P (PLP)

The facts of this case have been set forth in the judgment of the Sessions Judge, but are briefly re‑iterated below. The appellant is alleged to have entered into the courtyard of Arbab Barkat Ali's house in Kanshi Killa, Quetta at about 3 a. m., on the night of 13/ 14th January, 1950. Arbab Barkat Ali who hoard a noise woke up to see the appellant opening the outer door of his room and it is alleged that the appellant also had torch in his hand. Arbab Barkat Ali took out his revolver and fired at the intruder who ran away. Some blood was found and the tracks were followed later but the intruder was not caught and the appellant was subsequently arrested by the police. It was found that he had received a bullet wound and he was taken to the Civil Hospital, Quetta for necessary treat ment. The appellant is alleged to have made a confession to the City Magistrate, Quetta on 28th January 1950 ; though in this statement he disposed that he was on intimate terms with Mst. Amina, daughter of Khan Muhammad and he had been asked by her to come and visit her at night in her house. He further stated that when he reached the house and opened the door he heard the voice of Arbab Barkat Ali, his wife and Mst. Amina and upon his arrival Arbab Barkat Ali promptly shot him in the chest. The Sessions judge in his judgment has relied mainly on circumstantial evidence as the appellant was not caught at the time but was arrested later. The main grounds for conviction in this case are the confession of the appellant himself in stating that he visited this house though, as alleged, for a differ ent reason; the fact that when arrested appellant was found to have been shot; and the fact that before his arrest he attempted to hide his actions in misrepresenting how he had been wounded in his statement to Wali Muhammad, P. W.

4. The grounds for his appeal are mainly that the confession of the appellant was recorded a fortnight after the incident and that it should not be relied on in the absence of strong corroborative evidence. Further, as stated by the appellant during his trial, he alleges that he was not in command of his senses when he made this statement. This later fact I must discard as the date on which he made his confessional statement was, as admitted by learned counsel for the appellant, a fortnight after the incident. It would not therefore be proper to assume that the appellant's faculties had left him at the time he made his statement which was on a date after he had been discharged from the Hospital as cured. As for corrobo rative evidence, there is, I consider, circumstantial substantial evi dence on which a conviction in this case can be based. The recovery of the bullet from the body of the appellant, and the circum stances under which he tried to hide how be had been wounded are sufficient, combined with the statement in his confession to the effect that he was the person who had been shot at by Arbab Barkat Ali. In addition the other prosecution evidence, which is unrebutted, clearly discloses that an intruder was found in the compound of the house of Arbab Barkat Ali and that this intruder was attempting to enter a room and was shot at. It is, however, necessary for me to examine carefully to see whether the crime committed by the appellant falls within the purview of section 457, Pakistan Penal Code. The necessary requirements of this section are that, apart from the committing of lurking house trespass by night, this act must be done by a person in order to commit an offence punishable with imprisonment. An offence under section 457 of Pakistan Penal Code is of a very much more serious nature than those falling under the previous sections of the Pakistan Penal Code. For the purpose of conviction under section 457, Pakistan Penal Code, it is necessary to prove that the accused com mitted lurking house trespass by night and also to prove that the same was committed with the object of committing theft or any other offence punishable with imprisonment. From the record of evidence in this case, there is nothing to indicate that the appellant had attempted to commit any other offence contemplated by section 457 before he was shot at. It is equally clear that since the appellant was stopped before he could commit an offence, the difficulty of proving what his intentions were must be very great. It would be improper to assume that the appellant was armed with a revolver on the sole testimony of the witness who saw the intruder when it was dark and when he (the witness) had woken abruptly from his sleep. As already stated, there is no further evidence to show that the appellant intended to commit any other crime. While it has been alleged by the prosecution that the appellant scaled a wall 11 feet high in order to enter the compound; the scaling of a wall has been held to be an offence of house‑breaking by night. With this view I am disposed to agree. On these grounds, I am therefore satisfied that the appellant had committed lurking house trespass by night, but it would appear from the evidence that the crime which the appellant committed might more properly have fallen under section 455 Pakistan Penal Code. In this connection I propose to take into consideration the charge‑sheet which was framed against the convict‑appellant by the committal Magistrate. This reads as follows :‑

