' JUSTICE AJMAL MIAN (CHAIRMAN).---By this common judgment, we intend to dispose of the above three appeals. Criminal Appeal No,12 of 1991 has been filed by two convicts, namely, Murid Abbas son of Hidayat Khan and Muhammad Akram son of Muhammad Khan, who have been convicted under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, read with section 395, P.P.C. And have been awarded imprisonment for life and a fine of Rs,5,000 each or in default in payment of fine, to undergo one year R.I. Through the judgment dated 7-10-1991 passed by the learned Special Court for Speedy Trials-I, Lahore, in Speedy Trial No,3 of 1991, whereas Criminal Appeal No,15 of 1991 has been filed by three convicts, namely; Shafqat Rasul son of Ghazanfar Ali, Naeem Akhtar son of Muhammad Sharif, and Sibtul Hassan son of Zahoor-ul-Hassan, against the above judgment as they have also been convicted under the above provisions of law but have been awarded lesser sentence, namely, seven years' R.I. And a fine of Rs3,000 each or in default thereof, to undergo six months' R.I.
' Appeal No,23 of 1991 has been filed by the State for the reason that the learned Special Court, instead of convicting the above convicts under section 37 of the Ordinance, convicted them under section 20 thereof.
2. The brief facts are that on 29-10-1990, the above five appellants committed dacoity in the Branch of National Bank of Pakistan situated in Chak No,104/N.B. At a distance of about 15 K.Ms. From Police Station Jhal Chakian, District Sargodha, in presence of P.W.2 Malik Muhammad Afzal, the Manager of the Bank, P.W.3 Muhammad Afzal, the Cashier, P.W.4 Noor Muhammad and Ali Muhammad (given up witness), the Guards. After the culprits left, the Bank cash was checked and it was found that the culprits had taken away an amount of Rs,82,566. The above P.W.2 Malik Muhammad Afzal sent a complaint in writing (Exh.PA.) to the above police station, on the basis of which F.I.R.
(Exh.PA/1) was registered at 12-45 p.m. By P.W.1 Zulfiqar Ali, S.I. The version given in the above written complaint was that in presence of the above Bank's employees and 4/5 public persons who had come to deposit electric bills, four persons with pistols in their hands who were young of the ages of 25-30 years, clad in Shalwar Kameez of white colour, entered the Bank. The above four persons were of middle stature but one of them was of good height and one of them was of a short stature.
It was alleged that after entering the Bank premises, they extended threats and made their hands up. One of them stood in front of the Manager with pointed pistol, the other entered the cash counter and pushed Noor Muhammad, Guard, and Muhammad Afzal, Cashier, to the eastern room which was also used as a passage and stood in front of them, the third accused pushed Ali Muhammad, Guard, in the western room. One of them remained near the gate and one of them removed the cash lying on the counter and in the drawer. It was further alleged that the Bank staff went out from the rear door and tried to chase the above culprits while they were fleeing from the place of Wardat, but one of the culprits who was standing at the gate armed with a gun, started firing in the air. Then all of the five culprits made good their escape on two motorcycles and proceeded towards Chak No,103/N.B. It is the case of the prosecution that P.W.6 Safdar Ali Wahla, Inspector C.IA., on the information received by him from P.W.5 Muhammad Nawaz, Muhammad Nawaz son of Muhammad Bakhsh (given up witness) and one Fateh Khan (who was not cited as a witness), to the effect that the above five appellants alongwith three other persons were at the Dera of D.W.1 Rashid and were making preparations for committing another Bank dacoity, registered F.I.R. No,356 at Police Station Saddar Shahpur under section 399/402, P.P.C. And conducted a raid at the above Dera on 5-11-1990 and arrested the above five appellants alongwith one Nazar Hayat, but the other two persons, namely, Muhammad Aslam alias Dingu and Sarfraz were able to run away. The above arrested accused were sent on judicial remand to the Jail at Shahpur. It was also the case of the prosecution that P.W.1 Zulfiqar Ali, S.I., after recording the F.I.R., made search for the culprits but was not able to trace them. However, when on 5-11-1990 he reached Shahpur in connection with the arrest of the above appellants, he was informed by P.W.6 Safdar Ali Wahla that he had already arrested the above appellants. It is the further case of prosecution that P.W.1 Zulfiqar Ali, S.I. Moved application for the identification parade of the accused in Jail and finally under order of A.D.C. (G), Sargodha, the same was arranged on 20-11-1990 under the supervision of P.W.7 Sarwar Hayat, M.I.C. In which P.W.2 Malik Muhammad Afzal, Manager of the Bank, P.W.3 Muhammad Afzal, the Cashier, P.W.4 Noor Muhammad, Guard, and Ali Muhammad, Guard (given up witness) participated. P.Ws.2 and 3 correctly pointed out the above five appellants as the culprits of the occurrence, while P.W.4 Noor Muhammad identified four accused but could not correctly pick up Muhammad Akram. Ali Muhammad (given up witness) could not identify the appellants Muhammad Akram and Shafqat Rasul.
