Full Judgment Text & Judicial Ruling

2023 M L D 1009 [Peshawar (Mingora Bench)] Before Muhammad Nasir Mahfooz and Wiqar Ahmad, JJ Mst. HALEEMA and others---Appellants Versus The STATE through A.A.G. and others---Respondents Criminal Appeal No. 21-M and Criminal Revision No. 7-M of 2017, decided on 4th March, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 337-A(i), 337-F(i), 337-L, 336, 336-B & 34---Shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, Itlaf-i-salahiyyat-i-udw, hurt by corrosive substance (acid), common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused sprayed acid on the face of complainant with a syringe, while other accused had thrown on her acid present in a jerry can, as a result of which she had received severe burns on her face and rest of her body---Complainant was sole eye-witness of the occurrence---In her examination-in-chief she had stated that after opening fast they had been eating water melon on the day of occurrence when accused went to her house situated adjacent to house of the complainant and her step-daughter, co-accused came there and sprayed acid on her face through a syringe while other accused also came thereafter and threw further acid on her head, as a result of which her face, nose, head and other parts of her body got burnt---Neighbours as well as her son were stated to have carried the complainant to hospital where she had lodged report of the occurrence against the accused persons---Said witness was cross-examined by defence side but she had remained firm, consistent and nothing beneficial to the case of the accused persons could be brought out from her mouth during the course of her cross-examination---Statement of the Medical Officer fully corroborated version of the complainant taken in her first report as well as in her examination-in-chief---Both the statements of complainant as well as Medical Officer were in complete harmony with each other---Statement of the Medical Officer regarding her findings of injuries on the hands and other parts of body of accused had further fortified her presence and the factum of participation in the occurrence---Circumstances established that prosecution had been able to prove case against both the accused persons beyond a shadow of doubt---Appeal against conviction was dismissed. (b) Penal Code (XLV of 1860)--- ----Ss. 337-A(i), 337-F(i), 337-L, 336, 336-B & 34---Shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, Itlaf-i-salahiyyat-i-udw, hurt by corrosive substance (acid), common intention---Appreciation of evidence---Recovery of syringe and canister from the place of occurrence---Accused sprayed acid on the face of complainant with a syringe, while other accused had thrown on her acid present in a jerry can, as a result of which she had received severe burns on her face and rest of her body---Corroboratory pieces of evidence i.e. recovery of syringe as well as canister from the place of occurrence gave added vigor to the case of prosecution---Recovery of pipe of gas cylinder and partly burnt clothes of the complainant as well as of both the accused persons also supported case of the prosecution and might well be considered as effective corroboratory pieces of evidence---Besides, prosecution had also examined a Constable in support of the recoveries---Statements of both the witnesses had remained consistent and no material contradiction could be found therein---Circumstances established that prosecution had been able to prove case against both the accused persons beyond a shadow of doubt---Appeal against conviction was dismissed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 337-A(i), 337-F(i), 337-L, 336, 336-B & 34---Shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, Itlaf-i-salahiyyat-i-udw, hurt by corrosive substance (acid), common intention---Appreciation of evidence---Sole eye-witness---Accused sprayed acid on the face of complainant with a syringe, while other accused had thrown on her acid present in a jerry can, as a result of which she had received severe burns on her face and rest of her body---Case of prosecution was no doubt a case of single eye-witness but evidence had to be weighed and not counted---Statement of the single eye-witness had remained fully consistent with all the material particulars of the case---Same had sufficiently been corroborated by report of her medical examination as well as other corroboratory evidence---In such circumstances, a single eye-witness was sufficient for conviction of the accused persons---Circumstances established that prosecution had been able to prove case against both the accused persons beyond a shadow of doubt---Appeal against conviction was dismissed, in circumstances. Muhammad Mansha v. The State 2001 SCMR 199; Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State 2011 SCMR 725; Shamshad Ali v. The State 2011 SCMR 1394 and Saleem Zada and others v. The State and others 2019 SCMR 1309 rel. Masood-ur-Rehman for Appellants (in Criminal Appeal No. 21-M of 2017). Haq Nawaz, Assistant A.G. for the State (in Criminal Appeal No. 21-M and Criminal Revision No. 7-M of 2017). Aziz-ur-Rahman Swati for the Complainant (in Criminal Appeal No. 21-M of 2017). Aziz-ur-Rehman Swati for Petitioner (in Criminal Revision No. 7-M of 2017). Masood-ur-Rahman for the Complainant (in Criminal Revision No. 7-M of 2017). Date of hearing: 4th March, 2021. JUDGMENT WIQAR AHMAD, J.