ARSHAD ALI Versus THE STATE

JUSTICE ABDUL MAJID TIWANA (MEMBER-II).----- This judgment shall also deal with and dispose of Criminal Appeal No.7/SAC/L /93 and Criminal Appeal No.8/SAC/L/93, all arising out of the judgment, dated 11-1-1993, by which the learned Judge, Special Court for Speedy Trials, Multan, convicting Mahmood Hussain and Shahid lqbal appellants under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C., directed the imputation of their right hands from their wrists and their left feet from their ankles, respectively, subject to its confirmation by the Supreme Appellate Court. He also convicted them under section 341, P.P.C. and sentenced them to one month S.I. and a fine of Rs.1,000, or in default to undergo 10 days' S.I. each. He further convicted them under section 392/34, P.P.C. and sentenced to 10 years' R.I. and a fine of Rs.25,000 or in default of its payment to further undergo 1 year's R.I. Both the substantive sentences of the convicts were, however, directed to run concurrently and they were also extended the benefit of section 382-B, Cr.P.C. The fine, if realised, was directed to be given to the occupants of the ambulance by way of compensation. The money recovered from them was ordered to be placed at the disposal of Medical Superintendent, B.V. Hospital, Bahawalpur, for disbursement amongst the doctors and the staff in accordance with his discretion.

2. He also convicted Arshad Ali, Mazhar Hussain and Mushtaq Ali appellants under section 411, P.P.C. and sentenced them to three years' R.I. and a fine of Rs.5,000, Rs.6,000 and Rs.20,000 or in default to further undergo 2 months' S.I., 3 months' S.I. and 6 months' S.I, respectively. They were extended the benefits of section 382-B, Cr.P.C. and the amount recovered from them was directed to be distributed by the Medical Superintendent of the said hospital in the same manner as indicated above.

3. The prosecution story in brief was that on 2-7-1992 Sajid Ali Qureshi complainant, the Assistant Cashier of B.V. Hospital, Bahawalpur, alongwith Jan Muhammad, Ward Assistant and Muhammad Aslam, Peon, had gone to National Bank of Pakistan, District Courts Branch, Bahawalpur, in the ambulance being driven by Hazoor Bakhsh P.W. for collecting the pay of the doctors and other employees of the said Hospital. They received Rs.10,23,288 on account of the pay of establishment and Rs.492,712.64 as pay of the doctors. The emoluments of establishment were placed in a bag held by Muhammad Aslam, Peon and the pay of the doctors was placed in a brief case held by Sajad Ali Qureshi, Assistant Cashier. On their way back to the Hospital, the complainant sat with the driver of the vehicle on the front seat with the brief case in his custody, while Jan Muhammad and Muhammad Aslam P.Ws. occupied the rear seat thereof, the latter having the cash bag in his possession. When the ambulance at about mid-day reached near the Hospital after crossing the Central Library Chowk, a white coloured Toyota Corolla Car, having three occupants, suddenly intercepted the ambulance near National Medical Store on Circular Road, Bahawalpur, as a result of which both the vehicles came to a standstill. The three persons, after emerging from the car, hurriedly encircled the ambulance. One out of them, who was later identified as Azeem Haider, coming near Sajjad Ali Qureshi complainant pointed his Klashniokv towards his head. Meanwhile the other culprit punctured the tyre of the ambulance by firing a shot from his mauser and left the empty on the spot. The third occupant of the car opened the side/rear door of the ambulance and snatched away the brief-case and the cash bag containing the aforesaid money and fled away in the same car towards the Central Library Chowk of the town.

4. Having been so robbed off, the hospital officials came to the Medical Superintendent of the Hospital and apprised him of the incident. Sajad Ali Qureshi complainant was deputed to lodge the F.I.R. with the police and he acted accordingly.

