G. M. SHAH, J.-The appellant herein, was tried under section 9(1) of "The offence against Property (Enforcement of Hudood) Ordi--nance, 1979", for surreptitiously committing the theft in the night of ornaments of gold and silver valued at about sixty eight thousand of rupees from shop of Muhammad Bhai. By the judgment delivered on 11th July, 1979, the learned 1st Additional Sessions Judge Sukkur, convict--ed the appellant and sentenced him to suffer amputation of his right hand from the joint of the wrist. The appellant has filed the appeal from the jail, through the Superintendent Central Prison, Sukkur, against the judgment of conviction and sentence. There is also the reference made by the learned Judge, under section 9(4) of "the Offence Against Property (Enforcement of Hudood) Ordinance, 1979" for confirmation of the sentence awarded to him. This judgment will dispose of both, the appeal, as well as the reference. By our short order dated 23rd July, 1980, we had rejected the reference and did not confirm the sentence of amputation of the right hand of the appellant from the joint of his wrist and converted the conviction into 'Tazir' and sentenced the appellant under section 380, P, P. C. To R. I. For five years, and also a fine of Rs. 10,000 in default to suffer further R. I. For two years. We now proceed to give our reasons in support of the said order.
2. Shortly stated the prosecution case is that Muhammad Bhai is a goldsmith by profession. He has his shop for the last about 22 years in Sarafa Bazar, 'Choori Gali' starts at a distance of 2/3 paces from his shop and ends on the other side of Shahi Bazar. Muhammad Nasim (P. W. 7) is his employee and works in the shop for making the gold and silver ornaments, which after they are ready, are displayed in the show case of the shop, as well as, are deposited for safe custody in the safe inside the shop.
3. Friday is a closed holiday in Sukkur. On Thursday the 15th February, 1979 before closing his shop, Muhammad Bhai had prepared the list of all the gold and silver articles (Exh. 7) and put ail the ornaments, in small boxes, which were then deposited in one big safe. He locked the safe and also the shop at about "maghrib" (sun set) time and left for home.
4. On 16th February, 1979, the entire Market was closed due to Friday as is stated herein above. On the night between 16th and 17th of February, 1979, Head Constable Muhammad Ishaque, alongwith Police Const--ables, Ali Gohar and Ehsan All, were posted for partrolling duty in beat Nos. 3 and 4, which included the Sarafa Bazar. After making the departure entry No. 28 in the Register, they left the Police Station `B' Section, Sukkur for patrolling the area. At about 4 a. m. They came to Sarafa Bazar where Chaukidar Saleh Muhammad (P. W. 4) met them. Saleh Muhammad is employed by shopkeepers of the Sarafa Bazar to keep watch in the night from Isha prayer time (8 p. m.) till early morning. As all the four proceeded and reached `Choori Gali', they spotted the appellant/facing them. On seeing the police party, he started running. They suspected him. Suspecting him H. C.
Muhammad Ishaque challenged him, and asked him to stop, but he did not. They chased him, shouting, thief, thief. After covering about 10 or 15 paces, appellant fell down. The police party serached him and he was caught by the H. C. Muhammad Ishaque, and his party, out of whom P. C.
Ali Gohar had a service Rifle with him. The Police party also included the Chaukidar Saleh Muhammad. In an effort to rescue himself, the appellant had received some scratch marks on his person. On hearing the cries of thief ! Thief !, Muhammad Aziz (P. W. 3) and Farooq also reached there. The appellant was carrying in his right hand, some house breaking implements, a chisel with a wooden handle and two small saws with handles, used for cutting iron bars. In his left hand, he was carrying a cloth bag, which was snatched from him by H. C. Muhammad Ishaque. On enquiry, he gave his name and place of residence. The cloth-bag was opened and from inside it, two bundles tied in pieces of cloth, containing ornaments were found. One bundle contained gold ornaments and the other, silver. Suspecting the ornaments to be stolen, they were seized under section 550, Cr. P. C. At the dictation of H. C. Muhammad Ishque, a mashirnama (Exh. 11) was prepared by P. C. Ali Gohar for the seizure of the ornaments, in presence of the mashirs, Muhammad Aziz and Farooq. Muhammad Aziz is also a goldsmith, having his shop in Sarafa Bazar.