---Appellants namely Mst. Haleema and Mst. Ayesha are aggrieved of their conviction and sentences recorded vide judgment dated 30.01.2017 of the Court of learned Additional Sessions Judge Behrain, Camp Court at Khwaza Khela Swat, whereby they have been sentenced as follows; Under sections 336(b), 34, P.P.C. to fourteen years rigorous imprisonment each along with payment of fine of Rs. 1,000,000/- (one million) collectively, or in default of payment of fine each accused was ordered to undergo six months simple imprisonment. The appellants were further convicted under section 336/34, P.P.C. and sentenced to five years rigorous imprisonment each, along with payment of Arsh Rs. 800,000/- (eight hundred thousand) collectively. Under sections 337-L/34, P.P.C. to three years rigorous imprisonment each along with payment of Daman Rs. 200,000/- (two hundred thousand) collectively, payable to the injured/ complainant. Both the accused were ordered to remain in jail till realization of the payment of Arsh. All the sentences were ordered to run concurrently. The appellants were extended benefit of section 382-B, Cr.P.C. 2. Report of the occurrence was lodged at casualty ward of Khwaza Khela hospital by complainant namely Mst. Hanifa wife of Ali Haider. She stated in her report that she was present in her house along with other inmates and had been cooking rice for Sehri . She had not been feeling well, therefore she asked one Atta Ullah to fetch her some pills for controlling blood pressure. He told her that such pills had not been available at home and that he would bring the medicine for her after offering Tarivy prayers. He then left the house for offering prayers. Appellant namely Mst. Ayesha wife of Atta Ullah came in the meanwhile and sprayed acid on her face with a syringe. While second wife of her husband namely Mst. Haleema was alleged to have thrown acid present in a jerry can on the complainant, as a result of which she had received severe burns on her face and rest of her body. The occurrence was stated to have been witnessed by other inmates of the house while strained relations between the parties was stated to have constituted motive for commission of the offence. The complainant had accordingly charged both the appellants in her first report so lodged. The report was also seconded by Atta Ullah. 3. During the course of investigation, the Investigating Officer prepared site plan Ex. P/3 on pointation of both the appellants. He also took into possession a burnt plastic pipe of gas cylinder, burnt clothes of the complainant, a syringe and an empty Can from the spot i.e. bedroom of house of the complainant vide recovery memo Ex.4/1 dated 02.07.2015. He also took in possession Burnt qameez of the appellant namely Mst. Ayesha vide recovery memo Ex. PW-4/2. Burnt clothes of the co-appellant namely Mst. Haleema was also taken in possession vide recovery memo Ex. PW -4/3. All the recovered items were also sent to the Forensic Science Laboratory (hereinafter referred to as "FSL") for the purpose of chemical analysis. The recovered items had also been resent to Khyber Medical College Peshawar for chemical analysis and report received therefrom had been showing that the articles have been burnt with nitric acid. 4. On completion of investigation in the case, complete challan was put in Court against the appellants before learned trial Court. Charge was framed against the accused on 28.10.2015, to which they pleaded not guilty and claimed trial. Prosecution was invited to produce evidence, who accordingly examined eight (08) witnesses and closed its evidence. Statements of the accused were recorded under section 342, Cr.P.C. On conclusion of proceedings in trial, accused/appellants were convicted for commission of the offence vide judgment dated 17.01.2017 of the Court of learned Additional Sessions Judge Behrain, as stated earlier. Accused/appellants challenged their conviction and sentences through the instant appeal before this Court. The complainant also filed connected Criminal Revision No. 07 M12017 for enhancement of the conviction and sentences awarded to accused/respondents. 5. We have heard arguments of learned counsel for the parties, learned Assistant A.G appearing on behalf of State and perused the record. 