5. After the registration of the case, the police commenced its investigation, Muhammad Ramzan Inspector, S.H.O. of Police Station Cantonment, went to the spot, seized an empty and took into possession the punctured tyre of the ambulance. He prepared the site plan and recorded the statements of witnesses. On 17-7-1992 he arrested Arshad Ali, Mahmood Hussain, Mushtaq Ahmad and Mazhar Hussain appellants. Mahmood Hussain appellant was taken through the process of identification parade on 21-7-1992, Shahid Iqbal appellant, who was already in the custody of Toba Tek Singh Police, was formally arrested on 27-7-1992 by the Investigating Officer in this case and was put to identification parade on the same day. Both of them were correctly identified by the eye-witnesses. The third person amongst those, who had committed the highway robbery, was Azeem Haider. He was allegedly killed in a police encounter.

6. On 30-7-1992 Mahmood Hussain appellant led the police party to his house at Chak No.89/DB and got recovered a sum of Rs.1,97,358: He also led to the recovery of revolver P.5 alongwith 7 live cartridges. On the same day Arshad Ali appellant, while in police custody, got recovered Rs.33,000 from his house in Government Quarters, Bahawalpur. On the same lay Mushtaq Ahmad accused, while in police custody, led to the recovery of Rs.217,000 from his house. On the same day Mazhar Hussain appellant got recovered Rs.45,354 and a licensed .7 mm rifle P.3.

7. On 4-8-1992 Shahid Iqbal, while in police custody, led to the recovery of Rs.576,146 and a pay bill from his house (Plot No.5, Chichawatni, District Sahiwal) and on 7-8-1992 he got recovered pistol P.10 from a grove of trees situated in Bahawalpur Town. On the completion of investigation, the challan was submitted to the Court concerned.

8. On the commencement of trial, the learned Judge, Special Court for Speedy Trials, charged Mahmood Hussain and Shahid Iqbal appellants under section 341/34, P.P.C. under section 392/34, P.P.C. and under section 17 of Ordinance VI of 1979 read with section 34, P.P.C. and their co-appellants, namely, Arshad Ali, Mazhar Hussain and Mushtaq Ahmad under section 411,. P.P.C. On their pleading not guilty, the prosecution led evidence against them by producing as many as 19 witnesses.

9. To be a little more precise, H.C. Akbar Ali (P.W.1) proved the recording of F.I.R. (Exh.PA.) dated 2-7-1992 on the statement of Sajjad Ali Qureshi complainant and received the sealed empty from the Investigating officer which he despatched on 2-8-1992 to the Forensic Science Laboratory. He received it back on 9-8 1992 under an objection and re-sent the same to the Laboratory on 18-8-1992 through F.C. Muhammad Saleem (P.W.14) who had carried it earlier on 2-8-1992. He received a sealed parcel containing two pistols which he despatched to the Laboratory first on 13-9-1992 and then (one P.2) on 16-9-1992 after removal of objection through F.C. Muhammad Anwar (P.W.15). They all the three witnesses deposed accordingly.

10. Dr. Qamar Suhail (P.W.2) of B.V. hospital, Bahawalpur, testified that he had on 30-7-1992 witnessed the recovery of Rs.33,000 at the instance of Arshad Ali accused/appellant who had brought out the money from his house while in police custody. According to him, the accused was a Technician in Cardiology Department of B.V. Hospital and he had been working as Senior Registrar with Dr. Ghulam Qasim Khichi who deputed him for witnessing the recovery. He proved the attestation of the recovery memo. Exh.P.C., which according to him, was signed at the police station and not at the house of the accused. Dr. Qasim Malik, Medical Officer (P.W.3) another recovery witness also deposed in similar terms.

11. Dr. Arshad Aleem, Registrar, Orthopaedic Unit, B.V. Hospital, Bahawalpur (P.W.4) had witnessed the recovery of Rs.217,000 from Mushtaq accused-appellant on 30-7-1992 from his house in his village and that of Rs.45,354 from Mazhar Hussain accused-appellant from his house in the same village. Dr. Muhammad Asghar (P.W.6) also testified about the recovery of the said amount at the instance of Mazhar Hussain accused. Dr. Ghulam Qasim Khichi (P.W.5), joining the investigation of this case, had witnessed the recovery of Rs.197,358 besides a revolver and certain bills concerning pay of hospital staff at the instance of Mahmood Hussain accused from his house at village Chak No.89/DB on 30-7-1992. They all deposed accordingly.

