PLJ 2024 Cr.C. (Note) 45
[Lahore High Court, Lahore]
Present: Ali Baqar Najafi and Syed Shahbaz Ali Rizvi, JJ.
ATIF INAYAT--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 80517-J of 2021, heard on 6.2.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 337-F(i), 337-A(i), 334 & 336-B--Conviction and sentence--Challenge to--Ocular account--Medical evidence--Investigation--Victim and her mother-in-law both injured and apparently they did not want to proceed against appellant and fact is that in their first examination in hospital no description of injury was mentioned then they were referred to Jinnah Hospital--The surgical notes are not available and do not suggest type of burn whether caused by sulfuric acid or otherwise--The acid so recovered was easily available for household purposes--The notes by eye surgeon do not suggest recent injury of acid thrown causing damage to eye--The presence of Ansar Bibi is un-natural particularly when she was not injured by any acid burn--The repot of PFSA does not suggest that parts of clothes so recovered were being used by victim since DNA test report is not available--Delayed examination of victim has also caused suspicion about occurrence as a whole--Appeal allowed.
[Para 15] A
Ch. Muhammad Nawaz Bosal, Advocate for Appellant.
Rai Akhar Hussain, APG for State.
Rana Muhammad Arif, Advocate for Complainant.
Complainant in Person.
Date of hearing: 6.2.2023.
Judgment
Ali Baqar Najafi, J.--Through this Jail appeal under Section 25 of the Anti-Terrorism Act, 1997, judgment dated 06.12.2021 passed by the learned Judge, Anti-Terrorism Court, Gujranwala Division, Gujranwala, in case FIR No. 405 dated 05.09.2021 registered under Sections 336-B, 334, 337-A(i), 337-F(IO, 506 (ii), PPC at Police Station Gojra, District Mandi Bahauddin has been challenged whereby the appellant was convicted and sentenced as under:
Under Section 337-F(i), PPC.
Imprisonment for 01 year R.I. and payment of Rs. 10,000/-as Daman to victim Maria, which shall be recovered as arrears of land revenue and in case of non-payment of amount of Daman, convict shall further undergo 10 days S.I.
Under Section 337-A(i), PPC.
Imprisonment for 02 years R.I. and payment of Rs. 20,000/-as Daman to victim Maria, which shall be recovered as arrears of land revenue and in case of non-payment of amount of Daman, to undergo further imprisonment for 10 days S.1.
Under Section 334, PPC.
Imprisonment for 10 years R.I. and payment of Rs. 21,30,602/-as Arsh to be paid to victim Maria, which shall be recovered as arrears of land revenue and in case of non-payment of amount of Arsh, to undergo further imprisonment for 02 months S.I.
Under Section 336-B, PPC.
Imprisonment for 14 years and payment of Rs. 10,00,000/-as compensation to victim Maria, which shall be recovered as arrears of land revenue and in case of non-payment of said amount, convict shall further undergo 03 months S.I.
All the sentences were ordered to run concurrently besides the benefit of Section 382-B, Cr.P.C.
2. Briefly, the prosecution story against the appellant is that the complainant/Ansar Bibi (PW-12) is the resident of the locality falling in the area of Police Station Gojra. Her daughter namely, Maria Afzal, (PW-11) was married to Atif/appellant, who have no child. On the fateful day, at about 07:00 a.m. complainant went to the house of Maria Afzal, to meet her when at about 08:30 a.m. Safdar Hussain (not produced) resident of Bosal Mansoor, her maternal uncle also came there and they were talking to each other. Mst. Bashiran Bibi, (did not appear) mother-in-law of Maria Afzal, was also present in the home when at about 09:00 a.m. the appellant also came there and joined talking with them. During the conversation, both appellant and Maria Afzal, started quarrelling. The appellant was armed with pistol who threatened the complainant to kill her and then he went into the room from the Courtyard and brought acid bottle and threw it on the face of Maria Bibi. Bashiran Bibi went forward to save her life but the appellant also threw acid on her. The appellant fled away from the spot on hue and cry by the complainant and Safdar Hussain. The occurrence was reported to the police through application (Ex-PM) filed by the complainant upon which FIR (Exh.PB) was registered.
