The appellant has been convicted under section 427/337, P. P. C. And section 22 of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 (hereinafter to be referred as the Ordinance), by Magistrate 1 Class, Jauharabad, District Sargodha. He has been sentenced to three months' rigorous imprisonment under section 427, P. P. C., and six months' rigorous imprisonment under section 337. P. P. C. He has been further sentenced of five years and nine months rigorous imprisonment under section 22 of the Ordinance. As the appel--lant had remained under detention for nine months during his trial the learned trial Magistrate directed that the appellant, would undergo sentence of imprisonment for five years only. This appeal is directed against the aforementioned order of conviction and sentence which was passed by the learned trial Magistrate on 4th March, 1980.
2. Briefly stated the facts giving rise to the appellant's prosecution and conviction are that on 16th June, 1979 at 2-30 a. m. He tried to drive away Tractor with registration No. F. D. C. 9762 while it was parked in front of a shop by its driver Muhammad Yaqub. The appellant in hurry applied the reverse gear of the Tractor With the result that it hit back the cot on which one Mahboob Ullah, drier of car bearing registration No. K. A. K. 2750 which was also parked near the cot, was sleeping. The Tractor pushed back the cot with the result that it hit the aforementioned car. In the above process Mahboob Ullah was injured and the car was also damaged. Muhammad Yaqub driver of the Tractor who bad gone to purchase some sweets, ran after the Tractor and stopped it by pulling its choke. The appellant was overpowered and later on produced before the police. After the investigation of the case the appellant was sent up by the police to stand trial under section 9 ofst the Ordinance read with section 427/337, P. P. C. The learned trial Magistrate, however, found the appellant guilty under section 22 of the Ordinance and section 427/337, P. P. C. As noticed earlier.
3. Learned counsel for the appellant has contended that the appel--lant's conviction under section 22 of the Ordinance is illegal as the facts of the case as stated by the prosecution do not disclose the commission or attempt to commit any offence punishable under the Ordinance. The appellant, at the most, may be guilty of having committed the offence of theft punishable under section 379, P. P. C. Learned counsel for the appellant has submitted that the appellant has already remained in jail for a year and nine months which may be considered as sufficient punish--ment for the offences committed by him.
4. Learned counsel appearing on behalf of the State has tried to justify the appellant's conviction under section 22, of the Ordinance. The main point for determination in the present case is whether the appellant has committed or tried to commit theft liable to hadd or theft liable to tazir punishable under the Ordinance. Section 5 of the Ordinance defines theft liable to hadd. One of the ingredients of the offence mentioned in section 5 is that theft of property should be committed from any hirz. The term 'hirz' has been defined in section 2 (d) of the Ordinance as an arrangement made for the custody of property. Section 7 of the Ordi--nance deals with proof of theft liable to hadd and according to section 13 of the Ordinance whoever commits theft which is not liable to hadd or for which proof in either of the forms mentioned in section 7 is not available, or for which hadd may not be imposed or enforced under the Ordinance shall be liable to tazir. Section 14 of the Ordinance provides punishment for the offence of theft liable to tazir which shall be the same punishment as provided for the offence of theft in the Pakistan Penal Code. Section 22 of the Ordinance provides punishment for attempts to commit offence punishable by the Ordinance. The accused may be sentenced to imprisonment of either description for a term which may extend to 10 years.
5. The appellant, though tried for an offence under section 9 of the Ordinance, has been convicted under section 22 as according to the learned trial Magistrate the appellant had not removed the Tractor from any enclosure as it was parked by the road side and as such had not committed offence of theft liable to hadd. There is hardly any doubt that the facts of the case as disclosed by the prosecution do not attract the provisions of section 9 of the Ordinance inasmuch as there is no evidence on the record to show that Muhammad Yaqub, P. W. 4, complainant in the case, had made any arrangement for the custody of the Tractor when the appellant had tried to drive it away. In other words, one of the essential ingredients of the offence of theft liable to hadd that the theft should be committed from any hirz was wanting in this case. The appellant had, however, committed the offence of theft as defined in section 378, P. P. C. As by driving the Tractor, even for a short distance, he had removed it from the possession of Muhammad Yaqub. P. W. 4, who having parked it in front of a shop bad gone into the shop to purchase sweets The appellant was, therefore, liable to be convicted for offence of theft punishable under section 379, P. P. C. And not under section 22 of the Ordinance as he had made no attempt to commit any offence punish-- able by the Ordinance. It may be noticed that the offence liable to hadd alone is punishable under the Ordinance while tire offence of theft liable to tazir is punishable as an offence of theft under the Pakistan Penal Code.
6. In view of the factual and legal position of the case, as noticed above, the appellant's conviction under section 22 of the Ordinance is not sustainable and the same is set aside. The appellants, however, is convicted under section 379, P. P. C. For committing the theft of the Tractor. His conviction under section 427/337, P. P. C. Is also maintained as the learned counsel for the appellant has not challenged it. Since the appellant's conviction has been altered from one under section 22 of the Ordinance to that under section 379, P. P. C. He is not liable to be sentenced to imprisonment for more than three years which is the maximum sentence of imprisonment provided for in the case of offence of theft under section 379, P. P. C. Having regard tc the facts of the case and keeping in view the appellant's confinement in jail for about one year and nine months as he was convicted on 4th March, 1980, and prior to that had remained in custody for nine months during the trial, the request made by the learned counsel for the appellant that the sentence of imprisonment already undergone by the appellant may be considered as sufficient to meet the ends of justice, appears reasonable and is allowed. The appellant shall be released forthwith if he is not required in any other case.