DR. FIDA MUHAMMAD KHAN, J.---This appeal filed by Muhammad Yasin alias Seema son of Muhammad Amin resident of Ward No,8, Mohallah Muhammadpura, Police Station Khanqah Dogran, District Sheikhupura, is directed against the judgment dated 16-5-1995 passed by the learned Additional Sessions Judge, Sheikhupura, whereby he has convicted the appellant under section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, hereinafter referred as the said Ordinance, and awarded him Hadd punishment i,e, the amputation of his right hand from the joint of the wrist. He has further convicted him under section 380, P.P.C. and sentenced him to seven years R.I. with a fine of Rs,2,000 or in default of payment of fine to further undergo two months R.I. He has further convicted him under section 411, P.P.C. and sentenced him to three years R.I. The sentences are ordered to run concurrently. The benefit of section 382-B, Cr.P.C. has been extended to him.
2. Briefly stated the case of prosecution as recorded by Muhammad Ishaq in his statement Exh.P.A. recorded by Abdul Jameel A.S.I. Police Station Safdarabad on 20-4-1992 is to the effect that he runs a watch shop in Rail Bazar, Mandi Safdarabad. As usual, on 19-4-1992, after closing his shop, he went to his house in Dhaban Kalan. At about 1.45 a.m. (mid night) on 20-4-1992, his cousin Muhammad Ajmal informed him that a thief had entered his shop by breaking open the roof of the shop and that the shop had been encircled by police and Chowkidars. His cousin further told him that Abdul Jameel A.S.I. had called for owner of the shop. Accordingly the complainant reached his shop at 2.00 a.m. where he saw that police and Chowkidars namely Sher Khan and Saeed Khan had encircled the shop wherein the thief was present. He opened the lock of his shop under the supervision of Abdul Jameel A.S.I. where Muhammad Yasin appellant/accused was found inside.
Abdul Jameel A.S.I. conducted his personal search and recovered Rs,2,400, bearing the stamp of "Ishaq Watch House, Rail Bazar, Mandi Dhaban, District Sheikhupura", in English words, which was taken into possession vide memo. Exh.P.B. After recording statement Exh.P.A. Abdul Jameel A.S.I. sent the same to Police Station where Mumtaz Ahmad H.C. (P.W.4) incorporated its contents into formal F.I.R. Exh.P.A./1 at 2.45 a.m. After necessary investigation the appellant/accused was challaned to face the trial.
3. At the trial the prosecution examined five witnesses in all. P.W.1 is Muhammad Ishaq. He is the complainant who, with some slight variation, reiterated his statement as mentioned hereinabove.
He also added that Thanedar took into possession articles like one Tessa with which the thief had broken the roof of his shop, one rope with the assistance of which the thief had entered the shop from its roof, one iron Chappu with which the thief had broken the Daraz. P.W.2 is Muhammad Ajmal. He is the paternal cousin of complainant who when informed by Saeed Khan Chowkidar about the incident during the night of 19/20th April, 1992, went alongwith him to inform the complainant. He supported the version given by P.W.1 complainant. P.W.3 is Sher Khan chowkidar.
He stated that he was on duty during the night of 19/20th April, 1992. While he was passing nearby the shop he heard some noise inside. He checked the outer locks of the shop but found them quite intact, Then he stepped up by the stairs of another shop and saw some light coming out from the roof of shop owned by Muhammad Ishaq complainant. He gave signals to other Chowkidars to reach there and then again stepped up of the shop by stairs and saw that the accused present in the Court was coming out with the help of rope. He cut the rope and resultantly the accused fell down in the shop. Meanwhile the police who were on patrol duly reached there. He informed them accordingly. The police and other Chowkidar encircled the shop. He sent another Chowkidar to the house of Muhammad Ajmal P.W., relative of Muhammad Ishaq complainant, who reached the shop alongwith said Chowkidar. Then Muhammad Ajmal (P.W.2) was sent alongwith the Chowkidar to call Muhammad Ishaq complainant. Accordingly Muhammad Ishaq complainant came and on the advice of the police opened the lock of the shop. Police opened the door and apprehended the accused present in Court and recovered amount of Rs,2,400 Exh.P.1 to Exh.P.8, on his personal search and took the same into possession vide recovery memo. Exh.P.B. He was a marginal witness to the said recovery memo. which was prepared at the place of occurrence. He added that the said currency notes recovered by the police were bearing the stamp of 'Ishaq Watch House', one rope, one Tessa and one iron Chappu were also in the possession of the accused. P.W.4 is Mumtaz Ahmad H.C. who on 2-4-1992 recorded formal F.I.R. Exh.P.A./1 on the basis of complainant Exh.P.A.
P.W.5 is Abdul Jameel A.S.I. On 20-4-1992 he was on patrol duty. When he alongwith the other police officials reached near the National Nank Safdarabad, Sher Khan Chowkidar called them and informed them that a thief was present in the shop of Muhammad Ishaq complainant. He summoned the complainant through Muhammad Ajmal P.W. from his house. Muhammad Ishaq complainant opened the lock of his shop. He apprehended the accused present in the Court from inside the shop and arrested him accordingly. He recovered Rs,2,400 from his personal search and secured the same vide recovery memo. Exh.P.B. He prepared site plan Exh.P.C. and recorded the statements of P.Ws. under section 161, Cr.P.C. He completed the investigation and challaned the accused.