He had helped in giving the details of the ornaments which were mentioned in the mashirnama.
The appellant was arrested under section 54 (iv), Cr. P. C. When the appellant was questioned, how he happened to come in possession of the ornaments, he confessed and said that he had stolen them from a shop in Sarafa Bazar and volun--tarily led the police party and the mashirs and pointed out the shop of Muhammad Bhai. The entrance of the shop from the main road was closed. There is the stair-case from the back side of the shop. The iron bars of the ventilator of the shop were found removed. Leaving the Chaukidar Saleh Muhammad and a Constable at the wardat in the bazar. H. C. Muhammad Ishaque, accompanied by the two aforementioned police constables, brought the appellant and the seized Articles to the Police Station and produced them before the duty Officer, H. C. Ghazi Khan who informed the S. H. O. Malik Nazir Ahmed. The duty officer had made the entry in the Roznamcha regarding the receipt of the ornaments and the implements secured under section 550, Cr. P. C. By H. C. Muhammad Ishaque. The S. H. O. Had reached the Police Station within 20 to 25 minutes at about 6 a. m. And recorded the statement of H. C. Muhammad Ishaque, and Police Constable Ali Gohar and Ehsan Ali and checked the ornaments mentioned in the mashirnama Exh. 11.
5. On l7th February, 1979 at 6 a. m. Muhammad Aziz (P. W. 3) reached the house of Muhammad Bhai, whom he knew already and in--formed him that his shop was burgled into and the thief was caught carrying gold and silver ornaments in "Cboori Gali" by the police and taken to the police station alongwith the stolen articles. Muhammad Bhai went with Muhammad Aziz to his shop and found Daud P. W. And many others present. On opening the shop he found the safe broken-opened and all the ornaments were missing. On checking the shop to ascertain from where the burgler could have entered, it was noticed that by removing 8 (eight) iron bars, which were lying there, from the ventilator he had entered the shop and bad removed all the ornaments, which were calculated, on the basis of the chit, (Exh. 7) to weight 85.11 tolas of gold valued at that time, about Rs. 6,000 and two killos of silver of the value of about Rs. 6,000. He rushed to the Police Station `B'
Section Sukkur and lodged the F. I. R. (Exh. 8) mentioning the details of the ornaments which was taken down by the S. H. O. Nazir Ahmed at about 7-00 a. m. The S. H. O. Accompanied Muhammad Bhai, and the mashir Aziz and Ismail and reached the shop and inspected it. He prepared the mashirnama (Exh. 20) and recorded statements of P. Ws. Saleh Muhammad, Chaukidar, Daud, Nasim, Aziz and Farooq.
6. The appellant bad some minor injuries on his person, and was, therefore, referred to the Medical Officer, Sukkur on the same day for examination and certificate. Dr. Abdul Karim found the following injuries on his person.
(1) Injury No. 1, contusion 2" x 1 ----- on the outer side of right knee.
(2) Contusion 1 ----- x 1" on the left thigh.
(3) Contusion 1" x ----- on the nose (referred for X-Ray).
(4) Contusion 1 ----- x 1" on the parietal region.
(5) Contusion 1" x ----- on the posterior side of left elbow.
(6) Contusion 1 ----- x 1" on the left index and middle finger (referred for X-Ray).
All the injuries -appeared to have been caused by a hard and blunt object and were simple in nature. The probable duration of the injuries, at the time of examination, was about 10 to 12 hours.
The doctor had further clarified that the injuries could have been caused by beating with a lathi as well as by falling on the ground.
7. The case of the appellants in the trial Court was of complete denial. His case was that all the witnesses were set up against him for the reason that the S. H. O., S. I. P. Nazir Ahmed was hostile to him when he was posted at Ghotki P. S. Likewise, he maintained that P. W. Ali Gohar Police Constable was also inimical to him. He claimed to have been arrested from the "Ghanta Ghar"
Sukkur and detained at the Police Station, where he was badly maltreated and beaten by the Police, resulting in the injuries on his person, which he denied having received, at the time, when he was caught with the stolen articles in "Choori Gali". He also denied having admitted his guilt before the witnesses H. C. Mohammad Ishaque, P. C. Ali Gohar, Chaukidar Saleh Mohammad and Mohammad Aziz. He pleaded that he was innocent and was substituted and falsely involved by the Police Officers on account of enmity. He had examined two witnesses in his defence.
