P L D 1958 (W (PLP)

8. On the same day he examined Sher Muhammad son of Nur Muhammad, Pathan, and found four superficial abrasions and one contusion on his person. These injuries were simple and could be caused with a blunt weapon.

9. Doctor A. A. Mufti, (P. W. 2), examined Sher Muhammad accused on the 31st of December 1956, at 11‑35 a.m. and found two contused wounds on his person. These injuries were simple and had been caused with a blunt weapon.

10. At the trial 19 witnesses were examined in support of the prosecution case. Shamas‑ud‑Din, Muhammad Shafi son of Abdul Ghani, Muhammad Ismail and Habib Ullah Khan, accused, denied the prosecution allegations and stated that they had been falsely implicated on account of enmity with Haji Muhammad Siddique P. W. Sher Muhammad accused denied the commission of the offences and gave his version which is reproduced. below in his own words:‑ "I, Mauj Din, Wali Muhammad and Shall II were tenants of Seth Miraj Din prior to new construction of his Wahid Market. Seth Miraj Din deceased got the shop vacated from us on the understanding that one shop would be rented to us after the new market is constructed. After the construction of the market, one day before the occurrence, Seth Miraj Din allowed us to occupy one of the shops. On the next day, i.e., the day of occurrence, I, Mauj Din and Wali Muhammad went to place our luggage in the shop but then the deceased had changed his mind. He ordered his , Pathan Chowkidars to make us fly by injuring us. The Pathans attacked us and injured me. We ran away on, account of fear. Many people had assembled there. They later on took possession of our luggage which was lying outside. Shamoon, Shafi I, Habib U11ah, Ismail accused were not with us, nor did the luggage belong to Chand Calender,". In answer to the question whether the thans and irons etc. men tioned in Exhs. P. K. and P. L. had been placed by them in shops Nos. 9 and 10 after breaking open their locks he stated that "we had run away, leaving our luggage outside in front of our shop which is opposite to the market", and added that only the cloth and irons belonged to them and that the other articles were not theirs. Muhammad.Shafi son of Chhajju, Mauj Din and Wali Muhammad accused stated that they had been falsely implicated. The accused examined four witnesses in their defence.

11. The learned Magistrate after carefully reviewing the evidence on the record rejected the defence version and accepting the prosecution case as true convicted and sentenced the accused as mentioned above.

12. The first contention raised by the learned counsel for the appellants was that the trial stood vitiated inasmuch as Mr. Taqi ud‑Din Pal had no jurisdiction to re‑frame or alter the charges so as to enable himself to try the accused. It has already been pointed out that Mr. Khalid Mahmud while framing charges under sections 147, 452/149 and 325/149, P. P. C., had stated in the charges that the accused will be tried by the Court of Session. He was only a First Class Magistrate and although the accused could have been tried by him upon the charges so framed, yet in view of the gravity of the offences he might have thought that in case, of conviction he would not be able to award adequate punish ment, and for that reason might have stated in the charges that the accused will be tried by the Court of Session. But it is clear from the record, that by the time he was transferred from the District he had not made any order committing the accused to stand their trial by the Court of Session. The learned counsel for the appellants contended that the framing of the charges as triable by the Court of Session was tantamount to making an order of commitment, which having regard to the provisions of section 215 of the Code of Criminal Procedure, could have been quashed only by the High Court and that too only on a point of law. In my opinion, there is no substance in this contention. Before making an order of commitment the Magistrate holding the inquiry is empowered under subsection (2) of section 213 of the Code of Criminal Procedure to cancel the charge and discharge the accused, if after hearing the witnesses for defence in accordance with sub section (1) of section 213 he is satisfied that there are not sufficient grounds for committing the accused. It is true that subsection (2) of section 213 authorises the Magistrate to cancel the charge and discharge the accused, and does not provide for the amendment or alteration, of the charge, but this is because it is provided elsewhere in the Code of Criminal Procedure. There is no provision in the Code of Criminal Procedure which prohibits the Magistrate holding the inquiry, from amending or altering the charge once framed. On the other hand, section 227 of the Code of Criminal Procedure empowers all Courts to alter or add to any charge at any time before pronouncing judgment. It shows that the Court has a large discretion in the matter, which can be exercised by the Court at any time. If the accused had been commit ted for trial to ,the Court of Session, then the Court holding the inquiry would have become functus officio, and the Court of Session could have acted under the provisions of section 226 of the Code, if it wanted to amend or alter the charges in any manner. I am, therefore, of the opinion that no illegality was committed by Mr. Taqi‑ud‑Din Pal in altering the charges so as to make the accused triable by himself. The trial, therefore, is not vitiated.

