PLJ 2024 Cr.C. (Note) 241
[Peshawar High Court, Abbottabad Bench]
Present: Kamran Hayat Miankhel and Muhammad Ijaz Khan, JJ.
SIRAJ AHMAD--Appellant
versus
STATE--Respondent
J. Crl. A. No. 63-A/2022 with M.R. No. 01-A/2022,
decided on 14.11.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 376--Khyber Pakhtunkhwa Protection and Welfare Act, (XIII of 2010), S. 53--Conviction and sentence--Murder of minor girl--Cause of death to be due to cardiopulmonary arrest secondary to asphyia due to strangulation--No direct ocular account--Capital punishment of death--Challenge to--Circumstantial evidence with DNA Test Report--Post-mortem report, injuries around neck, check and left side of nose were noted--Validity--Prosecution has been able to prove their case, and thus trial Court has rightly convicted accused u/S. 302(b) and 376(3) of PPC--It was appellant who took away deceased/victim and lateron murdered her and thus was rightly convicted u/S. 302(b) PPC by trial Court--Neither any evidence has been produced that as to how, when and through what source, appellant was shifted, therefore, such aspects of case could be treated as mitigating circumstances for reduction of sentence of accused from capital punishment to imprisonment for life--Sole fact has shaken credibility and evidentiary value of report of DNA Test and fingerprint matching report and these reports have proved a futile exercise because, although these tests provide strong corroboration to stance of prosecution in identifying accused person(s), but in case of any forensic evidence, concerned authorities must adhere to fundamentals of preserving specimens, labeling, and chain of custody and also to comply with any constitutional or statutory requirements regulating collection and handling of samples--Sentences of death awarded to accused u/S. 302(b) and 376(3) PPC are reduced from that of death on two counts to imprisonment for life on two counts--Convictions awarded to accused by trial Court u/S. 302(b) PPC, u/S. 376(3) PPC and u/S. 53 of Act, 2010, are maintained, however, sentences awarded to appellant under Section 302(b) PPC as well as u/S. 376(3) PPC are only reduced from death on two counts to imprisonment for life on two counts (the former as Ta’zir), whereas rest of his conviction/ sentences and payment of compensation to legal heirs of deceased u/S. 544-A Cr.P.C. and payment of fine amounts shall remain intact--Appeal partially was allowed.
[Para 11, 12, 16, 18, & 19] F, G, H, I, L, N, O & P
DNA Test--
----Scope of--No direct evidence--Circumstantial evidence with prosecution was DNA Test Report--Appreciation of evidence--Rape case--Role of science in criminal cases--Validity--Being a strong corroborative piece of evidence could be considered for purpose of maintaining conviction order/judgment--DNA test ordinary and especially in cases of rape speaks of accuracy and conclusiveness, therefore, trial Court has rightly relied upon same--Scientific approach must be encouraged and adopted towards collection of material that not only I.O. but also Judges and especially a trial Judge must be abreast with modern forensic techniques and its impact on a case pending before it--Modern devices in Court cases has also been recognized and acknowledged by Legislature as recently Art. 164 has been asserted in QSO which underlines that modern techniques should, not only be used but result should be considered to have a major role and relevant for purpose of decision in a controversy pending before Court of law.
[Para 9 & 10] A, B & C
Khyber Pakhtunkhwa Protection and Welfare Act, 2010 (XIII of 2010)--
----S. 53--Pakistan Penal Code, (XLV of 1860), Ss. 302 & 376--Conviction and sentence--Murder after rape of minor girl--DNA Test Report--Validity--DNA technology was significantly advanced and introduction of DNA profiling revaluationized forensic science--Now DNA test provides Courts a mean of identifying perpetrators with a high degree of confidence--By using DNA technology Courts are in a better position to reach at a conclusion whereby convicting real culprits and excluding potential suspects as well as exonerating wrongfully involved accused. [Para 10] D
Medical Evidence--
----Post mortem examination was conducted by PW and Post Mortem Report confirms that victim was subjected to rape before her murder as in column No. 13 of post mortem report.
[Para 17 & 18] J, K & M
PLD 2020 SC 146 ref. 2009 SCMR 1188, 2007 SCMR 1413 ref.
Ms. Lubna Khan, Advocate for Appellant.
Sardar Waqar-ul-Mulk, Assistant Advocate General for State.
Mr. Awais Abbasi, Advocate for Complainant.
Date of hearing: 14.11.2023.
