P L D 1954 Lahore 662 (PLP)

SHABIR AHMAD, J.‑This is a jail appeal by Nihala, son of Allah Wasaya, who has been sentenced to transportation for life under section 460 of the P. P. C. The incident out of which the case arises occurred on the night between 21st and the 22nd of September 1942 ,when some persons entered into the house of Mst. Haliman situate in Chah Muratwala in a suburban area of Multan and not only stole property from there but one of them caused her an injury with a kulhari which resulted in her death. Investiga tion by the police revealed that the culprits were Mithu, Kalu, Jiwan, Khandu and Nihala appellants. Khandu was made an approver while Mithu, Kalu and Jiwan were tried under sections 46C and 396 of the Penal Code and there was in addition a charge under section 302 of that Code against Kalu. Nihala appellant was not sent up for trial with the others because he was not available and was arrested about nine years later on the 20th of July 1952. There can be no manner of doubt that Mst. Haliman died as a result of an injury inflicted to her on the night when the intruders broke into her house nor can it be doubted that some property was stolen from her house on that night. Doctor Sayyed Talib Husain, who was those days Assistant Surgeon at Multan deposed that Mst. Haliman was in a very precarious condition when she was brought to the hospital oil the 22nd of September 1942 at about 11‑30 a.m. Her neck bore a transverse gaping incised wound 4 " long and she died the same day at 2‑10 p.m. The same doctor conducted the post‑mortem examination, which disclosed that the first cervical vertebra was cut and meninges were protruding through the wound into the vertebra. In the opinion of the doctor, death of Mst. Haliman resulted from the injury on her neck. Direct evidence about the incident and the participation of Nihala therein was given by Khandu approver, who had appeared as a witness at the former trial also. The statement he made in the present trial taken along with the statement he had made in the Court of the committing Magistrate, which was transferred to tile record of the learned trial judge under section 288 of the Code of Criminal Procedure, is to the effect that Nihala appellant was one of the five persons who committed theft in the house of Mst. Haliman on the night between the 21st and the 22nd of September 1942. There is nothing on the record to contradict the statement of Khandu approver with regard to tile appellant's Participa tion in the crime under consideration but as Khandu is an accomplice no conviction should be based on his statement unless it is corroborated in material particulars. The corroborative evidence which the prosecution produced was that on the 23rd of September 1942 Nihala appellant had sold four silver churis to Fazal Bakhsh (P. W. 10) for Rs. 5 and had executed the receipt (Exh. P/A) which was written by Allah Wasaya (P. W. 11). With regard to the identity of the churls, there are the depositions of Mst. Walayat and Mst. Sehat P. Ws., daughters of Mst. Haliman deceased, as well as of Mst. Mubarik (P. W. 6), granddaughter of Mst. Haliman. In addition, there is the statement of Rehmat Ullah (P. W. 12), about the churls having been made by his employer, Muhammad Bakhsh, goldsmith who had died long before the trial of the appellant started. I see no ground for not accepting the evidence about the identity of the churls with a part of the property stolen from the house of Mst. Haliman on the night of the occurrence. Then there are the statements of Fazal Bakhsh (P. W. 10) and Allah Wasaya (P. W. 11) to the effect that the receipt (Exh. P. A.) was executed by the appellant on the 23rd of September 1942 when he sold to Fazal Bakhsh four churis which are proved to be a part of the looted property. With regard to the identity of the thumb‑impression on the receipt with the thumb‑impression of the appellant, we have the statement of Abdul Aziz, Inspector of Police, who as a finger‑print expert examined the thumb‑impressions. The appellant admitted that the thumb impression on the receipt was his but explained that he had been‑ forced by the police to put it there. In my view, the statement of the appellant that he was forced to thumb‑mark the receipt is false and I reject it. The corroborative evidence, therefore, is that a day after the murderous assault on Mst. Haliman the appellant was fount in possession of four churis which had, been stolen from her house at the time when she, was dealt the fatal blow which resulted it, her death a few hours later. This corroborative evidence, in my opinion, proves conclusively that the statement of the approver that the appellant was his companion On the night between the 21st and the 22nd of September 1942, when he broke into the house of Mst. Haliman, is established beyond all reasonable doubt. The question that now falls for determination is if the appellant was guilty of an offence under section 460 of the P. P. C. This