Ch. Abdul Aziz, J. The instant appeal filed in terms of section 410 Cr.P.C is aimed at calling in question the vires of judgment dated 10.04.2018 passed by learned Additional Sessions Judge Jhang, in case-F .I.R. No.190 dated 12.05.2017, under sections 376/51 1 P.P.C., registered at Police Station Qadirpur , Jhang, whereby Atif Shahzad alias Kalu (appellant) was convicted and sentenced as mentioned hereunder:- Under Section 376 read with section 511 P.P.C. to undergo five years R.I with fine of Rs.25,000/-. In case of non- payment of fine, the convict was ordered to further undergo six months S.I. The convict was further inflicted Rs.1,00,000/- as compensation under section 544-A Cr.P.C. to be paid to the complainant, which shall be recovered as arrears of land revenue. In case of non-recovery of compensation amount, the convict was further ordered to undergo six months S.I. Benefit of section 382-B Cr .P.C was also accorded to the convict.
2. Succinctly , stated the case of prosecution as unveiled by Syed Mushtaq Hussain Shah (PW.1) in his application (Exh.P A) is to the effect that he is resident of Turbat Haji Shah, Tehsil and District Jhang; that his two daughters, namely , Hijab Fatima and Ridda Fatima are students of class-four and class-two respectively; that on 12.05.2017 at about 1:00 p.m. his daughters were on way back to home after attending their school; that when reached near the shrine of Gamay Shah, they were intercepted by Atif Shahzad, who caught hold of Hijab Fatima and after intimidating her for maintaining silence, removed her trouser (shalwar) as well as of his own; that thereafter Atif Shahzad attempted to rape Hijab Fatima but remained unsuccessful as Altaf, Farhat Batool and Ahmad Ali (PWs) attracted to the spot after hearing the hue and cry of victim; that upon the arrival of witnesses, Atif Shahzad fled away from the scene along with his trouser .
Subsequent to the registration of case, the matter was thoroughly probed by the police and thereafter report under section 173 Cr .P.C was submitted in the court.
3. During trial, the prosecution in order to prove its case against the appellant produced eight PWs including Syed Mushtaq Hussain Shah (PW.1) who is the Complainant of the case and deposed as embodied in FIR, Hijab Fatima victim (PW.2), Ahmad Ali (PW.3) and Altaf Hussain PW.4) who furnished the eyewitness account, and Muhammad Shafi SI (PW .7)) who investigated the case.
4. After the closure of prosecution evidence, the learned trial court examined the appellant under section 342 Cr.P.C., who in response to question "why this case against you and why the PWs deposed against you", replied as under:- "On the fateful day, my younger sister Hijab Zahra aged about 07 years and two daughters of the complainant namely Hijab Fatima aged about 10 years and her younger sister Ridha Fatima, Sameena d/o Sobadar caste Bigyana were plucking mangos (unripened/Amlies) from the Mango trees form Darbar Gamay Shah. I forbade them but they did not obey , then I gave a slap in the face of my younger sister Heejab Zahra upon which the daughter of the complainant namely Heejab Fatima and Ridha Fatima went home weepingly . I have done nothing as has been alleged in the FIR which otherwise has been lodged in a mocking way. I am innocent. PW Altaf Hussian is the real brother of the complainant Mushtaq Hussain whereas PW Ahmad Ali is best friend of the complainant."
5. The appellant neither made statement under section 340(2) Cr.P.C, nor produced any evidence in his defence.
After the completion of trial, the appellant was convicted and sentenced by the learned trial court as afore-stated.
Hence, the instant appeal.
6. It is contended by learned counsel for the appellant that the case in hand is arising out of a crime report which was registered with unexplained delay of eight days; that the eyewitnesses of the occurrence miserably failed to justify their presence at the spot; that the victim though claims to have fallen prey to the sexual assault launched by the appellant, however , was not medically examined; that the witnesses contradicted each other on all material aspects which rendered them unworthy of any credence and that since evidence of Hijab Fatima (PW.2) was recorded by the trial court without administering oath hence her deposition is destined to be discarded. Though learned counsel for the appellant initially pressed hard for the acquittal, however , at the latter stage of arguments requested for reduction of sentence.
7. On the other hand, learned Law Officer came forward with the submissions that though there is some delay in registration of FIR but it has no significance keeping in view the nature of offence and the fact that both sides are not having any previous enmity between them; that during trial victim of sexual assault, namely Hijab Fatima not only appeared before the learned trial court but went on to implicate the appellant with the commission of crime in question; that even the two eyewitness es of occurrence also held appellant responsible for committing this gruesome act and that one of the eyewitnesses, namely Ahmad Ali is neither having any enmity with the appellant nor is related with the complainant of the case, thus there is no reason to discard his testimony and that since prosecution successfully proved its case against the appellant, hence, conviction awarded to him needs no interference from this Court.
