' IRFAN SAADAT KHAN, J.---This Criminal Bail Application has been filed on behalf of the applicant, who is nominated in F.I.R. No,350 of 2009, under section 295-C, P.P.C. Of Police Station Gizri, on the ground of statutory delay in concluding the trial.
2. Briefly stated the facts of the case are that the above F.I.R. Was registered against the applicant on the complaint of respondent No,2 Mr. Ansar Abbasi on the ground that the applicant has committed blasphemy. Thereafter, the applicant was arrested, interrogated and sent to jail, wherein he is confined till date.
3. As per the complainant he received two e-mails on 29th and 30th of June, 2009, contents whereof were not only obnoxious but also extremely disturbing for the Muslims. Since these e-mails were blasphemous in which some offending and, defiling remarks were used against our Last Prophet Muhammad (Sallallhu Alaihi Wasallam), the complainant attached the said e-mails with his application dated 17-7-2009 and forwarded the same for registration of F.I.R. Against the applicant. An enquiry thereafter was conducted by the FIA Inspector Mr. Muhammad Ali Abro, who made search of the premises of the accused and thereafter took into his possession certain materials including USB Expode 2GB etc. After thorough investigation and discovering the password it revealed that it was the applicant who has been responsible for sending those blasphemous e- mails, thereafter, the instant F.I.R. Was registered.
4. A bail application was moved before the Additional Sessions Judge, who vide his order dated 26- 8-2009 dismissed the same. The applicant thereafter moved another bail application, which was also dismissed by the Additional Sessions Judge vide order dated 10-6-2010. Then the applicant moved yet another bail application on the ground of statutory delay, which too was dismissed by the Additional Sessions Judge vide order dated 18-10-2011. It is against this order that the present bail application has been filed on the ground of statutory delay.
5. Ms. Sarah Belal and Ms. Saman Imtiaz, Advocates appeared on behalf of the applicant and submitted that the applicant is behind the bars since the last more than four years. They submitted that charge was framed after a delay of 10 months and 13 days and first prosecution witness in this case was produced after more than 17 months of the arrest. They stated that as the applicant is behind the bars since more than two years, after the framing of the charge, hence he is entitled to be released on bail on the ground of statutory delay. They furnished a detailed chart mentioning each and every date on which the case was fixed and submitted that perusal of the said chart would reveal that the delay has occurred because of the prosecution side as they were not proceeding with the trial. While elaborating her viewpoint Ms. Sarah Belal submitted that no doubt a number of adjournments were taken by her but those adjournments were on the ground of either death in the family, non-availability of seat as she has to come from Lahore, personal illness, appearance before some other Court, strike, Court lying vacant etc. She stated that the adjournments were taken only when the reasons were beyond her control. She, however, frankly conceded that on certain dates adjournments were taken by her due to none of the above reasons. While explaining her viewpoint she submitted that she was in contact with the Reader of the Court, who used to inform her about the matter in case of any eventuality or when the case is not likely to proceed on a certain date. She submits that even after the passage of substantial time only 3 prosecution witnesses out of 18 have so far been examined. According to her there is no likelihood in the near future that the case could be concluded and in view of the circumstances, the applicant is entitled to be granted bail. The learned counsel has submitted certified copies of the various adjournment applications moved by her before the lower Court. She further submitted that the newly-inserted provision of section 497, Cr.P.C. Is a relief giving provision according to which if a delay has occurred in the trial, the applicant is entitled to be enlarged on bail. She states that however there are certain prerequisite conditions of law in this regard. In support of her above contentions the learned counsel has relied upon'the following decisions:-
(1) Ziauddin v. The State (PLD 2012 Sindh 147)
(2) Razia Bibi v. The State (2011 YLR 1008)
(3) Jamshed Ali v. The State (2012 PCr.LJ 1022)
(4) Malik Amjad Pervez v. The State (2012 YLR 1907)
(5) Zameer v. The State (2012 YLR 477)
(6) Zulfigar v. The State (1998 MLD 1551)
(7) Taj Muhammad v. The State (2011 PCr.LJ 1910).
