2004 PLP 1592 (YLR)

4. At the trial prosecution examined seven witnesses in all. P.W.1 Maqbool‑ur- Rahman, P.W.2 Muhammad Rizwan, P.W.3 Ikhlaq Ahmad, P.W.4 Iqbal Rathore and P. W, 6 Noor Muhammad are eye witnesses of the occurrence. P.W.5 Shaukat Ali, S.‑I. lodged F.I.R. as per statement of P.W.2 Muhammad Rizwan, complainant. P.W.7 is Syed Zulqarnain Akhtar, S.‑I. who was available in Muhammad Shah Street, Juna Market area alongwith his mobile team. On receipt of information he reached the place of incident and saw that people were having commotion and were chasing the culprits. They also followed the accused who were five/six in numbers but, except Amjad Pervez, the other succeeded to escape in the narrow street. They apprehended the appellant/accused Amjad Pervez sand recovered T.T. pistol from his possession with one full magazine and one empty magazine. Five bullets were found loaded in .the magazine. The accused had fired one shot in the air but on account of rush and the public, empty of the same could not be traced. He recorded statements of the P.Ws. namely Iqbal Rathore, Noor Muhammad, Ikhlaq Ahmad, Maqbool‑ur- Rahman and Muhammad Saleem. He also prepared Mushirnama of the place of Wardat. F.I.R. was lodged by Muhammad Rizwan. He identified the appellant/accused in the Court. During interrogation the accused had disclosed the names of other co‑accused as Bashir alias Bashira, Muhammad Afzal, Sajjad Pathan and Laloo Pathan.

5. The appellant/accused made statement under section 342, Cr.P.C. wherein he denied the allegation and pleaded innocence. He stated that the case was false. However, the expressed his inability to say why the P.Ws. had deposed against him.

6. We have heard learned counsel for the parties and have perused the record with their assistance. After making submissions at some length, the learned counsel for appellant conceded that he does not press the appeal on merits but only prays that the sentence of Hadd awarded to the appellant being illegal be set aside. After taking into account the evidence available on record, learned Assistant Advocate‑General also conceded that the sentence of Hadd was not warranted in the instant case as compliance with the mandatory requirement of Tazkiya‑al -Shuhood was not done.

7. We have appreciated the evidence brought on record in the light of submission made by the learned counsel for the parties. It transpires from the record that the prosecution has examined seven witnesses in support of its case. As stated above P.W.1 Maqbool‑ur‑Rahman, P.W .2 Muhammad Rizwan, P.W.3 Ikhlaq Ahmad, P.W.4 Iqbal Rathore and P.W.6 Noor Muhammad are eye‑witnesses of the occurrence who have given consistent, coherent and confidence‑inspiring account of the occurrence and, excepting minor discrepancies which in no way adversely affect the case of prosecution, they have remained firm to the test of cross examination. None of them is even alleged to have any mala fide or motive worth the name to falsely implicate him in this case. P.W.7 Syed Zulqarnain, S.‑I. who reached the place of occurrence soon after the occurrence and arrested the appellant/ accused red‑handed, has fully supported their version. In this view of the matter we have come to the irresistible conclusion to believe that the prosecution has successfully established its case against the appellant/ accused beyond any room for doubt. However, the moot question that concerns the infliction of Hadd punishment would be whether on the basis of this evidence the sentence of Hadd under sections 17(3)/9(1) would be legally justified. For this purpose it would be beneficial to refer to section 7 of the Ordinance which prescribes proof of theft liable to Hadd which, in view of the contents of section 16 of the Ordinance, is equally applicable mutates mutandis, for the proof of Harrabah as well. Section 7 of the Ordinance reads as follows:‑‑ "The 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 the commission of theft liable to Hadd; and (a) 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 or the person authorized by them 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."

7. As is evident from bare perusal of the above, this section makes Tazkiya‑al -Shuhood as a mandatory requirement for the imposition of Hadd punishment. It may be mentioned that the law relating to Hadd was introduced in 1979 and the term used in the section being new needs to be understood in proper prospective. Obviously the law neither prescribes any number of witnesses, required for the purpose of Tazkiya‑al‑Shuhood, in respect of eye‑witnesses of the occurrence appearing before the trial Court, nor laid down any particular mode of inquiry to be adopted by a Court to satisfy itself as to the credibility of witness. However, the main object of the law is to adjudge the credibility of the witnesses as far as possible and exclude all possibility of falsehood, interest, mala fides or any other negative aspect that may render testimony of a witness appearing against an accused loaded with doubt in any degree. Tazkiya- al‑Shuhood shall be conducted in all cases wherein the sentence of Hadd is awarded irrespective of the fact whether the accused raises any objection about the probity and credibility of a witness or not. The Court is bound to conduct an open or secret inquiry for this purpose. It has been mentioned in books of Islamic Fiqh that it would be desirable if the witnesses are scrutinized through credible persons preferably of the same weal of life to which the witness belongs if they happen to know or could gather correct information about their C dealings, conduct and behaviour. Since the person who conducts the inquiry as Muzakki is loaded with a very heavy responsibility it would be imperative for the Court to appoint only such persons who themselves are highly credible, trust‑worthy and well aware of the antecedents of the witnesses appearing on behalf of prosecution. The inquiry made by said persons may not be necessarily open or confidential but it should, be fully sufficient to convince the Court about the credibility or otherwise to the witnesses. In the instant case the learned trial Court appointed one Haroon‑ur‑Rashid Chand, Goldsmith, as purgatory in order to ascertain the genuineness of the incident, truthfulness of the witnesses. He just happens to own a shop in the neighbourhood. He opined that none of the five witnesses had malice, ill will or any sort of activity nor they were involved, apparently to indulge into the habit of commission of offence of "Kabair". The Court considered him as sufficient Muzakki for all the P. Ws. and considered him to be the proper person who himself was a believer and did not indulge in any sort of bad activities. Obviously appointment of one Muzakki and that too for all P.Ws., who included not only the two shopkeepers but other victims of the case who happened to be there on that unfortunate hour, could not be sufficient satisfaction of the legal requirements as the gentleman, with all his piety, was having only superficial acquaintance with the P. Ws. As stated above, although the law does not specify any particular procedure but, obviously, there was need to appoint at least one Muzakki for each witness who should have verified the character, behaviour and dealings of each one of the witnesses. Moreover the same persons were also required to be present when the prosecution witnesses were being subjected to questioning. Books of Islamic Fiqh contain various details which have been summed up in the preceding lines.

9. The procedure adopted by the learned trial Court thus hardly falls within the legally convincing mode of Tazkiya‑al- Shuhood. Moreover, it is pertinent to E mention that the Holy Prophet (peace be upon him) has, on more than one occasion, stressed the need to ward off Hadd punishment as far as possible, if any scope is found for it.

10. In the instant case the evidence of prosecution having been found short of meeting the required standard, we have no other alternative to set aside the conviction of Hadd awarded to the appellant/accused and instead alter his conviction to one of Taazir as required under the provisions of section 397, P.P.C.

11. Consequently for the reasons stated above, we alter conviction from under sections 17(3)/9(1) of the Ordinance to that of under section 397, P.P.C. The sentence of Hadd punishment is set aside and instead he is sentenced to undergo rigorous imprisonment for ten years. The benefit of section 382‑B, Cr.P.C. is extended to their appellant.

12. With this modification in the conviction and sentence of Hadd, the appeal is dismissed.

13. The Criminal Reference No. 1/K of 2002 is not confirmed and is answered in negative. Conviction/sentence altered. N.H.Q./14/FSC