8. Arguments heard and record perused.
9. The case in hand is emerging from an occurrence having taken place on 12.05.2017 at about 1:00 p.m. during which a girl of nine years age, namely , Hijab Fatima (PW.2) while on way back to her house from school fell prey to the sexual lust of Atif Shahzad (appellant) who attempted to rape her. Fortune for the little girl, her hue and cry attracted the witnesses Ahmad Ali and Altaf Hussain (PW.3 & PW.4) to the spot and the evil design of Atif was thwarted. The information of the crime in question though was imparted to police eight days after the occurrence but it has no adverse significance for the case of prosecution as it is but quite natural that generally information of crime involving family honour and respect is reported to police with utmost reluctance.
10. The tale of occurrence was brought on record during trial by Hijab Fatima, Ahmad Ali and Altaf Hussain (PW.2 to PW.4). So far as, Hijab Fatima (PW.2) is concerned, she was aged about 9-years on the eventful day and is victim of the sexual assault. From an in-depth analysis, it is noticed that neither complainant Syed Mushtaq Hussain Shah (PW.1) nor the two eyewitnesses, namely , Ahmad Ali and Altaf Hussain (PW.3 & PW.4) were having any previous vengeance, grudge or grouse against Atif Shahzad (appellant) so as to provide basis for the hypothesis of false implication. It alludes from the scrutiny of record that Atif Shahzad is the solitary perpetrator saddled with the accusation of resorting to sexual violence against Hijab Fatima (PW.2). The eyewitnesses and the victim even after cross-examination budged not a single inch from their stance and fully implicated the appellant for commission of crime. To be precise, even after having scanned the ocular account of occurrence with due circumspection, this Court has not come across any lacuna in prosecution evidence, the legitimate benefit of which can be given to the appellant through acquittal from this case. The little girl Hijab Fatima stood firm like an oak tree during cross-examination and gave no leverage to the defence. This Court has also taken note of the fact that Hijab Fatima was not medically examined after the occurrence but for valid reasons, as according to facts canvassed during trial, the attempt to commit rape remained unproductive due to the immediate arrival of the witnesses at the spot, thus such examination was an exercise in futility . Even otherwise, this is not the case of prosecution that during incident in question, Hijab Fatima received any injury . It will not be an over-exaggeration to hold that no father is expected to put his daughter on a burner of criminal litigation with accusat ion of instant nature, even out of abhorrence, while being mindful of future consequences. In the instant case, Mushtaq Hussain Shah (father of the victim) also appeared in the dock and reiterated the detail of occurrence as embodied in crime report.
11. Learned counsel for the appellant mainly argued the instant appeal on the ground that since statement of victim Hijab Fatima (PW.2) was recorded by the learned trial court without administering oath, hence, her deposition is destined to be discarded. In this regard, it is observed that though no oath was administered to the star witness of prosecution case, namely , Hijab Fatima but such omission can in no manner be resolved to the detriment of prosecution case. Oath to a witness is administered through the enabling provision of section 5 of Oaths Act, 1873 (hereinafter referred to as the "Act" ) and the foregoing provision for reference sake is being reproduced hereunder:- "5. Oaths or affirmations to be made by witnesses; interpreters; Jurors. Oaths or affirmations shall be made by the following persons:-
(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court of person having by law or consent of parties authority to examine such persons or to receive evidence;
(b) interpreters of questions put to and evidence given by witnesses; and
(c) jurors: Provided that where the witness is a child under twelve years of age and the Court or person having authority to examine such witness isof opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor the obligation of the witness to state the truth.
Nothing herein contained shall render it lawful to administer , in a criminal proceeding, an oath or affirmation to the accused person, or necessary to administer to the official interpreter of any Court, after he has entered on the execution of the duties of his office, an oath or affirmation effect that he will faithfully discharging those duties.
(emphasis is mine).
From the bare recital of foregoing provision, following points can be extracted:-
(1) All witnesses are required to take oath before recording of their deposition in Court.
(2) Such oath is not to be administered to a child witness having age of less than twelve years, if he understands his obligation of speaking the truth but does not understand the nature of an oath.
(3) Non administering of oath to a child witness will not render his testimony inadmissible.
(4) A child witness will not be absolved from his obligation of stating the truth before the Court, even if he is not asked to take oath.
The inevitable conclusion of above is that non-administering of oath to Hijab Fatima (PW.2) does not give rise to any legal error, upon which appellant can bank upon to earn acquittal in the instant case. Even otherwise, it is clearly postulated in section 13 of the Act that omission or irregularity pertaining to administering oath will neither invalidate any proceeding nor will render inadmissible the evidence of a witness. For the clarity of proposition, section 13 of the Act is mentioned hereunder:- "13. Proceedings and evidence not invalidated by omission of oath or irregularity . No omission to take any oath or make any affirmation, no substitution of any one for any other of them and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence, whatever in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."
After going through sections 5 and 13 of the Act, it can relentlessly be held that omission to administer oath to a child of less than twelve years age does not render his deposition inadmissible.