13. It was next argued that the accused were not examined, after the close of the prosecution evidence, as required by section 342 of the Code of Criminal Procedure. But this contention is not correct. Unfortunately, the English record does not show that they were so examined, but from the Urdu record it is quite clear that all the accused were examined in detail on the 25th of November 1957, after all the witnesses for' the prosecution had been examined.

14. Another point upon which great stress was laid was, that the case was decided by Mr. G.M. Mansoor, who had not heard the evidence in the case, and consequently the accused were materially prejudiced. Learned counsel for the appellants invited my atten tion to proviso (b) of section 350 of the Code of Criminal Proce dure , which reads as follows:‑ "(b) the High Court, or, in cases tried by Magistrate subordi nate to the District Magistrate, the District Magistrate may, whether there be an appeal or not, set aside any conviction pass ed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if such Court or District Magis trate is of opinion that the accused has been materially preju diced thereby, and may order a new inquiry or trial". It is a well recognised principle of law that the only person who is competent to decide the guilt or innocence of an accused is the person who has himself heard the evidence in the case, Section 350 of the Code of Criminal Procedure, however, provides an exception to this rule. Subsection (1) of this section gives a discretion to the Magistrate to act or not to act upon evidence recorded by his predecessor. But this discretion is controlled by proviso (a) which lays down that "in any trial the accused may when the second Magistrate commences his proceedings demand B that the witnesses or any of them be re‑summoned and reheard". Whereas subsection (1) gives a discretion in the matter to the Magistrate to re‑summon the witnesses and re‑commence the inquiry or trial or to act upon the evidence recorded by his pre decessor, proviso (a) makes it obligatory upon the second Magis trate to re‑summon and rehear the witnesses, if the accused demands it. In the present case, what happened was that when Mr. Taqi‑ud‑Din Pal amended the charges, he inquired from the' accused if they wished to further cross‑examine any of the P. Ws., but they replied in the negative and then after the close of the prosecution evidence, when they were asked if they wished to produce any evidence, they again replied in the negative. When the case was taken up by Mr. G. M. Mansoor, he inquired from the accused, if they wished any witness to be re‑summoned and reheard, but they declined to do so. Having regard to the pro visions of section 350, Cr. P. C. Mr. G. M. Mansoor was, in these circumstances, legally competent to act upon the evidence already recorded by his predecessors, and there is no illegality about it. The learned counsel for the appellants urged that originally the proceedings were commenced as commitment proceedings and the accused had, therefore, not cross‑examined the prosecution wit nesses as thoroughly as they should have done. After examining the record I have arrived at the conclusion that the main witnesses in the case had been cross‑examined at some length. All the accused were represented by counsel and they deliberately chose not to further cross‑examine the prosecution witnesses and, there after, when the case was taken up by Mr. G. M. Mansoor they again declined to resummon any of the witnesses although oppor tunity was given to them for that purpose. At the hearing of this appeal, the learned counsel for the appellants failed to point out how the accused were materially prejudiced. The method of cross‑examining a witness differs from counsel to counsel, and there is always scope of putting a few more questions to a witness, although he might have been cross‑examined by a very experienced and eminent lawyer. The mere fact that a point here and there strikes to the counsel as of some importance at the appeal stage, is hardly a ground to hold that the accused were materially pre judiced. We have no means of knowing that the counsel for the accused had not purposely omitted to put such questions at the trial stage. I have carefully examined the evidence and I am of the opinion that no prejudice has been caused to the accused. Under proviso (b) to section 350 Cr. P. C. the essential condition for setting aside a judgment is that the accused should have been materially prejudiced by the course adopted by the Magistrate. In the view which I have formed as regards this matter, I see no ground to set aside the judgment under this proviso.

