1975 PLP 394 (SCMR)

Sh. Ijaz All, Advocate‑on‑Record for the State. Date of hearing : 23rd December 1974. MUHAMMAD AFZAL CHEHMA, J.‑'The conviction of Makha appellant not offences under section 376/302, P. N. C. recorded by the Sessions Judge, Sahiwal, with an award of a sentence of 10 years' R. I. for rape and sentence of death for murder was upheld in appeal/reference by the Lahore High Court, vide judgment dated 23‑5‑1973. Since there was no eye‑witness in the case and conviction was based purely on circumstantial evidence, leave was granted by this Court to consider the effect of the conspicuous absence of any marks of injuries on the person of the deceased or that of the petitioner which were normally considered to be the necessary concomitants of rape and strangulation to death, It was, therefore, to be considered as to whether maintenance of conviction in the circumstances would be consistent with the safe dispensation of criminal justice.

2. The facts of the prosecution case as found to be established were that Killa No. 10 of square No. 25 of Chak No. 285, E. B., Police Station. Ahmadyar, District Sahiwal, belonged to one Sadiq, a cousin (khalazad) of the appellant. Chari crop of man's height was standing in that land. Sadiq had permitted Hakim Ali complainant father of Mst. Razia the unfortunate victim, a 10/11 years old girl to cut chari fodder against adjust ment of a loan advanced to him by Hakim Ali. On 9‑8‑1969, at about noon‑time, Mst. Razia went to cut fodder from this field and did not return till evening. Her father Hakim Ali who had gone to an adjoining village Chak No. 287/E. B. was informed on his return by his wife that the girl was missing. Hakim Ali set out in search of his daughter and contacted Imam Din (P. W. 9) whose tubewell is two squares ahead of square No. 25 which falls on the way. On inquiry, Imam Din informed him that at about noon‑time he had seen his daughter cutting fodder in Kiila No. 10 of square No. 25 while Makha appellant was standing near her. Hakim Ali then repaired to the house of the appellant but he was not available. Having in vain searched for the girl during the night, Hakim Ali went to Police Station; Ahmadyar, on the following morning and lodged a report at 10 a.m. with Sultan Ahmad, S. H. O., expressing a strong suspicion against the appellant on tile basis of reformation received from Imam Din (P. W.). A case was accordingly registered under section 364, P. P. C. The Sub‑Inspector proceeded to the village, 8 miles away reaching there at about 12‑30 noon. lie inspected the chari field from which fodder had been freshly cut and then returned to the village and deputed two foot‑constables in search of the appellant. At about 5‑30 p.m , two respectable of the area, namely, Ghulam Nabi (P. W. 10) and Fazal Muhammad (P. W. 11) who were respectively member and Chairman of the local Union Council produced the petitioner before the Sub‑Inspector in the village. They informed him that the petitioner had voluntarily appeared before them in Chak No. 291‑E. B. at the dera of Ghulam Nabi (P. W.) where Fazal Ahmad (P. W.), Chairman, was also present after having presided over the meeting of the Union Council and in his presence the appellant made a clean breast of his guilt and furnished details of hour he followed the girl to the chari field being over powered by sexual urge committed rape on her and then in order to avoid detection strangulated her to death with her dopatta. He then sought their good offices to save him from the torture of the police. The Sub‑Inspector arrested the appellant. The shirt and chadar on his person which appeared to be stained with semen were got removed and taken into possession, vide mesmo. Exh. P. A. attested by Gulab, Chowkidar (P. W. 5) and Din Muhammad, lambardar (P. W. 6). The appellant then volunteered to lead to the discovery of the dead body of Mst. Razia and led the party to the sugarcane field in Killa No. 1 of square No. 25 adjoining the chard crop in Killa No.

10. He took them to a place in the densely grown sugar‑care field about 9 karams from its west and where the dead body of Mst. Razia deceased was lying. She was gagged, her dopazta and paranda (hair‑band) were tied round her neck giving rise to ligature marks. The shalwar was lying on the upper part while the lower part was naked. A little blood had oozed out from the mouth and the vagina. The Sub‑Inspector prepared the inquest report, and sent the dead body to the mortuary. He collected some blood‑stained earth from the spot. The appellant then led the party to the chari crop in Killa No. 10 and got recovered a bundle of chari fodder P. 3 with a sickle P. 4.

3. Autopsy was conducted by Doctor Muhammad Iqbal on 11‑8‑1969 at 10‑30 a.m. He found the body to be decomposed with a ligature mark encircling the neck completely and horizontally over the hyoid bone. Maggots were floating over the body, grainish hatches were present all over. Face was bluish and swollen, mouth was gagged with a piece of cloth, eyes were protruding, abdomen was swollen, the skin was easily peeled off, nails were loose and easily detached. There was bloody foam in the nostrils. Elands were clenched tongue was swollen and darkish in colour. A piece of cloth was twisted twice and tied round the neck with knots on the right side, On internal examination, uterus was found to be decomposed and not fully developed. Hymen was torn, vulva was swollen and vagina was congested, two vaginal swabs were taken which were blood‑stained and sent to the Chemical Examiner.