3. The case was investigated by Anwar Beg, S.I. Who was not examined at the trial, as according to the statement of the Public Prosecutor before the Additional Sessions Judge, Sargodha, he was on death bed and admitted in the hospital at Lahore. He recovered cash from the appellants as follows:--
(i) Appellant Naeem Akhtar from the Baithak of his residential house in Chak No,85/N.B. Got recovered Rs,16,513 i.e, one bundle ^e currency notes of Rs,100 each (Exh.P.1/1-100), five bundles of currency notes of Rs, 10 each (Exh. P.2/1-5), two bundles of currency notes of Rs, 5 each (Exh. P.3/1- 2), five bundles of currency notes of Re.1 each (Exh.P.4/1-5) and 13 loose currency notes of Re.1 each (Exh.P.5/1-13). Another sum of Rs,300 was also recovered at his pointation which was in the form of six currency notes of Rs,50 each.
(ii) Appellant Shafqat Rasul led to the Baithak of his house in Istaqlal Colony, Sargodha, and got recovered an amount of Rs,16,513 i.e, one bundle of currency notes of Rs,100 each (Exh.P.6), a bundle of 100 currency notes of Rs,50 each (Exh.P.7), ten loose currency notes of Rs,100 each (Exh.P.8/1-10), 100 currency notes of the denomination of Rs,5 each (Exh.P.(1-100), 13 loose currency notes of Rs,100 each Exh.P.10/1-13).
(iii) Appellant Murid Abbas led to his residential Dera in village Mangowal and got recovered Rs, 16,513 i.e, 32 loose currency notes of Rs, 100 each Exh. P.11/1-32), 2 bundles of the currency notes of Rs,50 each (Exh.P.12/1-2), three bundles of currency notes of Rs,10 each (Exh.P.13/1-3), 60 currency notes of Rs,5 each (Exh.P.14/1-60) and 13 loose currency notes of Rs,100 each (Exh.P.15/1-13).
(iv) Appellant Sibtul Hassan led to the recovery of Rs,16,513 i.e, one bundle of 100 currency notes of Rs,100 each (Exh.P.16), one bundle of currency notes of Rs,50 each (Exh.P.17), three bundles of Rs,5 each (Exh.P.18)/1-3), two loose currency notes of Rs,5 each (Exh.P.19/1-2) and three loose currency notes of Re.1 each (Exh.P.20/1-3);
(v) Appellant Muhammad Akram led to the recovery of Rs,16,513 from a room of his house in the village Thatta Noon i.e, one bundle of currency notes of Rs,100 each (Exh.P.21), 5 bundles of the currency notes of Rs,10 each (Exh.P.22/1-5), three bundles of the currency notes of Rs,5 each (Exh.P.23/1-3) and 13 loose currency notes of Re.1 each (Exh.P.24/1-13).