15. As regards the merits of the case, it was contended that the prosecution witnesses were highly interested and although the occurrence had taken place in the heart of the city, yet not a single independent witness was produced at the trial in support of the prosecution case. The case for the prosecution mainly rests on the evidence of Abdul Haq (P. W. 3), Nabi Husain (P. W. 8), Chiragh Din (P. W. 10) and Haji Manzoor Husain (P. W. 11). The last witness was not named in the first informa tion report and he appeared before the police three or four days after the occurrence. Although he appears to be an independent witness, yet I do not think it will be safe to place reliance on his testimony. He has offered no explanation as to why he could not appear before the police earlier. The evidence of Chiragh Din P. W. was challenged on the ground that he worked as a salesman at the shop of Abdul Haq P. W. Chiragh Din denied that he worked as a salesman of Abdul Haq. He was shown the photo Exh. D. A., and he admitted that it was the photo of the shop of Abdul Haq P. W., but denied that he was standing in the photo at D. A/3. There is no note of the Magis trate if the photo was that of the witness. Besides, the photo is not clear. Husain Bakhsh (P. W. 13) who was almost a formal witness admitted that Chiragh Din P. W. was a salesman of Abdul Haq P. W. He is the witness against whom Ilam Din P. W., father of the deceased, had to file an ejectment suit. In the absence of any reliable evidence, his admission that Chiragh Din P. W. was a salesman of Abdul Haq P. W. is not of any value. In my opinion, it is not established that Chiragh Din P. W. was in any way connected with Abdul Haq P. W. He is, therefore, an independent witness. Abdul Haq P. W. is of course the son‑in‑law of the deceased and Nabi Husain P. W. is his Munshi. But there is nothing on the record to show that these witnesses had any ill‑will against any of the accused. The learned counsel for the appellants, however, maintained that these witnesses had implicated the accused under the influence of Haji Muhammad Siddique (P. W. 19), who was inimical to some of the accused. I have read the evidence of Haji Muhammad Siddique very carefully, and I do not find anything in his state ment to show that he had any animus against any of the accused. He admitted that his brother had been elected as President of the Municipal Committee, Lyallpur, in the last election. Ile also admitted that Khwaja Ilyas Ahmad was also a candidate for that post. But he stated that he did not know whether Shamoon and Shafi accused or Haji Abdul Aziz of Chand Calender had opposed his brother or had supported Khwaja Muhammad Ilyas. This does not prove any enmity between Haji Muhammad Siddique P. W. and the accused. It was not even suggested that any of the accused or Haji Abdul Aziz of Chand Calender was a member of the Municipal Committee. I am, therefore, unable to understand how these persons could have opposed the brother of Haji Muhammad Siddique in his election as President of the Municipal Committee. It has now become customary that when an accused is unable to establish any enmity, he begins to take shelter behind some past or future elections. At any rate, in the present case, no enmity has been established between any of the accused and Haji Muhammad Siddique P. W. and, therefore, he could not have persuaded the eye‑witnesses to falsely implicate any of the accused. He was no doubt a friend of the deceased, but that does not mean that he had any motive to concoct .a false case. This witness has proved the dying declaration of Seth Miraj Din. The deceased had given to him the names of all the eight accused, and he had also told him who had broken the locks of the shops and who had caused injuries to him. His evidence is very straightforward, and I see no reason to doubt his testimony. Abdul Haq, Nabi Husain and Chiragh Din P. Ws. have given the eye‑witness account of the occurrence and, after a careful scrutiny of their testimony, I have arrived at the conclusion that they have told the truth. Their testimony finds further corroboration from the fact that a large number of thans of cloth and other articles were recovered from shops" Nos. 9 and

