PLJ 2022 Cr.C. 1273 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Conviction and sentence--Challenge to--DNA--Safe custody and safe transmission--Chance witness--Un-natural conduct--Delay in FIR--Delay in post mortem--Recovery and report of PFSA--Appellant allegedly cut the neck of sister of complainant with Churri--Witnesses Who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and the said eye-witnesses were, thus, declared chance witnesses and not worthy of reliance--Narrative of the witnesses that the accused kept waiting for their arrival at the place of occurrence and thereafter committed the same, at the exact same time as the witnesses arrived is unnatural and cannot be believed--Conduct of the witnesses, as deposed by them, was opposed to common course of natural events, human conduct and that the witnesses were not present at the time of occurrence, and their presence was procured subsequently--Report of PFSA, DNA profile obtained from the sperm fraction of the external vaginal swab and the DNA profile obtained from the epithelial fraction of the external vaginal swab was a mixture of at least two individual and the appellant could not be excluded as being a contributor to the DNA obtained from the sperm fraction of the external vaginal swab and from the eptithelial fraction of the external vaginal swab--Pw-9/I.O. handed over two sealed boxes and four sealed envelopes to PW-7, Who handed over to I.O. for their onward transmission to the office of PFSA, but PW-9/I.O. never stated so--Safe custody of the vaginal swabs is not discernable from the record of this case--In absence of such evidence, prosecution, which must establish that the chain of custody of the vaginal swabs was un broken, unsuspicious, indubitable, safe and secure, has failed to do so--The break in the chain of the custody of the vaginal swabs casts doubts and impairs and vitiates in the conclusiveness and reliability of the report of the Punjab Forensic Science Agency--Appellant’s conviction cannot be upheld on the basis of medical evidence alone--Appellant is ordered to be acquitted by extending him the benefit of doubt--Appeal allowed.
[Pp. 1278, 1287, 1288, 1290, 1291, 1292, 1293, 1294, 1295, 1297, 1298, 1299, 1304 & 1306] A, B, C, D, E, F, G, H, I, J, K, L, M, N, S & U
PLJ 2016 SC 123; 2017 SCMR 986; PLD 2021 SC 600 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Chance witness--In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon.
[P. 1287] B & C
2014 SCMR 1698; 2017 SCMR 622; 2017 SCMR 724 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Presence of witness--Open eyes and mouth of the deceased forces a hostile interpretation against the prosecution’s version regarding the presence of the witnesses.
[P. 1287] D
2019 SCMR 1068 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Un-natural conduct of the witness--The conduct of the witnesses, as deposed by them, was opposed to common course of natural events. [P. 1290] F
2021 SCMR 1373; 2019 SCMR 1154; 2020 SCMR 857 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Un-natural conduct of the witness--Causing of large number of injuries one after another to the deceased with scissors consumed reasonable time but all the PW’s remained silent spectator. [P. 1291] G
2015 SCMR 315; 2012 SCMR 172; 2008 SCMR 95 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Un-natural conduct of the witness--PW’s did not produce their blood stained clothes either before the investigating officer or before the trial Court. PW’s were utter a duty to provide a convincing explanation of their presence.
[Pp. 1292 & 1293] H & I
2015 SCMR 1142; 2020 SCMR 319; 2018 SCMR 153 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Un-natural conduct of the witness--Delay in FIR--Delay in registration of the FIR, can be easily inferred that no witnesses of the occurrence were available and the matter was kept pending. [P. 1294] J
2021 SCMR 23; 2017 SCMR 199; 2019 SCMR 129; 2018 SCMR 506; 2017 SCMR 1155 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Delay in conducting post mortem examination is reflective of the absence of witnesses and to procure the presence of the witnesses. [P. 1295] K
2012 SCMR 327; 2019 SCMR 956; 2019 SCMR 1068 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Recovery of Churri--I.O. did not join any witness from the locality and violation of S. 103, Cr.P.C.
[P. 1297] L
2017 SCMR 898 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Recovery of Churri--Recovered Churri was sent to the office of Punjab Forensic Science Agency, Lahore, after about two months was analyzed. During such a long period the blood available on the Churri, if any, would have disintegrated. [P. 1298] M
2016 SCMR 2138 ref.
Punjab Forensic Agency Act, 2009--
----S. 9(3)--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 302, 364, 338-C, 376, 34-109--Qanun-e-Shahadat Order, (10 of 1984), Arts. 59 & 164--Criminal Procedure Code, (V of 1898), S. 510--DNA--Safe custody and safe transmission--DNA evidence is evaluated on the strength of Articles 59 and 164 of the Qanun-e-Shahadat, 1984--The technician who conducts experiment to scrutinize DNA evidence is regarded as an expert whose opinion is admissible in Court-- Since DNA analysis report is reckoned as a form of expert evidence in criminal cases, it cannot be treated as primary evidence and can be relied upon only for purposes of corroboration--Credibility of the DNA test inter alia depends on the standards employed for collection and transmission of samples to the laboratory. Safe custody of the samples is in pivotal. Thus, in every case the prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure--Any break in the said chain or lapse in the control of the sample would make the DNA test report unreliable.
[Pp. 1299, 1303 & 1304] N, O, P, Q & R
2021 SCMR 451; 2015 SCMR 1002; 2018 SCMR 2039; 2019 SCMR 930; PLJ 2016 SC 123 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Medical evidence--Medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence. [Pp. 1305 & 1306] T
2017 SCMR 986 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/338-C/376/34/109--Benefit of doubt--If only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. [P. 1306] U
2018 SCMR 772; 2009 SCMR 230 ref.
Mr. Tariq Mahmood Khan, Advocate for Appellant.
Ch. Asghar Ali Gill, Deputy Prosecutor General for State.
Date of hearing: 30.11.2021.
PLJ 2022 Cr.C. 1273 (DB)
[Lahore High Court, Bahawalpur Bench]
Present: Sadiq Mahmud Khurram and Safdar Saleem Shahid, JJ.
versus
STATE--Respondent
Crl. A. No. 436-J and M.R. No. 18 of 2019, heard on 30.11.2021.
