' TANZIL-UR-RAHMAN, CJ.--By this judgment we intend to dispose of Criminal Appeal No,71/K of 1990, filed by the convict and Criminal Reference No,1/I of 1990, filed by the State, arising out of judgment dated the 19th of September, 1990, passed by the learned 1st Additional Sessions Judge, Quetta, whereby the appellant was convicted under section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979, hereinafter called the Ordinance, and punished him with amputation of his right hand from the joint of the wrist.
2. The facts, briefly stated, are that on 5-1-1986 at about 5-00 p.m., accused Abdul Sadiq entered the shop of the complainant Ghulam Haider P.W.1, who was present in his shop. The accused Abdul Sadiq asked to show him a gold ring. The complainant P.W.1 showed the ring and told its price which the said accused returned to him saying that it was costly. In the meantime, the accused Sanaullah entered the shop and asked the complainant to show him some new designs of jewellery sets. Rana Sohail P.W.3, an employee of the complainant, placed before him a design book for selection. In the meantime, the accused Abdul Sadiq asked for another gold ring. The complainant got then busy in weighing the ring as asked by accused Abdul Sadiq and on weighing it was disclosed by the complainant that it will cost him Rs,450. During this the accused Sanaullah who had entered in the shop later, took suddenly the jewellery sets with him and rushed out of the shop and left immediately on a motorcycle (Endora) with Muhammad Ibrahim already waiting, on the said motorcycle. P.W.2 Aziz Ahmad son of the complainant chased them but of no avail. A case was registered on the report of Ghulam Haider at City Police Station, Quetta. After usual investigation the accused were sent up for trial for commission of the offence under section 17(2) of the said Ordinance.
3. The prosecution examined in all eight witnesses. P.W.1 Ghulam Haider, is the complainant and owner of jewellery shop known as HAIDER JEWELLERY who was present in his shop at the time of occurrence. P.W. 2 Aziz Ahmad, is the son of the complainant and an eyewitness of the occurrence.
P.W. 3 Rana Sohail is an employee in the said jewellery shop and also an eye-witness. Both these witnesses were present at the shop with P.W.1 at the time of occurrence. P.W.4 Shabbir Ahmad, is the President of Jewellers Association. P.W.5 Rahim Shah, is a City Magistrate, who conducted the identification parade of the accused and also produced memos of identification parade Exh.P./5-A to Exh.P/5-F. P.W. 6 Malik Resham Khan, is the S.H.O., of Civil Lines Police Station. He also produced memo of identification and recovery of Exh.P./6-A, certificate of weight of jewellery Exh.P./6-B and memo of recovery of motorcycle KCQ-7088 recovered from the Al-noor Society, Karachi Exh.P/6-C.
P.W.7 Muhammad Sharif, is the S.H.O., of Police Station and P.W. 8 Muhammad Irshad is the Investigating Officer. He also produced site sketch Exh.P/8-A and other documents.
4. The appellant was examined under section 342, Cr.P.C., and on the same day his statement under section 340(2), Cr.P.C., on oath was also recorded. The trial Court also examined two defence witnesses namely, Hazoor Bakhsh and Tariq Mahaood.
5. P.W.1 Ghulam Haider deposed that on 5-1-1986 at about 5-00 p.m., accused Abdul Sadiq came to his shop to purchase a ring. He showed him the ring and told him the price. In the meantime, his another companion Sanaullah came in the shop and told him that he wanted to purchase ready- made jewellery sets. Rana Sohail P.W.3, brought out of the show-case some golden sets and placed before him. Sadiq told the complainant to show another ring of light weight. He then showed him the ring of light weight. In the meantime, the other accused picked up the jewellery sets and rushed outside the shop. He then heard the noise of the motorcycle and came out of the shop and saw that a person was sitting on a motorcycle of yellow colour behind the accused Sanaullah. The complainant also rushed behind the accused and so his son Aziz Ahmad but could not catch hold of him. He recognized the accused who was sitting on the motorcycle. After the occurrence he lodged the report with the Police Station, Quetta.
6. P.W.2 and P.W.3 corroborated the statement of P.W.1 and supported the prosecution case. All the three P.Ws. Also identified the accused in an identification parade which was conducted by the City Magistrate (P.W.5). The ocular evidence of all the three witnesses remains unshaken in cross- examination. They are the natural witnesses and their evidence is confidence-inspiring.
7. Now we come to the recoveries of the jewellery sets and the motorcycle alleged to have been used by the accused in decamping from the scene of occurrence. These recoveries were made on 14-3-1986 and 23-3-1986 respectively on the pointation of co-accused Abdul Sadiq by Malik Resham Khan, S.H.O., Civil Lines Police Station, P.W.6, and testified by Mashir Muhammad Sharif, Inspector Police P.W.7. P.W.6 Malik Resham Khan, deposed before the Court that on 14-3-1986 during the course of interrogation the co-accused Sadiq disclosed that the stolen property could be recovered on his pointation from his house. The co-accused Sadiq led the police party to his house and thereafter he took out two jewellery sets from the drawer of a table and produced the same to him. Each of the two sets was weighed and found to be of 61 grams and 43 grams respectively. P.W.6 Malik Resham Khan also deposed before the Court that on 20th of March, 1986 the motorcycle KCQ-7088 was recovered from the house of a relative of co-accused Sadiq, situate at Al-noor Society, Karachi.
8. It is pertinent to note that the witness was not cross-examined by the accused persons on the point of recovery of stolen property. The recovery of motorcycle was, however, disputed partially inasmuch as that the motorcycle used in the crime was stated to be of yellow colour, whereas the motorcycle recovered was red in colour.
9. It is pleaded by Mr. Muhammad Aslam Chishti, learned counsel for the appellant, that the complainant's son Aziz is also the victim and therefore, the requisite Nisab-i-Shahadat, as envisaged in section 7 of the Ordinance, was not complete and, therefore, no hadd punishment could be awarded. The plea is misconceived as it has not been even suggested on behalf of the accused/appellant that Aziz the son of the complainant was a partner of the firm or had any proprietary interest in the firm. On the other hand, it stands established that he is a student and generally comes to the shop in the evening to help his father.
10. Learned counsel next contended that the evidence of the two witnesses is not admissible in law as both the witnesses are interested witnesses. Aziz is the son of the complainant whereas Sohail Rana is his employee at the shop.
11. Under the traditional Islamic Law the evidence of Asl (ascendant) in favour of Far' ( descendant) and vice versa is not admissible. There is, however, an exception that evidence of an Asl ({{URDU TEXT}} and Far {{URDU TEXT}} in favour of each other shall be admissible only out of I necessity if the suspicion of partiality is completely absent.
