1. The convict-appellants have been sentenced to amputate their right hands from their wrists and left feet from their ankles 'under Section 17(3), The Offences Against Property (Enforcement of Hudood) Act, 1985 and also sentenced to three -years R.I under Section 324, A.P.0 alongwith sentence of Daman in tune of Rs. 45,000/- and one year R.I alongwith fine Rs. 1,000 /- each under Section 13/20/65 Arms Act, in default of which they have to undergo one month S.I. The benefit of Section 382-B, Cr.P.C. was also extended in their favour by District Criminal Court Mirpur on 19.12.2006.
2. The necessary facts forming the background of above captioned appeals and reference are that Talib Hussain, complainant, lodged a written F.I.R on 23.10.2003 at 1:00 p.m. alleging therein that he runs a Travels and Currency Exchange Office which is owned by Ch. Abdul Maalik, who is now-a- days residing in England. On the same day, at 8:30 p.m. he alongwith Arshad Mahmood was working in his office in the presence of 3/4 customers, meanwhile two young beard persons, one was tall while other was of medium stature, armed with lethal weapons entered the office with the intention to commit robbery. As soon as they entered in, they told all the persons to hands up and asked him and his companions to handover the money. When the accused persons tried to snatch away cash lying upon the counter, Arshad Mahmood resisted, thereupon one of the accused fired a shot of pistol with the intention to do away with his life which hit him on his neck. On making hue and cry, accused-persons snatched away cash lying on the counter and fled away. The accused did not seem to be locals; however, he can identify them.
3. The complainant further contended that after examining his office he will narrate the details of stolen money. Arshad Mahmood, injured has been referred to the hospital.
4. On this report, a case under Sections 324/34, APC read with Section 17(3), The Offences Against Property (Enforcement of Hudood) Act, 1985 (hereinafter to be referred as the Act) was registered by Sikandar Hayat (P.W.9) SI/SHO Police Station Thothal. Soon after the occurrence, accused- persons were apprehended and two .30-bore pistols alongwith four magazines having seventeen live rounds and cash Rs. 67,000/- were recovered by Sardar Ghalib Hussain (P.W.7) on the pointation of Muhammad Tariq accused vide recovery memo. Exh.PD whereas one .30-bore pistol alongwith three magazines, twenty nine live rounds, seventy six currency notes of five hundred rupees, fourty three currency notes of fifty rupees, eight currency notes of Saudi Rayals of five hundred each, four currency notes of two hundred Saudi Rayals, ten currency notes of five hundred dollars each, one hand grenade, one mobile phone and one Knife were taken into possession by Sardar Ghalib Hussain (P.W.7) at the instance of Muhammad Nadeem accused vide recovery memo. Exh.PE attested by Mirza Maqsood Ahmed S.I Police (P.W-5) and Kh. Abdul Qayyum (P.W.8).
5. He collected blood from the place of occurrence vide recovery memos. Exh.PF&PG and also took into possession two empties of .30-bore pistol vide recovery memo. Exh.PH and Pakistani Rupees, Hong Kong dollars, Pounds and' Ravals from the counter of the looted office vide recovery memo.
6. Exh.PJ in presence of the above mentioned prosecution witnesses. On the same day, he handed over aforesaid money to Talib Hussain (P.W.1) on his Superdnama Exh.PC and prepared site-plan Exh.PL. The injury form of Arshad Mahmood injured Exh.PZ was prepared by Sikandar Hayat SI/SHO (P.W.9), who was examined by Dr. Jhangir Qaiser (P.W.6) vide its Medical Examination Report Exh.P.Y. The patient was referred to PIMS Islamabad for further treatment.
