1992 PLP 196 (SCMR)

ABDUL SHAKURUL SALAM, (CHAIRMAN): --We had allowed the appeal vide short order, dated 14-10-1991. Details and reasons thereof have been recorded by my learned brother Mr. Justice Abdul Karim Kundi. My learned brother Mr. Justice S. Ibni Ali has also added a notes. I am in respectful agreement that the evidence on record, which they have analysed, was not sufficient to hold the appellants guilty beyond reasonable doubt. It is truism that in criminal administration of justice based on English Common Law as well as in Islam, nobody is to be punished unless proved guilty on the basis of reliable or true evidence and that benefit of every reasonable doubt is to go to the accused.

1. In the case in hand, three eye-witnesses of the Bank stated in the Court that they had earlier said that robbers were foreigners. They were confronted with their previous police statements where they had not said so. For inflicting punishment of Hadd, proof under section 7 of the Offences Against Property (Enforcement of Hadd) Ordinance, 1979 is to be furnished by truthful persons who abstain from major sins (kabira) and the Court is to be satisfied about that, after having regard to the requirements of `Tazkiya-al Shuhood'. In this case the eye-witnesses are obviously not truthful as they have been contradicted by their own previous recorded statements. Telling of lie is a major sin. One who tells lie on oath in Court is even debarred to further depose in Court. The learned trial Judge while carrying out the provisions of `Tazkiya-al-Shuhood' had obtained proof from the officials of the prosecution agency. How could it be expected that the prosecution agency shall say that the prosecution witnesses which it itself has put up before the Court, are not truthful? Consequently, the question of infliction of Hadd punishment on the appellants did not arise. As regard infliction of Tazir punishment, it was necessary that the evidence produced by the prosecution was reliable. Besides what has been stated above about the three eyewitnesses, it may also be noted that in the First Information Report and their statements recorded soon thereafter, they described the robbers by giving their physical characteristics and clothes. In the Court they said that the robbers were `foreigners' and had threatened them. "Not move, hands up". In other words, the alleged robbers had spoken in English. The appellants are of American nationality. It is also in evidence that they had been coming to the Bank earlier for depositing electricity bills etc. If the appellants were the robbers, it is virtually impossible that the eye-witnesses responsible officers of the Bank would not have recognized them to be `foreigners' and said so while describing the alleged robbers. It appears from the evidence on record that the appellants were arrested from a store and brought to the Police Station at 9.00 P.M. Zahid Nawaz, Manager of the Bank, came there. It is stated that he identified the appellants. The two other eye-witnesses of the Bank said in the Court that the accused-appellants were the culprits. No identification parade was held as required in the circumstances. The Bank officials in the circumstances appear to have been obliged to say that the appellants were. the accused as they were put up by the Police as the accused persons. If the Bank officials were to say that the appellants were not the accused persons whom the police had arrested and put up for trial, the officials could feel that their superior officers might say that they had got the Bank looted and declined to identify the culprits who were arrested by the Police and put up for trial for extraneous consideration. In the circumstances, it does not appear that the three eye-witnesses were definite about the identity of the appellants at the time of occurrence and were not trying to save their own skin. Thus the eye-witness account falling through, the recovery effected from the appellant Daniel Boyd (Saifullah) is of not much significance, besides that it is not reliable in the circumstances pointed out in the judgment of my learned brother Mr. Abdul Karim Kundi, J. As regard the confessional statement which had been retracted and the statement under section 342, Cr.P.C., besides the reasons recorded by my learned brother Mr. Abdul Karim Kundi, J. these seem to be cock and bull story and one is not certain what purpose thereof could be. In the total absence of reliable prosecution evidence, no conviction could be recorded against the appellants. In view of the aforesaid circumstances, the appeal was allowed. ABDUL KARIM KHAN KUNDI, MEMBER

By a short order dated 14-10-1991 Criminal Appeal No.1 of 1991 was accepted, conviction arid sentences of Saifullah and Assadullah appellants were set aside on all charges and they were ordered to be released forthwith if not wanted in any other case Judgment detailing the reasons in support of the aforesaid short order is recorded as below:-- Mr. Justice Raza A. Khan, Judge, Special Court for Speedy Trials, Peshawar, by his judgment and order dated 25-9-1991, recorded the conviction of Daniel Boyd Muslim name Saifullah and Charles Boyd Muslim name Assadullah residents of 108/J-I Phase No.II Hayatabad, Peshawar on the charges of `Haraabah' and criminal intimidation under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as Ordinance and section 506, P.P.C., both read with section 34, P.P.C. and further convicted Daniel Boyd (Saifullah) on the charge of dishonestly retaining stolen property under section 411, P.P.C. and accordingly sentenced the appellants each to Hadd punishment of amputation of their right hands from their wrists and their left feet from their ankles on the charge of `Haraabah' and 5 years' R.I. and a fine of Rs.50,000 each or in default 2 years' R.I. each on the charge of criminal intimidation while Daniel Boyd Muslim name Saifullah appellant was also sentenced to 2 years' R.I. and a fine of Rs.30.000 or in default to suffer 1 year R.I. further on the charge of dishonestly retaining the stolen property. The sentences of imprisonment were, however, ordered to run concurrently.

2. The convicts filed Criminal Appeal No.1/91 as against the aforesaid conviction and sentences and the trial Court made a Criminal Reference No.1/91 for the confirmation of the Hadd punishment.

3. Briefly stated, vide F.I.R. No.230, P.S. Hayatabad, Peshawar, dated 20-6-1991 two long statured persons of brownish colour, one also with golden bard wearing a waist-coat and a cloth over his head and the other of a lean stature with pointed nose aged 39 years had allegedly robbed the United Bank Limited, Hayatabad Branch, Peshawar of Rs.82,477 from a cash box at pistol point. that during the course of incident they also opened fire while fleeing and the Chowkidar of the Bank too had opened fire in retaliation. Zahid Nawaz Manager of the Bank had lodged the report to the S.H.O. on the spot who was on patrol duty and had rushed to the Bank after receiving information on wireless about the dacoity in the Bank. The S.H.O. prepared the `Murasila', culminating into the F.I.R. It was alleged that one of the robbers presented a fifty dollars cheque drawable on Bank of Emirates for encashment that the Manager advised him to take the cheque for encashment to the Bank concerned at Peshawar Cantt. but meanwhile the co-robber, with the description entered the Bank with pistol in his hand and afterwards the robbery was committed.

4. The I.O. prepared the site plan, recovered the broken pieces of window panes, 2 empties of .30 bore pistol, 5 empties of .25 bore pistol and 2 empties of .12 bore shotgun from the spot and prepared the memos.

5. On 7-7-1991 the I.O. had arrested the appellants on suspicion at about 9 P.M. from Khyber Park of Hayatabad Town and brought them to the P.S. He called for the Manager of the Bank but he had incidentally come to the police station of his own allegedly on the direction of the Headquarter and he readily identified the appellants as culprits. On interrogation the appellants confessed their guilt and led the police party to the recovery of .30 bore pistol alongwith a charger and live rounds and thirty thousand rupees cash, a part of the stolen money, from the almirah of their house No.108/J-1 Phase No.II Hayatabad, the same day at about 11 P.M. On 8-7-1991 appellants were produced before the Illaqa Magistrate and remand and custody for three days was obtained. The same day motorcycle on which the appellants had allegedly ridden on upto and back from the place of occurrence was recovered from Abu Hamza P.W. at the instance of the appellants. On 11-7-1991 both the appellants were produced before the Illaqa Magistrate for their confessional statements, out of Daniel Boyd Muslim name Saifullah made the confession while the other retreated.