4. It may be observed that the above bundles of the currency notes recovered from the appellants contained the stamp of the Bank and initials of P.W.3 Muhammad Afzal, the Cashier. Upon the completion of investigation, the appellants were charged under section 17 of the Ordinance, to which they pleaded not guilty.
5. The prosecution in support of the case, examined the above three eyewitnesses, namely, P.Ws.2, 3 and 4 i.e, Malik Muhammad Afzal, the Manager of the Bank, Muhammad Afzal, the Cashier, and Noor Muhammad, the Guard of the Bank, respectively, who reiterated the version given in the F.I.R.
Besides examining P.W.1 Zulfiqar Ali, S.I., P.W.5 Muhammad Nawaz son of Haji Allah Bakhsh, who had allegedly overheard the conversation between the appellants and the other three persons when they were sitting at the Dera of D.W.1 Rasheed and were making preparations for committing another robbery, P.W.6 Safdar Ali Wahla, Inspector, P.W.7 Sarwar Hayat, M.I.C. Who supervised the identification parade, P.W.8 Fazal Imal, Head Constable, who identified the handwriting of Anwar Beg, S.I. And produced the record of the investigation conducted by the latter including memos. Of the recovery of the currency notes.
6. The defence produced D.W.1 Rashid, the owner of the Dera, who denied the factum that the police raided his Dera or arrested any of the appellants. The appellants in their statements under section 342, Cr.P.C. Denied the fact of having committed the offence. The appellant Murid Abbas in his statement alleged that there was litigation between his brother and a relation of P.W. 2 Malik Muhammad Afzal (Haji Ahmad), who remarried the divorced wife of his brother about the guardianship of their minor daughter. He produced a copy of the guardianship petition (Exh.DD) and the copies of Daily Urdu newspapers, namely, "Daily Tajarat" of 4-11-1990 and 6-11-1990 and of "Daily Daawat-e-Ammal" dated 1-11-1990 (Exhs.DF, DE and DG, respectively) published from Sargodha, whereas the appellant Shafqat Rasul in his statement, after having denied the commission of the offence, stated that P.W.4 Noor Muhammad, Guard, was inimical to their family.
7. The learned Special Court, after hearing the learned counsel for the State and the appellants through its above judgment, recorded the above convictions and awarded the aforementioned sentences. In consequence thereof, the above three appeals have been filed in this Court.
8. In support of Criminal Appeal No,12 of 1991, Mr. Asif Saeed Khan Khosa, learned counsel for the appellants, has urged that the convictions and sentences against the appellants cannot be sustained, inter alia, for the following reasons:--
(i) that P.W.2 Malik Muhammad Afzal attempted to suppress his relationship with Haji Ahmad who was having litigation with the brother of appellant Murid Abbas about the custody of the minor child and, therefore, his evidence cannot be relied upon, firstly, for the reason of suppression of fact, and secondly, his relation Haji Ahmad was on inimical terms with the brother of appellant Murid Abbas;
(ii) that P.W.5 Muhammad Nawaz's version that he overheard the conversation between the present appellants and the other three persons while passing near the Dera of D.W.1 Rashid, has been disbelieved by the learned Special Court and, therefore, the appellants were not arrested in the manner alleged by the prosecution;
(iii) that the identification parade was not conducted in accordance with law and, therefore, identification of the appellants allegedly made by the eye-witnesses cannot be relied upon;
(iv) that the recovery of the currency notes from the appellants has not been proved in accordance with law; and
(v) that the testimony of the other two eye-witnesses, namely, P.W.3 Muhammad Afzal and P.W.4 Noor Muhammad also cannot be relied upon.
' Mr. Muhammad Munir Khan, learned counsel for the appellants in Criminal Appeal No,15 of 1991 while adopting the arguments of Mr. Khosa, has urged that the omission on the part of prosecution to examine the Investigating Officer, Anwar Beg, S.I. Is fatal to the prosecution case and vitiated the trial. His further submission was that no case under section 391, P.P.C. Has been made out by the prosecution as admittedly the appellant Sibtul Hassan had not actually participated in the commission of dacoity but was standing outside the gate.
