The Offences Against Property (Enforcement of Hudood) Ordinance (VI OF 1979)

The
Offences Against Property
(Enforcement of Hudood)
Ordinance

(VI OF 1979)
[10th February, 1979]
An Ordinance to bring in conformity with the injunctions of Islam the
law relating to certain offences against property

Preamble: Whereas it is necessary to modify the existing law relating to certain
offences against property, so as to bring it in conformity with the injunctions of Islam as
set out in the Holy Qur'an and Sunnah.

And, Whereas the President is satisfied that circumstances exist which render it necessary
to take immediate action ;

Now, Therefore, in pursuance of the Proclamation of the Fifth day of July, 1977, read
with the Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No. 1 of 1977), and
in exercise of all powers enabling him in that behalf, the President is pleased to make and
promulgate the following Ordinance :-

PRELIMINARY

1. Short title, extent and commencement: (1) This Ordinance may be called the
Offences Against Property (Enforcement of 'Hudood') Ordinance, 1979.

(2) It extends to the whole of Pakistan.

(3) It shall come into force on the twelfth day of Rabi-ul-Awwat, 1399 Hijri, that is the
tenth day of February, 1979.


2. Definitions: In this Ordinance, unless there is anything repugnant in the subject or
context,"

(a) "adult" means a person who has attained the age of eighteen years of puberty ;

(b) "authorised medical officer" means a medical officer,, whosoever designated,
authorised by Government;

(c) "hadd" means punishment ordained by the Holy Qur'an or Sunnah;

(d) "hirz" means an arrangement made for the custody of property:

Explanation 1: Property placed in a house, whether its door is closed or not or in an
almirah or a box or other container or in the custody of a person, whether he is paid for
such custody or not is said to be in "hirz".

Explanation 2: If a single family is living in a house, the entire house will constitute a
Single 'hirz' but if two or more families are living in one house Severally, the portion in
the occupation of each family will constitute a separate 'hirz'.

(e) "imprisonment for life" means imprisonment till death;

(f)   "nisab" means the 'nisab' as laid down in Section 6;

(g) "tazir" means any punishment other than 'hadd' and all other terms and expressions
not defined in this Ordinance shall have the same meaning as in the Pakistan Penal Code
(Act XLV of 1860), or the Code of Criminal Procedure, 1898 (Act V of 1898):

3. Ordinance to override other laws: The provisions of this Ordinance shall have effect
notwithstanding anything contained in any other law for the time being in force.

4. Two kinds of theft: Theft may be either theft liable to 'hadd' or theft liable to 'tazir'.

5. Theft liable to Hadd: 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'.

Explanation 1: In this section "stolen property" dos not include property which has been
criminally misappropriated or in respect of which criminal breach of trust has been
committed.

Explanation 2: In this section, "surreptitiously" means that the person committing the
theft commits such theft believing that the victim of theft does not know of his action.
For surreptitious removal of property it is necessary that, if it is day-time, which includes
one hour before sunrise and two hours after sunset, surreption should continue till the
completion of the offence and, if it is night, surreption need not continue after
commencement of the offence.

6. Nisab: The 'nisab' for theft liable to 'hadd' is four decimal four five seven (4.457)
grams of gold, or other property of equivalent value, at the time of theft.

Explanation : If theft is committed from the same 'hirz' in more than one transaction, or
from more than one 'hirz' and the value of the stolen property in each case is less than the
'nisab', it is not theft liable to 'hadd' even if the value of the property involved in all the
cases adds up to or exceeds, the 'nisab'.

Illustrations

(a) A enters a house occupied by a single family and removes from various rooms
property the value of which adds up to, or exceeds the 'nisab'. Such theft is liable to 'hadd'
even though the value of the property removed from any of the rooms does not amount to
the 'nisab'. If the house is occupied by more than one famHy and the value of the property
removed from the 'hirz1 of any one family is less than the 'nisab', then the theft is not
liable to 'hadd' even though the value of the properties removed adds up to, or exceeds,
the 'nisab'.

(b) A enters a house several times and removes from the house on each occasion property
the value of which does not amount to the 'nisab'. Such theft is not liable to 'hadd' even
though the value of the properties removed adds up to, or exceeds the 'nisab'.

7. Proof of theft liable to hadd: The proof of theft >to 'hadd'ShaH be in one of the
following forms, namely: -

(a) the accused pleads guilty of the commission of theft liable to'hadd'; and

(b) at least two Muslim adult male witnesses, other than the victim of the theft, about
whom the Court is satisfied, having regard to the requirements of 'tazkiyah-al-shuhood',
that they are truthful persons and abstain from major sins (kabair), give evidence as eyewitnesses
of
the occurrence
:


Provided
that, if the accused
is a non-Muslim,
the eye-witnesses may
be non-Muslim:



Provided
further that the statement
of the victim
of
the theft
or the person authorised by
him
shall be recorded
before the statement
of the eye-witnesses
are recorded.



