SARDAR MUHAMMAD DOGAR, J.---Muzaffar Ali alias Zafri alias Shaboo, Zahid Hussain alias Zahid Butt and Liaqat Ali alias Bodi, were tried under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 by Additional Sessions Judge Camp at Tehsil Headquarter Cann: Lahore for having committed Harabah/robbery at about 2.15 during night between 23/24-3-1992 in the house of Khalid Nawaz (P.W.1) in Mohallah Ghausabad, Lakhuder Road, Lahore, at a distance of 2/1-2 k.m.s from Police Station Baghbanpura District Lahore.
Vide judgment dated 5-6-1996 they were convicted under section 17(3) of the said Ordinance and awarded punishment of Hadd as follows:- (a)Their right hands were ordered to be amputated from their wrists.
(b)Their left feet were ordered to be cut from near the ankles.
The execution of the sentences were subject to confirmation by this Court.
Convicts have filed appeal. The learned trial Judge has made reference for confirmation of the sentences. As both the matters have arisen from the same judgment, they are being disposed of together.
2. Occurrence in this case had taken place at 12.15 during night between 23/24-3-1992. F.I.R Exh.P.A/1 was registered at Police Station Baghbanpura Lahore on 24-3-1992 at 3.50 A.M. on receipt of complaint Exh.P.A. recorded by Muhammad Yousaf S.I (P.W.6) on the same day at Mohallah Ghousabad at 3.30 A.M. on the statement of Khalid Nawaz (P.W.1)
According to F.I.R Khalid Nawaz was sleeping in the Viranda of his house alongwith his brother Abid Naveed. The other family members were sleeping inside the room. On 23-3-1992 three unknown persons entered, the house at 12-15 (night) by scaling over the wall. One of them was holding carbine. He had grown beared. He was a stout person aged about 30/32 years, having a height of 5-7/8 and whitish colour. The second who was holding a pistol was also of whitish colour, normal height and aged about 24/25 years. Third who was holding a pistol and Churri was aged about 22/23 years. He was of a normal height and thin body. All were wearing shirts and Shalwars. They woke up the complainant and told him to get the door opened. On his refusal the person who was bearing beared gave him a blow on the head with the butt of the Carbine. Tahir Naveed brother of the complainant woke up hearing noise. Mst. Shamim Akhtar saw through the window and opened the door. Two accused entered the room while third remained standing in the Viranda. The accused who had entered the room robbed two sets of golden ornament, a pair of ear rings, two golden rings, all weighing about 6/1-2 tolas two sets of silver weighing about 5 tolas and cash of Rs,565 from the attache-case. While leaving they took away two bicycles of Eagle Company. The No, of one of which was CIL 02908P. (The complainant could not give the number of second bi- cycle) and went away riding cycle). The occurrence apart from the complainant was seen by Abid Naveed, Tahir Nadeem and Mst. Shamim Akhtar their mother.
3. Muhammad Yousaf S.I after despatching complaint Ex. PA to the police station for registration of case proceeded to the spot. He inspected the spot, recorded statements of the P. Ws and prepared rough site plan Ex. PD. He sent Khalid Nawaz complainant for medical examination as he had been caused injuries. .
Zahid Hussain who was under arrest with police of Police Station Kahnah was arrested by him on 17-4-1992. On the same day he sent him to judicial custody for identification parade. The investigation was thereafter entrusted to Muhammad Sharif, S.I.
4. Muhammad Sharif, S.I. (P.W.7) on coming to know that Muzaffar (accused in this case) Mansha and Anwar were under arrest with Police Station Hunjarwal went there and interrogated them. He sent them to camp jail on the same day for the identification parade. Liaqat (accused in this case) and Ashraf were also under arrest with police of Hanjarwal Police Station. Muhammad Sharif S.I interrogated them on 12-4-1992 and sent them also to camp jail for identification parade.
