PLJ 2021 Cr.C. (FSC) 592
Offences Against Property (Enforcement of Hudood) Ordinance, 1979--
----Ss. 9(1)(2)(3) & 10--Constitution of Pakistan, 1973, Art. 203-D--Shariat petition--Punishment for theft only amputation of hand according to the Holy Quran and Sunnah--Application for challenged punishment of theft--Applicant claimed that this is unislamic-- Without going into further detail we will examine impugned Section 9 in accordance with Article 203-D of Constitution to analyze whether it is in accordance with Islamic Injunction or not as fundamentally required by Article 203-D of Constitution--For reference impugned Section 9(1)(2)(3) of Ordinance is reproduced below for reference:
“9. Punishment of theft liable to ‘Hadd’: (1) Whoever commits theft liable to ‘Hadd’ for first time shall be punished with amputation of his right hand from joint of wrist.
(2) Whoever commits theft liable to ‘Hadd’ for second time shall be punished with amputation of his left foot up to ankle.
(3) Whoever commits theft liable to ‘Hadd’ for third time, or any time subsequent thereto, shall be punished with imprisonment for life.”
The Hadd punishment for theft is prescribed by Allah Almighty in following verse of Holy Quran:
Description: 5_38
As for a man or a woman who commits theft, cut off hands of both to punish them for what they earned, a deterrent punishment from Allah--Allah is Mighty, Wise. (al-Maidah:38)
On basis of verse, Ahadith and practice of Khulafah-ur-Rashedun, quoted above it is agreed upon by Muslim scholars that in first instance right hand of thief shall be cut off, and if he commits it a second time, his left leg shall be cut off--Jurists are in agreement that hand in execution of punishment of Hadd of theft is to be cut from wrist--[Ref: Hidayah, Bidayah wa Sinayah Vol. 7]--Jurists use principle of usul al fiqih to understand meaning of hand in determinate meaning which is called (مقید) instead of indeterminate meaning called (مطلق)-- Dr. Adud al-Qadir ‘Audah also narrated opinion of four schools of thought as discussed by Wahabah Zuhaili in Al fiqh ul Islami wa Addilathu as: “the Jurists are unanimous that word ‘أیدی’ occurring in Quranic verse applies to both, hand and foot--If thief commits offence for first time, his right hand will be cut off--If he commits it a second time his left foot will be amputated--hand and foot both are to be cut from wrist and ankle joints as case may be.” punishment of theft as prescribed in Section 9 of Ordinance is in accordance to Injunction of Islam--[Ref: Fath al-Qadir Vol. 5, Hidaya, Kanz al-Daqaiq, Bidiya wa Sinaya Vol. 7]--Impugned sub-Section 10(a) contains a list of those persons who normally have implied permission of access to place of Hirz of one and other--Like husband and wife, father and son or brother and sister etc--This list of persons is mentioned in Section 10 (a) (i) (ii) (iii) and (iv)--On basis of fore referred verses of Holy Quran of Surah al-Nisa and Surah al-Noor and relevant Ahadith, Jurists have formulated list of relatives which are included in persons having permissible access to Hirz. [Ref:Bidaya wa al-sinaya Vol. 7 p.75, Fath al-Qadir Vol. 4 p.239, al-Ahkam al-sultania p.268] Hence, if they take anything from Hirz it will not amount to theft--Where someone takes out a property in which he has joint ownership will not be punished of Hadd of theft this preposition is based on following Ahadith reported by Ibn I Ubaid (RA) tljat once he was sitting with Hazrat Ali (RA) in a meeting where he was distributing Khums and a person from Hazarmaut stole a hammer of steel form there he was caught and produced before Hazrat Ali (RA) and Hazrat Ali gave a judgment that “his hand will not be cut because he also had share in Khums however he embezzled--Section 10(g) is based upon a general principle of Shariah which is generally applicable In matters related to implementation of Hadd including Hadd of theft also--This section states that when offender has committed theft under ‘ikrah’ or ‘iztrar’ then punishment of amputation of hand as Hadd of theft is not implemented--term ‘Ikrah’ (اکراہ) means coercion or duress it is a general exception regarding applicability of rules and law under Islamic Injunctions--Similarly term ‘Iztrar’ (اضطرار) means ‘considerable urgency constraint’, it is also a general exception to applicability of rules and law--cases of theft in which Ikrah or Iztrar is found punishment of Hadd of theft is not implemented--In Section 10(g) of Ordinance, these terms are explained as:
“In this clause (i) “Ikrah” means putting any person in fear cf injury to person, property or honour of that or any other person; and
(ii) “Iztrar” means a situation in which a person is in apprehension of death due to extreme hunger or thirst;”
Provision contained in Section 10 (h) which states1 that when offender, before his apprehension on account of repentance, has returned stolen property to victim and surrenders himself to authority concerned then in that case Hadd of theft shall not be implemented--This principle of Sunnah explained in a Ahadith--We have thoroughly examined each and every sub-section of impugned Sections 9 and 10 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 from touchstone of Islamic Injunctions--There is no provision in these two impugned Sections which is un-Islamic. [Pp. 604, 605, 606, 610, 615, 616, 618
& 619] A, B, C, D, I, K, L, M & N
Offences Against Property (Enforcement of Hudood) Ordinance, 1979--
----S. 10--Punishment for theft--Injunctions of Islam-- Now we will examine impugned Section 10 of Ordinance from touchstone of Injunctions of Islam--This section fundamentally explicates list of those persons who are exempted from imposition of Hadd punishment for theft even if they take property of some other person without his permission of knowledge--basic reason for this exemption in every case which is enlisted in this section is that, at least one ingredient in their actions is missing to constitute theft liable to be punished for Hadd of theft, like:
i. Firstly, they nay have implied permission to have access to Hirz (the safe custody where stolen thing is kept) being blood relative or being spouse etc.