' On the other hand, Mr. MA. Zafar, learned counsel for the State, has urged that there was ample reliable evidence on record to sustain the conviction, none of the eye-witnesses was inimical to any of the accused, and that the alleged irregularity in the identification parade of the accused is not fatal to the case. His further submission in support of the State appeal was that the learned Special Court was not justified in convicting the accused under section 20 of the Ordinance read with section 395, P.P.C. Instead of section 17 of the Ordinance read with section 395, P.P.C.
9. Adverting to the above first submission of Mr. Khosa that P.W.2 Malik Muhammad Afzal attempted to suppress his relationship with Haji Ahmad who was having litigation with the brother of appellant Murid Abbas about the custody of the minor child and, therefore, his evidence cannot be relied upon, firstly, for the reason of suppression of above fact and secondly, his above relation, Haji Ahmad was on inimical terms with the brother of appellant Murid Abbas, it may be observed that it is true that the learned Special Court in the judgment under appeal has observed that P.W.2 Malik Muhammad Afzal tried to suppress his relationship with Haji Ahmad, but this fact itself will not be sufficient to exclude his testimony from consideration. Rule of prudence may demand that his evidence is to be corroborated by some other independent reliable piece of evidence or circumstance as has been held by the Supreme Court in the case of Muhammad Latif and another v. Muhammad Hussain and 9 others (PLD 1970 SC 406) and by the Federal Court in the case of Muhammad Afsar v. The Crown (PLD 1954 FC 170) and the case of Bhalu and others v. The Crown (PLD 1955 FC 432). The cases relied upon by Mr. Khosa, namely, the case of The State v. Iqbal and 3 others (1986 P Cr. L J 215) and the case of Afzal v. The State (1990 P Cr. LJ 540) decided by Single Judges of the High Court, are distinguishable from the present case. In any case, the same cannot hold good against the above view of the Supreme Court and the Federal Court.
10. We may also observe that the mere fact that Haji Ahmad, one of the relations of P.W.2 Malik Muhammad Afzal, had litigation with the brother of appellant Murid Abbas; would not render the above witness as an interested witness, as he had no personal motive against the above appellant. Nothing has been brought on record by the defence to demonstrate that factually the above P.W.2 had known the appellant Murid Abbas even by face prior to the commission of the offence. Even if we were to treat him as an interested witness, the ratio laid down by the Supreme Court in the case of Nazir and others v. The State (PLD 1962 SC 269) and the case of Roshan and 4 others v. The State (PLD 1977 SC 557), would be applicable, namely, his evidence would require corroboration. There is ample evidence on record which is not only sufficient to furnish the required corroboration but the same can be made the basis for sustaining conviction even if the evidence of P.W.2 is to be discarded. Nothing concrete has been brought on record against P.W.3 Muhammad Afzal, the Cashier, and P.W.4 Noor Muhammad that they had any motive to implicate the appellants falsely. Their evidence is sufficient to sustain conviction.
11. As regards the above second submission of Mr. Khosa that P.W.5 Muhammad Nawaz's version that he overheard the conversation between the present appellants and the other three persons while passing by near the Dera of D.W.1 Rashid, has been disbelieved by the learned Special Court and, therefore, the appellants were not arrested in the manner alleged by the prosecution, it may be stated that it is true that the trial Court had discarded the evidence of P.W.5 Muhammad Nawaz for good reasons. Mr. Khosa has referred to the case of Fakku Mia alias Motahar v. The State (1969 SCM R 620), in which the Supreme Court allowed the appeal of a convict by holding that the evidence of a chance witness on the factum of conspiracy was not reliable. He has also invited our attention to the fact that in one of the above daily Urdu Newspapers produced by the appellant Murid Abbas, there was news item of arrest of the appellants published on 1-11-1990. We may observe that the learned Special Court has discarded the above newspaper for the reason that the Reporter of the above news item was not examined. Reliance was placed on the case of Barkat Ali v. The State (1970 PCr.LJ 87) and the case of Khorshed Aspi Jamula v. Aspi Dossabhoy Jamula (PLD 1960 Kar. 178). In our view, the learned Special Court has rightly discarded the above newspaper in the absence of any proof of the truthfulness of the news item. However, it is evident that the appellants were not arrested on 5-11-1990 in the manner alleged by the prosecution, but one fact is apparent from the material on record that they were remanded to Jail on 5-11-1990 and P.W.1 Zulfiqar Ali, S.I. Effected arrest in connection with the F.I.R. In question on the above date. The factum that the appellants were arrested earlier than 5-11-1990, would not be fatal to the prosecution case if there is otherwise reliable evidence on record to prove the fact that the appellants had committed the offence.