6. After investigation a challan was submitted and the trial ensued. There were examined as many as nine prosecution witnesses while Shamsher Khan the watchman, Hamid Wahid, Abdullah, Zakirullah, Muhammad Iqbal, A.S.I. and Arbab Rafiq were abandoned as unnecessary witnesses. The bank officials Zahid Nawaz Manager, Mubarik Ali Second Officer and Arbab Shuaib Cashier furnished the eye-witness account; Mr. Farukh Sair M.I.C. (P.W.1) had recorded the confession of Daniel Boyd Muslim name (Saifullah) on 11-7-1991; Altaf Shah A.S.I. and Said Jamal Khan, A.S.I. were produced as marginal witnesses of the memos and Khan Raziq (P.W.8) was examined as 1.0. Appellants were examined under section 342, Cr.P.C. They had also volunteered to give evidence on oath in disproof of the charges and allegations as required under section 340(2), Cr.P.C. Maulana Abdul Baseer (D.W.1), Abu Yahya (D.W 2) and Sabrina Muslim name Sadiqa (D.W.3) were further produced in defence. The appellants denied the charges and Daniel Boyd (Saifullah) also retracted from his confession. The appellants gave their own narration of the version that they were living in Hayatabad since September, 1989 and had been visiting Hayatabad Branch of the U.B.L. in connection with depositing of the electricity, Sui gas and telephone bills (some bills were also placed on file). It was stated that a week before the alleged occurrence the wife of Daniel Boyd, produced as D.W.3 had visited the Bank presenting a cheque of U.S. $ 5000 to one Hamid Wahid (abandoned) for opening a Bank Account, which was duly endorsed for encashment at his instance. The said Bank official took away the cheque from her, promising her to encash it for a higher value in Pak currency in black market. She had asked him for the return of the cheque but he pretended its non-delivery and misplacement. Later on Daniel Boyd (Saifullah) appellant drove along his wife (D.W.3) in a Suzuki van to the bank and they found the said bank official roaming outside the bank. He had come near the van and sat in the side front seat with the lady driving the vehicle and put his hand on her thigh. Her husband Daniel Boyd (Saifullah) appellant sitting in the rear seat noticed his misbehaviour and caught hold of him, telling him that he was her husband and that he had done a `Haram' thing in putting his hand on the thigh of a stranger lady. The couple had asked him to return the cheque, at which he took out Rs. 7,000 from his pocket and handed over the amount to them. He had also earlier given a 'chit scribing over it his residential telephone number to the lady for contact which was produced in Court as Exh.D.D. The couple had driven back to their house. The appellants contended that; in fact, there was committed a robbery on the U.B.L. Hayatabad Branch on the day of occurrence by some outlaws which was reported in Daily Mashriq, Daily Frontier Post and Daily News, Rawalpindi, copies thereof were placed on file and that they were later on made the scapegoats and substituted for the real culprits in connivance with the local police. It was stated that the appellants were in fact, arrested from Afghan General Store and were taken in a van to police station. In support of their arrest Maulana Abdul Baseer, D.W.1 and Abu Yahya D.W.2 were examined. The recovery of country-made pistol from the house was denied and about cash it was stated that a sum of Rs.30,000 cash was delivered to the 1.0. by the wife of Daniel Boyd (Saifullah) appellant.

7. The learned Judge, Special Court had believed into the ocular evidence furnished by the Bank officials, out of Manager Zahid Nawaz complainant was acknowledged as victim while the other two bank officials Mubarik Ali and Arbab Shuaib were considered as independent eye-witnesses. Evidence of retracted judicial confession of Daniel Boyd (Saifullah) was also made basis along for conviction on the charges. Corroboration was sought from the recovery of .30 bore pistol with charger and live rounds and 30,000 rupees cash, a part of the stolen money from the house of the appellants at their instance. The recovery of motor cycle from Abu Hamza P.W. who has lent over the same to the appellants and was used in the commission of the offence, the recovery of .30 bore empties from the spot which on matching were found by the Arms Expert as fired by the crime pistol and the recovery of the empties of .25 bore pistol and .12 bore shotgun along broken pieces of window panes from the spot were accepted as pieces of circumstantial evidence to corroborate the commission of the offence of robbery by the appellants.

8. The appellants have primarily earned the conviction on the charge of 'Haraaba' (robbery) under section 17(3) of the Ordinance in the course of which no murder has been committed but property worth exceeding `Nisab' which is equal to the value of 4.457 grams of gold has been taken away. Section 16 of the Ordinance states that the provisions of section 7 shall apply, mutatis mutandis for the proof of `Haraaba' Section 7 prescribes the modes of proof that either the accused pleads guilty of the commission of the offence of `Haraaba' liable to Hadd and he sticks to it till last or/and at least two Muslim adult witnesses other than the victim of the `Haraaba', about the truthfulness and their abstenance from major sins the Court is satisfied after the process of Tazkiya Al-Shuhood, furnish eye-witness evidence of occurrence. There has also been prescribed the order of the examination of the witnesses that the victim of the theft or `Haraaba' or the person authorised by him shall be examined before the examination of the independent witness.

9. In case before us there is a confession, somewhat inculpatory and largely exculpatory as made by Daniel Boyd (Saifullah) appellant during the course of investigation before the M.I.C. which confession was also denied and retracted by him at the trial. This confession cannot at all be made the basis of conviction for a Hadd punishment as against its maker and unhesitatingly as against a co-accused.

10. A bank was allegedly robbed. Zahid Nawaz Manager of the Bank was examined as victim on 17-7-1991 without giving him a specific prosecution witness number, Mubarik Ali (P.W.5) Second Officer of the Bank was examined on the same day, while Arbab Shuaib (P.W.6) Cashier of the Bank was examined on 18-9-1991. On 17-9-1991 Abu Hamza P.W. 4 was also examined. The order sheet, dated 17-9-1991 simply states that Abu Hamza P.W. Mr. Zahid Nawaz complainant and one of the two eye-witnesses Mubarik Ali have been examined. It was argued that the sequence suggests that after the examination of Abu Hamza P.W. 4, Mubarik Ali P.W.5, one of the eye witnesses has been examined and Zahid Nawaz might have been examined separately afterwards who was not allotted any number as a prosecution witness. The point may or may not be correct since the record is silent if Zahid Nawaz has been examined first and Mubarik Ali the eye-witness has been examined next or vice versa. The defence, however, does succeed to create a slightest doubt in the mind of the Court vis-a-vis the contravention of the provisions of the Second proviso to clause (b) of section 7 of the Ordinance, mandatory in nature, providing that the statement of the victim shall be recorded before the statements of the eye-witnesses. It was next posed that victim in the case of a bank robbery shall be the bank and since it is a Nationalised Bank of which more than 51% shares are held by the Federal Government as such, the victim shall be the Federal Government in the Finance Division, being its Administrative Division, and Secretary Finance or an officer authorised by him shall be covered by the4definition of a victim to be examined as a witness to be followed by the examination of independent truthful eye-witnesses. An alternate argument was also forwarded that if Zahid Nawaz being a Manager of the Bank was acknowledged as victim a question will arise why not the other two officials Mubarik Ali Second Officer and Arbab Shuaib, the Cashier should also be accepted as victims since it is also on record that the cash-box was lying with the cashier at the time of the alleged robbery of the cash by the appellants. In the context reference was also made to the conviction of the appellants recorded on the charge of criminal intimidation of all the Bank officials including the Manager, the Second Officer and the Cashier and, as such, they have all suffered at the hands of the appellants during the course of the commission of the offence of robbery and in that situation all the bank officials will be covered by the definition of victim and the evidence of the two independent witnesses shall be lacking as required for the proof of the charge liable to Hadd punishment.