Identification parade of the accused was held at camp jail on 19-4-1992 under the supervision of Mr. Liaqat Ali Khalique, Magistrate 1st Class. Khalid Nawaz, P.W. 1, (complainant) and his brothers Tahir Nadeem, P.W.2, and Abid Naveed, P.W.3, participated in the parade and correctly identified, Muzaffar son of Barkat Ali, Liaqat Ali son of Allah Ditta and Zahid Hussain son of Abdul Ghafoor (appellants in this case) as the accused who had committed the Harabah in their house.
5.After the identification parade Muhammad Sharif obtained the custody of Zahid Hussain, Muzaffar and Liaqat Ali on police remand for interrogation and investigation.
On 8-5-1992 Zahid Hussain, after making disclosure got recovered, clothes, ornaments and prize bonds from a box lying in a house at Baidian Road, which were taken into possession vide memo Ex.PF/1. On 9-5-1995 Muzaffar alias Zafri got recovered golden ornaments, P/29 to P/36, four prize bonds of Rs,1000 each. 14 prize bonds of Rs,500 each and different clothes P-39 to P/66 from a box lying in his house at Katcha Jail Road. The articles were taken into possession vide memo Ex.PH/1.
On 10-5-1992, Liaqat Ali got recovered golden ornaments P/68 to P/70, five notes of Rs,100 each, one note of Rs,50, one note of Rs,10 and one note of Rs,5 (total Rs,565) from his house. These articles were taken into possession vide memo Ex.PJ.
All the three accused (appellants) had on 16-5-1992 pointed out the house, where they had committed robbery, turn by turn. The Sub Inspector had prepared memo Ex.PG on their pointation.
6. Mst. Nasira Tariq, P.W, joined the investigation of the case and identified neckless, P-1, Pandle, P-2, a pair of ear topics (P-3/1-2), ear rings (P-4/1-2) ring, P-5, ring P-6, another pair of ear rings P-7/1-2, another ring P-8 and another a pair of ear rings P-9/1-2 (all made of gold) as articles robbed from her parents house.
Khalid Nawaz P.W.1, had also identified these articles as their property. He had obtained all the articles on superdari including the sum of Rs,565 and had produced them before the trial Court during the hearing of the case.
It may be noted here that the accused had led to the recovery of articles stolen/decoyed from different houses and the complainants of the different cases, had picked up articles belonging to them, go recovered by different accused.
Challan was submitted to Court after completion of necessary investigation.
7. Statements of ten P.Ws were recorded at the trial.
Khalid Nawaz who had lodged the F.I.R., appeared as P.W.1 and gave the details of the occurrence of Harrabah. He also claimed to have participated in the identification parade of the accused alongwith his brothers Tahir Nadeem, Abid Naveed and of having successfully identified all the appellants as culprits. He also claimed to have identified the articles removed from his house and recovered from the appellants. Tahir Nadeem and Abid Naveed corroborated his statement.
8. Dr. Ihsan Elahi who had medically examined Khalid Nawaz on 24-3-1992 at 11.10 A.M appeared as P.W.4. He had noted a stitched wound of T-shape on the occipital rigion. Multiple abrasions on the left side of neck and multiple abrasions on left clavicular region. According to him the duration of injury was within 12 hours and were caused by blunt weapon.
Mst. Nasira Tariq, sister of Khalid Nawaz who had identified the ornaments robbed from the house of her brother as their property appeared as P.W.5 and stated so. During cross-examination she admitted that she was not in the house when robbery had been committed.
9. Muhammad Yousaf SI who had recorded statement Ex.PA Khalid Nawaz and had arrested Zahid Hussain on 17-4-1992 appeared as P.W.6 and stated so.
10. Muhammad Sharif SI who had arrested Muzaffar and Liaqat, had sent the judicial lock up for identification parade and had obtained their custody on police remand and taken into possession the articles got recovered by them (details of which have been mentioned in earlier part of the judgment) appeared as P.W.7 and gave the details of the investigation done by him.
Zulfiqai Ali constable who had witnessed the recovery at the pointing out of Muzaffar appeared as P.W.8 and verified that fact.
