PLJ 2023 Cr.C. (Note) 21
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 511--Punishment for attempt to commit offence punishable with imprisonment for life--It is settled law that whenever provisions of Section 511, PPC, are added with any principal, offence, sentence may be reduced to one-half and matter is left with Court to award appropriate sentence--Provisions of Section 511, PPC, are reproduced as infra. [Para 12] C
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 376/511--Conviction and sentence--Ocular account--Medical evidence--According to Dr. it was case attempt to rape--Each criminal case has its own peculiar facts and circumstances--In this unfortunate occurrence minor daughter of complainant was taken away by accused to his plot and an attempt was made for committing zina with her--In order to substantiate its case prosecution adduced evidence qua ocular account and medical evidence--Prosecution witnesses had no ill-will to falsely involve/substitute appellant in this case particularly innocent minor victim--All these facts when taken into consideration prompted this Court to arrive at conclusion that prosecution had proved its case against appellant beyond reasonable doubt--In instant case as appellant was 28 years of age at relevant time, therefore, in order to afford him an opportunity to mend his ways and spend a neat and clean life along with his other family members, High Court deems it appropriate to reduce sentence awarded to appellant from 10 years’ R.I. as awarded by trial Court to R.L for five years.
[Para 7, 11 & 12] A, B & D
Mr. Muhammad Naeem Ullah Khan, Advocate for Appellant.
Mr. Ansar Yasin, Deputy Prosecutor General for State.
Nil for Complainant.
Date of hearing: 8.11.2021.
PLJ 2023 Cr.C. (Note) 21
[Lahore High Court, Multan Bench]
Present: Ali Zia Bajwa, J.
NASEER AHMAD--Appellant
versus
STATE and another--Respondents
Crl. A. No. 84 of 2018, decided on 8.11.2021.
Judgment
Naseer Ahmad son of Ahmad Khan, caste Gujjar, resident of Chak No. 563/E.B. Tehsil & District Vehari, appellant, was involved in case FIR No. 342/2017, dated 07.08.2017, offence under Sections 376, 511 of Pakistan Penal Code, 1860 (PPC) registered with Police Station Machhiwal, District Vehari. He was tried by learned Sessions Judge, Vehari, under the afore-mentioned offences and learned trial Court vide judgment dated 25.01.2018 convicted and sentenced him in the following terms:-
Ø Under Section 376/511, PPC, sentenced to undergo R.I. for ten years with fine of Rs. 1,00,000/- and in case of default in payment thereof to further undergo S.I. for one year.
Ø He was extended benefit of Section 382-B, Cr.P.C.
The appellant has assailed his conviction and sentence by preferring the instant appeal.
2. The prosecution case structured upon the story as narrated in the FIR (Exh.PA/1) lodged on the written application (Exh.PA) of Sajjad Ali son of Abdul Aziz (PW-2), is that on 06.08.2017, at 3:30 p.m., daughter of the complainant namely Saira Sajjad aged about 7/8 years was playing in the street along with other children. The complainant went inside his house and after sometime when he came out of the house, he found that his daughter was missing. On raising hue and cry by the complainant, Muhammad Abbas (PW-3) and Muhammad Nawaz attracted there and started search of the minor. When they reached near plot of Naseer Ahmad (appellant), they overheard the shrieks of the minor from inside. They went there and saw that the appellant was forcibly making the minor to sit in his lap and attempting to commit rape with her. The accused, on seeing the complainant party fled away from the spot.
3. In order to report the matter to police, complainant went to Police Station, however, on way he met with Abdul Jabbar, Assistant Sub-Inspector (PW-6) and produced application (Exh.PA), which was transmitted to Police Station for registration of formal FIR. He drafted application (Exh.PD) for medical examination of minor-Saira Bibi and after her medical examination, WMO handed over to the Investigating Officer carbon copy of MLR along with one sealed envelope, which he handed over to Moharrar. Thereafter, Investigating Officer visited the spot, inspected it and prepared rough site-plan of place of occurrence (Exh.PE). He recorded statements of prosecution witnesses under Section 161, Cr.P.C. On 09.08.2017 appellant was arrested in this case and the Investigating Officer took the complainant, victim and the appellant to PFSA for DNA test. Subsequently Investigating Officer drafted application for potency test of the appellant (Exh.PF), took him to RHC Machhiwal where, after his medical examination, the Medical Officer handed over to him carbon copy of MLR. During the course of investigation, having found the appellant guilty, Investigating Officer submitted report under Section 173, Cr.P.C. by placing his name in column No. 3.
4. After submission of report under Section 173, Cr.P.C., learned trial Court formally indicted the appellant, to which he pleaded not guilty and claimed trial. Prosecution, in order to establish its case against the appellant, produced as many as eight (08) prosecution witnesses.
