KHIZAR HAYAT Versus STATE
Complainant Mst. Safia Kousar, School Teacher, was standing in the compound by the gate of her house at about 8-00 a.m. -on 6-7-1990 when appellant Khizar Hayat came and attempted to drag her by the arm towards bath room for the purpose of subjecting her to rape and also attempted to open her trouser string. The complainant resisted whereupon the appellant whipped out a knife and threatened to kill her if she raised noise. Simultaneously the appellant attacked the complainant with the knife and she was hit on the left wrist. The appellant inflicted a second blow which injured the right ulna of the complainant. Then the appellant gave a fist blow on her right chest. The complainant raised alarm whereupon her mother Mst. Zainab Bibi came to the spot. In the meantime Tassawar Hayat, brother of the appellant, arrived at the spot and directed the latter to kill the old woman. Thereupon, the appellant gave a knife blow to the mother of the complainant which injured her on right side forehead. Thereafter, the appellant gave a fist blow on the mouth of her mother whereby her two upper teeth were broken. Then the appellant lifted the mother of the complainant many times and threw her on the ground hitting her on many parts of her body. On the alarm raised by both the ladies Muhammad Bashir, brother of the complainant, and Muhammad Bashir, her brother-in-law, were attracted to the spot and they rescued them from the accused party and the complainant and her mother were taken to the Hospital for medical examination. Her mother was admitted in the hospital. The complainant went to Police Station Chutiana on 7-7-1990 at about 10-00 a.m. and made a written complaint and also produced medical certificates. Thereupon, case was registered against the appellant and his brother Tassawar Hayat through F.I.R. No.86/90.
2. After investigation both the appellant and his brother Tassawar Hayat was sent up for trial before the Additional Sessions Judge, Toba Tek Singh who charged the appellant under section 10/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as also under sections 307 and 325, P.P.C. The learned Additional Sessions Judge also charged accused Tassawar Hayat under section 10/18 of the Hudood Ordinance read with section 109, P.P.C. and under sections 307 and 325, P.P.C. read with section 109, P.P.C. Both the accused pleaded not guilty to the charges and claimed trial.
3. After the conclusion of the trial the learned Additional Sessions Judge acquitted accused Tassawar Hayat and convicted the appellant under section 10/18 of the Hudood Ordinance and sections 307 and 452, P.P.C. by judgment dated 7-6-1993 and sentenced him as follows:--
(i) Under section 10/18 of the Hudood Ordinance the appellant was sentenced to undergo rigorous imprisonment to 5 years and to suffer 5 stripes.
(ii) Under section 452, P.P.C. the appellant was sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.5,000 or in default to further undergo rigorous imprisonment for 6 months.
(iii) Under section 307, P.P.C. the appellant was sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.5,000 or in default to further undergo rigorous imprisonment for 6 months.
The appellant has challenged his conviction and sentence by the appeal in hand.
4. Complainant Mst. Safia Kausar and her mother Mst. Zainab Bibi were both medically examined by P.W.5 Dr. Ehsanur Rashid on 6-7-1990. The doctor first examined Mst. Zainab Bibi at 11-30 a.m. and found the following injuries on her person:--
(1) An incised wound 2 c.m. x 1/2 c.m. x scalp deep on the top and right side of head 8 c.m. above from right ear. Wound was bleeding profusely.
(2) A swelling 4 c.m. x 2 c.m. on the centre of upper lip.
(3) A lacerated wound 3 c.m. x 2 c.m. on the inner side of upper lip, two upper inciser teeth and one upper left canine tooth were fractured, sockets were full of clotted blood.
(4) An abrasion 5 c.m. x t c.m. on the back of left forearm.
(5) A swelling 4 c.m. x 2 c.m. on the front and outer side of right chest.
According to the opinion of the doctor patient was unconscious, blood pressure was 60/30 and rate of pulse was 130 per minute. The doctor found injury No.3 grievous, injuries Nos.2, 4 and 5 were simple and injury No.l was KUO. The doctor further opined that the injury No.l was caused by sharp-edged weapon while the other injuries were caused by blunt weapon.
5. At 11-45 a.m. the doctor examined complainant Mst. Safia Kausar and found the following injuries on her person:--
(1) A lacerated wound 1 c.m. x 1 c.m. x muscle deep on the back of right elbow.
(2) An incised wound 1/2 c.m. x 1/4 c.m. x muscle deep on the front of left wrist.
(3) Complaint of pain on front of right chest.
According to the opinion of the doctor all the injuries were simple in nature, injury No.2 was caused by sharp-edged weapon and injuries Nos.l and 3 were caused by blunt weapon. The duration of injuries to both the females was within 3 to 6 hours.
6. Both the complainant and her mother, appearing as P.W.2 and P.W.6, directly charged the appellant for injuring both of them. P.W.3 Muhammad Bashir, brother of the complainant, also narrated the occurrence in clear detail.
7. In his deposition under section 342, Cr.P.C. the appellant made the following statement:--
"I am innocent. In fact an altercation had taken place between Muhammad Bashir P.W. brother of Mst. Safia Kausar P.W. and his brother-in-law Zahid and his Shahid 2/3 days before the alleged occurrence on the turn of water. On the alleged day of occurrence one Abdul Hameed Goldsmith of Pir Mahal had come to our village to effect compromise between them. I was just passing by the side of their house when Abdul Hameed aforesaid had come out of their house. I advised him not to interfere in their matter as they would not agree with him. On listening the same Mst. Safia Kausar came out of her house and started abusing me. I tried to stop her but she did not bother thereupon I gave slaps on her face. I was not armed with a knife nor I inflicted injuries on her person or that of her mother. No P.W. was present at the spot and I was falsely involved in this case due to aforesaid annoyance. My co-accused was not present. Malik Abdul Rehman, his wife, Sufi Abdul Sattar, Muhammad Sarwar, wife of Kamal Din, Bashir son of Abdul Rehman and their neighbours were present at that time.