" That you on or about 13/14th January 1950 committed lurking house trespass by night by entering into the house of Arbab Barkat Ali in Kansi Killa used as a human dwelling at 2 a. m. for committing an offence punishable with imprisonment". I am inclined to think that the manner of framing the charge in this case is not in accordance with the provisions required by sections 221 and 222, Criminal Procedure Code. It has been held, on various occasions, that, where necessary, the intention underlying the charge must be specified in the charge in order to give the person accused full facilities for his defence, so that he will know the exact nature of the crime of which he is accused. It has been held that convic tion under the provisions of section 456, Pakistan Penal Code for lurking house trespass by night is not bad for want of speci fication of the intention in the charge; for without specifying what the intention was, as required by section 441, Pakistan Penal Code, the charge indicating that the accused person committed house trespass by night will be sufficient to indicate to him the circumstances of the case against him. This rule of practice would, however, not appear to apply to a charge framed under section 457, Pakistan Penal Code unless clear specification is made to show what crime, in pursuance of that of committing lurking house trespass by night the accused had intention to commit or did in fact commit. In the case before me, the charge should have specified what the guilty intention was but there should also have been proof in evidence of that intention. The appellant has been sentenced to 21 years' rigorous imprisonment under sections 457/75, Pakistan Penal Code and I do not feel disposed to set aside the conviction on the basis of the facts alleged. But for reasons stated above, I feel there is an element of doubt as to the actual intention of the appellant after he had committed lurking house trespass by night. It might be presumed, because the appellant was a previous convict, and because it was proved that be was found in suspicious circumstances in some one else's house at night, that he intended to commit some crime ; but I feel that presumption in a case of this nature, however suspicious the circumstances, could be improper in so far as a conviction under section 457, Pakistan Penal Code is concerned, because this section distinctly requires that the prosecution must prove that the lurking house trespass was committed in order to commit an offence punishable with imprisonment. In certain circumstances an inference might correctly be drawn from the fact that the person was carrying house‑breaking tools, or lethal weapons, or was caught in the act of breaking open a safe, or was in the process of steal ing property not belonging to him. Such circumstances, or circumstances of a similar nature are, however, absent in the case before me. It is, I observe, generally customary for accused persons to be charged jointly under sections 380 and 457 Pakistan Penal Code when, in the event of conviction, the accused, if the trial Court proceed properly, will be found guilty under section 457 only. In cases of this nature a conviction will always be proper provided unrebutted evidence is led to show that the accused actually committed theft in pursuance of house‑breaking or lurking house trespass by night. The circumstances will however, be very different when no crime, other than house trespass has in fact been committed. In that event, to gain a conviction under section 457, the Crown will be faced with the onerous duty of proving intention. If the Crown fails, a conviction under section 457 will be improper and the only appro priate section will be

456. The intention as defined in section 440 (1) of the Pakistan Penal Code need not be specific for the purpose of conviction under section 456, Pakistan Penal Code, because conclusion can be drawn from the fact that a person, who is present at night in the house of a stranger without permission and without invitation, must be presumed to be there for some purpose which must be illegal. In such circumstances it has been held (Indian Cases Volumes XXIX‑67) that since the intention with which the accused entered another's house was a matter within, the knowledge of the accused, the burden of proving that his intention was an honest one lay on him. Apart from the statement of the appellant, which is unsupported by any evidence, there is nothing to account for the appellant's presence in a stranger's house at 3 a. m, at night. In the case of a convic tion under section 457, Pakistan Penal Code this section definitely requires proof of the intention of the person committing house trespass. For reasons which I have already stated that proof is lacking. I therefore modify the order of the Trial Court in convicting the appellant under sections 45775 Pakistan Penal Code to conviction under section 456/75 Pakistan Penal Code. This latter section defines a crime of a lesser character and in modifying the order of the lower Court I do not feel that the case for the appellant has in any way been prejudiced. The charge‑sheet as framed in this case clearly indicates that he was primarily charged with lurking house trespass by night and to that extent he was fully able to defend himself to best advantage against this charge. In regard to the possible preju dice of the accused in altering a conviction to one under section of a less serious nature this matter has, I observe, been discussed in 35 Indian Cases 984 and I am in agree ment with the views expressed therein. Moreover, both the above‑mentioned case: and 19 Indian Cases 67 set forth circum stances very similar to those now before me. In these cases the learned judges state clearly their reasons for holding the accused persons concerned guilty under section 456 Pakistan Penal Code. These two judgments support the views expressed by me in this case. In view of the fact that I have altered the conviction to a section of the Pakistan Penal Code of lesser nature, it is necessary for me to see whether the sentence passed on the appellant should stand or should be reduced. Under section 456, Pakistan Penal Code the maximum sentence permissible is 3 years rigorous imprisonment, while that under section 457 Pakistan Penal Code may extend to 5 years rigorous imprison ment. The appellant has been sentenced to 2 years rigorous imprisonment and I consider a lesser sentence will be sufficient in this case to meet the ends of justice. I take notice of the fact that the appellant is a previous convict and I do not therefore feel particularly disposed to direct that a substantial reduction in the sentence passed should be imposed. I accord ingly reduce the sentence to one of rigorous imprisonment for two years. The appeal is accepted to this extent. A. H. Sentence reduced.