4. The appellant/accused made a statement under section 342, Cr.P.C. wherien he denied the allegation and pleaded innocence. Responding to a question "Why this case against you and why the P.Ws.. have deposed against you?" He made a statement in the following words:-- "I have a dispute with the complainant Muhammad Ishaq over some money matter, as I took Rs,3,000 as loan from the complainant and had returned Rs,1,000 before the alleged occurrence and Rs,2,000 were yet to be paid to the complainant. The complainant called me in the police station from my shop situated in Safdarabad and forced me to make the payment of the balance amount forthwith. At that time I requested to the complainant that presently I have no money and sought for sometime but the complainant in connivance with the police got me involved in this false case. I was not apprehended at the place of occurrence and nothing was recovered from me as stolen property. The depositions of the P.Ws. are based on enmity."
He declined to make statement under the provisions of section 340(2), Cr.P.C. in disproof of the allegation levelled against him. However, he examined one Muhammad Afzal as D.W.1 who made a statement in the following words:-- "I am cloth seller at Mandi Dhaban Singh. The accused present in the Court used to sell the shoes in a shop which is situated at a distance of two shops from mine. The accused present in the Court took Rs,3,000 from Ishaq complainant for fifteen days but could not return the same within the stipulated period. Ishaq complainant called me and asked me that if Yaseen had not returned the amount, in that event I will get a case registered against him. Thereafter, about 3/4 days the accused present in the Court made the payment of Rs,1,000 to Ishaq complainant and promised to pay the balance amount within two months but hardly six days had expired, the police arrested Yaseen accused from his shop. At about evening it came to my knowledge that a case of theft stands registered against him."
5. We have heard the learned counsel for the parties and have perused the record with their assistance. Learned counsel for the appellant submitted that award of the sentence of Hadd punishment of amputation of right hand to the appellant was not in conformity with the Injunctions of Islam as the learned trial Court has made no Tazkiyah-Tulshahood which is mandatory in such like cases. He also made submissions in respect of Hirz and submitted that there was no evidence about anybody seeing the appellant/accused on entering the Hirz. He further submitted that no effort was made to ascertain the value of stolen property and confirm whether it was equivalent to the prescribed 'Nisab' at the time of commission of offence. Learned counsel for the State, while agreeing with the above contentions, supported conviction of the appellant under section 380, P.P.C. and under section 411, P.P.C.
6. We have minutely gone through the evidence-on-record and have found that the case of prosecution rests on the statements of Muhammad Ishaq (P.W.1), Muhammad Ajmal (P.W.3) and Abdul Jameel (P.W.5). All the aforesaid persons are eye-witnesses. Out of them P.W. 1 Muhammad Ishaq is the complainant, who is owner of the shop where the accused was found inside. P.W. 2 and P.W.3 are independent witnesses who saw the appellant/accused inside the shop wherein he had landed with the help of a rope, after breaking open the roof, and was caught red-handed with an amount of Rs,2,400 P.W. 3 and P.W. 5 have made consistent depositions to the effect that the said currency notes amounting to Rs,2,400 recovered from the pocket of the appellant/accused were having stamp of 'Ishaq Watch House'. As far as the occurrence is concerned there is no variation whatsoever in the statements of P.Ws. All of them have made statements that are fully consistent in material particulars and suffer from no infirmity. They have been subjected to lengthy cross- examination but their statements have remained unshattered. During cross-examination P.W.1 has admitted that he had extended some loan to the accused, however, he has rejected the suggestion that he had been demanding the return of his loan from the accused prior to the commission of this occurrence. The Tessa with which the roof was broken and iron Chappu with which the drawer was opened were according to P.W.1 and P.W.3 presented to police. P.W.2 has fully supported the version given by the complainant. Both P.W. 1 and P.W. 2 have rejected the suggestion that the accused has been falsely involved in this case on account of some ' lain-dain'.
P.W. 3 Sher Khan Chowkidar has given the details how the thief got inside the shop from its roof side and how he was encircled and apprehended at the spot. The statements of all these P.Ws., inspire confidence and there is absolutely nothing to doubt veracity of their testimonies. In this view of the matter the prosecution has established its case against the appellant/accused beyond any reasonable doubt.
7. However as far as award of Hadd punishment of amputation of right hand is concerned that is not warranted in circumstances of the case, firstly for the reason that the learned trial court has not properly observed requirements of Tazkia-al-Shuhood about the prosecution witnesses, as envisaged under the provisions of section 7(b) of the said Ordinance. The said section reads as under: "S. 7: The proof of theft liable to Hadd shall be in one of the following forms, namely:-- (a)...................