Judgment
Muhammad Ijaz Khan, J.--Through the instant Jail Criminal Appeal, appellant/convict namely Siraj Ahmad has challenged the order and judgment dated 17.03.2022 passed by learned Additional Sessions Judge-IV, Abbottabad whereby the appellant was convicted and sentenced, in a case registered vide FIR No. 496 dated 18.08.2019 under sections 302/376 PPC read with Section 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, Police Station Nawanshehr, Abbottabad, as under:--
(i) Death as he be hanged by the neck till he is dead, with payment of compensation of Five Hundred Thousand Rupees (Rs. 500,000/-) payable to the legal heirs of deceased under Section 544-A Cr.P.C. recoverable as an arrear of land revenue for the offence of Qatl-e-Amd under Section 302(b) PPC. The provisions of Section 544-A(1) Cr.P.C. is mandatory, so in case of default in payment of amount of compensation he has to further undergo for six (06) months simple imprisonment under Section 544-A(2) Cr.P.C., then also the compensation will be recovered as an arear of land revenue.
(ii) Death as he be hanged by the neck till he is dead, with fine one Hundred Thousand Rupees (Rs.100,000/-) for offence of rape under Section 376(3) PPC. In case of non-payment of fine then he has to further undergo for six (6) months simple imprisonment under sections 386 Cr.P.C./64/65 PPC, and
(iii) Fourteen (14) years rigorous imprisonment with fine Ten Hundred Thousand Rupees (Rs.10,00,000/-) for offence of Sexual Abuse under Section 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010. In case of non-payment of fine then he has to further undergo for six (6) months simple imprisonment under sections 386 Cr.P.C./64/65 PPC.
Benefit of Section 382-B Cr.P.C. was extended to the convict.
2. Precisely, the facts of the present case are that on 18.08.2019 Niaz Gul son of Muhammad Ashraf at 22.30 hours alongwith dead body of his daughter namely Kashaf Bibi aged about 7/8 years lodged report to Tariq Mehmood (then) SHO Police Station, Nawanshehr Abbottabad (PW-7) in Emergency Ward of Ayub Teaching Hospital (ATH) to the effect that his daughter Kashaf Bibi went out of the house to play; however till 16.00 hours she did not return to the house, so he and other relatives started searching her in the village; when she was not found, he was on the way towards Police Station for lodging a report, when his real brother namely Waqas informed him through his mobile phone at 09.30 p.m. that his minor daughter Kashaf Bibi is lying dead in a field situated at Mohallah OchharAkhrela; on this information he reached the spot and saw that his minor daughter Kashaf Bibi was lying dead; he stated that some unknown culprit(s) has/have murdered his daughter due to unknown reason(s). He charged unknown culprit(s) for the murder of his daughter. The said SHO prepared the injury-sheet and inquest-report (Ex.PW-7/1 and Ex.PW-7/2) of the deceased and reduced the report of the complainant into writing in shape of Murasila (Ex.PA) and the same was sent to the Police Station through Shahzad Shah HC (PW-3) for registration of case; resultantly instant FIR (Ex.PA/1) was registered.
3. After the completion of investigation, the complete challan was submitted before the Court against the appellant upon which a full-fledged Trial was conducted. Prosecution in order to prove its case against the appellant, produced as many as seventeen (17) witnesses including the important statements of PW-2 namely Abdul Shakoor IHC who stated to have taken parcel No. 7 containing clothes of appellant consisting of Shalwar and Qameez to FSL Lahore vide Road Certificate Ex.PW-2/1 and deposited the same there on 28.08.2019. PW-5 is Inam-ul-Haq O.I.I/S.I who stated to have taken parcels No. 1 to 6 (three tubes containing swabs of the deceased, one phial having hair of her skin, her Shalwar, frock, a box containing sample of her lung, a box containing sample of her stomach) to Forensic Science Agency Lahore vide Road Certificates (Ex.PW-5/4 and Ex.PW-5/5) and letters of SP Investigation (Ex.PW-5/1 to Ex.PW-5/3). PW-9 is lady Dr. Samina Gulzar who conducted post-mortem examination on the dead body of the deceased and wrote her remarks regarding cause of death of the deceased to be due to cardiopulmonary arrest secondary to asphyxia due to strangulation. She also stated to have obtained specimen of stomach, lungs, vaginal swab, high vaginal swab, per-rectal swab, Pajama and frock of deceased, skin and hair and handed over the same to police. She exhibited post mortem report as Ex.PM. PW-12 is Muhammad Khan Waiz O.I.I/S.I. who conducted investigation of the instant case. PW-13 is Niaz Gul. He is complainant of this case and narrated almost the same facts which he mentioned at the time of his report (Ex.PA), PW-14 is Mst. Tahira who is the mother of the deceased and stated some pre and post events regarding the occurrence. PW-15 is Khadija Bibi daughter of Sheraz. She stated that appellant came to their house where she alongwith deceased and Mehmoona were playing and asked Kashaf that her father is calling her upon which Kashaf left followed by appellant. PW-16 is Waqas. He is brother of the complainant/uncle of the deceased. He and Ajmal statedly succeeded in search to have found Kashaf lying in the bushes situated near landed property Kassi. They took her to home and then to hospital. When prosecution closed its evidence, statement of the appellant was recorded under Section 342 Cr.P.C before the learned trial Court, wherein he claimed innocence. However, he neither wished to produce the defense evidence nor desired to be examined as witness under Section 340(2) Cr.P.C. After hearing arguments of both the sides, the learned trial Court passed convictions and sentences against the appellant under the relevant sections of law as stated hereinabove, through order and judgment dated 17.03.2022 which order and judgment has now been challenged by the appellant through the instant criminal appeal.
