Appellant Noor Akbar a 45 years old Zamindar of Buch Kasroabad. Tehsil and District Multan, stands convicted under sections 376 and 302, P. P. C. And sentenced to 10 years' R. I. And a fine of Rs. 500 on the first count and to life imprisonment and a fine of Rs. 1,000 plus Rs. 3,000 for payment as compensation, on the second.
2. The facts that led to the conviction of the appellant for rape and murder are as follows On 6January, 1975 a pseudonymous application was received in the office of Superintendent of Police, Multan, seeking justice and neces--sary action from the Police, in which it was disclosed that two days earlier a girl aged 10/11 years, Kulsoom Bibi by name, daughter of Muhammad Musa had been raped and killed by Moor Akbar, son of Noor Muhammad Bucha resident of Buch Kasroabad in a state of intoxication. The application was marked to the S. H. O. Police station Alpa for enquiry. Thus the Police started investigation in this case.
2. Noor Akbar mentioned in the above-hated application which is Exh. P. C. Is the appellant before this Court. In the course of investi--gation it transpired that the girl whose rape and murder were reported to the Police was Mst. Nasreen daughter of Muhammad Musa, P. W. And not his daughter Mst. Kulsoom Bibi. However, the dead body of Mst. Nasreen deceased was exhumed on 14January, 1975 and examined by a medical officer. The swabs taken from the vagina of the girl were analysed by a chemical examiner. As a result of the chemical analysis and the post-mortem examination it was found positively that the gill had been raped and her death occurred not due to the sex act but on account of-cardio-respiratory failure, which could be the result of either smothering or dread and fright.th th
3. The appellant was arrested on 15th January; 1975 and was challaned after the completion of the investigation.
4. According to the prosecution, Muhammad Musa P. W. The father of the deceased, had been an employee of Haji Noor Muhammad Butcha, the father of the appellant, for a period of 10 to 12 years right upto the time the unfortunate incident in question took place. Two of the said Muhammad Musa's daughters, namely, Nasreen deceased and her younger sister Perveen were employed in the house of the appellant as maid-servants and used to live there day and night. On 1st January, 1975, early in the morning the said Perveen came to the house of her father in Kotla Sadat crying and informed her father Muhammad Musa P. W. That her sister Nasreen deceased had been subjected at night to rape by the appellant as a result of which she died and that the dead body of Nasreen deceased was lying on a cot in the house of the appellant. On receipt of this information the parents of the girl went to the appellant's house in Butch Kasroabad alongwith their daughter Mst. Parveen. They found the dead body of their daughter Nasreen deceased lying on a cot as reported and on closer examina--tion they found the Shalwar of the girl besmeared with blood, semen and faeces. When they questioned the appellant, he confessed that he had raped the girl as a consequence of which she died but sought their pardon and made them swear to secrecy on the Holy Qur'an, about the incident. At the same time he threatened them that if they disclosed this incident to anyone they would be killed. The appellant being a very influential and cruel person Muhammad Musa P. V and his were decided to keep their mouths shut and told the appellant that they would obey him. The appellant then removed the Shalwar of the deceased which had the tell- tale stains on it before handing over the dead body to the parents. The parents took the dead body back to their village and buried it in as normal a fashion as possible as though nothing untoward had happened. Subsequently, however, when the police got the clue of the crime from an unknown source, (it seems the Police could not trace the author of the application, Exh. P. C.), they got in touch, besides others, with Muhammad Musa P. W. Who then blurted out the entire incident to them.
5. At the trial, the prosecution examined Muhammad Musa, the father of deceased, and Mst.
Perveen, the younger sister of the deceased, as witnesses but for the reasons best known to them chose not to put Mst. Fazlan Bibi, the mother of the deceased, in the witness-box. The other witnesses examined by the prosecution are mostly of a formal nature whose testimony is not directly under challenge from the appellant's side except, however, the medical evidence.
6. The appellant denied the allegations altogether and explained that this case bad been brought against him at the instance of the Gardezi Syeds of the Illaqa with whom he not only had political differences but also a dispute over the right of passage through their land. He also examined two witnesses in defence to prove the enmity. It so happens that the Medical Officer who examined the dead body of the deceased is also a Gardezi Syed. So the defence sought to can a doubt on the veracity of the Medical Officer also on the basis of his family origin.
