SARDAR MUHAMMAD SHAMIM KHAN, J.---The instant appeal was filed by Asghar Ali convict (appellant) against the judgment dated 28.03.2011 passed by learned Addl. Sessions Judge Sheikhupura, whereby, appellant was convicted under section 376, P.P.C. And sentenced to 14- years R.I. Along, with fine of Rs,1,00,000/-, in default thereof, to further undergo Six Months R.I. He was also convicted under section 334, P.P.C. And sentenced to ten years R.I. As Taz'ir along with Arsh Rs, 5,06,340/-. The appellant was further convicted under section 324, P.P.C. And sentenced to five years R.I, in case FIR No, 613/2009 dated 31.07.2009 offences under sections 365-B, 376, 324 and 334, P.P.C. Registered at Police Station Bhikhi District Sheikhupura. All the aforesaid sentences were' ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to appellant.
2. Brief facts of the case as narrated by Muhammad Arshad complainant in written complaint (Ex.PA) submitted by him before the police are that on 30.07.2009 at evening time, his daughter Ayesha aged about 14/15-years went to the house of her grand-father but she did not return back.
The complainant started searching his daughter Ayesha Bibi but she could not be traced. On the following day, i.e, 31.07.2009 at about 5:00 A.M he along with his brother Muhammad Ashraf and Asghar reached in the plot of one Riaz Ahmed where they saw that Ayesha Bibi was lying unconscious and acid had been thrown on her face and on her left arm. She was taken to Civil Hospital Sheikhupura in an injured condition. It was alleged in the complaint that some unknown culprits committed Zina-bil-Jabr with Ayesha Bibi and threw acid on her face and left arm. On the basis of application submitted by Muhammad Arshad complainant, formal FIR EX.PA/1 was chalked out.
3. On 01.08.2009 statement of Ayesha Bibi/victim was recorded by the police under section 161, Cr.P.C. Wherein she implicated Asghar Ali and Shama Bibi accused persons in the commission of instant occurrence.
4. After completion of investigation, report under section 173, Cr.P.C. Was submitted against the accused persons before the learned trial court for trial, Charge was framed which was denied by the accused persons including the appellant who professed their innocence and claimed their trial.
In order to prove its case, the prosecution examined as many as seven witnesses. P.W-1. Mst.
Ayesha Bibi is victim of this case who supported the prosecution story. P.W-2 Muhammad Arshad is the complainant of this case. PW-3 Muhammad Iqbal ASI chalked out formal FIR (EX.PA/1) on the basis of complaint (EX.PA) sent by Muhammad Ishaque Sub-Inspector through Abdul Sattar 1305/C.
PW-4. Ali Ahmad 953/C transmitted one sealed parcel containing swabs to the office of Chemical Examiner Lahore. He also transmitted one sealed parcel containing swabs and syring to the office of DNA Laboratory Lahore.
P.W-5 Muhammad Ishaque Sub-Inspector conducted the investigation of this case and deposed regarding the steps of investigation.
P.W-6 Lady Doctor Waalia Mohsin medically examined Mst. Ayesha Bibi victim on 01.08.2009 and found the following injuries on her person. i. Superficial burn on whole of face with disfigurement.
Face swollen. Small area also burn on left breast 1 X 1 cm, multiple burns on both' eyes and leg areas. These injuries were K.U.O. For surgeon opinion. She also complained of decreased eye sight, left eye was K.U.O for Eyes Specialist opinion. Probable duration of the injury was 24 to 48-hours.
' Hymen torn permitting one finger, bleeding P.C. Present. Two vaginal swabs were taken for chemical examiner. 2 CC blood and 2 vaginal swabs were taken for D.N.A test and handed over, to police.
P.W-7 Dr. Nasir Majeed Khan, Senior Medical Officer medically examined Muhammad Asghar (accused) on 11.08.2009 at about 4:00 p.m. And found that he was physically and mentally fit and well oriented in time and space. His secondary sexual character was all well built. His cremextaric reflex were normal. All the above character and facts suggest that nothing is available on the record that he was unable to perform sexual act.
5. Learned DPP gave up Muhammad Ashraf P.W being un-necessary and closed the prosecution evidence after tendering report of chemical examiner Exh. PJ and report of DNA Exh.PK.
