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Petitioner: IRFAN VS Respondent: STATE
Court Name: Federal Shariat Court Judge(s): Muhammad Zafar Yasin, Syed Afzal Haider Title: IRFAN vs STATE Case No.: CH. Appeal No, 24/I of 2008 Date of Judgment:2009-10-28 Reported As: PLJ 2010 FSC 203 Result: Appeal dismissed
JUDGMENT
JUDGMENT Syed Afzal Haider, J.--This appeal has been moved by appellant Irfan against impugned Judgment dated 04.02.2008 delivered by learned Additional Sessions Judge, Nankana Sahib whereby he was convicted under Section 302(b) of the Pakistan Penal Code and sentenced to life imprisonment. He was also ordered to pay a sum of Rs,50,000/- as compensation to the legal heirs of deceased and in default thereof to suffer simple imprisonment for an additional period of six months. He was convicted additionally under Section 449 of the Pakistan Penal Code and sentenced to ten years rigorous imprisonment alongwith a fine of Rs,20,000/- and in default whereof to suffer another term of three months simple imprisonment. Both the sentences were directed to run concurrently. Benefit of Section 382-B of the Code of Criminal Procedure was granted to the appellant. FACTUAL BACKGROUND 2. The case has arisen out of a private complaint filed on 14.10.2005 before the learned Sessions Judge, Sheikhupura through Illaqa Magistrate Mananwala by PW-5 Mst.Nasim Akhtar, mother of victim Mst.Azra Kausar (deceased), regarding an occurrence alleged to have taken place on 24.05.2005 in the area of Mohallah Nadeemabad Mananwala, District Sheikhupura. 3. Brief facts of the case as narrated in the complaint are that the husband of complainant Sanawar Ali Shah, earned his livelihood as a worker at the brick kiln of chairman Muhammad Iqbal. On 24.05.2005 at about 8.00 a.m., she is reported to have gone to the cattle shed while her daughter Mst. Azra Kausar was in the house. After half an hour she heard some noise emanating from their street and saw a group of persons gathered in front of her house. On enquiry, those persons including Muhammad Arshad, Maqsood Ahmad, Muhammad Akram and Sabir Hussain
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Shah etc. told the complainant to inquire the matter from her daughter Mst. Azra Kausar herself. When the complainant entered the house she saw her daughter in naked condition who informed her that accused Irfan, armed with pistol, had forcibly taken her inside the room on gun point and committed Zina-bil-Jabr with her after breaking the string of her Shalwar. On her alarm, the accused, who was having a bottle containing acid with him, forcibly poured the same in her mouth. On hearing her cries the witnesses entered the house of the complainant and on seeing them the accused fled away leaving Mst. Azra Kausar in naked condition. The complainant took her daughter to Dr. Islam Din Kamboh as a private patient who referred her to Sheikhupura District Hospital wherefrom she was further referred to Lahore in view of the gravity of the case. Complainant brought the victim to Mayo Hospital, Lahore where she received emergency treatment. The complainant further disclosed that two days prior to the date of occurrence Munawar Hussain and Anwaar Shah had informed her that they had heard Irfan, Muhammad Wakeel, Abdul Shakoor and Shafaqat Ali conspiring to commit excesses with Mst. Azra Kausar. Complainant took up this matter with the parents of accused Irfan who gave an assurance that Irfan would not do any thing wrong. It was further stated that the complainant lodged an information with the police and her crime report was registered as F.I.R No, 187/2005 dated 30.5.2005 in the Police Station Mananwala initially under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, Ss. 337-C, 337-J and 334/34 of the Pakistan Penal Code while Section 302 of the Pakistan Penal Code was added after the death of her daughter. 4. The complainant reportedly filed various applications with police authorities for the arrest of accused Muhammad Wakeel, Abdul Shakoor and Shafaqat Ali but the Police did not oblige. Complainant then filed an application under Sections 22-A and 22-B of the Code of Criminal Procedure with the learned Sessions Judge, Sheikhupura who was pleased to direct the Investigating Officer to effect arrest of accused and put up a report in the Court under Section 173 of the Code of Criminal Procedure. Irfan accused alone was arrested thereafter by the Investigating Officer but no action was taken against the three other accused nominated by the complainant. The complainant had to file another application before the learned Sessions Judge whereafter the Investigating Officer recorded statements of witnesses under Section 161 of the Code of Criminal Procedure. It was further stated that since the accused were not arrested so Mst. Nasim Akhtar, the complainant PW-5 was constrained to file a private complaint. The learned trial Court after preliminary inquiry summoned all the accused to face trial. 