3. After registration of the FIR investigation was conducted and the report under Section 173, Cr.P.C. was prepared and submitted before the learned trial Court whereafter the charge was framed on 23.11.2021 to which the appellant pleaded not guilty. The prosecution produced thirteen (13) prosecution witnesses namely, Naeem Raza Crime Scene Junior Forensic Scientist (PW-1), Mudassar Iqbal, T/AS (PW-2), Hamid Nasir T/SI (PW-3), Aurangzeb 1425/HC (PW-4), Dr. IrumShahzadi, Women Medical Officer, (PW-5), Atif Khan, 1283/C (PW-6), Dr. AamarShahzad, Medical Officer (PW-7), Dr. Muhammad Asif, General Surgeon (PW-8), Dr. Sarfraz Latif, Eye Specialist (PW-9), Ghulam Shabbir, 133/HC (PW-10), Maria Afzal/victim (PW-11), Ansar Bibi/complainant (PW-12) and Muhammad Iqbal, Inspector (PW-13) Thereafter, the appellants was examined under Section 342, Cr.P.C., wherein he professed his innocence and denied all the allegations levelled against him. The appellant neither opted to depose within the scope of Section 340(2), Cr.P.C. nor produced any defence evidence. In reply to the question as to why this case against him and why the PWs have deposed against him, he replied as under:
“I am innocent in this case. The case has been falsely registered against me while making concocted, after thought, baseless and false story. Maria was pregnant during first 4 months of marriage and she aborted her child against my wishes. Due to that reason she remained in the house of her parents for one year and six months. I said to Maria in Punchayat that I would initiate legal proceedings against her for aborting the child. Brother of Ansar Bibi complainant namely Safdar was also present in the said Punchayat. In order to save them she and her daughter Maria had planned and got registered false case against me. I have no concern with the occurrence. Acid fell on Maria accidently. I have been falsely implicated in this case by my wife and mother in law. I am totally innocent. I was not present in the house when acid fell on my wife. I have love and affection with my wife that’s why I had brought here back to my house even after strained relations. I am completely innocent and complainant has tried to make me a victim of afterthought, manipulated, concocted and fabricated story.”
4. After conclusion of the trial, the learned trial Court pronounced its verdict against the appellant and awarded him punishment as aforementioned.
5. After hearing the learned counsel for the appellant, learned APG and perusing the record, it is straightway observed that Maria Afzal/victim (PW-11) is still the legally wedded wife of the appellant and her mother-in-law namely, Bashira Bibi, though injured as per the statement of the doctors/PW-5 and PW-7, was neither examined by the prosecution nor by the defence. Besides, uncle/Mamoon of the victim namely, Safdar Hussain, PW was also given up. However, the prosecution evidence is to be re-appraised, hence the following paragraphs:-
OCULAR ACCOUNT
6. The star witness of the whole occurrence is Maria Afzal (PW-11) the victim herself who admitted that although she was married with the appellant two years ago and for the period of 1½ years she remained in the house of her mother and that no child was born. She denied the suggestion that because of abortion she had to stay in her mother’s house but she admitted that for the period of 4 months she remained in the house of her husband and during that period there was no quarrel and that he used to remain at home. On 05.09.2021 at 09:00 a.m. a quarrel developed between the victim and her husband in the presence of her uncle, mother and mother-in-law. According to her, the appellant was carrying a pistol when he went from the Courtyard into the room from where he brought acid bottle in shopper and threw it on her face and body and that Bashiran Bibi, also came forward who also received the acid throw burns. All raised hue and cry but appellant managed to escape then she was shifted to Civil Hospital alongwith her mother-in-law. In the cross-examination, she admitted that once appellant tried to press her neck but she did not report the matter to anyone. She also narrated that on the fateful day at 05:45 a.m. he went to his Dera and he remained there for 15 minutes since his buffalo gave birth to a baby buffalo which might have reminded of his possible aborted child. She admitted that the appellant was not ill as he did not take any medicine in her presence in the past 6 months. She also admitted that when the appellant went to the room from the Courtyard, she did not close the door from outside which indicates that he had no intention to commit such a gruesome act. She admitted that she went to the hospital on her own feet with the help of her Mamoon namely, Safdar Hussain, which show that she remained in her Senses throughout. She volunteered that her signatures were obtained on the blank paper on the pretext of getting her medical examination and not for registration of FIR. She, however, denied the suggestion that acid fell on her due to some accident but did not state any motive against the appellant. She admitted that she has not recorded any statement regarding permanent loss of her eye and did not record as to which part of her body was damaged due to acid throwing. She also did not disclose that any part of her clothes was damaged. The exact details of the injuries was essential to saddle the appellant for his culpability. She admitted that her two sisters are blind by birth, therefore, the hereditary defect could not be ruled out. The statement of the victim indicates that without giving the details of burn injuries on her person and the time when she was examined in the hospital, though admitted that she was accompanied by her mother-in-law to the hospital, show that the complainant did not accompany her and that Bashiran Bibi, also tried to protect her daughter-in-law. It is not clear whether the acid was thrown or poured by herself.