6. Thereafter, accused persons including appellant were examined under Section 342, Cr.P.C., they professed their innocence and denied the prosecution allegations levelled against them. The appellant opted to produce evidence in his defence but did not opt to depose on oath as required under section 340(2), Cr.P.C. Muhammad Asghar appellant took the following stance in reply to a question that why this case was registered against you and why the PWs have deposed against you:-- ' " All the PWs including victim were inimical to him. Mother of Ayesha Bibi was married as exchange marriage of his wife Mst. Parveen, who was previously married with Khalid, the brother of .The mother of Ayesha Bibi (victim).' This was the exchange marriage. After the death of said he married with said Perveen Bibi. He and his wife Parveen Bibi demanded the property left by the ex- husband (Khalid) of his wife. He also refused to give hands of Shama Bibi to the nephew of the mother of the victim. Due to this grudge he had falsely been implicated in this case. Complainant firstly nominated the accused Tanveer. And Irfan and after joining hands with the said accused exonerated them.
' The appellant produced Muhammad Ashraf. As D.W-1 and closed his defence evidence.
7. After conclusion of the trial, above mentioned conviction and sentence was passed against the appellant whereas Shama Bibi co-accused was acquitted by learned trial court vide judgment dated 28.03.2011.
8. Learned counsel for the appellant contended that Asghar Ali appellant was not nominated in the FIR; that Mst. Ayesha Bibi the alleged victim appeared before the learned trial court as P.W-1 and conviction of the appellant has' been recorded on her solitary statement which is not confidence inspiring; that report of D.N.A. Test negates the prosecution story; that nothing was recovered from the possession of the appellant during investigation of this case; that no expert evidence was available on record in order to establish that eye of the victim was dismembered, amputated or served but appellant was convicted under section 334, P.P.C., by learned trial court without any lawful justification; that infact Tanvir and Arfan committed Zina-bil-jabr with Ayesha Bibi and threw acid on her body but after receiving money from them, the complainant has falsely implicated the appellant in the commission of instant occurrence on account of family dispute between the parties; that Muhammad Ashraf who is real brother of the complainant appeared before the learned trial court as D.W-1 and deposed that Tanvir and Arfan committed Zina-bil-jabr with his niece Ayesha Bibi, therefore, appellant has proved the plea taken by him by producing uncle of the victim; that prosecution has failed to prove its case beyond reasonable doubt against Asghar Ali appellant. Thus, it is submitted that by accepting instant Criminal Appeal Asghar appellant. Thus, it is submitted that by accepting instant Criminal Appeal Asghar Ali appellant is liable to b e acquitted. {{DATA UNARRANGED}}
9. Learned counsel for the complainant and learned DPP have vehemently opposed the contentions raised by learned counsel for the appellant ad contended that asghar ali appellant was not nominated in the FIR, it was not in the knowledge of the complainant that Asghar Ali appellant had committed the instant occurrence; that appellant was implicated in the instant case on the basis of statements of Mst. Ayesha Bibi/Victim (PW-1) recorded under section 161, Cr.P.C. by police as well as under section 164, Cr.P.C. recorded by leaned Magistrate; that real sister of the Complainant is wife of Asghar Ali appellant, there fore, it would be out of question that complainant would falsely involve his brother-in-law in the commission of instant occurrence without any serious enmity between the parties; that report of D.N.A test is not a conclusive proof of commission of Zina-bil-Jabr; that Mst. Ayesha Bibi/victim was of occurrence and according to the statement of lady doctor, her hymen was torn, prosecution finds corroboration by medical evidence of the victim; that although Muhammad Ashraf brother of the complainant appeared before the learned trial court as D.W-1 yet his evidence is not believable as he was not an eye- witness of the occurrence; that prosecution has proved its case beyond reasonable doubt against the appellant. Thus, it is submitted that instant appeal is liable to be dismissed.
10. I have heard the arguments advanced by the learned counsel for the parties and perused the record with care.
11. According to prosecution story, on 30.07.2009 at about 8/9:00 P.M. Mst. Ayesha bibi aged about 14/15 years went to the house of her grand-father but did not return back. The complainant and other P.Ws. started searching her and on 31.07.2009 at about 5:00 A.M. Mst. Ayesha Bibi was found lying unconscious in the plot of one Riaz Ahmed. The complainant and other witnesses observed that acid was thrown on her face and on her left arm. She was taken to Civil Hospital Sheikhupura in an injured condition where Muhammad Arshad Father of the victim submitted written complaint (EX.PA) before the police for registration of FIR.
12. In his written complaint, (EX.PA) the complainant did not nominate any accused because Ayesha Bibi his daughter was unconscious and in his complaint (EX.PA) complainant took stance that he would inform regarding the accused persons when it would come to into his knowledge, therefore, contention of learned counsel for the appellant that appellant was not nominated in the FIR is without any substance as complainant was not an eye-witness of the occurrence.
13. The appellant was implicated in the instant case of the following day i.e. 01.08.2009 on the basis of statements of Mst. Ayesha Bibi victim recorded by the police under section 161, Cr.P.C.