7. According to medical Examination report, Arshad Mahmood injured sustained the following injuries:--
1. A circular wound of 5mm diameter, a wound of entry on right side of neck.
2. A circular wound of 5-6mm of diameter left side of neck.
3. An abrasion on chest and forhead.
4. An abrasion on left cheek.
8. After usual investigation, the accused-respondents were sent to face trial before District Criminal Court Mirpur in the aforesaid offences alongwith an offence under Section 5, The Explosive Substances Act, 1908 to which they did not plead guilty.
9. The prosecution produced Talib Hussain (P.W.1), Khalid Mahmood (P.W.2), Muhammad Mushtaq (P.W.3), Arshad Mahmood (P.W.4), Muhammad Mushtaq Junior Clerk DHQ Hospital Mirpur instead of Dr.Jhangir Qaiser (P.W.6), Sardar Ghalib Hussain SI (P.W.7), Kh. Abdul Qayyum SI (P.W.8) and Sikandar Hayat SI/SHO Police Station Thothal(P.W.9). Mirza Moqsood Ahmed (P.W.5) was abandoned by the prosecution.
10. The salient features of prosecution evidence and incriminating material were put to the accused- respondents for their explanation as required by Section 342, Cr.P.C. but they refuted the prosecution evidence and claimed to be innocent. They also appeared in the Court as witnesses and were examined on oath. During purgation, the prosecution witnesses were found `Adil'.
11. After hearing arguments of the learned counsel for the parties, the District Criminal Court Mirpur awarded aforementioned sentences to the accused-appellants vide its judgment dated 19.12.2006.
12. The aforesaid judgment has been challenged by the accused-appellants for their acquittal and by the complainant fur ennancement of the sentences.
13. The trial Court has submitted the proceedings to this Court for confirmation of Hadd sentence under Section 31, IPL read with Section 25 of the Act, under Criminal Reference No. 86 of 2006. I propose to dispose of both the appeals and a reference together.
14. In support of the appeal, Raja Muhammad Shafique Khan, Advocate, the learned Counsel zealously argued that the trial Court has committed an illegality while passing an order of conviction and sentence against the convict-appellants. The learned Counsel further contended that an incomplete challan was presented on 7.11.2003 after 15 days of the occurrence but the names of Khalid Mahmood (P.W.2) and Muhammad Mushtaq (P.W.3) were not incorporated in the challan as eye-witnesses whereas they were cited as P.Ws in the complete challan filed on 7.2.2004, which creates suspicion and doubt upon the veracity of the prosecution story. The learned Counsel agitated that according to the prosecution, the appellants were arrested after half an hour of the occurrence but they were not named in the F.I.R whereas the F.I.R was also lodged after half an hour of the alleged occurrence. The learned Counsel pointed out that Mirza Maqsood Ahmad (P.W.5) was withheld whereas he was an important witness of the prosecution, which also creates a dent on the prosecution version. The learned Counsel stressed upon the point that Dr. Jhangir (P.W.6) was not produced before the trial Court and on his behalf Muhammad Ishtiaq junior clerk of DHQ Hospital Mirpur was produced; therefore, medical examination report cannot be taken into consideration against the appellants. The learned Counsel pressed into service the submission that the punishment of Harrabah under Section 17(3) of the Act, cannot be imposed upon the appellants because the statement of victim Arshad Mahmood was recorded after recording the evidence of Muhammad Mushtaq an alleged eye-witness whereas under Section 7 of the Act, the statement of the victim has to be recorded before the statement of eye-witnesses. The learned Counsel laid great stress upon the point that the prosecution has not produced any witness, which could define `Nisab' of the stolen property. The learned Counsel maintained that the purgation was not conducted in a legal fashion because the report of `Tazkia-al-Shahood' was addressed to District Criminal Court Bagh instead of District Criminal Court Mirpur. The learned Counsel pointed out that discharge certificate of Arshad Mahmood from PIMS Islamabad was not produced in support of the prosecution case and allegedly recovered pistol or the blood collected from the place of occurrence were not sent to experts for their opinion, therefore, the medical evidence and evidence of recovery of blood and pistol is not worthy of any credence. Similaily, according to the prosecution, one shot was fired by the pistol but two