12. It is noticeable that at the time of the commission of the offence of theft by taking away two jewellery sets and rushing out of the shop and escaping on the motorcycle standing in waiting for him in starting position, there was no other witness except the son and the employee of the complainant. In these circumstances, the evidence of the son and employee of the complainant will be admissible out of necessity. Reference may be made to my book Islarni Qanun-eShahadat'
(Pub. Qanuni Kutub Khana, Lahore) relevant passages whereof are reproduced as under:- {{ARABIC TEXT}}
13. It may further be observed that, in any case, Article 3 of the Qanun-iShahadat Order, 1984, has widened the scope of such evidence. The admissibility of said article for the sake of convenience is reproduced as under:- "3. Who may testify.--All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind: ' Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence: ' Provided further that the provision of the first proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways: ' Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness, and, where such witness is not forthcoming the Court may take the evidence of a witness who may be available.
' Explanation.---A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."
14. In Ordinance VI of 1979 the concept of theft is not the same as in the r Penal Code of Pakistan.
Section 5 of the said Ordinance is reproduced as under:- L "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.
15. It was thus submitted by the learned counsel that according to prosecution the gold ornaments were removed in the view of the victim and the witnesses. Therefore, it will not constitute theft.
Consequently the charge under section 9 is not sustainable and the question of Hadd does not arise. The submission of the learned counsel seems to carry weight. The learned counsel referred to my Book Islami Qawanecn Hadood, Qisas, Diyyat and Ta`zirat published by Qanuni-Kutab Khana, Lahore page 66 which reads as under:- {{ARABIC TEXT}} ' On close examination of section 379, P.P.C. And section 5 of Ordinance VI of 1979 it is apparent that under section 379, P.P.C. The word "dishonestly" has been used whereas under section 5 of Ordinance VI of 1979 the word "surreptitiously" has been used.
16. In view of the facts and circumstances of the case it is clear that the gold ornaments were removed in broad daylight in presence and in view of the complainant and two witnesses. In these circumstances, the offence of theft liable to Hadd does not seem to be established. Reference may be made to the following extracts from Badai`a al-Sanai`a Vol.VII, Kitabul Sargah page 65 published by S.H.M. Saeed and Company, Karachi:- {{ARABIC TEXT}}
17. "The ingredient of theft is to take away (the property of a person; secretly. The Holy Qur'an says Tut any that gains a hearing by stealth."
18. In this verse Allah called the gaining of hearing secretly theft. It is to: this reason that taking away the property of another person publicly by force I called seizer, robbery, plunder, usurpation and not theft. It has been related tha Hadrat Ali was asked about the one who seizes or plunders, he answered tha there is nothing in it i,e, his hand will not be cut, and it has also been related tha Holy Prophet (p.b.u.h.) said "the hand of the thief of coffin, plunderer and traito will not be cut." Taking away (the property of another person) is of two kinds: ( direct and (ii) indirect. So far direct is concerned it completes when a thief himself takes away the property of a person and gets it out of the Hirz (an arrangement made for the custody of the property). Thus if he enters the Hirz and takes away the property and is arrested inside the Hirz before taking out property out of it, his hand will not be cut because taking away the property means to bring it in one's possession and it is completed when it is brought out from the Hirz which was not found. And if he throws out the property from inside the Hirz and is arrested inside the Hirz, his hand will not be cut because his possession is still not proved on the property at the time of its taking out from the Hirz. And if he is not arrested until he brings the property out of the Hirz and possesses the property which he has thrown,
20. "Theft liable to Hadd" is defined in section 5 which reads: "Whoever, being an adult, surreptitiously commits, from any `Flirz', theft of property of the value of the `Nisab' or more not being stolen properly, 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 `Fladd'."
21. The necessary conditions for such a theft are:-
(i) the accused should be an adult;
(ii) he should have surreptitiously committed theft of property;
(iii) the property stolen should be of the value of `Nisab'; and
(iv) the theft should have been committed from the Hirz.
22. In the instant case, admittedly the theft was committed at about 5 o'clock an hour or more before sunset by the accused who is an adult and took away the two jewellery sets from the Hirz of the complainant's shop, of more than the value of Nisab. The point of inquiry at the moment is whether the theft was committed surreptitiously? The word 'surreptitious' may mean concealed, stealthily, clandestine, secret, acting by stealth or secretly as defined in various dictionaries, namely, 'Legal Thesaurus' by William C. Burton, London, 'Wharton's Law Lexicon' Sweet & Maxwell Limited, London, fourteenth edition, `Ballentine's Law Dictionary' by William S. Anderson, third edition, 1969, San I Francisco and 'The World Book Dictionary' U.S.A.
23. It seems advantageous to quote a passage from the judgment of Mr. Justice Muhammad Afzal Zullah, Chairman, Shariat Appellate Bench in Ghulam Ali v. State PLD 1986 SC 741 appearing at page on 757 which reads as under :- "Section 5 of the Ordinance provides that whoever, being an adult, surreptitiously commits, from any `Flirz' 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 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."
24. Lastly the learned counsel for the appellant submitted that there was no Tazkiyah-tul-Shahood as required under section 7 of the Ordinance. It seems beneficial to reproduce section 7 which reads as under:- "Section 7.--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-tul-Shahood, that they are truthful persons and abstain from major sins (Kabair), give evidence as eye-witnesses of the occurrence: ' Provided that, if the acused 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 authorized by him shall be recorded before the statements of the eye-witnesses are recorded."
25. It seems pertinent to point out here that on 24-2-1991 when this appeal came up for arguments, this plea was taken note of and the following order was passed by this Court:- "3. Learned counsel for the appellant has challenged the impugned judgment, inter alia, on the ground that the provisions of section 7 of the Offences Against Property (Enforcement of Hudood)
Ordinance VI of 1979 have not been complied with inasmuch as there is no Tazkiya tul Shuhood of the witnesses. Reliance is placed on Ghulam Ali's case PLD 1986 SC 741. The provision is mandatory for awarding Hadd punishment. We would therefore, remand the case to the learned Sessions Judge, Quetta to take the case on his file for compliance of the provisions of section 7(b) of the said Ordinance and send its report within one month from the date of the receipt of the R & P by him which the Branch Registry is directed to send the file to the learned Sessions Judge immediately".
4..
5. Learned Sessions Judge will send his report to us on Tazkiya-tulShahood of the witnesses. This appeal will remain pending on our file and will be fixed for further hearing on receipt of the report."
26. On receipt of the report from the learned Sessions Judge the appeal has now come up before us today. We have perused the statements of the three persons in respect of Tazkiya tul Shahood recorded by the learned Sessions Judge alongwith his report which reads as under:- "The learned District Attorney pointed out that there are only three eyewitnesses of the incident about whom the enquiry in respect of Tazkiyatul-Shahood is to be conducted and these are Ghulam Haider, Abdul Aziz and Rana Sohail. The counsel for the accused also admitted this position. The witnesses were called but it was reported that Ghulam Haider has expired. The witness Abdul Aziz has left the country for good and P.W. Rana Sohail has gone to Lahore and his whereabouts are not known to any body. However, in respect of these three witnesses I have conducted private enquiry and called three witnesses, who were well-acquainted with the prosecution witnesses. On the basis of their statements as Court witnesses and on my personal enquiry I came to the conclusion that three prosecution witnesses mentioned above are truthful witnesses and come up to the mark of Tazkiya-tul-Shahood. As no adverse position comes to light, therefore, the report is submitted as such."