8. We have heard at great length, on five dates, the learned counsel Mr. Nooruddin Sarki for the pauper appellant and Mr. Mazharul Haq Hassanally Asstt. A.-G. And Syed Sarfraz Ahmad Asstt. A.-G.
For the State. Mr. Sarki candidly and correctly stated that he would not contest the merits of the case, nor would challenge the veracity of the testimony of the prosecution witnesses. He submitted that the theft of the ornaments belonging to Mohammad Bhai and the recovery of the same from the appellant was difficult to deny. The main point on which, he has addressed us, is that the offence as alleged, is not liable to Hadd, for which the proof is not available, in either of the forms mentioned in section 7 of "The Offences against Property (Enforcement of Hudood) Ordinance 1979", hereinafter, called the Ordinance. He has argued that the offence of theft, consequently, shall be liable to Tazir, and the appellant shall be awarded the punishment provided for the offence of theft, in the Pakistan Penal Code. He has based his arguments, on the following points :-
(i) That section 3 of the Ordinance over-rides the provisions of other laws, notwithstanding anything contained in any other law, for the time being in force.
(ii) There are only two kinds of theft provided in section 4 of the Ordinance.
(a) Theft liable to 'Hadd', or
(b) theft liable to 'Tazir'.
It is contended that the operation of provisions of section 4.11, P. P. C. Were, therefore excluded ----- -.. And were not made, operative in this Ordinance. Section 411, P. P. C. Reads as under :- Section 411.---Whoever dishonestly received or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with
(iii) If it is conceded that 'Hadd' shall not be imposed in this case, the appellant shall be liable to Tazir, and he shall be awarded the punishment provided for offence of theft in the P. P. C. (Pakistan Penal Code).
Theft is defined in section 378, P. P. C. As :- "Whoever, intending to take dishonestly any movable property, out of the possession of any person, without that person's consent moves that property, in order to such taking said to commit theft."
Punishment for theft is provided in section 379, P. P. C. But if the theft is committed in any building, which is used for the custody of the property, it is punishable under section 380, P. P. C., which reads as under :- Section 380.---"Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling or used for the custody of property, shall be punished with imprisonment of either description for a term, which may extend to seven years, and shall also be liable to fine."
(lv) It is admitted position that no one had seen the appellant breaking into, through the ventilator and entering the shop of Mohammad Bhai and removing the ornaments, thereby committing the theft. It is argued that in cases where there are no eye-witnesses to the commission of actual removal of the stolen articles, sentence of amputation of the hand cannot be awarded.
(v) The appellant was apprehended in the "Choori Gali", carrying the stolen property, when he was challenged and caught.
It is contended that the appellant was caught outside the shop, whereby an inference can possibly be drawn that some one else, may have committed the theft and passed on the articles to the appellant. In that event, the sentence of amputation of hand, cannot be awarded, giving the benefit of doubt to the appellant. Under such circumstances, it is better to avoid 'Hadd' on account of doubt. .
(vi) While referring to section 7 as regards the proof of theft liable to 'Hadd', it is submitted that no such proof is available in the instant case.
Section 7 reads as under :- "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 (kabir), give evidence as eye-witnesses of the occurrence Provided that, if the accused is a non-Muslim the eyewitnesses may be non-Muslims: 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, "Tazkiyah-al-Shuhood" means, the mode of inquiry, adopted by Court to satisfy itself, as to the credi--bility of a witness.
It is contended that the appellant did not plead guilty of the commission of theft in this case.
Therefore, when there is "and" after (a), the requirement of proof of theft, necessarily included the plea of guilt, in addition to the eye--witness account of at least to Muslim adult male witnesses, other than the victim of the theft.
It is pointed out that in this case, since there is no eye-witness, providing the proof of theft, 'Hadd' shall not be imposed.
(vii) There is no provision in section 7 of the Ordinance as regards drawing of presumption, as a proof of theft liable to 'Hadd' as is provided in section 114 of the Evidence Act, nor such a reference is made in the Ordinance. It is argued that the provisions of the Evidence Act appear to have been excluded by section 7 of the Ordinance.
