1968 P Cr (PLP)

2. The prosecution case, as stated by the Court below, was that on the 11th June 1967, Amir P. W. 4 was ploughing his field at a distance of four/five killas from his house situated in Chah Sherwala. Mst. Sardar Bibi P. W. 8, wife of Amir brought lassi for him and after serving lassi to her husband she returned to her house where she found the lock of her house broken. She also noticed Muhammad Bakhsh petitioner running away from the house with a bundle and armed with a pistol. She raised an alarm, which attracted to the spot P. W. 1 Masta and P. W. 2 Waryam. The petitioner was chased by Amir P. W. 4 and at a distance of one square from the house of the complainant, the petitioner turned back and fired a shot with the pistol that he had with him and Amira complainant got injured on the left side of the chest. The petitioner was, however, over-powered by Amir, Waryam and Masta P. Ws. and was taken to the house of P. W. 10 Mushtaq Hussain, Chairman of Union Council. The matter was then reported to the police by Amir. Sakhi Muhammad H. C. P. W. 9 recorded the same on the 11th June 1967. The report is Exh. P. A. The H. C. proceeded to the spot and took into possession the chaddar Exh. P. 2, shirt Exh. P. 3, shirt Exh. P. 4. shirt Exh. P. 5, a pair of silver bangles Exhs. P. 6-1, 2 and another pair of bangles of silver Exhs. P. 7/1 and 2 from Mian Mushtaq Hussain, Chairman P. W. 10, vide memo. Exh. P. B. Sakhi Muhammad also took the petitioner into custody.

3. In all twelve witnesses were examined in this case on behalf of the prosecution. Of these, Masta P. W. 1 and Waryam P. W. 2 star witnesses of the prosecution, who were mentioned in the F. I. R. as the eye-witnesses and the persons who had over-powered the appellant, were declared hostile. They both stated that they knew nothing about the case. P. W. 4 Amir complainant and his wife Mst. Sardar Bibi narrated the prosecution story by saying that in the morning on the day of the occurrence the husband was ploughing his field near the house while the wife took lassi to him. The house was locked and on her return she (Mst. Sardaran) found the lock broken and raised an alarm. She also saw the appellant decamping with a gathri and armed with a pistol. The alarm raised attracted to the spot P. W. 1 Masta and P. W. 2 Waryam (declared hostile) and P. W. 4 Amir. In the meantime Pehlwan P. W. 7 also arrived there. He saw the appellant having caught hold by P. W. 4 Amir and two other persons. The appellant was then taken to the house of Mushtaq Hussain P. W. 10 Chairman of Union Council and there he was handed over to Sakhi Muhammad H. C. later, who placed him under arrest.

4. As earlier stated P. W. 1 Masta and P. W. 2 Waryam did not support the prosecution case. They showed ignorance about the occurrence. Amir and his wife Mst. Sardar Bibi however, charged the appellant for having broken the lock of their house and having stolen the articles Exhs. P. 2 to P. 7 and having fired at Amir and injured him with a pistol Exh. P.

1. The recovery of the stolen articles Exhs. P. 2 to P. 7 was witnessed by Gamun P. W.

3. Mushtaq Hussain confirmed that the appel lant was brought to his dera by Pehlwan, Waryam and Masta P. Ws. and that the articles Exhs. P. 1 to P. 7 were with them. They left the appellant with him and brought the police and then the police took the articles P. 2 to 7 vide memo. Exh. P. B. He also confirmed that complainant Amir was bleeding from his chest. The other witness to the recovery, Gamun P. W. 3, did not support the recovery. He stated that the police took his thumb-impression on a blank chit of paper and that the appellant was not present at that time. P. W. 7 Pehlwan also supported the prosecution by saying that he was going to Haveli Sheikh Raju when he heard an alarm and saw that Amir and two other persons had caught hold of Muhammad Bakhsh appellant. He, however, made a concession in favour of the appellant by saying that he was empty-handed and he had no garhri with him. He further stated that Amir was bleeding.

5. Amir was examined by P. W. 12 Dr. A. A. Khan on the 12th June 1967 and following injuries were found on his person:- (1) Abraded area " x " skin deep on the Left side of chest 3" above and lateral to left nipple. (2) Abrasion 1'' x " x skin deep on the inner side of upper third of left arm. The doctor was of the confirmed opinion that the injuries were caused by a pellet fired from a firearm and that there was no possibility that these injuries were caused with a point of a bar. The doctor gave an explanation by saying that if a hot bar was applied the skin would be burnt and a skin in this case was not burnt.