4. Arguments of the learned counsel for the appellant as well as learned Assistant Advocate General assisted by the learned counsel for complainant were heard in considerable detail and record perused with their able assistance.
5. It is the case of prosecution as reported by the complainant/PW-13 to the local police in Emergency Ward at ATH that on the day of occurrence at 14.00 hours, her minor daughter Kashaf Bibi aged about 7/8 years went outside her home for playing, however, she did not come back till 16.00 hours. Thereafter he and his family members started search for her in the village, however, she was not found and thus when he was on his way to the local Police Station, to lodge the report of went missing of his daughter in the meanwhile at 09.30 p.m. (21.30 hours) he received a telephonic call of his brother namely Waqas (PW-16) who informed him that they have found the dead body of his daughter and when reached to the spot on the aforesaid information he saw that his daughter was lying murdered. He charged the unknown accused for the murder of his daughter for unknown reasons and then it was on the third day of the occurrence i.e. 21.08.2019 when the complainant recorded a supplementary statement under Section 164 Cr.P.C. whereby he after verifying and satisfying himself from the police investigation charged the present appellant who happens to be his nephew for the murder and rape of his daughter, hence, instant FIR was registered.
6. Admittedly there is no direct ocular account available in this case as the dead body of the deceased was found unattended from thick bushes some 200 yards away from the house of complainant. It is also an admitted fact as spelling out from the record that appellant has not been seen near or around the place of occurrence as well as at the place of recovery of the dead body, therefore, in the given facts and circumstances, the only material evidence which prevailed with the learned trial Court for awarding the capital punishment of death to the appellant was firstly the Deoxyribonucleic Acid (DNA) Report of the appellant which statedly matched with the swab taken from the victim and Buccal swab standards of appellant, and secondly the statement of a minor witness (who happened to be a friend of the victim) namely Khadija aged about 12 years, therefore, these aspects of the case are to be evaluated and analyzed on the basis of evidence available on the file.
7. It is part of the record that the instant occurrence has taken place on 18.08.2019 and it was on the next day i.e. on 19.08.2019 when statement of PW Khadija who is aged about 12 years was recorded under Section 161 Cr.P.C. who stated that on the previous day when she alongwith Kashaf and Momena were playing, in the meanwhile Siraj (appellant) came and took away Kashaf Bibi alongwith him, therefore, the appellant was arrested without issuing any card of his arrest as suspicious in the instant case on 20.08.2019.
8. As per the record as transpired from a letter of SP Investigation Abbottabad (Ex.PW-12/4) vide which appellant was sent to Punjab Forensic Science Agency Lahore for his DNA examination as admittedly in the present case for the DNA test, samples were not taken from the appellant rather he was personally sent for the DNA test with the profile of deceased Kashaf Bibi to Punjab Forensic Science Agency, Lahore under the supervision and escort of Muhammad Iltaf SDPO/CIO Circle Mirpur and the report of the said Agency which is placed on file as Ex.PW-12/23 would manifestly show that one rectal swab taken from Kashaf Bibi which was Item # 2-before FSL is mixture of at least two individuals with major and minor components and it was further found that the major component of the DNA profile obtained from the sperm fraction of item #2 is consistent with the DNA profile of Siraj Ahmad/appellant (item # S1). It has also been opined that the probability of finding of an unrelated individual at random in the population as being major contributor to the DNA obtained from the sperm fraction of item # 2 is approximately one in 5 sextillion in Caucasians. The minor component of the DNA profile obtained from the sperm fraction of item # 2 is partial and consistent with Kashaf Bibi (item # 6) and thus through the scientifically generated evidence it has been established that it was the appellant who has raped the victim.
9. It is relevant to mention here that in the present case, there is no direct evidence and the most important piece of circumstantial evidence with the prosecution is the DNA test report and which alone is sufficient to establish the identity of an accused and as a DNA test excludes all possibilities of inaccuracy, therefore, the same being a strong corroborative piece of evidence could be considered for the purpose of maintaining the impugned conviction order/judgment. In the case titled “Atif Zafeer and others vs. The State” reported as PLD 2021 Supreme Court 550, the Honourable Supreme Court has observed that the involvement of Sher Baz Khan alias Sheru and Atif Zareef in commission of this offence is corroborated by the DNA test report (Ex-PS), which is considered, due to its scientific accuracy and conclusiveness, as a gold standard to establish the identity of an accused and a very strong corroborative piece of evidence. The prosecution has thus proved its case against the appellants.
