' ABDUL WAHEED SIDDIQUI, J.--- Appellant has assailed a judgment delivered on 24-9-1997 by the Court of Sessions Judge, Lasbella whereby he has been convicted under section 9(1) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, hereafter to be referred to as the said Ordinance, and has been punished with amputation of his right hand from the joint of the wrist. A Criminal Reference No,4/Q of 1997 has also been made by the trial Court for confirmation and execution of the sentence.
2. Story of prosecution, succinctly, is that a complaint Exh.P.1/A was lodged on 4-4-1997 at 1-15 p.m.
By one Muhammad Hanif (P.W.1) at Police Station Hab District Lasbella, Balochistan alleging therein that he is owner of one barber's shop in the Main Bazar of R.C.D. Road. One person, by name Haji, usually comes for taking bath at his Hamam came to take bath in the month of Ramzan on the day of incident and went inside the bathroom. Another person also went after him who could be identified on seeing. Soon afterwards that person went out. In the meanwhile Haji started crying from inside the bath room that some one had taken out Rs,23,500 from the pocket of his Shalwar.
The complainant, his brother Ashraf and some other persons present started running after the culprit, but he escaped. The victim Haji made the complainant responsible for the theft as it was committed in his shop. Since the theft was committed in his shop, therefore, his profession and good name were affected his brother remained in search of the offender. On the date of complaint his brother Ashraf informed him that the culprit was available at Sakran stand. He went to that place and found him to be the same person. The culprit was apprehended who disclosed his name to be Abdul Jalil. He was brought at police station and the complaint lodged. F.I.R. Was immediately recorded.. After completion of investigation appellant was challaned. He was charged on 2-9-1997 under Article 9/14 of the said Ordinance to which he pleaded guilty and made a request for a lenient view. Earlier, during investigation, also the appellant/accused had made a confessional statement under section 164, Cr.P.C. On 12-4-1997 before the Court of Judicial Magistrate, Hab.
3. Muhammad Hanif (P.W.1), the complainant and Haji (P.W.2), the victim, were examined. P.W.1 was crossed and the reply was in the following words:--{URDU TEXT}} ' In spite of chance provided, no cross was made upon P.W.2. However, ' the appellant uttered the following words at the time of the chance of cross was provided:- {{URDU TEXT}} ' During statement under section 342, Cr.P.C. To question No,2, appellant replied as under:-- ' To all other questions, the appellant has replied in affirmative.
4. We have heard the counsel for appellant and State. Mr. Syed Alamdar Raza, counsel for appellant, has contended that in awarding the sentence the conduct of the accused should be kept in view. In the present case, immediately after arrest the appellant/accused confessed and next day he made his confessional statement under section 164, Cr.P.C. Which is clearly a statement of repentance indicating the offence having been committed under "Ikrah" as defined in clause (i) to Article 10 of the said Ordinance. According to him repentance purges the sinner. He has also contended that without the closure of the evidence of prosecution, statement under section 342, Cr.P.C. Was recorded which is in violation of the procedure as laid down in Cr.P.C.
Another contention is about undue unexplained delay in lodging F.I.R. Mr. Qari Abdul Rashid, the learned counsel for State has contended that the stolen property exceeded the value of 'Nisab', was under 'Hire, was taken away surreptitiously by an adult and sane person and the accused pleaded guilty of the commission of theft liable to Hadd. Consequently, the offence committed stands proved beyond reasonable doubts for awarding Hadd punishment. He has supported the impugned judgment.
5. At the outset, we have pondered about the constituent parts of the Article 5 of the said Ordinance which reads as under:-- "5. Theft liable to Hadd.--- 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 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."
' A plain reading of this article computes the following ingredients of this Article:--
(1) The offender should be adult.
(2) The offender commits the offence of theft surreptitiously.
(3) The stolen property was in Hirz at the time of the occurrence of offence.
(4) The stolen property is not a stolen property itself.
(5) The offender commits the offence knowing that the property which is being stolen is or is likely to be of the value of the Nisab or more.
' From the evidence brought on the record it is clear that the appellant was adult within the meaning of Article '2(a) of the said Ordinance. It is also clear that he has committed the offence of theft surreptitiously as per Explanation 2 to Article 5 of the said Ordinance and that the stolen property was in Hirz within the meaning of Article 2(d) of the said Ordinance which reads:- : Hirz' means an arrangement made for the custody of property,"
' It is also neither alleged nor proved that the stolen property was not in itself a stolen property. Out of the five ingredients of the offence of theft liable to Hadd four are constituted as discussed. The fifth constituent part is in doubt. It is clear from the record that at the time of the commission of offence, appellant was neither in the knowledge that the property which was being stolen is of the value of Nisab or more nor he had an idea that it was likely to be of such a value, the value of Nisab, being 4.437 grams of gold or the property of equivalent value.
' Haji (P,W.2), the victim has deposed as under:- {{URDU TEXT}} This deposition and the circumstances of the case do prove beyond reasonable doubt that the offence was committed in such a haste that the offender was not likely to know that cash he was stealing exceeded the value of Nisab. This being so, then the fifth ingredient of the theft attracting Hadd punishment is missing. We have before us the principles of withholding Hadd punishments for slight doubt as laid in the Smith of the Holy Prophet, Following are the Sultan, inter anti, which make us reach the conclusion that theft which has been committed is not liable to the punishment of Hadd as laid down in Article 9 of the said Ordinance. {{ARABIC TEXT}} ' Hnzrat Abu Huraiara narrated from the Holy Prophet (p.b.u.h.) who directed to withhold Hudood as much as possible (Musnad Abu-Yaall) {{ARABIC TEXT}} ' Hazrat Aisha (R.A,) narrated that the Holy Prophet (p.b.u.h.) directed to withhold Hudood from the Muslims as much as possible and in case he has a way to be brought out of it, then leave his way and (this is because) if the authority makes a mistake in acquittal, it is better than to make a mistake in conviction (Sahih Tirmizi).
Once proved that the offence of theft committed is not constituted to be a theft liable to Hadd then it is falling within the meaning and scope of Article 13 punishable under Article 14 of the said Ordinance. Both these articles read as under:- 1113 Theft liable to Tazir..- Whoever commits theft which is not liable to Hadd or for which proof in either of the forms mentioned in section 7 is not available, or for which Hadd may not be imposed or enforced under this Ordinance, shall be liable for Tazir.
14. tunilhingulallugfilabILICAt,... Whoever commits theft liable to Tazir shall be awarded the punishment provided for the offence of theft in the Pakistan Penal Code (Act XLV of 1860)."
In the circumstances of the present case we find that the offence committed is falling within the meaning and scope of section 380, P,P,C, consequently, we hereby set aside the impugned judgment of the punishment of Hadd and convict the appellant under section 380, P.P.C, and sentence him to LI, for 3 years and a fine of Its.20,000 in default of payment of which he shall have to undergo S.I. For one year more. In case of recovery, 1/2 of the recovered amount shall be paid to the victim under section 544, Cr.P.C. Benefit of section 382-B, Cr.P.C, is also extended to him. The appellant has been in custody as a prisoner of simple imprisonment. This period shall be calculated as If he has been under rigorous imprisonment. The appeal is dismissed in terms as above,