JUDGMENT SARDAR MUHAMMED DOGAR, J.- This appeal is directed against the judgment dated 6.6.1996 by Additional Sessions Judge Dera Ghazi Khan whereby the learned Additional Sessions Judge convicted the appellant under section 17 of the Offences Against Property ( Enforcement of Hudood ) Ordinance. 1979 and sentenced him to undergo R.I. For three years plus to suffer ten stripes. Co-accused tried alongwith the appellant was acquitted vide the same judgment.
2. F.I.R. Ex. PC/1 was registered on 16.8.1992 at 10.10 p.m. At Police Station Saddar Dera Ghazi Khan by Anees-ur-Rehman MHC on receipt of statement Ex. PC of Muhammad Sarfraz (P.W. 2) recorded on the same day by Muhammad Akram, AS1 at 10.00 p.m. At Railway Bridge.
According to F.I.R, appellant alongwith his two companions, one of whom was armed with a gun had stopped the complainant and his brother when they ware going on motorcycle to their village.
They tried to snatch motor-cycle. On resistance by the complainant and his brother, accused armed with gun caused injuries with the butt of the gun. The complainant and his brother caught Yasin (appellant) and in spite of harassment; they did not release him. People came there on the.
Alarm raised by the complainant and his brother, whereupon the companions of the appellant ran away.
The complainant had gone to lodge the report leaving the appellant in the custody of the P.Ws, present at the spot.
The ASI after reaching the spot had arrested the appellant and had taken into possession motorcycle standing there.
Challan was submitted to Court after completion of necessary investigation. One of the accused who had been traced and located, could not be arrested so he was shown as absconder.
3. At the trial statement of eight P.Ws, were recorded.
4. The appellant during statement under section 342 Cr.P.C, denied the prosecution case and pleaded innocence. He had examined in defence one witness in support of the plea that he had not been arrested at the spot.
5. Learned counsel for the appellant after having gone through the evidence argued the matter at some length, but then decided not to Challenge the facts of prosecution case. He however, argued that the conviction under section 17 of the said Ordinance was not maintainable and that at the best the appellant can be convicted for any offence falling within Pakistan Penal Code.
6. It appears from the record and evidence that the learned trial Judge had not resorted to Tazkiya Al-shuhood before recording statements of the witnesses. He had not adopted any other mode also to observe that the witnesses who were before him had clean history and had not been committing sins or telling lies.
The proof required for conviction under section 17 of the said Ordinance has been laid down in section 7 of the said Ordinance. In this regard, the relevant clause for the purpose, is. Clause of section 7 of the said (ordinance which reads as follows:
(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 (kobain. Give evidence, as eve-witnesses of the occurrence: Provided that, if the accused is a non-Muslim the eyewitnesses may be non-muslims: Provided further that the victim of the theft or the person authorized by not shall be recorded before the statements of the eye-witnesses are recorded.
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."
It is apparent from the record, that the conditions required to be fulfilled for conviction under section 17 of the said Ordinance were neither looked for nor catered for. In the circumstances conviction under section 17 of the. Said Ordinance is not maintainable, the same is, therefore, set aside.
The case of the appellant falls within offences punishable under P.P.C. The only offence attracted to the facts, of the case. Is. Section 393 PPC which caters for the offenders who make attempt to commit robbery. The attempt made in this case to rob the motorcycle had not succeeded.
Neither the appellant nor any of his companions'" had succeeded in removing the motorcycle from the custody of the complainant. The motorcycle remained at the spot There they had stopped the complainant.
Keeping in view- all the above facts, trie appellant is convicted -under section 393 PPC and sentenced to undergo R.I. For 1-1/2 years. Benefit of section 382-B Cr.P.C, shall be extended.
The appellant is on bail. He shall be caused to be arrested through non- bailable warrants and lodged in jail to undergo the remaining sentence.