empties were recovered from the place of occurrence and furthermore, the bullet was not produced before, the trial Court. The learned Counsel vigorously argued that the witnesses for recovery are police officials and one of them was abandoned and no independent person of the locality was produced before the trial Court in support of the prosecution story; therefore, recovery evidence is not reliable. The learned Counsel stressed upon the point that numbers of recovered currency notes were not recorded; therefore, it cannot be proved that the recovered money was in fact stolen property. The learned Counsel finally submitted that in the light of site-plan produced during the prosecution evidence, the injury by a fire-arm could not be caused to Arshad Mahmood (P.W.4) but the trial Court failed to appreciate the evidence in its true perspective and has drawn wrong conclusion; therefore, the impugned judgment may be set-aside and the appellants may be acquitted of the charge. In support of his contention, the learned Counsel cited the following authorities:--
1. PLD 1981 FSC 132;
2. 1994 SCR 25;
3. 1994 P Cr.L J 1591;
5. 2001 SCR 286; &
6. 2006 P Cr.L J 639; On the contrary, Mirza Aziz-ur-Rehman, the learned Asst. A.G appearing on behalf of the State submitted that it is a daylight occurrence whereby F.I.R was promptly lodged and the accused- appellants were arrested soon after the occurrence. The learned Counsel further contended that the stolen property was recovered from the appellants and the complainant identified them in his statement recorded under Section 161, Cr.P.C. whereby Arshad Mahmood (P.W.4) also identified them while he was admitted in the hospital after sustaining injuries. The learned State Counsel maintained that the recovery of stolen property has been proved by sufficient and reliable evidence whereas the evidence of complainant, Arshad Mahmood victim alongwith two eye- witnesses Khalid Mahmood and Muhammad Mushtaq is cogent, clear and trustworthy, which has rightly been relied upon by the trial Court. The learned Counsel pointed out that Nisab' for theft liable to Hadd is also complete. The learned State Counsel vehemently argued that Arshad Mahmood victim was severely injured and after discharging from the Hospital, his statement under Section 161, Cr.P.C. was recorded; therefore, the belated statements of the victim and eye-witnesses cannot be ignored on this score. The. learned State Counsel further submitted that the prosecution is not duty bound to produce all of its witnesses and withholding of evidence of Mirza Maqsood Ahmad (P.W.5) is not fatal to the prosecution case. The learned State Counsel agitated that as the P.Ws or police do not nurse any grudge or enmity against the accused-persons; therefore, the belated statements of victim and the eye-witnesses do not render any help to the appellants. The learned State Counsel pointed out that during their statements on oath the appellants have admitted that they were arrested from viewpoint. The learned State Counsel finally submitted that the prosecution has proved its case beyond any shadow of reasonable doubt, therefore, the impugned judgment may be upheld.
15. The complainant or his learned Counsel did not appear before the Court on the day of arguments rather Raja Inamullah Khan, the learned Counsel for the complainant submitted that he has been directed by the complainant not to pursue the counter appeal.
16. I have very carefully attended to the submissions made at Bar in the light of material available on the record. The first point that deserves attention is whether in the circumstances of the case `Hadd' punishment can be imposed.upon the appellants. For elucidating the matter, it would be expedient to reproduce Section (7) of the Act, which reads as under:-- 'Proof of theft liable to `Hadd':--The proof of theft liable to `Hadd' shall be in one of the following forms, namely:-- (a)the accused pleads guilty of the commission of theft liable to `Hadd'; and (b)at least two Muslim adult male witnesses, other than the victim of the theft about whom the Court 'is satisfied, having regard to the requirements of Tazkiya-al-Shuhood, that they are truthful persons and abstain from major sins (Kabair), give evidence as eye-witnesses of the occurrence: Provided that, if the accused, is a non-Muslim, the eye-witnesses may be non-Muslims, Provided further that the statement of the victim of the theft or the person authorized by him shall be recorded before the statements of the eye-witnesses are recorded.