5. The learned trial Court framed charges against the accused on 08.04.2006 under Sections 449, 337-J/302 of the Pakistan Penal Code as well as Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and under Section 109/302 of the Pakistan Penal Code. The accused did not plead guilty and claimed trial. PROSECUTION EVIDENCE 6. The prosecution in order to prove its case produced 11 witnesses at the trial. The gist of the evidence of prosecution witnesses is as follows:-- (i) PW-1, Khalid Javed, Assistant Sub-Inspector deposed that Constable Muhammad Ramzan produced before him an application Ex.PA which was sent by Iftikhar Ahmad Sub Inspector PW-10 for the purpose of formal registration of First Information Report and the report was done on 30.05.2005. F.I.R is Ex.PA/1. (ii) Sanawar Shah, father of deceased Mst. Azra Kausar, appeared at the trial as PW-2 to state that after the death of his daughter "murder case was registered" meaning thereby that Section 302 of the Pakistan Penal Code was added in F.I.R No, 187/2005 Police Station Mananwala. (iii)Munawar Shah, appeared at the trial as PW-3 to depose that about one year and nine months ago at about 5.00 p.m., he alongwith Anwaar Shah went to the PCO of accused Wakeel where accused Irfan, Wakeel, Shakoor and Shafqat Ali were present. All of them were coaxing the accused
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Irfan to take revenge of abduction of his sister from Mst. Azra Kausar by murdering her. The witness told this fact to the complainant and then both of them went to the parents of accused Irfan and informed them that the accused were "cooking up this conspiracy". He also identified the dead body of deceased Mst. Azra Kausar at the time of post-mortem examination. (iv)PW-4 Aslam Pervez, Constable deposed that on 18.07.2005 the dead body of deceased 114st. Azra Kausar was handed over to him for post-mortem examination and he also received the last worn clothes of the deceased which were taken into possession by the Investigating Officer vide recovery memo Ex.PB. (v) Mst. Nasim Akhtar, complainant appeared as PW-5. She endorsed the contents narrated in her written complaint. (vi)The next witness to appear was Sabir PW-6 who stated that on the day of occurrence at about 8.00 a.m., while he on his way towards the house of Sanawar Shah he saw Arshad, Maqsood and Akram and accused Irfan. armed with pistol, emerging out of the house of complainant. He stated further that he alongwith other witnesses went to the house of complainant and saw Mst. Azra Kausar in naked condition in the room. He also stated that later he entered the house after the complainant had covered the naked body of the victim and in his presence the victim in reply to a question, posed by her mother, stated that "accused Irfan had come while armed with pistol, dragged her inside the room and committed Zina-bil-Jabr with her and forcibly put acid in my mouth. She requested that she be shifted to hospital as she was feeling difficulty in breathing." (vii) Dr. Sohail Khizar DMS, DHQ Hospital Nankana Sahib appeared as PW-7. He had conducted the medical examination of Mst. Azra Kausar on 24.05.2005 and gave opinion that there was history of "poisoning by some acid". He further stated that "blood was coming from her mouth" and being in serious condition the patient was referred to Mayo Hospital, Lahore. The witness later on declared Injury No, 1 as Jaffa 337/C and Itlaf-e-udw 334" on the basis of surgical notes dated. 