Judgment
Sadiq Mahmud Khurram, J.--Abdul Wahid alias Budho son of Allah Diwaya (convict) was tried along with Mumtaz Ahmad alias Goni (since acquitted) by the learned Additional Sessions Judge, Rahim Yar Khan in the case FIR No. 65 of 2017 dated 02.03.2017 registered at Police Station Saddar Rahim Yar Khan, District Rahim Yar Khan in respect of offences under Sections 302, 364, 338-C, 376, 34 and 109, PPC for committing the Qatl-i-Amd of Mst. Munazza Bibi daughter of Habib-ur-Rehman (deceased). The learned trial Court vide judgment dated 11.07.2019, convicted Abdul Wahid alias Budho son of Allah Diwaya (convict) and sentenced him as infra:
Abdul Wahid alias Budho son of Allah Diwaya:
i) Death under Section 302(b), PPC as Tazir for committing Qatl-i-Amd of Mst. Munazza Bibi daughter of Habib-ur-Rehman (deceased) and directed to pay Rs. 200,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
ii) Rigorous Imprisonment for ten years under Section 364, PPC and directed to pay a fine of Rs. 100,000/-and in default thereof to further undergo simple imprisonment of three months.
iii) Rigorous Imprisonment for ten years under Section 376, PPC and directed to pay a fine of Rs. 100,000/-and in default thereof to further undergo simple imprisonment of three months.
iv) Rigorous Imprisonment for five years under Section 338-C, PPC and directed to pay Diyat of Rs. 84,016/-to the legal heirs of the deceased namely Mst. Munazza Bibi.
The convict namely Abdul Wahid alias Budho son of Allah Diwaya was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial Court. The sentences awarded to the appellant were ordered to run concurrently by the learned trial Court.
Mumtaz Ahmad alias Goni son of Muhammad Bakhsh, the co-accused of the convict, was acquitted by the learned trial Court.
2. Feeling aggrieved, Abdul Wahid alias Budho son of Allah Diwaya (convict) lodged Criminal Appeal No. 436-J of 2019 through jail assailing his conviction and sentence. The learned trial Court submitted Murder Reference No. 18 of 2019 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Abdul Wahid alias Budho son of Allah Diwaya. We intend to dispose of the Criminal Appeal No. 436-J of 2019 and Murder Reference No. 18 of 2019 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Muhammad Khalid (PW-1), the complainant of the case are as under:
“States that marriage of my sister Munnaza Bibi was solemnized with Ayyaz Ahmad 9/10 years ago. On 02.03.2017 at about 11.00 a.m I along with my brother Muhammad Shahid and Muhammad Asghar S/O Muhammad Khan Caste Blouch R/O Siddique Akbar Colony went to met my sister in her house situated in Majeed Colony Khanpur. My brother-in-law Ayyaz Ahmad was also present in his house. We were present in the house of my sister, when Abdul Wahid alias Bhuddy S/Q Allah Diwaya Caste Makhan Shahi Faqeer R/O Majeed Colony Khanpur along with his sister Rukhsana alias Rukhsi wife of Muhammad Tariq R/o Kot Mithan came to meet my brother-in-law. Abdul Wahid accused present in Court asked my brother-in-law to send Mst.Munnaza Bibi with them for hospital as his sister Rukhsana alias Rukhsi was ill, who being neighbourer allowed my sister to go with them. After a long time they did not return back, due to which he become worried. I alengwith above said witnesses inquired and came to know that Abdul Wahid accused present in Court and his sister Rukhsana Bibi went to the house of their relative in Basti Hashim Rahimyarkhan and took my sister with them. While searching I along with above said witnesses reached at Basti Hashim Rahimyarkhan near the house of Mumtaz Ahmad alias Ghoni, we heard hue and cry of my sister coming out from the house of said Mumtaz Ahmad, I along with Muhammad Shahid and Muhammad Ashger immediately entered in said house and saw that door of the room was opened. We saw that Abdul Wahid alias Bhuddu accused was cutting the neck of my sister with Churri in said room. Before our reaching in the said room, accused Abdul Wahid alias Bhuddu had cut the neck of my sister within our view. We raised lalkara, Abdul Wahid accused while brandishing his Churri raised threats not to come near him and succeeded to flee away. I along with above said PWs took care of my sister Munnaza but she had succumbed to the injury. Accused Abdul Wahid present in Court had committed the murder of my sister Munnaza in the house of his relative Mumtaz Ahmad alias Ghoni present in Court. Mumtaz Ahmad alias Ghoni accused present in Court facilitated accused Abdul Wahid in committing murder of my sister Munnaza Bibi.
After the occurrence, I.O. Ghulam Abbas SI along with police officials reached at the place of occurrence. I got recorded my statement Exh.PA which was read over to me and I put my signature Exh.PA/1 on it. After the post mortem, I received the dead body of my sister through receipt Exh.PB. I also received a dead fetus of Mst.Munnaza recovered from her uterus during postmortem through receipt Exh.PC. Exh.PB and PC bears my signatures.”
4. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the accused were sent to face trial. The learned trial Court framed the charge against the accused on 20.05.2017 and on 04.07.2019, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as fourteen witnesses recorded. The ocular account of the case was furnished by Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2). Ayyaz Ahmad (PW-3) stated that on 02.03.2017 he had allowed his wife to accompany the appellant to the hospital. Muhammad Saleem, SI (PW-4) stated that on 02.03.2017 he recorded the oral statement (Exh.PA) of Muhammad Khalid (PW-1) and also sent the dead body of the deceased for post mortem examination. Abid Ali 1034/C (PW-6) stated that on 02.03.2017 he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Woman Medical Officer. Mudassar Masood 394/HC (PW-7) stated that on 02.03.2017 he recorded the formal F.I.R (Exh.PA/2) and on the same day Ghulam Abbas, SI (PW-9) handed over to him a sealed parcel said to contain blood stained earth and on 03.03.2017 Ghulam Abbas, SI (PW-9) handed over to him two sealed boxes and four sealed envelopes and on 21.03.2017 he handed over all the above sealed parcel, boxes and envelopes to Ghulam Abbas, SI (PW-9) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Mudassar Masood 394/HC (PW-7) further stated that on 05.04.2017 Ghulam Abbas, SI (PW-9) handed over to him a sealed parcel said to contain the recovered Churri which on 06.04.2017 he handed over the said sealed parcel to Ghulam Abbas, SI (PW-9) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Allah Bachaya, Patwari (PW-11) prepared the scaled site-plan of the place of occurrence (Exh.PP). Dr. Sara Shabbir (PW-12) stated that she had been working with Dr. Karim Shahid at the Sheikh Zayed Hospital Rahim Yar Khan, however the whereabouts of Dr. Shahid Karim were not known presently but she, Dr. Sara Shabbir (PW-12), identified his handwriting and according to the Medico Legal Examination Certificate (Exh.PR), Dr. Karim Shahid had examined the appellant on 04.04.2018 and had observed an old healed wound on his right hand. Dr. Shabbir Ahmad, Radiologist (PW-13) stated that on 05.04.2017 he had examined the skiagrams of the appellant, did not observe any fracture of any bone and prepared his report (Exh.PS). Sardar Ahmad (PW-14) stated that on 03.03.2017 the Woman Medical Officer handed over the last worn clothes of the deceased to the police official and on 05.04.2017 the appellant led to the recovery of the Churri (P-13) and the motorcycle (P-14). Ghulam Abbas, SI (PW-9) investigated the case from 02.03.2017 till 27.03.2019, arrested the appellant on 04.04.2017, and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court.