4. The blood‑stained earth collected from the place of recovery of the dead body and the chadar and shirt of the appellant got removed at the time of his arrest were sent to the Chemical Examiner, vide his report Exb. P. M‑, the earth was found to be stained with blood which was traced to human origin vide Serologist's Report, Exh. P. O. Chador and shirt of the appellant was found to by stained with semen and although the recovery memo. Exh. P. A. did also refer to traces of blood as deposed to by the witnesses, it was specifically excluded. The other report of the Chemical Examiner relating to the blood‑stained vaginal swabs sent by the Doctor for detection of semen though referred to both in the trial Court's judgment as non the judgment of the High Court as being positive in nature indicating presence of semen is not, however, available on the record. Nevertheless, it is clear that it was perused by the learned Judges in the High Court but inadvertently appears to have remained unprinted. A reference is made to this in paragraph 5 of the High Court's judgment. In the course of arguments before us, learned counsel for the appellant referred to its non‑availability and emphasise the need of its perusal particularly in the context of the other report of the Chemical Examiner, Exh. P. M., which contrary to the assertion of the P. W. definitely excluded the presence of blood stains from the clothes of the appellant.

5. Having in vain waited for the arrival of the report. Exh. P. N., which appears to have remained untraced, we have decided to proceed with the judgment in its absence inasmuch as it was perused by the Courts below and was found to be positive showing presence of semen stains to further establish the factum of rape. The presence of blood‑stains referred to by the Doctor even though not mentioned in this report would not be of much consequence nor for that matter do we attach much importance to the exclusion of blood stains from the clothes of the appellant in the Chemical Examiner's Report. The relevant recovery memo. Exh. .P. A., which of course does not per se constitute evidence, refers to washed traces of" semen and blood in the first instance. Again traces of blood arc': confined to shirt and not to chador. All the three witnesses of recovery, namely, Gulab, chowkidar (P. W. 5), Din Muhammad, lumbardar (P. W. 6) and Sultan Muhammad, S. H. O. (P. W. 12) referred to the shirt and chador being stained with semen. This position stands further confirmed by the Chemical Examiner's report, Exh. P. M. which excludes the traces of blood. In view of such consistent evidence both oral and chemical, we have no hesitation in holding that the reference to blood stains in the recovery memo. Exh. P. A. which as stated earlier does not per se constitute evidence, was based on an erroneous impression of the Sub‑Inspector. Even otherwise, in view of the bulk of evidence aliunde nothing would turn upon such an a priori contention.

6. Although as stated earlier, the leave to appeal was granted only to consider the limited question of the narks of struggle on the body of the victim and the assailant, we permitted the learned counsel in the interest of justice to take us through the entire evidence which was merely circum stantial in nature. Both the trial Court as also the High Court placed full reliance on tile testimony of Imam Din (P. W.) who had last seen the deceased cutting fodder while the appellant was standing near her, the evidence of extra judicial confession available in the testimony of two respectable of the ilaga to whom no suggestion of enmity or motivated false implication was made, and lastly, the medical evidence and chemical evidence which established beyond doubt the veracity of the extra judicial confession.

8. On a careful re‑appraisal of this evidence, we are fully convinced that Imam Din having his tubewell a little ahead of the scene of the crime, should have been naturally contacted by Hakim Ali father of the deceased in the course of his search who informed him of the presence of Makha with her in the chari field. The suggestion made by the defence to discredit Imam twin was that he had admitted before the C. M. that the appellant owed him a sum of Rs.

