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Criminal Revision No. 17 of 1983, decided on 27th April, 1983.

---S. 452/439-House trespass-Evidence on record not showing accused made preparation for causing hurt to or assault or wrongful restraint to any person or accused carried any weapon of offence when they forced their entry into house or that they attacked or attempted to attack any of witnesses present in house-Eye-witnesses closely related and not inspiring confidence-Occurrence reported to police with inordinate delay which not satisfactorily explained-- All prosecution witnesses inimically disposed against accused and their testimony not reliable without independent corroboration --Grave doubts created about genuineness of prosecution case-Con viction and sentence set aside.

Zulfiqar Ishaque Lodhi for Appellants

Javid Iqbal Aslam for the State.

Date of hearing: 27th April, 1983.

The four petitioners were tried and convicted by a Resident Magist rate, under section 452/34, P.P.C. and sentenced to one year's R.I. each. They went in appeal before the Additional Sessions Judge, who upheld the order of conviction and dismissed the appeal. Hence this revision petition.

2. Briefly the facts of the prosecution case are that Mst. Shamim Akhtar (P.W. 5), niece of Muhammad Yasin first informant (P.W. 2) was abducted by Pahlwan petitioner for which an abduction case was register ed. During the investigation of that case, she was recovered and restored to the complainant party. She appeared as witness in that abduction case before the present occurrence. On the night of occurrence at about 10-00 p.m. Mst. Shahmim Akhtar, her mother and her uncle Muhammad Yasin (P.W. 2) were present in their courtyard and a lantern was burning nearby, when all the four petitioners trespassed into their house by scal ing over the wall. Pahlwan petitioner exhorted his companions to abduct Mst. Shamim Akhtar forcibly. Muhammad Yasin and other inmates of the house raised alarm as a result whereof Ahmad Yar (P.W. 1) and Mehram Khan (P. W. 3) reached the spot. All the petitioners on seeing the witnesses approaching had run away by jumping over the wall. After about 8 days of the occurrence, the incident was reported at Police Station Kassowal by Muhammad Yasin (P.W. 2) whereupon an F.I.R. Exh. P. A. was recorded by Amir Fayyaz Khan, Moharrir Head Constable on 20-6-1980 at 5-30 p.m.

3. The case was investigated by Muhammad Nawaz, A.S. I. (P.W.4). He arrested all the petitioners and having completed the necessary investigation sent the challan against them to the Court for trial.

4. The prosecution in support of its case examined as many as 5 witnesses. Of them Ahmad Yar (P. W. 1), Muhammad Yasin, first informant (P.W. 2), Muhammad Khan (P.W. 3) and Mst. Shamim Akhtar (P.W. 5), are the eye-witnesses of the occurrence, who had more or less supported the prosecution story. The petitioners' case was of denial simpliciter. However. they examined two witnesses in their defence namely, Nawab (D. W. 1) and Muhammad (D. W. 2) who stated that Mst. Shamim Akhtar P. W. had eloped with Pehlwan petitioner and she had married him of her own free will but she was restored to her parents through the intervention of the Panchayat. They further stated that no such occurrence as alleged by the prosecution had ever taken place.

5. The learned trial Magistrate found the prosecution story as proved and passed an order of conviction against the petitioners, which was upheld by the learned Additional Sessions Judge as indicated above. The petitioners, being aggrieved, have challenged their conviction as well as sentence through this revision petition.

6. I have heard the learned counsel for the petitioners and also perused the record.

7. For a conviction under section 452, P.P.C., the prosecution has to establish that-

(a) the accused made preparation for causing .hurt to or assault or wrongful restraint to any person;

(b) and for any of the said purposes he committed house trespass.

8. I have perused the record with care and find that the ingredient mentioned at (a) above is conspicuously missing from the evidence. In F.I.R. Exh. P.A. Muhammad Yasin (P.W. 2) did not state if the petitioner were armed with any weapon at the time of occurrence or they had assaulted Mst. Shamim Akhtar (P.W. 5) or any other inmate of the house. At the trial he stated in examination-in-chief that the petitioners were armed with sticks and pistol but was confronted with the F. I. R. Exh. P. A. lodged by him with the police where it was not found recorded.) The other witnesses, namely Ahmad Yar (P.W. 1) and Mehran (P.W. 3) also did not say that the petitioners were carrying any weapon at the time of occurrence or that they had attacked or attempted to attack any of the witnesses present in the house of Muhammad Yasin. Of all the persons Mst. Shamim Akhtar P.W., who, according to the prosecution, was the main target was not touched at all. She also did not mention that the petitioners were armed when they forced their entry into the house. In view of these statements of the prosecution witnesses, it hardly needs, a second thought to hold that the charge under section 452, P.P.C. framed against the petitioners has not been established.

9. Learned counsel for the State submitted that an offence under section 448, P.P.C. at least is spelled out from the evidence, because the petitioners had trespassed into the house of Muhammad Yasin (P.W. 2) in an unlawful manner and had caused intimidation or annoyance to him as well as to his family members. I would have agreed with the learned State counsel, if the prosecution witnesses bad otherwise inspired con fidence which is lacking. Admittedly, all the witnesses are closely related; the occurrence was reported to the police with inordinate delay of about eight days which has not been satisfactorily explained and on their own showing almost all the witnesses including Mst: Shamim Akhtar were cited as prosecution witnesses in another abduction case registered against Pehlwan petitioner who is relative of the remaining petitioners. All the prosecution witnesses are, therefore, inimically disposed towards the petitioners and their testimony cannot be relied upon without any indepen dent corroboration which is wanting in the case. In the circumstances, I have entertained grave doubts about the genuineness of the prosecution case and have no option to accept this revision petition. Consequently, I set aside both conviction and sentence of the petitioners awarded by the lower Courts and acquit them. They be released forthwith if not wanted in any other case.

10. Before parting with this judgment I am constrained to remark that the crucial questions of law and fats involved in this case had not received serious and careful consideration of both the lower Courts. I am sure that they would have come to a different conclusion it they had applied mind to the material appearing on record in the light of relevant provisions of laws, as well as the principles of appreciation of evidence enunciated by the Superior Courts of the country.

M. Y. H. Revision accepted.

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