SADAQAT ALI KHAN, J.:- The instant Criminal appeal has been filed by Shabbir Ahmad present appellant against the judgment dated 12.04.2010 passed by Special Judge Anti-Terrorism Court-III, Lahore according to which present appellant was convicted and sentenced as under: - "Shabbir Ahmad was convicted under section 324 PPC and sentenced to ten years R.I along with fine Rs.50,000/- and in default thereof further undergo one year S.I.
He was also convicted under section 7 (c) ATA 1997 and sentenced to life imprisonment along with fine Rs.50,000/- and in default thereof further undergo one year S,.I.
He was also convicted under section 337-A(i) PPC and sentenced to two years R.I along with Daman of Rs.50,000/- payable to Mst. Goshi Bibi victim.
He was also convicted under section 337-F(i) PPC and sentenced to one year R.I along with Daman Rs.50,000/- payable to Mst. Goshi victim.
Whereas his co-accused namely Zia ur Rehman, Mst. Azra Bibi, Mst. Sana and Naveed Ahmad were acquitted by the learned trial court. The sentences awarded to the appellant were ordered to be run concurrently with benefit of section 382 B Cr.P.C by the trial court in case FIR No. 991 dated 16.10.2009 under section 324,/34, PPC read with section 21 L/7 ATA 1997 police station Kot Lakhpat, Lahore.
2. The facts of the case has been stated by Goshi Bibi /complainant PW-8 in her statement before the learned trial court and same statement is hereby reproduced for narration of the facts: - "Shabbir Ahmad accused present in court is my husband. I have filed suit for dissolution of marriage against Shabbir Ahmad accused which is pending in the court of Family Judge, Lahore.
Out of the wedlock three children were born out of whom a daughter aged 9 years and a son aged 5 years are alive. Shabbir Ahmad accused forcibly snatched my children from me and I filed a petition at sessions court, Lahore and a case was registered against him. My children were returned to me and I was living in the house of my sister Cheemo at H-Block Sabzazar Scheme, Lahore. On 8.10.2009 Shabbir Ahmad and Zia accused present in court came to the house of my sister and forcibly took away my all the household articles. On the same day, Shabbir Ahmad accused made a telephonic call to my sister at night and asked her to send Goshi and he will return her household articles. On 9.10.2009 at 8:30-am, I went to the house of Shabbir Ahmad accused who on seeing me became angry and called his wife first Azra accused present in court; then Shabbir Ahmad accused called his daughter Sana and said that Goshi should not be spared.
Then Shabbir Ahmad accused called Zia and Naveed accused. Naveed and Zia accused caught me and Shabbir Ahmad accused brought a bottle of acid from his house. I rescued myself from Zia and Naveed accused I tried to put pillow on my mouth. In the meanwhile, Shabbir Ahmad accused poured acid on my head, face, ears, back, legs. My right ear was amputated by acid. My whole of the body was burnt by acid. My clothes were also burnt by acid. Azra and Sana accused threw me out of the house. I became unconscious. When I came to my senses, I found myself at General Hospital, Lahore. I remained under treatment in the hospital for one month. On 16.10.2009 I filed application Exh.PA before police for registration of case which was thumb marked by me. Shabbir accused used to make telephonic calls to me from jail and gave me threats"
3. After the completion of the investigation, report under section 173 Cr.P.C was submitted in the trial court and trial court after observing the legal formalities provided under the Criminal Procedure Code framed the charge on 22.02.2010 against appellant who pleaded not guilty and claimed trial.
4. Prosecution evidence was summoned and the prosecution produced Amjad Ali ASI as PW-1, Rashid Minhas H.C PW-2, Shakeel Ahmad constable PW-3, Muhammad Ashraf HC PW-4, Dr. Naheed Waris WMO PW-5, Muhammad Akmal 7457 HC PW-6, Zahid ur Rehman ASI PW-7, Mst. Goshi Bibi victim/complainant as PW-8, Aurangzeb ASI PW-9, Dr. Muhammad Ansar Aslam PGR PW-10, Muhammad Anwar Inspector PW-11, whereas PW namely Munawar Hussain constable was given up by the prosecution being unnecessary and after tendering in evidence complaint Ex.PA, FIR Ex.PA/1, recovery memo of bottle of acid Ex.PB, warrants of arrest Ex.PC, proclamation against the accused persons Ex.PF to Ex.PG, injury statement of Mst. Goshi complainant Ex.PJ, site plan of recovery of bottle of acid Ex.PK, site plan Ex.PL, report of Chemical Examiner Ex.PN closed the evidence.
