2023 PLP 1009 (MLD)

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 case of "Rana Aamer Raza v. Doctor Minhaj Ahmad Khan" reported as 2012 SCMR 6 has held that while construing a statute a court has to keep in mind the statement of reasons and objects given therein, the statement of objects given in other laws in pari materia to the one under consideration . as well as the mandate of the relevant constitutional provisions. Relevant part of observations of the Hon'ble Court is reproduced hereunder for ready reference; Here we are seized of giving effect to a Statute which incorporates a Constitutional provision by reference. In construing such a piece of legislation, the Court has to examine and keep in mind three things: (i) the Statement of Reasons and 'Objects given therein; (ii) the statement of objects given in other laws in pari materia to the one under consideration; and (iii) the mandate of the Constitutional provision which stands adopted by way of reference.

14. A bare perusal of the statement of objects of the similar amending provisions in various Universities of Punjab, a detail of which has been given in the table above, reflects that the legislative intent was that "the principles of good government as enunciated in the Constitution should be made applicable". The Law Commission in England while giving its report in 1969 had not approved use of the word "mischief" and had instead preferred a purposive approach to construction of statutes. Mr. S. M. Zafar while explaining purposive interpretation of a statute had quoted observations of Lord Diplock rendered in the case of "Jones v. Wrothem Park Settled Estates" [(1979) 1 ER 286, 289] in his book "Understanding Statutes", which parts also merits a reproduction here; "Adopting this new term of purposive, construction Lord Diplock said in 1975; "If one looks back to the actual decisions of the House of Lord on question of Statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions. Lord Diplock had another chance of expressing his views on purposive construction in 1979. I find his enunciation of the term, illuminating which can provide the judiciary with an effective tool for providing substantial justice. He said; "I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purpose of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it." The renowned author had also reproduced a para from Cross on Statutory Interpretation 3rd Edition, for elucidating the concept of purposive approach in the following words; "Cross commented on this new approach as under; "Under the purposive approach, the judge may look beyond the four corners of the statute to find a reason for giving a particular interpretation to its words, and his role is one of active cooperation with the policy of statute." No consequences have been provided for not following the mechanism provided under section 174-A, Cr.P.C, same cannot therefore be construed as mandatory, despite use of the word shall therein. Word "shall" is not always indicative of the fact that the legislature intends a provision to be given as mandatory. The real intention of legislature should be unraveled while dealing words used in a Statute as directory. Hon'ble Supreme Court of Pakistan in the case of "The State through Regional Director ANF v. Imam Bakhsh and others" reported as 2018 SCMR 2039 has held in this respect; "To distinguish where the directions of the legislature are imperative and where they are directory, the real question is whether a thing has been ordered by the legislature to be done and what is the consequence, if it is not done. Some rules are vital and go to the- root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance. The duty of the court is to try to unravel the real intention of the legislature. This exercise entails carefully- attending to the scheme of the Act and then highlighting the provisions that actually embody the real purpose and object of the Act. A provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceedings. Thus, some parts of a statute may be mandatory whilst others may be directory. It can even be the case that a certain portion of a provision, obligating something to be done, is mandatory in nature whilst another part of the same provision, is directory, owing to the guiding legislative intent behind it. Even parts of a single provision or rule may be mandatory or directory. "In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured." Crawford opined that "as a general rule, [those provisions that] relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely of convenience rather than of substance, are directory." In another context, whether a statute or rule be termed mandatory or directory would depend upon larger public interest, nicely balanced with the precious right of the common man. According to Maxwell, "Where the prescription of statute relates to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed or in other words as directory only. The neglect of them may be penal indeed, but it does not affect the validity of the act done in disregard of them." Our Court has held while determining the status of a mandatory or directory provision that "perhaps the cleverest indicator is the object and purpose of the statute and the provision in question." And to see the "legislative intent as revealed by the examination of the whole Act." Further reliance in this respect may be placed on judgment of Hon'ble apex Court given in the case of "Tallat Ishaq v. National Accountability Bureau through Chairman and others" reported as PLD 2019 Supreme Court

112. The mechanism provided under section 174-A, Cr.P.C. was also supplemental and directory in nature and its violation would not vitiate a report otherwise lodge under section 154, Cr.P.C. Both the mechanism shall be construed to be existing concurrently. It can safely be concluded therefore that the mechanism for lodging report of the occurrence in cases of burns provided by section 174-A, Cr.P.C. should be followed by the medical officer on duty as well as Incharge of police station and the nearest magistrate available but if not so followed a report under section 154, Cr.P.C. would not lose its worth or be defective on that score alone. Both the mechanisms have been concurrent in nature and therefore following of one and leaving of another would make no difference, vis- -vis the criminal liability owned as a consequence of the act.

13. In light of what has been discussed above, it is quite apparent that prosecution have been able to prove case against both the appellants beyond a shadow of doubt and that the learned trial Court had rightly convicted the appellants for commission of the offence. The appeal in hand was found lacking substance and same is accordingly dismissed.

14. While convicting the appellants under section 336-B, P.P.C., the learned trial Court had sentenced them to undergo fourteen years rigorous imprisonment along with fine of Rs. 10,00,000/- (one million). Complainant has also filed criminal revision for enhancement of the sentences awarded to the appellants. Learned counsel appearing on behalf of complainant has argued that minimum punishment provided for the offence under sections 336-B/34, P.P.C. has been awarded to the appellants, while they deserved a maximum dose provided therein. The Investigating Officer during the course of cross-examination had been asked questions regarding character of the complainant. He had also been asked that the two accused had disclosed during the course of their interrogations that complainant had been having illicit relations with husband of one of the appellant namely Mst. Ayesha and son-in-law of the other appellant namely Mst. Haleema, to which he had replied that yes it had been duly disclosed to him by the two appellants. Complainant had also stated in her report that Atta Ullah had been present at the place of occurrence and that she had requested him to provide her certain medicine for controlling blood pressure. Complainant had only stated in her first report that strained relations between the parties had constituted motive for commission of the offence. Details of the strained relations or its causes had not been forthcoming in evidence of the prosecution. One of the obvious reasons pleaded by learned counsel for complainant had been that she had been second wife of husband of the appellant Mst. Haleema and that the jealousy and heartburns had in-fact motivated the two appellants. We have doubted that same had constituted the sole reason for commission of the offence, for the reason that second marriage of husband of Mst. Haleema had taken place twelve years before the date of examination of the complainant. Had the occurrence taken place in earlier days of second marriage the plea of learned counsel for complainant would have been well-founded. After almost twelve years of the marriage, when the occurrence had taken place, we doubt that the marriage had been the sole reason for perpetration of the offence. What was the real reason causing animosity between the parties have not been fully explained by the prosecution. This was sufficient reason for giving the lesser punishment provided for the offence under section 336-B, P.P.C. The revision petition in hand was therefore found lacking any substance and same is accordingly dismissed. JK/154/P Revision Petition dismisse