(8) Haji Javed Ahmed v. The State (PLD 1997 Karachi 156)
(9) Abdul Razzak Zangejo v. The State (PLD 2012 Sindh 218)
6. Mr. Nadir Chang, Advocate has appeared on behalf of the respondent No,2/complainant and filed a statement according to which the complainant received the e-mails, which, according to him, were blasphemous and forwarded the same to the FIA. The complainant further submitted that he is ready to appear before the Court to give statement and to cross-examine himself about the same. The complainant, however, stated that since he has done his duty, it is for the Court to decide whether to grant bail or not, as per the facts and circumstances of the case.
7. Mr. Saleem Akhtar, Additional Prosecutor-General vehemently opposed the present bail application and submitted that the applicant has not come to the Court with clean hands as the parameters for granting bail, as mentioned in the newly introduced provision in section 497, Cr.P.C., have not been fulfilled. While elaborating his viewpoint he furnished a chart mentioning therein that from 3rd June, 2010 to. 16th April, 2013, 64 hearings in the case took place and out of those 64 hearings for as many as 47 times defence counsel was not available. We submitted that out of those 47 times, 19 are the days on which the defence counsel took adjournment for one reason or the other. He submitted that it is the defence counsel who is responsible for the delay and now has come to the Court to take undue advantage of the newly-added provision of the law. He submitted that .The defence counsel was fully conscious of the fact that if the matter is delayed, the applicant would be entitled to file a bail application on the ground of statutory delay, which is evident from the record. He further submitted that the prosecution has duly produced its witnesses and the delay in this regard is mainly due to the indifferent attitude of the defence counsel and unnecessary delay was on her part just to make out a case of statutory delay and file an application thereafter. He stated that the offence is heinous one and the applicant does not deserve any leniency to be enlarged on bail. He submitted that while calculating the delay no mathematical calculation has to be made and only it is to be seen whether the delay has occurred due .To prosecution side or the defence. He submitted that the order passed by the trial Court is well-reasoned and the present bail application may be dismissed. He lastly submitted that he would have no objection if directions are issued to the trial Court to conclude the trial expeditiously on either daily or weekly basis in a certain given period. In support of his contentions the learned counsel has relied upon the following decisions:-
(1) Ali Muhammad v. The State (2009 PCr.LJ 521)
(2) Khushi Muhammad v. Rab Nawaz (1996 SCMR 172)
(3) Muhammad Azad Khan v. The State (2000 MLD 1479)
(4) Abdul Rasheed v. The State (1998 SCMR 897)
(5) Shah Muhammad and another v. The State (2000 YLR 2586)
(6) lqbal Brohi v. The State (1998 PCr.LJ 2066)
(7) Muhammad Arif v. The State (2004 PCr.LJ 713)
8. Ms. Sarah and Ms. Saman in their rebuttal submitted that theadjournment applications were given for valid reasons. They stated that they were pursuing the trial vigilantly and adjournments were only sought due to the reasons beyond their control. They, however, conceded that 24 months have not been passed in the case after the framing of the charge but, according to them, as the matter is lingering on since quite some time, therefore, the applicant is entitled to be enlarged on bail.
9. I have heard all the learned counsel at considerable length and have perused the record and the decisions relied upon by them.
10. Before proceeding any further it would be in fitness of things if the relevant provision of law, as introduced through Code of Criminal Procedure (Amendment) Act, 2011, is reproduced below:-- "Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail---
(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or
(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial, for, such offence has not concluded: ' Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism Punishable with death or imprisonment for life".
11. The perusal of the newly-added provision would reveal that in the case where the Court comes to the conclusion that the delay in trial has not been occasioned by the accused or any person acting on his behalf and he has been detained for more than two years and that he is not a previous convict and not a hardened, desperate or dangerous criminal, the Court may grant him bail. The most important thing in this regard is to examine the diary sheets to ascertain that whether delay in this regard has been either by the accused or any person acting on his behalf or by the prosecution. In case the Court comes to the conclusion that the delay has been occasioned due to the attitude of the applicant, the said accused is not entitled for bail, however, if the Court comes to the conclusion that the delay has been occasioned due to the prosecution side, the bail has to be granted as a statutory right.
