Theft liable to hadd and tazir PDF

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ABDUL WALI KHAN UNIVERSITY MARDAN TOPIC: THEFT LIABLE TO HADD AND TAZIR

SYED HAMMAD KHAN ROLL NO 831

Table of Contents Introductory Remarks..................................................................................................................................3 Meaning of theft liable to Hadd and Tazir...................................................................................................3 Literal meaning of theft...........................................................................................................................3 Black’s Law Dictionary Meaning of theft................................................................................................3 Literal meaning of Hadd..........................................................................................................................3 Legal meaning of Hadd...........................................................................................................................3 Literal meaning of Tazir..........................................................................................................................3 Provisions of law relating to the topic.........................................................................................................3 Kinds of Hadd.............................................................................................................................................4 Kinds of Theft u/art, 4 Hadood ordinance...................................................................................................4 Theft Liable to Hadd U/S 5.........................................................................................................................4 Essential Ingredient of the Offence..............................................................................................................4 An Adult..................................................................................................................................................4 Surreptitiously commits theft...................................................................................................................5 From any hirz..........................................................................................................................................5 Property valued equal or more than Nisab...............................................................................................5 Knowingly...............................................................................................................................................5 Proof of theft liable to Hadd U/S sec. 7.......................................................................................................5 Commission of theft liable to Hadd by more than one person. U/S.9..........................................................6 Punishment for theft liable to Hadd U/S.9...................................................................................................6 Cases in which Hadd shall not be imposed. U/S. 10....................................................................................6 Cases in which Hadd shall not be enforced. U/S. 11....................................................................................6 THEFT LIABLE TO TAZIRR. U/S. 13.......................................................................................................7 Punishment for theft liable to Tazir. U/S 14.................................................................................................7 Closing Remarks.........................................................................................................................................7 REFERENCES............................................................................................................................................8 2.

The Offence of Zina (Enforcement of Hudood) Ordinance, 1979....................................................8

Links........................................................................................................................................................8

Introductory Remarks The Holy Quran in Sura Al-Maida Ch. B, Verse 38, provides punishment for theft as under “As to be thief, male or female, cut off his or her hands, a mead for which they have earned, exemplary punishment from Allah and Allah is mighty and wise.” Theft may be either liable to Hadd or liable to Tazir. Hadd is a kind of fixed punishment prescribe by God. It can neither be increased nor be decreased by anybody. Whereas any punishment other than Hadd is called Tazir.

Meaning of theft liable to Hadd and Tazir Literal meaning of theft The secretly taking away of another’s property Black’s Law Dictionary Meaning of theft The act of stealing or taking of property without the owner’s consent or fraudulent taking of personal property belonging to another from his possession. Literal meaning of Hadd Literal meaning of Hadd is measure or limit Legal meaning of Hadd In legal terminology it means that: Punishment the limits of which have been defined and fixed in the Holy Quran and Hadith. Literal meaning of Tazir It means any punishment other Hadd

Provisions of law relating to the topic Section 4 to 11 theft liable to Hadd and 13, 14 theft liable to Tazir whereas 15 to 20 of Hadd ordinance vi 1979 relates to offence Haraabah Cross reference Section 378, 379, 380, of PPC, 1860 Section 392, 395 and 397 of PPC

Kinds of Hadd There are 4 kinds of Hadd 1. Theft 2. Zina or Zina bil-Jabar 3. Drinking 4. Qazf

Kinds of Theft u/art, 4 Hadood ordinance There are two kinds of theft under it which are given below 1. Theft liable to Hadd u/art 5 2. Theft liable to Tazir u/s 378 PPC.

Theft Liable to Hadd U/S 5 Section 5 “whoever being an adult, surreptitiously commits, from any hirz, theft of property of the value of nisab or more not being stolen, 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” Explanation NO1: in this section, stolen property doesn’t include property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed. Explanation No 2: Surreptitiously means that the person committing the theft, commits such theft believing that the victim of theft does not know of this action. For surreptitious removal of property, it is necessary that, if it is day-time, which include one hour before sunrise and two

hours after sunset, surreptitious should continue till the completion of the offence, and if it is night, surreptitious need not continue after commencement of the offence. Essential Ingredient of the Offence There are five ingredient of this offence which are: 1. An adult 2. Surreptitiously commits theft 3. From any hirz 4. Property valued equal or more than Nisab 5. Knowingly

