Answer
Theft:
According to Section 378 of P.P.C. “Whoever intending to take dishonestly any movable property out of the possession of any person without that persons consent moves that property in order to such taking, is said to commit theft.”
Ingredients of theft:
There are five ingredients o theft:
(i) Dishonest intention to take property.
(ii) Property must be movable.
(iii) It should be taken out of the possession of another person.
(iv) It should be taken without consent of that person.
(v) There must be some removal of property in order to accomplish the taking of it.
According to High Court Patna (A.I.R. 1921 Patna 390): “It is essential f&, theft, as defined in Section 378, Penal Code, that the removal of the property in question must have been with the intention to take that property dishonestly. In other words the must be an intend to cause wrongful gain to one person or wrongful loss to another person”.
Punishment for theft:
Mere taking without consent does not prove dishonest. According to Section 379 of P.P.C.
“Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both”,
Definition of Haraabah:
The expression wrong1u restraint is defined in Section 399, P.P.C. as under:
“Whoever oluntari1y obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed is said wrongfully to restraint that person.”
Explanation:
When anyone or more persons whether armed or not make show of force for the purpose of taking away the property of another and attack him or course wrongful restraint or put him in fear of death or hurt such person or persons are said to commit Haraabah.
Theft liable to Hadd:
Whoever being an adult, surreptitiously 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’.
Punishments:
According to Imam Abu Hanifa, if someone commits theft:
1. first time, his right hand be cut off.
2. second time, his left foot be cut off.
3. third time, he will be imprisoned.
Theft liable to Tazeer:
According to S. 13 of ‘Enforcement of
d Ordinance:
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 to Tazir”.
Punishment for theft liable to Tazir:
According to S. 14 of cement of Hadood Ordinance.
‘Whoever commits theft liable to “tazir” shall he awarded the punishment provided for the offence of theft in the Pakistan Penal Code (Act XLV of 1860)”.
Section 8 of Enforcement of Hadood Ordinance defines the commission of theft liable to Hadd by more than one person as:
‘Where theft liable to “Hadd” is committed by more than one person and the aggregate value of the stolen property is such that, if the property is divided equally amongst such of them as have entered the “hirz” each one of them gets a share which amounts to, or exceeds the “nisab” the “Hadd” shall be imposed on all of them who have entered the Hirz, whether or not each, one of them has moved the stolen property of any part thereof.”
Definition of Haraabah:
According to Section 15 of cement of Hadood Ordinance:
‘When anyone or more persons, whether equipped with arms r not, make show of force for the purpose of taking away the, property of another and attack him or cause wrongfully restraint or put him in fear of death or hurt such person or
persons, are said to commit haraabah.”
Punishment for Haraabah:
Slight doubt sets aside Hadd punishment 1998, P.Cr.L.J. 383 (FSC), No proper Tazkiya Al-Shuhood done of the two eye-witnesses who even otherwise themselves were the victims. Not to be termed as independent witnesses 1998 P,Cr.L.J. 383 (FSC>.
According to S. 17 of Enforcement:
(a) “Whoever, being an adult, is guilty of “haraabah” in the course of which neither any murder has been committed nor any property has been taken away shall be punished with whipping not exceeding thirty stripes and with rigorous, imprisonment until the court is satisfied of his being sincerely penitent”:
Provided that the sentence of imprisonment shall in no case be less than three years.
(b) Whoever, being an adult, is guilty of ‘haraabah” in the course of which no property has been taken away but hurt has been caused to any person shall, in addition to the punishment provided for sub-section (1) be punished for causing such hurt in accordance with such other law as may for the time being be applicable.
(c) Whoever, being an adult, is guilty of “haraabah” in the course of which no murder has been committed hut property the value of which amounts to or exceeds, the “nisab” has been taken away shall be punished with amputation of his right hand from the wrist and of his left foot from the ankle:
Provided that when the offence 01 “haraabah” has been committed conjointly, by more than one person the punishment of amputation shall be imposed only if the value of share of each one of them is not less than the “nisab”:
Provided further that if the left hand or the right foot of the offender is missing or is entirely unserviceable, the punishment of amputation of the other hand or foot, as the case may be shall not be imposed, and the offender shall be punished with rigorous imprisonment:
Provided further that if the left hand or the right foot of the, offender is missing or is entirely unserviceable the punishment of amputation of the other hand or foot, as the case may be shall not be imposed and the offender shall be punished with rigorous, imprisonment for a term which may extend to fourteen years and with whipping not exceeding thirty stripes.
Whoever being an adult, is guilty of haraabah in the course of tic commits murder shall be punished with death imposed as Hadd.
Punishment under sub-section (3), except that under the second
in there to or under sub-section (4), shall not be executed it is confirmed by the Court to which an appeal from the order of conviction lies and if the punishment be of amputation until it is confirmed and executed the convict shall be dealt within the same is if sentenced to simple imprisonment.
provisions of sub-section (6) and sub-section (7) of S. 9 to the execution of the punishment of amputation under this section.
Cases in which punishment of amputation or death for ‘haraabah’ shall not be imposed or enforced:
The punishment of amputation or death shall not be imposed or enforced for the offence of Haraabah in cases in which Hadd may not he imposed for theft liable Hadd and the provisions of Section 10 and Section 11 shall apply mutatis mutandis to such cases.
Return of property, taken away during ‘haraabah’:
The f Section 12 shall apply mutatis mutandis for return of taken away during haraabah so, however, that sub- section (2) for the said section shall have effect as if for the word n the words “punishment of amputation of death” were substituted.
Punishment for haraabah liable to Tazir:
Whoever commits haraabah which is not liable to the punishment provided for in section 17 or for which proof in either of the forms mentioned in section 17 is not available, or for which punishment of amputation or death may not be imposed or enforced under this Ordinance shall he punishment provided in the Pakistan Penal Code (Act XLV of 1860) for the offence of dacoity, robbery or extortion as the case may be.