07.06.2005 of Mayo Hospital, Lahore. (viii) Dr. Muhammad Mansha appeared as PW-8 to state that he got conducted medical examination of deceased Mst. Azra Kausar at the D.H.Q Hospital, Sheikhupura. (ix)Dr. Humayun Siddique, Registrar South Surgical Ward of Mayo Hospital appeared at the trial as PW-9. He had treated the patient Mst. Azra Kausar in emergency, performed different tests and undertaken surgical steps including "exploratory laparotomy". He discovered greenish fluid in peritoneal cavity, perforation of stomach and gangrenous patches all over the stomach. (x) Iftikhar Ahmad, Sub-Inspector appeared as PW-10. He had investigated the case. He visited the spot, prepared inquest report Ex.PG, sent the dead body to hospital for post-mortem examination. He further stated that he found the accused innocent and prepared discharge report through SHO. (xi)Dr. Fareeda Sheraz Warraich, PW. 11, conducted the post mortem examination of Mst. Azra Kausar on 18.07.2005 and confirmed presence of "old healed lacerated wound on the tongue". She further stated that the cause of death was injuries caused by acid followed by malnutrition and septicemia. 7. The complainant, before closing the prosecution case, tendered in evidence MLC 1016, Ex.PM, copy of petition and an order Ex.PN passed by the Sessions Court under Sections 22-A, 22-B of the Code of Criminal Procedure on 15.01.2008. STATEMENT OF ACCUSED 8. The trial Court thereafter examined the accused under Section 342 of the Code of Criminal Procedure on 01.02.2008. The accused pleadedinnocence. Accused Irfan stated as follows :-- "I am labourer. On the day of occurrence complainant and the PWs were not present there. In fact complainant Naseem Akhtar wanted to marry the deceased Azra Kausar with Iftikhar Shah against the will and consent of the deceased due to which complainant firstly abused her and then gave her severe beating and threatened the deceased that her marriage will be held only with said
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Iftikhar and due to which the deceased Azra Kausar poured acid in her mouth and was taken to hospital. She became healthy and was discharged from the hospital and came to her house. Later on she died in natural death. The complainant with Inaba fide intention did not disclose the injuries inflicted by her upon the person of deceased while appearing before the police in investigation because she wanted to suppress the mischief. ThePWs mentioned in the FIR also did not appear before the police during investigation. The case was investigated by Iftikhar Ahmed S.I., Ghulam Nabi Inspector and Imran Khalid S.1. and all these I.Os. found version of the complainant as false and concocted and discharge report was prepared. I have been involved in this case due to enmity." Accused Shafqat Ali denied the charge and claimed innocence. Accused Muhammad Wakeel as well as accused Abdul Shakoor made statements in line with the statement of accused Irfan. The accused neither availed the opportunity provided by Section 340(2) of the Code of Criminal Procedure nor produced any, evidence in their defence except submitting copy of discharge report Ex.Dp. VERDICT OF TRIAL COURT 9. After completing codal formalities of the trial, the learned trial Court returned a verdimof guilt against the appellant alone by holding that the "prosecution has successfully proved its case and charge against accused Irfan upto the extent of criminal trespass into the house of the complainant and murder of the deceased by administering acid to her beyond any shadow of doubt." It was also found that prosecution "failed to prove charge against Muhammad Wakeel, Abdul Shakoor and Shafaqat Ali." Hence the three co-accused were acquitted. Irfan accused was convicted and sentenced as mentioned in the opening paragraph of this judgment. Appellant was not convicted for committing Zina. Learned trial judge also mentioned reasons for not awarding capital punishment to Han accused. Hence the present appeal against conviction and sentence under two counts. 10.We have gone through the record of the case. The oral as well as documentary evidence brought on record and the statement of accused has been perused. Relevant portions of the impugned judgment have been scanned. We have also heard learned counsel of the contending parties. DEFENCE PLEA 11.Learned Counsel for the - appellant raised the following points for consideration:-- (i) That the appellant was declared innocent by the Investigating Officer; (ii) That trial commenced upon a private complaint; (iii)That only one person was nominated as accused in the F.I.R whereas the number of accused increased at the time of filing of complaint; (iv)That the incident took place on 24.05.2005 whereas the crime report was lodged on 30.05.2005 with local Police after a delay of 6 days and the private complaint was then filed on 12.10.2005 after a delay of another four months; (v) That Station House Officer had directed local police to submit discharge report. Consequently report was submitted by local Police favouring Irfan accused; (vi)That Muhammad Arshad, Maqsood Ahmad and Mst. Nasim Akhtar complainant PW-5 are not eye-witnesses of the case; (vii) That fresh eye-witnesses were added at the complaint stage and these witnesses had not seen the occurrence; (viii) The medico legal report dated 24.05.2005 recorded at 10:35 a.m. does not show any mark of violence. No vaginal swa bs were taken on that day. Consequently there was no report of the Chemical Examiner; (ix)That according to the medical report it was a case of suicidal attempt;
