' This judgment will dispose of Cr1. Appeal No.208 of 2003, filed by Babar alias Babri, appellant, who was convicted and sentenced by learned Addl. Sessions Judge, Gujranwala vide his judgment dated 25-1-2003 to undergo imprisonment for life with a fine of Rs.20,000 or in default six months S,I. Under section 354-A, P.P.C. He was also directed to pay Rs.20,000 as compensation to the victim or in default six months.
2. Brief facts of the case as narrated by Abdul Rasheed complainant in his complaint Exh.P.A. Are that he was resident of village Aulakh Bhaikey and his daughter namely, Zunera Rasheed, aged 13years, a student of 9th Class, on 6-5_1002 at about 1-00 p.m. Was on her the Babar alias Babri, the accused was way back to home from school, for the complainant's daughter and he standing on the main road awaitin obstructed her way and with 7 bad intention, he persuaded to meet his illegal designs, and simulta,cously, seized her into his grip and started toward an un-inhabited house and during the dragging, Zunera Rashee,"course of event, Zune a Rasheed resisted, the accused stripped off her clothes and mad- her naked. On the alarm raised, Sarfraz and muhanknad 'wipe were attracted at the spot, who came to her rescue and de accu...4 fled away.
The complainant expressed that the accused w, of bad character, not enjoying good reputation, and even previously x had been doing the same mischiefs. 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 Illaqa Magistrate on 24-3-2001, who after codal formalities, framed charge against the accused on 2-2-2002 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 Thereafter, the accused remained absent on so many dates and upto 6-7-2002 the concession of bail was withdrawn by the learned trial Court and warrants of arrest of each variety, being issued, the accused could not be arrested.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 The learned Sessions Judge, also vide Ms above referred order, has amended the offence as 354-A, P.P.C. And had withdrawn the case file from the learned lower Court and entrusted the same to the learned Additional Sessions Judge, who- received the case on 3-9-2002 and after codal formalities, the accused was charge sheeted on 25-9-2002 under section 354A, P.P.C., to which he pleraded 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 P.W.
Muhammad Rafique being unnecessary, closed the case of prosecution, thereafter, the statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded innocence.
5. Learned counsel for the tent submits that there are material contradictions in the statements of P.Ws., inasmuch such as, according to victim Mst. Zunera, she was wearing Shalwar, Qameez and Duppta, while according to Sarfrez P.W.2 when the occurrence took place, Duptta of Mst. Zunera was removed form her body and he provided his Safa but the Dupatta, which fell down was never recovered. Further submits that the Shirt, which was torn in the occurrence, too was notproduced, so it is not discernahp how much the girl became naked to attract the provision of section 354-k P.P.C. Adds that the victim in her statement before the learned trial Court did not allege that she received any injury while according to P.W. Atn,sions were there on the body of the victim. Further adds that neither Nair Mochee nor his wife was produced because according to prosecution ,ase, the occurrence took place in front of their house. According to learnt,' counsel it is a case of fabrication and padding. Learned counsel lastly, sut-mits that Italian wasprepared under section 354, P.P.C. And was put up 'NeforeleanedIllaqa Magistrate. The offence under section 354, r P.C., ,ntails punishment upto two years, or fine or with both but the learned Sess.,ns Judge without complying with the provisions of section 193, Cr.P.t... Took the cognizance, withdrew the case from the Court of learned Illaqa Magistrate and entrusted the same to a learned Additional Sessions Judge. To support his arguments, that if the lady is not made naked fully then the provision of section 354-A, P.P.C. Is not attracted. According to learned counsel at the most, if any offence is made out, that is under section 354, P.P.C. And not 354-A, P.P.C. Reliance has been placed upon 1989 PCr.LJ 1453, 1991 PCr.LJ 194, 1992 PCr.LJ 1095 and 1997 PCr.LJ 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 any shadow of doubt. He has relied upon 1996 PCr.LJ 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 F.I.R. Sarfraz P.W.2 is an independent witness. Though there are discrepancies between the statements of Sarfraz P.W. And Mst. Zunera but as a whole their statements corroborate with each other. Mst. Zunera is Arain by caste, while Sarfraz P.W. Belongs to Sheikh Brothery. Merely by putting a suggestion to Sarfraz P.W.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 though 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, P.P.C. 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 F.I.R., section 354, P.P.C. 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 complainant which was later on withdrawn, the case was entrusted to learned Additional Sessions Judge and the charge was framed under section 354-A, P.P.C.
' After having gone through the judgments cited by learned counsel for both the sides, the provision of section 354-A, P.P.C. 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 under section 354-A, P.P.C. But under section 354, P.P.C., accordingly, the conviction of the appellant is altered from section 354-A, P.P.C. To section 354, P.P.C. And he is convicted under the said section to undergo R.I. 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 S.I. 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 appeal filed by the convict-appellant stands disposed of. The Criminal Revision No.166 of 2003 filed by Abdul Rashid complainant for the enhancement of sentence is dismissed.