Through the instant criminal appeal, the appellant/Nawaz alias Najee has challenged the judgment dated 24.2.2010, whereby the learned Additional Sessions Judge, Faislabad has convicted him under Section 354, PPC and sentenced him to two years R.I with fine of Rs, 15,000/- or in default thereof to further undergo two months S.I.
2. The brief facts of the case are that complainant/Zahid Rasool(P.W.1) filed private complainant/Ex.PA against twenty accused/respondents on 4.9.2004 wherein it was stated that on 26.2.2004 at about 7.00 p.m, Nawaz alias Najee/accused/Respondent No, 1 made an attempt to commit carnal intercourse with his daughter Mst.Sabahat Rasool aged about 8 1/2 years at Gardina Bar (edge). On her alarm, the complainant alongwith his brother Rashid reached at the spot. In the meanwhile, his wife alongwith Tariq/P.W and other neighbours also reached there.. On seeing them, the accused fled away. The complainant alongwith his daughter and the P.Ws went to P.S D-Type Colony and reported the matter to the SHO/Respondent No, 2, who asked them to come on the next day and on next day, instead of registering the case, the SHO compelled the complainant to effect a compromise with the accused but he did not agree and submitted an application to the D.P.O Faisalabad for registration of case, who marked the said application to the SHO for initiating legal proceedings but to no avail. The complainant moved many applications to the high ups of the police, upon which Khadim Hussain, ASI/Respondent No, 5, on the direction of the SHO registered FIR No, 222/04 on 28.6.2004 under Section 354, PPC but he did not record the actual version of the complainant in the FIR. The complainant further stated that investigation of the case was undertaken by Rana Nasir, Incharge Investigation/Respondent No, 3 and Muhammad Aslam/ASI /Respondent No, 4, who in connivance with the accused, persuaded him to forgive the accused and did not add Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the crime report. He again moved applications to police officers upon which Imtiaz.
Cheema, DSP, People Colony Circle summoned the case file and directed to add Section 18 of the Ordinance ibid in the crime report but despite the said direction, the Respondents No, 3 and 4 did not arrest the accused. The complainant further stated that Respondents No, 6 to 20 in connivance with the accused, without obtaining his consent or signatures, prepared a forged `punchayatnama' and placed the same on case file. Hence, the complainant, filed a private complaint under Sections 420, 468, 109 and 161, PPC and Section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the Court of Sessions Judge, Faisalabd.
3. The learned trial Court after recording cursory statements of the complainant and the P.Ws, deleted the names of Respondent No, 2 to 20 vide order dated 18.10.2004 and summoned Nawaz alias Najee/ Respondent No, 1, on 29.1.2005 to face trial.
4. The learned trial Court framed the charge against the accused/present appellant under Section 18 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on 14.11.2006. The accused did not plead guilty and claimed to be tried.
5. The complainant produced two witnesses in addition to his own statement which was recorded as P.W.1. However, the learned counsel for the complainant gave up P.W/Tariq as being un- necessary. The learned trial Court also recorded statements of three persons as Court witnesses namely C.W.1/Muhammad Aslam, ASI, C.W.2/Khadim Hussain, S.I. and C.W.3/Muhammad Tariq. The gist of the statements of all the witnesses of the complainant has been mentioned in the impugned judgment dated 24.2.2010, and there is no need to reproduce the same while deciding the instant appeal in order to avoid unnecessary repetition. However, the relevant portion of the statements of the witnesses of the complainant would be discussed in the subsequent paragraphs, if required.