10. The recovery of these articles is fully established by the evidence of P. Ws. 9, 12, 15, 16 and

17. Sher Muhammad accused admitted that the thans of cloth and irons belonged to him, but he denied the ownership of tables and other articles. He denied that they had placed these articles in the shops and explained that these articles were lying in front of his own shop. Through the mouth of his defence witnesses he tried to establish that after the occurrence, Abdul Haq P. W. had taken these articles from in front of his shop and had dumped them in shops Nos. 9 and

10. From the plan of the spot, Exh. P. N. it is clear that the shop of. Sher Muhammad accused is towards the north‑west of the Wahid Market, across the Gurdwara street at a distance of about 35 feet. It is difficult to believe that Abdul Haq P. W. could have dared to bring all these articles from the shop of Sher Muhammad accused. In fact, Muhammad Rafiq (D. W. 1), Sher Muhammad (D. W. 3) and Muhammad Ramzan (D. W. 2) stated that Muhammad Shafi son of Chajju, Mauj Din, Wali Muhammad and Sher Muhammad accused had brought some cloth to the Wahid Market and after they had been beaten they had left the cloth there. This certainly belies the defence version put forward by Sher Muhammad accused. But I am not impressed by the testimony of the defence witnesses either. They have deposed that on the previous day Seth Miraj Din had promised to give one shop to Sher Muhammad accused but when the four accused came with their luggage to occupy the shop, Seth Miraj Din asked his Pathan Chowkidars to beat them and they ran away leaving behind their luggage. This version is so preposterous that it doe; not deserve any serious consideration. However, it is impossible to believe that having agreed to give one shop to Sher Muhammad accused on the previous day, the deceased would have suddenl3 changed his mind on the following day and would have asked his Chowkidars to beat the accused. The very fact that he had engaged eight Pathan Chowkidars goes to show that he apprehended that the accused would try to take forcible possession of the shops From the medical evidence it is clear that out of the accused on Sher Muhammad accused had :received two injuries, while She Muhammad Chowkidar, who appeared as D. W. 3, had received five injuries and Abdur Rahman Pathan had received three injuries This clearly shows that some of the accused were armed with sticks, and in fact they were the aggressors, otherwise they would not have been able to cause as many as eight injuries to the Chowkidars. The reason as to why Sher Muhammad Chowkidar tried to support the defence version is not far to seek. Habib ullah Khan accused being a Pathan, the Pathan Chowkidar appear to have been prevailed upon not to support the prosecution case. Having regard to all the circumstances of the case; I am satisfied that the occurrence had taken place in the manner is stated by Abdul Haq, Nabi Husain and Chiragh Din P. Ws.

16. It appears that Sher Muhammad accused was the firs to go to the police station, but no attempt was made by the defence to place on the record the copy of his report. It is; therefore, not known what version he had given to the police; soon after the occurrence. It may be that in that report an entirely different version was given than the one which was taken at the trial.

17. It was also urged that there was considerable delay in lodging the report. It appears that the father of Haji Miraj Din is aged 95 years, and his son Abdul Wahid is dumb. Only Abdul Haq P. W. who is his son‑in‑law, was there to look after Seth Miraj Din. As no stick blows had been given to the deceased, they might have thought that no serious harm had been done to him, little knowing that the end was so near. But as the deceased complained of pain, he was taken to the shop of his friend Haji Muhammad Siddique, where. he rested for about one and a half hours in the hope that the pain would subside, but his condition deteriorated. During this period they did not even call any doctor. Till then it appears they had not taken it seriously. But when his condition grew worse, he was taken to the hospital at his own request but before any medical aid could be rendered to him he expired. Under the advice of the doctor the body was then removed to the mortuary and it was then that Abdul Haq P. W. went to the police. In the circumstances of the case, I do not think that there was any delay in the lodging of the first information report, and, at any rate, I am satisfied that whatever the reason for the delay might have been, it was certainly not on account of any ulterior motive.