12. Dr. Ameer Hussain, S.M.O., B.V. Hospital, Bahawalpur (P.W.7) deposed that he had joined investigation in this case and Shahid Iqbal accused appellant had, while in police custody, led to the recovery of pistol (P.10) from a groove of date trees on Library Road, Bahawalpur on 7-8-1992 and he had signed the seizure memo. Exh.P.K. Ali Ahmad Hasan, Supervisor, Highway Department, Chichawatni (P.W.8) deposed that on 4-8-1992 when he was supervising the construction of an overhead bridge at Chichawatni, he joined investigation in this case and Shahid Iqbal co-accused, who was in police custody had got recovered Rs.576,146. But in the same breath he testified that on the said date at about 4-00 p.m. he had gone to Ch. Tariq Rahim, the owner of Rahim Industries, where Inspector Muhammad Ramzan Bhatti asked him to sign the memo. (Exh.P.L.) as he had effected the recovery of money from the accused and on his request he signed it and in fact the said amount was not recovered from the accused in his presence. He was declared hostile on the request of the learned Assistant Advocate-General acid was cross-examined by him at some length but he stuck to the later part of his examination-in-chief, insisting that the money was not recovered in his presence.

13. Ghazi Aman Ullah, Magistrate Ist Class, Bahawalpur (P.W.9) stated that on 21-7-1992 he had conducted identification parade of Mahmood Hussain accused in New Central Jail, Bahawalpur, after complying with all legal formalities and in his presence Sajjad Ali, Jan Muhammad and Hazoor Bakhsh P.Ws., who were called in turn by turn had correctly identified the accused as the real culprit who had committed robbery. After giving the details of the identification parade, he proved his report (Exh.P.N.) and the certificate (Exh.P.N./1) appended thereto. Muhammad Aslam Khan, Magistrate Toba Tek Singh (P.W.10) testified that on 27-7-1992 he under the direction of the District Magistrate, conducted identification parade of Shahid Iqbal accused in the judicial lock-up at Toba Tek Singh after taking precautionary measures necessary for it and in his presence Sajjad Ali Qureshi, Jan Muhammad and Hazoor Bakhsh P.Ws. who were called in turn by turn, correctly identified the accused as the person who had committed the crime.

14. Inspector Khurshid Ahmad of Police Station "C" Division Rahimyar Khan (P.W.11) proved the death of Azeem Haider, an accused in this case, by deposing that on 4-8-1992 he was killed in a police encounter. Inspector Muhammad Hanif (P.W.12) of Police Station Rajana, District Toba Tek Singh, testified that on 13-7-1992 at 3-30 a.m., when he on patrol he arrested Shahid Iqbal from a groove of trees (Zakhira) in the area of Chak No.536, Police Station Rajana and registered a case against him regarding the theft of a car No.LOJ-8979 which he had stolen and sent him to the judicial lock-up in that case. He clarified that he had not arrested him in this case. S.I. Abdul Qayyum (P.W.13) deposed that on 8-9-1992 when he was posted at Police Post Bochal, District Chakwal, while returning from Muharram duty, found a damaged Car No. 3077/LOG near Lilla More and took it into possession under section 550, Cr.P.C.

15. Constable Muhammad Saleem (P.W.14) stated that on 2-8-1992, when he was attached to Police Station Cantt. Bahawalpur, he was given a sealed empty which he transported to the Office of Forensic Science Laboratory Lahore, but its parcel was objected to and he delivered it back to the Muharrir Head Constable, who after removal of the objection, re-entrusted the same to him on 17-8-1992 and he delivered it intact to the said laboratory. Constable Muhammad Anwar (P.W.15) testified that on 13-9-1992 he was given a sealed parcel of a pistol which he took to the Office of Forensic Science Laboratory, Lahore, but it was objected to and he brought back to the Muharrir Head Constable on 16-9-1992 and on the evening of the same day he took it back to the said Laboratory and deposited it intact.

