GULBAZ KHAN, J.-Falak Sher filed this appeal against the judgment -of learned Additional Sessions Judge, Kasur, dated 1-4-1979, whereby he was convicted under sections 302, 376 and 404, P. P. C.
He was sentenced to death and a fine of Rs. 5,000 or in default in payment of fine to undergo rigorous imprisonment for six months, under section 302, P. P. C. He was sentenced to imprisonment for life under section 376, P. P. C. And rigorous imprisonment for three years and a fine of Rs. 2,000 or in default in payment of fine to undergo rigorous imprisonment for three months under section 404, P. P. C. It was ordered that the sentence of imprisonment for life shall be effective, in case, the sentence of death was not confirmed, and to run concurrently if the sentence of death was reduced to any term of imprison--ment. It wag further ordered that out of the fine, if recovered, Rs.
5,000 shall be paid to the heirs of the deceased.
2. Manzoor Ahmad complainant (P. W.10) made statement Exh. P. D. Before Muhammad Zaman, A.
S. I., Police Station Sarai Mughal, on 28-8-1975, at about 9-00 a. m. In front of village Kacha Pakka.
On the basis of this statement, formal F. I. R. Exb. P. D. 1 was recorded, at 9-50 a. m. The complainant disclosed in the F. I. R. That he and his relatives bad put up construction at a distance of one square from village Halla and started residing there; that on 27-8-1975, in the morning, he alongwith other adult members of the family left for village Megha for condolence and returned to their house in the evening; that he found Mst. Munawwar Bibi deceased (aged 11/12 years) missing and on enquiry, her brother Sher Ali (P. W. 8) informed him that the deceased had gone back to the house after supplying him meals, at about 9-00 a. m.; that he searched for the deceased, but did not get any clue; that he again searched for the deceased, on 28-8-1975 and found some dragging marks at a distance of three killas, from his house; that he sent for Noora tracker, who led the track, as a result of which, the dead body of Mst. Munawwar Bibi was recovered from big sugar cane field; that tongue of the deceased was protruding out and she was bleeding from mouth and nostrils and also had violence marks on the neck and was bleeding from vagina; that the golden car-rings of the deceased were missing.
3. Muhammad Zaman, A. S. I., on reaching the spot, prepared injury statement and inquest report of the deceased and sent the dead body for post-mortem examination. He arrested Falak Sher appellant, on 30-8-1975, who was wearing blood-stained chadar. It was removed from his person and sealed into a parcel. The memo. Was attested by Mehr Hussain (P. W. 2) and Noor Hussain (P.
W. 4). On 1-9-1975, the appellant produced two golden ear-rings of the deceased from his house, which were taken into posses--sion. The memo. Was attested by Muhammad Hussain (P. W. 3) and Wali Muhammad (not produced). According to the report of Chemical Examiner Exh. P. K., chadar of the appellant was stained with semen. The report of Chemical Examiner Exh. P. L. Proved that the two vaginal swa bs were stained with semen.
4. Dr. Muhammad Ashraf conducted post-mortem examination on the dead body of Mst.
Munawwar Bibi on 29-8-1975, at 9-00 a. m. The dead body was in advance stage of putrefaction.
Blisters had appeared in the upper part of the body including chest, arms and head. Hair from the head were peeling off easily. Mouth was open and tongue was between the teeth with bleeding discharge from mouth and nose. Face was bluish and nails of the hands were also bluish. In the lower part of the body, blisters had not appeared. There was bloody vaginal discharge. Hymen was torn. Eyes were bulging and congested. Maggots were present on the body around the neck; face and head. The deceased had the following injuries on her person :-
(i) Abrasion 3" x 1 r in front and left side of neck in the lower part under surface of abrasion was ecchymosed.
(ii) Abrasion 3--" x --" left side of neck one and half inch above injury No. 1. There was clotted blood on the effected side in subcutaneous plan. Blood vessels of neck were engorged with dark coloured blood. Subcutaneous tissue and muscles in front of chest on and around the sternum in the upper part were ecchymosed and clotted blood also present.
In the opinion of the doctor, the death was due to asphyxia caused by strangulation and pressure on the chest. Post-mortem examination was conducted about two days after her death. . Two vaginal swa bs were taken and sent to the police.
5. Dr. Muhammad Rafi examined Falak Sher, on 30-8-1975. He did not notice any abnormality in the appellant. He opined that the appellant was physically fit to perform sexual act.
6. Manaoor Ahmad complainant (P. W. 10) supported the F. I. R. Nawab (P. W. 9) stated that the appellant called Mst. Munawwar Bibi for help in lifting the fodder and she went towards him. Manak (P W. 11) stated that the appellant confessed to have committed rape upon Mst. Munaw--war Bibi deceased and to have murdered her after rape, by strangulation. Mehr Hussain (P. W. 2) and Noor Hussain (P. W. 4) supported the recovery of chadar from the person of the appellant. Muhammad Hussain (P. W. 3) supported the recovery of two golden ear-rings of the deceased at the instance of the appellant. Sher Ali (P. W. 8) stated that the deceased had brought meals for him and then left for the house. Muhammad Zaman, A. S. I. Supported the investigation. Rest were the formal witnesses.
7. Falak Sher appellant denied the prosecution allegations. He attributed the case to enmity with Manak, Mehr Hussain and other witnesses. He did not lead any evidence in defence.
