Abdul Hameed Dogar, CJ.--This appeal with leave of this Court is filed against judgment dated 13.5.2004 passed by learned Single Judge of Lahore High Court, Lahore whereby Criminal Appeal No, 960 of 2003 filed by appellants was dismissed.
2. Briefly, stated facts leading to the filing of FIR No, 344/220 dated 09.8.2000 at Police Station Khanqah Dogran under Sections 354, 337-A(iii), 148/149 PPC are that on 26.7.2000 at 4.30 PM.
Complainant Abdul Ghafoor along with his wife Mst. Bashiran Bibi were working in their fields when suddenly appellants, Qadir Shah armed with pistol, Bilal Shah armed with hatchet, Muhammad Ashraf Shah' armed with lathi and Munawar and Rashid armed with dandas whereas acquitted accused Ajmal Shah armed with hatchet, Muzammal Shah armed with danda and Ehsan Shah armed with hatchet emerged there. Appellant Qadir Shah raised lalkara that Mst. Bashiran and Abdul Ghafoor be taught a lesson for cultivating their land. On which Ashraf Shah and Abdul Rashid caught hold of Abdul Ghafoor and Qadir Shah inflicted pistol blows on the person of Mst. Bashiran which hit on her eye brow. Munawar also caught hold of Mst. Bashiran from her throat and got her down on the ground and gave fist blows. Upon which Mst. Bashiran made hue and cry on which Ajmal Shah and Bilal Shah gave blows with wrong side of the hatchets on her left arm and shoulder. It was also alleged that Munawar and Muzammal Shah gave kicks blows to her which hit on her private parts. Then Qadir Shah and Munawar caught hold of her legs from one field to another as a result of which her clothes were torn and she was made naked. On hue and cry PWs Fiaz Hussain and Abdul Shakoor got attracted and went at the place of incident while the accused fled away.
3. The matter was investigated by the local police, as a result of which the case was found false and report of cancellation of FIR was prepared. Feeling aggrieved, complainant filed private complaint upon which the cognizance was taken by learned Additional Sessions Judge, Sheikhupura.
4. Prosecution in order to prove its case produced four witnesses whereas CW-1 Dr. Tausif Ahmed Qureshi, Medical Officer, Civil Dispensary, Jhabran District Sheikhupura and CW-2 Ghulam Mehdi, SI (Investigation Centre), Sheikhupura were called by the Court.
5. The statements of appellants were recorded under Section 342 Cr.P.C. wherein they denied the case of prosecution and pleaded false implication. However, they neither examined themselves on Oath as required under Section 340 (2) Cr.P.C. nor produced evidence in their defence.
6. Learned counsel for the appellant vehemently contended that FIR was lodged after unexplained delay of 16 days. He further contended that the matter was investigated by the police as a result of which the same was found false and report of cancellation of FIR was prepared. According to him, prior to the registration of case there exist civil as well as criminal litigation in between the parties.
He further contended that Mst. Bashiran was admitted in the hospital but the medical officer did not observe any injury on her person. Furthermore, there was no mention of any blood on her person as well as her clothes in the police record. He contended that provision of Section 354-A PPC are not attracted as the pre-requisite are that firstly the occurrence should have been taken place at thorough fare and secondly the clothes are completely removed and that the lady is exposed to public view. He further contended that no independent witnesses have been examined as such it cannot be held that it was witnesses by public. He lastly contended if the version of complainant is presumed to be correct even then the case would all under Section 354 PPC and not under Section 354-A PPC.
7. On the other hand, learned DPG controverted above contentions and supported impugned judgment. He contended that prosecution has successfully proved its case beyond any shadow of doubt.
8. We have considered the contentions raised at the bar and have gone through the record and proceedings of the case in minute particulars. Admittedly the FIR was lodged after a delay of 16 for which no explanation of any sort is furnished. The police investigated the case and found it false and report of cancellation of FIR was prepared which fact was affirmed by CW-2 Ghulam Mehdi, Investigation Officer of this case. No independent witness has been produced to support the version. The injury on the right eye brow of Mst. Bashiran Bibi which was alleged to have been caused by a pistol shot fired by appellant Qadir Shah, the said injury was declared not to have been caused by a fire arm weapon.
9. Now coming to the question as to whether Section 354-A PPC is attracted in the present case or not, it would be advantageous to reproduce 354-A PPC as under: "354-A Assault or use of criminal force to woman and stripping her of her clothes.--Whoever, assaults or uses criminal force to any woman and stripes her of her clothes and, in that condition exposes her to the public view, shall be punished with death Or with imprisonment for life, and shall also be liable to fine."
The plain reading of above provision of law would reveal that to attract the said penal provisions, two conditions must be fulfilled, firstly, there should be stripping of the clothes and secondly the victim in that condition be exposed to the public view. Both the conditions must co-exist to bring the case within the ambit of Section 354-A PPC, which fact is missing in the instant case, as the occurrence took place in the fields, the clothes of the victim were just torn and not stripped of.
Similarly exposure of the victim to the public-at-large is also missing as no one from general public was present at the scene of incident.
10.In view of above, we are of the view that provisions of Section 354-A PPC are not attracted rather the case fall under Section 354 PPC. These are the reasons of our short order of even date, which reads as under: "For the reasons to be recorded later, this appeal is partly allowed. The conviction of the appellants, namely, Qadir Shah, Munawar and Rashid is altered from 354-A to 354 PPC and sentenced to two years R.I. each, however, sentence of fine is maintained. They shall be released forthwith, if not required in any other case."