11. Law has also ordained that the Court has to satisfy itself about the truthfulness of the eye-witnesses giving evidence in Hadd cases with having regard to the requirements of Tazkiya Al-Shuhood. 1n this regard the learned Judge, Special Court for Speedy Trials, in para 22 of his judgment observed as follows:- "Let me state at this stage that having kept in view the requirement of section 7 of the Ordinance, I have undertaken an exercise to satisfy myself having regard to the requirement of "Tazkiya Al-Shuhood" that the two eye-witnesses are truthful persons and abstain from major sins (Kabair). The secret information ascertained in this behalf is placed on record in a sealed cover. Need I mention that the two eye-witnesses Mubarik Ali and Arbab Shoaib are Muslims and adult male witnesses and fully satisfy the requirement of "Tazkiya Al-Shuhood". In the light of the above para and finding of the learned Judge, Special Court, we opened the envelope and found that on 15-9-1991 statement of one Sirajul Haq Yousafzai was recorded by the Muharrir of P.S. Hayatabad who has stated that Mubarik Ali was working in the United Bank and known to him and was at present living in Hayatabad and he originally belonged to Hazara Division. He further stated that he did not belong to any political party that he was of a good character. and enjoyed good reputation. Next there is a report of Head Constable of P.S. Hayatabad regarding the statement of Sirajul Haq about the antecedents of Mubarik Ali P.W. There is also a report of the Muharrir H.C. of P.S. Hayatabad according to which Mubarik Ali is not a previous convict and of doubtful character in the police record. There is also the report of Inspector S.H.O. University Town which is dated 16-9-1991 about Arbab Rafique Ahmad P.W. and Arbab Shoaib P.W. which states that both are serving in the bank; they enjoy good reputation and there is no report about their drinking habit. Besides this, according to the report of Muharrir of the P.S., they are not involved in any criminal case or any other case involving in any criminal case or any other case involving moral turpitude nor are they previous convicts. This was all which we found in the sealed envelope.

12. In the case of Ghulam Ali v. The State (P L D 1986 S C 741) in head note (d) in which it has been observed as follows:- "The condition laid down in section 7, clause (b) is that these two witnesses must have satisfied the requirements of Tazkiya-al- Shuhood so as to adjudge them as truthful persons and those who abstain, from major sins (Kabair). In the explanation to the section Tazkiya-al-Shuhood although not clearly declined is stated to mean "the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness". The expression `the mode' signifies that it is one or more of the modes which are assumed to be well-known, Tazkiya-al-Shuhood, according to all accepted versions of the definition can be done in either or both of the two modes. One, `open', the other, `Secret'. The explanation has not changed the content of the opinions of the Fuqaha on the rules applying to the each mode but it has left the selection of the mode/s of inquiry to the discretion of the Court. The omission of the word `either' conveys that the Court can adopt either of the two recognized modes or both of them. It cannot devise any other mode for its own convenience. Tazkiya-al-Shuhood purported to have been done by trial Court by doing secret inquiry falls short of known standards. In the present case trial Court treated the question as of little importance and recorded the statements of the witnesses themselves in order to ascertain that they satisfy the accepted standard. No one who has deposed or who has come to depose for the prosecution in a case of Hadd would be willingly disclosing that he has some defects of character or that he is not a truthful person. No doubt it is necessary to put searching questions to him and cross-examine him so as to discover what he wants to conceal from the Court. The statement of the witness by itself is not enough to give the verdict in his favour. There is need for Muzakki (a referee and the person who gives evidence about truthfulness of the witness) is examined for each witness. he should be present when the witness is being subjected to questioning for Tazkiya-al-Shuhood. The Muzakki should also be questioned about his antecedents and character and dealings. These elements amongst other very important ones are essential. They can easily be found from any Book of Fiqah. As to how and what questions are to be asked can also be found. All the books which have already been referred made reference to these matters. In the present case, the only referee which, trial Judge nominated to test the veracity and quality of the eye-witnesses was the Muharrir of the police station who sent a report that there was nothing against them in the record of the police station. This hardly falls within any modes of the Tazkiya-al- Shuhood. Even if a question had to be asked from the Moharrir in the secret inquiry it should have been addressed to him in a closed envelope asking various questions to which the Moharrir would have answered after making due inquiry in this behalf and then the Moharrir should also have been examined regarding his report. The trial Court thought it enough that the report of the Moharrir wag endorsed by an A.S.I. This mode to say the least was the mockery of the Tazkiya-al-Shuhood."

13. In the instant case too, there is a report of the Head Constable endorsed by the Inspector' S.H.O. of P.S. University Town which cannot satisfy the conditions laid down for conducting Tazkiya-al-Shuhood. Further not only the referee which trial Court nominated to test the veracity and quality of the witnesses was in the person of Moharrir of the Police Station of Hayatabad, who sent a routine report that there was nothing against them in the police station and the said report was also endorsed by the Inspector S.H.O. of P.S. University Town the mode adopted by the learned trial Court cannot be qualified a mode of a Tazkiya-al-Shuhood. No questionnaire was formulated and sent to the Moharrir for conducting inquiry and we do not find any answers given to those questions after there having been made due inquiry in this behalf. Last there was no examination of the Moharrir in Court which was necessary under the law. In fine, the exercise on the part of the learned trial Judge was not a proper Tazkiya-al-Shuhood. Alike mode of the Tazkiya-al- Shuhood was disapproved by the Supreme Court in the precedent case and the punishment of Hadd was quashed and on acceptance of appeal appellant was acquitted of the charge. In support we may also refer to some more case-law and instances from Fatawa-e-Alamgiri.

14. In PLD 1988 SC (AJ&K) 190 also there has been laid down a law on the same line, reproduced below:- (a) "Tazkiya" means purgation of witnesses--A Tazkiya of the witnesses is conducted primarily with the object to know their -competency and other virtues in order to place implicit faith in their statements to record conviction in cases of `Hudood' and `Qisas'. Naturally, the procedure adopted to conduct `Tazkiya' must satisfy that it is done by persons whose conduct is also above board. `Tazkiya' conducted by any person whose conduct is not shown to be above board cannot be considered to be `Tazkiya' known in Islamic law. (b) A secret purgation is made by a Qazi writing a letter, privately, to a `Muzakki' or purgator (that is, a person whose business it is to inquire into the character of others), and describing to him the family and countenance of the witnesses, and likewise their place of abode, and the purgator, in like manner, returning his answer privately to the Qazi, lest if it were known to a party, he might attempt to injure him. The secret inquiry is called in legal and technical language `mestureh'. It is conducted by writing. For such an inquiry the Judge is to put in f writing the names of the parties and the subject-matter of the action, and the names and generally known names of the witnesses and their trade and conditions, and the places and grandfather or if they are well known, only their names, and generally known names. The Judge should place it in an envelope and seal it and then send the same to those who are chosen to ascertain the character of the witnesses. The persons chosen after opening and reading the `mestureh', if the witnesses are competent, would write under the names that they are competent as regards the evidence, and, if they are not competent, they would sign it, and return it to the Judge, putting a seal on the envelope, without making known what is written to the person, who brings the envelopes, or other persons."