7. Next is Ansar Bibi/complainant (PW-12) mother of the victim/Maria Afzal, who appears to be un-natural witness since she did not go to her daughter’s in-laws Quite often and particularly in the last 6/4 months she visited her daughter once or twice then why on the fateful day at 07:00 a.m. she was to be present at the place of occurrence is not clear. According to her, Bashiran Bibi, her real sister and mother of the appellant came forward to save victim/Maria Afzal, that is why she was also injured. It is not clear as to why Ansar Bibi/complainant was not injured since the grievance of the appellant, if at all, was against the child abortion by Maria Bibi/ victim, then PW-12 should also be the targeted but Muhammad Iqbal, Inspector (PW-13)/I.O. reveals that the complainant was not injured at all. In cross-examination, she admitted that application drafted for registration of FIR was not read over to her and that it was drafted by some attendant who was not introduced as a witness. Different improvements were pointed out in her statement viz a viz showing the pistol by the appellant and sitting in the Courtyard of the house. She admitted that she did not see the police in the hospital during the time the victim remained under treatment and that she did not appear before the police for recording of her statement. She did not visit the police station but went to Lahore accompanying the victim. She admitted that no drop of acid had fallen on her cloth. She denied the suggestion that victim/Maria Afzal, was ever aborted. Surprisingly, she admitted that at the time of occurrence the appellant did not threaten her. She admitted that her two daughters are blind by birth. This shows that she was not there at the time of occurrence.
MEDICAL EVIDENCE
8. Dr. Irum Shahzadi, Woman Medical Officer (PW-5) who stated that on 12.10.2021 at 12:45 a.m. she was posted as WMO at DHQ Hospital, District Mandi Bahauddin, where she examined victim/Maria Afzal (PW-11) in the hospital with the history of throwing acid on 05.09.2021 at 9:00 a.m. She was brought by Muhammad Iqbal, Constable. According to Muhammad Asif (first examiner) examined the following injuries:
“A chemical burn involving face, lips, tongue, neck, front and back of upper chest. Interior aspect of both knees, left leg almost 24 to 26 percent burned surface area 2nd degree.”
According to her opinion, the facial burns were Shajjah-i-Khafifah but on the chest and lower body Jurh Ghayr Jaifah Damiyah. She also examined Bashiran Bibi, the same day. In cross-examination, she admitted that the victim first appeared before her on 12.10.2021 and was sent to Dr. Sarfraz, eye consultant on 13.11.2021 and that her date of discharge as per MLC is 06.10.2021. The description of the injury was not mentioned in the MLC. In other words, this witness had admitted that the victim was not immediately examined by her. Besides, Dr. AamarShahzad (PW-7) stated that on 05.09.2021 at 09:30 a.m. when he was present at Emergency DHQ Hospital, Mandi Bahauddin, the victim/Maria Afzal, was brought as a case to acid burn and she was resuscitated according to burn protocols and admitted in the hospital and he also examined Bashiran Bibi and at the time of examination she stated that acid had fallen on her accidently and that she did not want to undergo any process. The Court put a query about any influence by Bashiran Bibi upon victim but the answer was not clear. Both victims did not disclose the name of any person and that at the time of fixing thumb impression the victim/Maria Afzal was fully conscious. Interestingly, this witness did not exhibit any medical examination apparently for the reason that both the victims did not want to proceed any further.
9. Dr. Muhammad Asif, General Surgeon (PW-8) stated that on 06.09.2021 he examined Maria Afzal, admitted in female surgery ward since the chemical burn involving face, lips, tongue, neck, front and back of upper chest, interior aspect of both knees and left leg almost 24-26% second degree was observed. The Surgeon referred the victim to Jinnah Hospital, Lahore and at examination time the wounds were dressed by Surgeon. She was referred to plastic surgery department with surgery notes (Exh.PH). He also examined Bashiran Bibi, and made surgical notes (Exh.PJ). In cross-examination, this witness admitted that on 06.09.2021 both patients were conscious and oriented in time and space. At this stage, perusal of (EXH.PH) reveals that only initial examination was mentioned without any details of nature and type of acid.