17. Explanation.--In this Section, Tazkiya-al-Shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness."
18. The perusal of the above section reveals that besides other requirements, it is also essential that two Muslim adult male witnesses, other than the victim of the theft should give evidence as eye- witnesses of the occurrence and furthermore the statement of the victim of the theft shall be recorded before the statements of the eye-witnesses are recorded. Firstly, it has to be ascertained whether two Muslim adult male eyewitnesses are available in the instant case. The prosecution has produced two eye-witnesses namely Khalid Mahmood (P.W.2) and Muhammad Mushtaq (P.W.3) in support of its version. A close scrutiny of the deposition of aforesaid witnesses shows that the statements of both the eye-witnesses under Section 161, Cr.P.C. were recorded on 18.12.2003 after one month and twenty-five days of the occurrence. Now the question arises whether the aforesaid delay in recording the statements of P.Ws under Section 161, Cr.P.C. is fatal to the prosecution case or not.
19. It is vehemently argued by the learned Counsel for the appellants that the evidence of both the eye-witnesses is not reliable because it has been recorded by I.O. after one month and twenty five days of the occurrence. The learned Counsel pointed out that after the occurrence, both the prosecution witnesses have been visiting the Police Station and they have also been meeting the Police Officials; therefore, the prosecution has miserably failed to furnish reasonable explanation of the delay for recording the abovementioned statements under Section 161, Cr.PC,.
20. On the other hand, the learned counsel for the State submitted that Arshad Mahmood the victim was admitted in the hospital and as soon as he was discharged, he produced both the eye- witnesses.
21. Keeping in view the peculiar facts of the case, I am not convinced by the explanation furnished by the learned Counsel for the State. A careful perusal of the Statements of Khalid Mahmood (P.W.2) and Muhammad Mushtaq (P.W.3) reveals that they have also failed to give reasonable explanation for their delayed examination. In this regard, Khalid Mahmood (P.W.2) deposed that before recording his statement the police did not summon him, however, he went to the Police Station once, after 20 days of the occurrence but came back because nobody was available there.
22. Similarly, Muhammad Mushtaq (P.W.3) testified that before recording of their statement he and Khalid Mahmood (P.W.2) were summoned by the Police and they also went to the Police Station after two, days of the occurrence. He further stated that after 3rd day of the occurrence he again went to the Police Station, stayed there but his statement was also not recorded. It is necessary to mention here that incomplete challan was presented in the trial Court on 7.11,2003 but names of the bye-witnesses were not mentioned therein which shows that till 7.11.2003 the prosecution was not sure as to whether the P.Ws. 2 & 3 witnessed the occurrence' occurrence or not, but later on they were nominated as eye-witnesses to cement the case of prosecution. In this manner, it has been proved on the record that both the prosecution witnesses remained available to the police soon after the occurrence but their statements were not recorded till 18.12.2003 in the case of a heinous offence like `Harrabah', therefore, the statement of both the eye-witnesses namely Khalid Mahmood (P.W.2) and Muhammad Mushtaq (P.W.3) cannot be relied upon.
23. In Budho's case (PLD 1965 (W.P) Karachi 76), the statement of P.W recorded four days after the incident, was ruled out of the consideration in a murder case.