15. The Federal Shariat Court in the case reported in PLD 1990 FSC 38 discussed section 7 of the Ordinance and also the relevant Islamic Law and summed up the conclusions as follows:- (i) there must be evidence of victim followed by at least two witnesses; (ii) in case of discrepancies on vital aspects between two witnesses both shall be rejected; (iii) Tazkiya Al-Shuhood is a condition precedent to impose the sentence of Hadd;. (iv) There should be one or more `Mazakki' (a person who testifies about the truthfulness of the witness); ' (v) The `Muzakki' should be present when the witness gives evidence; (vi) The `Muzakki' should also be questioned about the antecedents, character and dealings; (vii) It is the responsibility of the Court to satisfy itself about the credibility of a witness and it can for that matter select open or secret modes of inquiry or both; (viii) The Court may frame a questionnaire on which the `Muzakki' should collect information to supply to the Court; (ix) The Court should also examine the `Muzakki' after he submits his report; (x) The Court should ask searching questions from the witness and cross examine him, to discover facts which might show his credibility, piety or otherwise."

16. In Fatawa-e-Alamgiri, Vol. 5, page 194, the procedure which the purgator is to follow in conducting the purgation, is narrated as under:-

17. The above would show that the inquiry with respect to the witnesses is only competent from the persons who are noble, righteous and honest etc. In Note 26 of Fatawa-e-Alamgiree published by . the above view has been maintained in his note: It is further maintained in Note 18 of the same book at page 321.

18. After having found that the retracted confession and the ocular evidence furnished by the three bank officials could not at all be made a basis for conviction of Hadd punishment we proceed to examine the said evidence and the other evidence in recoveries etc. if the same could possibly bring home the charges to the appellants to award them Taiir punishment.

19. As regards the confession made by Daniel Boyd (Saifullah) is concerned, it cannot be relied upon for any purpose for the following reasons:- (1) It is retracted and retracted confession must be corroborated by other evidence which is lacking in the case. (2) The printed form is in Urdu and we do not know whether there was any translation of the questions on the front page of the confession (available on page 27 of the Print Book). (3) There is nothing to show that Farukh Sair, Magistrate, who recorded the confessional statement had disclosed to him that he was a Magistrate. Again, no question has been put to him that for how long he remained in police custody and whether any pressure was brought on him by the police for making the confession. The test whether the confession was admissible in evidence as having been recorded according to law and is being true and voluntary was considered in a case reported P L D 1958 (W.P.) Lah. 559 as follows:- "The language of subsection (3), does not admit of any ambiguity. It is mandatory provision of law, which requires that the warning should be given before the recording of the confession. It obviously means that the warning is to be given before commencing the recording of the 'confession. It will be a meaningless warning, if it is given half an hour, or an hour or a few hours earlier. The very object will be frustrated if the warning is not given at the commencement of the recording of the confession. It must be a real endeavour on the part of the Magistrate to find out if the confession is being made voluntarily. Besides putting the set questions the magistrate is required to make a real endeavour to find out the voluntary nature of the confession, it is a solemn duty which should be performed with great care and caution, and not mechanically. Magistrate will be well advised to adopt the following procedure for recording a confession:- As soon as a person is produced before a Magistrate for getting his confession recorded, his handcuffs should be removed and all the police officers shall be turned out of the Court room, and he should be informed that he wits before a Magistrate and that whether he made any statement or not, he will not lie handed back to the police, but will be sent to the judicial lockup. He should then be given sufficient time to ponder over the matter. Then he should be warned that he was not bound to make any statement and if he did so, it may be used as evidence against him and then the following questions should be put to him:- (1) For how long have you been with the police? (2) Has any pressure ,been brought to bear upon you to make a confession? (3) Have you been threatened to make a confession? (4) Has any document been given to you? (5) Have you been told that you will be made an approver? (6) Why are you making this confession? Then if the Magistrate is satisfied that the prisoner is making the confession voluntarily, he should put the set questions as given in the printed form and record the confession. The job is, no doubt, thankless and somewhat tedious, but it must be remembered that on it depends the fate of the prisoner. The record of the confession must be so prepared that the Court dealing with such a confession should have no difficulty in finding for itself whether the confession was made voluntarily or not." If the above warning and questions are not put to the accused then called confession is inadmissable in evidence and is not voluntary in nature. the present case, these questions were not put to appellant Saifullah before recording of the confession and no w-zing was given to him, therefore, the confession is not admissible in evidence. In a case reported in P L D 1964 S C 813 it has been laid down as follows:- Unless a retracted confession is corroborated in material particulars, it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true." As pointed out above, the confession is retracted one and we have further found the so-called confession made by Saifullah, appellant, as inadmissible in evidence. Further the first part of the confession on reading was found' exculpatory and the accused has more or less made the same statement under section 342, Cr.P.C. as well under section 340(2), Cr.P.C. on oath. However, the incident culminating into the alleged robbery was denied at the trial and the relevant part is reproduced below:- "Both of us went to the bank after two days. My brother had a fake bomb in his hand. I had nothing in my hand. We entered the bank. My brother warned not to move because I have a bomb. Everybody sat quietly. The chowkidar had gun and fired in the fear. I thought that my brother was shot because he was missing. I had a pistol in my pocket. I also fired in the air. I did not aim at anybody. After that I asked the manager for giving to me my money. About Rs. 75,000 were given to me at that time. My brother took the money and put in my pocket of waistcoat. Then I had a man in front of me to get myself out of the bank with intention that the chowkidar may not fire at me. It was not robbery. I went out taking my own money from the bank manager. We left the bank for our house." This somewhat inculpatory part of the confession does not fit in with the ocular evidence furnished by the bank officials and the recoveries made in the case. According to the ocular evidence co-accused Assadullah had a separate pistol in his hand and fired some shots and the I.O. had also recovered five freshly discharged .25 bore pistol empties from the spot. The ocular evidence was not to mention about the bomb/grenade, fake or genuine carried by co-accused Assadullah. The confession reports that the chowkidar had fired with his gun first and that Saifullah thought that perhaps his brother was shot at who was missing at the time, so he brought out his pistol from his pocket and fired in the air. He had later on asked the manager for returning his money to him that the latter had given him Rs.75,000 which was taken by his brother, the co -accused, and was put in the pocket of his waistcoat. He and the co-accused had afterwards gone back to their house. He further stated that it was not a robbery and he had just only taken his money back from the manager. Even the above inculpatory part of the confession would not make it a case of robbery. The said part has further been found inconsistent rather contradictory with the ocular evidence. It has not mentioned about the alleged recovery of .30 bore pistol (country-made) from appellants' house at his instance, nor it mentions the recovery of Rs.30,000 cash from his house although he admits the recovery and claims the same in his statement at the trial. Thus, the confession has been on one, hand found inadmissible and on the other hand not voluntary and truthful to coincide with the facts of the case. We consider it safe to rule out the retracted confession of Saifullah appellant from consideration for Tazir punishment and necessarily it cannot be used as circumstantial evidence as against the co-appellant.

