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Criminal Revision No. 109 of 1968, decided on 26th June 1968.

S. 457/511----Attempt to commit house-breaking by night-Accused found making a hole in outer wall of complainant's cow-shed surprised and arrested by prosecution witnesses after a chase-Accused, held in circumstances, had advanced beyond stage of preparation and teas attempting to commit offence under. S. 457-Conviction under S. 457/511 upheld.

In this case the accused has been found to have gone beyond the stage of mere preparation. It is true that there is no direct evidence of his digging the hole. But the chain of circumstantial evidence is so complete that no other conclusion can be reasonably arrived at. He was seen near the hole by prosecution witnesses who had given chase immediately and was caught with the Sindh Katiand torch in his hand and the hole was immediately discovered. All these facts conclusively lead to the conclusion that the accused had advanced beyond the stage of preparation and was making an attempt to commit the offence under section 457 of Pakistan Penal Code. Therefore, the conviction under section 457/511 Pakistan Penal Code has been correctly made.

Walidad alias Walya v. Emperor 6 Cr. L J 44 and Batwa Khan v. Emperor 20 Cr. L J 571 fol.

S. 75----Enhanced punishment ----Section 75 cannot be made applicable to a mere attempt to commit offence.

It has been held in a number of cases that section 75 cannot be made applicable to a mere attempt to commit the offence.

S. 442----House trespass---- "Building"----Definition. It has been held that even a courtyard consisting of a walled enclosure with four rooms opening into it and an outer door to get into it was a building for the purpose of the section. Similarly a walled cattle yard has also been held to be a building.

M. Islam for Petitioner.

Nemo for the State

This revisional application is directed against an order of conviction under section 457/511, P. P. C. and sentence of one year rigorous imprisonment read with., section 75 of Pakistan Penal Code. The prosecution case briefly stated is that the petitioner and two others were surprised by P. Ws. 2 and 3 two Chowkidars on patrol duty at 1-30 a.m. on the night of the occurrence who found them digging a hole in the outer wall of the cow-shed of P. W. Jahir Kazi. The 2 Chowkidars crept up to the three accused persons and suddenly challenged them when all the three ran away but the accused Umar Ali was arrested by P. Ws. 2 and 3 within a short distance with a torch and a Sindh Kati in his hand. P. W. 1 is alleged to have seen him after the arrest. P. W. 5 who was awake owing to the illness of his son, hearing the rew had come out with a loaded gun and fired one shot in the air and the next shot towards the fleeing accused. It transpires that the co-accused was found later with the gun-shot injury and put upon his trial along with the petitioner. On the evidence of these eye-witnesses the conviction was made and sentence passed as stated above. The appeal was dismissed and hence this revisional application.

It has been argued on behalf of the accused petitioner that the offence under section 457 was not made out inasmuch as even accepting the prosecution case the petitioner did not attempt to enter a building as defined in section 442 of Pakistan Penal Code. It has been held that even a courtyard consisting of a walled enclosure with four rooms opening into it and an outer door too get into it was a building for the purpose of the section. Similarly a walled cattle yard has also been held to be a building. The definition of building as such is not given in section 442 of Pakistan Penal Code. What has been stated by the Legislature is that whoever commits criminal trespass by entering into or remaining in any building tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house trespass." The evidence in this case is to the effect "that a portion of the outer wall-cum -boundary wall of the cow-shed" had been sought to be broken into. Therefore it is not correct to say that the place into which the attempt to enter by night was made was not a building. Reference has been made to the case Walidad alias Walya v. Emperor (6 Cr. L J 44) where the accused was found on roof of the house with implements for burglary when it was held that mere presence on the roof of the house could not amount to offence under section 457 and their Lordships were pleased to convert the conviction under section 457/511, to one under section 447, Pakistan Penal Code. But in the same judgment it has been observed in order to apply section 511 Pakistan Penal Code, it was not enough to show that the accused was merely on the roof but the prosecution must show that there was an attempt to enter; likewise that an act was done as such attempt towards the commission of the offence. As there was no evidence in that case to show that the accused had either commenced to dig a hole on the roof for the purpose of effecting his entrance inside the room or had otherwise commenced an act for getting into any portion of the premises he could not be said to have been guilty of an attempt to commit the offence of house trespass but was merely guilty of only reaching the preparation stage. The said ruling has been followed in the case of Batwa Khan v. Emperor (20 Cr. L J 571).

I, respectfully follow these rulings and I find that in this particular case the accused has been found to have gone beyond the stage of mere preparation. It is true that there is no direct evidence of his digging the hole. But the chain of circumstantial evidence is so complete that no other conclusion can be reasonably arrived at: He was seen near the hole by P. Ws. 2 and 3 who had given chase immediately and was caught with the Sindh Kati and torch in his hand and the hole was, immediately discovered. All these facts conclusively lead to the conclusion that the accused had advanced beyond the stage of preparation and was making an attempt to commit the offence under section 457 of Pakistan Penal Code. Therefore the conviction under sections 457/511, Pakistan Penal Code has been correctly made.

The next question is whether the trial Court was entitled to resort to section 75 of the Code. It has been held in a number of cases that section 75 cannot be made applicable to a mere attempt to commit the offence. I respectfully follow these decisions and hold that the resort to section 75 in this case was illegal.

In these circumstances I maintain the order of conviction and sentence under section 457/511, Pakistan Penal Code and reduce the sentence to six months' rigorous imprisonment. With this modification in the order of sentence the rule is discharged.

Sentence reduced.

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