14. The ocular account in this case was furnished by Mst. Ayesha Bibi/Victim who appeared before the learned trial court as P.W-1 and deposed that on 30.07.2009 at about 8/9:00 p.m. she went to the house of her grand-father in order to answer the call of nature and when she was coming back to her house, Mst. Amina Bibi met her in the street and asked her that her mother was calling her in the house, therefore, she went to the house of Amina Bibi where Shama Bibi offered water to her (victim) and father taking water she became a bit unconscious. It has further been deposed by Ayesha Bibi victim that Asghar Ali accused took her to another room of the house where he (appellant) forcibly committed Zina-bil-jabr with her. She (victim) asked accused that she would talk to her mother about this occurrence whereupon Asghar Ali accused threw acid upon her face and arms through a bottle whereby her left eye was completely damaged and her face was disfigured. After the occurrence Asghar Ali accused threw her (Ayesha Bibi) outside of his home. In her examination-in-chief, Mst. Ayesha Bibi further contended that her statement under section 164, Cr.P.C. was also recorded by learned Magistrate regarding the instant occurrence.
15. Cross-examination was conducted on Ayesha Bibi victim (P.W-1) but learned defence counsel remained unable to shatter the evidence of Ayesha Bibi in any manner, A rather he (learned defence counsel) simply put some suggestions to the victim which were denied by her.
16. The ocular account furnished by Ayehsa Bibi victim (P.W-1) finds corroboration from her medical examination. Doctor Waalia Mohsin. W.M.O. DHQ Hospital, Sheikhupura, appeared before the learned trial court as P.W-6 and deposed that she observed the following injuries on the person of the victim:--
1. Superficial burn on whole of face with disfigurement. Face swollen. Small area also burn on left breast 1 x 1 c.m. Multiple burns 'on both eyes and leg areas. These injuries were K.U.O for Surgeon opinion. She also complained of decreased eye sight, left eye was K.U.O for eyes specialist opinion.
' Hymen torn permitting one finger, bleeding P.C. Present. Two vaginal swabs were taken for chemical examiner.
2 CC blood and 2 vaginal swa bs were taken for D.N.A test and were handed over to police.
17. Perusal of evidence of lady doctor reveals that she observed burns on her face with disfigurement and hymen of the victim was torn permitting one finger, bleeding P.C. Was present.
As Mst. Ayesha Bibi was. B virgin and according to the evidence of the lady doctor, her (victim) hymen was torn and bleeding P.C. Was present, therefore, medical evidence confirms that victim was subjected to Zina-bil-jabr.
18. Report of chemical examiner Ex.P.J was positive and according to said report semen were detected in the said swa bs. Although report of D.N.A test did not match with the profile of the accused yet according to statement of the victim that Asghar Ali appellant committed zina-biljabr with her and her said statement was corroborated by medical evidence was sufficient to record the conviction against the appellant. Reliance has been placed in this regard on the case law reported as Khadim Hussain v. The Stare (2011 PCr.LJ 1443 Federal Shariat Court).
19. It has been noticed that during medical examination of the victim lady doctor did not observe that any organ of body of Mst. Ayesha Bibi victim was dismembered, amputated or severed, rather, according to the evidence of lady doctor, she observed burns on whole face with disfigurement, therefore, learned trial court inadvertently convicted the appellant under section 334, P.P.C. From the medical examination of the victim,, offence under section 336, P.P.C. Is made out against the appellant. In view of the matter, conviction of the appellant under section 334, P.P.C. Is converted into offence under section 336, P.P.C., therefore, appellant is convicted under section 336, P.P.C. And sentenced to ten years R.I as Taz'ir along with Arsh Rs,5,06,340/-. Although expert opinion is not available on record in order to establish that by throwing acid on the person of the victim, the appellant caused Itlaf-isalahiyyat-i-Udw (left eye) of the victim yet left eye of the victim was totally closed by throwing acid on her which was observed by this Court as Mst. Ayesha Bibi victim was present before this Court in person when arguments were heard in the instant appeal, therefore, this court has reason to believe that victim was unable to see from her left eye. Even otherwise, disfigurement is sufficient to attract the provisions of section 336, P.P.C. Reliance has been placed on case law reported as Zafar Iqbal v. The State and another (2010 SCM R 401) wherein Hon'ble Supreme Court of Pakistan has observed as under:-- ' "Accused along with his co-accused had allegedly thrown acid on the wife of complainant causing burns on her face, neck and left arm, covering 17 per cent of the body area---FIR, no doubt, was delayed, but it had not been indicated as to what benefit the prosecution had derived by such delay---Clothes of the injured lady, even if produced, would have at the most proved the same thing which resultantly was given in her medico-legal report--- Victim appeared to have changed her clothes due to damage caused to them.---Personal appearance of the victim with marks of occurrence on her body was sufficient to connect the accused with the commission of the offence----Conviction of accused was consequently maintained, as disfigurement was enough to constitute offence undersection 336, P. P. C. ---However, facial disfigurement was only to the extent of five per cent, which might be a scar of small size---Sentence awarded to accused, therefore, was a bit on the heavier side-Sentence of Arsh of Rs,50,00,000/- was reduced to five years in circumstances----Petition after conversion into appeal was partially accepted to the extent of . Sentence alone in the above terms".