20. We find that the ocular version furnished by the Bank officials in Zahid Nawaz,-Mubarik Ali and Arbab Shuaib in this case does not ring true and inspire confidence. It may be observed that in a criminal case, the F.I.R. of the occurrence is the foundation of the case. If in the light of the evidence; it is found that the first informant has contradicted his version in the F.I.R. or it suffers from material particulars, his evidence will lose its evidentiary worth and value.

21. In the F.I.R., the victim Zahid Nawaz stated that two tall persons of brownish colour came to the Banks. One was keeping golden beard and wearing a waistcoat and his head was covered with cloth and the other was aged

39. In examination-in-chief, the victim vividly and precisely described the two accused "foreigners". In cross-examination when confronted with the F.I.R. he stated:- I did tell the persons were foreigners. (Confronted with the F.I.R. Exh.PA./1. The word "foreigners" is not recorded). Earlier in his examination-in-chief he had made a statement: - "I made report Exh.PA./1. I have seen the same it is correct and 1 bears my signature." Likewise, in examination-in-chief he stated that the two accused were wearing Shalwars and shirts but when confronted with the F.I.R., he was contradicted. In the F.I.R. the victim stated that the accused Daniel Boyd wanted U.S. Dollars against the cheque drawable in the Bank of Emirates. But in the cross-examination he contradicted it saying that:- "I did tell S.H.O. that accused Saifullah told him that he did not want U.S. dollars but would like Pakistani currency. (Confronted with the F.I.R., not so recorded)

22. The complainant also stated in his examination-in-chief that while he was talking to accused Saifullah, another foreigner entered the Bank premises armed with pistol and shouted "No move, hands up". He was confronted with the F.I.R. in cross-examination and was belied. He had neither mentioned "foreigner" nor "No move, hands up" in the F.I.R.

23. Similarly, Mubarik Ali, Second Officer of the Bank in his cross -examination stated as follows:- "My statement was recorded by police. I correctly stated to the police that on entering. accused Saifullah approached the officer concerned. I did mention in my police statement that on entering the premises the person Assadullah shouted the words "hands up not move up" (Confronted not so recorded). I had mentioned the accused as foreigners before the police (Confronted. Not recorded). I correctly mentioned the jacket in which the accused put in the money. I did mention to the police that the person who entered later, picked up the cash from the cash box. (Confronted, not recorded). I did mention the number of shots ....(Confronted. Number of shots not recorded).

24. Arbab Shuaib (P.W. 6) is the third eye-witness in this case. In cross -examination he stated as under:- . "I am not aware if any person had gone to the P.S. for lodging the report. I did state to the police that when Asadullah entered into the premises, he was holding pistol in his hand (Confronted with Exh.PB, not so recorded).

25. Thus, from the above it is clear that on one hand the eye-witnesses, by no stretch of imagination, have fulfilled the conditions of purgation stipulated in section 7 of the Ordinance and on the other hand they were found brazen faced liars having tried at every step to bring in new things to cover the real episode. In fact unless a witness is found to be straightforward, upright and smooth with precision all along in his version, it will be imprudent to place implicit reliance upon him. In the context, it' is also remarked that the prosecution abandoned chowkidar Shamsher Khan and Hamid Waheed, Bank Officer, as unnecessary witnesses although, Samsher Khan Chowkidar had duly participated in the incident of opening fire with a shotgun which was also not taken into possession to be sent to Arms Expert along two .12 bore empties recovered from the spot. Hamid Waheed was the Bank Officer to whom a cheque of U.S. $ 5,000 was delivered by Sabrinna, Muslim name Sadiqa (D.W. 3) wife of Saifullah appellant and he misappropriated the said cheque. He had paid a sum of Rs.7,000 to D.W. 3 and had also given her the telephone number of his residence and a chit which was produced as Exh.D.D. During the course of arguments, we thought it better to ascertain the truth in Exh.DD and on inquiry it was found that the said telephone number per Exh.DD was installed at the residence of Hamid Waheed, Bank Officer. By not producing Hamid Waheed as a witness, prosecution had withheld the most relevant and effect bearing evidence, since he would have been put to detailed cross- examination with confrontation of Exh.DD the misappropriation/misplacement of the cheque U.S. $ 5,000, payment of Rs.7,000 to the wife of Saifullah and misbehaviour on his part with the lady.

26. There have been allegedly recovered five .25 bore empties and two .30 bore empties fired by the appellants from the spot besides two .12 bore empties fired by Shamsher Khan Chowkidar, which were presented by the latter to the 1.0. Non-production of Shamsher Khan, Chowkidar would go a long way to disprove the presentation of two .12 bore empties to the I.O. by him and their recovery from the spot. Mubarik Ali Bank official, also produced as an eye-witness was made the marginal witness of recovery memos. the alleged crime empties of the appellants recovered for the spot on 20-6-1991 were not immediately despatched to the Arms Expert for safe custody and subsequent matching with, on the recovery of crime weapons. The crime weapon a .30 bore pistol (country-made) was recovered at the instance of Saifullah appellant on 7-7-1991 at night time from his house. The said recovery was witnessed by two A.S.Is, out of Said Jamal A.S.I. was produced as P.W.7 who stated that Hayatabad was a big town and there were living serving and retired Government servants, lawyers and Muhajirs etc. The local inhabitants were also not joined at the search of the house in disregard of the mandatory provisions of section 103, Cr.P.C.

27. Khan Raziq, S.H.O. (P.W.8) stated that all the empties recovered from the spot and the pistol were not sealed into a parcel. The Investigating Officer could not point out the application through which he sent the articles to the Expert to show as to when he sent the pistol and the empties to the Expert. At page 48 he says as follows:- "The copy of the application, by which I had forwarded the pistol and the crime empties to the Arms Expert, is not on the police file nor is placed on the judicial file." The Arms Expert report shows the receipt of the crime weapon along crime empties and live rounds for test on 10-9-1991 and the same day on microscopic examination a positive opinion was tendered. Crime empties recovered from the spot on 20-6-1991 and crime weapon allegedly recovered on 7-7-1991 were kept in police station till 10-9-1991 for no rhyme or reason. In the circumstances the recovery of crime weapon and crime empties and the Fire Arms Expert report shall not advance the case of the prosecution. So far as the recovery of Rs. 30,000 from the house of appellant Saifullah is concerned, no identification was conducted regarding these notes which was necessary in all circumstances. In a case reported P L D 1990 FSC 38 the accused were charged under section 17(3) of the Offences Against Property. (Enforcement of Hudood) Ordinance, 1979 and sentenced to amputation of their right hands and left feet from the ankle for having committed `Haraabah' at the Wadhi Branch, Habib Bank Limited which they robbed and took away a sum of Rs.1,02,

602. Subsequently, currency notes of Rs.14,000 were recovered from one accused and Rs. 13,000 were recovered from the other accused. As there was no identification of the bundles of currency notes their Lordships in para. 35 observed as follows:- "There was, however, suspicion about the two sealed and signed bundles of the currency notes and so we kept them out of consideration." In the above case the appeal with regard to punishment of Hadd was accented and the sentence was not confirmed by their Lordships.

