2002 PLP 2960 (YLR)

7. S. H. O. Muhammad Hassan Bangulzai appeared as P.W.5 and deposed that the accused was produced before him alongwith stolen motorcycle, and the pistol in the Chitkan Bazar, who was duly arrested and after completion of the investigation, was challaned to Court to face his trial.

8. At the close of the prosecution evidence, the statement of the accused was recorded under section 342, Cr.P.C. wherein he denied all the allegations put forth by the prosecution. He also declined to produce any evidence in his defence. He however, opted to appear and make a statement on Oath under section 340(2.,), Cr.P.C., which was accordingly recorded by the learned trial Court. The accused stated therein that he had demanded Rs.20,000 from the complainant for purchasing a ticket for Dubai but he was got challaned in this case. After completion of the trial the accused was convicted and sentenced as stated above, hence this appeal.

9. We have heard the learned counsel for the appellant as, well as learned counsel for the State and have perused the record carefully.

10. Learned counsel for the appellant has vehemently contended that no case against the accused was made out under Section 9 of the Ordinance, as the requirement to prove theft liable to Hadd, as contemplated, by the provision of section 7 of the Ordinance, were not fulfilled by the prosecution by producing two eye‑witnesses besides the complainant. According to him Muhammad Ashraf (P.W.2) and Bashir Ahmad (P.W.4) had not seen the accused actually taking away the motorcycle from the shop of the complainant, as such, the offence if any, committed by the appellant would fall in the purview of theft liable to tazir punishable under section 379, P.P.C. He further argued that the P.Ws. were not subjected to Tazkia‑Al‑Shuhood which was yet another requirement to convict the accused for Hadd punishment which was not fulfilled in this case.

11. Learned counsel for the, State has not been able to controvert the contention raised by the defence and has frankly conceded that the conviction under section 9 of the Ordinance may be altered to the offence of theft liable to tazir.

12. We have given our anxious consideration to the submissions made by both the learned counsel for the parties. Wei feel that the contention raised by the defence, carries weight, as the testimony furnished by the two eye‑witnesses namely, Muhammad Ashraf and Bashir Ahmad do not disclose the factum of actually taking away the property from the hirz of the complainant. We have carefully scrutinized .the two statements referred to above which disclose about the catching hold of the accused, when he was driving away the stolen motorcycle, and subsequent thereto the recovery of the pistol from him, which was duly produced before the police. Although these two P.Ws. provide, us sufficient circumstantial evidence to connect the accused with the crime of theft, yet their testimony lack the essential ingredient of actual removal of the property which was sine qua non for making accused liable for Hadd punishment. Besides, the two witnesses were not subjected to Tazkia‑Al- Shahood, which was yet another mandatory requirement contemplated by section 7 of the Ordinance, to be complied with before placing reliance on the testimony of the P.Ws.

13. It would be useful to reproduce herein-below the provision of section 7 of the Ordinance, for ready reference and convenience:‑‑ "The proof of theft liable to. Hadd shall be in one of the following forms, namely:‑‑ (a) the accused pleads guilty of the commission of theft liable to Hadd; and (b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirements of Tazkiya-Al- 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 of the person authorized by him shall be recorded before the statements of the eye witnesses are recorded. Explanation.‑‑‑In this section, Tazkiya‑Al‑Shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness. "

14. In the case in hand neither the accused‑appellant has confessed his guilt, nor the prosecution has produced two credible eye‑witnesses duly scruitinized through Tazkiya‑Al‑Shuhood, other than the complainant. We, therefore, feel constrained to observe that the evidence thus brought on the record was not sufficient to base the conviction of the appellant for offence of commission of theft liable to Hadd.

15. However, the abovesaid evidence could conveniently be made basis for recording conviction against the appellant for the commission of theft liable to tazir, as provided by section 14 of the Ordinance. We have cautiously considered this aspect of the matter, and have evaluated the evidence produced by the prosecution. We find that all the three witnesses namely, Ali Muhammad (P.W.1), Muhammad Ashraf (P.W.2) and Bashir Ahmad (P.W.4) have consistently deposed that the accused‑appellant was armed with pistol when he was caught hold of by them alongwith the stolen motorcycle. This fact was further corroborated by the testimony furnished by Muhammad Ibrahim (P.W.3) and S.H.O. Muhammad Hassan (P.W.5) who have stated that the accused appellant was produced by the P. Ws. alongwith pistol and the stolen motorcycle which were taken in possession through memos duly signed by the witnesses.

16. The upshot of the above analysis of the evidence is that the appellant has committed the theft of the motorcycle after arming himself with pistol, so as to combat and resistance, or to effect his escape, as such the offence thus committed by the appellant would fall in the purview of section

382. P.P.C., which stands proved beyond any reasonable doubt. Under the above circumstances we alter the conviction of the appellant from section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to section 14 of the said Ordinance read wit section 382, P.P.C. The appellant is stated to be a previous non‑convict and the only bread earner of the family, we therefore, taking lenient view of the matter, sentence the appellant to undergo rigorous imprisonment for two years with fine of Rs.5,000 in default to undergo rigorous imprisonment for six months. The appellant would however b entitled to the benefit of section 382‑B Cr.P.C. With this modification sentence, this appeal stands dismissed. Criminal Reference No.13/I of 199 is answered in negative. N.H.Q./80/FSC Order accordingly.