6. The prosecution also got Dr. Fatima Irum (PW-10) examined, who on 03.03.2017 was posted at the Sheikh Zayed Hospital, Rahim Yar Khan and on the same day conducted the postmortem examination of the dead body of Mst. Munazza Bibi daughter of Habib-ur-Rehman (deceased). Dr. Fatima Irum (PW-10), on examining the dead body of Mst. Munazza Bibi daughter of Habib-ur-Rehman (deceased) observed as under:-
“Description of injuries:
Injury No. 1. A incised wound 21 cm X 7 cm approaching to vertebral column. The wound extends from the left side of the neck 4 cm below the lobule of the left ear moving forward and oblique interiorly at the level of Adams apple up to the right side of the neck at the level just in front of lobule of right ear. On deep dissection trachea, esophagus and major vessels of the neck were cut.
…………………
Injury No. 2: Spindle shape incised wound measuring 3.5 cm X 1.5 cm situated on right cheek, 3.5 cm blow the lateral boarder of right eye. On deep dissection, wound reach up to the maxilla bone.
Injury No. 3: An incised wound measuring 3 cm X 3 cm on the right side of chin 4 cm below the right angle of mouth.
Injury No. 4: An incised wound measuring 2cm X .3 cm on the palm side of little and ring figure at the level of middle phalanx.
Injury No. 5: An spindle shape incised wound measuring 3.5 X 2.5 cm lying vertically at level epigastria. On deep dissection damaging the peritoneum, stomach and colon.
Injury No. 6: An spindle shape incised wound measuring 2.5. X 1.5 cm situated on the right interior chest cavity and damaging right upper lope of lung. Right chest cavity was full of blood.
Injury No. 7: An spindle shape wound 2.5 X 1.5 cm deep muscles situated 3 cm lateral to the Injury No. 6.
Injury No. 8: An incised wound spindle shape 3.5 X 1.5 cm, muscles deep situated on the right lateral surface of the upper arm from 14 cm above the right elbow joint.
Injury No. 9: A semi circular shape incised wound measuring 1.5 x 1 cm on the medium surface of right upper arm 4 cm below the right axillary fold.
…………………..
Opinion:-
After conducting thorough autopsy, I was of the opinion that in this case the cause of death was Injury No. 1 and Injury No. 6 caused by sharp edge weapon, was sufficient to cause death in normal course of life. All injuries were caused by sharp edge weapon and ante-mortem in nature.
……………….
Probable time that elapsed between the injury and death was Immediately, and between death and post mortem was within 24 hours.”
7. On 03.07.2019 the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Shahid and Ijaz Iqbal 2257/C as being unnecessary. On 06.07.2019, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Yaqoob as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh.PT, Exh.PU, Exh.PV and Exh.PW).
8. After the closure of prosecution evidence, the learned trial Court examined the appellant namely Abdul Wahid alias Budho son of Allah Diwaya under Section 342, Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Abdul Wahid alias Budho son of Allah Diwaya opted not to get himself examined under Section 340(2), Cr.P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Rahim Yar Khan convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recoveries of the Churri (P-13) and the motorcycle (P-14) were full of procedural defects, of no legal worth and value, and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2). The learned Deputy Prosecutor General further argued that the recoveries of the Churri (P-13) and the motorcycle (P-14) from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial.
13. The whole prosecution case orbits around the statements of Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2), the eye witnesses of the occurrence. The relationship of both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) with the deceased is on record. Mst Munaza Bibi (deceased) was the real sister of Muhammad Khalid (PW-1) and the sister of the wife of Muhammad Asghar (PW-2). Both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) were admittedly not the residents of the place of occurrence. According to the both prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) the occurrence in this case had taken place in Basti Hashim, Rahim Yar Khan whereas both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) were residents of Khanpur, a city separate from Basti Hashim, Rahim Yar Khan. Both the witness claimed that prior to the occurrence they had gone to meet with Mst. Munazza Bibi (deceased), the sister of Muhammad Khalid (PW-1) and the sister of the wife of Muhammad Asghar (PW-2) and arrived at the house of Ayyaz Ahmad (PW-3), the husband of Mst. Munazza Bibi (deceased), at about 11.00 a.m. Both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) also narrated the fact that their houses were at a distance of about two kilometres from the house of Ayyaz Ahmad (PW-3), the husband of Mst. Munazza Bibi (deceased). Muhammad Khalid (PW-1) during cross-examination stated as under:
“Shahid PW is my brother while Asghar PW is my brother in law (Sisters’ husband) I am resident of Siddique Akbar Colony. My house is situated at a distance of two kilometers from the house of Iyyaz Hussain PW.” (emphasis supplied)
Muhammad Asghar (PW-2) during cross-examination stated as under:
“My house is situated within the area of Siddique Akbar Colony. The distance between my house and house of Iyyaz PW is about two kilometers.”
Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, also admitted during cross-examination that none of the prosecution witnesses were residents of the place of occurrence and admitted as under:-
“All the witnesses cited in the report under Section 173, Cr.P.C. are not resident of the place of occurrence and are resident of Tehsil Khan Pur. Likewise, I had not cited the witness of the place where alleged occurrence was taken place.
…………
All the three witnesses are the close relatives of Mst Munazza Bibi, two are brothers and third is cousin.”(emphasis supplied)
In view of the above mentioned admitted facts, it can be validly held that both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) were “chance witnesses” and therefore were under a duty to explain and prove their presence at the place of occurrence, at the time of occurrence. We find that the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) failed to explain the circumstances in which they had arrived at the place of occurrence and witnessed the same. According to the statements of both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) they had arrived at the house of Ayyaz Ahmad (PW-3), the husband of the deceased, on the day of occurrence at about 10.00 a.m and remained there for about forty five minutes. In this manner, the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) remained in the house of Ayyaz Ahmad (PW-3) only till 11.00 a.m, however, contrary to the said calculation, both the prosecution witnesses proceeded to claim that they started the search for the deceased namely Mst. Munazza Bibi (deceased) from the house of Ayyaz Ahmad (PW-3) at about 2.30 p.m. Muhammad Khalid (PW-1) during cross-examination stated as under:
“We went to the house of Iyyaz Hussain at about 10:00 or 10:15 AM.
We remained there for about 45 minutes.
……………….