(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 Tazkiya-al-Shuhood, that they are truthful persons and abstain from major sins (Kabair), give evidence as eye-witnesses of the occurrence;"
As is obvious, Tazkiya-al-Shuhood is a must in a Hadd case and it has to be done by the trial Judge himself through competent and honest persons, called Muzakki' or purgators, who should preferably be more than, one in number and should themselves be sane, adult, honest persons with capability to conduct a critical inquiry about antecedents of a witness in order to find out his credibility, piety, besides his unbiased position, with reference to the case wherein he appears as a witness. In the instant case the learned Judge has made the following observations:--- "As far as the allegation under Article 9, Offences Against Property (Enforcement of Hudood)
Ordinance VI of 1979 is concerned, the theft is proved according to the Article 7 of the said Ordinance, because in this case, the victim who is P.W.1 and two other adult male witnesses i,e, P.W.2 and P.W.3 had duly proved the occurrence, as well as the recovery, therefore, the offence under Article 9, Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 is fully proved, because there is nothing on the record, which shows that the requirement of Tazkya-al- Shahood is not fulfilled and the P.Ws. are not truthful persons and also do not abstain from the major sins because the presumption is that every Muslim abstains himself from the major sins unless contrary is proved, so in my view the requirement for the punishment of theft liable to Hadd are fulfilled."
However, that is a general observation which is not sufficient for award of Hadd punishment as neither the learned trial Judge has explained the basis on which he has reached to the said conclusion nor the available record furnishes any proof whatsoever in this respect. The relevant section of law referred to hereinabove contemplates that the Trial Court should go a step forward and adopt various modes of enquiry as are required for Tazkiya-al-Shuhood and must further confirm the unimpeachable character of the witnesses who make depositions in a Hadd case. It is also worth mentioning that the Trial Court did not ascertain the value of stolen property as well.
Provision of law regarding Nisab, as laid down in section 6 of the said Ordinance, are very clearly spelled out and the Trial Court had to bring expert evidence on record about the same and confirm whether or not the stolen amount was equivalent to that Nisab at the time of occurrence. The benefit of doubt on both those aspects shall go to the appellant/accused.
8. So far as the submissions of learned counsel about Hirz are concerned they are not well placed.
Section 2(d) of the said Ordinance defines Hirz in the following words:--- "S.2(d) 'Hirz' means an arrangement made for the custody of property"
As such any place which has a walled enclosure, like the area of which the said shop is, definitely comes within the definition of Hirz. The said shop was locked also. Besides this, it had a watchman also who was doing guard duties over there. It was not an open place which could not be considered as Hirz. Moreover, as is evident from the statement of P.W.1, the appellant/accused had broken the drawer of his table with the help of an iron Chappu. The P.Ws. are consistent that they found the appellant inside the said shop wherein a hole was observed in its roof. So, the place where he was apprehended and the drawer wherefrom he took out the money unquestionably comes within the definition of Hirz and P.W.3 has explained how he landed in the said Hirz.
9. It is pertinent to mention here that no doubt the accused/appellant as found inside the shop, red-handed, with the stolen money that belonged to the complainant. However, he could not get out of the shop and was apprehended then and there. It shows that he remained inside the Hirz and also could not in any manner get benefited by the stolen amount. In our view it is a mitigating factor which justifies reduction in the sentences awarded by Trial Court.
10.The upshot of the above discussion is that the appellant/accused entered the hirz surreptitiously, took away an amount of Rs,2,400 and brought it in his possession by putting it into his pocket. There is no doubt about his identification as he was caught red-handed inside the shop where he had no explanation to be present at that odd hour of the night. The currency notes recovered from his possession were bearing the stamp of the owner/complainant. Independent P.Ws. were examined who gave fully consistent ocular account. Their statements inspire confidence and are fully corroborated by all the above circumstances. The appellant has not been able to shatter their evidence. The defence plea taken by him is absolutely absurd and unfounded.
The statement of D.W.1 Muhammad Afzal who appeared in his defence, reproduced hereinabove, does in no way advance his case. However, in the absence of Tazkiya-alShuhood about P.Ws. and non-compliance of the requirements of provisions of law regarding Nisab by the Trial Court, the sentence of Hadd awarded to the appellant is not maintainable and the sentence of Tazir under section 380, P.P.C. in view of the aforementioned mitigating factor, needs reduction in the interest of justice.
11.Consequently, for the reasons stated above we partly allow this appeal of Muhammad Yasin son of Muhammad Amin, set aside the sentence of hadd with regard to ' amputation of right hand' and acquit him of the charge. However, we maintain his conviction and sentence of three years R.I., under section 411, P.P.C. We also maintain his conviction under section 380, P.P.C., but reduce the sentence of his imprisonment to five years rigorous imprisonment with a fine of Rs,2,000 or in default of payment of fine to further undergo two months simple imprisonment. The sentences of imprisonment under sections 411 and 380, P.P.C. shall run concurrently. The benefit of section 382-B, Cr.P.C. extended by the learned Trial Court shall remain intact.
12.With the above modification in the conviction and sentences this appeal is partially allowed.