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Criminal Appeal No.67 of 1980, heard on 19th September, 1984.

‑‑‑S. 451‑‑House‑trespass in order to commit offence‑‑All eye‑witnesses related to each other; evidence highly contradictory and in conflict with each other; Danda said to be in possession of accused not mentioned in F.I.R. and accused apprehended on a street adjoining to a house‑‑Held: Street being not a dwelling house and evidence produced by prosecution being discrepant, inconsistent and not reliable, no offence under S.451, P.P.C. was made out.

‑‑‑ Duty of Court‑‑Judges are supposed to pass judgment dispassionately and strictly in accordance with law‑‑Sessions Judge convicting accused under S. 451‑B, P.P.C. when in fact there was no provision like 451‑B in the Pakistan Penal Code‑and when prosecution had failed to prove what the case and what the offence was, held, had failed to apply his judicial mind‑‑Observations of Sessions Judge in his judgment: " ....they are remanded to the Central Prison, Hyderabad to have jolly good time together" and further on " ..... allowing them to go scot free would have amounted to paying them premium for prostitution or awarding them a medal of gallantry for cowardice" actually having no connection whatsoever with merits and facts of the case were not only most uncalled for but not in good taste‑‑Warning administered to Sessions Judge.

Rashid Ahmed for Appellants.

Niaz Ahmed for the State.

Date of hearing: 19th September, 1984.

This appeal is directed against the impugned judgment dated 27‑2‑1980 of learned Additional Sessions Judge Dadu at Kotri, whereby he has convicted all the four appellants under section 451‑B, P.P.C. read with section 34, P.P.C. and has sentenced each to R.I. for one year and a fine of Rs.300 in default further R.I. for six months.

2. Briefly stated the prosecution case is that all these four appellants are police Constables and on 16‑7‑1979 at about 1‑15 a.m. they were found on the street leading to the house of complainant Ghulam Akbar and as several persons assembled and attempted to catch hold of them, two constables were arrested who gave their names as Ali Ahmed and Imdad Ali and the remaining two others made good their escape. Apprehended Constables disclosed the names of absconders as Rajab Ali and Ahmed Khan. Complainant party took the apprehended Constables to the Police Station Kotri where F.I.R. was lodged by complainant Ghulam Akbar. S.H.O. Allah Bux registered the F.I.R. took in custody appellants Ali Ahmed and Imdad Ali. After a short while complainant and other witnesses brought before the S.H.O. another appellant by name Ahmed Khan. He was also taken in custody and a Mashirnama was prepared. At the Police Station fourth accused Rajab All was already present and since the complainant and other P.Ws. identified him before the S.H.O. he was also apprehended and put into custody. S.H.O. recorded statements of P.Ws. Imam Bux, Muhammad Bux, Karim Bux, Jan Muhammad and Iqbal. He visited the place of incident, which was in the house of complainant situated in Nago Line Colony. He prepared Mashirnama of Wardat. Complainant produced before S.H.0 a 'Danda' from wardat saying that it was left there by the culprits. After completing the investigation, challan was presented in the Court.

3. Prosecution has examined six witnesses in support of his case. P.W.1 is Ghulam Akbar complainant, P.W.2 Muhammad Iqbal and P.W.3 Imam Bux have been examined as eye‑witnesses. P.W.4 Suleman is Mashir who had attested the Mashirnamas of arrest. appellants as Exhs.9‑A, 9‑B, 9‑C and Mashirnama of Wardat Exh.9‑D. This Mashir did not. support the prosecution case and was declared hostile and was cross‑examined by the prosecution. He stated that police did not see the scene of offence in his presence nor recovered any 'Danda'. Police did not prepare Mashirnama of wardat in his presence. Police obtained his L.T.I. on Mashirnama during day time at 10‑00 a.m. and the contents were not read over to him. P.W.5 Abdul Aziz is also Mashir and deposed in the Court that Mashirnama of scene of offence Exh.9‑D was prepared in his presence. He further stated that he was not made Mashir of arrest of appellants and police did not secure any 'danda' in his presence. This witness was not declared hostile which shows that his credibility was not challenged. On 9‑2‑1980, A.P.P. Incharge of prosecution by way of statement closed the side of the prosecution.