We took start at about 02:30 or 03:00 PM from the house of Iyyaz Hussain in search of Mst. Munazza Bibi. We were present in the house of Iyyaz, when we suspected any untoward incident with the Mst. Munazza Bibi”
Similarly, Muhammad Asghar (PW-2) during cross-examination stated as under:
“We reached the house of Iyyaz PW at about 10:15 AM. We remained in the house of Iyyaz for about 45-minutes. We remained present in the house of lyyaz for about two hours and thereafter we went out-of house in search of Mst. Munazza Bibi.” (emphasis supplied)
The above referred portions of the cross-examination of the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) denude the error in their statements as to the time of their arrival at the house of Ayyaz Ahmad (PW-3), the alleged leaving of Mst. Munazza Bibi (deceased) in the company of the appellant and the subsequent start of her search by the witnesses. Had the witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) arrived at the house of Ayyaz Ahmad (PW-3) at about 10.00 a.m and remained there for forty-five minutes then they should have started the search for Mst. Munazza Bibi (deceased) at about 11.00 a.m, however contrary to this they claimed that they started the search for Mst. Munazza Bibi (deceased) at about 2.30 p.m. Here again we find it important to mention that there is a contradiction as to the time when the search for Mst. Munazza Bibi (deceased) was started. According to Muhammad Khalid (PW-1) they started the search for Mst. Munazza Bibi (deceased) at about 2.30 p.m or 3.00 p.m whereas according to Muhammad Asghar (PW-2) the search for Mst. Munazza Bibi (deceased) had been started after two hours of their arrival at the house of Ayyaz Ahmad (PW-3), making the time of start of search as about 12.00 p.m. The matter does not end here and both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) continued to claim that they started the search for Mst. Munazza Bibi (deceased) on a motorcycle, however, the said motorcycle, which was used by the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) to arrive at the place of occurrence, was never produced before the Investigating Officer of the case on the day of occurrence or even subsequently during the investigation of the case. Muhammad Asghar (PW-2) during cross-examination stated as under:
“We came at Basti Hasham on motorcycle.”
Admittedly the said motorcycle used by the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) to arrive at the place of occurrence was neither taken into possession by Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, nor by Muhammad Saleem, SI (PW-4) nor was produced by Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) during the investigation of the case. The motorcycle used by Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) to arrive at the place of occurrence was not observed to be present at the place of occurrence by Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, at the time of his arrival at the place of occurrence and therefore there is no mention of the presence of the same in the rough site-plan of the place of occurrence (Exh.PJ) as prepared by Ghulam Abbas, SI (PW-9), the Investigating Officer of the case. Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, admitted during cross-examination as under:
“It is correct that I had not shown the availability of motorcycle in my rough site-plan. Likewise, I had not shown the presence of any witness in my rough site-plan” (emphasis supplied)
The non-production and the absence of any motorcycle under the use of the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) at the place of occurrence, at the time of arrival of the Investigating Officers of the case reveals that the prosecution failed to prove the fact that Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) had used a motorcycle to arrive at the place of occurrence. The failure of the prosecution witnesses to prove that Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) had used any motorcycle to arrive at the place of occurrence has repercussions which point towards the fact that the claim of the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) in this regard was false. Another very important aspect of the case is that both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) candidly admitted that they had never ever before visited the village where the occurrence had taken place and in that scenario it has not been explained as to how the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) came to locate the place of occurrence and also their arrival at the exact house where allegedly the appellant and the deceased were present. Muhammad Khalid (PW-1) during cross-examination admitted as under:
“Prior to the alleged day of occurrence, we never visited the Basti Hasham, Mouza Amin Garh, Rahim Yar Khan, however, we had already visited the Thalli Chowk, We first time visited the alleged Basti Hasham on the day of occurrence. We reached the house of Mumtaz alias Goni accused at about 04:30 PM.” (emphasis supplied) .
All these omissions in the prosecution evidence are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect, reliance is placed on the case of “Muhammad Rafiq v. State” (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of “Usman alias Kaloo v. State” (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant, Ghulam Farid and Manzoor Ahmed, who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and the said eye-witnesses were, thus, declared chance witnesses and not worthy of reliance. Reliance is also placed on the case of “Nasrullah alias Nasro v. The State” (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:
“In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence.”
14. We have also marked with concern that in the inquest report (Exh.PE/1) in Column No. 8 it had been noted that both the mouth and eyes of the deceased were open at the time of preparation of the same, which clearly shows that the dead body was not attended to by the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2), as claimed. The stance set up by the prosecution in the present case is that Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) were present at the time of the death of the deceased and had remained with the dead body. The mouth and eyes of the deceased were found open at the time of preparation of the inquest report (Exh.PE/1), thus, if the witnesses were present then, at least after the death, as is a consistent practice of such close relatives, they would have closed the eyes and mouth of the deceased on her expiry. Thus, the open eyes and mouth of the deceased forces a hostile interpretation against the prosecution’s version regarding the presence of the witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) at the place of occurrence, at the time of occurrence. This fact by itself indicates that none was present with the deceased till her death. The august Supreme Court of Pakistan in the case of “Muhammad Rafique alias Feeqa vs. The State” (2019 SCMR 1068) has held as under:
“What has further irked this Court is that in Column No. 9 of the Marg Report (Ex.PW9/1), and even in the Post Mortem Report (Ex.PW-10/A), the mouth of the deceased has been stated to be open, which clearly indicates that the dead body was not attended to by his close relatives after being pronounced dead. However, the stance set up by the prosecution in the present case is that Arshad Ali -the brother, and Nazir Ahmad -the uncle of the deceased Muhammad Azam were present at the time of his death, and remained with him, even thereafter. Thus, the said posture of the deceased raises an adverse inference against the prosecution’s version regarding the presence of the said persons at the place and time of occurrence.”
We have also noted that both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) were neither mentioned in Column No. 4 or at Page 4 of the inquest report (Exh.PE/1) as being the witnesses who were present near the dead body at the time of preparation of the inquest report (Exh.PE/1).
15. We have also observed that according to the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2), the occurrence took place only when they had arrived at the place of occurrence. Muhammad Khalid (PW-1) during cross-examination stated as under:
“We reached the house of Mumtaz alias Goni accused at about 04:30 PM. As soon as we reached in the street, we heard hue and cry of my sister Munazza Bibi. The door of the house was semi opened and I after pushing the same, entered in the house.
……………….
The door of the room/place of occurrence, was opened.” (emphasis supplied).
Muhammad Asghar (PW-2) during cross-examination stated as under:
“We all three reached to the house of Mumtaz alias Goni. When we reached near the house of Mumtaz alias Gone, we heard the hue and cry of Mst. Munazza Bibi. Outer gate of the house was locked and on hearing the hue and cry, Muhammad Khalid pushed the door and we entered in the house. However, the door of the room/place of occurrence was open.” (emphasis supplied)
“Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case.”
Reliance is also placed on the case of Muhammad Imran vs. The State (2020 SCMR 857) wherein the august Supreme Court of Pakistan held as under:
“These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself.”
