1. The petitioner was tried in a case FIR No, 473 dated 12.9.2003 registered under Sections 397/459 PPC at Police Station Ganjmandi Rawalpindi. Learned trial Court had convicted the petitioner under Section 459 PPC and sentenced him to four years RI only. The petitioner has challenged his conviction before the lower appellate Court/A.D.J. Rawalpindi, who, vide his judgment dated 31.1.2005 dismissed such appeal. Both the orders of Courts below have been assailed through this petition.
2. 2.I have heard the learned counsel for the parties and perused the record.
3. 3.The petitioner was challaned under Sections 397 and 459 PPC to the Court of competent jurisdiction to face trial. The trial Court had charge-sheeted the petitioner under Section 397 PPC only on 5.6.2003. The. Court had recorded the prosecution evidence and the statement of the petitioner under section 342 Cr.P.C, thereafter, the trial Court had convicted the petitioner under Section 459 PPC with the observation that offence under Section 397 PPC is not proved against the petitioner.
4. 4.In Paragraph No, 9 of the judgment of the trial Court it has been observed as under:-- "Although accused was charge-sheeted u/S. 397 PPC. Yet perusal of evidence reveals that no robbery was committed and nothing was stolen and no robbed property or articles have been recovered from the accused. Hence, I am of the view that offence under Section 397 PPC is not proved against the accused."
5. Despite the above said observation, the accused-petitioner was convicted under Section 459 PPC other than the charge-sheeted offence.
6. 5.This question had been dealt with by a Full Bench of Federal Shariat Court in case of Pir Imtiaz vs. The State (2005 P.Crl.L.J. 721), wherein, taking into consideration the provisions of Sections 237 & 238 Cr.P.C. it has observed as under:-- "A person charged with one offence, cannot be convicted of another unless it is doubtful as to what offence is made out against the accused and the offence is cognate to, or a part of or attempt to commit the principal offence, with which the accused was originally charged."
7. 6.The petitioner has taken the defence "that daughter of the complainant was interested to marry with him and on the night of occurrence the complainant who is father of Nadia after seeing the accused Abdul Waheed with Nadia fired at Abdul Waheed outside the house on road and later on dragged with into his house and concocted a false story". Even otherwise, there is no proper evidence, establishing the injury sustained by any injured person at the hands of the petitioner. The trial Court has also taken the same view observing that the prosecution has failed to exhibited X- rays of injured persons during evidence, hence the accused cannot be convicted for injuries he caused to Sakhi Muhammad and Muhammad Irshad.
8. 7.Section 459 PPC: contemplates as under:--Whoever, whilst committing lurking house-trespass or house-breaking, causes hurt to any person or attempts to commit Qatl of, or hurt to, any person, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to the same punishment for committing qatl, or causing hurt or attempting to cause qatl or hurt as is specified in Chapter XVI of this Code."
9. Lurking house-trespass has been defined in Section 444 PPC which is as follows:-- 444. Lurking house-trespass by night: Whoever commits lurking house-trespass after sun set and before sunrise, is said to commit "lurking house-trespass by night."
10. 8.As per the defence version, the petitioner had not entered into the house or committed lurking house-trespass in the house of the complainant with criminal intention. From the above, it is proved to be a case of two version and in a case of such like nature, the salutary principle of law is that both the versions, one put by the prosecution and other 'introduced by the defence are to be put in juxta position and then it is to be ruled that which version is correct. The law as settled by the Hon'ble Apex Court of the country is that if the defence version is proved or accepted then prosecution case would stand shattered and discredited.
11. 9.The prosecution evidence when considered in juxta position with defence version, it seems that the prosecution has failed to bring home the guilt of the convict petitioner beyond and shadow of doubt and the prosecution evidence when tested on the touch stone laid by the Apex Court, edifice, erected by the prosecution crumbles down and falls to the ground like he house of cards and in no way, would be taken to have been established by the data and the material on record.
10. In the light of the above discussion, the prosecution has miserably failed to prove the guilt of the accused under Section 459 PPC and since the petitioner was not charge-sheeted under the said offence, therefore, the conviction and sentence awarded by the trial Court is not sustainable in law, hence, set aside. Resultantly, this petition is accepted. The petitioner is acquitted of the charge and he shall be released forthwith if not required in any other case.