Muhammad Bashir P.W. brother of the complainant was employed at Shorkot at Rafique Base as Civilian and had moved an application copy of which is mark A on record but the same was got removed from the police record in collusion with Abdul Majeed, S.I. as the same did not tally with the contents of the F.I.R. Whereupon, on the application of my brother Nazar Hayat an inquiry was conducted firstly by Raja Sikandar Hayat, D.S.P., Kamalia and secondly by Mchr Nabi Bakhsh Lak, D.S.P. Headquarters and the allegation was found to be incorrect and later on the direction of the Lahore High Court in a writ petition filed by my aforesaid brother a case was ordered to be registered against aforesaid S.I. and Muhammad Bashir P.W. and in pursuance thereof case vide F.I.R. No.5 of 1993 was registered against them. The case was first of all investigated by Sabir Ali, A.S.I., Abdul Majeed, S.I. and Abdul Khaliq, A.S.P. Gojra but they did not come to any definite conclusion. During investigation Abdul Majid S.I. initiated preventive proceedings against those persons who appeared in defence of me on the very first day in collusion with the complainant party and also threatened that whosoever appeared in favour of my defence he shall be dealt with in the same manner. Later on the investigation was conducted by Raja Sikandar Hayat, D.S.P. Kamalia and Additional A.S.P. Ch. Muhammad Amlish at Faisalabad. Both these I.O.s. found the case false and held me and my co-accused innocent and recommended for cancellation of case. At one stage the case was cancelled, but later on the direction of the Magistrate the challan was submitted."
The appellant also produced defence witnesses to prove that he had been falsely charged and on investigation the police officials had recommended cancellation of the case.
8. From the evidence of the doctor it was clearly proved that complainant Mst. Safia Kausar and her mother Mst. Zainab Bibi had been attacked and injured. Some injuries were caused by sharp-edged weapon while some injuries were caused by blunt weapon. Some injuries were grievous while some injuries were simple in nature. Both the females have directly charged the appellant Khizar Hayat for causing the aforesaid injuries to them. By his own statement recorded under section 342, Cr.P.C. the appellant has admitted his presence at the place of occurrence at the time disclosed in the report of the complainant. His defence version also showed that the offences of minor nature were committed during his scuffle with the complainant. It shall thus be seen that the occurrence, as narrated by the complainant in her report to the police station as also during the trial by herself, her mother and her brother was proved, not only by the prosecution evidence but also by defence evidence and the statement of the appellant made under section 342, Cr.P.C. Thus, it was proved beyond any doubt that the appellant had injured the complainant and her mother. The only question is as what was the motive for the appellant to commit the said offence. The allegation in this respect by the complainant is that the appellant dragged her towards the bath room and attempted to commit rape with her and also to open her trouser string. On the contrary the allegation of the appellant was that some altercation had taken place between the family members of the complainant party and he had only asked the mediator not to conciliate between them as the complainant would not agree. However, from the perusal of the evidence I have come to the conclusion that the version as disclosed by the complainant in her report and during the trial was not only true but it was also corroborated by the defence version whereby it was admitted that a scuffle of minor nature had taken place between the parties. As such I am of the confirmed opinion that the prosecution version is correct and had been correctly brought out during the trial. The only question i is whether the offence of dragging the complainant and attempting to untie her trouser string is covered by the provisions of sections 10 and 18 of the Hudood Ordinance or it is an offence covered by section 354, P.P.C. Was it an attempt to commit Zina-bil-Jabr or was it an assault to the complainant to outrage her modesty? I have considered this aspect of the matter very anxiously and I have come to the conclusion that this offence as disclosed in the report and during the trial is covered by section 354, P.P.C. In so far as the injuries on the person of the complainant and her mother are concerned, some of them were found of grief nature and inflicted by sharp-edged weapon and in my opinion they were covered by section 326, P.P.C. and not section 307, P.P.C. as death could not occur by the said injuries.
9. It shall also be seen that the learned Additional Sessions Judge has convicted and sentenced the appellant under section 452, P.P.C. whereas the appellant was not charged for the said offence. Hence his conviction and sentence for the aforesaid offence is irregular and without lawful authority.
10. The net result of the above discussion is that:--
(i) The conviction of the appellant under section 10/18 of the Hudood Ordinance is converted into one under section 354, P.P.C. and he is sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,000 or in default to further undergo rigorous imprisonment for 3 months instead of his conviction and sentence under section 10/18 of the Hudood Ordinance.
(ii) The conviction and sentence of the appellant under section 307, P.P.C. is converted into one under section 326, P.P.C. on two counts and the sentence awarded to him by the learned Additional Sessions Judge is maintained.
(iii) The conviction and sentence of the appellant under section 452, P.P.C. is set aside and he is acquitted of that offence.
11. All the substantive sentences of imprisonment shall run concurrently. The appellant shall also be entitled to the benefit under section 382-B, Cr.P.C. The appeal is partly accepted in the aforesaid terms.
N.H.Q./848/FSC Order accordingly.