6. Perusal of record reveals that Mainstay of the prosecution case has been statement of the complainant recorded as PW-1. She has been sole eye-witness of the occurrence. In her examination-in-chief she has stated that after opening fast they had been eating water melon on the day of occurrence when Mst. Haleema (appellant) went to her house situated adjacent to house of the complainant and her step-daughter namely Mst. Ayesha (co-appellant) came there and sprayed acid on her face through a syringe while Mst. Haleema also came thereafter and threw further acid on her head, as a result of which her face, nose, head and other parts of her body got burnt. The neighbors as well as her son were stated to have carried the complainant to hospital where she had lodged report of the occurrence against the appellants. This witness was cross-examined by defence side but she had remained firm, consistent and nothing beneficial to the case of the appellants could be brought out from her mouth during the course of her cross-examination. In her cross-examination the complainant had stated that her marriage with her present husband namely Ali Haider had taken place twelve years before the date of her examination. She was not able to tell the exact time of opening of fast on the relevant day but added that she had been an uneducated lady and therefore could not tell the exact time. She agreed that she had been having a mobile phone at the time of occurrence as well as before solemnization of her marriage with Ali Haider. She denied the suggestion that she had been having contacts with strangers through her mobile phone. Nothing could be brought from mouth of this witness, which could have contradicted her statement with any other piece of evidence produced by the prosecution. There was slight variation in her statement recorded in her examination-in-chief and her narrations in the FIR regarding her preoccupation immediately, before the occurrence i.e. whether she had been cooking rice or eating water melon, but such a fact by itself would not reflect adversely on the case of prosecution. Investigating Officer namely Ahmad Nisar ASI was examined as PW-6, who has stated in his examination-in-chief that he had visited the spot after report of the occurrence was lodged, wherefrom he had recovered a burnt plastic pipe, a cylinder, partly burnt clothes of the complainant, an empty Can and the syringe used in the occurrence from bedroom of the complainant, in which respect he had prepared a recovery memo Ex. PW-4/1 as well as indicated the relevant places in the site plan Ex. PB. He has also stated in his examination-in-chief that hand of one of the appellant namely Mst. Ayesha had been bearing burn injuries, she was therefore got examined through a lady doctor and her injury sheet Ex. PW-6/1 had also been prepared. He has also recovered partly burnt clothes of the appellant namely Mst. Haleema vide recovery memo Ex. PW-4/3. The site plan Ex. PB was also stated to have been prepared on pointation of the appellants. The recovered items had also been sent to FSL for chemical analysis through application Ex. PW-6/3, and after its return same had been resent to Khyber Medical College Peshawar for further analysis. During the course of his cross-examination nothing beneficial to the case of appellants could be brought on record. He had agreed with suggestion of the defence that appellant Ayesha had told him that at the relevant time her hand had got burnt while she had been removing clothes from the complainant. He has also given a brief description of various rooms in house of complainant indicated by him in the site plan in the following words;

7. Doctor Nadia was examined in the case as PW-2, she had given the following description of injuries found on the person of complainant namely Mst. Hanifa; "Burns involving up to the subcutaneous tissues distorting her face (whole of it) involving both eyes (only some vision left) the whole body front, back of trunk all four limbs involved up to 18-20% immediate referral tertiary care center advised. The patient was conscience and was able to talk. I have also given certificate to this effect on the face of application which was submitted by the police. My report is E. PW-2/1 while certificate is Ex. PW-2/2." The doctor had also examined one of the appellants namely Mst. Ayesha about whose injuries she had given the following findings; "A young lady being burns on her hands, abdomen and some burnt areas on legs as well. She is giving history of removing clothes from the body who was burnt with acid and so she also had some of the acid on her body that burnt her. Left forearm shows burnt marks superficially indicative of trickling acid so the bums are in all probability from acid. The injuries on person of the injured are very minute, therefore, I did not mention the extent. My report is Ex.PW-2/3 is correct and correctly bears my signature." In her cross-examination this witness had stated that at the time of her examination the complainant had been fully in senses. She has also stated that the police had obtained a certificate (Ex. PW-2/2) regarding consciousness of the complainant from her and that the complainant had been fully in senses and able to talk. 8. Statement of