The present criminal appeal is directed against the judgment dated 15-5-1989, whereby Ausaf Ali Khan, the learned Sessions Judge, Lahore convicted the appellant under section 326, P.P.C. And sentenced him to suffer R.I. For 10 years and also a fine of Rs.5,000 or in default thereof to further R.I.
For 6 months. The fine if recovered, was ordered to be paid to the injured P.W.5. The benefit of the provisions of section 382-B, Cr.P.C. Was also extended to the appellant. By the same judgment the appellant was acquitted of the charge under section 364-A, P.P.C.
The State has filed Criminal Appeal No.683 of 1989 against the said acquittal. The present judgment shall dispose of both these appeals.
2. The brief facts leading to the present criminal appeals are that an F.I.R. No.20/88, dated 27-1-1988 under section 11/18, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 364-A, P.P.C. Was registered at Police Station Lytton Road, Lahore, at the instance of the complainant, Muhammad Aslam, P.W.4. According to the said' F.I.R. Exh.P.D./1, recorded on the basis of the statement of the complainant, Exh. P.D., the complainant, a vegetable seller in P&T Colony, Multan Road, Lahore, was informed by his mother at 9-30 a.m. On 27-1-1988 at his shop that his sister Mst. Saadia aged about 4/5 years had gone out of her house with a rupee to buy something but has not returned ever since. Whereupon the complainant and one Muhammad Tariq Khan went looking for her and that on reaching the drain near Telephone store, they heard the shrieks of a child from behind the said store, and that on reaching the spot saw the appellant with a Chhuri in his right hand, having made the said child Mst. Saadia laid down on the ground with her Shalwar removed and with his own Shalwar untied. It is further stated therein that on seeing them the appellant after injuring Mst. Saadia with Chhuri started running, and that the complainant and his companion Muhammad Tariq Khan alongwith Zahid Ali Shah and Muhammad Aslam son of Lal Din, who had meanwhile appeared on the scene, tried to catch the appellant but he made good his escape alongwith the Chhuri. It was alleged in the said F.I.R. That the appellant had kidnapped the said Mst. Saadia the sister of the complainant, for committing Zina with her, and that he had injured her while running away.
3. Later on, offences under sections 324 and 325, P.P.C. Were also added to the said F.I.R, by P.W.8 Abdul Waheed Inspector/S.H.O., who investigated the case. Therefore the challan against the appellant was submitted before the-trial Court under section 11/18, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under sections 364-A, 324 and 325, P.P.C. However, the formal charge preferred against the appellant was only under sections 364-A and 324, P.P.C. On 11-6-1988, but the same was further amended by converting the charge under section 324, P.P.C. To one under section 326, P.P.C. On the receipt of the final medical report of the Radiologist Dr. Iftikhar Hussain P.W.7 on 3-5-1989 and the charge reframed accordingly. However, by the impugned judgment, the learned trial Court had acquitted the appellant of the charge under section 364-A, P.P.C. And convicted him only under section 326, P.P.C. And sentenced him as stated above.
4. To prove its case, the prosecution relied upon the testimony of 9 witnesses, having given up Zahid Ali and Muhammad Tariq Khan P.Ws., as having been won over but the said witnesses were examined as C.W.1 and C.W.2 respectively by the learned trial Court. The appellant neither recorded his statement under section 340, Cr.P.C. Nor produced any evidence in his defence and furthermore denied the charge against him in toto in his statement under section 342, Cr.P.C.
Alleging that the complainant P.W.4 was inimical towards him for the reasons stated therein.
5. P.W.1 Dr. Najam-ud-Din had conducted medical examination of Mst. Saadia, the injured P.W.5, on 27-1-1988 at 12-10 p.m. And had found the following injuries on her person:-- (1)Multiple contusion in an area 10.00 x 8.00 c.m. In front of the upper neck.
(2)Incised wound 12 x 6 c.m. Into bone deep with broken distal and of humerus, protruding from the wound on the lower outer right arm. Direction of the wound more or less horizontal.
(3)Contused swelling 10 c.m. x 8 c.m. Over the lower part front and back of left arm and left elbow joint.
Patient was then referred to Forensic Radiologist Surgeon Medico Legal Office for X-Ray of both arms. The nature of injuries was kept under observation till the report was received. The kind of weapon used for injury No.2 was sharp and for the rest of the injuries was blunt. Exh. PA. Is the carbon copy of his medico-legal report, which bears his signatures. Out of the injuries kept under observation, injuries Nos.2 and 3 were declared grievous, vide final report Exh.P.F./1.
6. The other witness in respect of the injuries stated above was P.W.7 Dr. Iftikhar Hussain Mir, Forensic Radiologist, Surgeon Medico Legal Punjab, who had X-Rayed both the arms of Mst. Saadia P.W.5 on 27-1-1988 and as per his report Exh. P.F., which bears his signatures, the X-Ray film showed as follows:-- (1)Right upper arm--complete detachment of distal articular end of humerus with protrusion outside the soft tissues (of proximal portion). There was lateral rotation of radius and ulna as well.
