This judgment will dispose of Criminal Appeal No. 960 of 2003 filed by Qasim Shah, Munawar, Rashad, Muhammad Ashraf and Bilal Shah, appellants who were convicted and sentenced by learned Additional Sessions Judge, Sheikhupura vide judgment dated 27.5.2003 as under:-- Qadir Shah, Munawar and Rashid Imprisonment for life with a fine of Rs. 10,000/- in default six months each under Section 354-A, PPC, Qadir Shah Two years RI u/S. 337-A(1) PPC Munawar, Muhammad Ashraf Shah and Bilal Shah One year SI u/S. 337-L(ii) PPC.
All the five accused where also convicted under Section 148 PPC and sentenced to 3 years RI each with a fine of Rs. ,10,000/- each in default 3, months SI and Two years RI each under Section 506(ii)
PPC.
2. Briefly stated the facts of the case are that on 26.7.2000 at 4.30 p.m. Mst. Bashiran Bibi and Abdul Ghafoor both husband and wife were working in their fields when suddenly Qadir Shah, armed with pistol, Ajmal Shah armed with hatchet, Muzammal Shah armed with danda, Bilal Shah armed with hatchet, Ehsan Shah armed with hatchet, Muhammad Ashraf Shah armed with lathi, Munawar armed with danda and Arshad also armed with danda emerged. Qadir Shah raised lalkara that Bashiran Bibi and Abdul Ghafoor be taught a lesson for cultivating the lands of the complainant.
Upon the said lalkara, Ashraf Shah and Abdur Rashid caught hold Abdul Ghafoor in their jhapa and Qadir Shah inflicted pistol blows on the person of Mst. Bashiran which hit on her eye brow. Munawar also caught hold Mst. Bashiran from her throat and got her down on the ground and gave fist blows. She made hue and, cry. While Mst. Bashiran was lying on the ground, Ajmal Shah and Bilal Shah gave blow with wrong side of the hatchets which, landed on her left arm and shoulder. It was also alleged in the complaint that Munawar and Muzammal Shah gave kicks blows to Mst. Bashiran which hit on her private parts. Then Qadir Shah and Munawar caught hold the legs of Mst. Bashiran and dragged her from one field to other as a result whereof, her clothes were torn and she was made naked. On her hue and cry, Muhammad Nawaz, Fiaz Hussain and Abdul Shakoor came at the spot while the accused fled away.
3. As a result of the investigation conducted by the Police, case was found to be false and report for cancellation of the FIR was prepared. Abdul Ghafoor and Mst. Bashiran filed a private complaint upon which the cognizance was taken by the learned Additional Sessions Judge. At the trial, four PWs and 2 CWs were produced. Thereafter statements of the accused were recorded u/S. 342 Cr.P.C. in which they pleaded false implication. After conclusion of the trial, Ajmal, Muzammal and Ehsan Shah were , acquitted while the five present appellants were convicted and sentenced as stated above.
4. Learned counsel for the appellants submits that the FIR was lodged after unexplained delay of 16 days; the case was found to be false .by the Police, there was no motive on the part of Qadir Shah to attack upon Mst. Bashiran and made her naked; prior to registration of the instant case, civil and criminal litigation was going on between the parties; no male member was injured by the accused at the spot; leaving the hospital at Khankah Dogran, Mst. Bashiran got her medically examined from Jabran dispensary on 31.7.2000 when she was admitted in the said dispensary on 29.7.2000 and that too on the specific direction of the. Area Magistrate to have the medical from Jabran dispensary; the doctor when admitted the lady in the dispensary, he did not observe any injury on her person; there was no mention of any blood on the person of the lady and her clothes; the victim lady did not produce her alleged torn clothes either before the Police or before the trial Court; the occurrence having not taken place in a thorough fare, the provisions of Section 354-A, PPC are not attracted; the pre requisites of Section 354-A, Cr.P.C. are that (I) occurrence should have taken place at a thorough fare and secondly the clothes are completely removed and that the lady is exposed to public view; the witness Faiz who claims himself to be independent is from brother hood of the complainant party and that the prosecution has miserably failed to prove its case against the appellants. He lastly submits that case if any is made out against the appellants, that is, under Section 354 PPC. To support his version that Section 354-A, PPC is not attracted in the facts and circumstances of the case, learned counsel has relied upon 1989 P.Cr.L.J. 1453 and 1991 P.Cr.L.J. 194.
5. Learned counsel for the State submits that Mst. Bashiran star witness of the prosecution has fully implicated the appellants and her statement is corroborated by the statement of Faiz PW.3 who was an independent witness, having no relation ship or enmity with either party. Further submits that the appellants did not opt to make statements u/S. 340-(2) Cr.P.C. He supports the judgment of the trial Court.