16. Sarjjad Ali Qureshi complainant (P.W.16), Hazoor Bakhsh (P.W.7) and Jan Muhammad (P.W.18) gave the eye-witness account of the occurrence in line with the prosecution case. They also deposed about the correct identification of Mahmood Hussain and Shahid Iqbal accused/appellants during their respective identification parade. Their testimony finds ample reflection in the above narration of the prosecution case and the same shall be subjected to detailed appraisal, where necessary.

17. The last witness was Inspector/S.H.O. Muhammad Ramzan. He being the main Investigator, gave the details of the investigation.

18. The learned prosecutor gave up a number of witnesses as unnecessary and Maqsood Ahmad as having been won over. He tendered in evidence the report of Forensic Science Laboratory (Exh.P.Y.) and closed the prosecution evidence.

19. The appellants in their respective statements recorded under section 342, Cr.P.C. denied all the incriminating circumstances figuring against them in the prosecution evidence and, alleging their false implication, professed innocence. To be a little more precise, Shahid Iqbal appellant. while denying his participation in the commission of the crime in reply to a Court question about his involvement, stated that he had been falsely implicated at the instance of Shaukat Uayat, Advocate of Chichawatni. Mazhar Hussain appellant, explaining his involvement, took up the position that his father and uncle had made a complaint against Inspector Muhammad Ramzan Bhatti for falsely implicating one Ghulam Mustafa as a result of which he was transferred from Police Station Yazman and for that reason he had falsely involved him in this case. Mushtaq Ahmad appellant gave a similar explanation. Arshad Ali appellant blamed Dr. Ghulam 0asim Khichi (P.W.5) for his involvement in this case on account of departmental rivalry. None of the appellants, excepting Mazhar Hussain, claimed various amounts recovered from them as their property. Mazhar Hussain appellant stated that a sum of Rs. 45,354 recovered from him by the police belonged to him. None of them chose to appear as his own witness to make statement on oath under section 340(2), Cr.P.C. nor any one of them led evidence in his defence.

20. On the conclusion of the trial, the appellants were convicted and sentenced in the manner aforesaid.

21. It was argued on behalf of the appellants that they were falsely implicated in this case on the basis of mere suspicion and since it was a day occurrence in the centre of the town and the performance of the police was under serious criticism, they, in order to wash off the blame, caught hold of a few innocent persons and after planting some recoveries, arraigned them as accused in this case. According to the learned counsel, the police in its anxiety to strengthen their case even recovered from the appellants pay bills of the medical staff and officers and it was a crude attempt to prove their guilt. It was urged that in any case it was not a case of `Hadd' and at the most it could be a case of Tazir against certain appellants because the requirements of Tazkia-ul Shahood were not complied with.

22. The learned Advocate appearing on behalf of the State has tried to support the judgment of the learned trial Judge on the ground that in the absence of any previous enmity or ill-will between the appellants and the prosecution witnesses there could be no reason for the latter to falsely depose against the former, from whom huge amounts of stolen money, which the police could not procure for planting the same on them, were recovered and who were correctly identified during the identification parade. In his opinion the process of Tazkia-ul-Shahood was adequately carried out by the learned trial Judge who asked scarching questions to the eye-witnesses to find out their truthfulness.