(2)Left upper arm--there was complete detachment of distal articular end of humerus with lateral displacement of proximal portion. Radius and ulna were also rotated laterally.
7. P.W.2, Muhammad Anees, A.S.I., deposed to the effect that on 27-1-1988 Muhammad Aslam P.W.4 had produced blood-stained shirt P.1 and Shalwar P.2 before the Investigating Officer who had taken them into possession vide memo. Exh. P.B., which was also signed by him. The said P.W.2 had further stated that he had taken the victim Mst. Saadia P.W.5 to the Medico Legal Surgeon for her medical check up and that earlier he had obtained injury statement Exh. P.G. Of the injured P.W.
Written by the Investigating Officer P.W.3 Gulab Din is a recovery witness of Chhuri P.3. He had stated that on 29-1-1988 at 4-00 p.m. The S.H.O., on the disclosure of the accused had taken the accused in company of the witnesses to the Telephone store and that behind the said store where grass had grown the accused pointed the place wherefrom the said Chhuri P.3 was picked up by the S.H.O. And taken into possession vide memo. Exh. P.C. The other witness of the said recovery namely, Mushtaq was given up. P.W.4 is the complainant Muhammad Aslam son of Muhammad Siddique, and as stated earlier the formal F.I.R. Exh.P.D./1 was recorded on the basis of his statement Exh. P.D., and that he had produced the blood-stained shirt P.1 and Shalwar P.2 of the victim P.W.5 before the Investigating Officer P.W.8, who had taken the same into possession vide memo. Exh. P.B.
P.W.5 Mst. Saadia is injured victim and the learned trial Court after satisfying itself about her comprehension and understanding the questions put to her, recorded her statement, which is as follows:-- "I had gone out of my house to buy a thing from near the bridge about four months back. I had ode rupee with me. At the bridge Baidi met me (when asked as to whether the said Baidi is present in the Court, she pointed out the accused). He started beating me. He removed my Shalwar. He also removed his Shalwar. He then gave me Chhuri blows on my arm. Before taking me with him he asked me to go with him because the place where he was taking me there were many (things) eatables. My brother Aslam and the store walas saw him injuring me. The accused had run away from there. It was during day time when this happened. The doctor had also seen me."
8. P.W.6 is also an eye-witness, although as per statement of the complainant he had reached later in point of time after the complainant and Tariq (C.W.2). According to the prosecution he had given chase to the accused at some distance and seen the accused at the place of the occurrence. The witness, however, accepted this much that on 27-1-1988 at about 9-45 a.m. He came to telephone store, and heard the weeping noise of a child coming from behind the said store. The witness, therefore, reached the place and found Mst. Saadia lying there soaked in blood. The witness however, denied having seen the accused at the spot or witnessed the occurrence.
9. P.W.8 Abdul Waheed Inspector/S.H.O. Deposed that he was on patrol duty while he was informed about the incident. The Investigating Officer then reached the spot, recorded the statement of the complainant Exh. P.D. And sent the same to the police station for the registration of the case. He then prepared injury statement of Mst. Saadia and sent her for medical examination through Muhammad Anees A.S.I. And Tufail F.C. And busied himself in preparing rough sketch Exh. P.M. Of the place of occurrence and received shirt P.1 and Shalwar P.2, both blood-stained of Mst. Saadia from the complainant and took them into possession vide memo. Exh. P.B. He had also arrested the accused the same day.
Though later the accused led him to the recovery of the Chhuri P.3 from near the wall of the store hidden under the grass, which was taken into possession vide memo. Exh. P.C. He also prepared the site plan of the place of recovery Exh.P.C./1.
10. P.W.9 Manzoor Hussain H.C. Is a formal witness. He after receiving the complaint Exh. P.D. Had drafted the formal F.I.R. Exh.P.D./1.
11. P.W.6 Muhammad Aslam son of Lal Din was declared hostile and cross---examined as a result thereof by the prosecution. He denied having witnessed the occurrence.
12. Both the Court witnesses namely, Zahid Ali C.W.1 and Muhammad Tariq Khan C.W.2 denied having witnessed the occurrence, but admitted that when they reached the spot Mst. Saadia was lying injured in a pool of blood.
13. Thereafter, the statement of the appellant/accused was recorded under section 342, Cr.P.C. Who completely denied the allegation ascribed to him as stated above. His statement under section 342, Cr.P.C. Is as follows:-- "I have been falsely involved in the case at the instance of the complainant who was inimical towards me; because he was a heroin addict person and had owed me Rs.30 and on my demanding back that money, and on my threat that I will inform his parents about it; he not only refused but also threatened me with dire consequences, and for this reason he has falsely involved me in this case, with the connivance of the police."
14. The learned trial Court, as stated above, acquitted the appellant/accused of the charge under section 364-A, P.P.C. But placing reliance on the evidence of the complainant P.W.4, the brother of the injured P.W., and that of Mst. Saadia, the injured P.W.5, convicted the appellant under section 326, P.P.C. And sentenced him as stated above.
15. The learned counsel for the appellant, the State and the complainant have been heard at length and the record of the case perused with their assistance.
