ZAHOOR AHMAD ALIAS ZAHOORI Versus THE STATE
NAZIR AHMAD BHATTI, J. --- Zahoor Ahmad alias -Zahoori and Allah Dad alias Dadu were convicted by Mr. Pervaiz Ali Chawla, Additional Sessions Judge, Pakpattan Sharif under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 by judgment, dated 16-3-1993 and each of them was sentenced to death. Convict Zahoor Ahmad alias Zahoori had challenged his conviction and sentence by Criminal Appeal No.89/L of 1993 in hand, while convict Allah Dad alias Dadu has challenged his conviction and sentence by Criminal Appeal No.90/L of 1993. The learned Additional Sessions Judge has also forwarded Murder Reference No.1/1 of 1993. Since both the appeals and the murder reference have arisen from the same judgment, they are being disposed of by this single' judgment being recorded in Criminal Appeal No.89/L of 1993 in hand.
2. Complainant Jamshaid Ali Khan went to the house of his brother Zafrullah at about 4-00 p.m. on 4-11-1991 on his motor-cycle. At about 8-00 p.m. he and his brother Zafrullah both went on their respective motor-cycles to the Forest Department Office for receiving rent of their house which was being occupied by the Forest officials. In the way P.W.11 Iftikhar Ahmad Khan, their cousin, met them who was seated by the complainant on his motor-cycle. They received crossed cheque No.285852/02994 drawn on National Bank of Pakistan Vehari and returned at about 8-20 p.m. Zafrullah was going ahead and when they reached Charagh Shah graveyard they saw two unknown persons both having wheatish complexion with stout body of average height. Both the latter stopped Zaffarullah. The latter caught one of them who asked his other companion to rescue him. Thereupon, the other accused fired a pistol shot on the left ear of Zafrullah whereafter the cheque, an amount of Rs.1,600, a photo copy of the identity card and white handkerchief inscribed with the name of Zafrullah were snatched from him. As a result of injury Zafrullah died at the spot. Both the accused also took away the motor-cycle of Zafrullah bearing No.PK-670. When the complainant and his cousin Iftikhar Ahmad Khan went ahead to rescue the victim they were threatened by the accused. Jamshaid Ali Khan went to Police Station, Saddar, Pakpattan Sharif at 9-25 p.m. and submitted a written complaint which was incorporated in F.I.R. No.498/91 of the same date.
3. Appellant Allah Dad was already under police custody in connection with a case under the Arms Ordinance and he was formally arrested on 7-3-1992 while appellant Zahoor Ahmad was arrested on 12-4-1992. At the instance of appellant Allah Dad a photo copy of identity card of deceased was recovered from his house on 9-3-1992. At the instance of appellant Zahoor Ahmad one pistol 30 bore with two live cartridges and one handkerchief with the name of the deceased inscribed on it were recovered on 20-4-1992 from his house. Motor-cycle of the deceased was recovered from P.W.15 Abdul Sattar on 17-12-1991 by the P.W.18 Muzaffar Rashid, Inspector. The contention of P.W.15 Abdul $attar was that he had purchased the said motor-cycle from both the appellants and he produced its receipt executed on 8-11-1991 to P.W.12 A.S.I. Mukhtar Hussain on 4-3-1992. However, statement of P.W.15 Abdul Sattar under section 161, Cr.P.C. was recorded on 8-2-1992.
4. After investigation both the appellants were sent up for trial before the Additional Sessions Judge, Pakpattan Sharif who charged both of them under section 17(4) of the Hudood Ordinance, to which both the accused pleaded not guilty and claimed trial.
5. At the trial the State produced 21 prosecution witnesses, out of whom P.W.2 complainant Jamshaid Ali Khan and P.W.11 Iftikhar Ahmad Khan are eye-witnesses of the occurrence. The dead body of deceased Zafrullah was examined by P.W.17 Dr. Liaqat Ali Bhatti on the same night at about 10-00 p.m. The doctor carried out the autopsy on the dead body and found the following injuries on his body:--
"(1) ????? A fire-arm circular wound on the left side of neck 8 c.m. below and behind the left ear. Wound was 1/2 c.m. x 1/2 c.m. in size. The edges were inverted and balanced and there was blackening around the wound up to 2 c.m. and blood was coming out through the wound. This was the wound of entry.
(2) ??????? A lacerated gunshot wound on the right cheek 3 x 1/2 c.m. in size and edges were everted. The wound was 4 c.m. from the nose and 1 c.m. above the right corner of moustaches. That was wound of exit. These injuries were ante-mortem.
6. The doctor gave the opinion that death had occurred due to excessive bleeding from both the injuries which were sufficient to cause death in ordinary course of nature. The death had occurred about few minutes after receiving the injuries.
7 ????????? In order to prove the charge against both the appellants, the State relied upon the testimony of the two eye-witnesses and the incriminating material recovered at the instance of the appellants.