23. Mushtaq Ahmad, Mazhar Hussain and Arshad Ali appellants were not amongst those culprits who had actually participated in the incident of robbery and had snatched away the money from the Hospital Staff. Their role was only that of the recipients of a part of the stolen money. While in police custody, Mushtaq Ahmad appellant had led to the recovery of Rs.2,17,000, Mazhar Hussain appellant Rs.45,354 and Arshad Ali appellant Rs.33,000. The recovery of money from the first two appellants was witnessed by Dr. Arshad Aleem (P.W.4) and he deposed accordingly but in the cross-examination he admitted that during the night between the 7th and 8th January 1993 the police took him to the village of these two appellants for the second time in order to brief him about the details of the case and the location of the places of recoveries as he was to appear in the Court. This was something unusual. If he had really witnessed the recovery of stolen money at the instance of these two appellants from their respective houses in the same village on 30-7-1992, as per prosecution case, then there was no valid reason for the police to again take him to the place of recovery on the eve of his appearance in the trial Court on 9-1-1993 and brief him in order to prepare him for facing cross-examination. It means he had not witnessed the recovery earlier on 30-7-1992 and he was being tutored by the police for making a coherent statement at the trial. It is, therefore, unsafe to rely on his testimony. So far as Arshad Ali appellant is concerned, he was an employee of B.V. Hospital, Bahawalpur. Being a Technician in the Cardiology Department, it was possible that, being in the knowledge of the routine of Hospital Staff to bring pay of the officers and employees of the Hospital, he might have provided intelligence to the robbers, but the testimony of Dr. Qasim Malik (P.W.3) to a greater extent saves him from his criminal liability. This witness admitted in his cross-examination that he had signed the recovery papers at the police station and at the time of his deposition the money allegedly recovered from this appellant was not available in the Court room. He also admitted the suggestion of the defence that this appellant, being an employee of B.V. Hospital, Bahawalpur had opposed Dr. Ghulam Qasim Khichi, the Senior Registrar of the Hospital in his election for a seat in P.MA. and he had been deputed by Dr. Ghulam Qasim Khichi to witness the recovery of the stolen money from this appellant. It indicates the animosity of Dr. Ghulam Qasim Khichi, a Senior Doctor, who was in a way, supervising the investigation of the case.

24. The case of Mahmood Hussain appellant was somewhat different from the aforesaid three appellants inasmuch as he and Shahid Iqbal appellant were amongst those who had actually committed the robbery alongwith their third companion who was later killed in a police encounter. The stolen money amounting to Rs.1,97,358 was allegedly got recovered from him during the investigation of the case and we would have believed Dr. Ghulam Qasim Khichi, Associate Professor of B.V. Hospital, Bahawalpur (P.W.5), who had deposed that he had witnessed this recovery, but a fact which made the entire recovery proceedings doubtful was the recovery of pay bills of the doctors and other employees of the Hospital alongwith the recovery of stolen money. This was obviously a crude padding made by the police. Why he should have kept the pay bills with the stolen money and got the same recovered with its Simply to furnish a proof to the police against himself? If the police could go to that extent in order to strengthen the case against him, it could also manage to fabricate other evidence against hires. Therefore, neither this recovery nor his identification in the identification parade by the eye-witnesses can be believed. For various reasons stated above, we accept tire appeal of Arshad Ali, Mazhar Hussain, Mushtaq Ali and Mehmood Hussain appellants and setting aside their conviction and sentence on all the charges, acquit them on benefit of doubt. They should be immediately released if not required in any other case.