12. Reverting to Mr. Khosa's third submission that the identification parade was not conducted in accordance with law and, therefore, identification of the appellants allegedly made by the eye- witnesses cannot be relied upon, it may be observed that in furtherance of his above submission, he has invited our attention to the factums that the ratio of the dummy was 1 to 5, fetters were not removed from the appellants, no objection was invited from the appellants etc. And that, in any case, since the P.Ws. 2, 3 and 4 had not given the details of the part played by each of the appellants in the commission of the offence, the identification of the appellants is to be ignored.
Reliance was placed by him on the case of Khadim Hussain v. The State (1985 SCM R 721), the case of Ghulam Rasul and 3 others v. The State (1988 SCM R 557), the case of Mosharraf Hossain v. The State (PLD 1970 Dacca 686), and the case of Muhammad Yaqoob and another v. The State (1989 P Cr.LJ 2227). The ratio of the above cases seems to be that if the object of the identification parade was to provide corroboration for the role which accused persons played in commission of a particular offence, simpliciter identification of the accused without identification of the role played by each of the accused has no evidentiary value.
' On the other hand, Mr. MA. Zafar, learned counsel for the State, has referred to the case of Ali Muhammad and another v. The State (1985 SCM R 1834), wherein Muhammad Afzal Zullah, J. (as his Lordship then was) inter alia dilated upon the question of failure on the part of witnesses to describe the overt acts of accused persons in the commission of the offence while picking them in the identification parade as follows:-- "The point regarding failure of the eye-witnesses to utter same words at the time of pointing out a culprit at a parade, though of some importance is not of any inviolable right or rule. That also depends upon the facts of each parade and the type of witnesses. In this case they were, as already indicated, highly responsible persons. They already stood committed in their statements so as to identify the culprits of this case. The description of the culprits in the previous statements of the witnesses in this case is the one which might be expected in a normal daylight dacoity. The discrepancies pointed out at the bar do not furnish enough reason for rejecting the identification.
The parade in a case like the present one is only a test regarding a corroboratory factor. Otherwise the substantive evidence is the statements of the eye-witnesses and the identification done during the deposition at the trial. This evidence in the present case is enough for conviction independent of the availability of other equally valuable evidence."
From the abovequoted passage from the above authority, it is evident that identifying of the part played by each of the accused persons while identifying them in an identification parade by a witness, is of some importance but is not an inviolable rule. The effect of the above omission will depend on the facts of each case. In the present case, the eye-witnesses had gone to attend the identification parade with the object to identify the persons who had committed dacoity in their Bank and, therefore, the factum that they had picked up the appellants implies that they were the persons who committed the above offence. The omission to identify the part of each of the above appellants in the present case by the witnesses may not be fatal.
13. In any case, the recovery of the robbed currency notes from the apellants at their pointation inter alia in the form of the above bundles of the currency notes containing the Bank stamp and initials of P.W.3 reinforces the identity of the appellants keeping in view that each of the appellants led to the recovery of 1/5th of the amount robbed.
