1. ' This is an application under section 498,. Cr. P. C. For release of applicant Salamullab on bail.
2. ' The brief facts are that, on 22-8-1983, complainant Muhammad Sohail lodged a report at Bahadurabad Police Station, Karachi, stating that a sum of Rs, 30,000 and eight gold bangles, valued at Rs, 15,000 had been stolen from his house located at Plot No, 68, Bahadurabad, Karachi.
3. In regard to the time for commission of offence, he had stated that the offence had taken place on 21-8-1983, when he was not in his house, and he detected the commission thereof at 8-00 p.m.
4. When he came back. He expressed suspicion against his servant A. Rauf, because, after the theft, this servant bad also made himself scarce. Police started investigation and arrested the applicant, because allegedly the stolen gold bangles were recovered from him.
5. ' On 3-9-1983, the Additional City Magistrate, Court No, X (East), Karachi, released the applicant on bail in the sum of Rs, 75,000 with P. R. Bond in the like amount. It may be stated that the case has been registered under section 14 of the Offences Against Property (Enforcement of Hadood)
6. Ordinance No, V1 of 1979. Such offence can be punished by amputation of hands, or, fingers, in case it is found that, for the offence, the offender is liable to hadd, but, if the Court finds that the offender is not to be punished with hadd, then the offender is liable to tazir, for which puhishment is provided in the Pakistan Penal Code.
7. ' It seems the applicant was aggrieved by the high amount of security, so that he made an application for reduction of the amount of surety. The learned Sessions Judge issued a notice to the accused to show cause why by the Magistrate should not be cancelled. After hearing the parties, the Sessions Judge has cancelled bail, and the process of reasoning is stated in paragraph 4 of the order, which reads as under 4) In the instant case the facts show that there was theft of a property of value over 4.457 grams of gold. It was therefore "Theft liable to Hadd" as defined by section of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Such an offence is punishable for the first time with amputation of the right hand vide section 9 of the said Ordinance. I do not agree with the learned A. P. P. That the offence is punishable with imprisonment for 3 years."
8. ' By the present application, the petitioner wants the said order to be set aside, so that, as a consequence, he would be released on bail.
9. ' Mr. M. Sarfraz Khan has contended before me that the learned Sessions Judge was in error in holding that the theft in this case was liable to Hadd, and therefore was likely to entail a sentence of amputation. It is submitted that the allegation against the applicant is that he was found in possession of property, which was the subject-matter of theft. He .Has specifically invited my attention to the provisions of section 5 of the Hadood Ordinance. The said section reads as follows ;- 4) Theft liable to Hadd.-Whoever, being an adult, surreptitiously commits, from any 'hire 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'.
10. ' 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.
11. ' Explanation 2.-In this section, "surreptitiously,' means that the person committing the theft commits such theft believing that the victim of theft does not known of his action. For surreptitious removal of property it is necessary that, if it is day-time, which includes one hour before sunrise and two hours after sunset, surreption should continue till the completion of the offence and if it is night, surreption need not continue after commencement of the offence."
12. ' It would appear that this provision contemplates punishment for theft property, but does not at all refer to the concept of possession of stolen property. On analysis, the ingredients of the section are the following :
(i) That the offender must be an adult.
(ii) That he must commit theft of property of the value of nisab.
(iii) That theft must be committed surreptitiousl y and
(iv) That the theft should be committed from hirz (enclosure).
13. ' Additionally, the learned Advocate has contended that, for awarding the sentence of hadd, some further circumstances have to be established. A reading of the Ordinance will show that even the degree of proof required for imposition of hadd is different that for imposition of the ordinary sentence of tazir. Section 7 of the Ordinance is pertinent on that point. This section reads as follows :
7. Proof of theft liable to hadd.-The proof of theft liable to `hadd' shall be in one of the following forms, namely
(a) the accused pleads guilty of the commission of theft liable to `hadd'.
(b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirements of Tazkiyah-ul-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."
14. ' On analysis, section 7 shall apply only in the following cases :-
(I) That the accused pleads guilty of the commission of theft, which is liable to hadd, as provided by section 5 of the Ordinance, or
(ii) That at least two Muslim adult male witnesses, apart from the victim of the theft, give evidence as eye-witnesses of the occurrence.
(111) That all these witnesses should come up to the requirements of tazkiyah-ukhuhood, which means that they should be able to satisfy the Court about the credibility, not only of their evidence but as an in borne characteristic of their character.
15. ' Without doubt, the conditions, that are provided in section 7, cannot possibly be fulfilled before the trial concludes, because the test of credibility of witnesses will have to be related to the evidence that is given in Court, and the Court cannot hold the witness to be such a witness who has successfully passed the test known as "tazkiyah-ul-shuhood". There is otherwise no means by which the Court can possibly arrive at the conclusion that the witnesses satisfy the test of credibility. Additionally, it may be stated that at least two witnesses should be available to the presentation who should testify that they had actually seen the occurrence of theft in the instant case, the theft was unwitnessed.
16. ' Applying the above provisions of the Hadood Ordinance to the facts of the instant case, it would appear that there is, prima facie, no evidence that the applicant had actually committed theft. On the other hand, the evidence would seem to disclose that the applicant had just obtained stolen property. B There is also nothing to indicate that the applicant had ever entered into hirz. Nor is there \anything in the First Information Report to show that any such evidence had been produced before the Police, which may satisfy thel test of tazkiayah-ul-shuhood.
17. ' In these circumstances, prima fade, I am of the view that the Hadood Ordinance does not apply.
18. ' Coming to the allegations, the offence may at most fall under section 411, P. P. C., which is punishable with three years' R. I. And bail could be granted.
19. ' My attention has also been invited to the consideration of a further legal question, whether the bar imposed by subsection (1) of section 497, Cr. P. C. Will apply to cases, which provide for amputation of hands, for this section would disable the Court from granting bail only in cases which are liable to be punished with death, or imprisonment for life. I am informed by the learned Additional Advocate-General that the Code of Criminal Procedure has not been amended. Nor has the Schedule under the Code been amended to provide that in cases liable to punishment by amputation of hand, bail shall not be granted, or, principles under section 497(1) Cr. P. C.' would be attracted. Perhaps, the Legislature was of the view that it was not necessary to amend the Criminal Procedure Code, because, whether an offence of theft is liable to hadd, or, otherwise has necessarily to depend on the evidence that will be led in Court, and, whether a person should be punished by imposition of hadd, will have to be considered at the last stage of the case, when all evidence is recorded. It may well be that the Legislature in its wisdom has not amended the Criminal Procedure Code, or, its schedule. However, I do not feel called upon to go deeper into this question. Suffice it to say that the bar contained in subsection (1) of section 497, Cr. P. C. Does not expressly, or, by implication refer to the sentence of amputation of hands.
20. ' I admit the applicant to bail in the sum of Rs, 15,000 with P. R. And one surety in the like amount to the satisfaction of the Court of Session, Karachi: Bali granted.