24. My view finds further support from the case titled 'Dr. Khalid Moeen & another Vrs: The State & others" 2006 PCr.LJ 639 whereby, the following principle was enunciated at Page 651 of the report:-- "The Honorable Supreme Court of Pakistan examined the question of delay in recording the statement under Section 161, Cr.P.C. in the authorities referred to by the learned Advocates for the appellants. The Honorable Supreme Court in the case of Muhammad Khan (supra) has observed that statement under Section 161, Cr.P.C. recorded with delay without any plausible explanation causes serious suspicion on the credibility of witnesses, therefore, such evidence was not relied upon. In the case of Muhammad Sadiq (supra) there was delay of 24 hours. The witness was friend of the deceased but he did not disclose to any one for the said period that he saw the murder, therefore, such evidence was not relied upon. In the case of Sahib Gul V. Ziarat Gul, 1976 SCM R 236, there was delay of four days in recording the statement by the police when the P.Ws. were running shops near the place of the incident and also going with the complainant to the police station, therefore, the evidence was not relied upon. In the case of Sayed Saeed Muhammad Shah (supra) statement under Section 161, Cr. P.C. was recorded after delay without explanation of such delay.
25. The said statement was ruled out of consideration. Similar view was taken by High Courts of Sindh, Lahore and Peshawar in the above referred authorities relied upon by the learned Advocates for the appellants.
26. From the above case-law it is clear that if the police did not record the statement of witness immediately and delay is caused in recording such statement then a reasonable explanation is required to be furnished by the prosecution for such delay. If a reasonable explanation is furnished then the evidence of witnesses can be relied upon. If not, then such delay affect the veracity of witnesses and the evidence is to be disbelieved and discarded as held by the Honorable Supreme Court of Pakistan."
27. As discussed earlier, it has been amply proved on the record that P.Ws. have made certain improvements to prove that they had witnessed the occurrence. Muhammad Mushtaq (P.W.3) is serving as 'driver with Khalid Mahmood (P.W.2) who was taken to police by his Master Khalid Mahmood for recording the Statement. In such state of affairs, the deposition of both the prosecution witnesses is not worthy of any credence and cannot be relied upon.
28. There is another aspect of the case, which creates more difficulty for the prosecution to bring the case in the ambit of Section 17(3) of the Act. As mentioned above, under Section 7 of the Act, to prove the evidence of theft liable to `Hadd', the statement of the victim, of the theft has to be recorded before the statement of the eye-witnesses. According to prosecution, both Talib Hussain (P.W.1) and Arshad Mahmood (P.W.4) are victims but the statement of Muhammad Mushtaq (P.W.3) was recorded before the recording of the statement of Arshad Mahmood (P.W.4), a victim.
29. The statement of Muhammad Mushtaq (P.W.3) was recorded on 18.05.2005 whereas the statement of Arshad Mahmood (P.W.4) was recorded on 07.07.2005 by the trial Court; therefore, the punishment of theft liable to `Hadd' cannot be awarded to the appellants.
30. It will not be out of place to mention here that where Islamic Law has provided harsh punishments for the offences, at the same time it requires the highest standard of evidence. The Common Law requires proof beyond reasonable shadow of doubt whereas Islamic Law requires conclusive proof of the offence. Thus, until and unless the offence is not proved conclusively by the highest standard of witnesses who are known to be truthful persons and restrain from `Kabairs', the punishment of Hadd cannot be awarded to an accused. It is an enriched principle of Islamic Law that it is better to acquit an accused rather to convict an innocent person.
31. It is laid down:-- "(Whenever possible, save the Muslims from the sentence (punishment). Do it whenever you find any loophole; because it is better for the Imam (Judge) to err in acquittal than in conviction.
32. Tirmizi)
33. (If there is any possible way of doing it, save God's creatures from conviction and punishment, Ibn- i-Maja)
34. (Ward of Punishment with doubts, i.e. if any doubt arises, avoid conviction. Masnad Abi Hanifa)."
35. Islamic Law requires that Hadd punishment should be avoided as much as possible and if a slightest doubt arises, Hadd punishment should be set-aside. It has been laid down as under:-- "Hazrat Aisha (R.A.) narrated that the Prophet (S.A.W.S) directed. Do away the Muslim from Hudood as much as possible and in case he could get out of Hadd (conviction), provide him with his freedom of movement. This is because if authority makes error in acquittal, it is better than committing error in conviction (Jamie Tirmizi, Kitab-ul-Hudood).
