1. ' The present appeal is directed against the judgment dated 26-6-2003 passed by the Sessions Judge, Kandhkot in Sessions Case No.78 of 1993 Re: State v. Bazi and others. Under the impugned judgment, the learned Judge convicted the appellant under section 460, P.P.C. And sentenced him to suffer R.I. For 5 years. He was further convicted under section 537A(iii) to suffer R.I. For 2 years and directed to pay Rs.10,000 as Daman. The trial Court also convicted him for offence punishable under section 337-F(i), P.P.C. And sentenced him to suffer R.I. For one year and to pay Daman of Rs.5,000 or in default thereof to suffer R.I. For one year. The sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
2. ' Brief facts giving rise to the present appeal are that on 15-4-1993 at 1-30 a.m. The complainant Muhammad Sajj an, deceased .Muhammad Sharif P.Ws. Sher Muhammad, Jumo, Jamaluddin Mir Hassan, Mallah and Abdul Fateh were sleeping in their houses when at about 1-30 a.m. The complainant woke up on the cries of thief-thief. The complainant and deceased Sharif came out from the house and reached in the street where they saw four thieves, who were subsequently identified as Khuda Bux, Khair Muhammad armed with hatchets, appellant Ali Gohar and accused Suhbat armed with Lathies, running away. The deceased grappled with the accused Khair Muhammad but he and accused Khawand Bux caused hatchet injuries to the deceased. Whereas the appellant and co-accused Suhbat caused Lathi injuries to the complainant and P.W. Jumo, who also came there. Other P.Ws. Also came there and then the accused ran away. The Complainant saw the deceased lying dead therefore, he went to the police station and lodged the report. The police after usual investigation challaned the appellant and co-accused in the Court.
3. On 23-8-1995 the trial Court framed the charge against eight accused persons including the present appellant for offences punishable under sections 302, 460 and 324, P.P.C. Read with section 34, P.P.C. During the trial seven accused persons absconded therefore, the case proceeded against the present appellant who pleaded not guilty to the charge.
4. ' The prosecution examined three eye witnesses, Medical Officer, Mashir of Identification Test and Police Officer to support the prosecution case. The appellant in his statement recorded under .
5. Section 342, Cr.P.C. Denied all the allegations of the prosecution and claimed to be innocent. He did not lead any evidence in his defence. Learned trial Judge after evaluating the evidence and hearing the parties counsel convicted and sentenced the appellant as mentioned above under the impugned judgment.
6. ' I have heard Advocate for the appellant, State counsel, and perused the record of this case very carefully. Learned Advocate for the appellant has stated that the provisions of section 460, P.P.C.
7. Are not attracted as the incident took place in the street. He has further stated that the prosecution has failed to prove the case against the appellant as appellant was not identified at the place of incident as clear from the F.I.R. And statement of the complainant; that the other witnesses have falsely implicated the appellant due to tribal dispute between Sabzoi and Chachar tribes. He has pointed out some minor discrepancies in the evidence of the P. Ws.
8. ' On the other hand learned State counsel has stated that the prosecution case has been proved from the oral evidence of three eye-witnesses and identification test of the appellant through complainant. However, he has stated that the provisions of section 460, P.P.C. Are not attracted in the case therefore, he has not supported the conviction and sentence awarded under section 460, P.P.C. But he has supported the conviction for the remaining offences.
9. ' I have given due consideration to the arguments of learned counsel for the parties, gone through the evidence with the help of learned Advocate for the appellant and find that the case rests upon two pieces of evidence viz. Ocular testimony and identification test of the appellant through the complainant.
10. The ocular testimony consists of three eye-witnesses viz. Complainant Sajjan, Sher Muhammad and Sumo. All the three eye-witnesses are injured. They have given same details of the incident as stated in the earlier part of the judgment. However, the complainant has admitted in the cross- examination that in the F.I.R. He did name the culprits as he did know them but subsequently appellant was identified in the Identification Test. The other P.Ws. Stated that the appellant had caused injuries to the injured. All the witnesses were thoroughly cross-examined by the defence counsel but nothing came on record to discredit their evidence. The evidence of complainant and P.Ws. Is corroborated by medical evidence as he found the injuries on the person of the deceased which were caused by hard and blunt substance.
11. ' After scrutinizing of the oral evidence I am of the considered opinion that the prosecution has proved the oral testimony. As regards the Identification Test of the appellant through the complainant, the prosecution examined Mashir Noor Nabi, who categorically stated that the appellant was picked out by the complainant in the Identification Test held before the Magistrate.
12. He was also cross-examined but the cross-examination was on the question of number of dummies and the manner in which the Identification Test .Was held. The Mashir disclosed that there were about 8 or 9 accused persons with whom 30/33 dummies were mixed up air' from those dummies the complainant had picked out the present appellant. The complainant stated that he had identified the appellant in the B Identification Test. Thus the prosecution has also proved this piece of evidence 113 against the accused.
13. As regards the conviction under section 460, P.P.C., suffice it to say that the incident took place in the street. No doubt the evidence has come on the record through P.W. Sher Muhammad that first the appellant and other co-accused committed the offence of lurking house trespass but subsequently they left the said house and the present incident occurred in the street. It is well- settled principle of law that the offence of trespass is committed while remaining in the house as defined under section 441, P.P.C. Once the C offenders leave the house then the offence of lurking house trespass comes to an end. Reliance is placed in the case of Ghulam Ali v. Rasab PLD 1983 SC
135. In the present case the appellant had caused injury to the P.W. After the offence of house lurking house trespass had terminated therefore, the provisions of 460, P.P.C. Will not be attracted hence conviction and sentence awarded under section 460, P.P.C., are set aside.
14. As regards the conviction and sentence about remaining offences, the prosecution has proved the case against the appellant beyond any reasonable doubt therefore, the conviction and sentence awarded under the impugned judgment in respect of remaining offences are maintained. The sentences have been ordered to run concurrently with benefit of section 382-B, Cr.P.C.
15. With the above modification in the conviction and sentences, the appeal is dismissed.