' The appeal is directed against the order of conviction recorded by Sub-Judge, Magistrate 1st Class, Bhimber, on March, 10, 1985, under section 457, A P. C. By which the convict was sentenced to 5 years' rigorous imprisonment in addition to fine in the sum of Rs, 5,000.
2. Sajid Iqbal, a Forester posted and residing in Bhimber city, made a report that he arrived at his residence from the Rest House at 10-45 at night and came out of the premises to urinate when he saw the convict entering his premises by jumping over the compound wall. The culprit was peeping inside the rooms from windows and doors of the house. On this, the complainant awoke Abdul Rehman, Patwari, sleeping in other part of the house Both Sajid Iqbal and Abdul Rehman went from different directions and caught the culprit. It was alleged that he entered the premises with the intention of theft. The report was made at 11-15 at the same night of August 19, 1984. The convict was handed over to police. The accused pleaded not guilty. In support of allegation, the pi osecution produced Sajid Iqbal, owner of the premises who caught the culprit red-handed and the the First Information Report, Abdul Rehman, an eye-witness who shared the prize of catching the culprit red-handed, Muhammad Sadiq, Head Constable who made the investigation and Sardar Khan, S. H.
0. In defence, there appeared one Raja Khurshid Ahmed.
3. Mr. Riaz Akhtar, the learned counsel for the appellant, criticised the finding of the trial Court and emphasized that the conviction was bad for :
(I) absence of independent evidence
(ii) failure to produce the police constables who arrested the accused on spot ; and
(iii) evidence of prosecution being inconsistent and self-contradictory. He cited PLD 1978 Kar. 543 and 1977 P Cr. L J.
4. Sajid Iqbal is a forester. He was posted in Bhimber city. He testified that on the night of incident he came home from Rest House at 10-45 p. m. And saw the convict trespassing in his premises by scaling the compound wall from its north-western corner. The convict was found peeping through windows inside the house. He awoke Abdul Rehman, Patwari who was sleeping in the courtyard, in other part of the same premises and by adopting different directions, they caught the convict on spot. The convict was left in the custody of Abdul Rehman, Patwari when Sajid Iqbal went to Police Station to report the incident. He was accompanied by foot constables who took over the custody of the convict and 2 or 3 persons of the locality also arrived at the scene. The names and numbers of the constables were not disclosed nor the same were inquired in cross-examination. But the details of the persons of the locality who arrived at the scene at the later stage, were disclosed on probe in the cross-examination. The prosecution, in its own wisdom, produced direct evidence of the incident consisting of Sajid Iqbal and Abdul Rehman. The other two witnesses, produced by the prosecution were Muhammad Sadiq, Head Constable who made the investigation in the case and the S. H.
0. Who recorded the First Information Report and submitted the challan. Sajid iqbal and Abdul Rehman were cross-examined at length. Both the witnesses corroborated each other in material particulars of the prosecution story. The first objection raised by the learned counsel for the appellant is unsustainable as in present case, Sajid Iqbal and Abdul Rehman, though accepted their inter se relationship, being natural and the only witnesses of the incident, their evidence could not be ruled out. Their testimony attaches credibility in view of the odd time of incident, the place and the manner in which the incident took place. The circumstances accompanying the incident do not suggest presence of independent witnesses. Therefore, it was not prudent to insist upon an independent testimony in the present case. It is an accepted rule of evidence that mere relationship of the witnesses does not discredit their testimony. If otherwise found convincing.
Independent evidence is desired when the interested evidence fails to inspire confidence of Court or is equally balanced in favour of innocence of an accused. This, again, depends upon the facts of each case. In the present case, as mentioned earlier, I am not persuaded to reject the testimony of the witnesses merely because of their relationship.
5. It is partly correct that Sajid Iqbal who made the report, disclosed that after making report, he was accompanied by constables to whom convict was handed over. He failed to mention the numbers of those constables but the defence equally slept over the omission and took no interest to dig out the names or numbers of those constables. Be as it may, it is established that the convict was taken into custody at the premises of Sajid Iqbal. In addition to the testimony of these witnesses, the trend of cross-examination stIggests that the convict was arrested at the premises of Sajid Iqbal. This inference finds support from a suggestion in the cross-examination. It was proposed in cross-examination that the parties quarrelled over payment of Rs, 65 borrowed at the bakery of the accused, whereupon the witnesses took the convict to their house. Though the suggestion was denied but its obvious inference favours the prosecution. The defence failed to smash the prosecution's claim that the convict was taken into custody at the premises of Sajid lqbal and then handed over to the police. Likewise, the defence also was unable to shatter the time of arrest of the convict. Of course, the accused is not duty-bound to plead any defence expressly or impliedly and is eligible to avail the weaknesses of the prosecution but the fact remains that the accused may avail the opportunity of giving an explanation relating to a material particular constituting an offence, in order to succeed in creating doubt in prosecution's version. Here, in the case, the convict-appellant felt satisfied only in pleading not guilty and failed to say that he was arrested at different time and place. In the circumstances, the only evidence available for reaching the truth is the testimony of the prosecution witnesses. In absence of any loophole or inconsistency, the Court has to accept it. The objection of failure to produce the constables and other persons of the locality is untenable as the prosecution cannot be compelled to produce all the witnesses who arrived at the scene subsequent to the incident or were shown to possess knowledge of minor details of the incident. On the other hand, the defence was free to request the Court to summon those persons to support the defence. When this has not been done by the defence, now it is not available to attack the prosecution for its omission to produce the constables and other persons of the locality.