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(x)That no allegation of rape was leveled against the accused by the victim before the medical officers; (xi)PW-9 Humayun Siddique stated that the victim was able to speak before operation but she never nominated the appellant as the person responsible for the offence; (xii) That the statement of victim about the cause of her death, if treated as a dying declaration, has to be accepted in toto or rejected outright; (xiii) There was neither any recovery of the pistol nor was the bottle containing acid recovered from the place of occurrence; and (xiv) Consequently the appellant is entitled to benefit of doubt. 12. Learned Deputy Prosecutor General on the other hand supported the convictions and ensuing sentences on the following grounds :-- (i) That the prosecution has fully established the case beyond reasonable doubt; (ii) That the learned trial Court found that appellant had trespassed in the house of victim and poured acid in her mouth; (iii)That the learned trial Court had found that delay of six days in reporting the matter was not consequential as the victim was in critical condition in the hospital; (iv)That the complainant is a poor woman who was fighting hard in different hospitals to save the life of her daughter. She had no personal animosity with accused to falsely implicate them; (v) That relationship interse of the witnesses is not sufficient to discard their evidence; and (vi)That the learned trial Court has already taken a lenient view by not awarding capital punishment to the appellant. NATURE OF INVESTIGATION 13. Before proceeding to discuss the points raised before us by the contending parties we would like to examine the conduct of investigation in this case with particular reference to the provisions of Section 174-A of the Code of Criminal Procedure wherein mandatory procedure has been laid down regarding cases of in injuries caused be burns or acid. This provision of law was introduced on public demand on 17.11.2001 in the Code of Criminal Procedure. Our observations as regards police investigation and medical examination of the victim are as follows:-- (i) The incident took reportedly place on 24.05.2005 at 8.00 a.m. The patient was taken to a private doctor of the locality who referred the patient to the DHQ Hospital Sheikhupura where she was received in "serious condition. Blood was coming from mouth. Blood pressure was not recordable. She was referred to Mayo Hospital Lahore by District Physician". Statement of the victim or any one attending her was neither recorded by Doctor Islam Din Kamboh, who initially examined her, nor was the requisite statement recorded by Medical officer of DHQ Hospital, Sheikhupura as required by law. (ii) The patient Mst. Azra Kausar was then taken to the hospital by Constable Muhammad Mansha 400/c P.S. Mananwala at 10.35 a.m. on 24.05.2005 which is amply indicated in the medico legal report Ex.PM dated 2.4.05.2005 placed on record relating to the arrival and condition of victim. The medico-legal report (Ex.P.M) was also received by the said Constable. The constable had gone to the hospital on the strength of Ruppt No, 4 (as mentioned in the Medico-legal report). (iii)There was no effort to record a crime report nor was the statement of the patient recorded. The doctor on duty in the D.H.Q Hospital, Sheikhupura did not certify that the patient was unable to speak. The doctor did mention that it was a case with history of "Poisoning by some Acid" but neither the statement of victim nor any one attending the victim was recorded. Magistrate was also not informed. (iv)Medical examination of the victim by a lady doctor was not arranged even on 25.05.2005 to verify whether the incident had to do something with sexual assault as the patient was a young girl aged 17/18 years.