12. It will not be out of place to mention here that competency and credibility of witness are two distinct terms which cannot be intermingled with each other . Competency of a witness to testify is to be decided in accordance with law of evidence which in our country is the Qanun-e-Shahadat Order , 1984 (hereinafter referred to as "QSO, 1984). As regards the credibility of a witness, it is a question of fact, to be decided by Court while keeping in view the principles laid down for appraisal of evidence. While pondering upon the competency of a child witness, it is observed that Article 3 of QSO, 1984 deals with it. According to Article 3 of QSO, 1984, all persons are competent to testify until they are found prevented from understanding the questions put to them or from giving their rational answers, either due to tender/extreme age or for some physical or mental disability . Likewise, a person in receipt of conviction for perjury is also not competent to testify unless the court is satisfied that he has repented from doing so and has mended his ways. So far as, a witness of tender age is concerned his testimony can attain acceptance, if the court is satisfied that he can understand a question and is in a position to offer an answer based on reason.
Satisfaction of the court in terms of Article 3 of QSO, 1984 since is not a simple formality but legal obligation hence is to be discharged with utmost circumspection. A child witness who is found competent to testify in terms of Article 3 of QSO, 1984, his deposition is not to lose credence even if not administered oath in terms of section 5 of the Act.
Since child evidence can ensue the consequence of conviction to an accused, hence the satisfaction of court in terms of Article 3 of QSO, 1984 must reflect the application of legal mind. Such object can best be attained through proper questioning to a child witness. In this backdrop, it is desirable that competency of a child witness is to be determined in reference to Article 3 of QSO, 1984 and that too through proper questioning. In order to further elaborate the proposition, a reference is being made to the case reported as Bashir Ahmad v. The State (PLD 1979 Karachi 147 ) wherein following was the observation of the Hon'ble Sindh High Court:- "If the child is otherwise mature and can understand the questions and make rational answers though he is not able to understand the obligation of an oath, his evidence without administering the oath could still be recorded and taken into consideration. Omission to administer the oath would not invalidate the proceedings or render his evidence inadmissible. It is a duty of the court in all such cases to record a finding on these points in order to enable the appellate court to properly assess the evidence so recorded. In the absence of such an inquiry and determination of these questions much reliance cannot be placed on the evidence of PW ."
In another case reported as Abdul Jabbar v. The State (1992 P.Cr.LJ 101), the Hon'ble Sindh High Court while dilating upon the proposition of not administering oath to a child witness gave following observations:- "It may be added that a child' s evidence is not inadmissible merely because no oath was administered to such a witness."
13. Record of the case in hand unveils that for deciding the competency of Hijab Fatima (PW.2) as witness, the trial court recorded its satisfaction by putting certain questions to her in terms of Article 3 of QSO, 1984 and also gave a memorandum in this regard. Keeping in view the fact that Hijab Fatima (PW.2) subs equently gave all the necessary details of the occurrence before the trial court, her deposition inspires confidence thus has attained credence. This Court is mindful of the fact that a child due to his tender age can fall hostage to the tutoring of his/her elders but the peculiar facts of the instant case outrightly exclude any such possibility . Suffice it to say in this regard that a father cannot knit a false story like the instant one which is having looming danger of stigmatizing the future of his own daughter . The afore-mentioned proposition can be summed up with the observation of Indian Supreme Court expressed in case reported as Rameshwar v. The State of Rajasthan (AIR 1952 SC 54), which for reference sake is being reproduced as under:- "An omission to administer an oath, even to an adult, goes only to the credib ility of the witness and not his competency . The question of competency is dealt with in Section 118, Evidence Act. The Oaths Act does not deal with competency and under Section 13 of that Act omission to take oath does not affect the admissibility of the evidence. It therefore follows that the irregularity in question cannot affect the admissibility of the evidence of the girl. It is, however , desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherw ise the credibility of the witness may be seriously af fected, so much so, that in some cases it may be necessary to reject the evidence altogether ."
14. After having arrived at the conclusion that prosecution was successful in bringing home the guilt of appellant, this Court has also peeped through the defence put-forth by Atif Shahzad (appellant). He has simply taken the plea of false implication and that too on a petty dispute, in support of which he led no evidence. It needs no mention that if at all family of Hijab Fatima had any axe to grind with the appellant, there were numerous other ways to satisfy such grudge but the registration of instant case with the allegation in question was not even a last choice.
15. While deciding ultimate fate of the appeal, this Court has taken note of the fact that fortunately , Hijab Fatima escaped un-raped from the sexual assault. Similarly , nothing as such is broug ht on record to prove that Atif Shahzad (appellant) was a philanderer by character and at the eventful time his ultimate design was nothing but to rape Hijab Fatima. Since the incident occurred at a thoroughfare and that too in a broad daylight, hence it appears that appellant out of sexual frustration only intended to sexually molest the victim without the act of penetration. In such circumstances, the conviction and sentence of the appellant under section 376 read with section 511 P.P.C. is not sustainable which is set-aside; however he stands convicted under section 354 P.P.C. and sentenced to suffer rigorous imprisonment for two years along with fine of Rs.50,000/. In case of default in payment of fine, the appellant shall further undergo 2-months S.I. The convict/Appellant is also directed to pay Rs.100,000/- as compensation to minor-victim Hijab Fatima under section 544-A, Cr.P.C. for causing physical and mental anguishment to her, failing which he shall further undergo three months SI. However , benefit of section 382-B Cr.P.C will also be available to the appellant.
16. In the above terms, Criminal Appeal No.206421-J of 2018 is disposed of.