' Vide judgment, dated 31-3-1998 three accused-appellants namely Zulfiqar, Iftikhar (both sons of Bashir Ahmad) and Mst. Kaniz Bibi widow of Bashir Ahmad were tried by Mr. Muhajid Hussain Sheikh, learned Additional Sessions Judge, Nankana Sahib, District Sheikhupura. Zulfiqar and Iftikhar were convicted under section 438, P.P.C. For committing, lurking house trespass after making prepatation to cause injuries to Mst. Nasreen and both were sentenced to undergo ten years' R.I.
Each, with a fine of Rs,50,000, in default whereof, to further undergo two years' R.I. Each. Both were also convicted under section 336/34, P.P.C. And sentenced to ten years' R.I. Each and also to pay Rs,1,00,000 each to Mst. Nasreen Bibi as Arsh. Mst. Kaniz was convicted under section 336 read with section 109, P.P.C. And sentenced to undergo ten years' R.I. And also to pay Rs,1,00,000 as Arsh to Mst. Nasreen Bibi. All the sentences were ordered to run consecutively.
2. The prosecution commenced with the statement of Muhammad Sharif which was recorded by Muhammad Yusuf, A.S.-I. From Police Station Faiz Abad, Tehsil Nankana Sahib, District Sheikhupura, vide F.I.R. No,106 of 1997, dated 11-6-1997 Exh.P.A./1. It was stated therein that Mst. Nasreen Bibi daughter of the complainant Muhammad Sharif was asleep in the house, when at about 3-00 a.m.
(midnight), one Habib Ullah alongwith an unknown person entered the house and asked Mst.
Nasreen Bibi to submit to him for adultery., On her refusal, he sprinkled acid, as a result of which, her face, hinds, cheeks and head got burnt. She raised hue and cry whereupon other inmates of the house got up. The accused persons succeeded in making', their escape. Complainant's brother Bagga and nephew Bashir Ahmad were sleeping in the house. Complainant's son Rehmat Ali and another daughter Mst. Parveen Bibi identified Habib Ullah. However, his companion could not be recognized.
3. The occurrence took place on 9-6-1997 at 3-00 a.m. And the report was lodged on 11-6-1997. On 14-6-1997 a supplementary statement was got recorded vide Exh.P.F., wherein it was stated that the complainant got registered the case against Habib Ullah at the behest of his relatives but thereafter, real facts were disclosed to him and it revealed that in fact Zulfiqar, Iftikhar and Mst.
Kaniz had thrown acid and as such committed the offence in furtherance of their common intention. A request was made to cancel the case against Habib Ullah and to proceed against the said three accused.
4. On 11-7-1997 Mst. Nasreen victim got her statement Exh.P.D. Recorded and it was stated therein that on the night intervening 9/10-6-1997 at 3-00 a.m. When she was asleep in her house alongwith her sister and brother, accused Zulfiqar and Zulfiqar sons of Bashir Ahmad and their aunt Mst. Kaniz entered the house and Zulfiqar accused throw acid on her. She raised alarm but was caught hold from legs by Iftikhar accused and Zulfiqar threw acid on her. Zulfiqar also made a shriek because acid got dropped on his hand as well. On account of her injuries and burns caused by the acid she has become blind and her face, head, arms and other parts of the body had been disfigured and damaged.
' The motive was stated to be that Mst. Kaniz had three daughters and no son, she wanted to marry her daughters with Muhammad Tufail, Amjad and accused Iftikhar but Amjad brother of the accused was not willing and instead wanted to marry Mst. Nasreen victim P.W. Due to that grievance they all joined hands and threw acid on her, seriously damaging and disfiguring her.
5. The investigation was initiated by Azmat Hayat, S.-I./S.H.O. P.W.10 on 11-7-1997 on the direction of the D.S.P. He visited the Mayo Hospital and recorded the statement of Mst. Nasreen injured Exh.P.D.
