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Criminal Appeal No. 2(S) of 1983, decided on 7th May, 1986.

(On appeal from the judgment of the Federal Shariat Court, Islam abad, dated 29‑6‑1982 to Criminal Reference No. 153/1 of 1981 and Jail Criminal Appeal No. 30/1 of 1982).

(a) Constitution of Pakistan (1973)‑

---Art. 203‑F‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 9‑Leave to appeal granted to examine various points of law arising in a case which was not only a case of first impression but was the very first case of its nature coming to Shariat Appellate Bench of Supreme Court.

(b) Interpretation of statutes‑

‑--Law relating to had being new law, various terms and phrases used therein, if not clearly defined, help and assistance would have to be taken from opinion of Fuqaha in question involved‑In matters other than interpretation also, opinions of Fuqaha would have value if not binding at least as guiding principles for determining complicated questions.

(c) Offences Against Property (Enforcement of Hodood) Ordinance (VI of 1979)-‑

‑‑ Ss. 2 to 12‑Theft liable to hadd‑Appreciation of evidence --Standard of evidence to prove offence of theft liable to Hadd stated‑Where there was discrepancy on vital questions between testimony of two witnesses, both were to be rejected.

With regard to the standard of evidence to prove the offence of theft liable to Hadd, although the law is silent on matters of appreciation, there is mass of commentary in almost every Book of Fiqah to the effect that the two eye‑witnesses should be ideal in so far as their depositions are concerned. They should be consistent on all material particulars and should in every respect appear to be truthful witnesses when deposing against the accused.

In case of discrepancies on vital questions between the testimony of the two witnesses, both shall be rejected.

Islam Ka Qanoon‑e‑Shahadat by Maulana Syed Muhammad Matin Hashmi Vol. I. Part 7, Chaps. 14, 20 ; pp. 86, 129, 306, 308 ; paras. 49 & 231, 234 and 238; Kitabul Fiqah by Abdur Rahman Al‑Jazeeri, Vol. V, translated by Manzoor Ahsan Abbasi published by Department of Auqaf, Punjab, pp. 299 & 349 ; Islamic Qanoon‑e‑Faujdari, the translation of Kitabul Ikhtiar, published by Hafiz Muhammad Haider Memorial Academy Karachi No. 30, pp. 2, 3, 64; paras. 6, 7 & 159 and Hudood‑o‑Tazirat by Islamic Research Institute, International Islamic University, Islamabad ref.

(d) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)‑‑‑

‑-S. 7‑Tazkiya‑al‑Shuhood‑Definition‑Conditions and modes-- Muzakki‑Examination of‑Essentials and important elements stated.

The expression Tazkiya‑al‑Shuhood is found in section 7 where it ix required that two adult male witnesses other than the victim of the theft should testify abut theft. The condition laid down in section 7, clause (b) is that these two witnesses must have satisfied the requirements Tazkiya‑al‑Shuhood so as to adjudge, them as truthful persons and those who abstain from major sifts (Kabair). In the explanation to the section, Tazkiya‑al‑Shuhood although not clearly defined is stated to mean "the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness". The expression the mode' signifies that it is one or more of the modes which are assumed to be well‑known. Tazkrva‑al‑Shuhood, according to all accepted versions of the definition, can be done in either or both of the two modes. One, open', the other, secret'. The explanation has not changed the content of the opinions of the Fuqaha on the rules applying to the each mode but it has left the selection of the mode/s of inquiry to the discretion of the Court. The omission of the word either' conveys that the Court can adopt either of the two recognised modes or both of them. It cannot devise any other mode for its own convenience.

Tazkiya‑al‑Shuhood purported to have been done by trial Court by doing secret inquiry falls short of known standards.

In the present case trial Court treated the question as of little importance and recorded the statements of the witnesses themselves in order to ascertain that they satisfy the accepted standard. No one who has deposed or who has come to depose for the prosecution in a case of Hadd would be willingly disclosing that he has some defects of character or that he is not a truthful person. No doubt it is necessary to put searching questions to him and cross‑examine hire' so as to discover what he wants to conceal from the Court. The statement of the witness by itself is not enough to give the verdict in his favour. There is need for. Muzakkis whose number is not fixed. But even if one Muzakki (a referee and the person who gives evidence about truthfulness of the witness) is examined for each witness, he should be present when the witness is being subjected to questioning, for Tazkiya‑al‑Shuhood. The Muzakki should also be questioned about his antecedents and character and dealings. These elements amongst other very important ones are essential. They can easily be found from any Book of Fiqah. As to how and what questions are to be asked can also be found. All the Books which have already been referred made reference to these matters. In the present case the only referee which, trial Judge nominated to test the veracity and quality of the eye‑witnesses was the Muharrir of the Police Station who sent a report that there was nothing against them in the record of the police station. This hardly falls within any modes of the Tazkyra‑al‑Shuhood. Even if a question had to be asked from the Moharrir in the secret inquiry it should have been addressed to him in a closed envelope asking various questions to which the Moharrir would have answered after making due inquiry in this behalf and then the Moharrir should also have been examined regarding his report. The trial Court thought it enough that the report of the Moharrir was endorsed by an A. S. I. This mode to say the least was the mockery of the Tazkiya‑al- Shuhood.

The Supreme Court rejected mode of Tazkiya‑al‑Shuhood and Geld that it was no proper Tazkiya‑al‑Shuhood done of the two eye‑witnesses.

Islam Ka Qanoon‑e‑Shahadat, Vol. 1 by Seed Muhammad Matin Hashmi, pp. 146, 149, 308 ; paras. 82, 89 & 238 and Fatawa‑i‑Alamgiri, Vol. V by Qanooni Kutab Khana, Katchery Road, Lahore ref.

(e) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)--‑

‑‑ S. 7‑Theft liable to Hadd‑Hirz‑Unless the thief alongwith the object of theft completely goes out of the Hirz, theft liable to Hadd would not be deemed to have been committed.

Islamic Code of Criminal Laws by Zia‑ul‑Islam Janjua, published by Lahore Law Times, Lahore, pp. 49, 51 and 60 ref.

(f) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979) --

----S. 7‑Theft liable to Hadd‑Proof‑Essential conditions.

Section 7 of the Ordinance VI of 1979 relates to the proof of theft liable to Hadd. Sub‑clause (b) thereof which has already been referred to in another connection requires that at least two adult male witnesSe3 "other than the victim of the theft" should give evidence as eye‑witnesses of the occurrence. With regard to the victim the second proviso further lays down 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: These provisions are mandatory and do clearly indicate that at least three persons must be involved as prosecution witnesses in a case of theft liable to‑ Hadd ‑One must be the victim and the other two eye‑witnesses. And the most important condition about the eye‑witnesses other than that of the Tazkiya‑al‑Shuhood is that they should be other than the victim of the theft.