25. Now we proceed to consider the case of Shahid Iqbal appellant. His case is certainly on different footing. He belonged to Chichawatni Town in District Sahiwal. There could be no animostity of any witness with him, as he was a resident of distant place. No one even knew him at Bahawalpur prior to the occurrence. A sum of Rs.5,76,146 which is a substantial portion of the stolen money, was recovered from him at his instance from his house in Chichawatni. He has tried to blame a local lawyer for his implication in this case but it is cock and bull story. Nether he nor the police could provide such a huge amount for planting the same on hint, moreso when there was a risk of his claiming this amount as his own. The recovery of the said amount from this appellant was witnessed by Ali Ahmad Hassan (P.W.8) and Inspector Muhammad Ramzan (P.W.19), the Investigating Officer. The former in the beginning of his statement in the examination-in-chief supported the prosecution version but in the later part thereof he chose to resile by deposing that he had only signed the recovery memo. (Exh.P.L.) on the asking of the Inspector and the money was not recovered in his presence. As already indicated, this witness was cross-examined by the learned prosecutor with the permission of the Court but he could not bring on the record anything favourable to the prosecution. Anyhow, the first part of his statement is clear on the point that "Shahid Iqbal appellant bad got recovered the said amount in his presence when he was in police custody on 4-8-1992 and he signed the recovery Memo. (Exh.P.L.). This part of his statement coupled with the testimony of the Investigating Officer proved the recovery of the above mentioned stolen amount from Shahid Iqbal appellant. As regards the question of his participation in the main occurrence of robbery, that fact stands amply proved from the testimony of Muhammad Aslam Khan, Magistrate 1st Class, Toba Tek Singh (P.W.10), who had arraigned and conducted his identification parade in the judicial lock-up at Toba Tek Singh, further supported by the deposition of Sajjad Ali Qureshi (P.W.16), Hazoor Bakhsh (P.W.17) and Jan Muhammad (P.W.18). They were the occupants of the van carrying the money and were eye-witnesses of the occurrence. They corroborated the statement of Magistrate that they had, during the identification parade, correctly identified Shahid Iqbal appellant as one of the culprits who had, after the interception of the vehicle, snatched away the money from them on pistol point. We have no reason to disbelieve any of these witnesses. Learned counsel for the appellant has ` tried to pick holes in the identification parade on the basis of certain procedural defects but we give no importance to those technicalities. Therefore, the involvement of Shahid Iqbal appellant in the commission of robbery on the date, time and place alleged by the prosecution and later his having been found in possession of substantial portion of the stolen amount, stand amply proved.

26. Now arises the question of his sentence, that is to say, whether he has committed the offence of `Haraba' liable to Hadd punishable under section 17 of Ordinance VI of 1979 or that of Tazir punishable under section 20 thereof read with 392, P.P.C. though the learned trial Judge has convicted and sentenced him under section 17 of Ordinance VI of 1979 as also under section 392, P.P.C. besides under section 341, P.P.C. While convicting and sentencing him under section 17 ibid, he had come to the conclusion that the eye-witnesses had satisfied the requirements of Tazkia-ul-Shahood as envisaged by section 16 read with section 7 of the said Ordinance. Section 7 ibid, which by virtue of section 16 supra, applies mutatis mutandis to the case of `haraba' liable to Hadd, inter alia, lays down the mode and standard of evidence necessary for the proof of `Haraba' liable to Hadd. It incorporates the concept of Tazkia-ul-Shuhood which means the mode of inquiry adopted by a Court to satisfy as to the credibility of a witness. If the accused does not plead guilt of the commission of offence of `Haraba' liable to Hadd, then the prosecution has to produce two adult male eye-witnesses, other than the victim of crime, whose truthfulness has to be established on the basis of Tazkia-ul -Shahood and they have to be the persons abstaining from major sins (Kabira) to depose about the occurrence. Another condition is that the statement of the victim of the crime, or of the person authorised by him, has to be recorded before the statements of the eye-witnesses are recorded. Adjudged in the light of these mandatory provisions of law, to our mind, the requirements of Tazkia ul-Shahood in this case were not complied with. These are two-pronged reasons for it. Firstly, two adult male Muslims, other than the victim of crime, were not available because in the van carrying pay of the doctors and the staff of B.V. Hospital, Bahawalpur, which was looted on the way, four persons were travelling. It was being driven by Hazoor Bakhsh P.W. when it was intercepted by the robbers. At that time Sajjad Ali Qureshi complainant P.W. was sitting on the front seat with the driver, having a brief-case in his custody, containing cash amount of Rs.1,033,288, while Muhammad Aslam, Peon P.W. (not produced) and Jan Muhammad, P.W. were sitting on the hinder seat, having the custody of the bag containing cash amount of Rs.492,712. When the van was intercepted on pistol point, the robbers snatched away the brief-case from Sajjad Ali Qureshi complainant and the bag from Jan Muhammad P.W. though there is some confusion on the point whether the bag containing the aforesaid cash was snatched from Muhammad Aslam P.W. (not produced) or from Jan Muhammad P.W. In these circumstances, when all the four occupants of the van, including Hazoor Bakhsh driver, some of them actually and others constructively were in the custody of the money in the brief-case and the bag, it was snatched away by the culprits from all of them after actually putting them under fear of death by pointing fire-arms at them. They all were, therefore, the victims of the crime and none of them was independent witness to depose as a witness, other than the victims of crime, satisfying the requirements of Tazkia ul-Shahood. But if at all Jan Muhammad and Hazoor Bakhsh, Driver P.Ws. be described as two adult Muslims eye-witnesses, other than the victim of crime, namely, Sajjad Ali Qureshi complainant, then they did not satisfy the requirements of Tazkia-ul-Shahood and as they were not taken through the process of enquiry as envisaged by section 7 read with section 16 ibid to satisfy about their truthfulness, credibility and piety.