the doctor has been fully corroborating version of the complainant taken in her first report as well as in her examination-in-chief. Both the statements of complainant as well as doctor had been having complete harmony with each other. Statement of the doctor regarding her findings of injuries on the hands and other parts of body of appellant namely Mst. Ayesha had further fortified her presence and the factum of participation in the occurrence. Statement of the Investigating Officer that Mst. Ayesha had disclosed that she had received injuries while changing clothes of the complainant, cannot be accepted as a correct statement on behalf of Ayesha made to the Investigating Officer for the reason that she had also been having injuries on her abdomen as well as legs, which type of injuries had only been supporting version of the complainant. Statement of the doctor also reveals that skin of complainant had burnt up to subcutaneous tissues distorting her face as a whole including her eyes. Other injuries had also been caused on other parts of her body as a result of the acid attack. 9. The corroboratory pieces of evidence i.e. recovery of syringe as well as canister from the place of occurrence had also been giving added vigor to the case of prosecution. Recovery of pipe of gas cylinder and partly burnt clothes of the complainant as well as both the appellants had also been supporting case of the prosecution and may well be considered as effective corroboratory pieces of evidence. Besides, the Investigating Officer prosecution have also examined Muhammad Israr Constable as PW-4 in support of the recoveries. Statements of both the witnesses had remained consistent and no material contradiction could be found therein. 10. Case of prosecution had no doubt been a case of single eye-witness but evidence has to be weighed and not counted. Statement of the single eye-witness had remained fully consistent with all the material particulars of the case. Same has sufficiently been corroborated by report of her medical examination as well as other corroboratory evidence discussed above. In such circumstances, a single eye-witness was sufficient for conviction of the accused/appellants. Hon'ble Supreme Court of Pakistan in its judgment rendered in the case of "Muhammad Mansha v. The State" reported as 2001 SCMR 199 has held that if testimony of a single eye-witness is found entirely reliable, there is no legal impediment to conviction of the accused on such proof. Relevant part of observations of the august Court is reproduced hereunder for ready reference; "As mentioned hereinabove no yardstick can be fixed as to whether statement of a solitary witness must or must not be relied upon for the simple reason that each case has its own peculiar circumstances which shall play a significant role and is motivating factor to determine the reliability of a solitary witness as the said aspect of the matter is to be dilated upon in the light of surrounding circumstances which may be taken into consideration or otherwise. We may mention here that such circumstances also cannot be confined within a limited sphere of any definition because the same may be infinitely diversified by the situation and conduct of the parties concerned. "The only general rule that can be laid down is that the circumstances must be such as would lead the guarded decision of a reasonable and just man to the conclusion". We have also have the benefit of consulting C.D. Field on the Law of Evidence (page 4746) wherein it was observed as follows:- "Thus evidence of a single witness is sufficient to sustain and may legally be made the sole basis for a conviction, the relevant section 134 having enshrined the well-recognised maxim that evidence has to be weighed and not counted'. Though the Legislature has placed no ' jurisdictional limitation on the power of a Judge, to act on the sole testimony of a single witness, even though uncorroborated, the Judges themselves have from time to time evolved some rules and guidelines of circumspection as to when such evidence can be or cannot be acted upon without corroboration." (Perna Dukpa v. State Sikkim 1981 Cr.LJ 1276). 9. It may not be out of place to mention here that Law of Evidence (I of 1872) and Qanun-e-Shahadat Order, 1984, have excluded the well-?entrenched principle remained applicable for decades that "unus nullus" (one is equal to none) and is no, more enforced hence cannot be taken into consideration. The only criterion which can be fixed seems to be that "in order that the sole testimony of a witness is made the foundation and the basis for finding a person guilty of the charge, the evidence must be clear, cogent and consistent and should be of an unimpeachable character." (1982) 53 Cut. LT 368 at p.370). A careful examination of the dictums as laid down in the above referred authorities the consensus seems to be that conviction can be awarded on the basis of solitary statement of a witness if it is found worthy