In this case where a clock was stolen from the mosque, witness did not fall in either of the two categories, he was neither the victim nor he was an eye‑witness because before his arrival at least 9/10 persons had collected at the spot and they had become witnesses of various stages. Said witness at the most was an eye‑witness of taking the accused and the object of theft to the‑police station and of lodging the F. I. R. He did not claim to be the victim nor it was urged from the prosecution side nor it is in any of the two impugned judgments that he was victim in this case. Therefore, in order to court the three persons, said witnesses has to be excluded right away. If remaining two were treated as eye‑witnesses then the victim was missing. And if the other witness be assumed to be the red rd in the capacity of a Khadim then he was the victim. If he is excluded as victim from among the two eye‑witnesses, then the only remaining eye‑witness who is left out is the third one. An important requirement of law is thus lacking. There should be two remaining eye‑witnesses. Therefore, section 7 not having been satisfied the accused was entitled to acquittal on this ground as well.

(g) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)‑-

‑‑ S. 9‑Theft liable to Hadd ‑Evidence‑Court inspection ‑Without oath utterances‑Statement by persons without oath who gathered at spot when Court inspected same, held, was no evidence in order to give a judgment on a certain fact (being or not being a victim of theft).

(h) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)‑

‑‑ Ss. 7 & 5, Explanation 2‑Theft liable to Hadd‑Hirz‑-Surrep tion Proof-‑Recording of evidence of victim of theft or persons authotised by him‑Procedure.

Explanation 2 to section 5 of Ordinance (VI of 1979) which defines theft liable to Hadd requires that the theft should be committed in such a way that the criminal believes at the time of commission of the theft that "the victim of theft does not know of his action". Thus, if there is no victim of a theft the theft would not fall within the definition of theft liable to Hadd and on this score benefit will ga to the accused to earn acquittal.

Section 5 of the Ordinance provides that 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'. Surreptitiously has been explained in Explanation 2 as that : the person committing the theft commits such theft believing that the victim of theft does not know 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.

Section 7 provides that the victim of the theft or persons authorised by him should be examined before the statements of eye‑witnesses are recorded. This besides being mandatory is a very salutary provision. According to all schools of thought and Fiqah unless the victim makes a claim about everything that is included in theft liable to Hadd, the case cannot be proved. If be declines to charge the proceedings for the offence of theft liable to Hadd would be dropped forthwith.

(i) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)--‑

‑‑ Ss. 7 & 5‑Theft liable to Hadd‑Nisab-‑Determination‑-Essen tials.

Islami Qanoon‑e‑Faujdari, translation of Kitabul Ikhtiar, p. 30, para. 73 ; Hudood‑e‑Tazirat, Islamic Research Institute, International Islamic University, Islamabad, p. 93 ; Islami Qawanin‑Hudood, Qisas Diyat‑e Tazirat by Dr. Tanzilur Rehman, p. 67 and Islamic Code of Criminal Laws by Zia‑u ‑Islam Janjua, p. 57 ref.

(j) Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979)‑

‑‑ Ss. 7 & 5‑Theft liable to Hadd‑Nisab‑Tazkiya‑al‑Shuhood of Court witness who deposed about Nisab and value of object of ttieft When necessary‑Accused at time of commission of offence must know or likely to have known that property was of the value of Nisab or more, failing which offence would not be complete.

With regard to Tazkiya‑al‑Shuhood of the Court‑witnesses who deposed about the value of the property and the Nisab, the law is silent (about the name). In section 7 where the requirement of Tazkiya‑al‑Shuhood is laid down the condition is attachable to the two adult male witnesses mentioned in clause (b) of section 7. There is no mention that the witnesses who appear for other purposes should also undergo the processing of Tazkiya al‑Shuhood. Thus, if it is done with regard to any other witness it might be salutary act on the part of the Court to satisfy itself in accord with the ethos of the Muslim Law and views of some of the jurists. But if it is not done with regard to the other witnesses then trial would not be vitiated nor the accused would be acquitted on this ground. If the Court‑witnesses would have been the eye‑witnesses their Tazkiya‑al‑Shuhood would have been necessary. But they being witnesses of price of object of theft and the Nisab it was not necessary under the Ordinance to do the Tazkiya‑al -Shuhood with regard to them.

It is provided in section 5 of the Ordinance that the accused at the time of commission of the offence must know or is likely to have known that the property is of the value of Nisab or more, failing which the offence would not be complete.

(k) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)‑

‑‑ S. 2(d)‑"Hirz"‑-Definition‑-Whether mosque falls in definition of "hirz".‑[Words and phrases].

Ainul Hidayb, Vol. 2, pp. 494 and 501 ; Jamiaul Jaafri, p. 524 ; Bahar e‑Shariat, Vol. 9, p. 109 ; Tabyinul Haqaiq, p. 221 ; Raddul Muhtar Vol. I, p. 206 ; Kanzul Daqaiq, p. 192 ; Bahrur Raiq, Vol. V, p. 54 ; Bidayatul Mujtahid, Vol. II, p. 412 ; Kitabul Fiqah by Abdul Rehman Aljaziri (Urdu translation), Vol. V, p. 343 ; Al‑Mughni by Ibn‑e‑Qudama, Vol. VIII, p. 253 and Badaiul Sanai, Vol. VII, p. 74 and Islamic Code of Criminal Laws by Zia‑ul‑Islam Janjua, pp. 49, 50, 51 & 60 ref.

(l) Islamic Jurisprudence‑

‑‑ Crime and punishment‑Hudood‑Benefit of doubt‑Not only maximum benefit of every reasonable doubt would be extended to accused but also that effort was to be made not‑to inflict a Hadd so long it could be avoided by all legitimate and established means.

(m) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979 )-‑

--S. 14‑Theft liable to Tazir‑Contradiction in statement of eye witnesses‑ Lapses of memory due to passage of a long time before recording of evidence can be legitimately treated as explanation for theft liable to Tazir.

(n) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)‑‑

‑‑ Ss. 7 & 5 ‑Theft liable to Hadd‑Conditions to be established --Appreciation of evidence‑Standard of evidence‑Discrepancies on vital questions between testimony of witnesses ‑Effect‑Tazkiya‑al- Shuhood ‑ Essentials ‑ Muzakki ‑ Examination of‑Procedure -Nisab‑Determination‑Examination of witnesses ‑ Knowledge of accused of value of Nisab necessary ‑Hirz‑Victim of theft‑Exami nation of‑Essential‑‑Lapses of memory due to passage of long time‑Effect.

Mian Inamul Haq, Advocate Supreme Court for Appellant.

Khalil Ramdey, Additional Advocate‑General, Rao M. Yousaf, Advocate‑on‑Record and Riazul Hasan Gilani, Deputy Advocate‑General of Pakistan for the State.