18. The next question which calls for determination is, whether all the eight accused have been proved to have taken part in the occurrence. As regards Shamoon, Muhammad Shafi son of Abdul Ghani, Muhammad Shafi son of Chhajju, Mauj Din, Wali Muhammad and Sher Mabammad accused, there can be no doubt that they had participated in the crime. It was urged that Shamoon and Muhammad Shafi son of Abdul Ghani accused had no interest in the matter. These two accused appear to be connected with Chand Calender and the prosecution case is that the accused had demanded from the deceased that he should give a shop to Haji Aziz of Chand Calender. It is also the case of the prosecution that at the time of the occurrence, a horse‑driven rehra full of thans of cloth and other articles was brought to the Wahid Market and that a signboard of Chand Calender was fixed to the rehra. In view of the number of articles, I am inclined to believe that these articles had been brought in a rehra. No evidence was led in defence to show that Chand Calender had no horse‑driven rehra. It is true that the articles recovered from the shops did not bear the name of Chand Calender, but it may be that the articles had been loaded into the rehra from the shop of Sher Muhammad accused. The evidence is unanimous that Shamoon and Muhammad Shafi son of Abdul Ghani accused had felled Haji Miraj Din, and these were the accused who had given fist and knee blows to the deceased. There is nothing to show that the witnesses could have falsely implicated them. I am, therefore, satisfied that they had participated in the crime. Although Muhammad Shafi son of Chhajju, Mauj Din and Wali Muhammad accused did not admit their presence at the scene of the occurrence, but the learned counsel did not press before me that they were not present at the spot. The evidence is unanimous that they had taken part in the crime. The defence witnesses also say that they had come to the spot. The presence of Wali Muhammad and Maui Din was also admitted by Sher Muhammad accused. Besides, four keys had been recovered from Wali Muhammad accused, by which the locks, which had been put on the shops by the accused, could be opened. It is true that the name of Sher Muhammad accused does not find place in the first information report as one of the culprits, but Abdul Haq has definitely stated that he had given his name as one of the culprits. His name does appear in the first information report but in another connection. It may be that his name was accidentally omitted as one of the culprits. He admits 'his presence and injuries were also found on his person. His name has been mentioned by all the remaining eyewitnesses and they were not confronted with their police statements. I am, therefore, satisfied that these four accused had also participated in the crime. The names of Muhammad Ismail and Habibullah Khan were not mentioned in the first information report, and the former was described as "Ghee wala dokandar jiski dokan Gol Kiryane ke sire par hai our jo Rafiq halivai ka rishtedar hai" and the latter was described as "Pathan drii‑er car azan Haji Aziz". As regards Habibullah Khan, the evidence is unanimous that he was one of the culprits. Nabi Husain and Chiragh Din P. Ws., were not cross‑examined to show that they did not know him. He has not led any evidence to show that he was not the driver of Haji Aziz. I am, there fore, satisfied that he was one of the culprits. The case of Muhammad Ismail, however, stands on a different footing. Abdul Haq P. W. stated at the trial that this accused carried on the business of exchanging currency notes at ghee wala khoka and that he did not know if he was related to Rafiq Halwai. He admitted that another person who was related to Rafiq Halwai, carried on the business of selling ghee at gheewala khoka. The description of Muhammad Ismail accused, therefore, does not fit in with the description given in the first information report. He is of course named by the remaining eyewitnesses but in view of the serious discrepancy in the first information report as regards his description I think he is entitled to the benefit of doubt and I accordingly give him the benefit of doubt and setting aside his convictions and sentences acquit him of all the charges. He shall be set at liberty forthwith. As regards the remaining seven accused I am satisfied that they had taken part in the occurrence.

19. It now remains to be considered what offences have been established against these accused. They did form an unlawful assembly with the common object of forcibly taking possession of the shops situated in Wahid Market, and in prosecution of the common object of that assembly did commit rioting and as such all of them are liable under section 147 of the Pakistan Penal Code. I accordingly uphold their conviction and sentence on this count.