27. We have also perused the statements of three Court witnesses. C.W.1 Rab Nawaz stated on solemn affirmation that he knew only Ghulam Haider who has died in 1987. He was a noble person and of good moral character.
28. C.W.2 Pervaz Ahmad on solemn affirmation stated the same thing that he knew only Ghulam Haider who was of good character and died 4-1/2 years ago. He was a man of spotless character.
29. C.W.3 Javaid Haider is son of Ghulam Haider. He stated that on 18th April, 1987 his father Ghulam Haider has died. Abdul Aziz is his younger brother. He also knew Rana Sohail by birth. He further stated that he has not committed any major sin {{URDU TEXT}}
30. We feel that the requirements of Tazkiya-tul-Shahood have not been fulfilled in the case before us. It seems that the learned Sessions Judge or the subordinate Judiciary, as a whole, particularly the Sessions/Additional Sessions Judges who try Hudood cases know very little about the concept, scope and the essentials of Tazkiya-tul-Shahood. It, therefore, seems quite pertinent to deal with this aspect of Islamic Law which has recently been introduced in the criminal administration of Justice in Pakistan and on this point subordinate Judiciary perhaps, needs much to know. I, therefore, intend to deal with this aspect of law in some detail as under :- Tazkiyah means the mode of enquiry conducted by the Court in order to ascertain whether the evidence of the witness is acceptable or not and for the purpose of declaring a witness "Adil ( jzl..c..) (bearing good moral character) or Ghair Adil ( ). Actually, Tazkiyah is the responsibility of the Court so that the Qazi may protect himself from the evidence of Fasiq a sinful person.
31. After a witness has got his evidence recorded in the Court, the Court shall enquire from Mashhood `alaih ( ) (against whom evidence is given) about the credibility and integrity of the witness (However, under the Shi'a, Fiqh, the Tazkiyah is to be made. Before recording the evidence of the witness). If Mashhood `alaih' ) acknowledges the witness as being credible, then there will be no need for Tazkiyah of the witness, unless Qazi deems it necessary.. {{ARABIC TEXT}} 'Thus, it is permissible to declare the witness as credible on behalf of Mashhood `alaih', provided that he is competent to do so, because Mashhood `alaih's declaration, that the witness is `Adil, is equated with the declaration of Muzakki ( ) (the person who has been appointed to enquire about the moral integrity and probity of the witness). But the declaration of Mashhood `alaih' that the witness is credible shall not be considered as an acknowledgement of plaintiffs right: {{ARABIC TEXT}} Qisas, even if the competency of a witness is not challenged by the Mashhood `alaih ( ).
32. It is stated in Ibn Nujaim's Bahr-al-Raiq ( ) that "If the credibility and integrity of the witness is known to Qazi, then it is not necessary to conduct an enquiry about his character and probity, Qazi shall deliver his judgment on the basis of the available evidence on record. If the viciousness of the witness is known to Qazi, then Qazi shall reject his evidence, while in case the Qazi knows nothing about the witnesses and the opposite party proves that the witness has committed such a crime as a result of which, his evidence shall be rejectable. If the defendant raises no objection, the Court shall declare the witness as credible or otherwise, by conducting open secret enquiry: {{ARABIC TEXT}}
33. It is stated in Mu'inul Hukkam that "If impiety and falsehood becomes common and credible witnesses are rarely available, in such circumstance, as a matter of necessity, {{URDU TEXT}} the evidence of the uncredible witnesses may also be acceptable, so that the rights of the people should not be lost: {{ARABIC TEXT}}
34. Imam Abu Hanifah has said that for Qazi, suffice it to rely on the apparent probity of the witnesses and he will not enquire about their credibility or otherwise, unless the defendant raises objection about their truthfulness. But Tazkiya-tul-Shahood is compulsory in cases of Hudood and Qisas, because "doubts cause removal of Hudood punish! Lent." Therefore, it is necessary for a Qazi, to go deep in matters of Hudood. If the opposite party challenges competency of the witness and levels charges, enquiry shall be conducted about the soundness of the charges, because here we find a conflict between two probabilities; hence enquiry shall be made into the character of the witness by the Qazi, in order to discover, which of the two probabilities preponderate. According to Imam Abu Yusuf and Imam Muhammad an open and secret enquiry shall be conducted by the Qazi to ascertain the 'Adalat (probity) of the witnesses in all matters whether they relate to Hudood and Qisas or.Ta'zirat or fiscal matters. At present there is a verdict on the opinion of the Sahibayn: {{ARABIC TEXT}}
35. It is stated in Fatawa Alamgiri that "According to Sahibayn {{URDU TEXT}} disciples of Imam Abu Hanifah) enquiry into the probity of the witnesses is necessary in all the cases, at present, there is verdict on this view-point.
When the Cow L has recorded the evidence of the witnesses, the enquiry as to the credibility of the witnesses shall be conducted by adjourning the Court proceeding for a reasonable time. If the probity or otherwise is already known to Qazi, then there will be no need of conducting Tazkiya-tul- Shahood.
36. It is stated in Al-Durrul-Mukhtar that "If the competency of the witness is not challenged by the opposite party, in such circumstance, the enquiry as to the credibility of the witness shall not be conducted except in cases punishable with Hadd and Qisas. According to the two disciples of Imam Abu Hanifah, if the probity of the witnesses is not known to the Qazi, then in all cases, open and secret enquiry shall be conducted for this purpose, (Bahral-Raiq) there is verdict on this view- point. Therefore, conducting enquiry as to the credibility of a witness is obligatory. According to Imam Yusuf and Imam Muhammad, Tazkiyah is not considered as necessary pre-condition for the validity of the evidence, as stated in Bahral-Ralq. According to their view, Tazkiyah shall be considered when Qazi knows nothing about the credibility or otherwise of the witness. That is why, it is stated in Al-Multaqat that if Qazi knows that the witnesses are credible or otherwise then Tazkiyah-tul-Shahood shall not be conducted to ascertain their credibility. This view is in accord with the view-point of Imam Abu Yusuf and Imam Muhammad, according to them, Tazkiyah shall be conducted in all matters.