ii. Secondly, they may have express permission to safe custody i.e. Hirz; as in case of employee or welcomed guest, or being partner in property which is stolen.
iii. Thirdly, situation under which element of Hirz is missing may not constitute theft.
iv. Fourthly, in some case value of stolen property is less than Nisab (minimum prescribed amount of stolen property necessary for imposition of Hadd of theft).
v. Fifthly, if theft is committed under Ikrah or Izterar (under coercion or duress etc.) then punishment of Hadd shall not be implemented--Hence preposition of petitioner that any person who apparently commits theft must be subjected to punishment of Hadd under all and any situation is not correct--When Islam suggests such a severe’ punishment for a crime as of theft then it also gives more stringent rules to be followed for implementation of such punishment.
Section 10 of Ordinance explains cases in which amputation of hand shall not be imposed--impugned Section 10 explains following situation where punishment of Hadd in cases of theft is not applicable:
(1) Where on basis of relation, norm or contract, etc accused, either has implied or express access to Hirz of property.
(2) Where value of stolen property is trivial or in any case it is less than Nisab.
(3) Where over a property there is a claim of joint ownership of parties or accused has some legal lien over property.
(4) Where theft is committed under coercion or duress.
The impugned section is reproduced here:
S. 10. Cases in which Hadd shall not be imposed: ‘Hadd’ shall not be imposed in following cases, namely:
(a) when offender and victim of theft are related to each other as--
(i) spouses;
(ii) ascendants, paternal or maternal;
(iii) descendants, paternal or maternal;
(iv) brothers or sisters of father or mother; or
(v) brothers or sisters or their children;
(b) when a guest has committed theft from house of his host;
(c) when a servant or employee has committed theft from ‘hirz of his master or employer to which he is allowed access;
(d) when stolen property is wild-grass, fish, bird, dog, pig, intoxicant, musical instrument or perishable foodstuffs for preservation of which provision does not exist;
(e) when offender has a share in stolen property value of which, after deduction of his share, is less than ‘nisab’;
(f) when a creditor steals his debtor’s property value of which after deduction of amount due to him, is less than ‘nisab’;
(g) when offender has committed theft under ‘ikrah’ or ‘iztrar’.
Explanation: In this clause--
(i) “Ikrah” means putting any person in fear of injury to person, property or honour of that or any other person; and
(ii) “Iztrar” means a situation in which a person is in apprehension of death due to extreme hunger or thirst;
(h) when offender, before his apprehension, has, on account of repentence, returned stolen property to victim and surrenders himself to authority concerned. [Pp. 606, 607 & 608] E, F & G
“Hirz”--
----Necessary ingriedents--This Hadith explains concept of Hirz and effect of absence of Hirz very clearly--N ecessary ingredient of Hirz to constitute theft liable to Hadd wanes mainly under following situations:
i. Firstly; if act is committed by any of those persons who are given access explicitly to Hirz where thing is kept by owner of thing as in cases of master and servant, or host and guest etc--In presence of such association if someone takes something without permission of its owner it may constitute a crime like, cheating, embezzlement or fraud etc.; but it does not constitute crime of theft liable to Hadd.
ii. Secondly, in addition to husband and wife Muslim Jurists includes all relatives mentioned in verses 22-23 of Surah al-Nisa as Mehrams and in verse 61 of Surah al-Noor in which Allah has mentioned a list of relatives in houses of whom one is allowed to enter and eat there--list of relatives that are allowed to have implied permission of access to Hirz of a person are mentioned in Ayat 61 of Surah al-Noor.
iii. Thirdly, when ths stolen thing is either lying unguarded at a public place or is publicly accessible like hanging fruits of a garden. [Pp. 609 & 610] H
Concept of Nisab--
----C oncept of Nisab is also relevant to a property which is jointly ownec by a person who commits theft and person from whose custody property is stolen--jurists are of opinion that if someone steals a tiling from his partner or from his creditor then his hand will not be cut as a punishment of Hadd--In such cases he may be punished for commission of some other crime but not theft liable to Hadd (Fath I Qadir Vol. 5 p 376-77)--These two concepts of Islamic Law are translated into Section 10 (e) and 10 (f)--Section 10 (e) explains a situation when offender has a share in stolen property value of which, after deduction of his share, is less than ‘nisab’; and Section 10(f) states case when a creditor steals his debtor’s property value of which after deduction of amount due to him, is less than ‘nisab’. [P. 614] J
Petitioner in person.
Date of hearing: 11.11.2020.
PLJ 2021 Cr.C. (FSC) 592
[Original Jurisdiction]
Present: Muhammad Noor Meskanzai, CJ, Shaukat Ali Rakhshani and Dr. Syed Muhammad Anwer, JJ.
IRUM MALIK--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, Islamabad--Respondent
Shariat Petition No. 11-I of 2020, decided on 24.12.2020
0 Comments