کیا DNA رپورٹ قابل ادخال شہادت ھے؟
Importance of modern forensic science and DNA
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Admissibility of DNA Test
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Admissibl eversus per se admissible
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Under section 9 of the Punjab Forensic Science Agency Act, 2007an expert of the PFSA is considered to be an expert in terms of section 510 Cr.P.C. Therefore, DNA Test Report prepared by an expert of the PFSA is per seadmissible.
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DNA, strongest corroborative piece of evidence today
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IN THE SUPREME COURT OF PAKISTAN(Appellate Jurisdiction)PRESENT:Mr. Justice Manzoor Ahmad MalikMr. Justice Mazhar Alam Khan MiankhelMr. Justice Syed Mansoor Ali ShahCrl. Petition No.513/2020.(Against the judgment of Lahore High Court, Multan Bench, dated 11.02.2020, passed in Crl.A No. 436/2017 and Capital Sentence Reference No.61/2017)Ali Haider @ Pappu...PetitionerversusJameel Hussain, etc....RespondentsFor the petitioner: Raja M. Shafat Khan, ASC. For the State:Mirza Abid Majeed, DPG.Research Assistance by: Rana Shaheryar, Research Officer/Civil Judge, SCRC, Islamabad.Date of hearing:07.01.2021
JUDGMENT
Syed Mansoor Ali Shah, J.-This is a troubling and a gut-wrenching case of rape, murder and capital punishment. Almost eight year old, Rimsha Bibi(“deceased”)who left her house for summer tuition in the neighbourhoodwas raped in the loneliness of a jawar(millet) field and then silenced forever by beingbrutally murdered. First Information Report(“FIR”)was registered by the father of the deceased against an unknown person for offences under Sections 302 and 376(i)of the Pakistan Penal Code, 1860(“PPC”)on 29.06.2016.In the supplementary statement recorded the next day, the complainantrevealed that Jabbar Hussain (PW-6) and Tufail Shah (PW-7) had seen Ali Haider @ Pappu (“petitioner”)coming out of the jawarfield from where the dead body of the deceased wasrecovered at 4:00 p.m. on the fateful day, while tightening the string of his shalwar.
2. The petitioner was indictedandtried for the alleged offences. On conclusion of the trial, he was convicted by the trial Courtunder Section 302(b) of PPC,and sentenced to death and directed to pay compensation of Rs.200,000/-to the legal heirs of the deceased and in default thereof to undergo further simple imprisonment for six months. He was also convicted under Section 376 of PPC and sentenced to imprisonment for life with fine of Rs.30,000/-to be paid to the legal heirs of the deceased and in default thereof to further undergo simple imprisonment for three months. On appeal to theHigh Court by the petitioner, which was heard alongwith the Murder Reference sent up by the trial court,the High Court maintained the convictionsand sentences of the petitioner. The murder reference was answered in the affirmative and thedeath sentence was confirmedthrough the impugned judgment.
3.We have examined the record of the case with the able assistance of the learned counsel for the parties. The gruesome incident was unseen. The circumstantial evidence pieced together by the prosecution, to tiethe petitioner with the rape and murder of the deceased comprises:(i) the evidence of waj takkarof Jabbar Hussain (PW-6) and Tufail Shah (PW-7) who had seen the petitioner coming out of theplace of occurrence, i.e.,jawarfield,at 04:00 p.m. tightening the string of his shalwar; (ii) the extra judicial confessionofthe petitioner,admitting commission of rape and murder of the deceased in the presence of the complainant (PW-1)and the said twowitnesses of waj takkarevidence (iii) the medical evidence including thepost-mortem report (Ex-PL) and the statement of Dr. Sunia (PW-11), WHO, DHQ Hospital Vehari, who had conducted the post-mortem examinationof the deceased: and (iv) the DNA Test Report regarding the vaginal swabs of the deceased as well as the swab obtained from the neck of the deceased, which reported matching of the DNA found in those swabs with that of the petitioner.