37. The summing up of the issue is that Tazkiyah shall be conducted in cases of Hudood and Qisas whether the defendant raises any objection about the probity and credibility of the witnesses or not. In other cases, there is difference of opinion among the Jurists. It is said that these are the differences of the times and ages, while doctrinal opinion supports the view-point of the two disciples of Imam Abu Hanifah, as written in Hedaya: {{ARABIC TEXT}}
38. It is mentioned in Ibn Qudama's Al-Mughni that "If two witnesses gave their evidence before the Court and their 'Adalat ( ) (probity) is known to the Qazi, in such circumstance, the Qazi will decide the case according to their evidence and if the viciousness of the witnesses is known to the Qazi, then their evidence will not be accepted. If he knows nothing about, the credibility or otherwise of the witnesses, then investigation shall be conducted to verify the character of the witnesses because the verification of the credibility of the witnesses is necessary pre-condition for the admissibility of evidence. The same is the view-point of Imam Shafii, Imam Abu Yusuf and Imam Muhammad: {{ARABIC TEXT}} The difference of opinion has arisen in the case, when Qazi knows nothing about the integrity and probity of the witness, as mentioned in Bahral-Ragq, and Raddal-Muhtar. What is stated in Bahral- Ralch that is considered as correct and proper view. From the above-cited view, it transpires that when Qazi knows that the character and probity of the witnesses is smitten, ({{URDU TEXT}} ) he will return them back without asking them anything and when. Their credibility and integrity is known to Qazi, he will accept their evidence: {{ARABIC TEXT}}
39. Mashhood 'alaih shall be given a chance even after Tazkiya-tul-Shahood, to prove such charges, which are considered hindrance in the way of acceptance of evidence. If he levelled such charges on the witnesses before or after Tazkiya-tul-Shahood, which are considered as a hurdle in the way of accepting evidence as he said that "The object of this evidence is to avoid loss or to achieve benefit", in such circumstances, Qazi will ask Mashhood 'alaih to prove those charges with clear evidence ( ) .If he .Proved those charges as correct, then Qazi will reject their evidence and if he failed to prove those charges, then Tazkiya-tul-Shahood shall be conducted for this purpose. If Tazkiyah has already been conducted, Qazi will decide the case, according to their evidence: The allegation, which can be proved by the evidence of witnesses, presented by Mashhood 'alaih, shall also be proved with the confession of the witnesses. If the charges are not proved by the evidence of Mashhood 'alaih' or by the confession of the witness, or on his refusal, neither Mashhood lahu ({{URDU TEXT}} ) (the plaintiff) nor the witness shall be asked to take oath. If Mashhood 'alaih failed to prove such charges, neither the plaintiff nor the witness shall be asked for taking oath, as mentioned by Ibn Nujaim in Bahral-Ra'iq. Ibn Nujaim has mentioned this view on the authority of Fatawa Bazazia ({{URDU TEXT}} ) that, "the defendant has challenged the competency of the witness for defensive purposes, so long as his evidence is there, the witness shall not be asked to take oath. When Mashhood 'alaih proved the allegations by furnishing clear proofs, that clear proof shall be accepted against each reproachment. In case, allegations are not proved by the person who levelled it in that situation, oath shall not be taken neither from the defendant nor from the witness. The fact is that the admission of the witness should be accepted amounting it to proof. Therefore, Zail'i ( 04 ) has mentioned that if proof furnished, on the basis of the admission of the witnesses that they did not attend that meeting where the matter (right) in question was determined, this would be accepted by the. Court: {{ARABIC TEXT}}
40. As to the responsibility of the Court to enquire about the character of the witness, the question is that if the character of the witness does not pretend to be a doubtful, shall the Hakim ({{URDU TEXT}} ) necessarily conduct an enquiry to ascertain the credibility or otherwise of that witness? In this regard it, is reported from Hazrat Umar, that, he in his letter to Abu Musa Ash`eri () mentioned, while dictating him the principles of Qada that "All Muslims are Just with respect to their evidence excepting those who have been punished for Hadd Qazf or for giving false evidence or those who are under the pressure of their relatives and friends in giving evidence. Mansoor said, he asked Ibrahim as to "what is meant by the credibility?
He, said "it should not have pretended from him (to have committed) any doubtful act."
41. The same is reported from Hasan al-Basri and Sha`bi. Hazrat Ma`mar has reported from his father that when Hazrat Hassan was appointed as a Qazi, he used to accept the evidence of the Muslims without conducting Tazkiyah unless the opposite party challenged their competency.
Haisham said "I have heard Ibn Shabrama to have said that" there are three things upon which no body acted prior to me and those who come after me, should not give them up:
(1) To enquire about the credibility or otherwise of the witness.
(2) Asking proofs and evidence to prove the claim.
(3) To adopt artful tricks during questioning the witness.
42. Imam Abu Hanifah said "I shall not enquire about the probity of the witnesses until the opposite party challenged their competency, if they challenged the competency of the witnesses, I shall firstly collect an information about them secretly as well as openly, and then conduct an open enquiry except in cases of Hudood and Qisas, wherein I shall collect information about the witnesses only secretly and then conduct an open enquiry. Contrary to this view-point, Imam Muhammad has said that Tazkiyah shall be conducted whether the defendant challenged the competency of the witnesses or not.
43. Ali bin Qatan ( ) has reported on the authority of Ibn Shabbrama, to have said that. "He is the first person to start collecting secret report about the witnesses, prior to this, if a person came to another nation, he was asked to bring a person for the purpose of his identification and verification of his character, he used to say that his community people would perform this job, while they, due to modesty, used to state only about his good character. When I noticed all these, I started collecting secret report. As a result of these informations, if the validity of the evidence is proved, then I asked them to conduct an open Tazkiyah." According to Imam Abu Yusuf and Imam Muhammad after conducting secret and open enquiry about the witnesses, a public Tazkiyah should also be conducted whether the defendant has reproached them or not.
44. Imam Malik bin Anas has said that "So long as confidential enquiry is not conducted, the case shall not be decided on the basis of evidences" ye.
45. According to Imam Shafi`i "after conducting secret enquiry about the credibility of the winesses, an open enquiry shall also be conducted."
46. Abu Bakr Jassas said, that "It becomes evident from the above-noted discussion that the acts of T'adil ( c371.)._-1-3 ) Tazkiyah ( a_eS.)-1 ) and choice of the witnesses were based on Ijtihad ({{URDU TEXT}} and strong presumption.
' Because, it is difficult to know the hidden affairs of the individuals. Therefore God Almighty has forbidden from being involved into deception by looking the outward and apparent appearance of the persons. It is mentioned in the Holy Qur'an that:- "There is the type of man whose speech about this worldly life may dazzle you." 2:204.
47. After this, Allah Almighty described the hidden qualities of human being and also described the fact in this regard that: "When he turns his back his aim where every is to spread mischief." 2:205.
48. Thus, we have been directed that some people, outwardly seem to be very pleasing but internally, they are noxious and vicious. It has been mentioned while explaining another verse of the Holy Qur'an that: "When you lookest at them, their exteriors pleases thee." 63:4.
49. Therefore, Allah Almighty has directed His Holy Apostle to avoid deception by looking the apparent position of the individuals. We have been directed to follow the Holy Prophet. In this regard, it is stated in the Holy Qur'an that: "Verily in the messenger of Allah ye have a good example for him."