6. The appellant was initially charged under section 307, P. P. C. but on the 24th November 1967, the charge was amended and he was charged under section 459, P. P. C. The charge- sheet was read over and explained to the appellant and his statement was recorded. He did not plead guilty to the charge and stated that he will produce evidence. In defence, he produced Ghulam Hussain D. W. 1. whose evidence was to the effect that the pistol Exh. P. 1 was not in a serviceable condition and it could not hive fired a shot. However, he later stated "that if the trigger is released at once the bullet will fire."

7. The learned Magistrate and the Additional Sessions Judge, who heard the appeal, both took the view that the complainant Amir and his wife Sardar Bibi had no enmity with the appellant and there was no reason for a false charge levelling against him. They also relied on the testimony of Pehlwan who corroborated the complainant and his wife.

8. The learned counsel for the appellant argued that the charge under section 307, P. P. C. was amended on the 24th November 1967, and that in the circumstances the Court was bound to allow the appellant to recall and examine any witness who was already examined. It was complained that this was not done and that the trial, therefore, vitiated. It is true that under section 231, Cr. P. C. the Court is bound to allow the prosecution and the accused to recall and examine any witness who may have been already examined but then the party hasp to make an application for the calling of any witness and their examination. Where the party does not do so, it cannot be subsequently complained that the examination contemplated by tire section was not allowed. In similar circumstances in Kinomal and another v. Emperor (A I R 1930 All. 215) it was held that there is no duty laid on the Court under section 231, Cr. P. C. to ask the accused if he wishes to recall or re-summon prosecution or defence witnesses and so there is no breach of any provisions in section 231 if the Court does not so require. It is essential that the accused should ask for permission. No permission was asked for in this case.

9. Next it was contended that two of the prosecution star witnesses, namely, Masta and Waryam, who were shown in the F. I. R. as the eye-witnesses did not support the prosecution case. It is true that these two witnesses were declared hostile and they did not support the prosecution case but then there is ample evidence on the record to show that the appellant was in volved in the breaking open of the lock of the house of the complainant and the commission of the theft, in the circumstances mentioned by Amir and his wife. Here it will be pertinent to note that Amir had no ill-will against the appellant and there was, therefore, no reason for him to have charged him falsely. The appellant was taken to the house of Mushtaq Hussain P. W. 10, Chairman of the Union Council concerned, and the stolen property was also produced there before the Chairman, Pehlwan P. W. 7 supported the complainant Amir and his wife Sardar Bibi in saying that he had seen the appellant having been caught hold and Amir was bleeding and was present there. It is also in evidence that Amir was injured and the injuries found on his person were the result of a firearm shot. These injuries, therefore, could not have been self-suffered. Much capital was made by the defence of the fact that two of the eye-witnesses Masta and Waryam, the recovery witness Gamun and another prosecution witness Pehlwan had not supported. 6 the prosecution case, but then in view of the evidence on the record as discussed above, the mere fact that these witnesses did not support the prosecution case cannot discredit the pro secution case, as it is otherwise supported by trustworthy evidence. In Israr Gul v. The State (P L D 1963 Pesh. 124) Sajjad Ahmad, J. (as he then was) so observed: "To accept the view that where some witnesses from the prosecution let down the prosecution case by distortion of facts or suppression of truth, wholly or in part, the whole of the prosecution case must fall down as a house of cards would amount to giving a powerful lever to the defence to be quite freely employed to win over some prosecution witness to seal the doom of the prosecution case. The best approach in such situation is to reject the discredited witness but not to discredit the prosecution case if it is otherwise supported by trustworthy evidence." Applying the above test to the present case the evidence of Amir his wife Mst. Sardar Bibi, Mushtaq Hussain, Chairman of Union Council, and the medical evidence proved beyond doubt that the appellant and the appellant alone was responsible for the offence charged with.

10. It was also complained that the offence committed by the appellant did not fall within the purview of section 459, P. P. C. in arguing so it was pointed out that the offence of house-breaking was complete when the entry into the house was effected and the appellant had left the house. Since the grievous hurt was subsequently caused by the appellant to Amir, it cannot be said that the grievous hurt was caused while the appellant was committing the house breaking. The argument has every force. It is supported by Said Ahmad and another v. King-Emperor (A I R 1927 All. 536) which is as follows:-- "The offence of house-breaking is complete when entry into the house is effected and any grievous hurt subsequently caused by the persons breaking into a house cannot be said to be grievous hurt caused while they were committing the house breaking.'' The evidence on the record, however, clearly showed that the appellant was guilty of house-breaking after having armed himself with a pistol and made preparation for butt and assault to the occupants of the house. In this way the offence committed by the appellant was one punishable under section 455, P. P. C. and the section is altered from 459, P. P. C. to 455, P. P. C. The sentence of four years' R. I. and the fine of Rs. 600 or in default to suffer further six months' R. I. is maintained. The appeal is dismissed. Appeal dismissed.