27. The perusal of their statements shows that the learned trial Judge, on the commencement of their deposition, asked a few general questions about their conduct and character and all of them claimed themselves as pious and practising Muslims, not indulging in any sort of sinful conduct. Obviously no one entering the witness-box to depose for the prosecution in a Hadd case would be ready to disclose any defect of his character in order to discredit his own truthfulness. Even if the learned trial Judge had put some more searching questions to them, even then they would not have divulged any infirmity of their character. To carry out enquiry in the context of Tazkia-ul-Shahood, it is necessary to appoint at least one `Muzakki' for each eye-witness who has to hold an enquiry about his truthfulness and submit his report to the Judge and at the time of the examination of the witness he has to be present in the Court. Even the `Muzakki' has to be subjected to searching questions by the Judge in order to ascertain his conduct and character. In the instant case, no `Muzakki' (purgator) was appointed or deputed by the learned trial Judge at all to verify the truthfulness of the eye-witnesses, and as such the requirements of Tazkia ul-Shahood, which was a condition precedent for the conviction of Shahid Iqbal appellant for the commission of 'Haraba' liable to Hadd punishable under section 17 of the Ordinance VI of 1979, was not complied with. Therefore, his conviction and sentence under section 17 ibid is not sustainable and are hereby set aside. From the evidence led by the prosecution against him his case, on account of his participation in the main incident of robbery, falls within the ambit of `Haraba' liable to Tazir punishable under section 20 of Ordinance VI of 1979 read with section 392 of the Pakistan Penal Code. In this connection we have greatly benefited from Sana Uhah v. The State P L D 1991 FSC 186, Mumtaz Ahmad and another v. The State P L D 1990 FSC 38 and Ghulam Ali v. The State P L D 1988 SC 741.

28. Since the recovery of the stolen money of Rs.5,76,146 stood amply proved against him and it served as a corroborative factor for the commission of main offence of robbery, he should have also been convicted under section 411, P.P.C. but the learned trial Judge did not record his conviction thereunder and we, in the absence of any State appeal, are not competent to record his conviction accordingly. The learned trial Judge has also recorded his conviction under section 341, P.P.C. and sentenced him to some imprisonment and fine but it is a minor offence which stands merged into the major offence of robbery. Thus, where Shahid Iqbal appellant is convicted under section 20 of Ordinance VI of 1979 read with section 392, P.P.C., the sentence awarded to him by the trial Court i.e. imprisonment for 10 years' R.I. and fine of Rs.25,000 or in default of its payment to further undergo one year's R.I. is maintained without any benefits under section 382-B, Cr.P.C. His conviction and sentence under section 341, P.P.C. is, however, remitted. His appeal is accepted only to this extent.

N.H.Q./98/SAC Order accordingly.