5. Medical evidence was furnished by Dr. Muhammad Ansar Alam PGR PW-10 and Dr. Naheed Waris WMO, PW-5 detail of which is as under: - "Doctor Mohammad Ansar Aslam PGR PW-10, stated that on 27.10.2009, he was performing emergency duty as post graduate resident in emergency ward of Mayo hospital Lahore. On the same day, Mst.Goshi injured aged 26 years came to emergency ward for treatment. He medically examined the victim and found the following multiple burn injuries on her body:- 1- A burnt wound on upper back from the tip of left shoulder to few cm below the inferior angle of scapula and upper abrader oblique from tip of the left shoulder to the right axilla.
2- A burnt on the right side of face extending from right ear to the right clavicle. Ear was burnt and necrosed.
3- A burn on little part of right side of abdomen. Extending from axilla to iliac crest.
4- A 4 x 5 cm burnt wound on and above forehead..
5- 4 x 4cm burnt wound on left cheek.
6- A 15 x 20 cm burnt wound on left buttock and 5 x 5 cm burnt wound on right buttock.
7- 15 x 10 cm burnt wound on anterior surface of right thigh.
OPERATIVE NOTES:- I did the debridement of the burnt wound and antiseptic cream was applied. Injuries No.1,3,6,7 are Jurh Ghyar Faifah Damiayah, whereas, injuries No.2,4,5 are Shajjah-eKhafifah. The original operation notes of the victim Exh.PM comprising nine pages are in my hand and signed by me"
Further, Dr. Naheed Waris, W.M.O. Lahore General Hospital PW-5 stated that on 09.10.2009 she was posted as W.M.O. Lahore General Hospital. On the same day, she conducted medico legal examination of Mst. Goshi w/o of Shabbir aged 30 years, sex female, R/o St. No.4, Kot Lakhpat, Lahore brought by Nasir Iqbal/HC. On examination following injuries were noted: -
1. On the back extending from tip of the left shoulder to the right axilla up to the angle of scapula.
2. On the face large area from right ear to the right shoulder.
3. At lumber region 4 x 5 cm up to the right iliac crest.
4. Red brown area about 5 x 4 cm on left cheek.
5. About 3 x 4 cm at forehead.
6. 15 x 20 cm on left buttock.
7. About 5 x 5 cm on right buttock.
8. Multiple black areas on right thigh ulterior aspect with a large area about 15 x 10 cm.
Patient was referred to Surgery for management.
According to Chemical examiner report No.6295 and Surgeon Notes Injury No.1,3,6,7 & 8 were declared as Jurh Ghayr Jaifah Damiyah and injury No.2,4 & 5 were declared as Shajjah-i-Khafifah.
INDENTIFICATION MARKS.
1. Scar mark left foot.
2. Scar mark right eye lateral side.
Ex.PJ is the true carbon copy of MLC of Goshi which is in my hand and signed by me. This medico legal was conducted on the written application of police. Ex.PK which is signed by me"
5. Statement of the present appellant under section 342 Cr.P.C was recorded in which he refuted the allegations leveled against him and the appellant did not opt to record his own statement under section 340(2) Cr.P.C and also did not produce oral defence evidence, however, he produced document Ex.DA (FIR) and in reply to question "why this case against you and why the PW's deposed against you? the appellant replied as under: - "the complainant of this case is inimical to me as I lodged a case FIR No. 116/2009 of fences u/s 337-F5, 337-A1 police station, Sabzazar was registered against the complainant on my application.
There is also litigation about the custody of minors which are presently in the custody of Goshi Bibi"".
6. After conclusion of the trial, learned trial court while acquitting co-accused of the present appellant stated above, convicted the present appellant Shabbir Ahmad with above stated sentences. Hence this appeal.
