1997 P Cr (PLP)

(6) That as and when accused Attam Mal tried to catch hold of me he snatched my Rado Watch worth Rs.12,000 and Rs.600 cash from my pocket. " In para. No.5 it has been alleged that appellant Attam Mal chased t e complainant and tried to catch hold of him but failed. In para. No.6 the allegation is that appellant Attam Mal tried to catch hold of the complainant and snatched Rado Watch worth Rs.12,000 and Rs.600 cash from his pocket. On the one hand failure of the appellant in catch holding the complainant is declared and on the other hand success in catch holding and commission of offence under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 has been complained off. In contrast to this complaint (Exh.9/A) and F.I.R. (Exh.9/B). Thadomal (P.W.3), has' given a different story during examination-in-chief. He deposes:-- . "When we came near them Chander Ban and Fateh Chand fired from their respective weapons each two fired upon us but same were not hit to me. On our cries both the accused caught hold us and control us, they demanded Rs.50,000 from me, and threatened me that we have already filed case against you and if you not paid the demanded money, they will file another case against you. Accused Attam Mal removed my wrist watch of Rado Company and Rs.600 from my pocket." Bhagomal (P.W.4) has a fourth version to tell. During examination-in -chief he is deposing: "On their firing I stopped my motorcycle. They overpowered upon us. Whereas Attain caught hold complainant Thado Mal and other accused also reached there. They removed wrist watch from complainant and robbed Rs.600 from him and so also caused injuries, to him." In the presence of these four contrasting versions of the same incident advanced by the prosecution, there remains no doubt that the complaint (Exh.9/A), F.I.R. (Exh.9/B), and depositions of P.W.3 and P.W.4 are not inspiring confidence to the extent discussed above. Then comes up the issue of contradictions concerning arms. In the complaint (Exh.9/A) the complainant is showing appellant Chander Ban armed with pistol, appellant Fateh Chand armed with a DB gun and appellant Attain Mal empty handed. Bhago Mal (P.W.4) is deposing that appellant Fateh Chand was armed with Pistol and Chander Bhan with gun. Another discrepancy is that Thadomal (P.W.3) is denying the relationship of being real cousin of Bhago Mal or Bhag Chand (P.W.4) during cross, but on the other hand Bhagomal (PWA) has admitted during cross that he is cousin of the complainant i.e. Thadomal (P.W.3). So far as the connection of Ghulam Kadir (P.W.5) with the complainant is concerned, it is evident from his admission during cross that he was a witness for complainant in another case filed against Mohammadan Ghoto. Out of two ocular witnesses, one stands proved to be cousin of the complainant and another a stock-witness working for complainant. Both are discrepant, interested and their evidence is not inspiring confidence. Again Ghulam Kadir (P.W.5) has not seen the occurrence of robbing as deposed by him in his examination-in-chief. According to him, he saw the appellants running away from the spot. During cross he has replied to a suggestion, I do not say anything to accused as they had already escaped from the Wardat. This deposition contradicts complaint (Exh.9/A), F.I.R. (Exh.9/B) and deposition of Thadomal (P.W.3) wherein the stand, which has been taken is that of attraction of Ghulam Kadir (P. W.5) towards the spot on hearing the fire-arm report, his running towards the spot and intervention in the matter. According to story of prosecution, the complainant was saved due to this intervention by Ghulam Kadir, but he is denying the story as such. All these contradictions are material l and cast strong doubts in, the truthfulness of the very complaint itself.

8. It has been insisted by the defence that during cross the complainant Thadomal (P.W.3) has admitted that they usually debt, money. By profession he is a goldsmith. Hindu goldsmiths of upper Sindh do indulge as money debtors on usury. Since usury is Riba and it is one of the major sins (Kabair), therefore, this witness is not a competent witness within the meaning of Article 3 read with Article 17 of Qanun-e-Shahadat Order, 1984. According to the counsel for State, the parties are non-Muslims, therefore, these Articles are not applicable to them. I differ with the contentions of both the learned counsel on this point. For an elaboration, it is essential to reproduce the relevant articles:-- "Article 3: All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers -to those questions, by tender years, extreme old age, disease, whether of body or mind, or mind or any other cause of the same kind. Provided that a person shall not be competent to testify if he has been convicted by a. Court for perjury or giving false evidence: Provided further that the provisions of the first proviso shall not apply to a person about whom the Court is satisfied that, he has repented thereafter and mended his ways: Provided further that the Court shall determine the competence of a witness in accordance with the qualification prescribed by the Injunctions of Islam as laid down in the Holy Quran and Sunnah for witness, and, where such witness is not forthcoming the Court may take the evidence of a witness who may be available. Article