An Adult The first important ingredient of the offence of theft liable to Hadd is that the offender must be an adult person. A minor cannot be held liable to Hadd. According to section 2 (a) of the ordinance: “Adult means a person who has attained the age of 18 years or of puberty” Surreptitiously commits theft The second important ingredient of the offence is that the offence of theft liable to Hadd must be committed surreptitiously. A careful reading of explanation 2 of sec 5 reveals that surreptitiously means that the person committing the theft with belief that the victim of theft doesn’t know of his action. If it is day time surreptitious need not continue after commencement of the offence. From any hirz Third important ingredient of the offence is that property must be removed from any hirz. If the property is not removed from any hirz, there is no offence of theft liable to Hadd. A careful reading of section 2/(d) reveals: Hirz means protection or an arrangement made for the custody of property. Property valued equal or more than Nisab

Fourth important ingredient for the offence of theft liable to Hadd is that the property stolen must be valued equal or more than nisab. If such property is less than nisab, then theft will be liable to Tazir instead of Hadd. Illustration: A surreptitiously steels a gold from the shop of B whose value is equivalent or more than the value of Nisab. Knowingly The last ingredient for the offence of theft liable to Hadd is that while committing theft liable to Hadd the accused must be aware that the property which is being stolen by him is or is likely to be equivalent or more than Nisab.

Proof of theft liable to Hadd U/S sec. 7 The proof of theft liable to Hadd shall be in one of the following forms 1. By confession of accused, that he pleads guilty of the commission of theft liable to Hadd 2. By at least two Muslim adult male witnesses, about whom the court is satisfied. Conditions 1) The witnesses of the offence of theft liable to Hadd, must be Muslim. But if the accused is a non-Muslim, the eye witnesses may be non-Muslim. 2) At least two adult eye-witnesses to prove the theft liable to Hadd. 3) If the accused retracts from his confession, then Hadd shall not be applicable. 4) The requirement of Taizkiya-al-Shahood are that they must be truthful persons and abstain from major sins. Commission of theft liable to Hadd by more than one person. U/S.9 If the stolen property is divided equally amongst the accused persons and each of them gets a share which amounts to or exceeds the nisab. Only then every one of them who entered the hirz, would be liable to Hadd.

Punishment for theft liable to Hadd U/S.9 Whoever, commits theft liable to Hadd for the:

1st time: - amputation of his right hand from the joint of his wrist 2nd time: - Amputation of his left foot up to the ankle 3rd time: - He shall be punished with imprisonment for life. Conditions The hands and feet of the convict are not amputated unless Appellant Court confirms his crime. He will undergo simple imprisonment until Hadd punishment is not confirmed. 1) A convict undergoing life imprisonment ender sub-section 3 can be released by Appellant Court, if he sincerely repents of his crime. 2) Amputation of hands and feet shall be executed in the presence of authorized medical officer. 3) If in the opinion of authorized medical officer, the sentence of amputation may cause the death of convict, then the execution of Hadd shall be postponed.

Cases in which Hadd shall not be imposed. U/S. 10 Hadd sentence shall not be awarded in the following situations: 1) Relatives 2) Guests 3) Servant 4) Wild-grass 5) Share 6) Creditor 7) Severe-hunger 8) Surrender

Cases in which Hadd shall not be enforced. U/S. 11 Hadd shall not be enforced in the following cases: 1) Retracted confession 2) Resile of testimony by any witnesses 3) Withdrawal of allegation by victim

4) When left hand or thumb is either missing

THEFT LIABLE TO TAZIRR. U/S. 13 “Whoever commits theft which is not liable to Hadd, or for which proof as mentioned in the sec 17 is not available, or for which Hadd may not be imposed, or enforced under the ordinance, shall be liable to Tazir” Punishment for theft liable to Tazir. U/S 14 Whoever commits theft liable to Tazir, shall be liable to punishment under the following provisions of PPC: U/S 379 Common punishment of theft out of dwelling house, 3 years, with fine, or with both U/S 380 Theft in any building, tent, vessel or dwelling house, 7years or, with fine.

Closing Remarks Hence, as a final description or closing remarks, the crime of theft is the most serious crime against the society. When theft is committed U/S 5 and is proved U/S 7, such theft shall be liable to Hadd and be punished U/S 9 of Hadood ordinance. Where the conditions mentioned U/S 7 are not proved, theft shall be liable to Tazir U/S 13, 14.

REFERENCES 1. Criminal law by CH. Muhammad Tahir Aziz Khan 2. The Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

Links 1. https://en.wikipedia.org/wiki/Hudood_Ordinances 2. https://www.dawn.com/news/626858/the-hudood-ordinances 3. https://criterion-quarterly.com/the-hudood-ordinances-of-pakistan-and-the-denial-of-justice/...