6. I have heard learned counsel for the parties and have gone through the record. In the instant case, Mst. Bashiran is star witness of the prosecution. She has fully implicated the present appellants in her statement before the trial Court. The occurrence had taken place on 26.7.2000 while statements of the witnesses were recorded two years and nine months thereafter, so minor discrepancies may occur and those minor discrepancies are not sufficient to dislodge the case of the complainant. The Court has to see the quality and not the quantity of evidence. Even on the statement of a solitary witness, conviction can be ordered or maintained, if it rings true. Mst.
Bashiran victim had got no enmity with the appellants. The dispute if any was between Qadir Shah and Majeed, the brother of Abdul Ghafoor, the complainant. Mst. Bashiran has stated in clear terms that firstly she was given injuries, dragged and then made naked. Fiaz PW.3 has fully corroborated the statement of Mst. Bashiran. He had no relationship whatsoever with Mst. Bashiran and has stated that he put her chadar on the person of Mst. Bashiran. The chadar was only put on the person of Mst. Bashiran when she was made naked.
Mst. Bashiran was medically examined on 29.7.2000 at 9.05 a.m. and not on 31.7.2000 as alleged by learned counsel for the appellants and so stated by Dr. Tausif Ahmad CW.1. The men can tell lie but not the documents. This document was prepared four years earlier from today. The duration given by the doctor who medically examined the lady victim was 72 hours which, also fits in with the time of occurrence given by the complainant.
It was vocifourcely argued by learned counsel for the appellants that a medical board was also constituted on the request of the appellants and as per report of the Board, there was no injury on the person of Mst. Bashiran. On my question to learned counsel for the appellant that did any application was moved before the trial Court to summon any of the member of the Board, the answer was in the negative. The learned trial Court has marked some documents which, are on the record. Mark B is copy of the order of the District Magistrate while marks C and D are proceedings of the board. Mark C consists of two pages. On the first page, the injury which, was observed by Dr. Tausif (CW.1) finds mention. On the second page of mark C, the board had given one injury and then there was an old united fracture lower shaft of left ulna. According to opinion of the board, Injury No. 1 was shajah khafifah but the description and place of the injury is the same as given by Dr. Tausif CW.1. Injury No. 5 was declared as ghair jaifah hashmia under Section 337- F(v). There were other three injuries, that is complain of pain. The board medically examined Mst. Bashiran three months after the occurrence. During this period, pain must have finished. The next contention of learned counsel for the appellants that CW.1 was not competent to medically examine the victim lady. It is without force for the reason that in cross-examination, the doctor stated that he was authorized to carry out the medical examination but later on that power was withdrawn.
In the civil litigation, neither Abdul Ghafoor nor Mst. Bashiran were party. However, a case was registered' against Abdul Ghaf000r and others under Section 440 PPC, 16 days prior to the occurrence at the instance of Qadir Shah which, was still under investigation.
As far as delay in lodging the FIR is concerned, the defence himself brought on record the explanation and that was that victim lady had gone even to Lahore and approached the higher police authorities for the said purpose.
The contention that the case was found to be false by the Police is too without any substance.
Firstly, the ipse dixit of the Police is not binding upon this Court and secondly the Police was favouring the accused and this was the reason that she had to fife a complaint before the trial Court.
Now, I would take up the citation referred to by learned counsel for the appellants. In the case of Muhammad Ashraf and 3 others versus The State (1989 P.Cr.L.J. 1453) there was no independent witness and all the witnesses were members of the family but in the case in hand, statement of the complainant was fully supported by Faiz PW.3 who had no relationship with the complainant party.
Then is Abdul Latif and another versus The State (1991 P.Cr.L.J. 194) In para 6 of the report it has been observed that condition regarding stripping of a woman of her clothes is fulfilled when the clothes are completely removed making her naked. In fact, this is the case of Mst. Bashiran, the victim which finds support from the statement of Faiz PW.3 when he stated that he gave chadar on the person of Mst. Bashiran.
From what has been discussed above, I am fully convinced to hold that the prosecution has been successful in proving its case against the a appellants to its hilt though the alleged victim was put to lengthy test of cross-examination. It may be observed that no woman of even lowly status would coin up such a story putting her and honour of the family at risk. The victim in this case is a married lady. Resultantly, the appeal filed by the appellants is dismissed. The conviction and sentence recorded against the appellants by the trial Court is maintained in toto. Sentence of. Muhammad Ashraf and Bilal Shah, appellants was suspended by this Court. Now, they shall be taken into custody to serve out their sentence.
Before parting with this judgment, I would like to observe that the learned trial Court after having believed the eye-witness account and the prosecution story, should have also convicted and sentenced Muhammad Ashraf and Bilal accused under Section 354-A, PPC alongwith three appellants namely Qadir Shah, Munawar and Rashid because the story of the prosecution was that all the accused persons while armed with weapons came at the spot in furtherance of their common object and committed the offence but he did not. The State and the complainant party having not filed any appeal against the acquittal of appellants Muhammad Ashraf and Bilal under Section 354-A, PPC, I am handicapped to convert their conviction from Section 337 PPC to 354-A, PPC.