4. In their statements under section 342, Cr.P.C. all the four app6llants generally have denied prosecution allegations. Appellant Ahmed Khan has stated that he has been involved due to enmity. On the day of incident he was living in the house of his relative at Mills area Kotri because he had no accommodation in Hyderabad where he was posted. His duty was to take prisoners from Hyderabad to Thatta. At the relevant time he was on public road beside the house of the complainant, who caught him. He told the complainant that he was a constable but the complainant replied that police were thieves. Appellant Rajab Ali stated that on the night of incident he was posted at Police Station Kotri and his duty was at the Malkhana. Some persons came there at 1‑20 a.m. and he asked them to stand away from Malkhana on which they got annoyed. Complainant told him to wake up Incharge of the Police Station as he and other witnesses had brought two accused persons but since the appellant hesitated, the talk became harsh and there was a quarrel. Subsequently A.S.I. Muhammad Mureed who investigated the case falsely involved him in the case. Appellant Ahmed Ali has stated that he was posted at Hyderabad and on the night of the incident had gone to the house of his uncle near Mazar of Baba Salahuddin to Kotri. Appellant Imdad Ali had also accompanied him as he had to collect his clothes from Tip Top Dry Cleaners, Kotri. They both went to the house of his uncle. His real sister Mst. Zohra is married to his cousin and she was ill. Both these appellants stayed in the house of his uncle and while on their way they were on the road near the house of complainant party, the complainant party caught him and objected to his passing from there. Complainant party also caught Imdad Ali and then both of them had been produced at the police station.

5. Appellant Imdad Ali has stated that he had gone with Ali Ahmed to the house of his uncle to enquire about the health of Ali Ahmed's cousin. At night they returned late and were passing by the house of complainant when they were caught and brought to the police station.

6. Now I propose to discuss the evidence of the eye‑witnesses and before I do that I would like to reproduce verbatim relevant paragraph from F.I. R. spotlighting the very first version of incident:

"I alongwith my family reside in Nago‑Line, Kotri. I am working as Tailor Master in Kotri Town. My house has a katcha wall from road side. Towards east is a wall of mats. There are houses of my other relatives in my neighbourhood. The house has a tin door from east for passage. We the neighbours perform guard‑duty turn by turn. Tonight I and others namely Imam Bux and Iqbal were on guard‑duty. At about 1‑15 a.m. we found four persons behind our houses. Whereupon we suspected that they might have come for committing theft. Therefore, I informed about it to my other relatives i.e. Muhammad Bux, Muhammad Jan, Karim Bux and others. We all concealed in the streets and in the bushes. After a short while these persons entered the house. We encircled them. Two persons standing outside succeeded in running from us. We have seen these two accused, who ran away, on the light and will be able to identify them. We asked the names from these captured accused, who disclosed their names as Ali Ahmed and the other disclosed his name as Imdad Ali. They gave the names of absconding accused as Rajab Ali and Ahmed Khan. These captured accused said that they all the four were Police Constables. Thereafter, we have brought these captured accused to the police station in custody. I lodge the complaint. Justice be done. These accused had entered the house with intention to commit theft. We all will be able to identify the absconding accused. Justice be done."

7. P.W.1 Ghulam Akbar complainant has deposed before the trial Court that on the night of incident he, Muhammad Iqbal and Imam Bux were on guard duty in their Mohallah, between 1‑15 and 2‑00 a.m. they saw four persons coming to their Mohallah from roadside. After seeing these persons coming to their Mohallah he (complainant) went to Muhammad Bux, Jan Muhammad and Karim Bux and awakened them. All the four of them then concealed besides. They saw four persons coming into their street towards the house of complainant. Again said two of them came inside the street while the other two kept standing in the corner of the street. Complainant further stated that he and his three companions came out and caught two persons who had come inside their street. The other two persons ran away. The street is blind street and directly leads to their houses. Complainant further claimed that street is private and belongs to them and nobody could enter it. Two persons apprehended gave their names as Ali Ahmed and Imdad Ali. They disclosed the names of the other two as Rajab Ali and Ahmed Khan. It was further claimed by the complainant that he and other witnesses had seen all these four appellants in electric light of the street. Complainant Ghulam Akbar admitted in his cross‑examination that P.W. Iqbal is his masat and P.W. Imam Bux is his relatives. P.Ws. Karim Bux and Jan Muhammad are also his relatives. It is admitted by complainant in cross‑examination that road leading from Kotri Town to Baba Salahuddin's shrine passes from the back side of their houses. There is open space in front of the street in question. It is correct that on the other side of that open space there are houses of Makranis near the National Highway. It is correct that people do pass through the open space. Four accused persons had come from the road that leads to the shrine of Baba Salahuddin from Kotri town. Complainant stated for the first time in the Court that Ali Ahmed had a Ghobata (stick) in his hand when they had caught him. They had produced the Ghobata before the police. Complainant admitted that he did not mention this fact in F.I. R. Complainant has admitted in the cross‑examination that it is correct that there is traffic even during the night on the road by which the accused persons had come to the wardat. He had first seen the accused persons from a distance of about 100 paces. Complainant further stated that he and his other witnesses caught the accused persons after entering into the gate of their street. The two culprits had run away towards Kotri and while they were running away, they had backs towards the witnesses. All the four accused persons were not known to the witnesses prior to the incident. It would be pertinent to point out here that wardat has been changed from house of complainant as stated in F.I.R. to the mouth of the street as stated by complainant in his deposition before the trial Court. It may further be pointed out that complainant in F.I.R. did not give description of the other accused persons who ran away from the spot and could not be arrested. Not even features, heights, sizes and colour of the clothes were mentioned.