16. We have also spotted that the alleged eye-witnesses namely Muhammad Khalid (PW-1), Muhammad Asghar (PW-2) and Muhammad Shahid (given up PW), made no effort either to save the deceased or to apprehend the appellant when they were three in number and could have easily restrained the accused, who at the time of occurrence was alone. It is unnatural and unbelievable that the alleged eye-witnesses namely Muhammad Khalid (PW-1), Muhammad Asghar (PW-2) and Muhammad Shahid (given up PW) did not even move a limb to protect their near and dear one. We have perused the postmortem examination report of the deceased and the unfortunate deceased had received as many as nine injuries on her body. During the receiving of the said injuries, nobody helped her. We have observed that despite the claimed presence of Muhammad Khalid (PW-1), Muhammad Asghar (PW-2) and Muhammad Shahid (given up PW), no effort was made to save the life of the deceased namely Mst. Munazza Bibi. It is all the more bizarre that none of the above-mentioned prosecution witnesses actually interfered in order to save the life of the victim when according to them they had arrived at the place of occurrence, prior to the occurrence. As per the statement of Dr.Fatima Iram (PW-10), the deceased had received ten injuries and that during this episode of causing the said injuries some time must have been consumed however, Muhammad Khalid (PW-1), Muhammad Asghar (PW-2) and Muhammad Shahid (given up PW), remained silent spectators and did not react at all or showed any response when the incident was taking place. No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or to apprehend the assailant. It is strange that when the witnesses had the desire to apprehend the accused after the occurrence and were not fearful of the assailant at that time, then why they could not stop him from committing the occurrence. The allowance of prosecution witnesses to the assailant of causing the death of their near and dear relative speaks loudly that if Muhammad Khalid (PW-1), Muhammad Asghar (PW-2) and Muhammad Shahid (given up PW) had been present at the place of occurrence, they would have definitely intervened and prevented the assailant from murdering their dear one. It only proves that the deceased was at the mercy of the assailant and no one was there to save her. Such behavior, on part of the witnesses, runs counter to natural human conduct and behavior. Article 129 of the Qanun-e-Shahadat, 1984 allows the Courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, y virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the witnesses, as deposed by them, was opposed to common course of natural events, human conduct and that the witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) were not present at the time of occurrence, at the time of occurrence and their presence was procured subsequently. The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circumstances. Reliance is placed on the case of “Zulifqar Ali v. The State” (2021 SCMR 1373) wherein the august Supreme Court of Pakistan observed as under:
“Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror, cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself “a young female with average-built” could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended target and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene”
Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:
“The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was causing the injuries. No man on the earth would believe that a close relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot.”
Further reliance is placed on the case of Shahzad Tanveer v. The State (2012 SCMR 172) at page-176 wherein the august Supreme Court of Pakistan observed as infra:
“It is also more strange that none of the P.Ws. dared to physically intervene in order to save the victim or apprehend the accused at the spot.”
Reliance is also placed on the case of Liaquat Ali v. The State (2008 SCMR 95) at page 97 wherein the august Supreme Court of Pakistan observed as under:
“He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful.”
17. We have also noted that both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) claimed that their clothes were smeared with the blood of the deceased. Muhammad Khalid (PW-1) during cross-examination stated as under:
“Our clothes also stained with blood of Mst. Munazza Bibi, however, we have not produced our clothes to the police.”
Similarly, Muhammad Asghar (PW-2) during cross-examination stated as under:
“We all the three attended the Mst. Munazza Bibi. My clothes were also slightly stained with blood of Mst. Munazza Bibi, however, we have not produced the said clothes to the police.”
Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, did not take any such blood-stained clothes of Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) in possession during the investigation of the case nor the said witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) admittedly produced their such clothes either before the Investigating Officer of the case or before the learned trial Court. Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) which were stained with blood, into possession and if these blood stained clothes of the witnesses had been taken into possession and sent to the Punjab Forensic Science Agency, Lahore for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the eye witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) to have been present at the place of occurrence, at the time of occurrence. The prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) were under a duty to provide a convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. Sughra Begum and another versus Qaiser Pervez and others (2015 SCMR 1142) wherein it has been held as under:
The august Supreme Court of Pakistan in the case of Mst. Mir Zalai versus Ghazi Khan and others (2020 SCMR 319) has held as under:
“Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced”.
The august Supreme Court of Pakistan in the case of Nadeem alias Kala versus The State and others (2018 SCMR 153) has held as under:
“For the following reasons the prosecution case against the appellant is doubtful in nature:
(a) ……..
(b) Presence of both the witnesses of ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination the complainant stated that Maqsood Ahmad (deceased) in injured condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross-examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the Police.”
18. Another aspect of the case raising our doubt over the presence of the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police for as many as more than two hours and made no effort to take the deceased to any hospital during the said time period. According to the prosecution case, Muhammad Saleem, SI (PW-4) got the information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2) had told him about the occurrence. We have noted that despite the fact that the occurrence had allegedly taken place at about 04.30 p.m, however the oral statement (Exh.PA) of Muhammad Khalid (PW-1) was recorded by Muhammad Saleem, SI (PW-4), at 06.30 p.m at the place of occurrence and the formal FIR (Exh.PA/2) was registered at 6.45 p.m. by Mudassar Masood 394/HC (PW-7). No reason, much less plausible, has been given by the prosecution at any stage for not reporting the occurrence to the police till the arrival of Muhammad Saleem, SI (PW-4) at the place of occurrence on his own, when the police Station was only at a distance of 15 minutes travelling from the place of occurrence ( as the oral statement (Exh.PA) of Muhammad Khalid (PW-1) was recorded by Muhammad Saleem, SI (PW-4), at 06.30 p.m at the place of occurrence and the formal FIR (Exh.PA/2) was registered at 6.45 p.m. by Mudassar Masood 394/HC (PW-7) at the police station). In this case, the ocular account furnished, is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less legal one, because, the witnesses never reported the matter to the police for as many as two hours and kept waiting at the place of occurrence. It can be easily inferred that the FIR was registered with a delay for the simple reason that no witnesses of the occurrence were available and the matter of recording the oral statement (Exh.PA) was kept pending to procure the attendance of Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2). Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences there absence at the time of occurrence, at the place of occurrence. Reliance is placed on the cases of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23), Muhammad Ashraf Javeed and another vs. Muhammad Umar and others (2017 SCMR 199), Zafar vs. The State and others (2018 SCMR 326), “G.M. NIAZ vs. The State” (2018 SCMR 506), Abdul Jabbar and another vs. The State (2019 S C M R 129) and Muhammad Shafi alias Kuddoo vs. The State and others (2019 SCMR 1045). Moreover, the oral statement (Exh.PA) of Muhammad Khalid (PW-1) was recorded by Muhammad Saleem, SI (PW-4) at the place of occurrence after his arrival there. The august Supreme Court of Pakistan in the case of “Abdul Jabbar alias Jabbari v. The State” (2017 SCMR 1155) has observed as under:
“An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot.”