7. Leaned counsel for the appellant contended that:-
(i) the judgment of the trial court dated 12.04.2010 is against law and facts on the file and is liable to be set-aside;
(ii) it is submitted that the story of the prosecution is improbable and not believable;
(iii) it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court wrongly convicted present appellant in surmises and conjectures;
(iv) and lastly submitted for the acceptance of the appeal of the present appellant;
8. On the other hand, learned DPG has vehemently opposed the appeal and submitted that:-
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
9. We have heard the learned counsel for the parties and perused the record.
10. The detail of prosecution case as mentioned in the FIR Ex.PA/1 recorded on the written application Ex.PA of Mst. Goshi Bibi complainant PW-8 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same to avoid the repetition and duplication.
11. Firstly, we would like to see the applicability of offence under section 7 (c) of ATA 1997.
12. We have observed that in the present case occurrence took place on 09.10.2009 at 08:30 p.m. and FIR was registered on 16.10.2009 at 12:15 a.m. (night) whereas offence regarding hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance was inserted in the third schedule of ATA 1997 on 05.09.2012 through notification No.SO(Judl.-I)10(1-36(1)/2010 dated 05.09.2012 and was not schedule offence at the time of present occurrence and the appellant could not be convicted under section 7 (c) of 1997. In this regard relevant section 38 of ATA is hereby reproduced:- "38. Punishment for terrorist act committed before this Act--- Where a person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorized by law at the time the offence was committed".
Further reliance is placed on case Maqbool Ahmad and another v. the State (2007 SCM R 116) in which Hon'ble Supreme Court of Pakistan has observed at pages 117 & 118 as under: - "In the instant case the offence has taken place on 05.06.1997 when, according to section 10(3) of Ordinance VII of 1979 the punishment of the offence was imprisonment for a term which could extend to 25 years and whipping numbering thirty stripes. So far as section 10(4) of the Ordinance is concerned, it was introduced in December, 1997 and hence no punishment could be awarded under the said section, being in glaring violation of Article 12 of the Constitution.
The objection regarding the conduct of trial by Special Court under Anti-Terrorism Act, 1997, is unfounded. Any person accused of having committed an offence before the commencement of Anti-Terrorism Act of 1997 could be tried by the Court constituted under the Act but the punishment awarded shall be in accordance with law prevailing at the time when the offence was committed; provided the offence otherwise constituted a Terrorism Act. We are of the considered view that the trial by Anti-Terrorism Court was in accordance with law, protected by section 38 of the Anti- Terrorism Act, 1997. However, section 38 of the Act read with Article 12 of the Constitution would certainly under the punishment awarded under section 10(4) of the Ordinance void ab initio, with reference to the date of occurrence and the date of insertion of section 10(4) in the Ordinance.
Consequently, while partially accepting the appeal, the imprisonment for life awarded to the appellant is reduced to imprisonment for a term which shall extend to 20 years with the infliction of 30 stripes each and a compensation of Rs.50,000/- each under section 544-A Cr.P.C to be paid to the victim".
13. In view of the above, conviction and sentences under section 7 (c) of ATA 1997 awarded by the learned trial court to the appellant are not sustainable and the same are hereby set aside.
14. So far as convictions and sentences of present appellant under section 324,337A1 (i) and 337F (i)
PPC are concerned, we have observed that Mst. Goshi Bibi complainant PW-8 was the wife of present appellant at the time of occurrence. She specifically stated in her statement before the trial court as under: - "Shabbir Ahmad accused poured acid on my head, face, ears, back, legs. My right ear was amputated by acid. My whole of the body was burnt by acid. My clothes were also burnt by acid"
15. Although Zia-ul-Rehman, Mst. Azra Bibi, Mst. Sana and Naveed Ahmad co-accused of the present appellant have been acquitted by the trial court through the impugned judgment by disbelieving the statement of Mst. Goshi Bibi complainant/injured PW-8 to their extend but the case of the acquitted accused was absolutely on different and distinct footings whereas specific role of pouring the acid on the body of Mst. Goshi Bibi complainant/injured PW-8 is attributed to the present appellant. In such an eventuality the credibility of Mst. Goshi Bibi complainant/injured PW-8 could not be said to have been shattered due to the said acquittal. It is well settled by now that the maxim 'falsus in uno falsus in omnibus' has no universal application and it is bounden duty of the court to sift the grain from the chaff. Reliance is placed on case Elahi Bakhsh Vs. Rabnawaz and another (2002 SCM R 1842) in which Hon'ble Supreme Court of Pakistan has observed at page 1847 as under: - "We have also adverted to the contention of Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court that on the basis of same evidence Rabnawaz (petitioner) could not have been convicted but it has been ignored while raising the said contention that the case of acquittal accused is absolutely on a different and distinct footing as no specific role whatsoever was assigned to them which has been attributed to Rabnawaz (petitioner) in a categoric manner.