17. The competence of a person to testify and the number of witness required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Quran and Sunnah. (2) Unless otherwise provided in any law relating to the enforcement of Hudo9d or any other law,-- (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and (b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant. Before elaboration of the issue in hand, it may be kept in mind that in this case Hadd punishment has not been inflicted, therefore, principles of Tazkayat-ul-Shahood are not applicable. In Article 3 of Qanun-e-Shahadat Order the words "all persons" include non-Muslims. This way in Article 17 (supra) the word "a person" in sub-Article (1) is inclusive of non-Muslim. There is no proviso excluding non Muslims to be competent witnesses. Consequently the contention of the State counsel is misconceived. So far as the contention of the counsel for appellants is concerned, it 'is correct to the extent that "the Court shall determine the competence of a witness in accordance with the qualification prescribed by the injunctions of Islam as laid down by the Holy Quran and Sunnah for a witness "vide third proviso to Article 3 of Qanun-e-Shahadat Order, 1984. But at the same time, the same proviso also gives a discretion to the Court to take evidence of a witness who may be available where the witness of the abovesaid qualifications is not forthcoming. In the present case Thadomal (P.W.3) is the complainant alleging victimisation at the hands of the appellants and also admits that he is a money-lender. Who else could be a natural complainant? He is falling within the meaning of a competent witness and the trial Court has not committed any illegality or irregularity in recording his evidence.

9. The contention that no recovery of the incriminating articles like arms, robbed wrist watch etc. could be effected and hence the story of prosecution is doubtful has force. Exhs.7/B, 7/C and 7/D are the memos of house search of appellant Fateh Chand, Attam Mal and Chander Bhan respectively. Although the presence and signature on these exhibits have been denied by Nazar Hussain (P.W.1), but he has not been declared hostile by the prosecution and he has himself exhibited these memos. of house search during his examination-in-chief. He has also exhibited Exh.7/A i.e. memo of the place of incident, has admitted his signature on it, but simultaneously he has admitted during cross that police had not read over the contents of this Mashirnama to them. Even if this witness for prosecution is correctly deposing about these memos. Exhs.7/A to 7/D, specially when not declared hostile, yet the benefit shall go to the appellants under the principles of safe dispensation of justice.

10. Now comes the turn of contentions regarding motive. Defence has relied on contradictory motives for the offences allegedly committed by the appellants. In complaint (Exh.9/A) the motive declared is in para. No.4 which reads:-- "That as and when the accused Chander Bhan, Fateh Chand and Attam Mal saw me they started abusing me by saying that I had not as yet forgotten the incident four years old of my insults which I had met at the hands of the said accused due to which I have been protesting and claiming to be compensated but of no avail." Complainant Thadomal (P. W.3) during his examination-in-chief is deposing "On our cries both the accused caught us and controlled us. They demanded Rs.50,000 from me, and threatened me that we have already filed case against you and if you do not pay the demanded money they will file another case against me". Although these two motives are totally on different footings, a third version about motive is coming up from the deposition of Bhagomal (P.W.4). During examination-in-chief, he states: "The accused fired upon the complainant in order to take revenge of girl". The principle about "motive" as enunciated by 1971 SCMR 432 is exactly applicable on the present case. It reads:-- It is not necessary for the prosecution to' set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence. If (he prosecution failed to establish the motive set up by it, as also failed in establishing that the incident occurred in the manner alleged by it then it is difficult to see as to what remained of the prosecution case. The learned counsel for appellants has taken pains and has taken me deep into the records of the case to establish that factually there existed a strong hatred and animus in the mind of the complainant to rope the appellants in this frivolous and vexatious case with an intention to get them convicted with severe punishment under Hudood Laws and also under section 307, P.P.C. According to him mens rea for roping appellants in this false case lies with the complainant. During cross, following replies of complainant Thadomal (P.W.3), are relevant for (lie point under discussion:-- "It is correct that I have filed a complaint against accused Fateh Chand under sections 7 and 10 Qazaf which is pending before this Court. It is correct that Bashoo Mal is a witness in this complaint. I do not know whether Fateh Chand and Chander Ban accused are the member of Panchayat of Ghotki. It is correct that accused Attam Mal is Shewa Dar: (Khidmatgar) of Mandary (Big temple). It is correct that Big temple is situated near my house. It is incorrect to suggest that I have committed Zina upon Mst. Irshi Bai daughter of Bheman Das in temple. It is correct that on 5-6-1986 Ghotki Panchayat imposed penalty of Rs.15;000 and punish me by blackening my face and shaving my head. Voluntarily says that actually the real culprit Fundo Mal the cousin of accused Fateh Chand but they involved me falsely in this case at the instance of Dewan Assar Das." Bhagomal (P.W.4) has deposed during cross:-- "It is incorrect to suggest that on 13-I 1-1984 I alongwith complainant attempt on the life of Fateh Chand at his Otak. It is correct that F.I.R. lodged by Fateh Chand against its. It is correct that in that F.I.R. Chander Bun was the witness of the Fateh Chand. I do not remember whether Attain was the Mashir of Fateh Chand or not. It is correct that complainant was punished by Panchayat in the rape of one girl in temple. It is correct that Chander Ban and Fateh Chand are the member of Panchayat. It is incorrect to suggest that I filed this complaint against the accused through complainant in order to save myself from the case filed by Fateh Chand." From these pieces of depositions and other relevant records of various criminal cases lodged by the parties against each other and pending adjudications do prove beyond reasonable doubt that strong hatred for appellants is catered by the complainant party which in itself crumbles down the edifice of the story of prosecution.