6. After closure of the evidence of the complainant, the accused was examined under Section 342, Cr.P.C., wherein he has categorically denied the allegations levelled against him by the complainant. The appellant/Nawaz alias Najee in response to a crucial question as to why this complaint and why the P.Ws have deposed against you, replied as follows: False case has been registered by the complainant which was cancelled. A few days prior to alleged occurrence a quarrel had taken place between my mother and wife of complainant and a punchayat was convened in which Rs, 6000/- fine was imposed upon complainant party as my mother had received injuries and due to this grudge this false case as well as complaint have been registered against me just to milk money and blackmailing. I used to sell chips on Rari and actually daughter of complainant Mst. Sabahat came and demanded chips from me without money. I admonished her and said to bring money, over which Mst. Sabahat went to her house while weeping. Thereafter complainant and his wife came, whereupon hot words were exchanged and keeping in mind the previous grudge complainant has falsely concocted this occurrence involved me in this false case. P.W/Rashad is real brother of complainant, while P.W./Gulnaz is his wife, who has been also introduced as witness for improving 'story. As per complainant case Tariq and Sajjad also attracted at the scene of occurrence but independent witnesses were given up; that Tariq is summoned as C.W.-3 by this Court and he did not support the concocted story of complainant. I am innocent and falsely involved due to above stated reasons. Moreover, minor victim the star witness of this case was neither got medically examined, nor she is produced by the complainant"
The accused neither opted to make his statement as envisaged under Section 340(2), Cr.P.C. on oath nor produced any evidence in defence.
7. Upon the conclusion of the trial, the learned trial Court vide judgment dated 24.2.2010 has convicted accused/present appellant as mentioned herein before in para-1 of this judgment.
8. Mian Jameel Akhtar, Advocate, learned counsel for the appellant submitted that complainant/Zahid Rasool has not produced any independent witness during the trial. The complainant appeared himself as P.W.1 whereas P.W.2/Gul Naz and P.W.3/Rashad Rasul are his wife and real brother respectively. He contended that there are material contradictions in the statements' of the witnesses of the complainant. He further submitted that the complainant alleged in his complaint that the accused was trying to commit sodomy with his daughter but the learned Additional Sessions Judge has framed charge under Section 18 Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Further-more, the complainant never got the victim medically examined from any lady doctor. He pointed out that all the witnesses of the complainant only alleged that the accused made an attempt to commit sodomy with the victim/Sabahat Rasool. He also contended that the instant complaint was lodged with mala fide intention by the complainant against the accused/present appellant. He claimed that the occurrence as alleged in the complaint never took place and no charge could be proved by the complainant against the appellant beyond reasonable shadow of doubt. Learned counsel for the appellant has contended that in fact, a quarrel had taken place between the mother of the appellant and wife of the complainant and in this regard a punchayat" was constituted, in which Rs, 6000/- fine was imposed upon the complainant party because the mother of appellant had received injuries in the said occurrence and due to that grudge, the complainant has roped the appellant in this false case. Lastly, he pointed out that the learned trial Court did not appreciate the facts and law of the case and has recorded the conviction by adopting the pick and choose method, without applying its judicial mind, and adopting the set standards of criminal trial. He argued that neither the commission of an offence under Section 354, PPC nor an attempt to commit `zinc' falling within the mischief of Section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was proved by the complainant beyond reasonable shadow of doubt. He claimed that the impugned judgment is illegal, contrary to law and facts of the case as well as against all canons of justice, hence, liable to be set-aside. He pleaded for acquittal of the accused from the charge by setting aside the impugned judgment dated 24.2.2010.
9. Conversely, the learned counsel for the complainant as well as the learned Deputy District Public Prosecutor opposed the instant appeal on the ground that there is no chance of false implication of the convicted accused/present appellant by the complainant, as the victim is her daughter and only 8 1/2 years old, and no father would like to tarnish the future of her daughter by leveling false accusation of such a nature. They also pointed out that the accused/present appellant did not produce any evidence in support of his plea raised in his defence. They further submitted that all the witnesses have categorically stated that the accused tried to commit 'sodomy' and the same is sufficient for recording his conviction.
10.I have heard learned counsel for the appellant as well as learned counsel for the complainant.
The learned D.D.P.P has also advanced his arguments. I have evaluated the evidence produced by the complainant in addition to minutely scanning the impugned judgment dated 24.2.2010.
11.From the plain reading of the complaint, it is revealed that there is an allegation of an attempt to commit illicit carnal intercourse by Nawaz alias Najee/present appellant with Mst.Sabahat Rasool.
