded are based on conjectures or surmises. The report though was lodged promptly but it is to be noted that no description, worth the name of the culprits was given in the F.I.R. In the statement made to Police under section 161, Cr.P.C. recorded on 13-11-1991, the cdlprits were stated to look like Ali Sher and Rashid alias Sheedi. At the trial description of these two was not given. Moreover, the incident was statedly over within one or two minutes and in this very short time the culprits were statedly seen in the light of the motorcycle on which Jamshaid Ali Khan complainant/P.W.2 and Iftikhar Ahmad Khan P.W.11 were following Zafarullah deceased who was going on his motorcycle ahead of them. In these circumstances, the identification of the culprits assumes importance but what we find is that the evidence of identification brought on record was rightly not relied upon. The accused were under detention with the Police in some other cases for quite some time. Zahoor Ahmad alias Zahoori (respondent No.1) was arrested in the instant case on 12-4-1992 while Allah Dad alias Dadoo (respondent No.2) was arrested on 7-3-1992. These are the dates so given in the Proforma/Concise Statement available on the file. Jamshaid Ali Khan P.W-2 and Iftikhar Ahmad Khan P. W. 11 identified Allah Dad respondent/accused on 3-3-1992 while Zahoor Ahmad respondent/accused was identified by them on 8-4-1992. It will be seen that an undated application moved in February, 1992 for holding the identification parade was placed before the Assistant Commissioner/S.D.M. on 24-2-1992 for orders. The order was passed on the said date but the identification parade was held on 3-3-1992 with the observation that the accused should take precautions as identification parade is to be held. There is nothing on record to show that the accused Allah Dad was so informed.

6. The occurrence took place at about 8.30 in the night when there was no light and apparently it was difficult to observe the features of any person in one or two minutes even if the motorcycle's light was on. The features of the culprits having not been given before holding of the identification parade, learned Judges of the Federal Shariat Court were right in observing that the testimony of both the witnesses as to benefiting the accused/culprits/respondents is not free from doubt.

7. The finding that the sale of motorcycle to Abdul Sattar by the two accused has also not been established, cannot be said to be unreasonable or unfounded. The receipt was produced before the Investigating Officer on 4-3-1993 although Abdul Sattar was examined on 17-12-1991 and in his statement no mention was made of the receipt. Likewise no mention of the receipt was made by Abdul Sattar in his statement under section 161, Cr.P.C. recorded on 8-2-1992. The emergence of the receipt on the scene at the time when the respondents were available to the Police supports the version of the accused that the Police made them to thumb-impress the said receipt and this piece of evidence was manufactured to lend support to the prosecution version.

8. The above discussion amply establishes that learned Judges of the Federal Shariat Court correctly appraised the evidence and the finding that the prosecution has not been able to prove the guilt of the accused/respondents beyond reasonable shadow of doubt is well-founded. Except for the question of appraisal of evidence no other question of law of public importance was urged. No case is, therefore, made out for interference.

9. Leave to appeal is refused and the Petition is dismissed. N.H.Q./J-13/S Leave refused.