8. In so far as the eye-witnesses are concerned, the first and foremost aspect to be kept in mind is that P.W.2 Jamshaid Ali Khan is real brother of the deceased Zafrullah whereas P.W.11 Iftikhar Ahmad Khan is their cousin. As such both the eye-witnesses are closely related to the deceased. However, this circumstance should not stand in the way of the efficacy of both the eye?witnesses provided it is true and is corroborated by other incriminating evidence. P.W.2 Jamshaid Ali Khan had deposed that at about 8-00 p.m. he, his deceased brother Zafrullah and his cousin P.W.11 Iftikhar Ahmad Khan had gone to the Forest Office to receive cheque of the rent amount, that after the receipt of the cheque they were returning when they were confronted by both the appellants that appellant Allah Dad was caught hold of by his brother Zafrullah deceased and he called for help of his co-accused and thereupon appellant Zahoor alias Zahoori fired a pistol shot on the neck behind the left ear of his brother which made exit from the right cheek of the deceased, that thereafter appellant Allah Dad took out from the right side pocket of the shirt of his brother a crossed-cheque, photo copy of national identity card, handkerchief inscribed with his name and an amount of Rs.1,600 and thereupon both the appellants fled away from the spot. This witness further stated that his brother died at the spot and that the occurrence had been seen by them in the light of the motor-cycle. This witness went to the police station but in the way he met Inspector Ameer Mussarat Hussain to whom .he gave the written complaint. Similar is the deposition of P.W31 Iftikhar Ahmad Khan. However, the latter in his statement under section 161, Cr.P.C. recorded on 13-11-1991 had stated that the culprits looked like Ali Sher and Rashid alias Sheedi. Both these witnesses had also identified the appellants. P.W.11 Iftikhar Ahmad Khan identified appellant Allah Dad in the identification parade held on 3-3-1992 in Central Jail, Sahiwal. On 8-4-1992 both the eye-witnesses identified appellant Zahoor Ahmad in the same jail. Apparently the testimony of both these witnesses is the same but no evidence had come on the record that both the appellants were known to the said eye-witnesses or their faces were familiar to them. The occurrence took place at about half past eight in the night where there was no light and it was difficult to observe the features of any person. As such the testimony of both these witnesss is not free of all doubt. Even otherwise when the appellants were alleged to have committed murder of one person, why they had spared the other two. It is also very significant that there were two motor-cycles but why the appellants took away one leaving the other with the witnesses. It shall thus be seen that the ocular testimony is neither credible nor trustworthy and is entirely insufficient to I prove the guilt of the appellants.
9. Much stress was laid on the recovery of the motor-cycle of the deceased with the recovery of a motor-cycle from P.W.15 Abdul Sattar, handkerchief with the name of the deceased at the instance of Zahoor Ahmad and photo copy of national identity card of tlhe deceased at the instance of appellant Allah Dad. In so far as the recovery of motor-cycle of the deceased is concerned, that was not recovered from any of the appellants but was produced by P.W.15 Abdul Sattar who alleged that he had purchased it from both the appellants and in that respect he produced a receipt which was alleged to have been executed by both of them on 8-11-1991. However, this receipt was produced before the Investigating Officer on 4-3-1992, although Abdul Sattar was examined on 17-12-1991. Besides the receipt there is no other evidence on the record to show the actual purchase of this motor-cycle by Abdul Sattar from both the appellants. This receipt was in his possession when he was examined on 17-12-1991 but it was produced before the Investigating Officer on 4-3-1992. The affair of the sale of this motor-cycle by both the appellants to Abdul Sattar is also not free of doubt. Besides the recovery of the motor-cycle from P.W.15 Abdul Sattar there is no other evidence as to how it came into his possession. It is also very strange that the motor-cycle was recovered from Abdul Sattar on 17-12-1991 while he was examined under section 161, Cr.P.C. on 8-2-1992. This also throws a further shadow of doubt on the allegation that the appellants had robbed the motor-cycle of the deceased. We have strong reasons to believe that the receipt was bogus and forged and P.W.15 Abdul Sattar had no valid reason to offer as how he had come into possession of the motor-cycle of the deceased. There are two attesting witnesses of the receipt copy Exh.P.L., named Rafique son of Chiragh Din and lqbal alias Bala son of Lai Din but none of them was produced in evidence to prove the execution thereof. The receipt was sent to the Handwriting Expert but he was not called as a witness in the Court. These circumstances further throw a shadow of doubt on the execution of the receipt. It appears that an effort was made to entangle both the appellants by recovering handkerchief from the house of appellant Zahoor and photo copy of the national identity card of the deceased from the house of appellant Allah Dad. We have not been impressed by the recoveries of these two articles. We fail to understand as why both the appellants should have kept these articles with them which were a clear and direct evidence of their guilt. The first impulse of a man of prudent nature would be to get rid of such incriminating articles. On the other hand we are also mindful of the fact that both these articles are very easy to plant in the case. We are, therefore, of the opinion that evidence in respect of the recovery of these articles suffered from padding. Although one pistol of .30 bore was alleged to have been recovered from appellant Zahoor Ahmad but neither any B empty was recovered from the spot nor any bullet was recovered from the injury sustained by the d9ceased. So, the recovery of the said pistol was meaningless.
10. It was contended on behalf of the State that the report of the occurrence was very promptly made and that it excluded all possibility of fabrication. No doubt the F.I.R. was recorded after about one hour of the occurrence but for the aforesaid reasons we have come to the conclusion that since it did not disclose the names of the culprits, its efficacy was of not much help to the prosecution. The mere fact that the post-mortem report corroborated the prosecution story would also not be of much help because it was obvious that the two injuries sustained by the deceased were very clear.
11. Both the appellants had denied the commission of the offence in their statements recorded under section 342, Cr.P.C. However, they did not make any deposition on oath. But since the prosecution had failed to prove the guilt of the appellants beyond any doubt, their failure to make a statement on oath could not be given any serious consideration. It is also interesting to note that the learned Additional Sessions Judge imposed Hadd on the appellants but he had not carried out ?Tazkiya al-Shuhood? of the eye-witnesses.
12. For the aforesaid reasons we have come to the conclusion that no sufficient evidence was brought on the record to prove the guilt of both the appellants. Consequently both the appeals are accepted. The conviction and sentence of both the appellants recorded on 16-3-11303 by the learned Additional Sessions Judge, Pakpattan Sharif are set aside and they are C acquitted of the offence for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case.
The Murder Reference No.l/I of 1993 is not confirmed.
N.H.Q./847/FSC ??????????????????????????????????????????????????????????????????????????????? Appeals accepted,