19. We have also noted with disquiet that despite the fact that the occurrence took place at 04.30 p.m on 03.03.2017, the postmortem examination on the person of the deceased was conducted after much delay. According to Dr. Fatima Iram (PW-10), she conducted the post mortem examination of the dead body of the deceased namely Mst. Munazza Bibi (deceased) at 10.00 a.m on 03.03.2017 i.e. after 17½ hours of the occurrence and after 15 hours of the registration of the formal F.I.R (Exh.PA/2). Dr. Fatima Iram (PW-10), who conducted the post mortem examination of the dead body of Mst. Munazza Bibi daughter of Habib-ur-Rehman (deceased) and prepared the post mortem examination report (Exh. PQ), gave the time between death and post mortem examination as being twenty four hours. According to Dr. Fatima Iram (PW-10) she received the police documents at 12.20 a.m. on 03.03.2017. According to Muhammad Khalid (PW-1) the dead body had been escorted to the hospital at about 6.30 p.m on 02.03.2017. Muhammad Khalid (PW-1) during cross-examination stated as under:
“Police official escorted the dead body to the hospital at about 06:30 PM.”
In this manner, no explanation was offered to justify the said delay in conducting the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellant escaping from the place of occurrence while armed were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a false narrative after consultation and concert. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of “Khalid alias Khalidi and 2 others vs. The State” (2012 SCMR 327) has held as under:
“The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time”.
The august Supreme Court of Pakistan in the case of “Mian Sohail Ahmed and others vs. The State and others” (2019 SCMR 956) has held as under:
“According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution”
The august Supreme Court of Pakistan in the case of “Muhammad Rafique alias Feeqa vs. The State” (2019 SCMR 1068) has held as under:
“More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the Investigating Officer are also to be handed over in order to assist in the examination of the dead body.
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting.”
20. Regarding the recovery of the Churri (P-13) from the appellant namely Abdul Wahid alias Budho son of Allah Diwaya, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said Churri (P-13) from the appellant which was in clear violation of Section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others vs. The State (2017 SCMR 898) at Page 901 has held as under:
“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard.”
We have also noticed that the Churri (P-13) was shown to have been recovered from the same place where the occurrence had taken place. Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, during cross-examination admitted as under:
“It is correct that the place of recovery i.e house was not owned by accused Abdul Wahid. The Churri was recovered from the room i.e place of the occurrence.
…………………………………………..
It is correct that Churri as allegedly recovered at the stance of accused is easily available in the market.” (emphasis supplied)
According to both the prosecution witnesses namely Muhammad Khalid (PW-1) and Muhammad Asghar (PW-2), the appellant had allegedly fled away from the spot while threatening them with the Churri carried by him and in this manner the subsequent recovery of the same Churri from the place of occurrence cannot be believed. Moreover, both Muhammad Saleem, SI (PW-4) and Ghulam Abbas, SI (PW-9), the Investigating Officer of the case remained at the place of occurrence for a considerable time, however did not observe the presence of any such Churri or any box at the place of occurrence, at the time of their stay there. Moreover, the said Churri (P-13) was allegedly recovered from the house of Mumtaz Ahmad alias Goni (since acquitted) and not from any place which was under the control of the appellant. Another aspect regarding the recovery of the Churri (P-13) from the appellant is that the occurrence took place on 02.03.2017, whereas the Churri (P-13) was sent to the office of Punjab Forensic Science Agency, Lahore, on 07.04.2017 and was analyzed on 04.05.2017. During such a long period the blood available on the Churri (P-13), if any, would have disintegrated. It is not possible to believe that the blood available on the Churri (P-13) had not disintegrated by the time the same was analyzed by the Punjab Forensic Science Agency, Lahore and it was, therefore scientifically impossible to detect the origin of the blood. The august Supreme Court of Pakistan in the case of “Faisal Mehmood vs. The State” (2016 SCMR 2138) has held as under:
“The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.”
Therefore, the recovery of the Churri (P-13) from the appellant does not further the case of prosecution in any manner. In view of the above-mentioned facts, the alleged recovery of the Churri (P-13) is not proved and the same cannot be used as a circumstance against the appellant. The learned trial Court in Para No. 36 of the judgment has rightly disbelieved the evidence of the recovery of the Churri (P-13). With regard to the recovery of the motorcycle (P-14) from the appellant it is observed that the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said motorcycle (P-14) from the appellant which was in clear violation of Section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. Moreover, the said motorcycle (P-14) was allegedly recovered from the house of Mumtaz Ahmad alias Goni (since acquitted) and not from any place which was under the control of the appellant. Additionally, none of the prosecution witnesses namely Muhammad Khalid (PW-1), Muhammad Asghar (PW-2) and Ayyaz Ahmad (PW-3) stated in their statements before the learned trial Court that the appellant had come to the house of Ayyaz Ahmad (PW-3) on a motorcycle or that they had seen the appellant leaving with the deceased on a motorcycle. Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of recovery of the Churri (P-13) and the recovery of the motorcycle (P-14) would have no consequence. It is an admitted rule of appreciation of evidence that the evidence of recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.
21. The learned Deputy Prosecutor General has admitted that the prosecution witnesses mentioned no motive which could have motivated the appellant to have committed the Qatl-i-Amd of the deceased. Ghulam Abbas, SI (PW-9), the Investigating Officer of the case during cross-examination admitted as under:
“It is correct that neither in the written statement of Muhammad Khalid complainant nor in the statements of the PWS, they have got recorded motive of the occurrence.”
