2017 PLP 207 (YLRN)

ALI BAQAR NAJAFI, J.

This appeal is directed against the judgment dated 30.11.2012 passed by the learned Judge, Anti Terrorism Court-II, Multan in a private complaint filed by respondent No.2 under sections 336-B/324/34, P.P.C. and section 7 of Anti-Terrorism Act, 1997 against the appellant and one Hasham Jutt who was acquitted whereas the appellant was convicted and sentenced as under:- 1 Pir Munir under section 336-B, P.P.C. The appellant was sentenced to 15 years R.I. along with fine of Rs.10,00,000/- and in default whereof to further undergo S.I. for two years.

2. Pir Munir under section 7(i)ATA, 1997 The appellant was sentenced to 5 years R.I. Both the sentences were directed to run concurrently.

2. Briefly, the complainant's case against the appellant is that the complainant, Mst.Zoha Kanwal/PW-4 an insurance agent on 15.09.2012 went to the Dera of one Muhammad Khan Langrah to convince him to purchase the insurance policy, where after his servant dropped her at Pull Mangan Wali. At about 6:15 p.m. when she was waiting for rickshaw, suddenly three persons, including the appellant, and Hashim Jutt along with one unknown person on motorbikes appeared. They first demanded from the complainant to withdraw her case which she got registered against the accused persons. Upon her refusal the appellant allegedly threw acid on her right arm and right shin. On her hue and cry Muhammad Ramzan, Azhar, Ghulam Shabbir, Nasrullah and other persons of the vicinity attracted at the spot but the assailants succeeded to flee away. Rescue 1122 was called and she was brought to the hospital where FIR No.325 dated 16.09.2012 under section 324, P.P.C. and section 7 of the Anti-Terrorism Act, 1997 was registered against the accused persons but the police connived with them and did not investigate the case fairly, hence she filed the private complaint.

3. The appellant was summoned to face trial. The complainant produced Ghulam Shabbir/PW-5 as supporting eye-witness. Dr.Saima Hassan/PW-1 who initially medically examined her as well as Dr. Muhammad Bilal/PW-3 who admitted her in the Nishtar Hospital, Multan in the surgical emergency. The other formal witnesses appeared to substantiate registration of FIR.

4. In the statement recorded under section 342, Cr.P.C., the appellant as well as co-accused persons while denying the allegation stated that the case was registered against him just to blackmail in order to grab money from him as the complainant herself is not a lady of good character who cited different set of witnesses (than those of the FIR) and had made dishonest improvements. He also stated that the only injury upon the person of the complainant is Ghair Jaifah Damiya and that report of Chemical Examiner on the acid was negative. It was also stated by him that Ghulam Shabbir/PW-5, the eye witness, is closely related to her and he was found innocent during the investigation.

5. The learned trial court while acquitting co-accused Hasham Jutt convicted and sentenced the appellant as stated above.

6. Mr. Waseem Sarwar Khan, Advocate for appellant contends that after lodging of case FIR No.325 dated 16.09.2012 under section 324, P.P.C. and section 7 of the Anti-Terrorism Act, 1997 registered at Police Station Saray Sidhoo, District Khanewal, the appellant joined the investigation and was declared innocent by the police, where after the private complaint was filed by the complainant by citing only one witness as PW-5 namely, Ghulam Shabbir whose statement was also not corroborated to support the prosecution story. Adds that the complainant managed to procure medical report as she remained as "Nurse" for some time. Refers to the VITROLAGE the term used for acid which is not covered under section 336-B, P.P.C. Further adds that Dr. Muhammad Bilal/ PW-3 could not explain that the injury sustained by the complainant was due to the acid. He adds that conduct of the complainant is dubious as she lodged FIR No.231 dated 07.08.2012 under section 376/511, P.P.C. against the appellant the trial of which is still pending before the learned trial court where she has not been appearing. Further submits that it was after filing of complaint of Qazaf against her by the appellant that she filed the instant private complaint on 16.10.2012 which by itself speaks mala fide on the part of the complainant.

7. Conversely, Mr. Muhammad Ali Shahab, learned Deputy Prosecutor General assisted by Muhammad Ashraf, ASI submits that ingredients of section 336-B, P.P.C. had duly been constituted as according to the medical evidence her right arm and shin was found burnt therefore, conviction was imposed in accordance with the evidence. Adds that trial of case FIR No. 231 of 2012 was motive for throwing acid upon the person of the complainant and therefore, appeal merits dismissal.