14. As regards the above fourth submission of Mr. Khosa that the recovery of the currency notes from the appellants has not been proved in accordance with law, it may be stated that he has invited our attention to the fact that Anwar Beg, Si. Who was the person responsible for the recovery of the above currency notes from the appellants, has not been examined by the prosecution.
According to him, this is fatal to the prosecution case. Mr. Muhammad Munir Khan, to reinforce the above submission, has relied upon the case of State v. Muhammad Rafique (1984 P.Cr.LJ 961), the case of Allah Ditta v. The State (PLD 1958 SC (Pak.) 290), and the case of Ahmad Bux v The State (1982 P Cr. L J 758).
' On the other hand, Mr. MA. Zafar, learned counsel for the State, has submitted that the statement of the Public Prosecutor that Anwar Beg, S.I. Was seriously ill and, therefore, could not be examined was not challenged by the defence and as the same was accepted by the learned Special Court, it is not open to the appellants' counsel to agitate the above point.
' In the above first case neither the Enquiry Officer nor Police official who recorded the F.I.R. And conducted investigation, was examined by the prosecution. A Division Bench of the Sindh High Court has held that the above omission had seriously prejudiced the accused and trial was vitiated on the above ground. The acquittal judgment was maintained. In the second case, the Supreme Court held that the fact that.The witness could not be found should be proved by direct evidence of person who went to execute summons. Whereas; in the third case, a learned Single Judge of the Sindh High Court has held that secondary evidence was not admissible as no Process-Server was examined to prove that any effort to serve summons of Court upon the witness, was made.
15. The above cases are distinguishable from the present case. It seems to be correct that the defence did not challenge the veracity of the Public Prosecutor's statement that Anwar Beg, S.I. Was seriously ill and, therefore, could not be summoned. P.W.1 Zulfiqar who recorded the F.I.R. And conducted the investigation inasmuch as he arrested the appellants, has been examined. It is true that Anwar Beg, S.I. Was the Police Officer who recovered the above currency notes at the pointation of the appellants. Since P.W.4 Noor Muhammad, Mashir, has been examined to prove the recoveries, the omission to examine the above Police Officer for the above reason cannot be treated as fatal to the prosecution case.
16. Reverting to the last submission of Mr. Khosa that the testimony of the other two eye-witnesses, namely, P.W.3 Muhammad Afzal and P.W.4 Noor Muhammad also cannot be relied upon, it may be observed that in furtherance of his above submission, he has urged that the above witnesses were in fact acting at the behest of P.W.2 Malik Muhammad Afzal, the Manager of the Bank, and that there are certain infirmities in their testimony. We are unable to subscribe to the above submission that the above two eye-witnesses were acting at the behest of P.W.2, Malik Muhammad Afzal. In our view, the recovery of the amount robbed from the Bank by the appellants containing Bank stamp and initials of P.W.3 Muhammad Afzal is a very strong piece of evidence on record, which corroborates and reinforces the prosecution's other evidence. It was half heartedly contended by Mr. Khosa that the alleged recovered money was in fact extorted by the police from the relations of the appellants. But there is not an iota of evidence on record to support the above submission. This was not even suggested to the prosecution witnesses.
17. As regards Mr. Muhammad Munir Khan's submission that no case under section 391, P.P.C. Has been made out by the prosecution as admittedly the appellant Sibtul Hassan had not actually participated in the commission of dacoity but was standing outside the gate, it may be observed that in support of his above submission, he has referred to section 391, P.P.C. It may be advantageous to reproduce the same, which reads as follows:-- "391. Dacoity.---When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt, amount to five or mbre, every person so committing, attempting or aiding is said to commit `dacoity'."
' A perusal of the abovequoted section inter alia shows that when five or more persons conjointly commit or attempt to commit a robbery and persons present and aiding such commission or attempt, every person so committing, attempting or aiding is said to have committed "dacoity".
18. According to the eye-witnesses, Sibtul Hassan was one of the above five appellants, who were involved in the commission of the above offence in terms of the above definition. The factum that he was standing near the gate or outside the gate, does not make any difference as the appellants had come to the Bank with the common unlawful object to commit dacoity. The above overt act on the part of Sibtul Hassan was in fact an act of aiding in the commission of robbery.