22. The learned Deputy Prosecutor General has also laid much stress upon the report of the Punjab Forensic Science Agency, Lahore (Exh.PU), wherein it had been determined that the DNA profile obtained from the sperm fraction of the external vaginal swab and the DNA profile obtained from the epithelial fraction of the external vaginal swab was a mixture of at least two individual and the appellant could not be excluded as being a contributor to the DNA obtained from the sperm fraction of the external vaginal swab and from the epithelial fraction of the external vaginal swab. In Chapter 17 ‘Examination of Biological Stains and Hair”, from page 430 to page 440 of Rai Bahadur Jaising P. Modi’s A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) it has been discoursed as under:
“DNA PROFILING (DEOXYRIBONUCLEIC ACID TYPING)
General-
Life on earth is based on cells; Cell is the basic unit of life. There are around trillions of cells in a human blood. Every cell has a nucleus (except the RBCS); Inside the nucleus which is considered to be the central processing unit of the cell, 23 pairs of chro -mosomes are present. Twenty-two pairs of autosomal chromosomes and one pair of sex chromosomes (XX in females and XY in males). Chromosomes carry linearly arranged genetic units, which are materially referred as Deoxyribonucleic Acid (DNA). There are about 3 billion nucleotides in human DNA. Human DNA is approximately 2 metres long if it is place end to end from 46 chromosomes of a single cell. DNA is present in coiled and super coiled form in the cell. The super coiled structures are known as the chromosomes. This DNA contains genetic information which decides the phenotypic character (height, skin colour, eye colour, hair colour, etc) of an individual. The DNA carries the genetic information from parents to offspring, being half of the DNA from mother and the other half from father. The DNA carries all the information to make proteins (hormones, antibodies, enzymes and structural proteins like actin, myosin, keratin, tubuline) for proper functioning of the body. Another class of DNA present in human cell is the mitochondrial DNA which is present in the cell organelle mitochondria. Unlike nuclear DNA mitochondrial DNA is maternally inherited because the mitochondria of sperm are present in the tail and the tails is digested by hyluronic acid present around the egg cell at the time of fertilisation. The DNA is the genetic material that makes every individual different, except for genetically identi cal twins. A pattern of chemical signals i.e, genetic code, has been discovered within the DNA molecule, which is very unique to each individual, just like their actual fingerprint. Thus, the DNA profiling, unique to each individual, is colloquially referred to as ‘DNA Fingerprinting’ and it is also known as DNA typing. The companies who offer the DNA profiling claim that a DNA match of two individuals is as unlikely as 1 in 30 billion. One more estimation puts it at 1 in 800, 000, 000 The chemical DNA was first discovered in 1869, but its role in genetic inheritance was not demonstrated until 1943. In 1944, Oswald Avery made the breakthrough discovery that DNA is the basic genetic material. A few years later, in 1953, James Watson and Francis Crick determined that the structure of DNA is a double-helix polymer, a spiral consisting of two DNA strands wound around each other. The technique of DNA Fingerprinting was 229 first developed in 1984 by Dr Alec Jeffreys from Britain. Since then, increasing attention has been paid around the world to the use of DNA profiling for individualisation purposes in criminal and allied cases. Paternity testing is another important use through DNA since 1988. The use of Restriction Fragment Length Polymorphism (RFLP) analysis of minisatellites or Variable Number of Tandem Repeat (VNTR) loci scattered along the chromosomes has spread interest among the medico legal professionals. The use of microsatellites or Short Tandem Repeats (STRs) also gained momentum with the passing years. These are consecutive repeats that are abundantly found in DNA. In contrast to 100-200 bps length of RFLPS and VNTRs, the STRS are of a smaller length of 2-10 bps. The short size of STRS is particularly useful if the sample is degraded or with Low Copy Number (LCN) DNA. Such degraded or fragmented DNA is encountered in samples that have been exposed to hostile external environment conditions like sunlight, heat, excessive salt etc. The traditional techniques like RFLP and VNTRS are not very helpful in such cases. The variants of STRS including Autosomal STR, MINI-STR, Y-STR and X-STR have immensely contributed to the forensic field. Three types of results are possible after comparing the question sample (Q) and the known sample (K) in cases of autosomal, Y and X-STR markers analysis. These are-(1) Exclusion This result is produced when the STR haplotypes are different and could not have originated from the same source. (2) Inclusion (or failure to exclude). This result is produced when STR haplotypes that result from Q-K comparison are the same and could have originated from the same source. (3) Inconclusive:-The result is inconclusive when the data are insufficient to render an interpretation or in other words ambiguous results are obtained.
The Autosomal STR markers: are commonly used to establish identity and settle paternity disputes. They are studied on all the 22 pairs of autosomes to avoid linkage issues within the markers.
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Samples required for DNA profiling. Any biological material such as a drop of blood, saliva, semen, and any body part such as bones, tissue, skull, teeth, and hair with the root found at the scene of crime may serve as a sample for DNA profiling. The CDFD gives the following guidelines about collecting samples:
(i) Maternity/paternity/parentage: Blood samples of mother, disputed child and alleged father are required. The blood samples (2 -3ml) can be collected in the sterile blood collection material (EDTA vials) sent by the laboratory, in the presence of Court authorities. These samples should be sent in ice in a thermos flask either by a messenger or through courier, so as to reach the laboratory within 72 hours after collection.
(ii) Identity of the deceased: Any body part of the deceased found at the scene of crime along with the blood samples of the blood relatives of the suspected individuals (viz., parents, and children) should be sent.
(iii) Identity of rape/rapist: Blood / semen stained clothes, garments, swabs, and slides of the victim and the accused is forwarded to the laboratory.
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Problems linked with DNA profiling. One of the lasting effects of the OJ Simpson case will likely be greater scrutiny by defence lawyers of the prosecution’s forensic DNA presented in criminal cases. In the Simpson case, the defence, in essence, put the crime evidence laboratory on trial. There is no substantial dispute about the underlying scientific principles in DNA profiling, however, the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry.
Although, there is a common consensus within the scientific community that DNA profiling can yield results with a very high probability, the complex procedure of DNA profiling is not without problems. At every phase of the seven-step procedure just described, mistakes and improper handling of the DNA-probe can produce false results which in some cases can lead to a life sentence or even death-penalty judgement. Therefore, the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry.
Furthermore, the DNA samples can be mixed up by the police or the laboratory personnel (this actually took place in one case) or the amount of DNA can be insufficient. The various contaminants include microbes, fibres, concrete, soil, vegetable matter, other body fluids besides foreign DNA from field agents and laboratory workers. It can be avoided by handling the forensic evidence at a place that is segregated from the, where amplication of the sample is to be conducted. If the sample is accidentally mixed with foreign DNA before amplification, the contaminant will also get amplified resulting in mixed profiles at the time of STR analysis. Secondly, a significant ‘source of error’ is the incomplete digestion of the DNA by the restriction enzymes. The other extreme can be an over-digestion also called ‘star activity’. Thirdly, a ‘band shift’ can occur, meaning that the DNA fragments which are put in several lanes next to each other can influence each other’s mobility, thus causing wrong results of the gel electrophoresis. In connection with the problem of ‘band shift’, the gel electrophoresis itself may not be conducted properly, i.e., the voltage can be too low or too high or the concentration of the gel can be incorrect. Finally, the expert who determines a match can be biased”.