12. The decisions relied upon by both the counsel revolve around the facts of those cases, however, the crux of all the decisions relied upon is to prove that the delay occasioned in a case whether could be attributed to accused or the prosecution, as the case may be, depending upon its own facts. The Hon'ble Apex Court as well as the High Courts in their various decisions, mentioned supra, have dilated upon the issue involving in those cases and have come to the conclusion in respect of those cases that whether case of bail has been made out or not. In my view each case has to be viewed as per its own peculiar facts and circumstances. There is no denial to the fact that the learned counsel took a number of adjournments, may be for the reasons beyond her control at some times, but the fact remains that the matter was adjourned on one pretext or the Other. The learned counsel appeared before me has stated that she took adjournments due to the reasons of either non-availability of flight, illness, death in family, appearance before some other Courts etc. But has not denied the fact that this could not be attributed to the prosecution side. The applicant has chosen a counsel who comes from Lahore and in my view it is for the counsel coming from outstation to make necessary arrangements for appearance before the Court on the said date either by herself or through her associate. It is seen from the diary sheets that the counsel has even permitted her associate to proceed with the matter but it is strange to note that her associate has hardly proceeded with the matter on any date. Same is the position when the counsel was either ill or when there was a death in her family or when she was appearing before some other Courts that her associate never proceeded with the matter, which permission admittedly has been given with her, as evident from the diary dated 6-7-2011, when she was out of country, to her associate to proceed with the matter. It is also evident from the record that the Court has accommodated her on a number of occasions by granting her time when she requested for date through her cell phone..
13. The benefit provided under the law is only to be given, in my view, to a person 'who is diligent in pursuing the matter and was also able to prove that the delay occasioned could not be attributed to him and that neither he was negligent nor reckless and have not adopted delaying tactics to obtain the said relief from the Court. I am afraid, this is not the situation in the present case as in the instant case it is clearly evident from the diary sheets and as conceded by the learned counsel for the applicant that she has taken a number of dates, which, according to her, were beyond her control. I find myself to be in disagreement with her. In case of her absence on a particular date alternate arrangement could have been easily made. Such conduct amply, proves that the learned counsel herself was not vigilant in pursuing the matter before the trial Court and no lease in this regard could be given to htr. The said provision, in my view has not been introduced to give lease to a person firstly delaying the matter and then approaching the Court for seeking relief thereof. It is clear from the diary sheets that the applicant and his counsel themselves were instrumental for the delay and are not entitled for the benefit provided under the law in this regard.
14. The Hon'ble Supreme Court in the case of Abdul Rasheed v. The State (1998 SCMR 897) has categorically observed that in case of delay, which could not be attributed to the prosecution and same is on the part of the defence the applicant is not entitled for grant of bail.
15. The decisions relied upon by the learned counsel for the applicant are found to be distinguishable as in those cases it was found by the Court that the delay occasioned in the case could not be attributed to the applicants and inordinate delay occasioned is likely to hamper the administration of justice and confidence of the common men in the judicial system. In such type of cases instead of making mathematical calculation one first has to see that whether delay occasioned could be attributed to the applicant or not in a particular case. When the Court finds that no such delay could be attributed to the applicant, the applicant is entitled to be enlarged on bail but, as discussed above, in the present case it could not be said that the delay could not be attributed to the applicant. From the record it is evident that the applicant was instrumental for the delay. Thus this is not a fit case to enlarge the applicant on bail on the ground of statutory delay in pursuance of amendment made in section 497, Cr.P.C. This bail application, therefore, is found to be devoid of any merits and, is hereby dismissed.
16. However, the trial Court is directed to conclude the trial preferably within a period of four months by expeditiously proceeding with the matter and the applicant would be at liberty to repeat the bail application, if so desires.
Bail refused.