8. Now I come to the second eye‑witness P. W.2 Muhammad Iqbal. He was deposed before the trial Court that he, Ghulam Akbar and Imam Bux were on guard duty but were inside of their houses. The houses were situated within the same enclosure. They were sitting behind the walls of their houses from where they could see in and around their houses, but they were not visible to outsiders. Obviously this was not said so by Ghulam Akbar. P.W. Iqbal further stated before the trial Court that at about 1‑15 a.m. he and other witnesses saw four persons coming on road besides their houses. Two of them kept standing on the road and while the other two came off the road and again stated that they came towards their houses. I will pause here to say that it appears from the statement of this witness that the two accused persons when came off the road only then they were stated to be coming towards their houses which proves the fact that houses were not on the road but were off the road. In any case this assertion made by this witness P.W. Iqbal is in contradiction with complainant Ghulam Akbar who has categorically stated that the street is blind street and led to their houses. In any case P.W. Iqbal further deposed before the Trial Court that he, Ghulam Akbar, Muhammad Bux and Imam Bux came out of their houses and encircled those two persons and caught them. They had caught them at the side of their street. The other two accused persons had ran away. This evidence is again discrepant with evidence of Ghulam Akbar and his both versions of incident as reflected F.I.R. as well as deposition before the trial Court. P.W. Iqbal has further stated that after the arrest of these persons, a lot of Mohallah people gathered there and some policemen on duty also came there. Policemen informed these witnesses that persons arrested were not on duty. This witness Iqbal has further deposed that when they were carrying the two accused persons apprehended at the spot to the police station on the way they saw third accused near their house in suspicious condition and they caught him and took him to the police station. So according to the eye‑witness. Iqbal three accused persons were produced at the police station. According to a complainant Ghulam Akbar only two accused namely Ali Ahmed and Imdad Ali were taken to the police station. In this context, I may point out here that P.W.6 Allah Bux S.H.O. has deposed before the trial Court that complainant produced Ali Ahmed and Imdad Ali before him at the police station and he arrested them vide mashirnama Exh.9‑A. After about 20 to 25 minutes complainant and P.Ws. brought another accused Ahmed Khan before him and he arrested him vide separate mashirnama Exh.9‑B.

9. P. W. Imam Bux is also an eye‑witness. He has deposed before the trial Court that on the night of incident he, Ghulam Akbar, Muhammad Bux, Karim Bux and Jan Muhammad were guarding the Mohallah during the night time. This statement is in conflict with the statement of complainant Ghulam Akbar who speak about three persons on guard duty and stated that subsequently he went and awakened Muhamad Bux, Jan Muhammad and Karim Bux. Any way P.W. Imam Bux has further stated before the trial Court that he, Ghulam Akbar and Iqbal were sitting on the roof of their houses while Muhammad Bux, Jan Muhammad and Karim Bux were sitting behind the walls of their houses from where they could see and guard the Mohallah. It may be pointed out here that other two eye‑witnesses Ghulam Akbar and Iqbal do not speak about sitting on the roof of the houses. Imam Bux deposed further that they saw four persons coming towards to the door of their street. They came inside their street, which is in their exclusive possession. No outsider could come in it. He, Ghulam Akbar, Muhammad Bux, Jan Muhammad, Karim Bux and Iqbal encircled the culprits but two of them succeeded in running away while two of them were caught by them. This version is again different from the version of other two eye‑witnesses Ghulam Akbar and Iqbal. Any way this witness Imam Bux further stated that two persons apprehended disclosed their names as Ahmed. Ali and Ahmed Khan. They did not disclose the names of other two who had run away. This witness further testified before the trial Court that they took both the accused to the police station and handed them over to the Police. One of the two who had run away was already present at the police station. This witness has further stated before the trial Court that he had not seen the face of that man but police had got him identified by him. Ghulam Akbar lodged the report of the incident. They came back to their houses at 4‑30 a.m. On the same night, they saw the fourth culprit coming out of the cattle‑pond of Tahir which is near their houses. They encircled him and caught him. They brought him in suspicion to the police station and produced him before the police. In cross‑examination this witness stated that cattle‑pond of Tahir was 100 paces away from their houses. This witness further admitted that there was no light where the two accused were caught by them. This witness further admitted that they had caught two accused persons about 5 paces outside the street.

