1984 P Cr (PLP)

Muhammad Abul Fateh for the State. Date of hearing: 29th April, 1984. This is a revision against the judgment dated 11th January, 1968 of the Additional District Magistrate, Layallpur, whereby he dismissed the appeal of the petitioners and maintained their conviction under section 452, P. P. C. and their sentence of fine of Rs. 50 each or simple imprisonment for one month each in case of default in the payment of the said fine.

2. The charge against the petitioners was that on 11th October, 1966, at 4-00 p. m., they having armed themselves with weapons of offence trespassed into the house of Mst. Nasreen and her brother Abdul Manaf in order to cause hurt and had actually started beating them there. In this case, Abdul Sattar, brother of Mst. Nasreen had filed a private complaint against the petitioners for offence under section 323/452, P. P. C. This was done after Mst. Nasreen had approached the police on 12th October, 1966 and had failed to get the F. I. R. registered with the police in respect of the said occurrence. In this complaint, Mst. Nasreen Begum appeared as P. W. 1, Nazir Ahmad, a neighbour appeared as P. W. 2 and Abdul Sattar, brother of Mst. Nasreen Begum appeared as P. W. 3.

3. In their statements under section 342, Cr. P. C. the petitioners denied the charge. Muhammad Ali alias Mahanda, Bagoo and Muhammad Amin stated that a false case against them had been made due to enmity and party faction while Mst. Naziran Bibi petitioner stated that on account of abuse, this case had been made against her. They stated that they would produce defence evidence. In defence Amir Ahmad, a neighbour appeared as D. W.

1. He stated that on hearing the noise coming from the house of Mst. Nasreen, he had gone there and had found Mst. Nasreen abusing the petitioners Amin and Bagoo. He had restrained Mst. Nasreen from abusing them and had thereafter come back and he did not know what happened thereafter. Shabbir Abbas, a Head Constable of Police Station appeared as D. W. 2 and stated that Mst. Nasreen and her mother had got recorded Exh. D. A. report No. 5, dated 12th October, 1966 which had been read by him to them and both of them had affixed their thumb-impressions in token of their accepting the said report to be correct.

4. Learned counsel for the petitioners having died, a notice was sent to the petitioners either to engage a counsel or themselves appear to pursue this case. The endorsement on the file shows that notices were sent to them on 11th April, 1984 for today's date. None of them has appeared. Under section 440, Cr. P. C., I am not bound to bear the petitioners in this case. I, therefore, proceed to determine the matter with the assistance of the learned counsel for the State.

5. The first ground taken in this revision petition is that the com plainant lives in the same house in which the petitioners are living and since the petitioners at the time of the alleged occurrence were in their own house, no offence of criminal trespass under section 452, P. P. C. stood made out. The plea raised, however, is not supported by any evidence A on the record of the case. The statement of Mst, Nasreen as P. W. 1 clearly states that she alongwith her brother Abdul Manaf was in her own house and there was a four feet high wall in between the house of Mst. Nasreen Begum which is in an area of 5 marlas and the house of the Petitioners and the petitioners scaled over the said wall and trespassed into the house of Mst. Nasreen and gave beating to her and Abdul Manaf. Though Nazir Ahmad P. W. 2 stated that Nasreen Begum was living in the Ihata of Jhanda Lambardar and Jhanda and Muhammad Ali peti tioner are brothers and there is a dispute between Nasreen Begum etc. and Jhanda etc. in respect of ownership of this Ihata, but he also stated in cross-examination that houses of petitioners are different and there is four feet high common wall in between them and exit doors of the two houses are different. The petitioners did not in their statement under section 342, Cr. P. C. take this plea. Petitioners did not produce evidence in defence to that effect. No site plan was produced by them to prove the said plea. In view of the above, there is no substance in this ground. The same is therefore rejected.

6. The next ground raised in the revision petition, is that in Exh. D. A. the police report dated 12th October, 1966, got recorded by Mst. Nasreen P. W., Mst. Naziran petitioner was not named at all and no part was ascribed to Muhammad Anwar while in the complaint made by -her brother Abdul Sattar P. W. 3, her name had been included and other improvements in the alleged story had been made which could not have been permitted and they show that the prosecution story is wholly false. I am afraid, I cannot accept this contention too. No previous statement of Mst. Nasreen could have been used unless under section 145 of the Evidence Act, she had been confronted with her previous statement and had been given an opportunity to explain contradiction if any. That course of conduct had not been adopted. The said statement, therefore, cannot be used to negate the prosecution story, especially when the evi dence in the complaint case is that the police had not helped Mst. Nasreen and had on the other hand, collusively recorded a rapat roznamcha exonerating the accused persons. This point also, therefore, has no force.

7. There is, therefore, no merit in this revision petition and the same is dismissed. M. Y. H. Petition dismissed.