Section 114 of the Evidence Act reads "The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
(viii) When a confession or admission is retraced, 'Hadd' shall not be imposed.
9. The case against the appellant mainly rests upon the ocular testimony of Head Constable Mohammad Ishaque (P. W. 5), Police Constable Ali Gohar P. (W. 8), and Chaukidar Saleh Mohammad (P. W. 5) corroborated by Mohammad Aziz (P. W. 3). They, all have unanimously deposed that at 4 a. m. On 17th of February, 1979, H. C. Mohammad Ishaque, P. C. Ali Gohar and P. C.
Ehsan Ali, had reached Sarafa Bazar, while patrolling the area. They met Choukidar Saleh Mohammad in Sarafa Bazar. All the four proceeded towards "Choori Gali". They saw the appellant facing them. They suspected him and H. C. Mohammad Ishaque challenged him to stop. The appellant started to run. They chased him, shouting "thief ! Thief !". After running about 10 or 15 paces, the appellant fell down and was caught by them. On the cries raised by them, Mohammad Aziz and Farooq residing in "Choori Gali" came running, and saw the police men and the Chaukidar catching hold of the appellant who was carrying a cloth bag in one hand and a chisel (Ramba) and two small saws (Arries) in another hand. The cloth bag was snatched from his hand by H. C.
Mohammad Ishaque. On inquiry from the appellant, it was learnt that the bag contained gold and silver ornaments. The bag was opened, and from inside it, two separate cloth bundles, one containing gold ornaments and the other silver, were recovered under the mashirnama prepared in presence of Mohammad Aziz and Mohammad Farooq. The appellant was taken to the Police Station. On a careful perusal of .The entire evidence of these four witnesses, we find that their version of the occurrence is uninfluenced and is free from any motive or hostility to falsely implicate the appellant. Their version is supported by the following circumstances: -
(a) Arrest of the appellant near the shop of Mohammad Bhai.
(b) Recovery of the stolen ornaments, from his possession belong--ing to Mohammad Bhai.
(c) The appellant was found carrying the house-breaking imple--ments ; viz. Chisel and the saws.
(d) Injuries on his person while attempting to escape.
(e) Entry in the shop of Mohammad Bhai was made from the back side stair-case and eight iron bars were removed from the ventilator.
We are, therefore, satisfied that the testimony of the four witnesses is reliable and trustworthy, and it has been satisfactorily established beyond reasonable doubt that the shop of Mohammad Bhai was broken into by night and the ornaments were stolen from the safe and the appellant was apprehended in "Choori Gali" with the stolen articles, and was injured in the process of being caught.
10. Although, it is the case of the prosecution that the appellant had committed the theft of the ornaments from the shop of Mohammad Bhai, in between the night of 16th and 17th of February, 1979, but we have no direct evidence on this point. There are no eye-witnesses of the actual entry inside the shop of Mohammad Bhai, by removing the iron bars of the ventilator and breaking open the safe and removing the ornaments. We are, therefore, inclined to accept the argument of the A learned counsel Mr. Sarki that in view of the provisions of section 3 (overriding other laws), section 4 (definition of theft liable to Hadd) and section 7 (Proof of theft liable to Hadd) the commission of the offence of Theft is not liable to 'Hadd', as the proof in either of the forms mentioneu in section 7 is not available. The offence is, however, liable to 'Tazir' punishment whereof is provided for the offence of theft in the Pakistan Penal Code.
11. Coming next to the evidence of the plea of guilt of the appellant before H. C. Mohammad Ishaque and other witnesses, at the time of his being apprehended is of the quality that it cannot be relied upon: mainly on the ground, that it was made before the police officer, wh had arrested him. The possibility of exercise of inducement, threat o promise cannot be ruled out, particularly, when the appellant was found injured and the doctor had certified that the injuries could have been caused by beating with a lathi. The other important aspect relating to the plea of guilt is that it had been retracted. Mr. Sarki ha referred us to the law of Fiqah in the Indo-Pak. Sub-continent written by Moulana Mohammad Ishaque Bhatti (1st Edition) published by Idarae-Saqafate-Islamia, Lahore wherein at page 57, Fatawe-Ghayasiya (Sultan Ghayasuddin Balban), it is mentioned : - "If the accused first pleads guilty and then repudiates and again admits his guilt, in such a case, 'Hadd' shall not be imposed."