In such an eventuality the credibility of "Ellahi Bukhsh PW-7 and Abdur Razzaq PW-10 could not be said to have been shattered due to the said acquittal. It is well settled by now that the maxim 'falsus in uno falsus in omnibus' has no universal application and it is bounden duty of the court to sift the grain from the chaff. In this regard reference can be made to Khairu. State (1981 SCM R 1136).
A thorough scrutiny of the entire evidence would reveal that the statements of prosecution witnesses are consistent, confidence inspiring and in consonance with the probability in the case and fitted in with other evidence and circumstances of the case and being worthy of credence could not have been brushed aside. The prosecution, in our considered opinion has substantiated the allegation beyond shadow of doubt and accordingly Criminal Petition for Leave to Appeal (108/2001) being devoid of merit is dismissed".
16. Mst. Goshi Bibi complainant/injured PW-8 was cross-examined at length but her evidence could not be shaken during the process of cross-examination. She remained consistent on all material aspects of the case. Her evidence is straight forward, trust worthy and confidence inspiring.
Reliance is placed on case Elahi Bakhsh Vs. Rabnawaz and another (2002 SCM R 1842) in which Hon'ble Supreme Court of Pakistan has observed at page 1847 as under: - "We have also adverted to the contention of Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court that on the basis of same evidence Rabnawaz (petitioner) could not have been convicted but it has been ignored while raising the said contention that the case of acquittal accused is absolutely on a different and distinct footing as no specific role whatsoever was assigned to them which has been attributed to Rabnawaz (petitioner) in a categoric manner.
In such an eventuality the credibility of "Ellahi Bukhsh PW-7 and Abdur Razzaq PW-10 could not be said to have been shattered due to the said acquittal. It is well settled by now that the maxim 'falsus in uno falsus in omnibus' has no universal application and it is bounden duty of the court to sift the grain from the chaff. In this regard reference can be made to Khairu. State (1981 SCM R 1136).
A thorough scrutiny of the entire evidence would reveal that the statements of prosecution witnesses are consistent, confidence inspiring and in consonance with the probability in the case and fitted in with other evidence and circumstances of the case and being worthy of credence could not have been brushed aside. The prosecution, in our considered opinion has substantiated the allegation beyond shadow of doubt and accordingly Criminal Petition for Leave to Appeal (108/2001) being devoid of merit is dismissed".
17. Further, medical evidence was furnished by Dr. Muhammad Ansar Aslam PW-10 who stated that on 27.10.2009 he medically examined Mst. Goshi Bibi complainant/injured PW-8 and observed following injuries on her body.
1- A burnt wound on upper back from the tip of left shoulder to few cm below the inferior angle of scapula and upper abrader oblique from tip of the left shoulder to the right axilla.
2- A burnt on the right side of face extending from right ear to the right clavicle. Ear was burnt and necrosed.
3- A burn on little part of right side of abdomen. Extending from axilla to iliac crest.
4- A 4 x 5 cm burnt wound on and above forehead..
5- 4 x 4cm burnt wound on left cheek.
6- A 15 x 20 cm burnt wound on left buttock and 5 x 5 cm burnt wound on right buttock.
7- 15 x 10 cm burnt wound on anterior surface of right thigh.
18. Likewise Dr. Naheed Waris WMO PW-5 stated that on 09.10.2009 she medically examined Mst.
Goshi Bibi and observed as under: -
1. On the back extending from tip of the left shoulder to the right axilla up to the angle of scapula.
2. On the face large area from right ear to the right shoulder.
3. At lumber region 4 x 5 cm up to the right iliac crest.
4. Red brown area about 5 x 4 cm on left cheek.
5. About 3 x 4 cm at forehead.
6. 15 x 20 cm on left buttock.
