1998 PLP 306 (MLD)

Date of hearing: 3rd July, 1995. Muhammad Shafique appellant/convict filed this appeal challenging judgment dated 11-1-1995 of the Additional Sessions Judge, Kot Addu, District Muzaffar Garh whereby he was convicted under section 456, P.P.C. and was sentenced to suffer one year R.I. and a fine of Rs.1,000 or in default to further undergo three months R.I. He was also convicted under section 354, P.P.C. and was sentenced to one year R.I. and a fine of Rs.1,000 or in default three months R.I.

2. The prosecution case in brief is that during the night between 1/2-10-1993 complainant Muhammad Sharif was sleeping outside his house alongwith his brother Muhammad Rafique and nephew Muhammad Arshad. His two daughters Mst. Zahida Perveen and Mst. Shahida Perveen alongwith other children were sleeping in the courtyard of the house. At about midnight, complainant Muhammad Sharif, his brother Muhammad Rafique and nephew Muhammad Arshad were awakened on an alarm raised in the house. All of them rushed and entered the house and saw accused Muhammad Shafique convict/appellant standing in the courtyard. He was seen holding Mst. Zahida Perveen from her bosom and was trying to open Azarband of her Shalwar. Mst. Zahida Perveen and Mst. Shahida Perveen were crying. It is also contained in the F.I.R. that Muhammad Shafique now convict on seeing the complainant and others fled away from the house after scaling over the wall. He was followed by the witnesses. Another person who was identified as Naseer Ahmad brother of the accused was also present near the wall of the house. He too started running, and both of them disappeared. Muhammad Sharif complainant and others when came back were informed by Mst. Zahada Perveen and Mst. Shahida Perveen that Muhammad Shafique had scaled over the wall of the house had entered the courtyard and after catching hold Mst. Zahida Perveen from her bosom had tried to open Azarband of her Shalwar in order to commit Zina-bil-Jabr. The F.I.R. was registered at 6.10 p.m. on 2-10-1993 against both the brother and, after usual investigation Muhammad Shafique was challaned by the police whereas Naseer Ahmad his brother was declared to be innocent and in challan his name was placed in column No.2.

3. Muhammad Shafique was charge-sheeted under section 456, P.P.C. and under section 18 read with section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, and the prosecution in order to prove its case produced six witnesses in all. The main testimony against the convict comprises of the statements of Muhammad Sharif (P.W.2) the complainant, Mst. Zahida Perveen (P.W.3) the victim, Mst. Shahida Perveen (P.W.4) the sister of Mst. Zahida Perveen and Muhammad Arshad (P.W.5) cousin of Mst. Zahida Perveen, Nadir Khan A.S.I. (P.W.6) the Investigating Officer while Muhammad Siddique S.I. (P.W.1). 1s the officer who arrested Muhammad Shafique accused and had submitted the challan. The prosecution gave up Muhammad Rafique, Sultan Mehmood and Khadim Hussain P.Ws. as unnecessary.

4. Muhammad Shafique accused in his statement under section 342, Cr.P.C. as well as under section 340(2), Cr.P.C. took up the position that he is innocent and was falsely implicated because of enmity. He added that his brother Naseer Ahmad had contested election against a relative of the complainant and there also existed a land dispute between accused/convict and the complainant. He deposed that their land and the land of the complainant are irrigated through the same watercourse and that they had requested the complainant to clear the watercourse.

5. Learned counsel for the appellant in support of appeal argued that in view of the enmity existing between the parties the testimony of victim and his family members should not be accepted at the same was not corroborated by some independent evidence. He argued that Muhammad Rafique, Sultan Mehmood and Khadim Hussain P.Ws. were given up though Muhammad Rafique P.W. was related but the others were independent witnesses. It was also argued that conviction and sentences under section 354, P.P.C. is illegal as the learned Additional Sessions Judge was not competent to try the offence punishable under section 354, P.P.C. Reference was made to the case of Doran Khan v. The State (PLD 1985 Quetta 188).

6. I have gone through the evidence on record minutely and have considered the pleas of the learned counsel for the appellant.