19. We have considered the question of quantum of sentence awarded to the two appellants in Appeal No,12 of 1991, namely, imprisonment for life and a fine of Rs,5,000 as compared to seven years' R.I. To the three appellants and a fine of Rs,5,000 in Appeal No,15 of 1991. The reasons found favour with the learned Special Court are contained in para.16 of the judgment, which reads as follows:-- "16. Learned counsel for the accused further argued that the accused were very young, they were all students except Murid Abbas and so in the matter of punishment lenient view may be taken.
Murid Abbas was employed in the Pak Army and according to his statement was on leave during the days of occurrence. He, therefore, does not deserve any leniency. He is sentenced to imprisonment for life under section 20 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 (Ordinance VI of 1979) read with section 395, P.P.C. And a fine of Rs,5,000 or in default thereof one year's R.I. Muhammad Akram is aged 25 years and is a student of law (F.E.L.).
The propensity to crime at such age and stage does not call for lenient treatment. He is also sentenced to imprisonment for life and a fine of Rs,5,000 or in default thereof one year's R.I. Shafqat Rasul, Naeem Akhtar and Sibtul Hassan accused are about 21 years of age each, the former two P.A. Students and the latter a P.T.C. Student. In their case it can be said that perhaps they acted under the evil influence of their elder two co-accused, namely, Murid Abbas and Muhammad Akram. They are, therefore, sentenced to 7 years' R.I. Each and a fine of Rs, 5,000 each or in default thereof six months' R.I. Each under section 20 of the Ordinance read with section 395. P.P.C."
20. We are inclined to hold that the sentence of imprisonment for life seems to be very harsh keeping in view the ages of the above two appellants and the factum that nothing has been brought on record by the prosecution to indicate that the above appellants were previously convicted in any similar case. We would, therefore, reduce the sentence to ten years' R.I. In place of imprisonment for life. However, we would maintain the imposition of fine. The upshot of the above discussion is that Criminal Appeal No,12 of 1991 is dismissed with the above modification in the sentence, and Criminal Appeal No,15 of 1991 is also dismissed.
21. This leads us to the Criminal Appeal No,23 of 1991 filed by the State. The learned Special Court has recorded the following reasons for convicting the appellants under section 20 instead of section 17 of the Ordinance:-- "15. Learned counsel for the accused contended that the offence under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Ordinance VI of 1979) calling for penalty of Hadd was not made out as the proof required under section 17 ibid was not forthcoming.
He pointed out that three eye-witnesses were the Bank employees and so they being the victim of the offence themselves, the offence of Haraba punishable with Hadd was not made out. To this the learned Assistant Advocate-General, had no reply. The contention is upheld. However, the offence of Haraba calling for the punishment of Tazir in view of section 20 ibid stands proved against the accused. They are, therefore, convicted for the same."
The above conclusion seems to be correct as section 7 of the Ordinance provides the nature of the proof required for making an accused person liable to Hadd. The above section reads as follows:-- "7. Proof of theft liable to Hadd. --The proof of theft liable to %add' shall be in one of the following forms namely:--
(a) the accused pleads guilty of the commission of theft liable to %add' 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 `tazkiyah-al-shuhood', that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the occurrene: ' Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslim: ' Provided further that the statement of the victim of the theft or the person authorised by him shall be recorded before the statements of the eye-witnesses are recorded."
22. A plain reading of the above section indicates that in order to convict a person under section 17, either accused should plead guilty of commission of theft liable to Hadd or at least two Muslim adult male witnesses other than the victim of theft about whom the Court is satisfied, having regard to the requirements of `tazkiyah-al-shuhood' that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the occurrence.
23. In the present case, the eye-witnesses being employees of the Bank responsible for the safe custody of the bank money, can be said to be victim of the offence. In this view of the matter, the State Appeal has no merits. It is also dismissed.