This judgment will dispose of Crl. Appeal No, 208 of 2003 filed by Babar alias Babri, appellant, who was convicted and sentenced by learned Adc11. Sessions Judge, Gujraxwala vide his judgment dated 25.1.2003 to undergo Imprisonment for life with a fine of Rs, 20,000/- or in default six months SI u/S. 354-A PPC. He was also directed to pay Rs, 20,000/- as compensation to the victim or in default six months SI.
2. Brief facts of the case as narrated by Abdul Rasheed complainant in his complaint Ex. PA are that he was resident of village Aulakh Bhaikey and his daughter namely, Zunera Rasheed, aged 13 years, a student of 9th class, on 6.5.2002 at about 1.00 p.m. was on her way back to home from school, that Babar alias Babri, the accused was standing on the main road awaiting for the complainant's daughter and he obstructed her way and with a bad intention, he persuaded to meet his illegal designs, and simultaneously, seized her into his grip and started dragging, Zunera Rasheed towards an un-inhabited house and during the course of event, Zunera Rasheed resisted, the accused stripped off her clothes and made her naked. On the alarm raised, Sarfraz and Muhammad Rafique were attracted at the spot, who came to her rescue and the accused fled away. The complainant expressed that the accused was of bad character not enjoying good reputation, and even previously he had been doing the same mis-chiefs. He maintained that the accused had played with the prestige of his family, so the law be set into action.
3. Initially the challan of this case was submitted by the local police in the Court of Maga Magistrate on 24.3.2001, who after codal formalities, framed charge against the accused on 2.2.1992 and summoned the witnesses. Thereafter, the accused remained absent on so many dates and upto 6.7.2002 the concession of bail was withdrawn by the learned trial Court and warrants of arrest of each variety, being issued, the accused could not be arrested. Ultimately, on 21.8.2002, the surety with the help of police had produced the accused before the Worthy Sessions Judge, Gujranwala, who vide his order dated 21.8.2002, cancelled the bail and put the accused Babar alias Babri into custody. The learned Sessions Judge, also vide his above referred order, has amended the offence as 354-A PPC and had withdrawn the case file from the learned lower Court and entrusted the same to the learned Addl. Sessions Judge, who received the case on 3.9.2002 and after codal formalities, the accused was charge sheeted on 25.9.2002 u/S. 354-A PPC, to which he pleaded not guilty and claimed to be tried on merits.
4. In order to prove its case, prosecution produced four witnesses in all and after giving up PW Muhammad Rafique being un-necessary, closed the case of prosecution, thereafter, the statement of the accused was recorded u/S. 342 Cr.P.C. in which he pleaded innocence.
5. Learned counsel for the appellant submits that there are material contradictions in the statements of PWs, in as much as, according to victim Mst. Zunera, she was wearing Shalwar, Qameez and Duppta, while according to Sarfraz PW.2 when the occurrence took place, Duptta of Mst. Zunera was removed from her body and he provided his Safa but the Duptta, which fell down was never recovered. Further submits that the Shirt, which was torn in the occurrence, too was not produced, so it is not discernable how much the girl became naked to attract the provision of Section 354-A PPC. Adds that the victim in her statement before the learned trial Court did not allege that she received any injury while according to PW abrasions were there on the body of the victim. Further adds that neither Nazir Mochee nor his wife was produced because according to prosecution case, the occurrence took place in front of their house. According to learned counsel it is a case of fabrication and padding. Learned counsel lastly, submits that challan was prepared u/S. 354 PPC and was put up before the learned Maga Magistrate. The offence u/S. 354 PPC entails punishment up to two years, or fine or with both but the learned Sessions Judge without complying with the provision of Section 193 Cr.P.C. took the cognizance, withdrew the case from the Court of learned Illaqa Magistrate and entrusted to same to a learned Addl: Sessions Judge. To support his arguments, that if the lady is not made naked fully then the provision of Section 354-A PPC is not attracted. According to learned counsel at the most, if any offence is made out, that is u/S. 354 PPC and not 354-A PPC. Reliance has been placed upon 1989 P.Cr.L.J. 1453, 1991 P.Cr.L.J. 194, 1992 P.Cr.L.J.
1095 and 1997 P.Cr.L.J. 600.
6. Learned counsel for the complainant supports the judgment of the learned trial Court and submits that the prosecution has been successful in proving its case against the appellant beyond and shadow of doubt. He has relied upon 1996 P.Cr.L.J. 620.
7. Learned counsel for the State submits that the victim being not made fully naked and only a portion of her shirt being torn; the provision of Section 354-A is not attracted.
8. I have heard learned counsel for the parties and have also gone through the record with their able assistance. So far as, the statement of Mst. Zunera, who is star witness of the prosecution case is concerned, that cannot be disbelieved because she had no enmity whatsoever with the appellant. The occurrence took place at 5.30 p.m. on 7.3.2001 while the matter was reported to the police on 8.3.2001 at 7.00 p.m., so it is a case of promptly lodged FIR. Sarfraz PW.2 is an independent witness. Though there are discrepancies between the statements of Sarfraz PW and Mst. Zunera but as a whole their statements corroborate with each other. Mst. Zunera is Arain by caste, while Sarfraz PW belongs to Sheikh brothery. Merely by putting a suggestion to Sarfraz PW.2 that he was deposing falsely against the appellant due to previous quarrel with the brother of the accused, cannot be termed as a gospel truth. Mst. Zunera through stood to the test of lengthy cross- examination but the learned defence counsel failed to create any dent in the said story. The victim was minor at the time of occurrence. The Court has to see the quality of evidence and not the quantity of evidence. However, Mst. Zunera in her examination in chief stated that during the scuffle her wearing apparel were torn and she became naked but in cross-examination at page 3 (seventh line from the top) she stated, "during scuffle only my shirt was torn". Even the said shirt was not produced before the police. For the just decision of this case, Section 354-A PPC is reproduced below:-- 354-A. Assault or use of criminal force to woman and stripping her of her clothes. Whoever assaults or uses criminal forces to any woman and strips her of her clothes and, in that condition exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine".
A bare perusal of the above said section would show that the words used are stripping of clothes, which is not the position in the instant case. Even according in the FIR, Section 354 PPC was mentioned and the challan was also submitted under the said Section. It was later on, on the application of the complainant party and the complaint filed by the complainant which was later on withdrawn, the case was entrusted to learned Addl: Sessions Judge and the charge was framed u/S. 354-A PPC. After having gone through the judgments cited by learned counsel 1for both the sides, the provision of Section 354-A PPC and the evidence brought on record by the prosecution I am of the considered opinion, that the prosecution has not been able to prove its case against the appellant u/S. 354-A PPC but u/S. 354 PPC, accordingly, the conviction of the appellant is altered from Section 354-A PPC to Section 354 PPC and he is convicted under the said Section to undergo RI for two years with a fine of Rs, 50,000/-which if recovered shall be paid to the victim and in case of non- payment of fine, the appellant shall undergo SI for six months. The benefit of Section 382-B Cr.P.C. is not granted to the appellant because he committed an heinous offence with the minor school going girl.
With the above modification in the sentence, the filed by the convict-appellant stands disposed of.
The Criminal Revision No, 166/2003 filed by Abdul Rashid complainant for the enhancement of sentence is dismissed.