of credence, dependable and consistent." In the case of "Farooq Khan v. The State" reported as 2008 SCMR 917, Hon'ble Supreme Court of Pakistan had also recorded like observations, which are also reproduced hereunder; "As to the argument of learned counsel for the appellant that the solitary statement of injured P. W.8 was the basis of conviction, suffice it to observe that the injured prosecution witness had given the number of injuries caused to the deceased in the incident by attributing the responsibility to the appellant. Evidence of this witness has been supported by medical evidence furnished by Dr. Muhammad Maqsood P.W.6 who conducted post-mortem examination on the dead body of the deceased Zahir Khan. The evidence of injured witness is worthy of credence, independent and natural and there was no lawful justifiable cause to discard his evidence. The credence of statement of solitary witness has already been examined by this Court in a number of cases. In this context reference can be made to Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 530, Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659 and Muhammad Mansha v. The State 2001 SCMR 199. Moreover, conviction in any murder case can be based on the testimony of a single witness, if the Court is satisfied that the witness is reliable. In other words, the "emphasis" is on quality of evidence, and not on its quantity. In this behalf reliance can be placed on the case of Allah Bakhsh v. Shammi PLD 1980 SC 225." "emphasis supplied" Further reliance in this respect may also be placed on the judgment of Hon'ble Apex Court given in the case of "Niaz-ud-Din and another v. The State" reported as 2011 SCMR 725 as well as the case of "Shamshad Ali v. The State" reported as 2011 SCMR 1394. 11. Complainant was also the person who had received injuries in the occurrence, and her presence at the spot was beyond question. Hon'ble Supreme Court of Pakistan in the case of "Saleem Zada and others v. The State and others" reported as 2019 SCMR 1309 had recorded the following observations, in this respect; "We have gone through the statement of Bahri Zaman, the sole eye-witness and found him most confidence inspiring; he alone can sustain _the charge; being injured, his presence cannot be doubted." 12. One of the contentions of learned counsel for appellants had been that the procedure as provided in section 174-A, Cr.P.C. had not been followed in the case in hand and that the report lodged in violation thereof would lose all its worth. Said section being relevant is reproduced hereunder for ready reference; 174-A. Grevious injury by burns.---(1) Where a person, grievously injured by burns through fire, kerosene oil, acid, chemical or by any other way, is brought to a Medical Officer on duty: designated by the Provincial Government for this purpose or, such incident is reported to the Officer-In-Charge of a Police Station, such Medical Officer on duty, or, as the case may be, Officer-in-Charge of a Police Station, shall immediately give intimation thereof to the nearest Magistrate. Simultaneously, the Medical Officer on duty shall record the statement of the injured person immediately on arrival so as to ascertain the circumstances and the cause of the burn injuries. The Statement shall also be recorded by the Magistrate in case the injured person is still in a position to make the statement." Section 174-A, Cr.P.C. has been inserted for giving added protection to affected persons of burn injuries, which are often received as a result of domestic violence. While interpreting section 174-A, Cr.P.C. the purpose and object of its introduction has to be kept in mind. We will have to see the mischief for suppressing of which this section had been introduced. In cases of domestic violence it was a common phenomena that eye-witnesses were either not present or used to avoid lodging of report due to being inmates of same house where the perpetrator of the crime as well as its victim resided. The purpose of insertion of this special mechanism had been to enable a seriously injured complainant to lodge a report which is recorded by such authority whose statement would carry relatively greater evidentiary value if such a victim expires later on. While interpreting the, section this Court can well look into the mischief for suppressing of which legislature had provided a special mechanism for lodging report of occurrences, despite the fact that a mechanism for lodging reports of the criminal offences had already stood provided in section 154, Cr.P.C. While construing section 174-A, Cr.P.C. the literal construction alone would not solve the riddle but a purposive construction would have - to be adopted. While adopting purposive construction the provision of section 174-A, Cr.P.C. had to be read with the whole scheme, purpose and objects of amending Act. Hon'ble Supreme Court of Pakistan while giving its judgment in the…

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