Awais Mazhar ASI, P.W.9, stated that Muzaffar while being in police custody led to his house on 9-5- 1992 and got recovered golden ornaments, prize bonds and clothes P-23 to P-67 which were taken into possession vide memo Exh.PH.
He further stated that Zahid Hussain accused led the police party to his residence on 8-5-1992 and got recovered ornaments P-10 to P-22 from there which were taken into possession vide memo Ex.PF. He further stated that Liaqat Ali had got recovered from his house on 10-5-1992 ornaments P- 68 to P-70, handkerchief P-71 and a sum of Rs,565 which were taken into possession vide memo Exh.PJ. According to him Muzaffar, Zahid and Liaqat had also led the police to the place of occurrence and pointed out the same for which memo Ex.PG was prepared.
11.Mr. Liaqat Ali Khalique, MIC, who had supervised the identification parade at Kot Lakhpat Jail Lahore on 19-4-1992 appeared as P.W.10 and stated that Muzaffar alias Zafri, Liaqat and Zahid were put to identification parade and that they were correctly identified by Abid Naveed, Babar Nadeem and Khalid Nawaz.
12.The appellants during statements under section 342, Cr.P.C, denied the prosecution case and pleaded innocence. They took up the plea that they had been involved in this case by the police due to enmity. Neither any of them produced any evidence in defence nor opted to make statement on oath under section 340(2), Cr.P.C.
13.We have gone through the evidence with the assistance of the learned counsel for the appellants and considered the arguments advanced by them.
14.Section 7 of the Ordinance in which the modes of the proof liable to Hadd have been laid down, reads as under:-- "Section 7 the 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-Shouhood, 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-Muslim.
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.
Explanation:- In this section, Tazkiya-Al-Shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of witness.
Section 16: Proof of Harrabah, reads as follows: "The provisions of section 7 shall apply mutatis mutandis for the proof of Harrabah."
15.In the case in hand statements of three eye witnesses were recorded. Although they have not named the accused nor they had identified them individually at the time of occurrence but latter they had picked them up correctly during identification parade as the persons who had committed robbery in their houses. However, the learned Trial Judge before recording their statements had not fulfilled the requirements of Tazkiya-Al-Shuhood. He had A neither questioned any of them about their character, conduct and behaviour nor had made any note that he had adopted any other method to fulfil the requirements of Tazkiya-Al-Shuhood. Recording of the statements of the eye witnesses after fulfiling the requirements of the Tazkiya-al-Shuhood according to clause (b) of section 7 is compulsory for awarding sentence of Hadd. In the circumstances conviction of the appellants for having committed Harrabah and c the sentence of Hadd awarded to them are not maintainable. The same are, therefore, set aside.
16.As mentioned in the proceedings para the complainant as well as two other brothers had witnessed the occurrence. The complainant although had not given the names of the culprits but he had given their full particulars, so was done by his brothers. However, before they made statements at the trial, they had, during an identification parade held in the jail under the supervision of a Magistrate correctly identified the appellants as the persons who had committed robbery in their house. The ornaments got recovered by the appellants during investigation were identified by Khalid Nawaz, P.W.1 and Mst. Nasira Tariq, P.W.5, as the ornaments that had been robbed by the appellants from their house. They had claimed the articles to be their property. None of the appellants had claimed that the said articles were their property. The statements of P.W.1, 2 and 3 went unchallenged as they were not crossed-examined by the accused (appellants). The statements of the eye witnesses finds full corroboration from the evidence of recovery of robbed articles at the instance of the appellants.
In the circumstances we are fully convinced that the prosecution has succeeded in bringing home the guilt against the appellants punishable with Ta'zir. Consequently, they are convicted under section 394 PPC and sentenced to undergo R.I for seven years each plus to pay a sum of Rs, 2000 each as fine in default whereof to undergo S,I for six months each. Benefit of section 382-B Cr.P.C. shall be extended. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.