50. Now, it is not permissible to get inclined towards the outward and apparent appearance of the individuals and to show carelessness in examining the credibility of the witnesses till the inspiration of strong persumption about his being credible is received. Allah Almighty has mentioned the qualities of the witness, both these qualities possess the capability of affecting the competency of the witnesses, it is mentioned in the Holy Qur'an that: "Two just men of your own (brotherhood)" 5:106.
51. It means that both of the witnesses must be credible and just. In this regard it is also mentioned that and call to witness two just men among you" while, about the other quality it is mentioned that: "Such as ye approve as a witness" 2:282. The person who is liked and approved by the Muslims, shall be considered as credible but sometimes a credible witness is not considered as approved. It is in such circumstances, when he remains totally negligent about his duties. Because of his straightforwardness it becomes easy to deceive him and to win his support by giving colour to the issue.
52. The words of Allah Almighty ( ) "of such as you approve as a witness" 2:282, cover two matters i,e, credibility, watchfulmindedness and sagaciousness of the witness, because Allah Almighty has mentioned in the verse that: "If a sinful person comes to you with any news, ascertain the truth:" 4:96. Generally this verse denotes the necessity of verification and to get certainty about the validity of all such news and informations, which come through the sinful persons. Evidence is also a sort of information, therefore the cbndition of verification shall necessarily be applied specially when the witnesses are wicked and vicious. Therefore Allah Almighty ordained to verify the news and informations conveyed by the wicked person and made it obligatory to accept the evidence of credible witnesses only. The viciousness of a person is definitely determined, while to have full cognizance of the credibility is not possible with certainty except getting observations by one's outward appearance. Thus the knowledge of credibility is based on strong conjectures which reveal from ones reformed and good behaviour, polished credence and trustworthiness. Although this matter is often based on strong presumption, but for our purpose, it has been given the status of certainty.
As Allah Almighty ordered about migrated women that: "If you ascertain that they are believers then send them not back to non-believers 6:10. Here our knowledge would be based on genral appearance, not on realities. Likewise the credibility of the witness shall also become manifest by looking his general appearance rather discovering the hidden qualities, because the factual position is only known to Allah Almighty.
53. This is considered as a fundamental code to act through Ijtihad ({{URDU TEXT}} to meet the necessities of new situation, because evidence has great importance in matters regarding faith and temporal issues. Through the evidence, the rights of human beings are proved and their ownerships are established. Likewise the validity of lineage, marriage and the payment of blood money, are proved by the evidence and all these are proved on the basis of strong presumption.
54. It is noticeable that section 7 prescribes the mode for Tazkiyah-tu-Shahood. However, in the book of Fiqh it is laid down that the enquiry as to the credibility of the witnesses shall be conducted by the trustworthy and well-informed persons of the same walk of life with whom they have been- connected. Thus it is stated in Majalla-tul-Ahkamul `Adliyah that "the examination of the credibility of the witnesses is made, whether publicly or privately from the people with whom they are connected, that is to say, if they are students the enquiry shall have to be made from trustworthy people of the Institution and teachers of the school: {{ARABIC TEXT}}
55. It is necessary for Muzakki ( ) that there may not be an open enmity between him and the witnesses. It is stated in Fatawa Alamgiri with reference to Allama Halwani, to have said that "if there is not an open enmity between the witness and his neighbours, then his neighbours shall be asked about the credibility or otherwise of the witness: {{ARABIC TEXT}} Moreover, it is also necessary for Muzakki ( ) to be a Muslim, in case, the witness is a Muslim. It is stated in Fatawa `Alamgiri that "there is consensus of opinion among the jurists, that the Muzakki ( ) must be a Muslim in case Mashhood `alaih (0-.4),3-e4-Z--4) is a Muslim. The same view is mentioned in Khulasa ( ) also:
56. In case of secret Tazkiyah, the opinion of father and his son; husband and his wife and other relatives shall be valid in regard to their credibility or otherwise. Therefore, it is mentioned in Fatawa 'Alamgiri that in confidential Tazkiyah father and his son are competent to verify each other's character according to Imam Abu 1-lanifa and Imam Abu Yusuf. The same has appeared in Fatawa Qazi Khan also. {{ARABIC TEXT}} If father declared his son or son declared his father as credible, that would be admissible.
57. In conducting Tazkiyah-tul-Shuhood, the number of Muzakki, ( ) is not considered as a necessary condition. What is necessary in this regard is, their credibility. It is mentioned in Fatawa 'Alamgiri that "there is nothing wrong in appointing a single person as a Muzakki ( ) or sending him to Muzakki as a Massenger on behalf of the Qazi "For Qazi, it is appropriate to enquire into the credibility of the witnesses by 'Adil and well-informed person:
58. An enquiry into the credibility of the non-Muslim witnesses can be conducted through just and worthy Muslims, likewise, reliable and just (according to their own religion) non-Muslims are also competent to act as a Muzakki C"S
59. Qazi shall enquire into the credibility of the non-Muslim witnesses through just and credible Muslims or through reliable and just non-Muslims:
60. It is stated in Bahral-Raiq that "Qazi shall enquire into the credibility or otherwise of the non- Muslim witnesses through 'Adi Muslims or reliable and just non-Muslims." This view is also mentioned in Muhect and Al-Ikhtiar. {{ARABIC TEXT}} Tazkiyah shall be conducted to enquire into the credibility of the Muslim as well as non-Muslim witnesses. If a Christian gaves evidence against another Christian, in such circumstance, Tazkiyah shall be conducted to enquire into their credibility. Tazkiyah of a non-Muslims is that enquiry shall be conducted to ascertain whether they are wakeful, vigilant-minded and adherent to their faith or not: {{ARABIC TEXT}} In a secret Tazkiyah verification of a single person is sufficient, provided that he and Mushhood 'alaih ( ) both are Muslims, as stated in Fatawa Bazazia ( , j ) {{ARABIC TEXT}}
61. Therefore, the requisite quaiifications for Shahadat are not considered as necessary condition in secret Tazkiyah even if a son declared his father as credible or a father declared his son or a wife declared her husband as 'Adil that would be accepted. At present only confidential Tazkiyah is in practice, because according to a narration, attributed to Imam Muhammad that an open Tazkiyah creates insurgency and sedition but he has not favoured to apply the necessary qualification of Shahadat in a secret Tazkiyah. {{ARABIC TEXT}} Although this view-point was expressed having regard to the prevailing conditions of second century Hijra but in present conditions it seems to be most appropriate. Therefore, if a son declared his father as credible (vice versa) that would be admissible. All these are for the purpose of secret Tazkiyah because secret Tazkiyah is not considered as Shahadat ( .4; ) but it is mere information.
Father and his son both are equal in providing information. Contrary to an open Tazkiyah which is considered as a Shahadat {{ARABIC TEXT}}
63. It is an accepted rule of the Tazkiyah-tul-Shahood that the credibility of the witnesses shall be examined through the credible person of the same walk of life to which the witness belongs.