7. The plea that the conviction recorded against the appellant under section 354, P.P.C. in view of the case of Doran Khan (ibid) is illegal may now be examined. In the case of Doran Khan it was noted that all offences under the Pakistan Penal Code except offences specified in section A of Part I of the Schedule to the Conciliation Courts Ordinance, 1961, are exclusively triable by a tribunal constituted under the Criminal Law (Special Provisions) Ordinance, 1968, in the areas where this Ordinance is applicable. So, to the area in which the occurrence took place different legal provisions applied. This case cannot be applied to the case in hand. Secondly, after going through the evidence on record it is apparent that a case under section 18 of the Ordinance is clearly made out. Section 18 of the Ordinance reads as under:-- "

18. Punishment for attempting to commit an offence. Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or whipping, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with whipping not exceeding thirty stripes, or with such fine as is provided for the offence, or with any two of, or all, the punishments." The consistent version of the prosecution as deposed to by Mst. Zahida Perveen (P.W.3), Mst. Shahida Perveen (P.W.4), Muhammad Sharif (P.W.2) and Muhammad Arshad (P.W.5) was that at midnight time Muhammad Shafique accused entered the house after scaling over the wall. Muhammad Shafique caught hold of her from her bosom and tried to open Azarband of her Shalwar -hereupon she and her sister raised cries which attracted father and uncle and cousin Muhammad Arshad who reached the spot and when they were so attracted to the spot the accused left her and ran away from the place of occurrence after scaling over the wall. In the afore-noted attending circumstances it is to be seen whether the attempt as mentioned in section 18 of the Ordinance or the mere assault as contemplated by section 354, P.P.C. is made out. In the case of Sultan Bibi v. Ibrahim and two others (PLD 1991 Supreme Court 705) it was held that "In 'attempt' the accused commits some over act towards achieving his object but cannot succeed due to interruption by some external facts and circumstances which are not connected with the object of the accused. He fails to attain the object through some independent circumstance. An accused who had made certain in execution of completing his design but failed to (sic). to the intervention of certain facts the attempt is complete. If the attempt had succeeded the natural result would be that the offence charged would have been committed". In the light of the above observations the facts deposed to by the victim and the aforementioned witnesses who were attracted to the spot do show that this is not a case of mere assault as Muhammad Rafique appellant, who had caught hold the victim from her bosom and had tried to open Azarband, could not complete his objective of intercourse due to the noise raised by the victim and her sister and due to the arrival of the prosecution witnesses at the spot. The offence, thus, made out is of an attempt as mentioned in section 18 of the Ordinance.

8. The plea that without independent corroboration the testimony of Muhammad Sharif (P.W.2), Mst. Zahida Perveen (P.W.3), Mst. Shahida Perveen (P.W.4) and Muhammad Arshad (P.W.5) should not be accepted as enmity existed between the parties, has no merit. It is to be noted that the suggestion that a relative of Muhammad Sharif complainant contested election against the brother of the appellant was denied by Muhammad Sharif complainant. As regards dispute over watercourse the suggestion put to Muhammad Sharif in cross-examination was that the accused had desired that the complainant party should have separate watercourse and that there was a fight with the accused party over watercourse. Both these suggestions were also denied by the complainant. It is also pertinent to note that in statement under section 342, Cr.P.C. the nature of dispute with regard to watercourse described is different from one suggested to the complainant while cross-examining him as the stance taken in statement under section 342, Cr.P.C. was that the accused party had required the complainant to clear the watercourse and that the complainant refused to do so, and so the complainant falsely implicated the accused in the case. The demand to clear the watercourse in the circumstances would not have been made by the accused party. Muhammad Sharif (P.W.2) in answer to question put to him in cross-examination stated that firstly the land of Muhammad Hanif (father) of the accused is watered and then the land of Muhammad Sharif complainant party is watered. It will, therefore, be seen that refusal to clear the watercourse by Muhammad Sharif who took his turn after Muhammad Hanif would not have caused any grievance to the accused party and on the basis of suggested facts, existence of alleged enmity cannot reasonably be inferred. It will further be seen that for such a trivial matter no one would come out with a version which will put in jeopardy the honour of his unmarried daughter. The version of the victim being consistent and cogent specially when nothing has been brought out in the cross-examination to discredit her testimony, can be safely relied upon. I, therefore, hold that the prosecution is able to establish the offence under section 18 of the Ordinance. Learned trial Magistrate was not right in convicting the appellant for the offence under section 354, P.P.C. The same is set aside and instead the appellant is held guilty of the offence under section 18 of the Ordinance and is hereby convicted accordingly. The sentence already awarded i.e. one year R.I., and a fine of Rs.1,000 or in default three months R.I., will meet the ends of justice. Order accordingly. Nothing was urged with regard to the conviction under section 456, P.P.C. the same is, therefore, maintained. Both the sentences shall run consecutively. The benefit of section 382-B, Cr.P.C. is, however, allowed. The appeal fails and is hereby dismissed. The appellant is on bail. He shall be taken into custody to serve out the remaining sentence. N.H.Q./1132/FSC Order accordingly.