20. It is also established beyond doubt that in the prosecution of the common object of the unlawful assembly Haji Miraj Din was felled to the ground by Shamoon and Muhammad Shafi son of Abdul Ghani accused, who got upon his chest and gave him fist and knee blows. Although it is alleged that Habibullah Khan accused had caught the deceased by his arm, but in view of the fact that this is not specifically mentioned in the first information report I am not satisfied that this accused had physically taken part in the beating given to the deceased. The learned counsel for the appellants strenuously urged that no offence under section 325/149, P. P C., was established on the‑ record. He argued that none of the accused had given any stick blow to the deceased. Even the accused who had given fist and knee blows to him had placed their sticks by their side, which shows that the accused had no intention of causing grievous hurt to the deceased. The definition of `voluntarily causing grievous hurt' is given in section 322, P. P. C., and reads as follows :‑ "Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt". Explanation.‑A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind." From the definition of `voluntarily causing grievous hurt' it is perfectly clear that an accused may not have the intention of causing grievous hurt, yet he will be held liable for causing grievous hurt, if he causes grievous hurt and knows himself to be likely to cause grievous hurt. In the present case we find from the medical evidence that two ribs of Haji Miraj Din had been fractured under injury No.

10. The doctor stated that this injury having a marked dimension was the result of a direct blow, but he did no exclude the possibility of its being caused with a fist or knee blow. The occurrence had taken place in the narrow lane in between the two rows of shops, and as the construction was still going on, the rubble must have been lying at the spot. After the deceased had been felled on the ground, the two accused had got upon his chest and had given him fist and knee blows. In my opinion, all the injuries found on the person of the deceased could have been caused in the manner as is alleged by the prosecution. The deceased was aged 60 years and though the intention of causing grievous hurt can be inferred from the nature of the attack, but at any rate knowledge can be safely attributed to the accused that their act was likely to cause grievous hurt. A person giving knee blows with the weight of his own body, on the chest of a man who is lying prostrate on the ground should know that he is likely by his act to cause grievous hurt. But when two persons get upon the chest of an old man and begin to give knee blows, their knowledge of the likelihood D of causing grievous hurt is almost converted into an intention of causing grievous hurt. I accordingly hold that all the seven accused are liable under section 325/ 149, P. P. C., as the offence was committed in prosecution of their common object of taking forcible possession of the shops. As regards the sentence on this count, Shamoon and Muhammad Shafi son of Abdul Ghani accused who are the principal offenders, do not deserve any leniency. However, the sentence awarded to them on this count is somewhat severe. In their case, I reduce it to four years' rigorous imprisonment each. The remaining five accused, namely, Habibullah Khan, Muhammad Shafi son of Chhajju, Mauj Din, Wali Muhammad and Sher Muhammad accused are sentenced to undergo two years' rigorous imprisonment each.