Importance of modern forensic science and DNA
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4. Before analyzingthe circumstantial evidence,itmight be useful to underline the role of science, modern forensic techniques and devices under our criminal justice system. For the law to serve people in this technologically complex society, courts need to understand and be open to science and its principles, tools and techniques. Legal decisions of the courts must fall within the boundaries of scientifically sound knowledge. A judge and more so a trial judge, acts as a gatekeeper of the scientific evidence and must, therefore, enjoy a good sense and understanding of science.As science grows so will the forensic techniques, tools and devices; therefore, courtsmust be open to developments in forensic science and embrace new techniques and devices to resolve a dispute,provided the said technique and device is well established and widely accepted in the scientific community as a credible and reliable technique or device.1Article 164 of the Qanun-e-Shahdat Order, 1984 (QSO) is our gateway allowingmodern forensic science to come into our courtrooms. Article 164 provides that courts may allow to be produced any evidence that may have become available because of modern devices and techniques. Proviso2to Article164,added in the year 2017, provides that conviction on the basis of modern devices and techniques may be lawful. Article 164 read with Article 59, inter alia, allows modern forensic science to enter courts through the credible and valued scientific opinions of expertsas evidence, in order to arrive at thetruth.
5. The most significant advancement in criminal investigation since the advent of fingerprint identification is the use of DNA technology to help convict criminals or eliminate persons as suspects. DNA as a scientific evidence means 'deoxyribonucleic acid.' DNA can be found in the human body and samples from semen, hair, blood, flesh can establish a DNA matching with the DNA of another human being. Each human being has a unique DNA pattern, which is acquired by inheriting it from the biological parents.DNA analyses on saliva, skin tissue, blood, hair, and semen can now be reliably used to link criminals to crimes. Increasingly accepted during the past 10 years, DNA technology is now widely used in many jurisdictions by police, prosecutors, defense counsel, and courts.3This scientific evidence is much speedier, specific, accurate and conclusive than any other human evidence and can stand the scrutiny of the court to determine the guilt or innocence of an accused. In criminal cases,like rape, murder, etc.,timely medical examination and proper sampling of body fluids followed by quality forensic analysiscan offer irrefutable evidence.Criminal justice system is in search for the truth. The development of DNA technology furthers thesearch for truth by helping police and prosecutors in the fight against violent crimes. Through the use of DNA evidence, prosecutors can establish the guilt of accused and at the same time, DNA aids the search for truth by exonerating the innocent.4An authoritative study on the forensic uses of DNA, conducted by the National Research Council of the National Academy of Sciences, USA has noted that:“
...the reliability of DNA evidence will permit it to exonerate some people who would have been wrongfully accused or convicted without it. Therefore, DNA identification is not only a way of securing convictions; it is also a way of excluding suspects who might otherwise be falsely charged with and convicted of serious crimes.”
5، Admissibility of DNA Test
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6. DNA Report like any other opinion of an expert under Article 59 is relevant and thus admissible. Article 164 of the QSO further underlines the admissibility, reliability and weightage of modern scientific forensic evidence, including the DNA test, as the said Article provides that convictions may be based on modern techniques and devices.Over the years DNA test has also come to be recognized by our statutory criminallaw. Section 164-A6Cr.P.C provides that where an offence of committing rape, unnatural offenceor sexual abuse or an attempt to commit rape or unnatural offence or sexual abuse under section 376, section 377 or section 377B respectively of the PPC is under investigation the victim shall be examined by a medical practitioner who shall examine the victim and prepare a report of examination giving, inter alia,the “description of material taken from body of the victim for DNA profiling” under section 164A(2)(c). Similarly, under section 53A7where a person is arrested on a charge of committing an offence of rape or unnatural offence or sexual abuse or an attempt to commit rape or unnatural offence or sexual abuse under section 376, section 377 or section 377B respectively of the PPC and there are reasonable grounds for believing that an examination ofthe arrested person will afford evidence as to the commission of such offence it is lawful for the medical practitioner to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. The medical practitioner conducting examination is to examine, without delay,such person and prepare a report of the examination giving, inter alia,the description of material taken from person of the accused for DNA profiling,under section53A(2)(d). Under Section 164-B8where an offence under section 376, 377 or section 377B, PPC is committed or attempted to have been committed or alleged to have been committed, DNA samples where practicable, are to be collected from the victim with his or her consent or with the consent of his or her natural or legal guardian as provided in section 164AandDNA samples of the accused under section 53A,both within optimal time period ofreceiving information relating to the commission of such offence.Under sub-section (2)of section 164B, such DNA samples are to be sent, at the earliest,for investigation to a forensic laboratory where these are to be properly examined and preserved by observingconfidentiality of such examination at all times.The above legislative framework underscores the relevancy and thus the admissibility of a DNA Test.