Thereafter, the investigation was carried out by Zameer Ahmad, D.S.P. Saddar Sheikhupura P.W.7 who recorded supplementary statement of the complainant Exh.P.F. He went to Mayo Hospital recorded the statement of Mst. Nasreen and got the contents of the supplementary statement verified by comparing the contents of her statement in Exh.P.D. He also verified the statements of Mst. Parveen and Bashir Ahmad sister and brother of the victim. He then visited the spot, complainant produced burnt cot Exh.P.1 burnt pillow Exh.P.2, one printed Chadar Exh.P.3, one Dari Exh.P.4, one Sota Exh.P.5, one bottle of acid Exh.P.6 one burnt Shalwar Exh.P.7 and one burnt shirt Exh.P.8. They were all secured into possession vide memo. Exh.P.E. Under the direction of the learned Additional Sessions Judge, Nankana Sahib, investigation was finalized and all the three accused- appellants were sent up to face trial.
6. The prosecution in order to prove its case examined 10 witnesses.
' Muhammad Ashraf, Head Constable P.W.1 is formal witness. Muhammad Sharif P.W.2 is the complainant and according to him at 3-00 a.m. His daughter Mst. Nasreen was injured by throwing acid when she was sleeping in the house alongwith her sister Parveen Bibi, Bashir Ahmad and Bagga. He was present in the cattleshed and was called in the house i,e, place of occurrence, where he was informed by the witnesses that Zulfiqar, Iftikhar and Mst. Kaniz had thrown acid on the face of Mst. Nasreen who was then taken to hospital, wherefrom she was referred to May Hospital. It was added that accused-appellant i,e, Zulfiqar, Iftikhar and Mst. Kaniz took him to police station, got Exh.P.A. Drafted which was then got thumb-marked by him Habib U11ah was named as accused and as such the case was got registered. When he came back from Mayo Hospital, Lahore, he was informed about the real culprits.
8. P.W.3 Muhammad Yousaf, A.S.-I. Conducted the initial investigation. He performed necessary functions required to cotnplete the investigation. He on 11-11-1997 was directed by High Court that Zulfiqar be got examined by skin specialist. Accordingly he was got examined from Dr. T.S. Haroon.
He was again directed to get Zulfiqar examined from a Medical Board and the Medical Board after examining Zulfiqar submitted a report which is Exh.P.C./1, the said report was given by Dermatologist which is Exh.P.C./2.
9. Mst. Nasreen the main witness in this case was examined as P.W.4. According to her she was present in her house at 3-00 a.m. Her brother Rehmat Ali and sister Mst. Parveen, uncle Bagga and brother-in-law Bashir Ahmad were also present in the house, when Zulfiqar, Iftikhar and Mst. Kaniz scaled over the wall and entered the house. Iftikhar caught hold of her legs when Zulfiqar threw acid on her face. She tried to raise hue and cry but was estopped by Zulfiqar. She was removed to the hospital, where her statement was recorded by a Police Officer.
10. Mst. Parveen Bibi P.W.5 is the sister of victim who was sleeping in the house. She made a statement similar to that of Mst. Nasreen. According to her as well, Zulfiqar threw acid 6n Mst.
Nasreen, as result of which she received serious acid burns, etc.
11. P.W.6 Khadim Hussain is the witness of recoveries. Zamuer Ahmad, D.S.P. P.W.7 is the Investigating Officer. His evidence as well as that of Azmat Hayat, S.-I. P.W.10 have been referred above in detail.
12. Dr. Muhammad Abaid Ullah P.W.9 medically examined Mst. Nasreen on 10-6-1997. He found acid burns on head, forehead, face, neck, eyes, chest and right leg. Burns on face and skull were deep in nature and blackish in nature. She was then referred to Eye Surgeon for Expert opinion about the loss of vision. Exh.P.G. Is the correct carbon copy of the Medical Report issued by him.
13. P.W.8 Dr. Tahir Saeed Haroon, Professor of Dermatology was examined as witness who was Member of the Board constituted under the orders of this Court. On 25-11-1997 he alongwith two other Members of the Board medically examined Zulfiqar and observed that there were three scars on the person of Zulfiqar which are as under:-
(1) A 10 c.m. x 7 c.m. Scar on the dorsum of right hand and wrist extending on the radial border of the right wrist joint.
