1983 PLP 630 (SCMR)

B. H. Chowdhry, Advocate‑on‑Record for Petitioner. Date of hearing : 26th February, 1983. MIAN BURHANUDDIN KHAN, J.‑This petition seeking leave to appeal, under article 203‑F of the Constitution is directed against the judgment and order of the Federal Shariat Court dated 29th June, 1982 in confirmation of the judgment and conviction passed on 13th October, 1981 by the Learned Additional Sessions Judge, Sahiwal under S. 9 of Offences Against Property (Enforcement of Hudood) Ordinance No. 6 of 1979 where by right hand of the accused‑petitioner Ghulam Ali was ordered to be amputated from the joint of his wrist.

2. According to the prosecution case, on 25th August, 1979 at 12.00 noon Muhammad Ibrahim, P.W. 1 was present in his house when he heard an alarm of `Char' `Char'. He rushed towards the mosque from where the noise was coming and found the accused‑petitioner, alongwith the wall clock of the mosque, to have been caught hold of by Muhammad Hussain and Muhammad Siddiq P. Ws. and was told that the accused‑petitioner had removed the clock from the wall of the mosque and was caught by them (P.W. 3 and P.W. 4). The petitioner was brought to the police station by Muhammad Ibrahim where he lodged the report Exh. P. A. The clock was taken into possession vide Memo. Exh. P. B. and the accused‑petitioner was formally arrested.

3. The prosecution examined four witnesses namely Muhammad Ibrahim, P.W. 1, Shah Nawaz, A.$.I., P.W. 2, Muhammad Siddiq P.W. 3 and Muhammad Hussain, P.W.

4. The learned trial Judge also examined two C.Ws. namely Muhammad Sharif, C.W. 1 and Abdul Majeed C.W.

2. Muhammad Sharif proved the value of `nisa6' and stated that the clock is of the value of 4,457 grams of gold on 25th August, 1979. C.W. 2 Abdul Majeed a watch dealer, when examined, said that the price of the clock was about Rs.

750. The learned Additional Sessions Judge, after following the formalities regarding the competency of the witnesses under the Islamic Law, awarded the punishment of the amputation of the right band of the accused‑petitioner from his wrist. under S. 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The convict filed an appeal but the same was rejected by the Federal Shariat Court vide the impugned judgment and his sentence was confirmed.

4. Learned counsel for the petitioner urged before us that the stolen clock was not in possession of any of the witnesses but was in the `hirz' of Khadim' of the mosque who was sleeping at the time of occurrence and, therefore, none of the witnesses was competent to depose against the petitioner to sustain a conviction under S. 9 of the aforesaid Ordinance; that the number of witnesses necessary to prove the offence has not been examined ; that the value of the stolen clock would also need re‑examination as the none of the witnesses had stated anything regarding the depreciation in the value of the :lock since the date of its purchase.

5. The questions raised by the learned counsel and other related questions need examination. We grant leave. Operation of the impugned order is suspended till the final decision of the appeal. Stolen clock and all the records of both the trials and other proceedings be available on the date of hearing of appeal. The appellant and the P.W. assessing the value of the clock shall also be in attendance. Leave granted.