It is further pointed out in this book, on the law of Fiqah that a confession, made before a person in authority other than the 'Qazi' such a confession would be ruled out of consideration.
At page 141 of Fatawae Hamadiya, written by Qazi Hamad Bin Akram Gujrati, it is observed that: "When a thief is arrested alongwith the stolen property, but outside the house, his hand shall not be amputated, as it is doubtful, whether he had himself taken the property from the house. Therefore, benefit of doubt shall be given to him,
12. We have also been referred to "Islami Faujdari Qanoon" by Moulana Salamat Ali Khan, wherein: at para 6/2 is mentionedIt is better to avoid 'Hodd'. at para 7/3 'Hadood' can be avoided on account of doubt. at para 135/57 Accused should be told not to plead guilty. at para 136/57Accused should be asked to retract from his confession so that `Hudd' could be avoided. at para 144/ 59If the accused first pleads guilty then retracts, his hand shall not be amputated.
13. In support of the circumstances of breaking into the shop of Mohammad Bbai, there is evidence of the same four witnesses, H. C. Mohammad Ishaque, P. C. Ali Gohar, Chaukidar. Saleh Mohammad and Mohammad Aziz as well as of Mohammad Bhai, S. H. O. Malik Nazir Ahmad and the mashirs.
When the shop was visited for the first time, soon after the arrest of the appellant by H. C.
Mohammad Ishaque and others, it was found that the entry into the shop, was made by climbing the backside stair-case and removing eight iron bars from the ventilator. When the shop was inspected by the S. H. O. In presence of Mohammad Bbai, it was noticed that eight iron bars, which were removed from the ventilator, were lying inside the shop The safe, containing the ornaments, was found broken-opened. The mashirnama prepared at the wardat is Exh.
20. The ornaments secured by H. C. Mohammad Ishaque from the possession of the appellant, were sealed at the police station before Mohammad Bhai had reached there. The ornaments were correctly picked out by Mohammad Bhai in the identification test before the Assistant Mukhtiarkar, Sukkur, where other ornaments supplied by the President and Secretary of Sarafa Association, were also mixed with them. In any case, the appellant had not claimed the ornaments. The evidence on this point has not been disputed by Mr. Sarki.
14. The appellant had examined two witnesses in his defence, on the plea of alibi. Both the D. Ws had deposed that the appellant was with them near the tower in Sukkur at about 10 or 11 a. m.
About 4 months before their statements were recorded in the trial Court on 12th June, 1979.
Obviously they have spoken falsely in order to oblige the appellant. It is unfortunate that in our country most of the lies are spoken in the Courts of law in the name of Allah only to gain an advantage. We have pointed out hereinabove that the prosecution has produced reliable and better evidence through the four witnesses, who had apprehended the appellant at the spot. The version of the defence witnesses appears to be false. They had never appeared before the Police or any other agency for a statement in favour of the appellant on the day of his arrest or thereafter.
They are set up witnesses and thier version is accordingly disbelieved by us.
15. Since the appellant has not given any explanation, as to how he came in possession of the stolen articles, and the prosecution through reliable and positive evidence has proved the fact that the stolen articles were recovered from his possession, the appellant was rightly found guilty by the learned trial Judge for being caught with the stolen articles.
16. On the point of sentence, we have, on careful consideration of the facts and law, reached the conclusion that there is no evidence to support the conviction of the offence of theft liable to `Hadd' as proof, in either form, mentioned in section 7 of the Ordinance is not available, the offence, is however, liable to `Tazir'. Accordingly, we would substitute, for the sentence of amputation of the right hand of the appellant under section 9(1) of the Ordinance from the joint of his wrist, awarded to him for the offence under section 14 of the Ordinance and sentence him to R. I. For five (5) years under section 380, P. P. C and a fine of Rs. 10,000 and in case of default of payment of fine, to undergo R. I. For two (2) years more. The reference is accordingly rejected. Except for this modification in the conviction and sentence, for the reasons stated above, we find no merit in the appeal, which is hereby dismissed.