All the witnesses of the complainant i.e P.W.1 to P.W.3 have also unanimously stated in their respective statements that the accused after removing the shalwar of Sabahat Rasool was attempting to commit sodomy with her. However, in this case, the learned trial Court charged the accused of having made an attempt to commit zina-bil-jabr with Sabahat Rasool, which is punishable under Section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. As observed above, neither the complainant alleged in his complaint nor the witnesses of the complainant levelled any allegation of making an attempt by the accused to commit zina-biljabr with Sabahat. Therefore, this Court is of the considered view that the learned trial Court did not charge the accused with the relevant offence which is punishable under Section 377, PPC read with Section 511, PPC.
12. Notwithstanding the above mentioned legal flaw in the charge, I intend to decide the instant appeal in respect of the conviction of the present appellant under Section 354, PPC. In this connection, I would like to observe that the complainant has not produced any independent witness in support of his allegation. P.W.2/Mst.Gul Naz is the wife of the complainant whereas P.W.3/Rashad Rasul is the real brother of the complainant. One witness namely Tariq son of Ali Muhammad, who has reached on the spot at the time of the alleged occurrence and also stately had seen the accused committing the offence, was given up by the complainant as being un- necessary. But he was summoned and examined by the trial Court as C.W.3. Muhammad Tariq while appearing as C.W.3 admitted in his cross-examination that he had not seen the occurrence.
He further clarified that it was . the complainant/Zahid Rasool, who had told him that accused/Nawaz alias Najee had tried to commit `ziadti' with his daughter. Secondly, the complainant never got her daughter namely Mst. Sabahat Rasul medically examined after the incident. Thirdly, the complainant and the remaining witnesses produced by him did not specifically state that the accused had also put off his own shalwar. Furthermore, the accused admittedly had not taken Mst. Sabahat Rasul inside his house or any other premises. In the ordinary circumstances, no person can take the risk of committing sodomy with a girl in an open area. Even otherwise, the convicted accused/present appellant has taken a specific defence that he has been falsely implicated due to a quarrel which took place between her mother and wife of the complainant few days prior to the occurrence. The accused also explained that the daughter of the complainant namely Mst. Sabahat Rasul demanded "chips" without making payment, whereupon he admonished her and she went to her house while weeping, which resulted in his involvement in this case by the complainant by concocting a false story.
13. Even if I consider the alleged act of the present appellant in juxtaposition with the offence falling within mischief of Section 354, PPC, the same is also not established from the evidence of the complainant beyond reasonable shadow of doubt. As observed above, the complainant never produced the shalwar of the victim to the I.O. Similarly, the accused admittedly had not put off his own shalwar at the time of occurrence. Additionally, the accused neither assaulted nor used any criminal force against Mst. Sabahat Rasul, indicating his intention to outrage her modesty.
Needless to mention here, that the main ingredients of Section 354, PPC are "assault" and use of "criminal force", which are lacking in this case. It would not be out of place to mention here that attempt means an intentional act with a view to attain certain end or an act done in part execution of criminal design but falling short of actual consummation/commission due to the circumstance beyond the control of the offender. There is no witness of "assault" or use of "criminal force" by the accused against the victim, or any other attending circumstance which could establish beyond reasonable doubt that the present appellant tried to outrage the modesty of Mst. Sabahat Rasul/daughter of the complainant. Hence, the case of the complainant is doubtful. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by the Hon'ble Supreme Court of Pakistan in the case of Tariq Pervez Vs. The State -(1995 SCM R 1345) that for giving the benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not, as a matter of grace and concession but as a matter of right.
14.The upshot of the above discussion and observations is that the complainant could not prove the case against appellant beyond reasonable shadow of doubt. Consequently, the impugned dated 24.2.2010 is set aside. Resultantly, the instant appeal filed' by the appellant/Nawaz alias Najee is accepted and he is acquitted of the charge. The appellant is present on bail. His bail bonds stand discharged and the sureties are ordered to be released.