8. After hearing the learned counsel for the appellant as well as learned Deputy Prosecutor General representing the State, we have straightway observed that it is a case of leveling criminal charge against the appellant with the background of enmity. Our reasons are, firstly, the very fact that in view of her strained relations with her husband namely, Sarfraz Ahmad she contacted the appellant to get rid of him by using extraterrestrial knowledge who allegedly extracted money from her. Besides, according to the complainant/ PW-4 on 07.08.2012 the appellant made an attempt to commit rape with her upon which FIR No.231 dated 07.08.2012 under sections 376/511, P.P.C. was registered at City Kabirwala District Khanewal by the complainant against the appellant, and its trial remained pending even during this year. In Khadim Hussain v. The State [2000 SCMR 1531] it was held that a plausible explanation as to delay in examination of victim of acid throwing was that because of injuries she became unconscious and when she regained her consciousness her statement was recorded by police. But there is an enmity in the present case and ocular evidence was not supported by the recovery of the burnt articles from the place of occurrence by police as well as the lantern.

9. Academically, an act of acid throwing, acid attack, a vitriol attack or Vitriolage, is a form of violent assault defined as the act of throwing acid or a similar corrosive substance onto the body of another with the intention to disfigure, maim, torture, or kill." The most common types of acid used in these attacks are sulfuric and nitric acid. Hydrochloric acid is sometimes used, but is much less damaging. Commonly sulphuric acid (oil of vitriol) is most commonly used and for this purpose, therefore, the name given is Vitriolage. The use of caustricsoda, caustic potash, iodine, and marking nutjuice has also been recorded. In our society, a person who is jilted in love may throw acid on the woman to teach her a lesson as it causes permanent scar and produces severe chemical burns and discoloration and staining of skin and clothing, (brown or black in sulphuric acid and yellow in nitric acid), trickle marks, absence of vesication and red line of demarcation which shows presence of the chemical substance in the stains. In an acid attack the skin is the main organ of contact. The effects of acid on the skin may include redness, and burns. In severe cases, it could lead to shock and death. Some other effects include permanent hair loss and scaring. Signs and symptoms are principally visible because of local effects. The externally exposed areas of the body such as skin of face, hands and feet are vulnerable and internally mucous membranes of stomach, intestines and respiratory passages. Strong alkalis mainly sodium or potassium hydroxide have similar effects as those of the mineral acids, more so on mucous membanes. Oxalic acid has both local and systemic action. Locally it acts as weak corrosive having milder effects than the mineral acids. In "Medical Jurisprudence and Toxicology 24th Edition by MODI", the burns are classified in six degrees according to Dupuytren classification as per the nature of their severity. Modern classification (Heba's classification) accords three degrees only by grouping the first and second (epidermal), third and fourth (dermo-epidermal), and fifth and sixth (deep)degrees together. Another classification grades burns into superficial and deep burns at page 486. (i) Epidermal Burns . (a) First Degree .. (b) Second Degree . (ii) Dermo-Epidermal Burns . (a) Third Degree.

Third degree burn refers to the destruction of the cuticle and part of the true skin, which appears horny and dark, owing to it having been charred and shriveled. Exposure of nerve endings gives rise to much pain. This leaves a scar, but no contraction, as the scar contains all the elements of the true skin. (b) Fourth Degree.

In fourth degree burns, the whole skin is destroyed. The sloughs which form are yellowish-brown and parchment-like, and separate from the fourth to the sixth day, leaving an ulcerated surface, which heals slowly forming a scar of dense fibrous tissue with consequent contraction and deformity of the affected parts. The burns are not very painful as the nerve ending are completely destroyed. (iii) Deep Burns. (a) Fifth Degree.

Fifth degree burns include the penetration of the deep fascia and implications of the muscles, and results in great scarring and deformity. (b) Sixth Degree.

Sixth degree burns involve charring of the whole limb including the bones and ends in inflammation of the subjacent tissues and organs, if death is not the immediate result. This degree, it may be noted, is not necessarily related to danger to life. Charring of a limb may be compatible with recovery, once the initial shock is over come. (iii) Extent of Total Body Surface Area. To estimate the amount of area affected by second or third degree burns in percentage, the body is divided into different area, each representing nine per cent. This is called the rule of nine. There is marked fluid loss resulting in shock when over 20 per cent of the body is affected and usually over 50 per cent is fatal. With this classification it is imperative that the punishment on acid burn case must commensurate to the severity of injury. However, section 336-U, P.P.C. does not prescribe such distinction in Pakistan Penal Code. We, therefore, strongly recommend that some legislative reforms may be brought to cater for this deficiency.

11. Keeping in view the above discussion, we are of the considered view that the prosecution has not been able to prove its case beyond any shadow of doubt. Resultantly, this appeal is allowed and the appellant is acquitted of the charge leveled against him. The appellant is in custody. He be released forthwith if not required in any other case. JK/P-5/L Appeal allowed.