11. Another contention of the appellant's side is that the Investigation Officer had died before he could be examined non-conversant with the handwriting of Investigation Officer was examined. The S.S.P. of Sukkar who had directed S.H.O., Ghotki on 23-2-1991 to register the case was also not produced as a witness. This conduct has prejudiced the appellants. Reliance has been placed on PLD 1958 Dacca I 11 in which the principle laid is at placentium A which reads:-- "It was held that the failure by the prosecution to examine the Investigating Officer deprives the defence of their very valuable right of opportunity of shaking the credit of the prosecution witnesses by bringing out the contradictions between their statements to the police during investigation and their evidence in Court. Such a serious defect cannot be cured by a direction to the jury that they are to make strong presumption against the prosecution on account of the omission. The principle enunciated there would apply to the facts of the present case. It was essential that the Investigating Officer should have been examined to afford an opportunity to the defence to cross-examine him. By reason of his non-examination, the defence case has been prejudiced. In the present case, it may be noted that the learned Judge did not even tell the jury that they should draw an adverse inference against the prosecution for his non-examination, which was done in the cited authority. Thus, the conviction and sentence passed on the appellants must be set aside and a retrial ordered, and it is ordered accordingly." I am pursuaded by this principle and add further that in case the Investigation Officer had demised, some one conversant with his handwriting, signature and attached with him during investigation must have been produced. It has not been done. Consequently I hold that the appellants have been denied their right to cross-examine the authority for investigation and have, therefore, been prejudiced.

12. The learned counsel for State-has vehemently argued that since enmity stands proved from both the sides,, therefore, motive for commission of offence is present in the case of appellants as well. Be it as it may, but I do not agree with this proposal for the simple reason that the accused is a favoured child of the Court and the presumption of his innocence is a supreme principle unless his culpability is proved beyond any shadow of doubt. The onus of proving its case beyond all doubts was the duty of the prosecution in watch it has utterly failed.

13. Before parting with the discussion, I revert back to the underlined portion of first para. of this judgment. It is painful to note that the trial Court trying cases of Hudood is unaware about the difference between Hadd and Ta'zeer punishment. A finding has been given that the appellants have been found guilty both of conviction under the Hadd provision of Article 17(3) Offences, 1979 (i.e. Offences Against Property Enforcement Hudood) Ordinance, 1979), for which the only punishment prescribed by law is amputation of right hand from wrist and left foot from the ankle, but such punishment has been mysteriously avoided, and Ta'zeer punishment under section 397, P.P.C. i.e. seven years' R.I. has been sentenced. It appears that the Presiding Officer (Mr. Ghulam Asghar Abbasi) of the trial Court as well as its judicial staff is unaware about the existence of Article 20 in the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. This speaks enough of the knowledge and efficiency of the trial Court, what to say of many glaring errors committed by the trial Court in the impugned judgment.

14. The impugned judgment was set aside and the appellants were acquitted by me vide my short order, dated 29-4-1997. These are the reasons for the said short order. N.H.Q./1115/FSC Appeal accepted.