' NAZIR AHMAD BHATTI, J.--- Deceased Mst. Abida daughter of Ghulam Rasool complainant, aged about 4/5 years, went out of her house at about 14-00 hours on 8-12-1991 and did not return back whereupon the complainant started searching her. In the meantime he was met by Arshad Aziz who informed him that a short while earlier he had seen Mst. Abida being taken by Muhammad Ali appellant herein on a cycle towards the Ara Morr Road. Thereupon the complainant accompanied by the said Arshad Aziz and Muhammad Shafi went towards the said road. In the way at about 16- 00 hours they were also met by Altaf-ur-Rehman Tariq Lambardar. When they reached near the said road they heard the cries of Mst. Abida from a cotton field belonging to the said Altaf-ur- Rehman Tariq. They rushed to the spot and saw the appellant Muhammad Ali pressing the neck of the girl with his two hands. On seeing the complainant party the appellant threw the girl in the nearby watercourse and ran away. The complainant party brought out the girl from the watercourse who expired immediately thereafter. The complainant went to Police Station, Shahkot, District Sahiwal and recorded F.I.R. No,238/91 on the same day at about 7-30 p.m.
2. Deceased Mst. Abida was medically examined by P.W.3 Dr. Muhammad Maqbool Iqbal on 9-12- 1991 at 11-00 a.m., when he conducted post-mortem examination of the dead body. The skin of hands and feet of the deceased was wrinkled, hands were clenched, mouth and eyes were half opened and water dribbled from the mouth, rigor mortis was present all over the body, post- mortem staining was present on the back. The doctor also found the following injuries on the dead body:--
(1) A bluish bruise 2 c.m. x 1.5 c.m. With swelling 4.5 c.m. x 4 c.m. Around it on the middle of forehead.
(2) Redness on the right side of face.
(3) Reddish bruise 4.5 c.m. x 2 c.m. Just below the right mandible on its middle.
(4) Reddish bruise 3 c.m. x 2 c.m. On the left mandible on its middle.
(5) Abraded area 6 c.m. x 2 c.m. On the left side of the neck.
(6) Abrasion 2 c.m. x 1.5 c.m. Below the left elbow.
(7) Reddish bruise 7 c.m. x 3 c.m. With abrasion 4 c.m. x 1.5 c.m. On the left lower abdomen.
(8) Reddish bruise 7 c.m. x 6 c.m. With abrasion 2 c.m. x 1 c.m. On the right lower abdomen.
(9) Redness on whole upper half of right thigh.
(10) Swelling 4 c.m. x 3 c.m. On the right side of parienal region."
' The doctor also found membranes of the brain, pleura, larynx, trachea, right and left lungs, peritoneum, mouth, pharynx, oesophagus and diaphram, liver and kidney congested. Stomach was full of water. According to the opinion of the doctor injury No, 5 was fatal and grievous and was caused by blunt weapon. Rest of the injuries were simple in nature and caused by blunt weapon. All the injuries were ante-mortem in nature. According to the opinion of the doctor death occurred due to asphyxia i,e. Throttling and injury No,5 was sufficient to cause death in the ordinary course of nature. The doctor also took three vaginal swabs for chemical analysis and the report of the latter showed the presence of semen on the swabs. The doctor further stated that the duration between injuries and death was within about five minutes and between death and post-mortem examination was about 18-20 houRs, In cross-examination the doctor admitted that death by asphyxia may be the result of smothering, throttling or drowning and it was a case of throttling. In his view the hand was a kind of blunt weapon and the injuries on the dead body may be the result of hand beating or by stick. The doctor admitted that he had not examined the labia minora, labia majora, uterus, vagina or hymen of the dead body. The doctor also stated that he could not say whether the water found in the stomach of the deceased had gone inside the body before or after death.
3. The appellant was arrested on 12-12-1991 and after the investigation he was sent up for trial before the Additional Sessions Judge, Sahiwal who charged him under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979, and section 302, P.P.C. To which the appellant pleaded not guilty and claimed trial. Besides the other testimony of formal witnesses, three persons, namely P.W.8 Altaf-ur-Rehman Tariq, P.W.9 Arshad Aziz and P.W.10 Ghulam Rasool complainant, were examined as alleged eye-witnesses of the occurrence. After the conclusion of the trial the learned Additional Sessions Judge convicted the appellant under sections 11 and 10(3) of Hudood Ordinance No,VII of 1979 as also under section 302, P.P.C. For the offence under section 11 of Hudood Ordinance No,VII of 1979 the appellant was sentenced to imprisonment for life, to pay a fine of Rs,5,000 or in default to further undergo rigorous imprisonment for one year and to suffer 20 stripes. For the offence under section 10(3) of Hudood Ordinance No, VII of 1979 the appellant was sentenced to undergo rigorous imprisonment for 15 years and to suffer 20 stripes and for the offence under section 302, P.P.C. The appellant was sentenced to death and to pay a fine of Rs,5,000 or in default to further undergo rigorous imprisonment for one year. The learned Additional Sessions Judge also ordered that half of the fine, if realised, was to be paid to the legal heirs of the deceased Mst. Abida. The appellant has challenged his conviction and sentence by the appeal in hand sent from jail. The learned trial Judge also forwarded a Murder Reference No,4/I of 1992.