Tazkiyah-tul-Shuhood means to conduct an open and confidential enquiry to ascertain whether the witnesses are credible or otherwise; thus the credibility of the witnesses shall be conducted by enquiring from the persons of the same walk of life to which the witnesses belong. If they are students from the heads and other staff members of the educational institutions. If they are soldiers from their headquarters. If they are clerks from the concerned office and institution and if they are merchants or belong to various profession or industry, then from trustworthy and reliable persons of the same workshop or factory, whether they are dwelling in the same locality or residents of the same city.
64. As regard qualities of Muzakkis, great emphasis has been given by the jurists, thus for the Court, it is imperative to appoint such a person as Muzakki, who is credible and has full command over collecting information about the witnesses. He should not be a greedy person and should know the causes of Jarh and T'adil ( 0-e ) and should also be carefree about earning of his livelihood.
Among the Muzakkis ( 7.4 ), that person shall be preferred who is not careless and does not remain aloof from the people.
65. If there is no enmity between the witness and his neighbours, the Muzakki shall ask the neighbours of the witness about his credibility or otherwise. If there is no such person among the neighbours, the inhabitants of the same locality shall he asked about his credibility. If all these people are not credible, the reliance shall be placed on such informations which reach the extent of Tawatur ( ) (giving of information by such a large number of persons that it is habitually or logically impossible for them to agree upon a lie)
66. If the information collected from such persons of the same locality, who are generally considered not reliable and worthy but all of them unanimously are agreed upon the credibility of the witness, that would be considered an information upto the standard of Tawatur ( ) provided that the Muzakki is fully satisfied that they have provided correct and accurate information.
67. If a non-local person appeared before the Hakim ('S\-.1... ) as a witness, then Qazi shall enquire of him whether any person of this locality is there, for the purposes of his identification. If the witness referred such persons and those persons are competent to verify the character of the witness, in such circumstances, Qazi shall secretly enquire into their credibility or otherwise. If they declared him as credible and then declared him credible openly, and their credibility proved as a result of an open Tazkiyah also, then such Ta`dil shall, become admissible, but if the persons who had been referred by the non-local witness, are considered as unreliable then Qazi shall stop the proceeding till collecting information from the persons of the place of the witness who is deputed to work as a Muzakki of that area. In this regard a letter shall also be written to the Hakim of that city.
68. There are two modes of Tazkiyah-tul-Shahood-- open and confidential. Qazi Shuriah used to enquire into the credibility of the witnesses openly during the early period of his appointment. Later on he adopted the way of secret enquiry. When he started secret enquiry, somebody asked him that he has adopted an innovation by introducing new way of secret enquiry. He replied when you people started to adopt new ways of life, we also, in changing situation, adopted the way of secret enquiry ( ). Tazkiyah shall be conducted confidentially and the Judge through a confidential letter, which is called Mustureh ( ) in the technical term of the jurists, shall ask Muzakki about the credibility of the witnesses by mentioning the names of both the parties, witnesses, and the name and description of the thing claimed, in his letter which shall be sent to Muzakki ( ) in a sealed cover through a reliable messenger.
69. It is mentioned in the commentary of Kanz-ul-Iman and Mo'in-ulHukkam that secret Tazkiyah shall be conducted through the questionnaire, which is called Masturah in the technical term of the Jurists. It shall be conducted in this way that the Judge firstly writes in a letter, the names of the plaintiff, defendant and the claim of the plaintiff, secondly the names of the witnesses with their parentage, their residential addresses, profession and appearance ( and if they are well-known persons, their fame and celebrity, shall also be mentioned in this letter.
In short, all such things shall be mentioned in the said letter which prove helpful in recognising the witnesses so that there may not be any doubt in recognising the witnesses. Thereafter this letter shall be placed in a sealed envelope and stamped by the judge and sent to those, who are chosen to ascertain the probity of the witness. {{ARABIC TEXT}}
70. It is sufficient to conduct only secret Tazkiyah, there is no new ran open Tazkiyah. Neither it is possible nor beneficial in the present age, due to creation of hostility between the parties and the witnesses. It shall become more clear by reading the following versions of the Jurists.
71. Imam Sarkhasi has mentioned that "originally, Tazkiyah used to be conducted openly, then Qazi Shuriah introduced the way of confidential Tazkiyah:- {{ARABIC TEXT}}
72. It is also stated in the various books of Fiqh that "primarily only an open Tazkiyah was prevalent but later on during our period we maintained only secret n Tazkiyah to avoid hostility and sedition: {{ARABIC TEXT}}
73. Nowadays only secret Tazkiyah is in practice because in open Tazkiyah, there is a fear of hostility between the litigants and witnesses. It is possible that a witness who is a sinful person and those who know about his viciousness, would' not inform Muzakki openly but inform them confidentially to avoid hostility, because in open Tazkiyah, there is possibility of hostility and bad relation: {{ARABIC TEXT}}
74. In the early days of Islam, Tazkiyah-tul-Shahood used to be conducted openly, when Qazi Shuriah was appointed as a Qazi, he introduced confidential Tazkiyah Thus Tazkiyah used to be conducted openly as well as secretly but later on only confidential Tazkiyah remained in practice so that the secrecy of the individual, not to be betrayed and the hostility and hatred may not erupt between the witnesses and Muzakkis as a result of an open Tazkiyah. The sinfulness of the witnesses and their smitten character become known as a result of confidential Tazkiyah.
Therefore, at present stage, we rest only upon a confidential Tazkiya. The credibility of the witnesses used to be examined openly also after conducting secret Tazkivah but at this stage, abandonment of an open Tazkiyah is considered as a virtuous and laudable act, so that the hostility anct hatred may not erupt between the witnesses and Muzakkis: {{ARABIC TEXT}} According to a version related from Imam Muhammad to have been said that An open Tazkiyah is turbulent and mischief. "It is stated in al Sirajiyah and there is a verdict on this view-point, that: the examination of the credibility of the witnesses shall be conducted secretly. Quhistani has related from Imam Muhammad, to have said that "an open Tazkiyah is a source of turbulent and hostility.
