1986 P Cr (PLP)

(e) That nothing turns out by the non‑production of the Doctor because Mst. Begum Jan was not raped. Her hymen was found intact by the Doctor. Moreover, a Doctor is not a necessary witness to prove the case of lurking house trespass to commit an offence. Similarly, the non‑production of the S.H.O. is not fatal to the prosecution case; (f) That it is a case of lurking house tress‑pass and the offence under sections 456/363, A.P.C. has been made out. The Court is competent to pass any sentence under any section if the case under that section is made out; and (g) That the trial Court has unnecessarily discussed the aspect of throwing pepper into the eyes of the inmates of the house. Even if this aspect is disbelieved, 'the lurking house‑trespass is proved.

5. The prayer is to set aside the impugned order of acquittal and remand the case to the Court below (the trial Court) for passing the sentence under law for committing lurking house trespass under section 456/363 A.P.C.

6. On the other hand, it was argued by Mr. Shahad Ahmed, Advocate on behalf of the acquitted persons:‑- (i) That the order of acquittal was proper and justifiable under law. The prosecution failed to prove its case under section 456/363 A.P.C. and, therefore, the High Court should not upset the order of acquittal; (ii) That there is a double presumption of innocence in favour of the acquitted persons: (iii) That the five alleged eye‑witnesses were rightly disbelieved by the learned Magistrate because they were related to the complainant and were related inter se; (iv) That there are material contradictions in the prosecution evidence and, therefore, the trial Court passed the order of acquittal in this case; and (v) That the benefit of doubt was rightly given to the accused persons.

7. We have heard the learned counsel for the non‑petitioners Mr. Shahad Ahmed, Advocate and with his help gone through the statements of some prosecution witnesses. We have perused the record of the case carefully.

8. Delay in F.I.R., per se, is not fatal to a prosecution case. In this connection, we refer to:‑ 1978 S C M R 136; P L D 1978 S C 1; P L D 1978 S C 1 and 1979 S C M R

230. It may be fatal under some circumstances as held in P L D 1977 S C (AJK) where there was a delay of 27 days or in P L D 1978 S C 114, where there was the delay of only 7 hours. But here in this case the delay is well explained.

9. The relationship of witnesses, per se, between themselves or with the complainant, is no ground to discard their evidence. Reference is made to: P L D 1978 S C (AJK) 96, 146; 1978 S C M R 136; P L D 1978 Lah. 1209, 1285; P L D 1979 S C (AJK) 23 (32) A; 1979 P Cr. L J 142 p. 90; P L D 1982 Lah. 577; 1983 P Cr. L J 1207 Lah. 1511 and P L D 1983 S C (AJK) 211(217) C.

10. The inmates of a house are not to be disbelieved when their presence is natural. Reference is made to:‑ P L D 1969 S C 552 (561) A; 1969 S C M R 821 (823); 1970 S C M R 432, 797, 699; 1974 S C M R 1(3) B. The case of 1970 S C M R 432 (434) is very important because the occurrence in that case also‑took place at mid‑night.

11. It is also to be noted that "reasonable benefit of doubt" is to be given to an accused person or accused persons as held in:‑ 1974 S C M R 215 (218) and P L D 1977 Lah. 1383 (1389).

12. It is not a difficult case. The prosecution has failed to prove its case under sections 456/363 A.P.C. and to that extent the verdict of the trial Court is correct. But at the same time, we cannot shut our eyes to this aspect of the prosecution story that the three accused persons entered the house of the complainant at mid‑night through a window, tied up the unfortunate complainant and after throwing grounded pepper into the eyes of the inmates of the house, searched for Mst. Begum Jan with the torch‑light and then perhaps took her forcibly away but she escaped from the clutches of those accused persons. We may not believe the story of taking away Mst. Begu Jan but the entry of the accused persons at mid‑night with a criminal intention is a matter which should have been considered by the trial Court. When, some accused persons are challaned under certain sections of the Penal Code and the offence under those sections is not proved but some other offence is made out by the prosecution evidence, the accused persons can be very well convicted and sentenced for the other offence which is proved before the Court.

13. This proposition of law is well settled right from the case of Begum v. Emperor, A I R 1924 P C 130 to Bhutto's case P L D 1979 SC 53 (355‑356). There is a plethora of rulings on this point. A few authorities are:--‑ A I R 1925 P C 130; P L D 1956 S C Pak. 440; P L D 1960 Lah. 15(23) C & D; P L D 1961 Lah. 212 (217); P L D 1962 Kar. 756 (774‑775); P L D 1963 Dacca 806 (810), 1971 S C M R 756 (760) B. The case of the Privy Council is the basic authority in which the charge was under section 302 P.C. The offence of murder was not established but the accused was convicted and sentenced under section 202, P.C. which was made out by the prosecution.

14. When an acquittal order is passed and it appears that the disposal of the case was made on insubstantial grounds and was, therefore, not honest, the order cannot be upheld Muhammad Hussain v. The State 1968 S C M R 428 (431).

15. There is no warrant either in principle or an authority for the proposition that section 423(1)(a), Cr.P.C. does not authorise a High Court to find the accused guilty of an offence other than that with which he has been charged nor is there any sufficient ground for holding that the power contained in sections 236, 237 and 238, Cr.P.C. cannot be exercised by the High Court hearing an appeal under section 423(a), Cr.P.C. (Rameswamy Nadar v. The State P L D 1951 S C India 247 (252).

16. As it is a revision and not an appeal, so we have found that in this case, the trial Court has failed to weigh and assess the prosecution evidence and has failed to see if some offence other than under section 456/363, A.P.C. was made out. We are not going to discuss the evidence at this stage because we propose to remand this case and, therefore, do not want to prejudice the trial Court. We, therefore, accept this Revision Petition, set aside the impugned order dated 29‑9‑1979 maintaining the order of the acquittal under section 456/363, A.P.C. and direct the trial Court to hear the arguments of the learned Counsel for the parties and pass the proper order afresh. The trial Court shall see if some offence other than under section 456/363, A.P.C. is established. It can be said from the petitioner's side that the offence of lurking house trespass stands established by the Prosecution evidence but we leave this matter open to be decided by the trial Court in. the light of our observations made above. S.A. Petition accepted.