Judgment in the appeal in hand will also dispose of the murder reference.
4. The appellant was charged for three offences, for abduction of Mst. Abida, committing Zina-bil- Jabr with her and then committing her murder by strangulation. We shall now see what evidence had been produced for the proof of each of the offences. In so far as the offence of abduction of Mst. Abida is concerned, the F.I.R. Discloses that P.W.9 Arshad Aziz had seen the girl being taken by the appellant on a bicycle towards Ara Morr and on inquiry he so informed the complainant. The said Arshad Aziz, appearing as P.W.9, confirmed the aforesaid circumstance. However, when he was examined under section 161, Cr.P.C. He did not disclose that the appellant was taking Mst.
Abida on a bicycle. Moreover, bicycle was also not found from the place of occurrence. Although this witness had deposed during the trial that he had seen the appellant taking away Mst. Abida on a bicycle but his earlier statement before the police did not- disclose the circumstances in definite and clear words. He appears to have made a casual statement to the Investigating. Officer under section 161, Cr.P.C. His words did not give the impression that Mst. Abida was being taken away by the appellant on a bicycle. Moreover, this witness had not deposed as to for what purpose he was present at Ara Morr. At the best he appeared to be a chance witness. Except P.W.9 there is no other evidence on the record to show if Mst. Abida deceased was being taken away by the appellant. The testimony of P.W.9 becomes further doubtful for the reasons which we shall disclose in a later part of this judgment. After a careful analysis of the testimony of this witness we have come to the conclusion that the State could not prove the offence of abduction of Mst. Abida by the appellant.
5. The next point for consideration is whether Mst. Abida was subjected to Zina-bil-Jabr or not. The F.I.R. Does not disclose this offence against the appellant. The doctor admitted that he had not examined the private parts of Mst. Abida to find out if she was subjected to sexual intercourse or not. The doctor did not examine labia minora and labia majora of the deceased nor her vagina to find out if the hymen was torn or whether the vagina 'was lax or tight. The three alleged eye- witnesses of the occurrence had deposed that when they saw Mst. Abida and the appellant for the first time, the latter was committing Zina with the former. But there is no expert opinion on the record to show that Mst. Abida was subjected to sexual intercourse. Moreover the F.I.R. Does not disclose this offence against the appellant. This seems to be an afterthought with the complainant and the alleged eye-witnesses of the occurrence. The first available version of the alleged offence did not accuse the appellant of the rape of Mst. Abida. Moreover there was no actual proof of penetration, The report of Chemical Analyst cannot be taken as a fool proof testimony of sexual intercourse without any proof of actual penetration. Since the dead body was not examined to find out that penetration had actually taken place the presence of semen on the swabs would prove nothing. Moreover, the swa bs were sent for chemical analysis after 11/12 days. This inordinate delay would also make the presence of semen on the swabs very doubt full. The State had also failed to bring any evidence worth the name to prove that Mst. Abida was subjected to sexual intercourse.
6. The third allegation against the appellant was that on seeing the complainant party he first tried to strangulate Mst. Abida and then threw her in the watercourse and then ran away. According to the opinion of the doctor injury No,5 was fatal and it was the result of throttling. In cross- examination the doctor also admitted that injury No,5 could be caused by throttling, smothering, or drowning. The minute analysis of injury No,5 would reveal that this injury was present on the left side of the neck and it measured 6 c.m. x 2 c.m. Which would show that some pressure was applied on the left side of the neck of Mst. Abida. There was neither any mark of pressure nor of injury on the front side of neck. This would show that if any pressure was applied it was not on the front side of the neck but towards the left. We have considered this aspect of the matter very seriously and we have come to the conclusion that the non-presence of any marks of violation or of pressing on the front side of neck would show that there was no effort on the part of the appellant to press the front side of neck. It is to be noted that death could occur by strangulation only if pressure was applied on the front side of the neck whereby the girl could not breathe. Moreover, it could not be definitely gathered from the testimony of the doctor that the injury on the left side of the neck was a result of pressure applied by the appellant by his hands. Normally if pressure is applied on the neck by hands, it must show signs on the front side of the neck and both right and left sides whereas this injury was found only on the left side of the neck. We fail to comprehend as how pressure only on the left side of the neck resulted in suffocation. We are of the opinion that death due to suffocation could only occur when pressure was applied to the neck from the front. We have also taken into consideration the opinion of the doctor expressed in cross-examination that death could have occurred by throttling, smothering or drowning. We have come to the conclusion that death was not caused as a result of strangulating. It could be the result of drowning. In this connection we had the benefit of consulting the book "Medical Jurisprudence and Toxicology" (Pakistan Edition) by Modi. After post-mortem of the dead body the doctor had found that eyes and mouth of Mst. Abida were half opened and stomach was full of water and some water was coming out from the mouth.