7. Starting with the expert evidence on record it should be noted that rape has been proved in this case not merely by the evidence of the medical officer but also by the report of the Chemical Examiner. Therefore, I have no reason to doubt that the girl had been rapes. Further the Medical Officer has clearly stated that the death had noel resulted from the sex act as the body of the deceased was developed enough to with-stand the sex act. This part of the medical officer's testimony clearly indicates that he was not out to get the appellant somehow or the other. Even otherwise, the kind of the differences alleged between the members of the Gardezi brotherhood and the Butcha family were not, in any case, of such a nature that a person belonging to the medical profession, not directly involved in the dispute, would make false report in a case where the life and honour of an innocent minor girl was involved. I have therefore, no reason to disbelieve the Medical Officer. From his assessm ent it follows that either the girl was somothered in the course of rape deliberately or unconsciously or her cardio-respiratory system-failed on account of dread and fright. So the only question that remains to be determined now is whether it was the appellant who committed the rape as a result of which the deceased died. The only evidence on record which has a bearing on this question is the testimony of Muhammad Musa and Mst. Perveen P. Ws.
Mst. Perveen P. W. Was hardly 10 years of age when examined in the trial Court. No questions were put to her to judge her competence to depose as a witness in a criminal case and she finally admitted that she had been tutored before appearing in the witness-box. It is, therefore, clear that her testimony has been rightly rejected altogether by the trial Court. We are thus left with only the statement of Muhammad Musa P. W., the father of the deceased. It is true that he is not an eye- witness to the crime. He is a witness only to an extra judicial confession allegedly made by the appellant. Learned counsel for the appellant have vehemently contended that the testimony of this witness is not worthy of credence because of certain discrepancies between his statement before the police and that before the trial Court. In addition, they assert that he bad admittedly concealed the crime to begin with and agreed to depose against the appellant only after he was set up for the purpose and given financial support by the Gardezi Syeds of the area. There is no denying the fact that the crime was not reported to the police by Muhammad Musa P. W. It may also be true, though cannot be said to have been proved as a fact, that the Gardezis lent him moral and financial support to prosecute this case. But is does not appeal to reason or common sense that all this could go to prove that Muhammad Musa P. W. Agreed to swallow the humiliation resulting from the publicity of his daughter's rape and suffer the mortifica--tion of the exhumation and autopsy of the dead body of his innocent s daughter and thus dishonour the departed soul by bringing a false charge against a respectable person of the locality who also happens to be the son of his long time employer. On the other hand, the explanation offered by Muhammad Musa P, W, in respect of his failure to report the incident to the authorities is quite plausible. It is also understandable that having come to know that a member of the rival Butcha biradri had committed a crime, the Gardezis considered it a good opportunity to get even with the Butchas by not letting him get away with the crime despite his best efforts to conceal it. Therefore, even if the prosecution of this case by Muhammad Musa P. W. Had been financed by the Gardezis, it would not have detracted from the value of Muhammad Musa's testimony. The support of the Gardezis shay have only helped the poor man muster courage to speak out the truth against the son of his erstwhile employer. It is not uncommon for the influential persons in our country to- gag the mouth of the less privileged by threats and inducement to conceal their own crimes. It is true that there are indications on the record that the appellant was in a state of drunkenness when he committed the crime in question which fact appears to have been deliberately or unwittingly omitted by Muhammad Musa P. W. In his statement before the trial Court. In the circumstances of the case this is a minor discrepancy of no consequence Even it the appellant was drunk it cannot given him the benefit of diminished responsibility under the law of the land in view of the mores of our society. Certain other discrepancies in the statement of Muhammad Musa P. W. Relating to the details as to how Mst.
Perveen P. W. Had learnt of the incident and reported back to her parents, have been pointed out by the appellant's counsel which in may opinion are not very material.
8 In short I find the circumstances of this case and the prosecution evidence brought on record to be inconsistent with the innocence of the appellant.
9. Therefore, the conviction and sentence recorded by the trial Court under section 376, P. P. C. Are unexceptionable which are hereby maintained. However, as to the conviction under section 302, P.
P. C. I am of the view that it is not maintainable inasmuch as it is not possible to hold with any degree of certainty in this case that the appellant smothered Nasreen deceased to death after committing rape. In view of the medical evidence on the record, the possibility of the girl having died as a result of dread and fright cannot be ruled out. It is true that p according to Muhammad Moosa P. W. The appellant had strangulated her to death. But since the medical evidence has failed to lend unequivocal support to this allegation, it will not be in consonance with the principles of safe administration of justice to hold the appellant guilty of murder Nor can it be inferred that he had the intention of causing such bodily, injury as was likely to cause death, I am, therefore, of the view that the appellant can be convicted only under section 304, Part II of the Pakistan Penal Code although he deserves, in the circumstances of the case, the maximum penalty prescribed thereunder.
10 Accordingly I convert the conviction recorded by the trial Court under section 302, P. P. C. To one under section 304-II, P. P. C. And reduce the sentence of life imprisonment on this count to rigorous imprisonment for a period of 10 years maintaining the order of fine and compensation made by the learned trial Court The substantive sentences of imprisonment shall run concurrently.
11. With this modification in the conviction and sentence, I dismiss the appeal.