Theft Liable to Hadd | Hudood Laws

INTRODUCTION

Theft, liable to Hadd is included in The Offences Against Property (Enforcement of Hudood) Ordinance, 1979. It is the modification of the existing laws against property in order to bring the commission of certain offences within the injunctions of Islam. It is also known as Sarka.

RELEVANT PROVISIONS

Sections 4 to 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

CROSS-REFERENCE

Section 378 to 382 of PPC
Article 203-C of the Constitution of Pakistan 1973.

DEFINITION OF THEFT

According to Section 378 P.P.C, 1860;

Whoever intends to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking is said to commit theft.

KINDS OF THEFT

According to Section 4 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, there are two kinds of theft.

A) Theft liable to Hadd

B) Theft liable to Tazir

A) THEFT LIABLE TO HADD

According to Section 5 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, theft liable to Hadd is defined as

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.

ESSENTIAL INGREDIENTS

Following are the essential ingredients the presence of whom must be proved in order to prove theft liable to Hadd.

1. THE OFFENDER MUST BE AN ADULT:

In order to constitute theft liable to Hadd it is necessary that the offender must be an adult, while in PPC there is no condition regarding the age of the offender.

2. SURREPTITIOUS COMMISSION OF THEFT:

It is a necessary requirement to constitute theft liable to Hadd that it should have been committed secretly or with the belief that the owner of the property does not have knowledge of the commission of the offence

3. REMOVAL OF PROPERTY FROM HIRZ:

According to Section 2(d) of the Offences against Property (Enforcement of Hudood) Ordinance 1979,

HIRZ: Hirz means “an arrangement made for the custody of property” It is necessary that the property should be removed from any hirz. So, Hirz means not custody but arrangement made for the custody of the property.

So, the property that is kept in a house, even though its doors may not be closed, or kept in a box or any container will be in ‘Hirz

4. VALUE OF STOLEN PROPERTY:

Nisab means an estate or property for which zakat, or legal alms, must be paid. It is mandatory to constitute theft liable to Hadd that the stolen property should be of the value of nisab or more.

NISAB: Nisab for the purposes of theft liable to Hadd under this Ordinance has been fixed at 4.457 grams of gold.

5. KNOWLEDGE OF THE VALUE OF PROPERTY:

Section 5 of the Ordinance, 1979, would not be complete in the absence of the accused’s knowledge of nisab.

6. PROPERTY SHOULD NOT BE ALREADY STOLEN:

To constitute theft liable to Hadd, it is necessary that the property being stolen should not already be a stolen one. It means that where one of the co-accused runs away with the stolen property without dividing the share of each co-accused, it will not amount to theft liable to hadd to the extent of second theft where he alone runs away with the stolen property.

7. CRIMINALLY MISAPPROPRIATED PROPERTY:

Property criminally misappropriated or in respect of which criminal breach of trust has been committed does not include stolen property under Section 5 of the Ordinance, 1979.

PROOF OF THEFT LIABLE TO HADD

According to Section 7 of the Offences against Property (Enforcement of Hudood), Ordinance, 1979 in order to constitute theft liable to Hadd following proofs should be presented:

Confession of Accused: If the accused of theft himself confesses his guilt before the competent court, it is enough proof for holding that the accused has committed theft liable to had

Two Muslim Adult Male Eye-Witnesses: Theft liable to Hadd can be imposed only if there are two male eye-witnesses other than the victim of the crime.

THEFT COMMITTED BY MORE THAN ONE PERSON

Under Section 8 of the Offence against Property (Enforcement of Hudood) Ordinance, 1979;

In case of theft is committed by more than one person, then after dividing the stolen property amongst all of them, every one of them should get the property of the value of nisab, only then every one of them who entered the Hirz, would be liable to hadd.

PUNISHMENT OF THEFT LIABLE TO HADD

Under Section 9 of the Offence against Property (Enforcement of Hudood) Ordinance, 1979:

If theft is committed for the first time: If theft liable to hadd is committed for the first time, the convict shall be awarded amputation of the right hand from the joint of the wrist.
If theft is committed for the second time: If theft is liable to hadd is committed for the second time, the left foot is to be amputated up to the ankle.
If theft is committed for the third time: If theft liable to hadd is committed for the third time, the convict shall be awarded imprisonment for life.

CONDITIONS IN AWARDING PUNISHMENT

Under Section 9 of the Offence against Property (Enforcement of Hudood) Ordinance, 1979;

The punishment shall be imposed after confirmation by the High Court
Punishment can be imposed after consulting an authorised medical officer.
If the amputation can cause death, it can be postponed.

CASES IN WHICH HADD CAN NOT BE IMPOSED

Under Section 10 of the Offence against Property (Enforcement of Hudood) Ordinance, 1979, the following are the cases in which hadd cannot be imposed even if the offence satisfies all the essential conditions to impose hadd.

If the offender and victim are related to each other
If a guest commits theft into the house of his host
If an employee commits theft into his employer’s house
When the stolen property is wild grass, fish, bird, dog, pig, intoxicant, musical instrument, or perishable foodstuffs, for the preservation of which provision does not exist
When the offender has a share in the stolen property the value of which, after deduction of his share is less than the Nisab
When a creditor steals his debtor, property the value of which after deduction of the amount due to him, is less than the nisab
If theft is committed under ikrah or iztrar.

CASES WHERE HADD SHALL NOT BE ENFORCED

Under Section 11 of the Offence against Property (Enforcement of Hudood) Ordinance, 1979;

Following are the cases in which hadd shall not be enforced even if it has been established that theft liable to hadd has been committed.

When theft is only proved by the confession of the convict and he retracts from his confession.
If any of the two witnesses resile from his testimony.
If the victim withdraws his allegation of theft.
When the left hand or left thumb of at least two fingers of the left hand or the right foot of the offender are either missing or entirely unserviceable.

B) THEFT LIABLE TO TAZIR

Under Section 13 of the Offences against Property (Enforcement of Hudood) Ordinance, 1979; Theft would be liable to tazir in the following circumstances:

Where theft is not liable to hadd
Where the required proof in either form as mentioned in Section 7 is not available
Theft is liable to hadd where hadd may not be enforced
Theft is liable to hadd where hadd may not be imposed.

PUNISHMENT FOR THEFT LIABLE TO TAZIR

Whoever commits theft is liable to tazir and shall be awarded the same punishment as provided in the Pakistan Penal Code Under Sections 379 to 382. Where general punishment for theft has been given Under Section 379 i.e.

Imprisonment of either description for a term which may extend to three years
With fine
With both.

CONCLUSION

In order to constitute theft liable to hadd, it should have been committed by an adult, surreptitiously from any Hirz Punishment of theft liable to hadd is fixed by Quran and Sunnah so it cannot be altered in any case. However, situations have been prescribed in which hadd cannot be imposed.

FAQs

Define theft. When it is liable to Hadd? Discuss the kind of proof punishments prescribed for this offence in the Hadood Ordinance.

(2019-A 5 years, 2017-S)

Sarakah or theft in Islamic Law is a distinctive crime from theft under the Pakistan Penal Code. What are its constituting elements to punish a criminal under Sarakah?

(2015-A)

Differentiate between Harabah and Sarakah, along with their respective punishments.