' This appeal arises from the judgment dated 29th November, 1979 whereby the Assistant Sessions Judge, Gambat while acquitting three co-accused Niaz Ali, Hazoor alias Hazoor Bux and Ali Murad, convicted appellant Dhano alias Dhani Bux under section 458/323, P. P. C. And sentenced him to suffer R. I. For 41 years and fine of Rs, 2,000 or in default suffer further R. I. For six months on first count and R. I. For six months on second count. The sentences were however, ordered to run concurrently. It was further directed that fine if realized, an amount of Rs, 1,000 from the same shall be paid to complainant Bagh Ali as compensation.
2. The prosecution case briefly is that on 12th May, 1971 at About 1-0 a.m. The complainant Bagh Ali returned from his cultivation where he had gone to look after the flow of water in the field. He saw that one person was standing near the door of the room of his house and on being challanged by him he took to his heels. The complainant, however succeeded in overpowering the culprit. In the scuffle that ensued between the complainant and the thief both parties sustained injuries. The captured thief happened to be the present appellant Dhano alias Dhani Bux. The complainant was alleged to have raised cries of "thief whereupon his brothers Arif and Makan came running. They also got injured by the shots fired from fire-arms by the other unidentified thieves. The appellant however, disclosed the names of his companions to be Niaz Ali, Hazoor alias Hazoor Bux and Ali Murad. It is said that Sohrab, Gulab and several other persons had also responded to the cries.
Although the accused/appellant was successfully caught and detained at the place of occurrence, his other companions made good their escape. Leaving the appellant to the care of other witnesses, the complainant went to Police Outpost Ranipur and lodged F. I. R.
3. Muhammad Maroof, the A. S. I. Incharge of the outpost recorded the F. I. R. In daily diary and forwarded a copy thereof to the Police Station Gambat for incrporation in 154, Cr. P. C. Book.
Thereafter he prepared mash irnama of injuries on person of complainant Bagh Ali Makan and Muhammad Arif in presence of mashirs Nabi Bux and Imam Dino. He also recorded statements of Makan and Muhammad Arif and referred them alongwith complainant to the medical officer for examination and certificate. The A. S. I. Also prepared mashirnama of vardat and secured some lath is from there. He arrested accused Dhani Bux who was produced before him at the vardat. As he had injuries on his person he too was referred to the medical officer for examination and certificate. After completing the necessary investigation the appellant alongwith three co-accused were placed on trial. As there was no evidence worth the name against the co-accused, they were acquitted and the accused/appellant was convicted by the learned trial Judge as mentioned above.
4. Mr. Allahdino Kharal appearing on behalf of the appellant has not pressed the appeal on merits.
He however contended that from the evidence brought on record the offence that has been established against the appellant falls under section 447/323 P. P. C. Therefore, he prayed that the conviction be altered accordingly and the sentenced be reduced.
5. On perusal of the evidence of complainant Bagh Ali, it is clear that he saw the appellant for the first time standing near the door of the room and caught him there. The other eye-witnesses who obviously responded to cries of the complainant also saw the appellant at the place where he was overpowered by the complainant. Thus the accused/appellant had not entered the room when he was caught. However the place of his apprehension was within the compound of the complainant's house. The question would arise if the appellant would still be liable for offence under section 458, P. P. C. As has been held by the learned trial Judge. S. 442, P. P. C. Which defines "house-trespass" reads as under : "Whoever commits criminal trespass by entering into or remaining in any building tent or vessel used as 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."
6. As pointed out above the accused/appellant was seen and caught outside the room.
Consequently he could not be held to have entered in a building within the meaning of the above section and would not liable, for house-trespass in any shape or form. Since he had entered the compound of the complainant's house he had committed criminal trespass punishable under section 447, P. P. C. The maximum punishment awardable for which offence is three months.
7. The accused/appellant was further alleged- to have caused injuries to the complainant. As certified by the medical officer all the injuries found on person of the complainant were caused by blunt substance and were simple in nature. Consequently the appellant would be liable under section 323, P. P. C. For the injuries caused by him to the complainant. Thus the submissions made by the learned counsel for the appellant are not without force. The learned A. A:-G, also concedes to this position. Accordingly I hold the accused guilty under section 447/323, P. P. C. And alter the conviction accordingly.
8. The learned A. A.-G. Has informed that the accused/appellant has remained in Jail for nearly 2 years l years as under trial prisoner and about 1 year as a convict. In view of alteration of the conviction, from under section 458/323, P. P. C. To section 447/323, the sentence awarded to the accused/appellant by the trial court is reduced to the one already undergone by him.
9. For above reasons the appeal was accepted to the extent mentioned above by the short order, dated 17th November, 1982 and the appellant being on bail, his bail bond was ordered to be cancelled.