10. The evidence of these three eye‑witnesses is highly contradictory and unsatisfactory. Versions of these witnesses are in conflict with such other. These witnesses have not supported each other and their evidence is most inconsistent and highly unreliable. These witnesses are related to each other and as such are interested. Why no other independent witnesses were examined when it is claimed that several persons had come to the spot. Why policemen were not examined who had come to the spot after two accused were apprehended. Why Danda was not taken to the police station and produced at the time when F.I.R. was lodged. Why Danda was not mentioned in the F.I. R. at all. Why other two eye‑witnesses in their depositions before the trial Court did not mention about Danda. It is very controversial as to where two accused were initially apprehended. Evidence of witnesses is very inconsistent on this point. First version in F.I.R. is that all the four accused entered the house, then version was changed that two accused had entered who were apprehended and the other two ran away. Second version was that the culprits had come on the street. Third version was that two had entered the street and the other two ran away. The evidence of the witnesses is not consistent 'even on the question whether there was sufficient light or not when the culprits were apprehended. Description of accused who ran away from the spot is not given by near witness.

11. In any case so far the legal angle is concerned street cannot be termed as part of the dwelling house. If it is assumed for the sake of argument that appellants were there on the street which was objected to by the complainant party who apprehended the appellants or some of them then what is the proof that they were there with intention to trespass into the house of complainant or other witnesses to commit an offence. No implements or other instruments or weapons were found in the possession of appellants. Story, of danda is also doubtful and cannot be relied upon. The evidence produced by the prosecution in the trial Court is discrepant, inconsistent and not worth reliance. It does not make out any offence much less offence under section 451‑B, P. P. C . Section 451, P. P. C . contemplates house trespass of which there are two kinds. One is house trespass in order to commit any offence punishable with imprisonment for which the punishment can be upto two years and fine and the other offence is trespass where the intention is to commit theft, here the imprisonment may be extended to seven years. Evidence produced by the prosecution does not show that any one of these two offences was committed. First of all I may mention here that there is no offence like section 451‑B , P. P. C . It .is only 451, P. P. C . I also wonder how section 34 is attracted when the prosecution has failed miserably to prove what the case is and what the offence is. If the intention was to punish attempt to commit the offence then also section 34 P.P.C. will not apply but section 511, P.P.C. could have been invoked to punish attempt when no express provision is made. It is regretable that proper care was not taken to find out with judicial application of mind as to what particular provision of law would apply and what offence is made out. I again feel constrained to point out that the learned Additional Sessions Judge has made observations in the impugned judgment which I reproduce hereunder with disapprobation expecting that in future such observation would not be repeated as the Judges are supposed to pass the judgment dispassionately strictly according to law and merits without showing any slightest possible prejudice against any party no matter who they are The observations in the impugned judgment which are disapproved are as under:‑

"They are on bail. Their bail bonds are cancelled and they are remanded to custody under warrant of conviction to the Central Prison Hyderabad to have jolly good time together there.

In the end I must mention that the learned APP had pressed for conviction of accused Ali Ahmed and Imdad Ali only, as according to him there was no evidence against other two accused, but I do not agree with him for the reason assigned by me for conviction of accused Ahmed Khan and Rajab Ali. In my opinion allowing them to go scot free would have amounted to paying them premium for prosecution, or awarding them a medal of gallantry for cowardice."

12. These observations made above by the Additional Sessions Judge, Dadu are not in good taste and most uncalled for. These observations further actually have no connection whatsoever with the merits and facts of the case. These observations are hereby expunged from the impugned judgment. The impugned judgment is hereby set aside and the appeal is allowed. Appellants are already on bail and their bail bonds are recalled.

K.B.A./A‑145/k Appeal accepted.

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