36. Abu Huraira narrated that the Holy Prophet (p.b.u.h) ordained that whenever it is possible, avoid the Hudood (punishments), (Ibn-e-Majja) (Kitab-ul-Hudood).
37. Zuhuri said 'Avoid Hudood (punishment) due to every-type of doubt' (Musannaf by Ibn-e-Abi Shaiba, Vol. 9 (Kitab-ul- Hudood). (1998 P.Cr.L J 383).
38. In this view of the matter, we hold that the required evidence under Section (7) of the Act, is not forthcoming. Consequently, Hadd cannot be imposed in the appellants Muhammad Tariq and Muhammad Nadeem under Section 17(3) of the said Act. They, however, can be convicted of a `Ta'zir' offence under Section 20 of the Act.
39. Coming to the case of punishment for Harabah liable to `Ta'zir', it is relevant to point out that even after ignoring the evidence of P.Ws. 2 & 3, there is sufficient evidence on the record to implicate the appellants with the commission of the offence of robbery and attempt to murder. In the instant case, the F.I.R' was promptly lodged and soon after the occurrence, the accused were arrested and the weapons of offence alongwith the stolen money, as stated in earlier part of the judgment were recovered from them on their pointation. The accused also admitted during their statements on oath that they were arrested from Quaid-e-Azam Chowk. Talib Hussain, complainant and. Arshad Mahmood, an injured eye-witness, have clearly deposed that both the accused-appellants entered the shop and snatched away the cash lying upon the counter. On making resistance, the accused, who was of short stature fired a shot which hit Arshad Mahmood upon his neck. The stolen money was recovered from both the accused soon- after the occurrence. Sardar Ghalib Hussain Inspector Police (P.W.7) and Kh. Abdul Qayyum Sub-Inspector Police (P.W.8) testified the recoveries of lethal weapons and stolen money. The style of cross-examination and suggestions put to Kh. Abdul Qayyum P.W also prove that stolen money was recovered from the accused- persons as alleged by the prosecution. For instance, it was suggested to him as under:-- {{URDU TEXT}} The P.W further deposed:-- {{URDU TEXT}} It was further suggested as under:-- {{URDU TEXT}} Sardar Ghalib Hussain Inspector Police (P.W.7) testified as under:-- {{URDU TEXT}} I find little force in the plea of the learned Counsel for the appellants that due to the non- availability of respectables of locality, the recovery evidence of Police Officers cannot be relied upon. In the instant case, the appellants were arrested soon after the occurrence from viewpoint and the stolen property dlongwith lethal 'weapons were recovered from them at the spot. Thus, the non-participation of locals cannot destroy the effect of recovery evidence.
40. It is by now settled position of law that strict compliance of Section 103, Cr.P.C. is not necessary in case of recoveries or seizure memos. made by the Police. (2001 SCR 240). Although Section 103, Cr.P.C. provides a very important safeguard for accused-persons against possible chicanery and concoction on the part of delinquent Investigating Officers but mere non-compliance of provisions of Section 103, Cr.P.C. cannot vitiate the proceedings; therefore, defence is duty bound to show that there was either miscarriage of justice or accused was prejudiced in his trial or defence. (PLD 1989 F.Sh.Court 17).
41. So far as the evidence of Police Officers is concerned, it may be stated here that the police officers are also good witnesses like other witnesses particularly when no animus or hostility is proved on the record against them for false implication of an accused. In the instant case, the appellants have not proved any motive or enmity against the police officers for their false involvement. In this regard, reference can be made to a case reported as State v. Muhammad Saeed Khan & another (PLD 1979 AJ&K 28), it was, held that the police man could be as good a witness as another witness.
42. In order to discredit him, it was essential to bring on record something to prove motivation for making false testimony."
