' Applicant Majeedur Rahman was booked in Crime No,303/94 under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as 'the Ordinance') registered at Police Station Korangi alongwith two other accused namely, Aqeel and Muhammad Asif.
2. Prosecution story as narrated by the complainant Anees Ajmairi in F.I.R. Discloses that the complainant runs vegetable and fruit business at Empress Market. On 30-5-1994 when he was in his shop his neighbour Anwar Bhai informed him that some incident of dacoity had taken place in his house. After receiving this information, he left for his house where his wife informed him that at about 2-30 p.m. She was in the house when she heard some knock at the door of the house. A minor girl, who was present in the house, opened the door. All of a sudden three young boys having ages of 18/20 years and who seemed to be Muhajirs entered in the house. Two of them were armed with pistols while the third one was empty-handed. The complainant's wife and the girl were confined in the kitchen by the accused persons and then they took away golden necklace, 4 ladies rings, one chain, ear-rings, one Rado watch and cash of Rs,43,000 from the almirah which was lying in the bed-room. Subsequently, all the three accused ran away in a yellow taxi parked outside the house. The complainant asserted that his wife could identify the accused persons if brought before her. Police after'the registration of the case, started investigation during which Aqeel alias Arif and Muhammad Asif son of Ghulam Muhammad were arrested in the beginning and subsequently on their pointation applicant Majeedur Rahman was arrested on 4-7-1994 from his house in presence of witnesses. Identification parade was held on 5-7-1994 and the accused persons were identified by the complainant's wife namely, Mst. Noorjahan who is one of the eye-witnesses. Initially F.I.R.
Was lodged under section 20 of the Ordinance but subsequently the challan was submitted under section 17(3) of the Ordinance.
3. Learned counsel for the applicant has contended that in the light of the facts mentioned in the F.I.R. As well as in the challan, the offence alleged against the applicant does not attract section 17(3) of the Ordinance. I fully agree with this contention because for the purpose of punishment under section 17(3) of the Ordinance proof is required in accordance to section 16 of the said Ordinance according to which the provision of section 7 of the Ordinance shall apply mutatis mutandis for the proof of Haraabah. Section 7 of the Ordinance runs as under:-- "7. Proof of theft liable to had.--The proof of theft liable to hadd shall be in one of the following forms, namely:--
(a) the accused pleads guilty of 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."
' In the present case the victim is a lady and only one eye-witness other than the victim is a girl so the requirement of two eye-witnesses other than the victim is not fulfilled.
4. Although the contents of the F.I.R. Supported by recovery and identification parade do not attract section 17(3) of the Ordinance, yet the offence of the accused persons cannot be thrown out of the ambit of section 20 of the Ordinance which runs as under:-- "20. Punishment for haraabah liable to tazir.-Whoever commits Haraabah which is not liable to the punishment provided for in section 17, or for which proof in either of the forms mentioned in section 7 is not available, or for which punishment of amputation or death may not be imposed or enforced under this Ordinance, shall be awarded the punishment provided in the Pakistan Penal Code (Act XLV of 1860), for the offence of dacoity, robbery or extortion, as the case may be."
Thus, it is clear that even if the accused may not be punished under section 17(3), they cannot escape their skin from the punishment of Tazir provided the alleged offence is proved against them. According to the learned counsel for the applicant, in such situation, section 385, P.P.C.
Would be applicable to the present case for which punishment is imprisonment for a term which may extend to two years or with fine or with both. Without touching the merits or demerits of the case, I am unable to agree with the learned counsel because if the offence is proved against the accused persons, then it may attract section 386 as the victims were put in fear of death or of grievous hurt on the point of fire-arms kept by two accused persons and, therefore, the punishment of the accused persons could be imprisonment for a term which may extend to ten years apart from fine. In such circumstances, the offence of the accused persons is not excluded from the prohibitory clause of section 497, Cr.P.C.
5. Learned counsel for the applicant has assailed the procedure adopted by the Magistrate and the Investigating Officer for the purpose of conducting identification parade to bring the case within the ambit of further enquiry under section 497(2), Cr.P.C. In support of his contention he has relied upon the case of Muhammad Suleman Dehri v. The State reported in 1993 PCr.LJ 726. In that case the accused persons had looted one bank but the bank manager had failed to identify the accused and moreover, one senior advocate of the High Court namely, Mr. Rasool Bux Palijo had filed his affidavit that the accused was arrested from some other place. Moreover, the High Court of Sindh had been informed about the wrongful detention of the applicant prior to the time of arrest shown by the police in the record, hence the said case is not applicable to the present case. In the case of Khamiso and another v. The State reported in 1981 PCr.LJ 1225 the accused persons had been arrested on 27-5-1981 while their identification test was held on 21-6-1981 i,e, after about 26 days while in the present case identification parade was held on the very next day of their arrest. In the case of Khadim Hussain and another v. The State reported in 1989 PCr.LJ 2432 the witnesses were taken from one place to another along with the accused persons, hence their identification by those witnesses was totally meaningless. In the case of Abdul Qadir Khokhar v. The State reported in 1992 PCr.LJ 662 the accused persons were not put to identification test hence it is strange that the learned counsel for the applicant has relied upon such judgment which is not applicable to the present case in any manner whatsoever. Case of Ghulam Rasool and 3 others v. The State reported in 1988 SCM R 557 was decided by the Honourable Supreme Court against the judgment of the Punjab Special Court for Speedy Trial in appeal. As the present case has not finally been decided, therefore the above-cited case would not be applicable to the present case.
Resultantly, I find no force in the contentions raised by the learned counsel for the applicant, hence the bail application is dismissed. However, if the trial Court fails to record the evidence of eye- witnesses within two months, then such conduct would not be appreciated by this Court.