Dates of hearing : 6th and 7th May, 1986.

JUDGEMENT

JUSTICE MUHAMMAD AFZAL ZULLAH (CHAIRMAN):

This appeal through leave of this Court is directed against judgment dated 29th June, 1982, of the Federal Shariat Court; whereby the appellant's conviction under section 9 of Offences Against Property (Enforcement of Hudood) Ordinance (No. VI of 1979), with the punishment of amputation of his right hand, as a sentence for theft liable to Hadd was confirmed on Criminal Reference No. 1153/1 of 1981 made by the trial Court ; consequently, his appeal filed from Jail No. 30/1 of 1982, was dismissed.

This being not only a case of first impression but being the very first case of its nature coming to this Court, leave to appeal was granted to examine various points of law arising therein which would be presently noticed.

The object of theft is a wall‑clock alleged to have been removed from the wall of a mosque at about noon tune. The report regarding which was made by Muhammad Ibrahim P. W. 1 through his written complaint Exh. P. A. which when translated into English reads as follows :

"Today at 12 noon I was present in my house which is near the mosque. I heard a noise and suddenly came out of the house. Muhammad Hussain son of Haji Wali Muhammad (P. W. 4) and Muhammad Siddique son of Din Muhammad (P. W. 3) were raising the alarm. A person whose name was subsequently learnt as Ghulam Ali son of Muhammad Siddique, caste Chuhan, resident of Thana Chuchak (was present there), Muhammad Hussain and Muhammad Siddique informed me that Ghulam Ali aforesaid who was going away after removing the clock from the mosque had been apprehended by them. Thy clock was at that time in the bands of Ghulam Ali. He was going away after stealing the clock from the mosque. The value of the clock is Rs. 2,000. I secured him (Ghulam Ali) and have brought him to the police station. I produce the recovered clock as also the accused Ghulam Ali. Necessary proceedings may be taken."

(Sd.)

Muhammad Ibrahim."

At the trial in addition to Shah Nawaz the Investigating Officer three persons namely, Muhammad Ibrahim. Muhammad Siddique and Muhammad Hussain were examined as prosecution witnesses. In addition two Court‑witnesses namely Muhammad Sharif C W. 1 and Abdul Majid C. W. 2 were examined to ascertain the value of Nisab on the day of occurrence namely, 25‑8‑1979 as well as the value of the clock on that date and on the day C. Ws. appeared in Court namely, 5‑8‑1981.

Muhammad Ibrahim made improvements over his complaint in his testimony before the Court as a prosecution witness. He had not described in the report as to what was the alarm which attracted him. At the trial he added that the words used in the alarm were (ﭽﻭﺮ ﭽﻭﺮ). In the report he had not mentioned the place where the accused and the two witnesses were standing while in the testimony he mentioned that they were in the mosque. While in the report he mentioned that the accused had already been secured by the two eye‑witnesses in the testimony he deposed that they were still grappling with the accused. In the statement he had not played any role in the initial securing of the accused and the clock but in the testimony he made himself a direct participator by stating "we caught hold of accused Ghulam Ali...". In the statement he had mentioned that the information to the effect that the clock was removed by the accused from the mosque was given to him by the witnesses but this part regarding conversation between the three of them is omitted from the testimony. Under cross‑examination he clearly admitted that at the time of the commission of the theft he was not present in the mosque meaning thereby that he was not an eve‑witness. And further that his house is 100/150 feet away from the mosque and that ether houses intervened in between his house and the mosque. He further revealed under cross‑examination that when he reached the mosque 9/10 persons had already collected in the mosque, none of them was outside the premises. The defence version that the signatures of this wetness were obtained on a blank paper by the police and that the accused had been falsely involved on account of enmity between Muhammad Siddique and father of the accused was put to the witness but he denied the same.

Although Shah Nawaz A. S. I. made only formal statement with regard to registration, arrest and investigation of the case he made an important admission under cross‑examination that he had not pointed out in the site‑plan Exh. P. D. tile place where the witnesses Muhammad Hussain, Muhammad Siddique and Ibrahim had caught tire accused. Hz denied the allegation put to him that he was the author of the applica tion Exh. P. A. which is claimed to have been submitted by Muhammad Ibrahim. It. is very strange that when investigating the case this witness did not contact the Imam Masjid for verification of various matters involved in the case including the price of the clock. He was also unable to give the name of the Imam Masjid.

Muhammad Siddique P. W. the first eye‑witness absolutely contrary to Ibrahim's version in the initial report started deposing about the occurrence by saying that he, Ibrahim and Muhammad Hussain P. Ws. overpowered the accused at the spot alongwith the stolen clock P. I. The accused was then still inside the compound of the mosque alongwith the stolen clock. In next breath he deposed that the .accused was removing the clock while standing over the Member (Pulpit) of the Mosque. Under cross‑examination also he stuck to his second position that the accused was caught while stealing the clock. He himself was then sleeping there and that "Ibrahim and Muhammad Hussain P. Ws. were also present there in the mosque". He further revealed that Muhammad Hussain was the first who caught the accused at the time when he "was removing the clock"; and explained that when Muhammad Hussain caught hold of the accused this witness was not then sleeping and that he also joined Muhammad Hussain who had already caught hold of the accused. About Ibrahim he once more changed the position and stated that he arrived there on hearing the alarm. About Muhammad Hussain also under cross‑examination he admitted that lie was in the mosque for the mid‑day sleep. It was "after some time" that according to this witness people collected there. Comparing this statement with Ibrahim's assertion that when he reached the spot about 10 persons had already collected would show that Ibrahim bad reached at a much later stage. But Muhammad Siddique witness in his examination‑in‑chief tried to show that he, Ibrahim and Muhammad Hussain were the three persons who initially overpowered the accused at the spot alongwith stolen clock. When put to this witness he denied the allegation that about 15 days prior to the registration of the case the father of the accused had quarreled with him.

Muhammad Hussain in his examination‑in‑chief did not support Muhammad Siddique in the latter's version that the accused was removing or that he was caught "while stealing the clock". On the contrary Muhammad Hussain claimed to have caught hold of the accused "when he removed the clock". He gave the value of the clock as Rs. 200. It is on his alarm according to his version that Siddique P. W. who was lying on the floor of the mosque also came there. This is not what Muhammad Siddique bad stated in his examination‑in-chief. He attributed common role to himself. Muhammad Hussain and Ibrabim.

Muhammad Sharif C. W. 1 who is a goldsmith gave evidence about the Nisab on the day he made the statement i. e. 5‑8‑1981. The price of 4.457 grams of gold on that day was given by him as Rs. 750 while on the day of occurrence i. e. 25‑8‑1979 it was Rs. 511. The rate of gold on the two dates was Rs. 160 and Rs. 144.10 per gram respectively.