8. The learned counsel for the appellant contended that the murder of Mst. Munawwar Bibi had not been committed, on 27-8-1975, as stated by the witnesses, but the deceased was done to death many days prior to 27-8-1975; that after the recovery of the dead body, a false story was invented; that neither Nawab P. W. Had seen the deceased going towards the appellant at the call of the latter, nor the appellant had made any confession before Manak P. W.; that the recoveries of chadar of the appellant and the two golden ear-rings were fake and the recovery witnesses were closely related to the deceased and thus no reliance could be placed on their statements. The learned counsel for the appellant submitted that from the condition of the dead body, it was quite evident that the murder had been committed fourteen to twenty days before the post-mortem examination. He drew our attention to the table given at page 127 of the Medical Jurisprudence and Toxicology by N. J. Modi (21st Edition).
The most important point for determination in the case is as to how long before the recovery of the dead body, Mst. Munawwar Bibi was done to death. The first external evidence of putrefaction in a body exposed to the air is the form of greenish discoloration of the abdominal skin over the iliac fossae and internally seen on the under surface of the liver, the contents of the bowel in this position are fluid and contain numerous organisms. Discoloration is due to the conversion of haemoglobin of the blood pigment into sulphamethaemoglobin by the action of sulphuretted hydrogen diffusing from the intestine into the tissues, and occurs from one to three days after death in winter, and six to twelve hours in summer. From twelve to eighteen hours after death, in summer, the green coloration spreads over the entire abdomen and external genitals. Green patches also make their appearance successively on the chest, neck, face, arms and legs. These patches gradually deepen in colour and later become purple and dark blue. Side by side with the appearance of the greenish patch on the abdomen, the body begins to emit a nauseating and unpleasant smell owing to gradual development of the gases of decomposition, some of which are sulphuretted hydrogen, marsh gas, carbon dioxide, ammonia and sulphuretted hydrogen. From twelve to eighteen hours after death, in summer, these gases collect in the intestine consequently abdomen swells up. From eighteen to thirty-six or forty-eight hours after death, the gases collect in the tissues, cavities and hollow viscera under considerable pressure with the result that the features become bloated and distorted and the eyes are forced out of their sockets and the tongue is protruded between the teeth and the lips become swollen and everted. A frothy, reddish fluid or mucus is forced from the mouth or the nostrils. The gases form blisters under the skin containing a reddish coloured fluid on the various parts of the body. When these burst, the cuticle being softened peels off easily. Flies are attracted to the body and they lay eggs. The eggs hatch into maggots. The maggots crawl into the interior of the body and help in destroying soft tissues.
The maggots become pupae in four or five days and the pupae develop into au adult fly in the course of three to four days. From forty-eight to seventy-two hours, the rectum and uterus protrude. The gravid uterus may expel its contents, and prolapse. The hair become loose, and is easily pulled out. The nails are also loose and are easily detached.
Under table given at page 127 of the Medical Jurisprudence and Toxi--cology, against item No. 4, it is given that the body becomes greenish brown, blisters form all over the body, skin peels off, features become unrecognisable, scrotum distended, body is swollen up, maggots appear on the body, nails and hair loosing up and easily detached, if the duration is between fourteen to twenty days after death. In the present case also, the body of Mst. Munawwar Bibi was in advanced stage of putrefaction. The blisters had appeared. The tongue was between the teeth. Blood discharge was coming out from mouth and nose. Face was bluish. Nails of the hands were also bluish. There was bloody vaginal discharge. Maggots were present on the body around the neck, face and head.
Intestines were distended with gases and facel matters. According to the prosecution version, the death had occurred, on 27-8-1975, at about 9-00 a. m. And the dead body was recovered, on 28- 8-1975, in the morning time. Post-mortem examination was conducted, on 29-8-1975, at 9-OJ a. m.
Keeping in view the condition of the dead body, we are of the view that the death had not occurred on 27-8-1975, as stated by the prosecution witnesses. The doctor appears to have been misled in giving the duration of about two days by the inquest report, wherein, date and time of death had been given as 28-8-1975 at 8-00 a. m. In the post-mortem report also, he had mentioned the same date and time under column "Date and hour of death". We are not required to discuss the evidence of Nawab and Manak P. Ws., at length. Suffice it to mention that their statement stood belied by the Medical Jurisprudence, because the death had not occurred on 27-8-1975 and it had taken place some days earlier.
10. The recovery witnesses, namely, Mehr Hussain, Noor Hussain and Muhammad Hussain were closely related to the deceased. Their relationship stood proved on the record. Noor Hussain P. W. Is a brother of the complainant. Mehr Hussain P. W. Is first cousin of the complainant, while Muhammad Hussain P. W. Is mother's brother's son of Mehr Hussain P. W. No disinterested witness attested the recovery memos. Of the chadar of the appellant and the two golden ear-rings. The said two recoveries could not advance the case of the prosecution, as there is no other incriminat- -ing evidence worth the name. It appears that after the recovery of the dead body, the prosecution version was cooked up and evidence referred to above was collected. Rape had been committed with the deceased and then she was strangulated. But the question is as to who was the culprit and what` evidence had been produced to prove the case. The prosecution failed to prove the case against the appellant beyond doubt. We would not be wrong to say that it was a case of no evidence.
11. After having considered the material, we accept this appeal, set aside the impugned judgment and acquit the appellant of the charges. He shall be set free forthwith if not required in any other case.
The sentence death of Falak Sher appellant is NOT confirmed.