28. Herein the two appellants were also not duly identified in a proper identification parade which further weakens the case of the prosecution. As and when accused are charged in F.I.R. and statements under section 161, Cr.P.C. by the description of their statures, their identification in a formal parade by the prosecution witnesses is a "must". The mode of identification permitted by the Court at the trial inside the Court is unsafe and unwarranted.

29. The defence evidence narrated a different story that the appellants were on visiting terms to the Bank as they had been depositing telephone, electricity and Sui gas bills and in support some bills were placed on file which bore the stamps of the United Bank Limited, Hayatabad Branch. Arbab Shuaib, P.W. 6, Cashier of the Bank stated that as far as he recollected Saifullah accused had come to deposit the telephone bill in the month preceding the month of occurrence but he had returned the bill to him since it was wrong. He further stated that as far as other bills were concerned, he did not know whether the accused had ever visited the bank or not. The defence has placed on file newspapers Frontier Post June 21, 1991, which all reported that two persons entered the United Bank Limited, Hayatabad Branch, near Khyber Park-and demanded money on gun point. The police sources said that the dacoits fled away after taking about Rs.96,000 from the Cashier and during dacoity the bank watchman was also shot and injured. Both the dacoits were intercepted by police at Pishtakhara. The police sources further said that both the dacoits riding on motor-cycles opened fire and in the ensuing shoot out one of the accused Sherzada was killed while the other was arrested whose name was not mentioned and the money was recovered. The deceased dacoit was reportedly wanted in a number of crimes. All the three Bank Officials admitted to have read the newspapers but the matter was not further pursued. Khan Raziq S.H.O. had the cheek to deny any news of dacoity in U.B.L. appearing in the press. The learned trial Court in para. 33 of its judgment has referred to the registration of a case in the police station, Pishtakhara vide F.I.R. No.175 dated 20-6-1991 about 8.45 a.m. in which Shireenzada committed a murder the same day earlier was intercepted by the police and killed in the encounter. The evidence on record is silent about the registration of the case in P.S. Pishtakhara. No copy of the said F.I.R. was placed on file. The I.O. was also not to refer to the said incident nor the other P.Ws. were to refer to the incident for the purpose of contradicting the newspapers reporting about the robbery in U.B.L. Hayatabad branch on the same day and time.

30. The defence has also given evidence in the statements of D.W.1 and D.W.2 that the appellants were arrested from a different place in different manner and their evidence had gone unrebutted.

31. In view of the foregoing discussion, we have found that there cannot at all be recorded and awarded punishment to the appellants for `Haraaba' under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, on the basis of the evidence on record. There can also not be recorded the conviction of an accused for theft/Haraaba under section 5/section 17(3) of the Ordinance or section 379/section 392, P.P.C. and at the same time for dishonestly retaining stolen property under section 411, P.P.C. as the learned trial Court has erred in convicting and sentencing Saifullah appellant also under section 411, P.P.C. while at the same time he was convicted and sentenced for `Haraaba' under section 17(3) of the Ordinance. We have found that the prosecution has also failed to bring home the charges of robbery and criminal intimidation to the appellants under Tazir beyond all reasonable doubts. We have not found the evidence furnished by the bank officials and the S.H.O. truthfull worth-reliance and confidence-inspiring to sustain conviction. Consequently, we accept the appeal, set aside the conviction and sentences of Saifullah and Assadullah appellants on all charges and order their acquittal accordingly. The thirty thousand rupees cash delivered to the I.O. by the appellant Saifullah's wife during the course of investigation shall be returned to Saifullah appellant. The unlicensed .30 bore pistol allegedly recovered from appellant Saifullah's house at his instance along charger and rounds and the other empties recovered from the spot are, however, confiscated to the State. The Hadd reference is answered in the negative and Hadd punishment is not confirmed.

32. Before parting with, the case, we are called upon to offer some comments on the concept of Hadd as laid down by Ouran and Sunnah for the reasons that the world should know that under what circumstances the Hadd punishment is awarded to the accused in the countries where Sharia is enforced. We also do so as we have received letters from various forums like Amnesty International dated 9-11-1991 which is reproduced in verbatim as follows:- "The Chairman Ref.: ASA 33/91/21 Supreme Appellate Court, Peshawar North-West Frontier Province Pakistan. 9 October, 1991 Dear Chairman, Amnesty International is concerned that the sentence of amputation may be awarded by the Supreme Appellate Court under Islamic law and that such sentence may possibly be executed. The sentence of amputation was introduced as a punishment for the offence of Haraaba under the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Amnesty International appreciates that apparently to date no, amputation has been carried out. Amnesty International neither opposes nor supports any particular system of justice, provided it is consistent with internationally accepted human rights standards. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and other human rights instruments prohibit all forms of cruel, inhuman or degrading punishment. The United Nations (UN) Human Rights Committee has declared in its authoritative general comment on Article 7 of the IC CPR that corporal punishment amounts to cruel, inhuman or degrading punishment and is therefore prohibited. Furthermore the UN, Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1984 (Resolution 1984/22) stated explicitly that the penalty of amputation is incompatible with Article 5 of the Universal Declaration of Human Rights. Amnesty International appeals to the Supreme Appellate Court to refrain from imposing the punishment of amputation, as the infliction of Permanent disablement is clearly a form of cruel, inhuman or degrading punishment which is absolutely prohibited by existing international standards. It urges the Supreme Appellate Court to provide for other punishment which is consonant, with Article 5 of the Universal Declaration of Human Rights. Yours sincerely, Sd/ Ian Martin Secretary General" We offer the following comments:- Crime is a curse and in gravity needs no emphasis. It disturbs the balance of a society and ultimately corrodes it. The secular modern societies, which boast of their resources and theories of crime and punishment, are the living examples of such corrosion. These societies are not fully equipped to curb crime as they are devoid of Allah's guidance and conception of accountability in the life Hereafter and have no moorings in morality. Moreover the man-made laws which control them are fallible and deficient. The only society which has the capability to overcome the menace of crime is the Islamic society as it is based on Divine order and aims at human perfection and peace in this world and felicity in the Hereafter. In conforms to the dictates of laws and principles of morality as enunciated by Islam and is quite different from the modern societies which reflect a variety of ethical values and throw the door open for all sorts of vices, evils and crimes. Islamic law, which controls the Islamic society and guarantees its preservation, takes a serious view of crime and in order to check it postulates, inter alia, an ideal and unique punitive system having fixed as well as variable elements, which are essential for a good legal system. The punishment known as Hadd, which is a fixed element in that its quantum has been finally prescribed and can neither be altered nor modified, is the nucleus of this system. It wipes out certain heinous crimes and ensures the preservation of the values that Islam upholds for the dignity of human society and spiritual purification of human soul.

