7. Proof of theft liable to hadd.--The proof of theft liable to "hadd" shall be in one of the following forms, namely,--

(a) the accused pleads guilty of 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 authorized by him shall be recorded before the statements of the eye-witnesses are recorded.

Explanation.--In this section, `tazkiyah-al-shuhood' means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness.

COMMENTARY

Proof was not in accordance with Section 7 of Ordinance, as neither accused pleaded guilty as required under Clause (a), nor requirement of Tazkiatul Shuhood was fulfilled, as required by clause (b) of this Section. Accused/appellant could not be convicted u/S. 17(4) of Ordinance. However, since it is proved beyond doubt that qatl-e-amd of driver "B" was committed, offence would fall u/S. 302 (b) PPC. As it is proved by evidence placed on record taxi and other articles belonging to deceased were recovered from appellant "A" and he was involved in qatl-e-amd of taxi driver, he is also liable u/S. 392 PPC. PLJ 2007 FSC 5.

Victim of the theft was a bank which was a fictitious person/entity and was not a natural person. Being a fictitious person it cannot adduce evidence of the theft personally but only through its agent or representative. Contentions. Firstly, evidence of bank employees is inadmissible under Sharia, Secondary, fictitious legal entitles of statutory/corporate bodies were not in existence in the days of The Holy Prophet (P.B.U.H.) and the relationship of master and servant existed only between natural persons. If such argument is accepted then all the dacoits and robbers shall have free hand to commit dacoity and robbery of Banks without any fear and in due course there shall not be any bank at all. Qanun-e-Shahadat Order, 1984 does not recognize any such exception. According to Qanun-e-Shahadat all persons are competent to testify unless otherwise specifically debarred. There is nothing therein imposing any legal disability on the employee or servant of any one including a fictitious person to testify under Sharia law in a matter concerning his employer. Additional Sessions Judge conducted the inquiry was nothing but a mockery. To him PW-1, who on certain occasions tells lies is a credible as PW-2 who never tells lies. Again PW-3 who never offers prayers at all is a good as PW-1 who offers prayers regularly. This superfluous and summary inquiry was held was in clear violation of the requirements of Tazkiya-ul-Shuhood u/S. 7 of the Ordinance. Held: Prosecution had been fully able to establish its case of robbery against the appellants against whom there was irrebutable evidence falling under Tazir laws whereby the Bank was robbed. Appellants conviction set aside, they shall stand convicted u/S. 394 PPC (Tazir). Order accordingly.PLJ 2008 FSC 27.