Admissible versus per se admissible
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7. While the admissibility of expert opinion is already recognized under QSO, section 510 Cr.P.C. deals with special rules of evidence and makes the evidentiary procedure simple by providing that certain reports of the chemical examiner, etc. may be used in any trial without calling the Government Chemical Examiner, Serologist, finger print expert or fire-arm expert as a witness. Allowing admission of reportsof the said Governmental expertsin evidence without theirauthor appearing as a witness has the objective of saving time andspeeding up criminal trials. This simple procedure of admission of these reportsin evidence, isreferred to as per seadmissible.However, the court may if it considers necessary, in the interest of justice, summon and examine the person by whom such a report has been made. Section 510Cr.P.Crefers to reports of certain experts only but does not specifically mention the expert who conducts DNA analysis, hence the DNA Test report is not per se admissible but it is certainly admissible if tendered in evidence by examining as witness the expert under whose hand it is preparedas per the QSO. Additionally, under section 9 of the Punjab Forensic Science Agency Act, 2007an expert of the PFSA is considered to be an expert in terms of section 510 Cr.P.C. Therefore, DNA Test Report prepared by an expert of the PFSA is per seadmissible.
8. This Court in Azeem Khan case9questioned theadmissibility of the DNA Test Report on the touchstone of section 510 Cr.P.C. and left it open to be discussed in some other case. It is, therefore, important to address this question and clear the air regarding the admissibility of DNA Test Report. As explained above, per seadmissibility is a procedural facility for tendering evidence extended to reports ofcertainexperts but it does not affect or have any bearing on the admissibilityof a document which is governed by the QSO,and any report or opinion of an expert in matters of science, etc.,which is recognized to be relevant under Articles 59 and 164QSOand is thus admissible under the law of evidence (QSO). Besides,much water has flown under the bridge, since Azeem Khan case.There has been new legislation giving DNA Test, statutory recognition and importance. Article 164 QSO holds immense importance especially after the insertion of the provisothrough Act 4 of 2017in the year 201710and demands that the scope of expert opinions under Article 59QSOand the special rule of evidence under section 510 Cr.P.C. be interpreted progressively in the years to come to give more space and recognition to modern forensic science.
9. It is important to underline that the use of the word “Chemical Examiner” insection 510 Cr.P.C.is almost obsoleteand has no established definition. Now,“forensic scientists” run and manage modern forensic laboratories. It is time for the Government to consider revision of section 510 Cr.P.C. allowing reports of all the Government forensic scientists(as opposed tothespecified ones under section 510 Cr.P.C)to beper seadmissible, to speed up the wheels of dispensation of criminal justice in the country.Needless to say that underthe proviso to section 510 Cr.P.C the courtscan always summon and examine the expert who has prepared and authored the report.
DNA, strongest corroborative piece of evidence today
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10.DNA evidence is considered as a gold standard to establish the identity of an accused. As a sequel of above discussion, it can safely be concluded that DNA Test due to its accuracy and conclusiveness is one of the strongestcorroborative piecesof evidence.In Salman Akram Rajacase11this Court has held thatDNA test help provides the courts the identity of the perpetrator with high degree of confidence,and by using of the DNA technology the courts are in a better position to reach at a just conclusion whereby convicting the real culprits and excluding the potential suspects, as well as, exonerating wrongfully involved accused. DNA test with scientific certainty and clarity points towards the perpetrator and is, therefore, considered one of the strongest corroborative evidencetoday, especially in cases of rape. The usefulness of DNA analysis, however, dependsmostly on the skill, ability and integrity shown by the investigating officers, who are the first to arrive at the scene of the crime. Unless the evidence is properly documented, collected, packaged and preserved, it will not meet the legal and scientific requirements for admissibility into a court of law.