In our legal framework DNA evidence is evaluated on the strength of Articles 59 and 164 of the Qanun-e-Shahadat, 1984 (QSO). The former provision states that expert opinion on matters such as science and art falls within the ambit of ‘relevant evidence’. On the other hand, the latter provision provides that the Court may allow reception of any evidence that may become available because of modern devices and techniques. Under this regime the technician who conducts experiment to scrutinize DNA evidence is regarded as an expert whose opinion is admissible in Court. Subsection (3) of Section 9 of the Punjab Forensic Science Agency Act, 2007, reaffirms this legal position when it enacts that “a person appointed in the Agency as an expert shall be deemed as an expert appointed under Section 510 of the Code of Criminal Procedure, 1898] and a person specially skilled in a forensic material under Article 59 of the Qanun-e-Shahadat, 1984 (P.O. X of 1984).” A combined reading of all these provisions shows that the report of the Punjab Forensic Science Agency regarding DNA analysis is per se admissible in evidence under Section 510, Cr.P.C. Since DNA analysis report is reckoned as a form of expert evidence in criminal cases, it cannot be treated as primary evidence and can be relied upon only for purposes of corroboration. This implies that no case can be decided exclusively on its basis. Credibility of the DNA test inter alia depends on the standards employed for collection and transmission of samples to the laboratory. Safe custody of the samples is pivotal. Thus, in every case the prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the said chain or lapse in the control of the sample would make the DNA test report unreliable. In the cases of Mst. Sakina Ramzan versus State” (2021 SCMR 451), “Ikramullah v. The State” (2015 SCMR 1002), “The State through Regional Director ANF v. Imam Bakhsh and others” (2018 SCMR 2039) and “Khair-ul-Bashar v. The State” (2019 SCMR 930) the august Supreme Court of Pakistan refused to rely on the report of the Government Analyst and set aside conviction when the prosecution could not establish safe transmission of the samples from the place of recovery to the laboratory. In the present case the prosecution failed to prove the safe transmission of the external vaginal swab to the Punjab Forensic Science Agency, Lahore, making the value of the report of the Punjab Forensic Science Agency, Lahore (Exh.PU) as of no worth. Mudassar Masood 394/HC (PW-7) stated that on 03.03.2017 Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, handed over to him two sealed boxes and four sealed envelopes and on 21.03.2017 he handed over all the above sealed parcel, boxes and envelopes to Ghulam Abbas, SI (PW-9) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Contrary to the said statement of Mudassar Masood 394/HC (PW-7) that on 21.03.2017 he handed over all the above sealed parcel, boxes and envelopes, including the external vaginal swab, to Ghulam Abbas, SI (PW-9) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore, Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, in his statement before the learned trial Court never stated so. Ghulam Abbas, SI (PW-9), the Investigating Officer of the case gave no evidence that he had been handed over and taken the sealed envelopes containing the vaginal swabs to the Punjab Forensic Science Agency, Lahore. Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, was never re-examined by the prosecution nor any application was moved in this regard that he had also been handed over sealed envelopes said to contain the vaginal swabs on any date for them to be transmitted to the office of Punjab Forensic Science Agency, Lahore. In this manner, the safe custody and the safe transmission of the vaginal swabs to the Punjab Forensic Science Agency, Lahore is not proved and in absence of that evidence no reliance can be place on the report of Punjab Forensic Science Agency, Lahore (Exh.PU).This portion of the prosecution evidence proves that there are missing links in the chain relating to the submission of the vaginal swabs to the Punjab Forensic Science Agency, Lahore. We have queried the learned Deputy Prosecutor General to clarify that what was the evidence available on the record to confirm that the vaginal swabs had indeed been transmitted to and kept in safe custody and then deposited in the Punjab Forensic Science Agency, Lahore but, after going through the record of this case from cover to cover, the learned Deputy Prosecutor General remained unable to refute that there is no consistent evidence whatsoever available on the record in this respect that how the vaginal swabs were transmitted to the Punjab Forensic Science Agency, Lahore. The learned Deputy Prosecutor General admitted that the prosecution evidence was contradictory and mutually destructive in this regard. In such a state of contradictory evidence available on the record, safe custody of the vaginal swabs is not discernable from the record of this case. In absence of such evidence, prosecution, which must establish that the chain of custody of the vaginal swabs was unbroken, unsuspicious, indubitable, safe and secure, has failed to do so. The break in the chain of custody of the vaginal swabs casts doubts and impairs and vitiates the conclusiveness and reliability of the report of the Punjab Forensic Science Agency, Lahore (Exh.PU). The august Supreme Court of Pakistan has observed in the case of Azeem Khan and another vs. Mujahid Hussain and others (PLJ 2016 SC 123) that the report of Punjab Forensic Science Agency, Lahore with regard to DNA analysis cannot be implicitly relied upon and has held as under:
“In the recent past many scandals in USA, UK and other countries have surfaced where desired DNA test reports were procured by the investigative by contaminating the samples. Such contamination has also been reported in some cases while the samples remained in the laboratories. Many inquires were held on this issue and stringent law has been made by many States to prevent the contamination of samples outside and inside the laboratories. Proper procedure has been laid down for securing and carefully putting into parcel the suspected materials to co-relate with the samples of the parents to establish paternity or maternity. Similarly, stringent check and procedure has been provided to avoid and prevent cross contamination of the two samples because if both come in contact with each others then, it will give false positive appearance and the expert is thus misled. It has also been discovered that credentials of many experts, claiming possessed of higher qualification in this particular field, were found fake and they were thus, removed from service. The DNA Wikipedia on web is an unrebutted testimony to these facts.
28. In any case, it is an expert opinion and even if it is admitted into the evidence and relied upon, would in no manner be sufficient to connect the necks of the appellants with the commission of the crime when the bulk of other evidence has been held by us unbelievable thus, no reliance can be placed on it to award a capital sentence. Moreover, to ensure fair-play and transparency, the samples in the laboratories from the parents should have been taken in the presence of some independent authority like a Magistrate and also the recovered samples from the crime scene in the same way to dispel the chances of fabrication of evidence through corrupt practices and the transition of the samples to the laboratory should have also been made in a safe and secure manner. But all these safeguards were kept aside.”
23. The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Fatima Irum (PW-10) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellant’s conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another vs. The State” (2017 SCMR 986) has enunciated the following principle of law:
“The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit.”
The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others vs. The State” (PLD 2021 Supreme Court 600) has enunciated the following principle of law:
“31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not “corroborative evidence” in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person.32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.”
24. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Abdul Wahid alias Budho son of Allah Diwaya, the appellant, in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of “Muhammad Mansha vs. The State” (2018 SCMR 772) has enunciated the following principle:
“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram vs. The State (2009 SCMR 230) in which it has been observed in Paragraph No. 13 of page 236 as infra:
“It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
25. For what has been discussed above Criminal Appeal No. 436-J of 2019 lodged by Abdul Wahid alias Budho son of Allah Diwaya (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment dated 11.07.2019 are hereby set-aside. Abdul Wahid alias Budho son of Allah Diwaya (appellant) is ordered to be acquitted by extending him the benefit of doubt. Abdul Wahid alias Budho son of Allah Diwaya (appellant) is in custody and is directed to be released forthwith if not required in any other case.
26. It is made clear that the observations made in this judgment shall not be relevant during the trial of the absconding co-accused namely Rukhsana alias Rukhi wife of Muhammad Tariq (since declared a proclaimed offender) and her case shall be decided on the basis of the evidence adduced during the trial by the parties (prosecution and defence), strictly in accordance with the law.
27. Murder Reference No. 18 of 2019 is answered in Negative and the death sentence awarded to Abdul Wahid alias Budho son of Allah Diwaya is Not Confirmed.
(K.Q.B.) Appeal allowed
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