1. ' Through this criminal revision the applicants have challenged the two judgments passed by the learned Judicial Magistrate, Matli dated 30-11-1999 and the another judgment passed by the learned 1st Additional Sessions Judge, Badin, dated 24-4-2000. Hence this revision.
2. ' The applicants were booked under sections 451-B, 34, P.P.C. The prosecution examined the witnesses and thereafter their statements are said to have been recorded by the trial Court and accordingly the learned Judicial Magistrate passed judgment under sections 451-B, 34, P.P.C. To suffer R.I. For 2 years and to pay fine of Rs,2,000 each and in default of payment of fine they should undergo R.I. For one month more each. Thereafter the applicants preferred Criminal Appeal No,9 of 1999 which too was dismissed by the learned 1st Additional Sessions Judge, Badin. Mr. Qurban Ali Chohan, learned counsel for the applicants has severally criticized both the judgments and submitted that the F.I.R. Is said to have been registered after a delay of 13 hours which goes unexplained by the prosecution. According to him incident had taken place on 28-8-1998 and the statements of the witnesses were recorded on 29-8-1998 when they were available at the place of Wardat. In support of his contentions he has placed reliance on 1974 PCr.LJ 400, PLD 1963 SC 17 and 1969 PCr.LJ 1217. He has further contended that the identification of the accused is on torch and bulb. It has been admitted by the Investigating Officer that no bulb was recovered from the place of Wardat. Even torch has not been produced by the prosecution during the trial and in support of this contention he has placed reliance on 1996 SCM R 308; 1974 PCr.LJ 1057 and 1999 SCMR 570.
3. According to him one material witness Muhammad Bux has not been examined by the prosecution.
4. ' On the other hand Mr. Muhammad Azeem Panhwar, Advocate for, A.-G. For the State supported both the judgments and placed reliance on 1999 PCr.LJ 1850 and 1983.PCr.LJ 1985. According to him offence is made out under section 451-B, P.P.C.
5. ' On the other hand Mr. Muhammad Ishaque Khoso, Advocate, for the complainant said that there is no illegality in the judgments and adopted the arguments rendered by Mr. Muhammad Azeem Panhwar, Advocate for A.-G. For State.
6. ' I have given anxious thought to their submissions and have gone through the impugned judgments. The case of the prosecution is that on 28-8-1998 after taking meals complainant alongwith other inmates of his house went to sleep at night time. At about 2-00 hours, he was woken up on the barking of dogs and saw on the light of bulb and torch two persons and identified them to be Abdullah son of Ibrahim Leghari armed with hatchet and Moharram alias Maro with empty-handed standing near the cattle pan. Complainant raised cries which attracted P. Ws.
7. Hussain Bux Leghari and Ahmed Khan Leghari who also came there and identified the accused persons on the light of torch having in their hands. The accused made their escape and thereafter in the morning the complainant went to the father of accused Abdullah Leghari and informed him about the incident and thereafter he lodged report as he did not receive any response from the father of accused Abdullah.
8. In Pakistan Penal Code there is no provision of section 451-B. Nevertheless section 451, P.P.C. Is reproduced as under:-- "Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years."
9. ' The evidence which is being adduced by ,the prosecution shows that no theft has been committed by the accused and in order to establish the house-trespass on the part of the applicants the prosecution is relying the source of identification on torch and bulb. Admittedly neither torch has been produced by the prosecution nor bulb has been found by the Investigating Officer and in the absence of both the aforementioned articles the case of the prosecution is shattered. This fact has not been considered at all by both the Courts below. Admittedly the statements of the witnesses have been recorded after 24 hours when they were easily available at the place of Wardat and reliance can be placed on PLD 1963 SC 17; 1969 PCr.LJ 1217 and 1974 PCr.LJ
400. Admittedly the names of the accused were known to the complainant and other witnesses and yet they have wasted 13 hours at the place of Wardat and thereafter the complainant went to lodge report which goes unexplained by the prosecution. Reference can be made to a case reported in 1995 SCM R 127, wherein the Honourable Supreme Court has held that since the names were known to the complainant and he wasted two hours at place of Wardat which is not being explained by the prosecution, the benefit of doubt has been given to the accused in a murder case whereas in the instant case 13 hours have been consumed at the place of Wardat when it is a claim of the prosecution that complainant party knew the names of accused and what were the circumstances which prevented them to go immediately to police station and lodge report and this is not being explained at all by the prosecution. No explanation is coming forward from the side of the prosecution as to why the witnesses were not examined on the same day and why there is a delay of 13 hours in lodging the F.I.R. The evidence of P.W. Irshad who is a constable is also not inspiring the confidence. The Courts below have not taken into consideration the meaning of section 451, P.P.C. And both the Courts below have not applied their judicial mind. Proper evidence has not been weighed by them.
10. Upshot of the above discussion is that the prosecution had failed to prove its case beyond reasonable doubt against the applicants. I am of the considered view that the illegality has been committed by both the Courts below by not taking into consideration the entire evidence as discussed supra. Accordingly both the judgments are set aside. In result the revision application is accepted. The applicants are on bail. Their bail bonds and sureties stand discharged.