11. Coming back to the merits of thecase, we find that Jabbar Hussain (PW-6) and Tufail Shah (PW-7) were not chance witnesses. They were residents of the locality and their presence near the place of occurrence, i.e., the jawarfield, was quite natural. They saw the petitioner coming out of that field while tightening the string of his shalwar at a time that is in line with the time of occurrence reported in the FIR and the approximate time of death of the deceased mentioned in the post-mortem report. The extra-judicial confession though is a weak piece of evidence; but in the present case, it also inspires confidence when it is read in conjunction with other circumstantial evidence. The medical evidence, viz,the post mortem report (Ex-PL) and statement of Dr. Sunia (PW-11) who made the post-mortem examination of the deceased, supports the prosecution case. The fact established by the medical evidence that the deceased had suffered vaginal injury, as her hymenwas found freshly torn with tear at 6 O’clock extending upto perineum with fresh bleeding, clearly supports the prosecution case that the deceased was raped before causing her death. The medical opinion of Dr. Sunia (PW-11) that the death of the deceased occurred due to throttling tallies with the DNA report regarding the swab obtained from the neck of the deceased: the DNA report states matching of the DNA found in that swab with that of the petitioner. The most important piece of circumstantial evidence in the present case, we find, is the DNA Test Report (Ex-PP) of the Punjab Forensic Science Agency (“PFSA”). Three vaginal swabs, one swab taken from the neck of the deceased and stained sections of the shalwarand shirt of the deceased alongwith buccal swab of the petitioner were sent to the PFSA for forensic examination. According to the DNA Test Report the semen from vaginal swabs, as well as, the stain of the shalwarof the deceased matched the DNA of the petitioner. The DNA in the swab obtained from the neck of the deceased also matched the DNA of the petitioner. The wajtakkarevidence, evidence of extra-judicial confession, medical evidence and DNA Test Report,together and clearly connects the petitioner with the rape and murder of the deceased, Rimsha Bibi.The chain of circumstantial evidence is firm and continuous, leaving no margin for the hypothesis ofinnocence of the petitioner. The rope of circumstantialevidence,adduced by the prosecution,ties the dead body of the deceased with theneck of the petitioner.The prosecution has thus proved itscase against the petitioner beyond reasonable doubt. Therefore, we are not persuaded to espouse a view different from that given by the trial court and confirmed by the High Courtas to the convictionsand sentences ofthe petitioner. Accordingly, leave is refused and this petition is dismissed.
12. Foregoing are the reasons for the short order dated 07.01.2021, which for the sakeof convenience and completion of recordis reproduced hereunder:-
“For the reasons to be recorded later, this criminal petition is dismissed in toto.”
13.Office shall dispatch a copy of this judgment to the Ministry of Law and Parliamentary Affairs, Governmentof Pakistan for consideration of the recommendationmadein para9above.
Islamabad,07thJanuary, 2021.
Approved for Reporting
JudgeJudgeJudge
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1See: Reference Manual on Scientific Evidence. Third Edition, Federal Judicial Centre, National Research Council of the National Academies, Washington, DC.
2Act 4 of 2017 dated 16.02.2017
3Modi, A Textbook of Medical Jurisprudence and Toxicology, 26thedition, LexisNexis. Pp 430-453
4Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial by Edward Connors, Thomas Lundregan, Neal Miller, Tom McEwen, June 1996, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice.5National Research Council, National Academy of Sciences, DNA Technology in Forensic Science, Washington, D.C.: National Academy Press,1992:15
6. (Cited as NRC report)6Inserted by Act 44 of 2016, s.11
7Inserted by Act 44 of 2016, s.7
8Inserted by Act 44 of 2016, s.11
9Azeem Khanv.Mujahid Khan, 2016 SCMR 274.
10Act 4 of 2017 dated 16.02.2017
11Salman Akram Rajav.Government of Punjab, 2013SCMR 203; also see United States v. Yee, 134 F.R.D 161 and Muhammad Shahid v.State, PLD 2010 FSC 215.
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