Abdul Majid C. W. 2 claimed to be in the business of watches and clocks for a long time. He having seen the clock in Court valued it for 25‑8‑1979 at Rs. 750 and claimed that the same was the value on the day he appeared, in Court namely 5‑8‑1981. This means that he gave the value of a new clock while the clock P. 1, that is, the object of theft was un doubtedly a used one (on both the said dates).

Before discussing the various questions of law involved in this case it would be necessary to state that the learned trial Court purported to have made "Tazkiyah‑al‑Shahood" purgation of a witness) and (inquiry about the truthfulness and piety of the prosecution witnesses). It is pertinent to note that nothing was done on that line in so far as the two C. Ws. are concerned. The learned Judge adopted the mode of recalling each of the prosecution witness after they had been examined in Court against the accused. When recalled they were asked various questions about their character and conduct to which everyone of them answered in words of praise for himself. No purgator was appointed for each one of the prosecution witnesses separately nor the only one a police official who sent a report that there was nothing in the police record against the pro secution witnesses was himself examined in the proceedings regarding Tazkiya‑al‑Shuhood.

One more fact needs to be noticed namely, that after the recording of the evidence and the so‑called Tazkiya‑al‑Shuhood, the learned trial Judge inspected the site of the occurrence. He questioned the witnesses at the spot about their positions and the position of the accused as also of the clock and the pulpit (wooden stand) at the time of occurrence. It is noted in the inspection note that the clock could be very easily removed from the wall while standing on the pulpit. An additional fact is mentioned in the Inspection Note that Siddique P. W. used to stay in the mosque as Khadim "as told by the persons who gathered there at the time of the spot inspection". This, it might be remarked, is totally inadmissible piece of evidence as it is based on hearsay. Siddique when be appeared as P. W. had not made any such statement nor he himself was attributed this statement. It is attributed to the persons who had gathered there without their names: None of them was examined in Court.

The trial Court after narrating the facts in a short discussion without noticing the serious contradictions already mentioned in the statements of the eye‑witnesses inter se and relying on the Tazkiya‑al‑Shuhood in which he also included some secret inquiries, relied on this evidence and found the appellant guilty of theft. As the clock was stated to be of Rs. 750 more than the price deposed by Sharif C. W. the learned Judge felt that the evidence about Nisab was sufficient and having treated the mosque as Hirz, he came to the conclusion that the clock having been removed from the Hirz the appellant bad committed an offence under section 9 of the Ordinance. Accordingly his right hand was ordered to be amputated from the joint of wrist "as is directed in the law". The Federal Shariat Court on appeal and reference confirmed the judgment of the trial Court. On Nisab it was held that wrong calculation had been made by the witness and that in reality the value of Nisab even according to the Sharif C. W. would be Rs. 660 and not Rs. 511 on 25th of August, 1979. The question whether. mosque was a Hirz was noted with a finding that although ordinarily it may not be so but there being difference of opinion on the subject and Muhammad Siddique having been found by the trial Judge as Khadim during the inspection of the spot he could also be treated as guard of the mosque and the property lying therein. Therefore, even if there was difference of opinion in this case on account of the said reason the mosque could be treated as Hirz. The objections with regard to Tazkiya- al‑Shuhood were overruled. The point that even if the mosque was a Hirz the alleged stolen property had not been removed from the same was also overruled.

We have heard the learned counsel, the learned Additional Advocate -General, Punjab, and the learned Deputy Attorney‑General at some length.

Briefly stated the contentions of the learned counsel for the appellant are that the standard of evidence required for proof of theft liable to Hadd falls short of that required under the law ; that Tazkiyah‑al‑Shuhood of the eye‑witnesses was not done by the trial Court in accordance with the accepted principles laid down by the Fuqaha ; that there was no actual taking out of the clock from the Hirz (if the mosque is to be treated as Hirz) the accused alongwith the clock was allegedly caught inside the mosque ; that according to the scheme of the law three persons amongst the witnesses are essential to be produced by the prosecution one the victim of the crime who would have suffered the loss as result thereof and two eye‑witnesses who should themselves be Aadil. In this case Ibrahim does not fall in either of the two clauses. He is just a by‑stander who came after the occurrence. Siddique and Muhammad Hussain are the two eye‑witnesses. If as held by the Federal Shariat Court Siddique is treated as Khadim of the mosque and in that capacity as victim then Muhammad Hussain alone remains as an eye‑witness but the condition is of two; that in this case if the mosque is to be treated as Hirz there is no legal proof of Siddique being the Khadim or a guard of the mosque and thus he could not be treated as a victim thus the condition with regard to the definition of the victim and his examination before the examination of the eye witnesses as laid down in section 7 of the Ordinance, has not been satisfied. It was not impossible to discover the real victim in this case. It might have been a Management Committee of the Mosque And if so, the Members of the Managing Committee or any person authorised by them could have been examined under section 7 ; that the price of the clock has not been determined as equal to Nisab ; firstly, because the three witnesses who deposed about the price of the clock gave three different values : Muhammad Hussain mentioned Rs. 200, Siddique mentioned Rs. 2,000 and Muhammad Sharif C. W. 1 estimated it at Rs. 750. Therefore, there being no unanimity in the price of the clock and one estimate being definitely lower than the Nisab, conviction in this case was not possible. Secondly, the expert jeweller who appeared as an expert also failed to prove the value of the clock as above the Nisab. According to him the value of the clock on the day of the occurrence as also nearly two years later on the day when he was examined as an eye‑witness remained the same i.e. Rs. 750. It means that he was giving the price of a new clock while the allegedly stolen clock was an old and used one none asked any question from this witness that what would be the value of the stolen clock if the value of the new clock was Rs. 750. We examined the clock in the Court. It is a used one and its value it is commonly known would not be more than Rs. 500 during the days that the occurrence took place ; that the evidence about the Nisab failed to achieve the standard laid down in the Books of Fiqah. According to the learned counsel the value of the gold given by Abdul Majid C. W. 2 is vague. It does not show what type of gold would carry what price and value according to the accepted rules of evidence. In this behalf learned counsel further argued, the price should be fixed of the best quality of gold the witness failed to state that the price he was mentioning was of best quality gold ; that no Tazkiyah‑al‑Shuhood was done of the Court witnesses ; and lastly be argued that mosque is not a Hirz. And that being so, even if it is proved that the appellant committed theft it being not from the Hirz, could not be punished as liable to Hadd.

