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Criminal Bail Application No. 868 of 1983, decided on 8th November, 1983.

Criminal Procedure Code (V of 1898)-

--- S. 497/498-Offencer Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss. 14, 6 & 7-Penal Code (XLV of 1860), Ss. 381 & 411-Bail -Theft -Proof of theft liable to Hadd Conditions .provided not fulfilled and Court unable to hold

witness to be such as would have successfully passed test of "Tazkiyah-ul-Shahood" and no means available by which Court can possibly .arrive at conclusion that witnesses satisfy such test of credibility-Theft remaining unwitnessed and prima facie no evidence existing to prove that accused actually committed theft or that he ever entered into Hirz-First Information Report also silent about produc tion of any such evidence produced before Police which may satisfy test of "Tazkiyah-ul-Shahood"-Evidence disclosing that accused bad just obtained stolen property-Offence, failing under S. 411, Penal Code punishable with three years' rigorous imprisonment-Bail granted.

M. Sarfraz Khan for Appellant:

A. Satrar G. Shaikh, A. A.-G. for the State.

Date of hearing : 8th November, 1983.

This is an application under section 498, Cr. P. C. for release of applicant Salamullah on bail.

The brief facts are that, on 22-8-1983, complainant Muhammad Sohail lodged a report at Bahadurabad Police Station, Karachi, stating that a sum of Rs. 30,000 and eight gold bangles, valued at Rs. 15,000 had been stolen from his house located at Plot No. 68, Bahadurabad, Karachi. In regard to the time for commission of offence, he had stated that the offence had taken place on 21-8-1983, when he was not in his house, and he detected the commission thereof at 8-00 p.m. when he came back. He expressed suspicion against his servant A. Rauf, because, after the theft, this servant had also made himself scarce. Police started investigation and arrested the applicant, because allegedly the stolen gold bangles were recovered from him.

On 3-9-1983, the Additional City Magistrate, Court No. X (East), Karachi, released the applicant on bail in the sum of Rs. 75,000 with P. R. Bond in the like amount. It may be stated that the case has been registered under section 14 of. the Offences Against Property (Enforcement of Hadood) Ordinance No. VI of 1979. Such offence can be punished by amputation of hands, or, fingers, in case it is found that, for the offence, the offender is liable to hadd, but, if the Court finds that the offender is not to be punished with hadd, then the offender is liable to tazir, for which puhishment is provided in the Pakistan Penal Code.

It seems the applicant was aggrieved by the high amount of security, so that he made an application for reduction of the amount of surety. The learned Sessions Judge issued a notice to the accused to show cause why bail granted by the Magistrate should not be cancelled. After hearing the parties, the Sessions Judge has cancelled bail, and the process of reasoning is stated in paragraph 4 of the order, which reads as under :-

"4. In the instant case the facts show that there was theft of a property of value over 4.457 grams of gold. It was therefore "Theft liable to Hadd" as defined by section of the Offences Against Property (Enforce ment of Hudood) Ordinance, 1979. Such an offence is punishable for the first time with amputation of the right hand vide section 9 of the said Ordinance. I do not agree with the learned A. P. P. that the offence is punishable with imprisonment for 3 years."

By the present application, the petitioner wants the said order to be set aside, so that, as a consequence, he would be released on bail.

Mr. M. Sarfraz Khan has contended before me that the learned Sessions Judge was in error in holding that the theft in this case was liable to Hadd, and therefore was likely to entail a sentence of amputation. It is submitted that the allegation against the applicant is that he was found in possession of property, which was the subject-matter of theft. He has specifically invited my attention to the provisions of section 5 of the Hadood Ordinance. The said section reads as follows :-

"5. Theft liable to Hadd.-Whoever, being an adult, surreptitiously commits, from any 'hirz' theft of property of the value of the 'Nisab' or more not being stolen property, knowing that it is or is likely to be of the. value of the Nisab' or more is, subject to the provisions of this Ordinance, said to commit theft liable to 'hadd'.

Explanation 1.-In this section "stolen property" does not include property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed.

Explanation 2.-In 'this section, "surreptitiously,' means that the person committing the theft commits such theft believing that the

victim

of theft does not known of his action. For surreptitious removal of property it is necessary that, if it is day-time, which includes one hour before sunrise and two hours after sunset, surreption 'should continue till the completion of the offence and if it is night, surreption need not continue after commencement of the offence."

It would appear that this provision contemplates punishment for theft property, but does not at all refer to the concept of possession of stolen property. On analysis, the ingredients of the section are the following

(i) That the offender must be an adult.

(ii) That he must commit theft of property of the value of nisab.

(iii) That theft must be committed surreptitiously and

(iv) That the theft should be committed from hirz (enclosure).

Additionally, the' learned Advocate has contended that, for awarding the sentence. of hadd, some further circumstances have to be established. A reading of the Ordinance will show that even the degree of proof required for imposition of hadd is different that for imposition of the ordinary sentence of tazir. Section 7 of the Ordinance is pertinent on that point. This section

reads as follows

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'.

(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-ul-Shubood' ; 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 eyewitnesses 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."

On analysis, section 7 shall apply only in the following cases :-

(i) That the accused pleads guilty of the commission of theft, which is liable to hadd, as provided by section 5 of the Ordinance, or

(ii) That at least two Muslim adult male witnesses, apart from the victim of the theft, give evidence as eye-witnesses of the occurrence.

(iii) That all these witnesses should come up to the requirements of tazkiyah-ul-shuhood, which means that they should be able

to satisfy the Court about the credibility, not only of their evidence but as an inborne characteristic of their character.

Without doubt, the conditions, that are provided in section 7, cannot possible be fulfilled before the trial concludes, because the test of credibility of witnesses will have to be related to the evidence that is given in Court, and the Court cannot hold the witness to be such a witness who has successfully passed the test known as "lazkiyah-ul-shuhood". There is otherwise no means by which the Court can possibly arrive at the conclusion that the witnesses satisfy the test of credibility. Additionally, it may be stated that at least

two witnesses should be available to

the prosecution who should testify that they bad actually seen the occurrence of theft in the instant case, the theft was unwitnessed.