Explanation:
In this section,  "tazkiyah-al-shuhood"
means
the mode
of inquiry adopted
by
a Court to satisfy
itself
as to the credibility
of
a witness.


8.
Commission
of theft liable to 'hadd'
by more than one person:
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 or any part thereof.


9. Punishment of theft liable to 'hadd': (1) Whoever commits theft liable to 'hadd' for
the first time shall be punished with amputation of his right hand from the joint of the
wrist.

(2) Whoever commits theft liable to 'hadd' for the second time shall be punished with
amputation of his left foot up to the ankle.

(3) Whoever commits theft liable to 'hadd' for the third time, or any time subsequent
thereto, shall be punished with imprisonment for life.

(4) Punishment under sub-section (1) or sub-section (2) shall not be executed unless it is
confirmed by the Court to which an appeal from the order of conviction lies, and, until
the punishment is confirmed and executed the convict shall be dealt with in the same
manner as if sentenced to simple imprisonment.

(5) In the case of a person sentenced to imprisonment for life under sub-section (3), if the
Appellate Court is satisfied that he is sincerely penitent, he may be set at liberty
on such terms and conditions as the Court may deem fit to impose.

(6) Amputation shall be carried out by an authorized medical officer.

(7) If, at the time of the execution of 'hadd' the authorised medical officer is of the
opinion that the amputation of hand or foot may cause the death of the convict, the
execution of 'hadd' shall be postponed until such time as the apprehension of death
ceases.
10. Cases  in  which   Hadd  shall  not  be imposed : 'Hadd' shall not be imposed in the
following cases, namely :-

(a) when the offender and victim of the 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 the house of his host;

(c) when a servant or employee has committed theft from the 'hirz' of his master or
employer to which he is allowed access;

(d) 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;

(e) when the offender has a share in the stolen property the value of which, after
deduction of his share, is less than the 'nisab';
(f)   when a creditor steals his debtor's property the value of which after deduction of the
amount due to him, is less than the 'nisab';

(g) when the offender has committed theft under 'ikrah' or 'iztrar'.

Explanation: In this clause-

(i)   "Ikrah" means putting any person in fear of injury to the 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 the offender, before his apprehension, has, on account of repentence, returned
the stolen property to the victim and surrenders himself to the
authority concerned.

11. Cases in which Hadd shall not be enforced: (1) 'Hadd' shall not be enforced in the
following cases, namely: --

(a) when theft is proved only by the confession of the convict but he retracts his
confession before the execution of 'hadd';

(b) when theft is proved by testimony, but before the execution of 'hadd', any witness
resiles from his testimony so as to reduce the number of eye-witnesses to less than two ;

(c) when, before the execution of 'hadd' the victim withdraws his allegation of theft or
states that the convict had made a false confession or that any of the eye-witnesses have
deposed falsely, and the number of eye-witnesses is thereby reduced to less than two; and

(d) when the left hand or the left thumb or at least two fingers of the left hand or the right
foot of the offender   are   either   missing   or   entirely unserviceable.

(2) In the case mentioned in clause (a) of sub-sec. (1) the Court may order retrial.

(3) In a case mentioned in clause (b), or clause (c), or clause (d) of sub-section (1), the
Court may award 'tazir' on the basis of the evidence on record.

12. Return of stolen property: (1) If the stolen property is found in the original or in an
identifiable form, or ina form into or for which it may have been converted or exchanged,
it shall be caused to be returned to the victim, whether it is in the possession of, or has
been recovered from, the offender or any other person.

(2) If the stolen property is lost or consumed while in the offender's possession and the
'hadd' is enforced against him the offender shall not be required to pay compensation.

13. Theft liable to Tazir: 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.

14. Punishment for theft liable to Tazir: Whoever commits theft liable to 'tazir' shall be
awarded the punishment provided for the offence of theft in the Pakistan Penal Code
(Act XLV of 1860).

15. Definition of 'Haraabah': When any one or more persons, whether equipped with
arms or not, make show of force for the purpose of taking away the property of another
and attack him or cause wrongful restraint or put him in fear of death or hurt such person
or persons, are said to commit 'haraabah'.

16. Proof of 'Haraabah': The provisions of Section 7 shall apply mutatis mutandis for
the proof of haraabah.

17. Punishment of 'Haraabah': (1) Whoever, being an adult, is guilty of harrabah 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.                          