7. About 5 x 5 cm on right buttock.
8. Multiple black areas on right thigh ulterior aspect with a large area about 15 x 10 cm.
Patient was referred to Surgery for management.
According to Chemical examiner report No.6295 and Surgeon Notes Injury No.1,3,6,7 & 8 were declared as Jurh Ghayr Jaifah Damiyah and injury No.2,4 & 5 were declared as Shajjah-i-Khafifah"
19. In view of the above, it is concluded that medical evidence has fully supported the ocular account furnished by Mst. Goshi Bibi complainant/injured PW-8.
20. The argument of the learned counsel for the appellant that solitary statement of Mst. Goshi Bibi complainant/injured PW-8 without independent corroborative evidence is not sufficient for the conviction of the present appellant has no substance. We have already observed that medical evidence furnished by Dr. Muhammad Ansar Aslam PW-10 and Dr. Naheed Waris WMO PW-5 has fully supported the statement of Mst. Goshi Bibi complainant/injured PW-8. No other evidence is required to support the statement of Mst. Goshi Bibi complainant/injured PW-8. Solitary statement of Mst. Goshi Bibi complainant/injured PW-8 which is confidence inspiring supported by medical evidence as discussed earlier is sufficient to prove the guilt for the conviction of the appellant.
Reliance is placed on case "Ehsan @ Qadri v. The State and another" (2002 SCM R 1170) in which august Supreme Court of Pakistan has observed at pages 1172 and 1173 as under:- "We have considered the arguments of the learned counsel for the petitioner and minutely examined the record. The prosecution examined the injured complainant, who received the injuries at the hands of the petitioner, which are supported by the medical evidence. The Medical Officer was also examined during trial. No doubt, Muhammad Ashfaq and Ilyas PWs were given up by the Inspector Legal on the ground that those witnesses were won over. The two brothers of the complainant Muhammad Younas and Muhammad Yaseen were also given up finding then to be unnecessary. In this case the defence did not allege any malice or ill-will with the injured complainant. The defence has not been able to show any reason so that the accused-petitioner may be implicated in this case.
We have also perused the judgment of the trial Court, which shows that the trial court did not appreciate the evidence adduced by the prosecution in its proper perspective and the same was rightly set aside by the learned High Court in appeal. The learned High Court has properly analysed and examined the evidence available on record. The impugned judgment is based on the proper appreciation of evidence. We do not find misreading or non-reading of evidence or jurisdictional error. It would be pertinent to refer to the relevant portion of the impugned judgment, which reads as under:-- "..........It may be stated here that Muhammad Umar complainant was cross-examined by the learned counsel for the defence on 15.02.2000 and he himself got proved through cross- examination that there were two injuries on his person, one on his buttock and other one near his testicles. As far as statement of PW-3 recorded in Urdu is concerned, I would like to refer the same below:- {{URDU TEXT}} For the above facts and reasons this petition has no merit, which is hereby dismissed and leave to appeal is declined."
21. Adverting to the defence plea of the present appellant Shabbir Ahmad he stated in a question "Why this case against you and why the PWs made statements to involve you? appellant Shabbir Ahmad replied as under:- "the complainant of this case is inimical to me as I lodged a case FIR No. 116/2009 of fences u/s 337-F5, 337-A1 police station, Sabzazar was registered against the complainant on my application.
There is also litigation about the custody of minors which are presently in the custody of Goshi Bibi"".
Appellant has not opted to appear under section 340(2) Cr.PC. and also did not produce oral defence evidence. However, he produced document Ex.DA (FIR). Considering above defence plea of the appellant which is nothing except denial and same is hereby discarded.
22. In view of the above discussion, we have persuaded to hold that learned trial court has rightly convicted the present appellant, hence, the conviction and sentences of the present appellant under sections 324, 337-A(i), 337-F(i) awarded by the learned trial court are maintained. Benefit of section 382-B Cr.P.C is also given to the present appellant. All the sentences shall run concurrently.
The appellant is directed to pay Daman to Mst. Goshi Bibi victim awarded by the trial court under section 337-A(i) and 337-F(i) PPC failing which he shall be kept in jail until Daman is paid.
Resultantly, this appeal has no merits and the same is dismissed.