33. Hadd etymologically means measure, limit or obstruction. Technically it means a punishment the measure of which has been definitely fixed or punishment ordained 'by Quran and Sunnah or the correction appointed and specified by the law on account of the right of Allah or a penalty appointed or specified by law on account of rights of Allah (or public justice). The rights of Allah correspond to the public rights as they involve benefit to the community at large and are referred to Allah because of the magnitude of the risks involved in their violation and of the comprehensive benefits which result from them. In other words, the rights of Allah are to be construed as rights of society because the punishments of Hadd are meant to deter from mischief and harm to people and it is a collective obligation of the Muslim community to enforce them.

34. The punishments of Hadd have been prescribed for these crimes because they impair human dignity, have far-reaching effects on society and violate the public interests or the aim of Sharia in regard to man, namely protection of sanctity of family and progeny, protection of reason, protection of property, protection of honour and protection of religion.

35. Sarqa (theft) is an act of encroachment on the property of someone without any justification and causes unrest in society. Thieves are a terror and with a view to put them under guard a very strict measure has been ordained. (As for the thief, both male and female, cut off their hands. It is the reward of their own deeds and exemplary punishment from Allah- Allah is Mighty, Wise). The punishment for the first offence is amputation of hand; for a second that of the left foot upto ankle and for a third a. long term of imprisonment until. the culprit reforms. Hazrat Ali refused to ampute another hand of a confirmed thief where one hand and foot had already been cut off. To constitute theft it is essential that the thief must be an adult of sound understanding, the property must be in careful custody, the property must be movable, the property must be taken out of the custody of another person in a secret manner and its value must not be less than the prescribed Nisab an the thief must have obtained full possession of the stolen property.

36. Haraaba (highway robbery) not only deprives someone of his hard earned money and property or life but also causes public disorder and as such deserves a harsh punishment. (The only reward for those who make war upon Allah and His Messenger and strive after corruption in the land will be that they be killed or crucified, or have their hands and feet on alternate Odes rut off, or will be expelled out of the land, such will be heir degradation in the world and in the Hereafter, theirs will be an awful doom). The established punishment is cutting of right hand and left foot if Haraaba is not accompanied with murder and death if accompanied with murder.

37. The offences punishable with Hadd are non-compoundable and. Hadd is enforced by the Head of State or his delegatees namely Qadis. The Head of State, however, has no right of pardon and suspension of sentence. If the guilt is proved, the convict must be punished at all costs and there can be no mercy in inflicting it. The punishment cannot be reduced under sentiments of mercy. "And let not pity for the twain withhold you from obedience to All4h, if you believe in Allah and the Last Day."

38. Those who are not familiar with the philosophy behind Hadd punishments and their rationale severely criticise these punishments by calling them barbaric and mediaeval. They do not know that Islam leaves no stone unturned to block all the channels leading to crime and the punishments ire inflicted as a last resort. The Hadd punishments are permissible under very exceptional circumstances when a foolproof case is made out. The standard of evidence for awarding these punishments is very high which suggests that 16 policy of law is not to remain in search of offenders and fix scaffold in crossings to flog people everyday but to punish only those who despite preventive measures adopted by Islam defy public decency and flaunt their vices openly. These punishments are inflicted under conditions of a stringent nature laid down by law and that is why they are a rare phenomenon. The Hadd stands dropped if there crops up even the slightest doubt. The Holy Prophet (PBUH) said, "Remit punishment on account of doubt as long as you have ability." "Try to avoid Hadood wherever possible. Wherever there is even a mild chance, release him, for releasing by an error on the part of an Imam is better than punishing anyone by error." The principle of giving benefit of doubt to the accused was taken to such length that the Holy Prophet (PBUH) did not act generally on the confession of an accused Unless he was satisfied about the voluntary nature as well as genuineness of the confession, The cases of Maiz and Ghamdiyyah are in point. When Maiz confessed his guilt of Zina, the Holy Prophet (PBUH) made an inquiry into his mental state as well as his knowledge about the ingredients of the offence to which he was confessing. Same happened with Ghamadiyyah. Hazrat Ali also did not order the sentence of Zina on Shurahah without investigating into the voluntary nature of genuineness of her confession."

39. The punishment of Hadd is deterrent and its purpose is humiliation for the convict and lesson for the public. It deters the offender from repetition of the crime and also deters others who are like-minded with him, by his example from the commission of it. Besides, it contains elements of reformation and prevention. Once the punishment of Hadd is carried out it so deters the public that no one can dare commit that crime for years to come. In a way it performs a psychological operation on the minds of those who have criminal tendencies and thus reforms them automatically. Even the modern criminologist have come to the conclusion that the perfect system of criminal justice should not only readjust the criminal but be such as to deter others. It is a matter of common knowledge that Hadd punishments have virtually wiped out crime from Saudi Arabia and made it a model for rest of the world. ` Impressed by the efficacy and results of the punishment of amputation of hand a non-Muslim Scholar Gordon Gaskell remarked "Foreigners consider this a horrible punishment but even they admit that it has made Saudi Arabia the country with the lowest crime rate in the world.

40. Imposition of Hadd obliterates sins. The Holy Prophet (PBUH) said "Swear allegiance to me that you will not associate anything with Allah, that you will not commit adultery, that you will not steal, that you will not take any life which it is forbidden by Allah to take but with (legal) justification; and whoever among you fulfils it his reward is with Allah: and he who commits any such thing and is punished for it, that will be an atonement for it. And if anyone commits anything and Allah conceals (his faults) his matter rests with Allah. He may forgive if He likes it and He may punish him if He likes." The Hadd punishment can prove effective in liberating the societies of the world from the curse of crime and its evil consequences. SYED IBNE ALI, MEMBER