(2) 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 in sub-section (1), be punished for causing such hurt in accordance
with such other law as may for the time being are applicable.                                          |

(3) Whoever, being an adult, is guilty of haraabah in the course of which no murder has
been committed but 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 of 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 no 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.

(4) Whoever, being an adult, is guilty of haraabah in the course of which he commits
murder shall be punished with death imposed as hadd.

(5) Punishment under sub-section (3) except that under the second proviso thereto, or
under sub-section (4), shall not be executed unless 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 with in the same manner as if
sentenced to simple imprisonment.

(6) The provisions of sub-section (6) and sub-section (7) of Section 9 shall apply to the
execution of the punishment of amputation under this section.

18. 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 be imposed for theft
liable to hadd and the provisions of Section 10 and Section 11 shall apply mutatis
mutandis to such cases.

19. Return  of  property  taken  away  during 'haraabah': The provisions of Section
12 shall apply mutates mutandis for return of the property taken away during haraabah
so, however, that sub-section (2) of the said section shall have effect as if, for the word
Hadd therein, the words "punishment of amputation of death" were substituted.

20. 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 7 is not available, or for which punishment of amputation
or death may not be imposed or enforced under this Ordinance, shall be awarded the
punishment provided in the Pakistan Penal Code (Act XLV of 1860) for the offence of
dacoity, robbery of extortion, as the case may be.

21. Punishment for "Rassagiri", or "Patharidari": (1) Whoever extends patronage,
protection or assistance in any form to, or harbours, any person or group of persons
engaged in the theft of cattle, on the understanding that he shall receive one or more of
the cattle in respect of which the offence is committed, or a share in the proceeds
therefore, is said to commit "Rassagiri" or "patharidari".

(2) Whoever commits "Rassagiri" or "Patharidari" shall be punished with rigorous
imprisonment for a term which may extend to fourteen years, or with whipping not
exceeding seventy stripes, and with confiscation of all his immovable property and with
fine.
22. Punishment for attempt to commit offence punishable by this Ordinance:
Whoever attempts to commit, an offence punishable under this Ordinance, or to cause
such an offence to be committed, and in such attempt does .any act towards the
commission of the offence, shall where no express provision is made by this Ordinance
for the punishment of such attempt, be punished with imprisonment of either description
for a term which may extend to ten years.

Illustrations

(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so
opening the box that there is no jewel in it. He can done an act towards the commission
of theft, and therefore, is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A
fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under
this section.

23. Application of certain provisions of Pakistan Penal Code (Act XLV of I860): (1)
Unless otherwise expressly provided in this Ordinance, the provisions of Sections 34 to
38 of Chapter II, Section 71 and Section 72 of Chapter III and Section 149 of Chapter
VIII of the Pakistan Penal Code (Act XLV of 1860), shall apply, mutatis mutandis in
respect of offences under this Ordinance;

(2) Whoever is guilty of the abetment of an offence liable to Hadd under this Ordinance
shall be liable to the punishment provided for such offence as 'tazir'.

24. Application of Code of Criminal Procedure, 1898 (Act V of 1898) : (1) The
provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall apply mutatis
mutandis in respect of cases under this Ordinance :

Provided that, if it appears in evidence that the offender has committed a different
offence under any other law, he may, if the Court is competent to try that offence and to
award punishment therefore, be convicted and punished for that offence :

Provided further that an offence punishable under Section 9 or Section 17 shall be triable
by a Court of Session and not by a Magistrate authorised under Section 30 of the
said Code and -an appeal from an order under either of the said sections or from an order
under any other provisions of this Ordinance which imposes a sentence of imprisonment
for a term exceeding two years], shall lie to the Federal Shariat Court:

Provided further that a trial by a Court of Session under this Ordinance shall ordinarily be
held at the headquarters of the Tehsil in which the offence is alleged to have been
committed.

(2) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), relating to
the confirmation of the sentence of death, shall apply, mutatis mutandis to confirmation
of sentences under this Ordinance.

(3) The provisions of sub-section (3) of Section 391 or Section 393 of the Code of
Criminal Procedure, 1898 (Act V of 1898), shall not apply in respect of the punishment
of whipping awarded under this Ordinance.

(4) The provisions of Chapter XXIX of the Code of Criminal Procedure, 1898 (Act V of
1898), shall not apply in respect of punishment awarded under Section 9 or Section 17 of
this Ordinance.

25. Presiding Officer of Court to be a Muslim: The Presiding Officer of the Court by
which a case is tried, or an appeal is heard, under this Ordinance shall be a Muslim.

Provided that, if the accused is a non-Muslim, the Presiding Officer may be a nonMuslim.



26.
Saving :
Nothing in this Ordinance shall be deemed
to apply to cases pending before
any Court immediately before the commencement of this Ordinance, or to offences
committed before such commencement.