(2) A 4-1/2 c.m. x 3 c.m. Scat on the ulnar aspect of the flexor surface of the right forearm, about 3 c.m. Proximal to the line of the wrist joint.
(3) A 1-1/2 x 1 c.m. Scar on the lateral aspect of the dorsum of the right wrist joint.
' According to the report of the Board the scars could be result of burns due to corrosives (acids and alkalis), boiling liquids and flames or follow trauma or infection. The exact cause, however, could not be determined. Exh.P.C./1 is the copy of the report.
14. Earlier as well, on 12-11-1997 he had examined Zulfiqar who had three keloids on the dorsum of right hand and right wrist allegedly since 7-6-1997. According to him the same had been caused due to fall of a hot dye on his skin when his friend was dying a Dupatta. In the opinion of the doctor, it was not possible to judge the cause of keloid formation. Exh.P.C./2 is the copy of the report.
15. After examining the ten witnesses, the prosecution close its case and the accused-appellants were examined under section 342, Cr.P.C. Who denied the allegations levelled against them and pleaded their innocence stating that they have been falsely implicated due to suspicion at the instance of Habib who had initially been named as accused. Mst. Kaniz accused-appellant came up with the plea that she had been implicated being relation of Zulfiqar and Iftikhar.
16. The learned counsel for the appellants in support of the appeal has laid much stress on the F.I.R.
Exh.P.A./1 which was recorded on the statement of Muhammad Sharif. According to him the occurrence took place on 9-6-1997 at 3-00 a.m. Whereas the report was lodged 11-6-1997. As noted above while detailing the facts of the case, initially the name of Habib Ullah had been mentioned in the application. According to the learned counsel subsequent statement of Mst. Nasreen dated 11- 7-1997 is fabricated and no safe reliance can be placed on her testimony. According to the learned counsel the complainant had stated himself to be present in the house but subsequently in his supplementary statement he described himself to be present in his fields and the information was supplied to him by his neighbour Abdul Ghafoor and inmates of the house. The supplementary statement made by Muhammad Shard is of no legal value, its authenticity and veracity has also been doubted by the learned trial Court. With regard to statements of other witnesses i,e, Mst.
Nasreen and Mst. Parveen, it is argued that had the appellants been there then Mst. Nasreen would have disclosed the same to other inmates of the house and especially to her father, therefore, statement made by Mst. Nasreen in Court as also her sister Mst. Parveen, are of no value, therefore, no reliance can be placed on their testimony.
17. It is true that earlier application moved by the complainant, on the basis of which formal F.I.R.
Exh.P.A./1 was recorded, contain the name of one Habib Ullah and his unknown companion.
Ordinarily the version given in the F.I.R. Being the first version is attached significant importance but keeping in view the facts and circumstance of the present case and also by keeping in view that severe damage has been caused to Mst. Nasreen, as is evident from the report of the doctor and also from the submissions made on behalf of the complainant that she has also been completely disfigured and has become almost blind, as such life of a young girl has been rendered meaningless, the evidence has to be appraised and analysed by taking into consideration all the attending circumstances. The most important statement of course in this case is, is Mst. Nasreen victim whose statement was recorded for the first time on 11-7-1997 in the hospital. She must be under severe pain and torture. Acid burns always create almost unbearable sort of pains in the entire body. According to her she had become almost unconscious after receipt of the injuries. She was removed to the hospital. The statement by her in hospital in such a situation when she was not even sure that she will be able to survive cannot be ignored merely on the ground that earlier an application had been moved, wherein some other person had been named as an accused. Mst.
