' ABDUL WAHEED SIDDIQUI, J.---Appellants have assailed a judgment delivered by the Court of Additional Session& Judge, Ratodero on 7-10-1997 whereby they have been convicted under section 265-H(ii), Cr.P.C. Read with 17(3), Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, hereafter referred to as the said Ordinance, and are sentenced to R.I, for 10 years each and 15 stripes each and imputation of right hand from wrist of each appellant. A criminal reference has also been made. We hereby propose to dispose of both the appeal and reference together.
2. One Rajib Ali (P.W.3) reported at Police Station Ratodero- District Larkana on 26-6-1985 @ 1815 hours that he being Sub-Engineer in Education Works Deportment had come on his Honda Motor Cycle No,7267 S.K.C. To supervise one under construction building of a Primary School in the village known as Juma Agham. While returning at about 1600 hours, when he reached semnala culvert of Bangal Dero, suddenly 3 persons emerged from the Eastern Side of the culvert out of whom two were armed with rifles and the third one was out wardly unarmed. The armed persons came forward, aimed their rifles towards him and asked him" to stop out of fear he stopped. Then the unarmed person snatched the motorcycle from him and all the three culprits escaped on the said vehicle towards west. The complainant then raised alarm of "Thief, Thief". In the meanwhile a police vehicle came from Ratodero in which S.H.O. And other personnel of police were present. On knowing about the incident, the police followed the offenders till they reached Lashari village and found the culprits riding on the stolen motor-cycle. The culprits were rounded up and arrested. On enquiry they came to be known as the present appellants. The armed persons were indentified as appellants Fida Hussain and Shahan. The third one is appellant Allah Bux.
All the appellants were charged on 27-2-1986 under Article 17(3), Offence .Against Property (Enforcement of Hudood) Ordinance, 1979, read with section 394, P.P.C. In the charge, the value of the snatched vehicle was determined to be 14,300 which was of the value of more than the nisab.
To this charge appellants/accused did not plead guilty.
3. To prove its case, prosecution examined 5 witnesses. Shamsuddin (P.W.1) P.C., has deposed that on the fateful day he was one of those personnel of police who were on the patrol duty vide entry No,7 at about 4 p.m. The complainant informed them about the incident. On reaching the Warrah Barrage Bridge, they found the culprits and caught hold of them. From appellant Fida Hussain, S.H.O. Secured one unlicensed rifle of 7 mm bore and 5 bullets and from appellant Shahan rifle with 4 bullets of 7 mm were secured. Motor-cycle was also secured from all the three appellants. Such mushirnamas were prepared and were signed by A.S.I. Muhammad Hayat and H.C. Ubaidullah. The stolen motor-cycle was black, numbered as S.K.C.-7267 and was worth Rs,14,000 Photo (P.W.2) is a mashir of Wardat and has proved his LTI on such mashirnama Exh.10-A. Qurban Ali (P.W.3), H.C. Has proved receipt of NBW against appellant Fida Hussain on 7-3-1988 who had absconded. This witness has deposed further that since the wanted culprit had gone into hinding after committing the murder of one Hote Khan Laghari, therefore, there was no likelihood of his imminent arrest in near future. He recorded the statements of Kamdar and nekmard namely Khadim Hussain and Hote Khan. On the basis of this record the trial Court declared appellant, Fida Hussain as P.O. On 15- 3-1988. Ubedullah (P.W.4), H.C., has proved being one of the members of the patrolling party of police on the day of occurrence. He has corroborated the deposition of P.W.1. He has produced mashirnana of recovery and arrest as Exh.16. Rajib Ali (P.W.5), complainant, has proved F.I.R. As Exh.18 and has been corroborated by the depositions of P.W.1 and P.W.4. He has admitted that the snatched motor-cycle was given to him on superdari by S.D.M. Ratodero, it met an-accident later on and he sold the same. Consequently the incriminating article could not be produced by him.
' In their statements under section 342, Cr.P.C. Appellants have denied all the specific questions. To question about the reasons for deposition of P.Ws. Against them, all have given a reply simplicitor that due to enmity P.Ws. Have deposed against them. None has examined himself on oath and no witness in defence has been produced.
4. We have heard the counsel for the appellants and State. At the outset the counsel for appellants has made a reference to the non-existence of Tazkiyat-ul-Shahood of the witnesses for prosecution which is one of the mandatory requirements for the proof of theft liable to had in case accused does not plead guilty as is laid in Article 7(b) of the said Ordinance. On this point the counsel for State also concedes and states that the present case does not attract Had punishment. There is another factor which creates a light doubt in the story of the prosecution Column No,5 of Challan indicates at Serial No,9 of the calendar of witnesses one Muhammad Afsar Minhas, S.H.O. Police Station Ratoderb. It appears from F.I.R. That this witness is the scribe of F.I.R.
And he was himself the Investigation Officer. He has neither been examined nor any reason has been shown as to why this most important witness has been withheld. There is a statement of D.D.A. On the record which reads:-- "I do hereby give up the remaining witnesses in above case, as they are not attending the Court since long, and close the side of prosecution on behalf of State."
It appears that through this general statement, the Investigation Officer-cum Scribe of F.I.R. Has been withheld. None has been examined to prove the handwriting and signature of this witness. For this reason also, keeping in view clear Ahadith that for slight doubts Hudood are to be withheld, we hereby set aside conviction and sentence of the appellants as recorded under section 17(3) of the said Ordinance as a Hadd Case.
5. So far as the incident itself is concerned, Rajib Ali (P.W.5), the complainant stands corroborated on all the material details by Ubedullah (P.W.4) and Shamsuddin (P.W.1). In view of this position, we have come to the conclusion that the prosecution has been able to prove its story in material particulars. The appellants are, therefore, convicted under section 392, P.P.C. Read with Article 14 of the said Ordinance and are sentenced to the period already undergone. Each appellant is also sentenced to pay a fine of Rs,1,000 or in default thereof to undergo S.I. For three months. The appellants shall be released forthwith after payment of fine or undergoing the sentence in default thereof if not wanted in another case.
' Reference No,1/I of 1997 is answered in negative.
' With this modification in the conviction and sentences, the appeal is dismissed.