I have gone through the judgment proposed to be delivered by my learned brother Abdul Karim Khan Kundi, J. He has adequately dealt with the facts of the case, thoroughly examined the evidence of the prosecution and the defence as well as the law involved in this case. I fully agree with him that the prosecution has failed to prove its case beyond reasonable doubt and acquittal of the accused appellants follows as a necessary corollary. Though my learned brother has ably taken note of all points raised in this case, yet I wish to add my own note concerning crucial features of the prosecution case and the law bearing upon it. The fate of the prosecution case depends upon the conditions laid down in section 7 of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 (hereinafter called the Ordinance). This section reads:- "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 `Tazkiyah-al-Shuhood' 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 authorised by him shall be recorded before the statements of the eye-witnesses are recorded." It may be stated that this provision is based on the divine law revealed to the Last Holy Prophet Hazrat Muhammad (PBUH) by Almighty Allah, the Creator of the Universe, and enunciated in His Sacred Book Quran. Before I proceed to adumbrate with the issue that the law of Islam or in legal terminology the law of peace is beneficiary for the entire humanity as a sure guarantee for peaceful co-existence of International Community, let me first take a brief and succinct note of the prosecution evidence which, to my mind is nothing but a tissue of lie and even does not face the principles and conditions of formal or deductive logic., In Hadd cases, the prosecution evidence must be consistent, smooth and continuing from the beginning to the last. At no stage of the proceedings, shifting of the stand in the evidence is countenanced. In that event, benefit of doubt would go to the accused. My learned brother in his judgment has taken pains in unearthing objectively the contradictions, discrepancies, inconsistencies and anomalies in the evidence of the prosecution witnesses. He rightly dubbed them liars. The victim in the F.I.R. and the other eye-witnesses in their police statements described the accused bearded tall men of brownish colour. They did not mention the word of "foreigners" nor did they state that the accused at the point of pistols warned "Not move, hands up". The accused were Americans. Had they said "Not move, hands up", obviously, the witnesses would have described them "foreigners", moreso, as English-speaking people or foreigners are at once and without second thought are recognized as such. In this view of the matter, the defence version that if at all robbery was committed in the bank, the accused were implicated in the crime due to the unhappy incident earlier happened between the wife of the appellant Saifullah with one of the employees of the bank and in order to save the reputation of their bank, they charged them falsely, would appear to be plausible and commends to the sense of a reasonable man. The investigation of the case is open to farcical conduct on the part of the investigating officer. According to the defence, the cheque of U.S. $ 5,000, was the root cause of strained relations between the appellants and the bank employees. The bank employees admit this episode with clean breast. What steps the investigating officer took in this behalf? He did not do anything. As this aspect of the case was to set at naught the prosecution case, the investigating officer had the temerity and audacity to suppress it as though he is an angelic authority to bind the Court to stamp his writ of investigation the basis of judgment. According to the investigating officer, on July 7, 1991, he arrested the accused at Khyber Park on suspicion. In the police station, the Manager of the bank was co incidentally present and he identified them as the culprits. No disinterested person was produced to testify that the investigating officer arrested the accused in their presence. Leaving aside it, at night he-recovered at the instance of the appellant Saifullah .30 bore pistol with charger and live rounds as well as thirty thousand rupees in cash allegedly a part of the robbed money. Previously, on the day of occurrence, he had, inter alia, recovered two empties of .30 bore in the bank premises. It is a matter of record that he had not sealed the empties nor had he sealed the pistol. Under the Police Rules, his duty was that until the recovery of the crime pistol, he should have entrusted the empties to the Incharge of the Malkhana (official place of safety for the purpose) in a sealed parcel. He did not do any such thing. He kept the crime empties and the crime pistol in his open custody for abnormally long a period of more than two months. Thereafter he sent for report the empties and the pistol to the Firearms Expert and no application was addressed for that purpose. Though the report of the Firearms Expert was positive, but the conduct of the investigating officer is vulnerable to mockery of fair investigation. Who will repel the objection that as the investigating officer had kept the pistol and the empties in his personal custody for a long period of more than two months and it will be he who has fired the empties from the pistol? Obviously, the verdict in this behalf is against the investigating officer to recoil on his conduct. Farrukh Sair Khan; Magistrate Ist Class, Peshawar, has also not complied with the legal formalities in recording the alleged confession of the appellant Saifullah. The questionnaire was in Vernacular. The accused appellants are American or English-speaking and it is conceded that they do not know Urdu, therefore, in the circumstances discussed by my learned brother, the Magistrate has mechanically recorded the alleged confession and the appellant was forced to sign the same. As the alleged confession does not stand the test of judicial scrutiny, it will have no evidentiary value. I now advert to the legal aspect of the law of Islam. It may be observed that in criminal cases, Islam lays emphasis with respect to a witness concerning purgation (Tazkiya-al-Shuhood). There is a plethora of authorities of eminent jurists of Islam in this respect. As the judgment of my learned brother has expounded sufficient Islamic law on the issue of purgation, I should not detail my reasoning. It will be in a way repetition. I, however, deem it my duty to express myself in my own way to limelight the issue of purgation or for that matter whom Islam calls a truthful witness. The Special Court in para. 22 of the judgment while coming to the conclusion that the witnesses fulfil the requirements of Tazkiya-al-Shuhood (purgation) observed: "Let me state at this stage that having kept in view the requirement of section 7 of the Ordinance, I have undertaken an exercise to satisfy myself having regard to the requirement of "Tazkiya-al-Shuhood" that the two eye-witnesses are truthful person and abstain from major sin (Kabair). The secret information ascertained in this behalf is placed on record in a sealed cover. Need I mention that the two eye-witnesses Mubarik Ali and Arbab Shuaib are Muslims and adult male witnesses and fully satisfy the requirement of `Tazkiya-al-Shuhood." . Now what the expression Tazkiya-al-Shuhood (purgation) signifies and connotes requires elaborate enquiry into the piety, uprightness and integrity of the witness from the men of same virtues. The Special Court just depends his conclusion upon the inquiry conducted by him through the police. I am of the opinion that while making inquiry about the antecedents of a witness, the Court ought to satisfy itself that the Muzakki (purgator) is a man of antecedents blessed with the above virtues. As this prerequisite escaped the notice of the learned Judge; Special Court, the enquiry conducted by. him through police was just a formality and no sanctity can be attached to it. We, however, do not have the occasion to reopen this issue in view of the fact that we have found, upon examination of the evidence, the eye-witnesses brazen faced liars of major sin. In the end, we take note of various letters addressed to us by World Amnesty International as quoted by .my learned brother in his judgment wherein it has been stated that "The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and other human rights instruments prohibit all forms of cruel, inhuman or degrading punishment

that the penalty of amputation is incompatible with Article 5 of the Universal Declaration of the Human Rights". Finally an appeal has been made in the letter; "It urges the Supreme Appellate Court to provide for further punishment which is consonant with Article 5 of the Universal Declaration of Human Rights". We take notice of this letter on the ground that firstly, the Courts in Pakistan are independent and they import justice to the accused strictly according to law and the evidence brought on record. If we find that the case against an accused person is against evidence and is doubtful on the facts, the accused is forthwith acquitted of the charge. Secondly, in Islamic countries, where Hadd punishment is given, the same mode is applied in Hadd cases as it is applied in other cases. We may mention here that those cases are referred to the Special Court where in the opinion of the Federal Government, the offence committed is gruesome, brutal and sensational. While trying the Hadd or other cases, keeping in view the above nature of the cases, the Courts in Pakistan take the golden principles laid down by Islam of double benefit, i.e., one benefit is given by the Qazi and it is stated with authority as follows:- "Remit punishment on account of doubt as long as you have ability (Ibne Majala). The above command is meant for the Qazi (Court). The second command is given as follows:- "Try to avoid Hadood wherever possible, wherever there is even mild chance, release him, for releasing by an error on the part of a Court is better than punishing anyone by error". The treasure compiled by Faqir Syed Wahiduddin

Line Art Press Karachi 61). For example in case of Maiz who confesses his guilt of Zina (adultry), the Holy Prophet (p.b.u.h.) made an inquiry into his mental state as well as his knowledge about the ingredients of the offence which he was confessing. Same happened with Ghamadiyyah. Hazrat Ali (A.S.) also did not order the sentence of Zina on shurahah without investigating into the voluntary nature of genuineness of his confession. The second kind of doubt is that Hadd stands dropped if there crops up even slightest doubt. The principle of giving double benefit surpasses all laws of the land and excels the general principle "Let hundred guilty persons be acquitted but one innocent person should not be hanged". After applying all the aforementioned tests, the case of the accused if proved on the basis of strict conditions laid down for its proof or on confession which lasts till end, then the punishment of Hadd is carried out. Once it is carried out, it is so deterrent to the public that no one can dare to commit that crime for years to come. In a way, it treats psychologically those persons who have criminal tendency and thus reforms them automatically. M.BA./1/SAC Appeal accepted.