43. In another case titled as Khalid & another v. The State (PLJ 1983 SC (AJ&K) 98), it was opined that "apart from the medical evidence there is evidence of the Investigating Officer to the effect that he observed these injuries while preparing the injury forms. There is not a slight suggestion by the defence of his being partial or inimical to the appellants. His evidence, therefore, is as good and reliable as that of any other witness."
44. The same view was affirmed by the Apex Court in a case titled. Muhammad Asif v. The State (2002 SCR 108), it was observed that the law now stands settled that the police witnesses are as good witnesses as any other witnesses, especially so when no enmity or motive on the part of police has been shown by the defence for false involvement of the accused."
45. The next aspect of the case relates to an objection raised by the learned Counsel for the defence that Mirza Maqsood Ahmad (P.W.5), an important recovery witness, was given up by the prosecution, thus, it adversely affects the case of prosecution. I cannot subscribe to the view of the learned Counsel for the appellants because prosecution is not duty bound to produce all of its witnesses as no particular number is fixed to prove an offence. The prosecution has produced Sardar Ghalib Hussain (P.W.7) and Kh. Abdul Qayyum (P.W.8) to prove the recoveries; therefore, non-production of Mirza Maqsood Ahmad (P.W.5) will not create any dent in the testimony of aforesaid witnesses. My aforesaid view finds support from a case titled, Muhammad Rafique & another v. The State & another (1999 SCM R 1208), wherein it has been held that The non-production of Zulfiqar and Mukhtar Ahmad, the injured eyewitnesses, does not in any way discredit Muhammad Ismail and Muhammad Boota P.Ws, for, it is not necessary that the prosecution must produce all the persons witnessing the occurrence. No particular number of witnesses is fixed under the law to prove the offence of murder.
46. The same view was also taken by Apex Court of AJ&K in a case reported as Abdul Aziz v.
47. Muhammad Lal & 2 others (2000 SCR 375), whereby it was observed that "After hearing the respective contentions of the learned Counsel for the parties and perusing the record, it may be stated at the very outset that it is not duty of the prosecution to produce each and every Witness cited in the calendar of challan. It depends on the will of the prosecution to produce such witnesses whom it deems necessary for proving the guilt of the accused. However, if the evidence of any of the witnesses is so material that in absence of it no just decision could be pronounced by the Court, the Court is competent to summon such witness and record his statement. Therefore, the argument advanced by the learned Counsel for the complainant-appellant that for proving the prosecution case the evidence of P.Ws. 5 & 9 was not material is not without substance. The prosecution was not bound to produce each and every witness cited in the calendar of challan. If the evidence of P.Ws. 5 & 9 was at all material that would damage prosecution case and not the defence. In this view of the matter, we agree with the contention of the learned Counsel for the appellant that in the circumstances of the case when the other recovery witnesses on the same point were examined by the prosecution, the evidence of P.W.9 which relates to certain recovery memos. was not essential. Similarly as stated by the learned Counsel for the complainant- appellant that if the motive as alleged by the prosecution stands established from other material brought on record, the evidence of P W.5 was also not material. Thus the ground made basis for remand of case, in our view, does not sound good and the same is therefore rejected."
48. The next point which requires determination is whether the value of stolen property is not equal or less than of the Nisab on the date of theft. It is necessary to mention here that the value of Nisab has been provided as 4.457 grams gold under Section (6) of the Act, whereas 4.457 grams make only a fraction of a tola. The price of gold per tola has reached about Rs. 44,000/- but at the time of occurrence i.e. 23.10.2003, the price of gold per tola was not more than Rs. 20,000/-. In the present case, Rs. 40,150/-, 4800 Rayals and 10 dollars were recovered on the pointation of Nadeem accused whereas Rs. 67,000/- at the instance of Tariq accused. Thus, value of the stolen property is much more than Nisab. However, in the present case, the appellants have to be punished in `Ta'zir' therefore, the question of Nisab loses its importance. The contention of the learned Counsel is not tenable and rejected.