Learned counsel supported his arguments by extensive references to the books of Fiqah which prima facie supported him. It will, however, be seen whether the offence now having been made the subject of a statute law, the case could entirely be decided on tote basis of the opinions of Fuqaha. Whatever the answer may be, one thing is clear that it being new law various terms and phrases used therein if not clearly defined the help and assistance would have to be taken from the opinions of the Fuqaha on the questions involved. And in matters otherwise of interpretation also, the opinions would have value even if not binding at least guiding principles for determining complicated questions.

The learned Additional Advocate‑General appearing for the State remained unable to meet the points raised by the learned counsel for the appellant. He, however, vehemently argued that the evidence led by the prosecution did at least prove a case of theft liable to Tazir, and that the theft having been committed from the mosque the appellant could if acquitted of theft liable to Hadd should be convicted by this Court for theft liable to Tazir and should be awarded the maximum punishment as the exemplary one.

The learned Deputy Attorney‑General who had appeared on special notice issued by the Court also, by and large, followed the line adopted by the learned Additional Advocate‑General.

In so far as the law relating to theft liable to Hadd is concerned it is contained in the first 12 sections of the Ordinance. No paraphrasing thereof will convey in an appropriate manner the scheme of the law, therefore, this being first case, it is necessary to reproduce the provisions themselves. They are:

"2. Definitions.‑

In this Ordinance, unless there is anything repugnant in the subject or context,‑

(a) "adult" means a person who has attained the age of eighteen years or puberty ;

(b) "authorised medical officer" means a medical officer, however designated‑authorised by Government ;

(c) "Hadd" means punishment ordained by the Holy Qur'an or Sunnah,

(d) "Hire" means an arrangement made for the custody of property ;

Explanation 1.

‑Property placed in a house, whether its door is closed or not, or to an almirah or a box or other container or in the custody of a person, whether he is paid for such custody or not is said to be in "hire".

Explanation 2.

‑If a single family is living in a house; the entire house will constitute a single 'hirz' but if two of more families are lining in one house in severality, the portion in the occupation of each family will constitute a separate 'hire'.

(e) "Imprisonment for life" means imprisonment till death ;

(f) "Nisab" means the 'nisab' as laid down in section 6 ;

(g) "Tazir" means any punishment other than 'hadd' and all other terms and expressions not defined in this Ordinance shall have the same meaning as in the Pakistan Penal Code (Act XLV of 1860), or the Code of Criminal Procedure, 1898 (Act V of 1898).

"3. Ordinance to override other laws

.‑The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.

4. Two kinds of theft.

‑Theft may be either theft liable to ' hadd' or theft liable to 'tazir'.

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, know 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.

6. Nisab.‑

The 'nisab' for theft liable to 'hadd' is four decimal four five seven (4.457) grams of gold, or other property of equivalent value, at the time of theft. '

Explanation.‑If theft is committed from the same 'hirz' in more than one transaction, of from more than one 'hire' and the value of the stolen property in each case is less than the 'nisab', it is not theft liable to 'hadd' even if the value of the property involved in all the cases adds up to or exceeds, the 'nisab'.

Illustrations

(a) A enters a house occupied by a single family and removes from various rooms property the value of which adds up to, or exceeds the 'nisab'. Such theft is liable to 'hadd even though the value of the property removed from any of the rooms does not amount to the 'nisab'. If the house is occupied by snore than one family, and the value of the property removed from the 'hirz' of any one family is less than the 'nisab', then the theft is not liable to 'hadd' even though the value of the properties removed adds up to, or exceeds, the 'nisab'.

(b) A enters a house several times and removes from the house on each occasion property the value of which does not amount to the 'nisab'. Such theft is not liable to 'hadd' even though the value of the properties removed adds up to, or exceeds the 'nisab'.

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 authorised 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. ‑

8. Commission of theft liable to 'hadd' by more than one person.

Where theft liable to 'hadd' is committed by more than one person and the aggregate value of the stolen property is such that, if the property is divided equally amongst such of them as have entered the 'hirz' each one of them gets a share which amounts, or exceeds, the 'nisab' the 'hadd' shall be imposed on all of them who have entered the Hirz, whether or not each one of them has moved the stolen property or any part thereof.

9. Punishment of theft liable to 'hadd'.‑

(1) Whoever commits theft liable to 'hadd' for the first tune shall be punished with amputation of his right hand from the joint of the wrist.

(2) Whoever commits theft liable to 'hadd' for the second time shall be punished with amputation of his left foot up to the ankle.

(3) Whoever commits theft liable to 'hadd' for the third time, or any time subsequent thereto, shall be punished with imprisonment for life.

(4) Punishment under subsection (1) or, subsection (2) shall not be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies, and, until the punishment is confirmed and executed tire: convict shall be dealt with in the same manner as if sentenced to simple imprisonment.

(5) In the case of a person sentenced to imprisonment for life under subsection (3), if the Appellate Court is satisfied that he is sincerely penitent, he may be set a liaberty on such terms and condition as the Court may deem fit to impose.

(6) Amputation shall be carried out by an authorised medical officer.

(7) If, at the time of the execution of 'hadd' the authorised medical officer is of the opinion that the amputation of hand or foot may cause the death of the convict, the execution of 'hadd' shall be postponed until such time as the apprehension of death cases.

10. Cases in which Hadd shall trot be imposed.

‑'Hadd' shall not be imposed in the following cases, namely :‑

(a) When the offender and victim of the theft are related to each other as (i) spouses ; (ii) ascendants, paternal or maternal ; (iii) descendents, peternal or maternal ; (iv) brothers or sisters of father or mother ; or (v) brothers or sisters or their children ;

(b) when a guest has committed theft from the house of his host ;

(c) when a servant or employee has committed theft from the 'hirz' of his master or employer to which he is allowed access ;

(d) when the stolen property is wild‑grass, fish, bird, dog, pig. intoxicant, musical instrument or perishable foodstuffs for the preservation of which provision does not exist;

(e) when the offender has a share in the stolen property the value of which after deduction of his share, is less than the 'nisab';

(f) when a creditor steals his debtor's property the value of which after deduction of the amount due to him, is less than the 'nisab';

(g) when the offender has committed theft under 'ikrah' or 'iztrar'.

Explanation.

‑In this clause‑

(i) "ikrah" means putting any person in fear of injury to the person property or honour of that or any other person ; and

(ii) "iztrar" means a situation in which a person is in apprehension of death due to extreme hunger or thirst ;

(h) when the offender, before his apprehension, has on account of repentence, returned the stolen property to the victim and surrenders himself to the authority concerned.

11. Cases in which Hadd shall not be enforced.

‑(1) 'Hadd' shall not be enforced in the following cases, namely :‑

(a) when theft is proved only by the confession of the convict but he retracts his confession before the execution of 'hadd' ;

(b) when theft is proved by testimony, but before the execution of 'hadd', any witness resiles from his testimony so as to reduce the number of eye‑witnesses to less than two ;

(c) when, before the execution of 'hadd' the victim withdraws his allegation of theft or states that the convict had made a false confession or that any of the eye‑witnesses have deposed falsely, and the number of eye‑witnesses is thereby reduced to less than two ; and

(d) when the left hand or the left thumb or at least two fingers of the left hand or the right foot of the offender are either missing or entirely unserviceable.