"Secret Tazkiyah was firstly introduced by Qazi Shuraih and there is verdict on it, as stated in Al- Mudmirat etc: {{ARABIC TEXT}}
75. Muzakki should declare the witness, in writing, as credible or otherwise after having come to know the subject-matter of the letter and the same letter should be sent back to the Qazi placing it in a sealed envelope through a reliable messenger. If Muzakki ( j J..e ) considers the witness as credible, he should write such words which denote his credibility i,e, credible, worthy of credit or should write "I know nothing except his good moral character." In case, a witness is not credible then Muzakki ( 427.4) should write appropriate words which denote his viciousness i,e, incredible or (God knows the best) even the latter one seems to be more appropriate. It is stated in Majallah that the Muzakkis when open and read "Masturah", ( of if the witnesses whose names are written in it, are credible and are acceptable as witnesses they will so write on it, and if they are not credible they. Will so write that "they are not credible" and sign it, and return it to the Judge, putting a seal on the envelope, without making its contents known to the person who brings the envelone: {{ARABIC TEXT}} If is stated in Moin-ul-Hukkam ( (Lret-g--4) ) that "if Muzakki ( ) mentions in his secret letter about the witness that he knows nothing except his virtuousness" then the witness shall be considered as credible. If Muzakki ( ) knows that the character of the witness is objectionable he will mention that "God knows better," he will not add any thing to this, because if the sinfulness of the witness is mentioned by the Muzakki ( ) that would amount "to unveil the fault of others" while we have been ordained not to do so. {{ARABIC TEXT}}
77. It is stated in Fatawa `Alamgiri that "If Muzakki ( ) mentioned in his letter that he knew nothing except the virtuousness of the witness, it would be considered as declaring the witnesses to be credible: {{ARABIC TEXT}} If the Muzakki ( ) resides far away from Qazi headquarters, then the travel charges, arising in contacting Muzakki ( ) through -a reliable messenger, shall be borne by the plaintiff. Thus it is mentioned in Fatawa 'Alamgiri that "a person appeared before a Qazi as a witness, whose residence is fifty Forsakh ( ) away from the Court building and Qazi sent a reliable person to the city of the witness by giving him wages, so that the verification of the witness's character can be conducted through the Muzakki ( ) of that area, in such circumstance, the plaintiff shall be liable to pay the charges of Qazi's messenger. The same view is also mentioned in Kitabul Muheet of Imam Sarkhasi: {{ARABIC TEXT}}
78. It is also stated in Kitabul Muntaqa that "a person appeared before a Qazi as a witness and whose residence is fifty Forsakh away from the headquarter and Qazi sent his reliable messenger toward the Muzakki of that area, for Tazkiyah purposes, the plaintiff shall be liable to pay all charges arising in doing so: {{ARABIC TEXT}}
79. If the Court, on receiving back the secret letter, is of the view that the 'Adalat ( ) (integrity) of the witness is, expressly or impliedly, objectionable in the opinion of the Muzakki in such circumstances the Court shall ask the party concerned to produce another witness. If the Muzakki mentions that "the witness is not 'Adil ( lam) this statement would amount to an express objection ( ) and if he mentioned that "I do not know his whereabouts or mentioned only the words" ( ) "God knows better" that would amount to implied contestation ( ) that is to say, to challenge the integrity impliedly of the witness and to declare him uncredible.
80. It is mentioned in Sharh al-Majallah and Bahral Raiq that when the Qazi receives back the secret letter ( ) and it has not been written on the Mastruah by the persons chosen to make the enquiry, saying, as regards the witness that they are credible and acceptable for giving evidence, or something has been written which expressly or impliedly represents to the contrary, such as, "not credible" or, "we don't know about their credence" or their condition is unknown" or, "God knows" or, it is returned to the Judge sealed without anything having been written on it, in such circumstance, the Judge will not accept the evidence of those witnesses. It is stated in Bahral Ra`iq that if the credibility of the witness is challenged, then Qazi shall ask the plaintiff to produce another witness and these witnesses have been declared uncredible: {{ARABIC TEXT}}
81. Regarding the words of Muzakkis ( ) mentioned in Mastureh, it has been stated that it is not enough to mention in confidential letter the words that "The witness is competent" until he mentions that the witness is credible and admissible for evidence, because a Oazaf (false allegator) after repentence becomes credible but his evidence remains inadmissible. Likewise if a father gives evidence in favour of his son, he, despite of his credibility, does not become admissible for the purpose of evidence. Therefore, it is necessary for Muzakki ( J> ) to mention the admissibility of the evidence also in addition to witness's credibility. If the credibility of the witness becomes known to Muzakki (. 6). ) but besides it he also comes to know that the claim of the plaintiff is not valid or the witnesses have some doubts about their evidence, in such situation, it is imperative for him to mention in the secret letter that "the witnesses have some doubts about their evidence" or, the "claim of the plaintiff is Batil ( L)-1) h ) (void)" after declaring the witness as 'Adil ( t.) is ) . After receiving these informations, the Qazi shall try his best to ascertain the credibility of the witness, if the observations of Muzakki are proved as correct then Qazi shall reject his evidence. If Muzakki declared the witness credible as well as admissible for the evidence by writing it in the secret letter, then an open Tazkiyah shall also be conducted to ascertain the soundness of the report.
Confidential Tazkiyah shall be preferred over an open Tazkiyah, if the Muzakkis deputed to conduct confidential Tazkiyah, and ascertain the matters which are likely to be ascertained by conducting open Tazkiyah, that would be admissible according to the followers of Imam Abu Hanifa.
82. Tazkiyahtul A'lanyah shall be conducted in the following way: the Court shall summon two persons as Muzakkis in the persence of the parties where they will express their opinion about the witness being 'Adil ( ) and acceptable for evidence or otherwise, or in the presence of the witnesses, the Court will ask Muzakki "are these the same people, whom you have declared credible and admissible for evidence?" As a result of this question, the Muzakki shall express the probity of the witness openly, if Muzakki remained silent, his silence would be considered as contestation" against the witness.
83. Although one Muzakki is sufficient to conduct secret enquiry, but for the sake of prudence, at least two Muzakkis are necessary for secret Tazkiyah. According to Imam Abu Hanifa and Imam Abu Yusuf, it is permissible to conduct secret enquiry through parents, children and wife while Imam Muhammad is of the opinion that "those whose evidence is not admissible, would not be competent to conduct a secret enquiry also, as they are not competent to conduct an open Tazkiyah. An open enquiry being a kind of evidence, for it, the number of Muzakkis and amount of evidence shall be observed including pronouncement of the word Shahadat.
84. As to the conditions of an open enquiry, it is stated in the book of Fiqh that the necessary conditions in regard to inquiry are that, the witness should be an adult, free and sane person. So, there is a consensus of opinion among the Jurists that, as the conditions of being the witness free, adult, having eyesight and probity are necessary, likewise the same conditions shall also be
85. The question arises whether Tazkiyah be conducted in each and every case. It is stated that if the probity of a witness has already been enquired by the Judge in connection with a case, then enquiry shall not be conducted again to ascertain the credibility of the same witness by the same Judge in respect of another case, provided that a period of six months has not elapsed between the two cases. In case, a period of six months has elapsed, the Judge shall conduct another enquiry to ascertain the probity of the witnesses.
86. If a Judge declared the evidence of a witness inadmissible, it is not permissible for another Judge to declare his evidence admissible in the same case, because the first Judge would have rejected his evidence on legal grounds, so to go against his decision by another Judge, shall not be justified.
87. If the witnesses are declared credible by conducting enquiry in connection with any matter, Tazkiyah shall not be conducted again by the same Court if these witnesses appeared before the Court in respect of anpther case. However if a period of six months has elapsed between the two cases, then enquiry shall be conducted to ascertain their credibility. If they appeared as witnesses before another Court in respect of another case, then it is necessary to conduct an enquiry in such circumstances.