6. The last objection is also devoid of force. It has been already appreciated that the evidence of Sajid Iqbal and Abdul Rehman corroborates each other in material particulars. The discrepancy relating to giving of written F. I. R. Is immaterial, particularly when such discrepancy is not shown to have prejudiced the accused in any manner. It is not a case where the F. I. R. Was given after the preliminary investigation. The only discrpancy is that according to Sajid lqbal, the written report was made earlier when he went alone to the police station, while according to Abdul Rehman, the first report was verbal and was reduced to writing subsequently. On this point, Sardar Khan, S. H. O.
Who recorded the F. I. R. Was the proper witness to be cross-examined. No question about the report was asked from him. On this score, the testimony of Sajid lqbal is corroborated by Sardar Khan, S. H.
0.
7. The trial Court recorded conviction of the appellant under section 457, A. P. C. In order to sustain the conviction under section 457, A. P. C. One of the essentials or requirements to constitute offence under that section, is to specify the precise intention with which the offence of lurking house trespass or house breaking was committed. Sajid lqbal and Abdul Rehman, both omitted to ascribe the intention of committing theft or any other offence contemplated by law. The requiste essentials contemplated under section 457, A. P. C. Are not fulfilled in the present case. Nevertheless, the offence of house trespass, in order to commit offence, has been fairly established. This is so as both the witness s supported each other that the appellant trespassed the premises and was caught red-handed. The next question arising from the proposition was as to what was the intention of the appellant who was attributed house trespass at 10-45 at night, in the month of August. The answer to this proposition was contained in the dictum of Supreme Court in Jane AIam's case (1) in the following words :- "441 Whoever enters into or upon property in the possession of
(I) PLD 1965 SC 640 another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent hereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass'."
' This clearly requires that the act must be done with either one or the other of the intents mentioned therein. In this respect, section 441 is somewhat different from some of the other sections of Penal Code, e. g. Sections 166, 167, 194, 297. 299, 350, 366, 367, 425, 499,504 and 505, in all of which doing of the act with Intent and doing it with a knowledge of the consequence or both is made punishable. The contrast in the language is not without significance. It is also true that knowledge is not the same thing as intent. 'Intent' is stronger than 'knowledge'. But even so it seems to us to be necessary to bear in mind that there can be no direct proof of the intent. It must in all cases be a matter of inference from the nature of the act committed and the circumstances in which it is committed. Therefore, it may even be presumed from acts which are reasonably susceptible of only one interpretation or from acts which with practical certainty lead to that inference. This is, however, a matter of evidence and, as such, the rule of evidence that a person intends the natural and inevitable consequences of his own acts is equally applicable. The Court may, if it finds that the trespasser knew that his act was practically certain in the natural course of events to cause insult or annoyance to the owner of the property, infer that the intent was to insult or annoy. It is not bound to accept that statement of the accused as to his intention but the accused may be proving an independent object of the trespass to dislodge this inference.
' Sir John Beaumont did not, in our opinion, lay down any different principle, for at another portion of his opinion in the Ceylon case he himself observes that 'intention, which is a state of mind, can never be proved as a fact ; it can only be inferred from facts which are proved', and that entry upon a mere claim or right would not be sufficient to protect the trespasser, if the claim of right was 'a mere cloak to cover the real intent' or merely a 'subsidiary intent'."
According to the prosecution evidence, the premises are closed by compound wall having an entry from main gate from the southern side. Scaling over the wall and entering the compound necessarily constitute the offence of house trespass. It is noticed that the intention being a state of mind, can never be proved as a fact and it can only be inferred from the facts resting on an action or commission. The relevant facts to prove the intention was the conduct, the mode and manner of person ascribed trespass, the time accompanied by activates immediately following at trespass.
On this premises, it is safe to infer that the appellant made a house trespass in order only to commit the offence. The case was, therefore, squarely covered by the provisions of section 451, A. P.
C. Under this section, the appellant was liable to punishment of imprisonment extending to 2 years and also to fine. He is, therefore, awarded sentence of imprisonment for a period of two months in addition to the sentence of fine in the sum of Rs, 1.000. On failure to pay the fine, the appellant shall undergo sentence of imprisonment for one month in addition to the sentence of imprisonment. The conviction is maintained and the order of the trial Court is modified accordingly. The appellant was arrested on the night of occurrence and remained in the lock-up, up to September 5, 1954 i,e, 17 days. Keeping in view the age and past of the appellant, and the circumstances of the case, he is entitled to benefit of provisions of section 382-B, A. P. C. For computing the period of his detention during trial into period of his imprisonment. The appeal is disposed of accordingly.