(2) in the case mentioned in clause (a) of subsection (1) the Court May order retrial.

(3) In a case mentioned in clause (b), or clause (c), or clause (d) of subsection (1), the Court may award tazir' on the basis of the evidence on record.

12. Return of stolen properly.‑

(1) If the stolen property is found in the original or in an identifiable form, or in a form into or for which it may have been converted or exchanged, it shall be caused to be returned to the victim, whether it is in the possession of, or has been recovered from, the offender or any other person.

(2) If the stolen property is lost or consumed while in the offender's possession and the 'hadd' is enforced against him the offender shall not be required to pay compensation."

With regard to the standard of evidence to prove the offence of theft liable to Hadd, although the law is silent on matters of appreciation, there is mass of commentary in almost every Book of Fiqah to the effect that the two eye‑witnesses should be ideal in so far as their depositions are concerned. They should tie consistent on all material particulars and should in every respect appear to be truthful witnesses when deposing against the accused. Mention here may be made to selected few references though there are many more. See Islam Ka Qanoon‑e‑shahadat by Maulana Syed Muhammad Matin Hashmi (Vol. I), Chapter 14, page 86, para. 49 ; Chapter 20, page 129 ; part 7, page 306, paras 231 and 234 and page 308, para. 238. The learned author by making references to Durr‑e- Mukhtar and other celebrated works of Fiqah including Kitab‑ul‑Ikhtiar, Hujjatullah‑al‑Baligha and Al‑Tashri‑ul‑Junai concludes that in case of discrepancies on vital questions between the testimony of the two witnesses, both shall be rejected. Reference may also be made to Kitabul Fiqah (Vol. V) by Abdur Rahman Al‑Jazeeri, translated by Manzoor Ahsan Abbasi, published by Department of Auqaf, Punjab, pages 299 and 349. Further references be made to Islami Qanoon‑e‑Faujdari, the translation of Kitab-ul-Ikhtiar, published by Hafiz Muhammad Haider. Memorial Academy, Karachi No. 30. page 2, para. 6 ; page 3, para. 7 ; and page 64, para 159. A detailed discussion on the subject can also be found in Hudood‑o‑Tazirat by Islamic Research Institute, International Islamic University, Islamabad. The authorities cited in this compilation are Almabsoot, Badair Al‑Sanae and Hidayah. We have already highlighted the most clear discrepancies in the statements of the three relevant witnesses, namely, Ibrahim, Siddique and Muhammad Hussain on the question of theft. They have differed on vital particulars which need not be repeated here. Their testimony falls short of the required standard as discussed above. Therefore, in so far as the offence of theft liable to Hadd is concerned, we are unable to accept the statements of the two eye‑witnesses as enough for conviction. On this ground alone it has to be set aside.

The expression Tazkiya‑Al‑Shuhood is found in section 7 where it is required that two adult male witnesses other than the victim of the theft should testify about theft. The condition laid down in section 7, clause (b) is that these two witnesses must have satisfied the requirements of Tazkiya‑al‑Shuhood so as to adjudge them as truthful persons and those who abstain from major sins (kabair). In the explanation to the section, Tazkiya‑al‑Shuhood although not clearly defined is stated to mean "the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness". The expression the mode' signifies that it is one or more of the modes which are assumed to be well‑known. Tazkiya al‑Shuhood, according to all accepted versions of the definition, can be done in either or both of the two modes : One, open', the other, 'secret'. See Islam Ka Qanoon‑e‑Shahadat (Vol. 1) by S. M. Matin Hashmis page 146, para. 82 ; page 149, para. 89 ; and page 308, para. 238 wherein references have been made to Fatawa‑i‑Alamgiri and Al‑Tashri‑ul Jinai. The explanation has not changed the content of the opinions of the Fuqaha on the rules applying to the each mode but it has left the selection of the mode/s of inquiry to the discretion of the Court. And we may add that the omission of the word 'either' conveys that the Court can adopt either of the two recognised modes or both of them. It cannot devise any other mode for its own convenience. In this case, the learned counsel is right in pointing out that Tazkiya‑al‑Shuhood purported to have been done by the trial Court falls short of the known standards. The learned Judge claims to have done open and secret inquiry. For both the inquiry there are defined procedures to follow. He treated the question as of little importance and recorded the statements of the witnesses themselves in order to ascertain that they satisfy the accepted standard. No one who has deposed or who has come to depose for the prosecution in a case of Hadd would be willingly disclosing that he has some defects of character or that he is not a truthful person. No doubt it is necessary to put searching questions to him and cross‑examine him so as to discover what he wants to conceal from the Court. The statement of the witness b itself is not enough to give the verdict in his favour. There is need for Muzakkis whose number is not fixed. But even if one Muzakki (a referee and. the person who gives evidence about truthfulness of the witness) is examined for each witness, he should be present when the witness is being subjected to questioning for Tazkiya‑al‑Shuhood. See Islam Ka Qanoon‑e‑Shahadat by Maulana Muhammad Matin Hashmi, page 146. para. 82 refers Fatawa‑i‑Alamgiri. The Muzakki should also be questioned about the antecedents and character and dealings. These elements amongst other very important ones are essential. They can easily be found fro any Book of Fuqah. As to how and what questions are to be asked ca also be found. All the Books which have already been referred mad references to these matters. In addition reliance may be placed o Fatawa‑i‑Alamgiri (Vol. V), Qanooni Kutab Khana, Katcbery Road. Lahore, and Islam Ka Qanoon‑e‑Shahadat (Vol. 1) by Maulana S. M. Matin Hashmi, wherein reference is also made to Moeen‑ul‑Hukkam. In this case the only referee which it seems, the learned trial Judge nominated to test the veracity and quality of the eye‑witnesses was the Muharrir of the police station who sent a report that there was nothing against them in the record of the police station. This hardly falls within any modes of the Tazkiya‑al‑Shuhood. Even if a question had to be asked from the Moharrir in the secret inquiry it should have been addressed to him in a closed envelope asking various questions to which the Moharri would have answered after making due inquiry in this behalf and then the Moharrir should also have been examined regarding his report. The learned trial Court thought it enough that the report of the Moharrir was endorsed by an A. S. I. This to say the least .was the mockery of the Tazkiya‑al‑Shuhood. We therefore, reject the same and hold that no Proper Tazkiya‑al‑Shuhood was done of the two eye‑witnesses. There fore, the appellant is entitled to acquittal.