21. As regards their conviction under section 452/149 P. P. C., the learned counsel for the appellants vehemently argued that no offence was made out under section 452 P. P. C. It was contended that an offence under section 452, P. P. C., is an aggravated form of an offence of house trespass, which is defined in section 442, P. P. C. and reads of follows :‑ "Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, or any building used as a place for worship, or as a place for the custody of property, is said to commit `house -trespass'. Explanation.‑The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house -trespass". Before a person can be convicted of an offence under section 448 P. P. C., which prescribes the punishment for committing house‑trespass, the following essential elements have got to be proved ;‑ (1) that the accused committed criminal trespass, (2) that such criminal tresppass was committed by entering into or remaining in a building, tent or vessel, and (3) that such building, tent or vessel was used as a human dwelling or such building was used as a place of worship or as a place for the custody of the property. In the present case it appears that the construction of the Wahid Market was in progress and a few shops had been completed and shutters had been fixed to them. It is also in evidence that locks had also been put on the completed shops. No doubt, these shops were a part of a building within its general meaning, but it cannot be disputed that a criminal trespass in any building does not convert it into a house trespass‑unless the building is used for one of the purposes specified in the section. It was conceded that no property had been placed till then in shops Nos. 9 and 10, by the owners or by anyone else on their behalf. It was, therefore, contended on behalf of the appellants that the shops had not been used till the date of the occurrence for the custody of the property, and therefore a criminal trespass into these shops, even if it was committed after breaking open the locks and after having made preparation to cause hurt, did not convert it into a house‑trespass. The question raised is one which does not appear to have been determined before by any Court. The learned counsel for the appellants could not cite any authority on the point involved. The learned counsel for the State, however,. invited my attention to Wali Muhammad v. Emperor (A I R 1929 Sind 17(2)) where a Bench of Additional Judicial Commissioners while dealing with the question whether the courtyard was a building within the definition of section 442 I. P. C., observed as follows .‑ "The limitations which appear to have been imposed by the legislature on buildings referred to in sections 380 and 442 are not as to the nature of their structures or the materials of which they are made but to the use to which such structures are intended to be put. Whether any particular structure or any part of it was intended as a human dwelling or as a place of worship or for custody of property must necessarily depend on the facts of each case". I do not think this ruling is of any assistance in solving the point involved. There the meaning and scope of the word `used' was not considered at all. In the context of the language used in the section, the word `used' connotes the use of the building in the Oast as well as in the present. The Oxford dictionary meaning of the word `use' is :"Act of using or fact of being used. The act of employing a thing, for any purpose ; the fact state or condition of being so employed ; utilisation or employ ment for or with some aim or purpose". A judicial interpreter is required to put upon the language of the statute its plain and rational meaning. In the words of Maxwell, the interpreter should put himself in a position of those whose words he is interpreting so as to be able to see to what those words relate, and he can call to his aid all those external, or historical facts which are necessary for the comprehension of the subject, and the Court is not to be oblivious to the history of law and legislation. In this context it will not be out of place to reproduce what the authors of the Code had to say in this regard : It is being reproduced from Ratanlal's Law of Crimes (18th Edition), page 1122:- "There is no sort of property which it is so desirable to guard as the habitations in which men reside and the buildings in which they keep their goods. The offence of trespassing on these places we designate as house‑trespass and we treat it as an aggravated form of criminal trespass". In view of the historical background of the enactment of section 442, P. P. C., and in the light of the dictionary meaning of the word `use', I am inclined to hold that the section does not contemplate, the intended or the prospective use of the building. Only those buildings fall within the purview of this section which have been put to the uses specified in the section. The shops which had been Constructed were undoubtedly intended to be used for the custody of the property, but as the same had not been used for that purpose till the date of the occurrence, a criminal trespass committed in respect of them did not amount to a house trespass and consequently the conviction of the appel lants under section 452/149, P. P. C., cannot be uphold. They are of course liable under section 447/149, P. P. C. as, in my opinion, they had entered into these shops with the intention of in sulting and annoying Seth Miraj Din. I accordingly set aside their conviction and sentence under section 452/149, P. P. C., and convict them under section 447/149, P. P. C. and sentence them of three months' rigorous imprisonment and a fine‑of Rs. 250 each.

22. The result is that Muhammad Ismail appellant is acquitted of all the charges. The remaining accused stand convicted under sections 147, 325/149 and 447/149, P. P. C. They shall have to undergo one year's rigorous imprisonment under section 147, P. P. C., and three months' rigorous imprisonment under section 447/149, P. P. C. They shall have also to pay Rs. 250 each under the latter section. Shamas‑ud‑Din alias Shamoon and Muhammad Shafi son of Abdul .Ghani shall have to undergo four years' rigorous imprisonment each under section 325/149 P. P. C. and the remaining five accused Habibullah Khan, Muhammad Shafi son of Chhajju, Mauj Din, Wali Muhammad and Sher Muhammad shall have to undergo two years' rigorous imprisonment each under section 325/149, P. P. C. The sentences awarded to the accused shall, however, run concurrently, A. H. Order accordingly.