2014 P Cr. L .1 69 [Federal Shariat Court] Before Sheikh Ahmad Farooq, J NAWAZ alias NAJEE---Appellant versus The STATE and another---Respondents Criminal Appeal No,26-L of 2010, decided on 23rd May, 2013.
(a) Penal Code (XLV of 1860)--- ----S. 354---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Assault or criminal force to woman with intent to outrage her modesty, attempt to commit offence--- Appreciation of evidence---Benefit of doubt---Allegation of an attempt to commit illicit carnal intercourse with the victim girl---"Attempt---Scope---All witnesses of the complainant had also unanimosity stated in their respective statements that accused after removing the shalwar of the victim was attempting to commit sodomy with her---Trial Court charged accused of having made an attempt to commit zina-bil-jabr with the victim which was punishable under S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Neither the complainant alleged in his complaint, nor the witnesses had levelled any allegation of making an attempt by accused to commit zina-bil-jabr with the victim---Trial Court did not charge accused with the relevant offence which was punishable under 5.377 read with 5.511, P.P.C.--Complainant had not produced any independent witness in support of allegation---One witness was wife of the complainant, while other was the real brother of the complainant---Independent witness had admitted in his cross- examination that he had not seen the occurrence---Complainant never got the alleged victim medically examined after the incident---Complainant and remaining witness did not specifically state that accused had also put off his own shalwar---Accused had not taken alleged victim inside his house or any other premises---No person could take the risk of committing sodomy with a girl in an open area---Even if considered the alleged act of accused in juxtaposition with the offence falling within mischief of 5.354, P.P.C., same was also not established from the evidence of the complainant beyond reasonable shadow of doubt---Complainant never produced the shalwar of the victim to Investigating Officer---Accused neither assaulted nor used any criminal force against victim indicating his intention to outrage her modesty---Main ingredients of 5.354, P.P.C., which were "assault" and used of "criminal force" were lacking in the case---Case of the complainant was doubtful and in case of doubt, benefit thereof must accrue in favour of accused as a matter of right and not of grace-- Complainant having failed to prove case against accused beyond reasonable doubt. Impugned judgment was set aside, accused was acquitted of the charge---Accused who was on bail, his bail bond stood discharged and the sureties were ordered to be released, in circumstances. [pp. 74, 75] A, B, C & E
(b) Criminal trial-- --Benefit of doubt---Principles---When there was a doubt, benefit thereof must accrue in favour of accused as a matter of right and not of grace---For giving benefit of doubt to an accused, it was not necessary that there should be many circumstances creating doubt---If a single circumstance would create reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit; not as a matter of grace and concession, but as a matter of right. [p. 75] D Tariq Pervez v. The State 1995 SCMR 1345 rel. Mian Jameel Akhtar for Appellant.
Nasir Mahmood, D.D.P.P. For the State.
A.D. Butt for the Complainant.
Date of hearing: 23rd May, 2013.
' SHEIKH AHMAD FAROOQ, J.---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, P.P.C. 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 complaint/Exh.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 along with his brother Rashid reached at the spot. In the meanwhile, his wife along with Tariq/P.W. And other neighbours also reached there. On seeing them, the accused fled away. The complainant along with 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 F.I.R. No,222/04 on 28-6-2004 under section 354, P.P.C. But he did not record the actual version of the complainant in the F.I.R. 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 Nos.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, complainant, filed a private complaint under section 420, 468, 109 and 161, P.P.C., and section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the court of Sessions Judge, Faisalabad.
3. The learned trial Court after recording cursory statements of the complainant and the P.Ws., deleted the names of respondents Nos.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 unnecessary. 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 leveled 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,6,000 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 Rani 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. Furthermore, 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,6,000 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, P.P.C. 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 levelling 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-bil-jabr 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, P.P.C. Read with section 511, P.P.C.
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, P.P.C. In this connection, I would like to observe that the complainant has not produced any independent witness in support of 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 unnecessary. 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, P.P.C., 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, P.P.C. 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 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 v. The State (1995 SCMR 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 judgment 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 dischargedIE and the sureties are ordered to be released.