10. According to Dr. Sarfraz Latif, Eye Specialist (PW-9), Dr. Irum Shahzadi, (PW-5) referred the victim to him on 03.11.2021 who examined her and opined that shrunken eye ball showing no perspective of light in that eye and right eye was permanently structural and functional damage was observed and declared the permanent structural and functional damage of the eye of Itlaf-i-Udw. He did not mention any recent injury or any acid throwing resulting into permanent damage. It establishes the fact that the eye sight of the victim was not the direct result of acid throwing.
INVESTIGATION
11. Muhammad Iqbal, Inspector/I.O. (PW-13) stated that he recorded the statements of the witnesses and prepared the site plan, presented the application (Exh.PQ) to the doctor for recording the statement but without his permission he recorded the statement of the victim. He conducted the raid on 05.09.2021 in the house of the appellant but did not arrest him but on 07.09.2021. He obtained the physical remand and recovered 30-bore pistol and empty bottle which did not contain acid. He obtained 11 sealed parcels from Muharrir on 14.09.2021 but could not deposit it and returned it to Muharrir but on 16.09.2021 he again took the said sealed parcels and deposited in the PFSA, Lahore. In cross-examination, he admitted that he reached on the spot at 06:05 p.m. on the same date of occurrence and in the investigation he did not mention about the burn clothes of the victim. The signatures of Naeem Raza, (PW-1) were not mentioned on the recovery memo and the articles from the house of the appellant, no places were mentioned from where the specimens were taken. He admitted that he did not collect the OPD record of the victim but denied the suggestion that the victim did not want to proceed against any person. He admitted that during the investigation the Victim did not mention that which part of her body was damaged and that her eye was also damaged. Recovery memo (Exh.PF) did not mention that the bottle so recovered from the possession of the appellant contained acid and admitted that the type of acid was easily available in the market for wash room cleaning. All this investigation suggests that the samples collected from the burnt parts of the clothes were not submitted before PFSA according to the protocols and then why it was returned is not clear. The repot of PFSA on items No. 1.1, 2.1, 2.2, 3.1, 4.1 and 6.2 were given for examination but the result was that no analysis was conducted as there was no reference sample of the victim (Exh.PR). Likewise, the report on the debris of the floor of kitchen item No. 2 on the other part of floor and collected from the floor of the western side as part item No. 3 were not found stained with the acid. According to the report, only one bottle of acid was recovered and sulfuric acid was identified in (Exh.PS). Obviously, pieces of clothes worn at the time of attack by the victim had to be compared with her DNA to establish that it was the flesh or blood of the victim on the parts of the clothes.
12. Naeem Raza, Crime Scene Junior Forensic Scientist (PW-1) admitted that he had not got recorded the statement Under Section 161, Cr.P.C. about 5 samples and that I.O. did not call him to join the investigation and that he did not prepare the sketch of point of collection on exhibit sheet (Exh.PA) and that he did not produce the original record before the Court. He also damaged the prosecution case to corroborate the ocular account.
13. Hamid Nasir, T/SI (PW-3) stated that on 05.09.2021 Ansar Bibi/complainant (PW-12) submitted an application before him in the hospital where he reached at about 02:50 p.m. but she had denied any application having been presented by her personally.
14. Aurangzeb 1425/HC (PW-4) admitted that No Objection Certificate was presented to him on 14.09.2021 when samples were returned to him, this also suggests that the said samples remained in the custody of the I.O. for unforeseeable reasons and what stopped him to give samples to PFSA is not clear.
CONCLUSION
15. Keeping in view the above discussion, it is clear that the victim and her mother-in-law both injured and apparently they did not want to proceed against the appellant and the fact is that in their first examination in the hospital no description of the injury was mentioned then they were referred to Jinnah Hospital. The surgical notes are not available and do not suggest the type of burn whether caused by sulfuric acid or otherwise. The acid so recovered was easily available for household purposes. The notes by eye surgeon do not suggest recent injury of the acid thrown causing damage to the eye. The presence of Ansar Bibi is un-natural particularly when she was not injured by any acid burn. The repot of PFSA (Ex.PR) does not suggest that the parts of clothes so recovered were being used by victim since the DNA test report is not available. Delayed examination of the victim has also caused suspicion about the occurrence as a whole.
FINDINGS
16. For the above stated reasons, we are of the view that the prosecution has not been able to prove its case beyond any reasonable doubt against the appellant. This appeal is, therefore, allowed conviction and sentence awarded to the appellant by the learned trial Court is set aside. He is acquitted of the charges levelled against him. The appellant is behind the bars, be released forthwith if not required to be detained in any other criminal case.
(A.A.K.) Appeal allowed
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