1. The applicant Nizamuddin son of Muhammad Hassan was convicted by the learned Civil Judge and F.C.M. Thul for offence under sections 451(2), 323, P.P.C. Vide judgment, dated 6-12-1989. He was sentenced to one year's R.I. For offence under section 451(2) and fine of Rs.2,000 or in default to undergo R.I. For three months. For the offence under section 323, P.P.C. He was sentenced to R.I. For three months. The sentences were ordered to run concurrently, Against his conviction the appellant preferred appeal which came up for hearing before the learned IInd Additional Sessions Judge, Jacobabad. The Appellate Court vide its judgment, dated 30-10-1989 upheld the conviction and the sentence of the appellant. The appellant has now challenged the judgments of the two Courts below in this revision application.
2. I have heard Mr. Malik Ghulam Qadir Advocate for the applicant and Mr. Mushtaq Ahmed Amir Mahar for AA.-G. For State. The learned counsel for State has not supported the conviction and sentence of the applicant.
3. The case of the prosecution in brief is that the complainant Muhammad Murad used to reside with his father and uncle in their own house He owned cattle which he used to tether in open ground. On the night of incident i.e. 26-10-1987 as usual they went to sleep but at about 1-00 a.m. The complainant woke up on some noise and saw four persons near his cattle. He identified one of them Nizamuddin the present applicant while three others were unknown. The complainant challenged the accused and grappled with the applicant Nizamuddin who was armed with Lathi and in order to escape he caused Lathi blows to the complainant. The complainant raised cries on which is father and uncle also came to help him. They managed to catch the applicant at the spot.
4. The complainant then went to Police Station Thul and lodged report which was recorded by A.S.I.
5. Shafi Muhammad. The police reached at the place of Wardat arrested the accused and after completing usual formalities challaned the accused in the Court of Civil Judge and F.C.M. Thul.
6. In support of its case the prosecution examined P.W. Nazir Ahmed Medical Officer as Exh.3, another Medical Officer Dr. Asadullah as Exh 4, complainant Muhammad Murad as Exh.5, P.W. Karim Bux as Exh.6 and P.W. Shaft Muhammad as Exh.7. At latter stage co- Mashir P.W. Chachar was al--so examined as Exh.12. After conclusion of the prosecution case the accused was examined under section 342, Cr.P.C. Accused neither lend any defence nor examined himself on oath.
7. The learned counsel for the applicant has submitted that both the Courts below have erred in law by convicting the applicant under section 451(2), P.P.C. As according to the learned counsel there was no house trespass within the meaning of section 442, P.P.C. So far as the offence under section 323, P.P.C. Was concerned, the learned counsel for the applicant submitted that the applicant has already undergone that sentence.
8. I have applied my mind to the facts of the case and I have also gone through the relevant record and I am of the considered view that the conviction of the applicant under section 451, P.P.C. Is not sustainable. It will appear that for section 451, P.P.C. The basic requirement is there should be `house trespass'. This house trespass has special meaning which is provided by section 442, P.P.C.
9. Section 442, P.P.C. Requires there should be criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, of as a place for the custody of property. In the prevent case the admitted position is that applicant was found present in an open place. He was not found in any building, tent or vessel and therefore, this will not be a case of house trespass punishable under section 451, P.P.C. In this regard the F.I.R. As well as the Mashirnama of Wardat clearly indicate that it was an open place and this aspect of the matter has not been considered by both the Courts below. In my opinion both the Courts below were required to see if the ingredients of the offence have been proved by prosecution or not.
10. Before recording the conviction the trial Court as well as the appellate Court while upholding the conviction, were required to see if the offence under section 451, P.P.C. Was really made out or not.
11. On the bare reading of the judgments of two Courts below this aspect was not considered.
12. There is another aspect also. The prosecution witnesses have stated that the applicant .Was armed with a Lathi and he caused injuries to the complainant. The medical certificate of complainant Muhammad Murad indicates that he has received as many as 9 injuries. All caused by hard and blunt substance and all are simple in nature. But there is no explanation on the record as to who caused the injuries to the applicant. As the applicant Nizamuddin hits also suffered as many as 5 injuries also caused by hard and blunt substance. All the injuries were declared simple.
13. Be that as it may, so far as the offence under section 323, P.P.C. Is concerned, the applicant is admitted to have already undergone the same as the applicant was arrested on 26-10-1987 and he was released on bail by the trial Court on 27-1-1988.
14. In view of my above discussion I am of the considered opinion that the conviction and sentence of the applicant under section 451, P.P.C. Is not sustainable and the same is hereby set aside.
15. By a short order, dated 17-5-1992 I had allowed this revision application, these arc the reasons for the same.
16. N.H.O./N-428/K revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.