20. Asghar Ali appellant is husband of sister of Muhammad Arshad complainant, therefore, it cannot be believed that complainant and his daughter would falsely involve him (appellant) in this case without any serious enmity between the parties: Although, Muhammad Ashraf real brother of Muhammad Arshad complainant appeared before the learned trial court as D. W-1 and deposed that Mst. Ayesha Bibi stated before the police during investigation of this case that Tanvir and Arfan had committed Zina-bil-jabr with her and threw acid on her face yet his evidence is not believable as no such statement of Ayesha Bibi victim is available on record. Muhammad Ashraf D.W-1 was not eyewitness of the occurrence, therefore, his evidence is hearsay which is inadmissible in evidence. Muhammad Ishaq SubInspector/LO. Of this case appeared before the learned trial court as P.W-5. Neither he (I.0.) deposed nor any question was put to him by the defence that Ayesha Bibi made any statement before him that Arfan and Tanvir committed Zina-bil-jabr with her.
Admittedly sister of Muhammad Ashraf (D.W-1) is wife of Asghar Ali appellant, therefore, possibility can not be ruled out that Muhammad Ashraf appeared in the defence of Asghar All accused in order to save his sister from sufferings in case of conviction of the appellant. Muhammad Ashraf D.W-1 did not appear before the police during investigation of this case in order to get his statement recorded before the I.O. In this regard, rather, he appeared before the learned trial court on 14.03.2011 after about one year and 7-1/2 months of the occurrence, therefore, his evidence is not confidence inspiring because possibility cannot be ruled out that he made statement before learned trial court after deliberations and consultation. According to the evidence, of D.W-1 Asghar Ali accused was implicated in the instant case after about four days of the occurrence by the complainant and his wife but his evidence' is totally in conflict with the record as Asghar Ali appellant was nominated by Ayesha Bibi victim on the following day i.e, 01.08.2009 after registration of FIR and he (appellant) was neither implicated in any statement made by the complainant nor his wife, therefore, evidence of D. W-.1 is against the record. During cross- examination Muhammad Ashraf D.W-I admitted that Ayesha Bibi victim had no dispute with any one, therefore, it cannot be believed that appellant was implicated in the instant case on account of dispute of 'Rishta' between the parties as alleged by the defence. The appellant had taken the specific plea that he has been implicated in this case on account of dispute of 'Rishta' and that Tanvir and Arfan committed zina bil-jabr and threw acid on the victim has not been proved by him during trial of the case.
21. It is pertinent to mention here. That Muhammad Ishaq (P.W-5)/I.O. Tried to give undue concession to Asghar Ali appellant by deposing that prior to involving Asghar All accused in this case, complainant entertained suspicion against Tanvir and Arfan pertaining to commission of zina bil-jabr and throwing acid on her daughter and that they (Tanvir and Arfan) were nominated by the complainant on 07.08.2009. In order to verify the aforesaid deposition of I.O. (P.W-5) I have perused the police file and observed that on 02.08.2009 Muhammad Arshad complainant got his supplementary statement recorded before the police and implicated Asghar All appellant in the commission of instant occurrence. The complainant did not entertain suspicion against Tanvir and Arfan during investigation of this case and did not get any statement recorded in this regard rather, perusal of police file reveals that on 07.08.2009 Muhammad Ishaque Sub-Inspector (P.W-5) incorporated in case Diary No,4 that through some reliable sources he came to know that on the night of occurrence Tanvir and Arfan were not available in their residences, therefore, they should be joined in the investigation. P.W-5/I.O. Summoned Tanvir and Arfan at the police station and when complainant came to know regarding this fact he appeared before the I.O. On the aforesaid date and produced his affidavit to the effect that Arfan and Tanvir were innocent in this case, therefore, evidence of I.O./P.W-5 that complainant entertained suspicion against Tanvir and Arfan is false and against the record.
22. For what has been discussed above, I am of the considered view that prosecution has proved its case against the appellant beyond reasonable doubt. Learned dial court convicted the appellant after proper appraisal of evidence available on the record, therefore, impugned judgment dated 28.03.2011 passed by learned trial court is upheld and instant appeal having no force stands dismissed.