Modi has stated in the aforesaid book at page 173 that 'drowning is a form of death in which the atmospheric air is prevented from entering the lungs by submersion of the body in water or other fluid medium'. The ocular testimony would also show that on seeing the complainant party the appellant had thrown Mst. Abida in the watercourse and the witnesses had recovered her therefrom. The presence of sufficient water in the stomach would also prove that Mst. Abida had inhaled a lot of wafer. At page 177 of the same book, Modi has further stated that "a fine white lathery froth or foam, rare tinged with blood, is seen at the mouth and nostrils and if not visible, it may appear on compression of the chest and this is regarded as a diagnostic sign of drowning".
The doctor had stated that water was also coming out of the mouth of the dead body when he examined it. It was also stated by the doctor that all the vital parts of the body of Mst. Abida were found congested. At page 179 of his book Mr. Modi has again mentioned that "the mucous of membrane of the larynx trachea and bronchial tubes are usually congested when death takes place due to drowning". This opinion is confirmed by the post-mortem report. The doctor had also found many injuries on the dead body. According to him injury No,5 was fatal and grievous and was caused by blunt weapon and rest of the injuries were simple in nature and caused by blunt weapon. On the contrary Mr. Modi was of the opinion (at page 130 of the said Book) that 'post- mortem lividity or staining has some times been mistaken for bruises caused by violence during life, and consequently innocent persons have been prosecuted for murder, but acquitted afterwards, when the charge could not be proved'. We have also very seriously considered this aspect of the matter and we have come to the conclusion that the injuries which were noted by the doctor on the dead body of Mst. Abida were not a result of any force applied by the appellant but they were actually post-mortem staining. We are, therefore, of the opinion that the injuries of the dead body were actually post-mortem staining and not injuries caused by the appellant. There is yet another aspect of the matter which would also help in arriving at the conclusion that the death of Mst. Abida occurred due to drowning. The skin of Mst. Abida was found wrinkled. Dr. S. Siddiq Hussain in his book 'Medical Jurisprudence and Toxicology' (16th Edition, page 150) notes that 'wrinkles appear on the dead body when it has remained in water for 10/12 or more hours'. The same is the opinion of Mr. Modi at page 178 of his book. We are, therefore, of the opinion that the dead body of Mst. Abida had remained in the water for a very long time before it was discovered.
The doctor could not definitely express as whether water had been inhaled by Mst. Abida before or after her death. We feel that the doctor was not sufficiently experienced because no body can have respiration after death and inhaling of air or water only takes place when one is alive.
7. There is yet another aspect of the matter which has made the charge of murder against the appellant more doubtful. All the three eye-witnesses had stated that they-had immediately picked up Mst. Abida from the watercourse and at that time she was alive and thereafter she breathed her last. Although the ocular testimony would appear to be doubtful on this charge as well but if it is taken into consideration it will show that the girl was alive when she was brought out from the watercourse. As such the allegation that she died of strangulation stands disproved. We have also taken into consideration the fact that wrinkles had appeared on the dead body which showed that it had remained immersed in the water for a sufficient long time whereby wrinkles had started appearing on it. Men may lie but circumstance do not. The most important circumstance of the occurrence which came to light is the presence of water in the stomach of Mst. Abida which proved that she had died of drowning and not as a result of any violence on the part of the appellant. The presence of wrinkles on the skin also showed that the dead body had remained in the water for more than 10-12 houRs, The fact that eyes and mouth of the deceased were open and water was coming out from the mouth and vital organs were also found congested showed that there could be no other cause of death except drowning. As such the ocular testimony is belied by the circumstances. Even if any reliance is placed on the ocular testimony it would still show that Mst.
Abida did not die as a result of alleged strangulation of her neck by the appellant because when she was brought out from the water she was still alive, and no actual harm or damage was caused to Mst. Abida by any action of the appellant.
8. The ocular testimony would suggest that when the apellant saw the complainant party running towards him he first tried to throttle the neck of Mst. Abida with his hands and then he threw her in the watercourse and ran away. This appears to be improbable. The appellant was only a youngster and his age was about 14 years when the occurrence took place. It is not expected of a boy of 14 years that he would try to strangulate the victim as he would not be so dare-devil and sensible at that time. The first impulse of a boy of 14 years of age in such a situation would be to run away and to make good his escape. It is also very astonishing that a boy of such minor age could not be captured by three persons who were following him. The evidence concerning the offence of murder was of such a doubtful character that the third offence also could not be proved against the appellant. It was an unwitnessed occurrence. The presence of wrinkles showed that the dead body of Mst. Abida had remained in water for a very long time before it was discovered. The allegation that she was seen alive with the appellant between 14-00 to 16-00 hours was disproved. She had died of drowning long before the time she was allegedly seen by the eyewitnesses in the company of the appellant.
9. The net result of the above discussion is that the State had failed to prove any of the three charges against the appellant. There was no basis for conviction of the appellant for any of the offences. He is, therefore, acquitted of the offences for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case.
The murder reference is not confirmed.