P L D 1995 Karachi 7 (PLP)

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 hadd.--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 Ail-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 B 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 toTazir. however commits Haraabah which is not liable to the punishment provided fear n section 7, or for which proof in either of the forms mentioned in section 7 is rot available, or for which punishment of amputation or death may got be imposed r enforced under this Ordinance, shall awarded the punishment provided in the Plan 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 C 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 the procedure adopted by the Magistrate and the Investigating Officer for the purpose of conducting identification parade icy 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 next applicable to the present case. In the case of Khagiso and- another v. The State reported in 1981 PCr.112the accused persons had been arrested on 27-5-1981 while their identification test was held can 21-6-1981 i.e. after abut 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 alongwith the accused persons, hence their identification by those witnesses was totally meaningless. In the case of Abdul Oadir 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 SCMR 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 I D the trial Court fails to record the evidence of eye-witnesses within two months, then such conduct would not be appreciated by this Court. N.H.Q./M-1987/K Bail refused