88. It is stated in Majellah-tul-Ahkamul 'Adliyah ( tt%.74.' that: when the competency of witnesses has in the opinion of the Judge been proved in one matter, and he has given evidence in another matter before the same Judge, if six months have not passed in between, the Judge does not go with enquiry again into their credibility, and if six months have passed, the Judge shall enquire into it again: {{ARABIC TEXT}}
89. It is stated in Fatawa 'Alamgiri with reference to Kitabul-Muheet (.6.t?r..1.11 of Imam Sarkhasi that "when probity of some witnesses proved before the Court and Qazi delivered its judgment on the basis of their evidence, Tazkiyah shall not be conducted if the same witnesses appeared before the Court in connection with another case, provided that there may not be a long interval between the two cases. If long period has elapsed between the two cases, then enquiry shall be conducted to ascertain their credibility. There is, however, G divergence of opinion among the Jurists in determining the quantum of the maximum period. In this regard there are two view-points: One opinion is, that the maximum period should be six months while according to the other view, it shall be determined by the Qa'zi, by using his discretionary powers. Majallah has also placed its reliance on the first view-point which is the correct one. According to Fatawa Khaniyah, a Qazi shall be bound to conduct Tazkiyah again, if the witnesses appeared in connection with another case: {{ARABIC TEXT}}
90. It is mentioned in Fathal Oadeer that if some persons appeared before the Court as witnesses, then Tazkiyah should be conducted to ascertain their credibility. If they appeared in another case to give evidence, then Tazkiyah shall not be conducted again unless long period has elapsed between the two cases. According to Imam Muhammad, this interim period should be one month while Imam Abu Yusuf firstly specified a period of one year but later on, he retracted from his former opinion and agreed upon a period of six months: {{ARABIC TEXT}}
91. . If Tazkivah could not be conducted for some reason or the other, the Judge can act upon their evidence by administering oath, specially when there are sufficient reasons to do so and Mashood `alaih (against whom evidence is given) also insists on administering oath.
92. Therefore, it is stated in Bahrul Raiq that according to Imam Abu Yusuf, Qazi can deliver its judgment without conducting enquiry about the probity of the witnesses. It means that according to Imam Abu Yusuf and Muhammad, Tazkiyah is not a necessary condition for the validity of the judgment, as I have reproduced a passage from Hedaya, that "if Qazi decided a case on the basis of evidence of sinful person ( ), that judgment would be a valid judgment without any controversy.
So, how can one challenge the validity of the judgment, decided on the basis of such persons' evidence, whose credibility is not known. If the wickedness and viciousness of the witness becomes known to Qazi after announcement of the judgment, in such circumstances, this judgment shall not become null and void, (but remains effective).
93. It is stated in Kitabul Muheet Al-Burhani under the Chapter of Hudood, that "If Qazi ordered to implement Hadd punishment, and after execution of Hadd punishment by stoning the culprit, the viciousness of the witness becomes known, then Qazi shall not be liable to pay Daman ( )
(compensation) "because, mistake on his part was not proved with certainty. It transpires that if Qazi decided Hudood cases on the basis of the apparent probity of witnesses, although Qazi would be committing a sinful act by doing this, but his judgment would be considered as correct and valid.
94. It is stated in Altahzeeb ( ) with reference to Qalansi ( ) that "during our time, Tazkiyah-tul- Shahood has become very difficult due to predominantly prevalence of wickedness. Therefore, the Judges have started to administer oath to the witnesses like Abi Lyla. I say, what is stated in the reliable books of Fiqh like Khulasa, Bazaiah, against the administering oath would not affect this decision, because that is applicable, when the probity of the witness is known; here the question of oath arises when the probity of the witness is unknown, specially during our time, when the whereabouts and credibility of the witnesses and Muzakkis are generally unknown. So the person whose credibility and whereabouts are unknown, he would not be competent to enquire into the probity of the unknown oerson: {{ARABIC TEXT}}
95. About administering of an oath to witness, it is stated that in case Mushhood 'alaih ( ) (the person against whom evidence is given) asks the Judge, saying "administer the oath to the witnesses that they have not told falsehood in their evidence" and it has become necessary to strengthen the evidence by oath, the Judge can administer the oath to those witnesses and the Judge can say to the witnesses" I will accept your evidence, if not, I will not accept it:" {{ARABIC TEXT}}
96. ("This process starts mostly after giving evidence).
96. About strengthening of evidence by oath, reference may be made to a passage from Al- Ishbah, ( ) quoted on the authority of Sairafia (444.) that "oath shall be administered when Qazi deems it necessary" thus it becomes evident that Qazi shall consider it necessary when the integrity ( ) of the witnesses and Muzakkis is doubtful specially when the Judge is non-local and knows nothing about the credibility of the witnesses and Muzakkis, as often happens during our times. Undoubtedly the predominant prevalence of viciousness has created doubts in the mind of the Judges about the probity and integrity of the witnesses and Muzakkis. Therefore, Qazi is authorised to strive his best for perishing doubt, so that he may attain strong presumption about the matter ( 4.1,44 ), specially when Mushhood 'alaih ( a,tt ,kt.64, ) insists for administering oath, because this would increase the authenticity of the evidence and strengthen it. The Arabic text reads as under:- {{ARABIC TEXT}} ' For fuller details on the subject of Tazkiyah-tul-Shahood reference may he made to my book Islami Qanun-e-Shahadat, 1988, Qanuni Kutub Khana, Lahore Chapter on l'azkiyah-tul-Shahood'.
97. For the reasons discussed above, we are of the view that the case .Of theft liable to Hadd is not proved. It is a case of theft liable to Ta`zir. The requirements under section 7 of the Ordinance are not fulfilled. In so far as the quantum of the evidence required to prove the (Nisab of Shahadat) for `Hadd' is, concerned it is, no doubt, complete but the other requirement regarding Tazkiyatul- Shahood is lacking in accordance with law.
98. We, therefore, setting aside the impugned judgment, convert the conviction of the appellant from section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to section 380, P.P.C, read with section 14 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 and sentence him to five years' R.I. The appellant will, however, be given the benefit under section 382-B, Cr.P.C.
99. It has come in evidence that the jewellery weighing 150 grams was stolen by the accused and taken away by him on the motorcycle from the shop of the complainant. The recovery of the said jewellery weighing 104 grams has been made from the possession of the co-accused. We would, therefore, order that the remaining 46 grams of jewellery stolen away by the accused or value thereof at the prevalent rate of Rs,300 per gram be restored to the complainant's son (Javed Haider). For failure to do so the said amount will be recovered as arrears of land revenue and paid to the son of the complainant.
100. In view of the above judgment, the reference No,1/I of 1990 sent by the learned Additional Sessions Judge-1, Quetta, not confirmed and stands rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.