' DR. F1DA MUHAMMAD KHAN, J.--- This appeal preferred by Gul Bahar son of Miran Bakhsh, resident of Goth Sabz Ali Umrani, Usta Muhammad is directed against the judgment dated 5-8-2000 passed by learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali whereby he has convicted him under section 17(3) of Offences Against Property (Enforcement of Hudood)
Ordinance: 1979, hereinafter referred to as the Ordinance, and awarded him punishment of amputation of his right hand from wrist and of his left foot upto the ankle. A criminal reference for confirmation of the above sentences has also been submitted to this Court.
2. Since both the matters arising out of one and the same judgment, we are disposing them of by this single judgment.
3. Briefly stated the case of prosecution as disclosed in F.I.R. Exh.P./1-A, lodged on the statement of Hamza Khan, about 4-00 a.m. On 9-4-1999, at Levies Thana Dera Murad Jamali, is to the effect that on the same day at 10-00 a.m. While he alongwith his son Mian Khan was proceeding to Dera Murad Jamali on his motorcycle CD-70 Model 1998 bearing Engine No,1674148 and chassis No,AEP184473, and reached near Shori Station at Notal, another Honda motorcycle, with three riders thereon, speedily crossed them ahead and thereafter returned. The riders fired with klashnikov near them and resultantly his motorcycle was pushed aside and both the complainant and his son fell down. In the meanwhile one of the accused hit the head of his son with the butt of klashnikov while the latter was trying to get up. Resultantly his son sustained injury and fell down. The accused took out his purse, containing Rs,5,000 from his pocket and thereafter overpowered the complainant also at gun point and took T.T. Pistol bearing No,1117421, .30 bore, made in Pakistan, from him. One of the accused thereafter rode his motorcycle and the other two accused rode their motorcycle and ran away towards East. Soon after a wagon reached there. The complainant and his son boarded the same and proceeded to the Levies Check Post and informed the staff over there the occurrence. He added that he did not recognize the accused but could identify them if they were brought before them. Subsequently, the appellant/ accused was arrested and after completion of investigation challaned to face the trial.
4. At the trial, prosecution examined five witnesses in all. P.W.1 Hamza Khan is the complainant and eye-witness of the occurrence. He reiterated his statement as mentioned hereinabove. He added that after fifteen days of the occurrence he had gone to Goth of Mughin Kloi to attend a marriage ceremony where he identified one of the accused Sumer Talani and thereafter he came to know that one of the accused who had snatched their motorcycle was confined in Central Jail, Machh.
He proceeded to the Central. Jail Machh alongwith Tehsildar, Dera Murad Jamali and, in his presence he identified the appellant/accused Gul Bahar who was made to stand alongwith other nine prisoners. A memo. Of identification was prepared to that effect. He attested the same as one of the marginal witness. P.W.2 is Mian Khan. He is son of the complainant. He was accompanied the complainant on the day of occurrence when the incident took place wherein he was injured. He fully supported the case of prosecution. He also identified the appellant/accused' in the trial Court.
P.W.3 is Liaqat Ali, Naib Tehsildar. He recorded formal F.I.R. Exh.P./1-A, on the statement of complainant Hamza Khan and partially investigated the case. He took into possession registration, papers of the snatched motorcycle as well as photocopy of licence of T.T. Pistol. P.W.4 is Wazir Ahmad, Tehsildar. In his presence the complainant identified the appellant/accused Gul Bahar in Central Jail, Machh, as required under the law. He prepared identification memo. Exh.P/1.B. And signed the same on 26-4-2000. P.W.5 is Muhammad Aslam, Naib Tehsildar. He got spy information on 9-4-1999 that one, of the unknown accused who had snatched motorcycle from the complainant was confined in Central Jail, Machh in connection with some other case. After obtaining permission from District Magistrate, Nasirabad he issued notice to the complainant and on 26-4-2000 took him to Central Jail, Machh where in presence of Wazir Khan, Naib Tehsildar, Machh, the complainant identified Gul Bahar as one of the accused who had forcibly snatched his motorcycle. The accused was produced for identification alongwith other prisoners. He attested the identification memo. In token of its correctness.
5. The appellant/accused Gul Bahar made statement under section 342, Cr.P.C. Wherein he denied the allegations and pleaded innocence. He stated that he had been implicated in this case on account of enmity with Kalani Tribe. He also made statement on oath and denied the allegation. He stated that before his identification parade the complainant had met him two or three times and that he had told this fact to the Tehsildar accordingly.
6. We have heard learned counsel for the parties and have perused the record with their assistance. Learned counsel for the appellant, after contending that the sentence of Hadd awarded to the appellant/accused was illegal as the mandatory requirements of Tazkiya-tush- Shuhud, envisaged by section 7 of the Ordinance regarding Tazkiya-tush-Shuhud, have not been fulfilled and as such, at the most it was a case covered under the mischief of section 392, P.P.C.
Submitted that he does not challenge the appeal on merits but in view of young age of the appellant and the fact that he is repentant, he prays for reduction in the sentences. Learned counsel for the State also conceded that the sentence of Hadd awarded to the appellant was not warranted in circumstances of the case as the mandatory requirements for Tazkiya-tush-Shuhud have not been fulfilled.
7. We have given our anxious consideration to the contentions of learned counsel for the parties and have also thoroughly perused the record. 33TS33It transpires that in the instant case, none of the witnesses has been subjected to the requirement of Tazkiya-tush-Shuhud as envisaged by section 7 of the Ordinance. In this view of the matter the contention raised by the learned counsel for the appellant has legal force and therefore, we are of the considered opinion that Hadd punishment cannot be inflicted on the appellant/accused. However, it is to be appreciated fulfilled.
That, as far as the sentence of Tazir is concerned it can be awarded to an accused provided that the intrinsic worth of a witness, appearing against him, inspires confidence. In the instant case the complainant and his son who are eye-witnesses of the occurrence have appeared as P.W.1 and P.W.2, respectively, and made statements on oath. They have also identified the appellant/accused as one of the culprits who had snatched their motorcycle. P.W.4 and P.W.5 have made consistent statements in this respect. All of them have been cross-examined but nothing fruitful to B the defence has been adduced therefrom. All the P.Ws. Are independent witnesses and their statements inspire confidence. Although the appellant/accused has taken the plea that the P.Ws.
Were inimical to his tribe but he has not substantiated his plea by any cogent piece of evidence.
Thus, we find substance in the evidence to conclude that the prosecution has established its case against the appellant beyond any reasonable doubt. It is however, noteworthy that this is a case of simple robbery as envisaged by section 392, P.P.C. And not that of section 17(3) of the Ordinance.
The record shows age of the appellant/accused as 18 C years on 28-7-2000 when he made his statement under section 342, Cr.F .C. Therefore, we are inclined to take a lenient view while awarding him the sentence of imprisonment.
8. Consequently, for the reasons stated above, we set aside the Hadd punishment awarded to the appellant/accused and alter his conviction from section 17(3) of the Ordinance to that of under section 392, P.P.C. And sentence him to undergo five years' R.I. And a fine of Rs,1,000 or in default of payment of fine further undergo one month S.I. We also extend benefit of section 382-B, Cr.P.C. To him.
9. With this modification in the conviction and sentences the appeal is dismissed. The Criminal Reference No,5/I of 2000 is not confirmed and answered in negative.