section is in the following terms:-- "If, at the time of the committing of lurking house- trespass by night, or house‑breaking by night, and: person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house‑trespass by night or house‑breaking by night, shall be punished with transportation for life or with imprison ment of either description for a term which may extend toy tell years, ant] shall also be liable to fine. The offence made punishable by this section is an aggravated form of the offences dealt with in sections 456 and 8157 of the P. P. C., the former of which punishes lurking house‑trespass by night or house‑breaking by night with any intent mentioned in section 441. of the P. P. C. other than the intent to commit ail offence and the latter such trespass or house‑breaking with the intent of committing an offence. The punishment prescribed by the section is for the house‑, breaking or the lurking house‑trespass in the course of which murder or grievous hurt is committed or attempted and not for the additional offence committed. If the offence of murder is committed in the circumstances envisaged by this section the offender who is guilty of that offence will be punishable under section 302 of the P. P. C. also and his confederates may also be punishable for the offence of murder if it is established that any of the sections of the Penal Code which make persons vicariously liable for an offence (sections 34, 149 or sections dealing with abetment of offences) was applicable. What I have said above about the offence of murder applies equally if the offence committed is an attempt to commit murder or of causing or attempting to cause grievous hurt. But before section 460 of the P. P. C. can be applied to the case of any person all the ingredients of the section must be satisfied in his case. It appears to me that one of the essential ingredients of the offence dealt with by section 460 of the P. P. C. is that the person sought to be made liable under this section must be proved to have been " jointly concerned in committing the house‑trespass by night or house‑breaking by night " i.e., he must have committed the offence of lurking house‑trespass by night or house‑breaking by night and no: be merely liable for that offence on account of vicarious liability for acts done by another. The legislature' has used the expression " jointly concerned in committing such lurking house‑trespass by night or house‑breaking by night " and to my mind the object was to lay down that the person to be made liable must have in fact committed lurking house‑trespass by night or house‑breaking by night and not be merely liable for those offences by the application of provisions of law making persons vicariously liable for acts of others. If, therefore, a confederate of the lurking house trespasser or house‑breaker by night, who commits the additional offence mentioned in section 460 of the P. P. C., had not in fact committed the offence of lurking house trespass or house‑breaking by night he will not be punishable under section 460 of the P. P. C. though he may be liable under section 456 or 457 of that Code by the application of section 34 or 149 or any of the sections dealing with punishments for abetments. A person who has merely abetted an offence of lurking house‑trespass by night or housebreaking by night but is himself not present at the time of the commission of that offence will be liable for the offence abetted by him, but, in my view, he will not be liable to be punished under section 460 of the P. P. C. because he wav not jointly concerned in committing such lurking house trespass by night or house‑breaking by night though he may be liable for the additional offence committed if he had abetted it or is, for the purpose of Penal Code, to be deemed to have abetted it. Similarly, the case of a person who is helping his confederates to commit lurking house‑trespass by night or house‑breaking by night but himself does not commit that offence will not be covered by section 460 of the P. P. C. The evidence in the present case shows that Nihala, appellant stood outside the house in order to receive the goods which his companions passed on to him and that he, himself did not enter the house. In my view, therefore the appellant was not jointly concerned in the house‑breaking by night which his confederates committed and section 460 of the P. P. C. will have no application to his case. There is, however, no doubt that the appellant was guilty of an offence under section 457 of the P. P. C. because that offence was clearly committed in furtherance of the common intention he shared with his confederates and his case will fall under section 457 of the P. P. C. Consequently, I partly accept the appeal and altering the conviction of the appellant from section 460 to section 457 of the P. P. C. order that he shall suffer rigorous imprisonment for eight years for that offence. ABDUL AZIZ KHAN, J.‑I agree. A. H. Appeal partly accepted.