Nasreen, after the acid was thrown on her body, must have got up instantly and she obviously would have seen the assailant and she would not spare a person who almost finished her life. The first version, therefore, practically would be the statement of Mst. Nasreen. Her statement is supported by the statement of her sister Mst. Parveen. Nothing has come on record as to why she would falsely implicate the accused persons and substitute them by sparing the real culprit. What to speak of any material, even no substantive suggestion has been put to her. Even if the evidence of other witnesses is ignored, the statement of Mst. Nasreen herself when assessed alongwith medical opinion and further on her statement is supported by the fact that Zulfiqar received injuries on his right hand, all these pieces of evidence when linked together lead to one conclusion that Zulfiqar accused is the person who threw acid on her face and body. Zulfiqar although tried to explain those keloids and scars by stating that he had received these injuries on account of droppage of some hot dye or water yet the fact remains that Exh.P.C. And Exh.P.C./1 suggest that these scars may result from burns due corrosives (acids and alkalis). It has although been added that boiling liquids and flames may also create such-like burns but the fact remains that the possibility of these burns being result of some acid could not be ruled out. The report of the Dermatologist also not disproves the case of the prosecution and does not advance the case of Zulfiqar appellant, when it is told that it was not possible to judge the cause of keloid formation.
Obviously Mst. Nasreen was not aware that Zulfiqar had some mark of burn on his hand or wrist.
When she stated that some acid drop fell on his hand as well, this finds support from the report of Dermatologist. Even in absence of this circumstance Mst. Nasreen had made a statement which is supported by the medical evidence as some scars and keloids were observed on the hand of Zulfiqar which could possibly be caused by corrosives such-like acids and alkalis. Mst. Nasreen as noted above has no enmity or motive to falsely implicate the accused persons.
18. However, it cannot be ignored that unfortunately no proper investigation appears to have been made and error was committed by the complainant, may be inadvertently or may be he was driven to move a false application, puts the Court to guard to analyse and adjudge that any innocent person may not have been implicated due to some suspicion or an erroneous impression.
In order to eliminate any possible elimination of innocent person, the relevant circumstances is as to how the offence was initiated and what possible may be the motive for the crime. The first possible motive which came on record is that trespass was committed in order to commit rape with Mst. Nasreen but as she resisted, she was sprinkled with acid. Possibility of this motive being true, cannot be ruled out. When this motive or the cause of commission of the crime is compared with the motive subsequently set up by the prosecution that Mst. Nasreen was injured because her hand was intended to be given to someone else, the earlier motive appears to be more probable and convincing. If the motive was to criminally assault Mst. Nasreen then Zulfiqar whose implication stands established, would not have associated with him, his brother and aunt i,e, Iftikhar and Mst. Kaniz. Even otherwise, in pursuit of such-like an evil errand, especially when same had to be accomplished after scaling over the wall, accompanying of Mst. Kaniz seems to be almost unbelievable. Her participation, therefore, in the commission of the offence is not acceptable. As referred to above, if Zulfiqar had trespassed into house to commit immoral assault then he would not have taken his brother as his companion. For throwing of acid escort of brother was hardly required especially when he was not alleged to be armed with any weapon.
Participation of Iftikhar appellant as such is not free from doubt. Therefore, by accepting the appeal to the extent of Iftikhar and Mst. Kaniz, their conviction and sentence as recorded by the learned trial Judge, are set aside and they, are acquitted of the charges against them. They are present on bail and shall stand discharged of their bail bonds.
19. In view of the above discussion, implication of Zulfiqar accused-appellant for the commission of the offence alleged against him, is fully established, therefore, his conviction and sentence under section 458, P.P.0 and also under section 336, P.P.C. As recorded by the learned trial Court, are upheld and maintained. Since the appellant Zulfiqar is on bail, he shall surrender or be taken into custody. Copy of this judgment shall be conveyed to the learned Sessions Judge, Sheikhupura as well as to S.S.P. Sheikhupura. In case the convict Zulfiqar do not surrender, he shall be taken into custody and lodged in jail so as to serve out the sentence. Appeal to the extent of Zulfiqar accused-appellant, as such, is dismissed. Both the sentences shall run consecutively, however, benefit under section 382-B, Cr.P.C. Is extended.