There is no dispute about the fact that according to all the witnesses the accused was caught in the mosque and he had not yet gone out of the mosque. Even if there was a compound the evidence is that he was allegedly caught inside the mosque itself. No sooner did he allegedly remove the clock he was caught hold of by Muhammad Hussain and Siddique or by Muhammad Hussain first and then by Muhammad Siddique and Ibiahim. Therefore, he had not yet gone out of the Hirz, if the mosque is to be treated as Hirz. On this also all the Fuqaha agree that unless the thief alongwith the object of theft completely goes out of the Hirz the theft liable to Hadd would not be deemed to have been com mitted. In several Books of Fiqah examples are given where several shades of removal from the Hirz are cited. Reading the same itself will be of advantage. It is no use reproducing them here. In most of the examples, it was held that the removal from the Hirz had not been completed. There are very strict conditions in this behalf. See Islamic Code of Criminal Laws by Zia‑ul‑Islam Janjua, published by Lahore Law Times, Lahore, pages 49, 51 and 60 wherein the reference has been made to Al‑Mabsoot, Hadayah and Fatawa Karkhi. On this score also the appellant is entitled to acquittal.

Section 7 of the Ordinance relates to the proof of theft liable to Hadd ‑Sub‑clause (b) thereof which has already been referred to in another connection requires that at least two adult male witnesses "other than the victim of the theft" should give evidence as eye‑witnesses of the occurrence. With regard to the victim the second proviso further lays down 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. These provisions are mandatory and do clearly indicate that at least three persons must be involved as prosecution witnesses in a case of theft liable to Hadd‑‑one must be the victim and the other two eye witnesses. And the most important condition about the eye‑witnesses other than that of the Tazkiya‑al‑Shuhood is that they should be other than the victim of the theft. In this case Ibrahim clearly does not fall in either of the two categories, he is neither the victim nor he is an eye witness because before his arrival at least 9/10 persons bad collected at the spot and they had become witnesses of various stages. Ibrahim at the most is an eye‑witness of taking the accused and the clock to the police station and of lodging the F. I. R. He does not claim to be the victim nor it was urged from the prosecution side nor it is in any of the two impugned judgments that Ibrahim is victim in this case. Therefore, in order to count the three persons Ibrahim has to be excluded right away. The remaining two are Siddique and Muhammad Hussain. If both of them are treated as eye‑witnesses then the victim is missing. And if as visualised in the judgment of the Federal Shariat Court, Muhammad Siddique be assumed to be the guard in the capacity of a Khadim then he was the victim. If he is excluded as victim from amongst the two eye‑witnesses then the only remaining eye‑witness who is left out is Muhammad Hussain. An important requirement of taw is thus lacking. There should be two remaining eye‑witnesses. Therefore, section 7 not having been satisfied the appellant is entitled to acquittal on this ground as well.

This subject would not be complete without mentioning a fact that the learned Judges of the Federal Shariat Court perhaps fell into error while assuming the position of Muhammad Siddique as a Khadim and consequently the guard of the mosque. In the prosecution evidence as such when the witnesses were examined on oath there is not an iota to show that he was Khadim of the mosque nor that as Khadim he was also performing the duties of a guard. There is no presumption of law or even uniform practice that every Khadim is also the guard of the mosque. All was assumed by the Federal Shariat Court, with respect, without evidence. The fact that he was mentioned as a Khadim in the combined without oath utterances of some of the persons who gathered at the spot when the learned trial Judge inspected the same, is no evidence in order to give a judgment that Siddique was a Khadim or that he as a Khadim was also the guard of the mosque. On that score the benefit must go tot the appellant.

These questions arise also in another way. Section 7 provides the theft victim of the theft or persons authorised by him should be examined before the statements of eye‑witnesses are recorded. This besides being mandatory is a very salutary provision. According to all schools of thought and Fiqah unless the victim makes a claim about everything that k is included in theft liable to Hadd the case cannot be proved. If he declines to charge the accused the proceedings for the offence of theft liable to Hadd would be dropped forthwith. In this case the victim should have been examined as a witness in the first instance. The learned counsel is right that it was not easy to discover the victim even if the mosque is to be treated as Hirz. Obviously, there was no guard appointed at the mosque. The evidence is clear about it. However, a possibility that the affairs of the mosque were being managed by a Managing Committee cannot be excluded. They or their representative) if also holding the position of guards could be examined. Therefore, in this case, a vital link is missing namely, that the victim of the theft, even if mosque is a Hirz. has neither been discovered nor produced as witness.

One more aspect would conclude the questions relating to victim. In this case Explanation 2 to section 5 which defines theft liable to Hadd requires that the theft should be committed in such a way that the criminal believes at the time of commission of the theft that "the victim of theft does not know of his action". Thus, if there is no victim of a theft, the theft would not fall within the definition of theft liable to Hadd and on this score benefit will go to the accused to earn acquittal.

Section 5 of the Ordinance provides that whoever, being an adult. surreptitiously commits, from any 'Hirz' theft of property of the values 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'. Surreptitiously has been explained in Explanation 2 as that the person committing the theft commits such theft believing that the victim of theft does not know 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. In this case, even if Siddique would have been treated as the victim, the theft was not being committed surreptitiously qua him ; because it was being committed right in his presence and knowledge. The accused can also be allowed benefit in this behalf.

The question of pricing of the clock and Nisab can be dealt with together. Learned counsel for the appellant is right to pointing out that the jeweller who gave the price of the gold did not give the price of the best gold Tazabi or otherwise. It should have been done. See Islam Oanoon‑e‑Faujdari, translation of Kitabul Ikhtiar, page, 30, Para. refers to Moheet. See also Hudood‑e‑Tazirat, Islamic Research Instituted International Islamic University, Islamabad, page 93.

It was also necessary to examine more witnesses on this very important and vital question as the offence would not be complete without this part; of evidence. In some authorities it is laid down that for the purpose of determination of Nisab also there should be two witnesses. The rule is salutary. It should, therefore, be followed as a protection against an false assumption about the property or Nisab. See Islami Qawans Hudood, Qisas, Diyat‑o‑Tazirat by Dr. Tanzil‑ur‑Rehman, page 67 ; Islam Qanoon‑e‑Faujdari translation of Kitab‑ul‑Ikhtiar by Hafiz Muhammad Haider Memorial Academy, Karachi‑38, page 31 para. 74 wherein reference; has been made to 'Al‑Tabeen' ; and Islamic Code of Criminal Laws by Zia‑ul‑Islam Janjua, page 57 wherein reference has been made to Sheikh Zada: Majma‑al‑Anhur Sharah Multaqa‑al‑Abhur. (Volume I).