16. The learned counsel for the appellant assailed the impugned judgment and submitted that even the learned trial Court has admitted in its judgment that there were contradictions in the testimony of the P.Ws., and that the prosecution case suffers from legal infirmities. In this respect, further submitted, that the learned trial Court had noted that the investigation was thoroughly dishonest in the instant case and that, therefore, the testimony of the complainant itself merits to be disregarded because of the doubts thus created in respect of the case of the prosecution. In this respect, made detailed submissions by reading out the testimony of the complainant P.W.4.
Further submitted that P.W.6, Muhammad Adam son of Lal Khan declared hostile, was thoroughly cross-examined by the prosecution but failed to gain anything in its favour thereby, therefore argued that the testimony of the said witness clearly establishes that the complainant had neither witnessed the occurrence nor was he deposing truthfully. Further submitted that as borne out by the circumstances of the case, because of the contradictions in the manner, the time and the place of the recording of the statement of the injured P.W.5, Mst. Saadia, the possibility of her having been tutored cannot be ruled out, and that the benefit of the doubt so arising should also go .To the appellant. Further submitted that to rely upon the testimony of the said P.W.5, Mst.
Saadia, without any independent corroboration is contrary to the principles of safe administration of criminal justice.
17. On the other hand, the learned counsel for the complainant vehemently argued that the injured P.W. Mst. Saadia's statement was fully corroborated by the Medico-Legal Report and the testimony of P.W.4, Muhammad Aslam the complainant. Further submitted that the learned trial Court had duly satisfied itself about the said injured witness being with sufficient comprehension and intelligence to understand and answer the questions put to her. Further submitted that the said child victim P.W.5 was duly cross-examined by the defence but failed to demolish her testimony.
Further submitted that the medico-legal report and the testimony of the doctors i.e. P.W.1 and P.W.7, duly proved that the victim had suffered grievous injuries caused by sharp-edged weapon, and that, therefore, the case against the appellant stood proved to the hilt.
18. The learned counsel for the State adopted the arguments of the learned counsel for the complainant and further submitted that the learned trial Court had duly taken into consideration all the aspects of the case, and that as the learned trial Court was in the best position to observe the demeanour of the witnesses, especially that of the victim P.W.5 and to justly appraise the evidence produced before it, and as the same does not suffer from any illegality, therefore, the present criminal appeal merits to be dismissed.
19. This Court has given its anxious consideration to the submissions made by the learned counsel for the parties. As pointed out by the learned counsel for the appellant, the case of the prosecution suffers from contradictions, especially in respect of the testimony of the complainant P.W.4, Muhammad Aslam, the brother of the injured P.W.5, Mst. Saadia. Furthermore, neither P.W.6 supported the prosecution version and denied having witnesses the occurrence and although subjected to cross-examination on being declared hostile, yet his denial could not be shaken, nor the Court witnesses, namely Zahid Ali C.W.1 and Muhammad Tariq Khan C.W.2, supported the prosecution version, though they admitted having reached the spot and seen Mst. Saadia injured P.W.5, lying in a pool of blood but, it has been duly established by the testimony of the injured child P.W.5, Mst. Saadia, that the appellant was duly identified by her as the assailant I who had caused injuries to her with a Chhuri. It has further been established beyond doubt, as stated above, that the said injured P.W. Had the intelligence of the comprehension to testify to that effect i.e. Being able to identify the assailant and to depose to the effect as to hew the injuries were caused to her.
Therefore, in spite of the investigation of the case as narrated by the learned trial Court and pointed out by the learned counsel for the appellant, and despite the infirmities in the deposition of the complainant P.W.4, the case against the appellant stands proved beyond reasonable doubt on the testimony of the injured P.W.5, Mst. Saadia, as it is duly corroborated by the injuries sustained by her. She had been subjected to lengthy cross-examination but the defence failed to demolish her testimony. In this respect strength is sought from Abdullah Shah v. The State 1968 SCMR 852, wherein the Honourable Supreme Court has refused special leave to appeal and observed that the girl aged 7 or 8 years possessed sufficient intelligence and as her evidence has not been shaken in the cross-examination; she was a competent witness, and, therefore, further held that Courts below had rightly believed and relied upon her testimony.
20. Therefore, in pursuance to the above discussion, the present criminal appeal is hereby dismissed but, under the facts and circumstances of the case, it is deemed appropriate to reduce the sentence of imprisonment awarded to the appellant to seven years' R.I. The fine of Rs.5,000 or in default thereof further R.I. Of six months is hereby maintained, and the fine, if recovered, shall be paid to the injured P.W.5. The appellant shall also be entitled to the benefit of section) 382-B, Cr.P.C.
21. After having heard the learned counsel for the parties, it is hereby further held that no case has been made out for interference with the acquittal of the appellant for the offence charged under section 364-A, P.P.C. Vide the impugned judgment, therefore, Criminal Appeal No.683 of 1989, preferred against the said acquittal is hereby dismissed.
22. In accordance with the terms stated above, both the Criminal Appeals i.e. 374 of 1989 and 683 of 1989, are hereby dismissed.