Ocular account in this case consists of the statements of Sajjad Ali/complainant (PW-2), Muhammad Abbas (PW-3) and Mst. Saira Bibi/victim (PW-4). Dr. Rafia Shoukat (PW-5) medically examined Saira Bibi victim, whereas Dr. Javed Haider (PW-8) had conducted potency test of the accused. Investigation in this case was conducted by Abdul Jabbar ASI (PW-6). Statements of rest of the prosecution witnesses, more or less, are formal in nature.
5. After completion of the prosecution evidence, statement of the appellant under Section 342, Cr.P.C. was recorded by the learned trial Court. He professed his innocence and pleaded false implication in the case. He did not opt to appear as his own witness on oath as required under Section 340(2), Cr.P.C., however, he produced attested copy of order dated 16.06.2017 passed by the learned Magistrate (Exh.DB) in his defence. Upon completion of the trial, the learned trial Court found case against the appellant to have been proved beyond reasonable shadow of doubt and, thus, convicted and sentenced him as mentioned and detailed above.
6. Arguments heard, record perused.
7. There is no cavil to this proposition that each criminal case has its own peculiar facts and circumstances. In this unfortunate occurrence minor daughter of the complainant was taken away by the accused to his plot and an attempt was made for committing zina with her. In order to substantiate its case prosecution adduced evidence qua ocular account and medical evidence.
8. As far as ocular account in this case is concerned the same has been advanced through the statements of Sajjad Ali/complainant (PW-2), Muhammad Abbas (PW-3) and Mst. Saira Bibi/victim (PW-4). While making their statements during the course of trial, the prosecution witnesses fully supported salient features of the prosecution case. Both the complainant and Muhammad Abbas (PW-3) remained unanimous qua search made by them to locate the minor and thereafter on hearing the shrieks raised by the victim when they attracted to the spot, they saw that the accused was forcibly making the victim to sit in his lap and attempting to commit zina with her. Mst. Saira Bibi/victim (PW-4) though was of tender age, however, during the course of trial, the learned trial judge evaluated her capacity of understanding by putting the questions and in view of the fact that she was giving reply without hesitation in a straight forward manner, her evidence was recorded as a prosecution witness. The victim, in categorical terms, levelled allegation of attempt of zina by the appellant with her. Hence, when examined from every angle, it is established beyond doubt that prosecution version qua ocular account is natural, straightforward and convincing one, which fully establishes nexus of the appellant with the occurrence.
9. As far as medical evidence in this case is concerned, Dr. Rafia Shoukat, Woman Medical Officer (PW-5) medically examined the victim. As no seminal stains were found on her body, thus, doctor opined that it was a case of attempt to rape.
10. After arrest of the appellant, Investigating Officer produced him before Dr. Javed Haider, Medical Officer (PW-8) for potency test. According to MLR (Exh.PG) doctor found him fit to perform sexual activity and intercourse.
11. Moreover, during the course of investigation having been found guilty, name of the appellant was placed in column No. 3 of the report prepared under Section 173, Cr.P.C. Admittedly prosecution witnesses had no ill-will to falsely involve/substitute the appellant in this case particularly the innocent minor victim. All these facts when taken into consideration prompted this Court to arrive at the conclusion that the prosecution had proved its case against the appellant beyond reasonable doubt.
12. Now question before this Court is that whether the learned trial Court was justified in sentencing the appellant to 10 years’ R.I. when not only in the FIR rather during the course of trial including opinion of the doctor it is a case of attempt to commit rape. In the crime report besides offence under Section 376, PPC, provisions of Section 511, PPC, were also made part thereof. It is settled law that whenever provisions of Section 511, PPC, are added with any principal, offence, the sentence may be reduced to one-half and the matter is left with the Court to award appropriate sentence. Provisions of Section 511, PPC, are reproduced as infra:
“Punishment for attempting to commit offences punishable with imprisonment for life or for a shorter terms: Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence for a term which may extend to one-half of the longest term of imprisonment provided for that offence or with such fine daman as is provided for the offence, or with both.”
In the instant case as the appellant was 28 years of age at the relevant time, therefore, in order to afford him an opportunity to mend his ways and spend a neat and clean life along with his other family members, this Court deems it appropriate to reduce the sentence awarded to the appellant from 10 years’ R.I. as awarded by the learned trial Court to R.I for five years. However, the amount of fine as ordained in the impugned judgment and the effect in non-payment thereof, shall remain intact. Benefit of Section 382-B, Cr.P.C. is also extended in favour of the appellant.
13. Upshot of above discussion is that, Crl. Appeal No. 84/2018 filed by the appellant, is dismissed with above modification/reduction in his sentence.
(A.A.K.) Appeal dismissed
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