The discrepancy between the statements made by three witnesses about the price of the clock are so obvious that no further comment is necessary. One witness priced it at Rs. 200 ; the other priced it at Rs. 2,000 axed the expert priced it at Rs. 750 for a span of two years. Meaning thereby that all the three witnesses gave three different statements and that too presumably with regard to a new clock which as already mentioned is, well‑known was selling during the days of the occurrence for less than Rs. 500. Not only this the witnesses did not give any estimate with regard to a second hand clock which the allegedly stolen clock was, therefore, the requirement for the Nisab clearly falls short of the standard laid dawn by the law. See Islamic Code of Criminal laws, page 57 wherein Badae‑al- Sanai is referred. We, therefore, hold that the clock in question was not of the value of Nisab, but was of less than that. The accused is entitled to acquittal on this score also.

In connection with Nisab anti. value of the property another defect in evidence favours the accused. It is provided in section 5 of the Ordi nance that the accused at the time of commission of the offence must know or is likely to have known that the property is of the value of Nisab or more failing which the offence would not be complete. In this case, besides the above analysis of evidence on the price of clock none though that the price of the clerk would the accused be burdened with the required knowledge entitled to the benefit of reasonable doubt in this behalf.

With regard to Tazkiya‑al‑Shuhood of the Court witnesses who deposed about the value of the property and the Nisab, the law is silent (about the same). In section 7 where the requirement of Tazkia‑al-Shuhood is laid down the condition is attachable to the two adult male witnesses mentioned in clause (b) of section 7. There is no mention that the witnesses who appear for other purposes should also undergo the processing of Tazkiya‑al‑Shuhood. Thus, if it is done with regard to any other witness it might be salutary act on the part of the Court to satisfy itself in accord with the ethos of the Muslim Law and views of some of the jurists. But if it is not done with regard to the other witnesses then trial would not be vitiated nor the accused would be acquitted on this ground. In this case, if the Court‑witnesses would have been the eye witnesses their Tazkiya‑al‑Shuhood would have been necessary. But they being witnesses of price of clock and the Nisab it was not necessary under Ordinance to do the Tazkiya‑al‑Shuhood with regard to them. The argument of the learned counsel on this score, therefore, fails and is repelled.

The question whether mosque is Hirz falling within the definition as laid down in the Ordinance Itself presented some difficulty for the Federal Shariat Court, it noted several opinions of the renowned jurists who in overwhelming majority say that the mosque does not constitute a Hirz but it also noted some of the divergent views on this subject. They are as follows: "Ainul Hidayah, Vol. 2, pages 494 and 501 ; Jamiaul Jaafri, page 524 ; Bahar‑e‑Shariat, Vol. 9, page. 109 ; Tabyinul Haqaiq, page 221; Raddul Muhtar, Vol. I, page 206 ; Kanzul Daqaiq, page 192 ; Hahrur Raiq, Vol. V, page 54 ; Bidayatul Mujtahid, Vol. II, page 412 ; Kitabul Fiqah by Abdul Rehman Aljaziri (Urdu translation), Vol. V, page 343 ; Al‑Mughni by Ibn‑e‑Qudama, Vol. VIII, page 253 ; and Badaiul Sanai, Vol. VII, page 74." In addition to this see : Islamic Code of Criminal Laws by Zia‑ul‑Islam Janjua, pages 49, 50, 51 and 61 wherein references are made to Al‑Hadayah, Al‑Sirajul Wahhaj and Al‑Mabsoot. The subject is discussed in extenso in almost every work on Hudood, old and new. The learned Judges of the Federal Shariat Court concluded as follows:

"Firstly he is liable to cutting of hand and this is the opinion of Shafie, Abu‑Alqasim, Sahib‑e‑Malik, Abu Saur and Ibn‑ul‑Munzir that he has committed that from 'Hirz' for such things are kept in 'Hirz' and there is no doubt about it. The second opinion is that there is no cutting of hand and this is the opinion of those who act on Rai (opinion). The ground is that no one is the owner of the property from among the creatures of Allah and it is like committing theft from Baitulmal. In Badiul Sanai, Vol. 7, p. 74 it is stated that mosque by itself is not a Hirz' in view of the permission to enter it but it becomes 'Hirz' by virtue of their being guard. And if there be a chandelier it becomes 'Hirz' on account of guard and not the whole of the mosque and if it is removed its removal is from the 'Hirz' and is liable for amputation. In view of these different opinions it will not be correct to say that a mosque is not a Hirz even for its valuable property."

We do not agree with the underlined' portion of the impugned judgment. If there is a difference of opinion that does not mean that the mosque is a 'Hirz' but for the purpose of the present case, the other points raised by the learned counsel are so vital that having considered the same the benefit thereof has gone to the accused and he has entitled to acquittal thereon. We, therefore, do not propose with the controversial question of mosque as 'Hirz' in this judgment. In a proper case it might be examined as and when it comes for consideration.

It will be well‑worth closing the discussion with a short comment o the general approach of the learned two Courts below. They, it seems, felt into error in ignoring a well‑established and an un-controverted principle of Hudood that not only the maximum benefit of every reason able doubt will be extended to the accused but also that effort is to be made not to inflict a Hadd so long it can be avoided by all legitimate and established means.

The net result of the foregoing discussion is that the conditions for theft liable to Hadd have not been established. We, therefore, allow the appeal in so far as this offence is concerned, and acquit the appellant of the said charge.

The matter does not end here. The request made by the learned Additional Advocate General that if acquitted of the charge of theft liable, to Hadd the appellant be convicted under section 14 for the theft liable to Tazir needs serious examination. He explained that the contradictions in the statements of the two eye‑witnesses may not be such so as to be resolved for purpose of theft liable to Hadd, but the witnesses having been examined after nearly two years, lapses of memory would go in their favour in so far as offence of theft liable to Tazir is concerned. There is some force in his argument. Lapses of memory cannot at all be treated as a good explanation for purpose of treatment of the two essential eye witnesses of theft liable to Hadd. Lapse of more time than is absolutely necessary for preparing the case has been discouraged in the law of Hudood T in Islam. Even though no provision is made in the Ordinance regarding speedy proceedings in these cases, but the spirit of law of Hudood can be kept in view. He that as it may, there is no such restriction for Tazir. Lapses of memory due to passage of a long time before recording of evidence can be legitimately treated as explanation for theft liable to Tazir. We accordingly convict the appellant for theft liable to Tazir and agreeing with the learned counsel that the theft was from a mosque imposed on him the maximum penalty of three years' R. I for theft under section 379, P. P. C. read with section 14 of the Ordinance. The appellant has been an under trial prisoner for more than double of this period. He has undergone imprisonment much more than the said term. We, therefore, direct by giving him benefit of section 82‑B, Cr. P. C. that he shall be released forthwith if not required in any other matter.

M. B. A. Order accordingly.

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