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(v)The patient was admitted in Mayo Hospital on 25.05.2005 in emergency. The Registrar, PW.9, appeared at the trial and gave the details of initial treatment. He stated that "the injured was able to speak prior to operation." Notwithstanding, the critical situation of the victim and her ability to speak, her statement was not recorded even by the doctors in the Emergency. How come that the Police party officially deputed to keep perpetual watch in the Emergency Ward, failed to notice this particular case of serious gravity? This culpable disregard and motivated neglect to take appropriate and timely legal action is a serious lapse which calls for full fledged inquiry. It is painful to remark that no one from the police contingent, . permanently available in the Emergency Ward of the Mayo Hospital, attended the injured with the result that no statement of the victim was recorded by the emergency police contingent. The sole object of maintaining police force in Hospital is to monitor every medico-legal case so that no cognizable case remains unattended. This object was defeated brazenly by the police contingent deputed that day and time in the Mayo Hospital Lahore. (vi)The fact, that the victim was a student, was recorded even on 24.05.2005 by the Medical Officer as is evident from Ex.PM. The patient was not an illiterate girl. She could have been asked to give her statement in writing. A Magistrate could have supervised the statement made by victim, but even afterwards the Police Officer incharge of the investigation, it appears, was certainly not interested in pursuing the culprit at all after registration of the F.I.R. He was outwardly content that the patient was unable to make a statement. With this sense of duty no complainant can expect a fair and a thorough probe from an Investigating Officer. This sort of attitude is a clear message of riddance for the offenders. (vii) PW.10, the Investigating Officer while deposing at the trial, had surprisingly no hesitation in accepting every suggestion of the learned counsel for the accused. This Officer played his part in getting prepared the discharge report of the accused. He appears to have believed in whatever the accused said. This sort of attitude brings bad name to the disciplined force. (viii) The victim was reportedly removed immediately to the clinic of a local private medical practitioner Dr. Islam-ud-Din on 24.05.2005 who directed the attendants to move her to the District Headquarter Hospital Sheikhupura. Even the statement of this private doctor was never recorded by local police. He could have been of some assistance in knowing what the injured person had stated about the mode and manner in which acid was thrown in her mouth. He could have been produced by police at the trial but that was possible only if he had been examined and joined in the investigation. (ix)The emergency department of the Mayo Hospital, Lahore has the facility of a Police contingent to monitor each and every medico-legal case. The absence of the Police and its contribution in the progress of this case as stated above is an atrocious lapse on the part of the Incharge of Emergency Police Post. The Investigating Officer never bothered to check up this point. Evidence of the Emergency Police Incharge was not intentionally obtained by the Investigating Officer. This is a conscious and calculated omission and is another cruel aspect of investigation by local police. (x) This is a case in which the provisions of Section 174-A of the Code of Criminal Procedure have been violated brutally both at the level of three medical stages and at the level of the local police station and Hospital Emergency Police. 14. For sake of reference Section 174-A of Code of Criminal Procedure is reproduced as follows-- "174A.. Grievous 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
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so as to ascertain the circumstances and 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. (2)The Medical Officer on duty, or, as the case may be, the Magistrate, before recording the statement under sub-section (1), shall satisfy himself the injured person is not under any threat or duress. The statement so recorded shall be forwarded to the Session Judge and also to the District Superintendent of Police and Officer-in-Charge of the Police Station, for such action as may be necessary under this Code. (3)If the injured person is unable, for any reason, to make the statement before the Magistrate, his statement recorded by the Medical Officer on duty under sub section (1) shall be sent in sealed coyer to the Magistrate or the Trial Court if it is other than the Magistrate and may be accepted in evidence as a dying declaration if the injured person expires". 15. The above provision of law shows that Section 174-A ibid mandates a three tier module. The three stages are as follows:-- (a) The first stage is that whenever a person, injured by burns or acid etc, is brought to a duly designated Medical Officer or such an incident is reported to an officer in charge of the Police Station then the information of such an incident shall immediately be given to the nearest magistrate who shall record the statement of the injured person immediately on arrival so as to ascertain the circumstances and causes of such injuries. The statement of the victim shall then be recorded by the Magistrate in case the injured person is in a position to make a statement. (b) The Medical Officer or the Magistrate before recording statement of an injured person shall satisfy himself that the injured person is not under any threat or duress. The statement so recorded shall then be forwarded to the Sessions Judge and the District Police Officer as well as concerned Station House Officer for necessary action. (c) In case the injured person is unable to make a statement before the Magistrate then the statement recorded by the Medical Officer shall be sent under sealed cover to the Magistrate or the trial Court. Such statement may be accepted as a dying declaration. 16.This amendment in fact advances the purpose for which Article 46 of the Qanun-e-Shahadat Order, 1984 was enacted. It is unfortunate to note that, in this case under appeal, the Medical Officer DHQ Hospital Shaikhupura and Officer-in-charge of Mannawala Police Station did not observe the express provisions contained in Section 174A of the Code of Criminal Procedure and in this process damaged the cause of justice. This provision was specifically introduced because cases of this nature were registering…
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