182. The witness explained at the trial that the amount has been paid to him by the father of the appellant. Assuming that the appellant really owed him the amount, it does not stand to reason that on that account alone, he would perjure himself to falsely implicate the appellant on charge of murder. Another suggestion made in cross examination to Hakim‑ Ali was that there was a lumour in the village that the appellant had illicit connection with Imam Din's daughter who had become pregnant. This uncharitable suggestion was not made to Imam Din himself during cross‑examination when he entered the witness‑box. Another significant suggestion made t) Din Muhammad, Lambardar was that he suspected the appellant of being responsible for the commission of a decoity in his house. These suggestions do not in the least shake the credit of the witnesses but certainly do cast self‑invited aspersions on the appellant giving the impression of a thoroughly undesirable person with anti‑social propensities. We are thus convinced that the Courts below were fortified in holding that the girl was last seen with the appellant by Imam Din (P. W.). This brings us to the extra judicial confession. Ghulam Nabi (P. W. 10 a member of the Union Council is a resident of the neighbouring village, Chak No. 291‑E. B. which is the hcad quarter of the local Union Council of which the meeting was held on the 10th of August 1969. Having presided over the meeting, Fazal Muhammad, Chairman (P. W. (P L D 1966 Lah. 220) a resident of Chak No. 283‑E. B., accompanied Ghulam Nabi to his dera. It was at that time that the appellant voluntarily appeared before them. In the lengthy cross‑examination to which these witnesses were subjected not the remotest suggestion of any animus was made to them. On the other hand, it is in evidence that Ghulam Nabi had used his good offices in the restoration of his pigeon to the appellant which had been snatched by some boys of the village of Ghulam Nabi. The details of the commission of the crime, the gagging, rape, strangulation and concealment of the dead body stood fully established by the recovery of the dead body at the instance of appellant and the condition in which it was found. Medical evidence and chemical evidence left no doubt whatsoever that before being murdered, the deceased had been subjected to rape. The fact that there were some minor discrepancies in the statements of the witnesses or that Ghulam Nabi, Member and Fazal Muhammad, Chairman of the Union Council did claim personal intimacy with the appellant and were unable to furnish details of his parentage etc. would be wholly immaterial. The two were respectables of the ilaya having no ill‑will against the appellant and Ghulam Nabi had already done him a good turn having obliged him by restoring his pigeon. No wonder, therefore that he volunteered to make a confession whose veracity stood fully established by the recovery and the condition of the dead body coupled with the medical and chemical evidence.

9. Another relevant consideration which engaged our attention was that in a case like this wherein the father of the deceased bad expressed at the very outset strong apprehension of her murder, the Sub‑Inspector having visited the spot, where she was last seen with the appellant should have normally with the assistance of the people of the village ransacked the chari and the sugar‑cane fields to make sure that the dead body did not lie there and in that event it could not at all have been difficult for them to locate the dead body when putrefaction had already been begun in the hot and humid month of August, Such an eventuality would depend on a host of circumstances : Firstly the appellant was specifically mentioned as the solitary suspect. It was not yet ascertained that the girl had been killed and as such the first anxiety of the police officer would naturally have `been to trace the suspect so as to get some clue from him but even so it equally stands to reason that as a matter of abundant caution an intelligent police officer would like to satisfy himself that in the possible event of murder, the dead body was not lying in the sugar‑cane field which indeed would be a convenient and handy place to conceal it. This would again depend on the working of the mind of the Police Officer. A short and sparse growth in a ‑mall area could be readily searched while the dense and thick growth of sugar‑cane field growing in full one acre would not be so tempting at mid day in the month of August and the Police Officer might possibly have .chosen to defer it till evening when in the meantime the two respect ables of the area produced the appellant who volunteered to lead to the recovery of the dead body. Even otherwise, no such suggestion appears to have been made to the Sub‑Inspector or the witnesses of recovery of the dead body. Although in his statement under section 342, Cr. P. C., the appellant denied to have led to the recovery, he did not allege that the dead body had already been recovered and planted on him, nor was any such suggestion made to the witnesses. There is thus no basis for such an inference.

10. This brings us to the precise point on which leave was granted. In support of the contention that in a case of brutal criminal assault followed by strangulation, marks of struggle such as bruises scratches should have been present on the body of the appellant besides marks of violence on the person of the deceased, learned counsel referred us to some observations made in Modi's Medical Jurisprudence, 13th edition, page 32, which were relied upon in Shan Khan v. The State (1) in support of a judgment of acquittal recorded by a learned Single Judge. I am not impressed by the argument. The appellant on being medically examined was described by the Doctor as a man of robust physique and of about 22 years of age with well developed genitals. On the other hand, the poor and helpless victim who was merely a girl of 10/11 years of age would be wholly incapable of offering any resistance. The existence of marks of struggle presupposes struggle which in turn would depend on the capability of the victim to offer resistance again relatable to several factors such as the relative difference in .the age and health of the victim and the assailant. No hard and fast rule can, therefore; be laid down in this regard. Even the observation by Modil is not couched in absolute and unqualified terms. Marks of violence are likely to be found on the bodies of grown‑up women who are capable of ‑offering resistance. In the precedent case the allegations of rape were brought by a grown‑up woman who was also accused of moral laxity besides a host of other doubtful circumstances. That case proceeded on its own facts and should not, therefore, be read as laying down any rule of general application. In so far as the marks of violence are concerned, even at the time of the recovery of the dead body, there were clear indications of gagging and strangulation. The hymen was torn and the private parts were swollen and congested. In the circumstances, I am left in no manner of doubt that it was the appellant and none else who having brutally subjected the girl to his lust had then killed her to avoid detection and its legal consequences. The offences stood fully brought home to him. As a result of the above discussion, I see no merit in this appeal, which is dismissed. SALAHUDDIN AHMED, J.‑I agree. ANWARUL HAQ, J.‑I agree. MUHAMMAD GUL, J.‑I agree. Appeal dismissed.