49. I cannot subscribe to the view of the learned Counsel for the appellants that due to absence of identification parade, the appellants cannot be charged with the offence. Suffice to mention that the complainant deposed in his statement recorded under Section 161, Cr.P.C. that he identified the accused who committed the occurrence whereas Arshad Mahrnood injured P.W testified that he identified the accused-persons when they were brought in the hospital, as admitted by the defence through its suggestion that the accused were taken to the hospital soon after their arrest.
50. Therefore, it does not render any help to the defence that the identification parade was not held by Investigating Officer. The non-mentioning of names of the accused in the F.I.R. does not create any suspicion upon the prosecution version because till that time they did not know the names of the accused-persons. Similarly, letter of Tazkia addressed to District Criminal Court Bagh instead District Criminal Court Mirpur is clerical error and an inadvertence, which also does not make the prosecution story doubtful.
51. It is admitted on the record that the prosecution did not produce a discharge certificate from PIMS Islamabad and medical examination report Exh.PY is also not complete because according to Dr. Jhangir Qaiser (P.W.6), the final report was to be given after issuance of a report from PIMS Islamabad. Furthermore, Dr. Jhangir Qaiser (P.W.6) did not appear before the Court. In support of prosecution case, instead Muhammad Ishtiaq, Junior Clerk DHQ Hospital Mirpur was produced before the trial Court for verification of his signature on medical report Exh. PY, but the proper procedure was nat adopted for recording his secondary evidence. The scrutiny of the file shows that on receiving the report that Dr. Jhangir Qaiser (P.W.6) who is serving in Sialkot Pakistan, the prosecution was ordered to produce him at his own by the trial Court. Thereafter, on the application of learned Counsel for the complainant; the record keeper was summoned who refused to recognize the signature of (P.W.6) thereupon, Muhammad Ishtiaq, a Junior Clerk was summoned without any application and adopting proper procedure.
52. It is by now an enriched principle of criminal law that without proving on the record that numerous attempts were made by the prosecution to prove that doctor was summoned to appear before the trial Court as a witness but he was not available at the relevant time; the secondary evidence cannot be recorded. It was incumbent upon the trial Court to record the evidence of Process Server to prove that Dr. Jhangir Qaiser was not available but the trial Court recorded the statement of Muhammad Ishtiaq, Junior Clerk, in a hasty manner without recording of any proof for non- availability of Dr. Jhangir Qaiser (P.W.6), therefore, the evidence of P.W Muhammad Ishtiaq, a Junior Clerk cannot be relied upon to prove the injuries on the person of Arshad Mahmood (P.W.4). (1992 SCMR 408).
53. The contention of learned Counsel appears to be well founded that blood-stained cord, the recovered pistols, two empties were not sent to the experts for their opinions; therefore, these pieces of evidence cannot be used as corroboratory evidence. However, in the light of ocular account furnished by complainant and Arshad Mahmood, injured P.W., coupled with recovery evidence is adequate and sufficient to prove the charge of robbery and attempt to Qati-i-Amd.
54. In view of aforesaid position, convincing, reliable and confidence inspiling evidence is available on the record to reach the conclusion that the appellants armed with lethal weapons committed robbery and fired a shot with a pistol which hit Arshad Mahmood on his neck; therefore, they are liable to be punished in `Ta'zir' under Section 392, APC read with Section 397, APC and sentenced to ten years R.I. The sentence of amputation is not confirmed. The reference is answered accordingly.
55. The sentences under Section 324, APC and 13/20/65 Arms Act, recorded by the District Criminal Court are maintained. The sentences shall run concurrentiy and the appellants shall also be entitled to the benefit of concession under Section, 382-B,' Cr.P.C. The Criminal Appeal No. 82/2006 filed by the convict-appellants is disposed off in the manner indicated above. Consequently, Criminal Appeal No. 13/2007 is dismissed.