10. It is also relevant to mention here that DNA test ordinary and especially in the cases of rape speaks of accuracy and conclusiveness, therefore, the learned trial Court has rightly relied upon the same. Recently the Apex Court has highlighted the role of science in criminal cases and has observed that the scientific approach must be encouraged and adopted towards collection of material and it has further been observed that not only the Investigation Officer but also the Judges and especially a Trial Judge must be abreast with the modern forensic techniques and its impact on a case pending before it. The aforesaid importance of modern devices in Court cases has also been recognized and acknowledged by the Legislature as recently Article 164 has been asserted in The Qanun-e-Shahadat Order, 1984 which underlines that modern techniques should, not only be used but the result should be considered to have a major role and relevant for the purpose of decision in a controversy pending before the Court of law. Recently the Apex Court in a case titled “Ali Haider alias Papu vs. Jameel Hussain and others” reported as PLD 2021 Supreme Court 362, has observed in Paras No. 4, 5 and 6 that:
“4. Before analyzing the circumstantial evidence, it might 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, Courts must 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. Article 164 of the Qanun-e-Shahadat Order, 1984 (QSO) is our gateway allowing modern 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. Proviso to Article 164, 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 experts as evidence, in order to arrive at the truth.
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. This 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 analysis can offer irrefutable evidence. Criminal justice system is in search for the truth. The development of DNA technology furthers the search 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. An 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.’
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 criminal law. Section 164-A, Cr.P.C provides that where an offence of committing rape, 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 P.P.C. 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 53A where 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 P.P.C. and there are reasonable grounds for believing that an examination of the 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 Section 53A(2)(d). Under Section 164-B where an offence under Sections 376, 377 or Section 377B, P.P.C. 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 164A and DNA samples of the accused under Section 53A, both within optimal time period of receiving 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 observing confidentiality of such examination at all times. The above legislative framework underscores the relevancy and thus the admissibility of a DNA Test.”
Similarly, in the case titled “Salman Akram Raja and another vs. Government of Punjab through Chief Secretary, and others” reported as 2013 SCMR 203, the Apex Court observed that it is to be noted that the administration of DNA test in order to determine the truthfulness of the allegation of crime is not new. Initially the DNA was not so reliable, therefore, the Courts often excluded it from the evidence and not based the conviction on it. However, in the last decade or so the DNA technology has significantly advanced and introduction of DNA profiling has revolutionized forensic science. Now DNA test provides the Courts a mean of identifying perpetrators with a high degree of confidence. By using the DNA technology the Courts are in a better position to reach at a conclusion whereby convicting the real culprits and excluding potential suspects as well as exonerating wrongfully involved accused.
11. So far as medical evidence in this case is concerned, the post-mortem examination was conducted by PW-9 and Post Mortem Report (Ex.PM) confirms that the victim was subjected to rape before her murder as in column No. 13 of the post mortem report, the following observations have been recorded:
“Secondary sex characters not developed. No injury noted externally. Internally hymen ruptured and having blood stained fluid in posterior fornics.”
In view of the above, it has been established by the prosecution that infact the victim was subjected to rape. Similarly, as per the aforesaid post mortem report, injuries around the neck, cheek and left side of nose were noted which also shows that the victim has been murdered by strangulation and PW-9, the lady doctor has twice confirmed in her cross-examination that since there was frothing from the mouth of deceased which suggests that she was murdered by pressing her neck and suffocation, therefore, to this extent too, the prosecution has been able to prove their case, and thus the learned trial Court has rightly convicted the appellant under Sections 302(b) and 376(3) of the Pakistan Penal Code.
12. It is also part of the record that the appellant was last seen in the company of the victim by Khadija/PW-15 who on the very next day of occurrence recorded her statement before the police and it was on the basis of her statement that the appellant was arrested as potentially suspected person and then he was sent to Forensic Science Agency Lahore for his DNA test. The said minor PW has appeared in the Court as PW-15. Her statement was gone through which is consistent and confidence inspiring in all respects and nothing has been extracted from her mouth to cast any doubt qua the appellant being last seen with victim-cum-deceased as well as to create any doubt qua the identity of the appellant as it is part of the record that the victim Kashaf Bibi, PW Khadija and appellant Siraj Ahmad are close relatives, therefore, to this extent too, the prosecution has been able to prove that it was the appellant who took away the deceased/victim and lateron murdered her and thus was rightly convicted under Section 302(b) PPC by the learned trial Court.
13. In view of the above material and evidence available on file, it is established on the face of record that it was the appellant who initially raped and then murdered the victim, however, the next question would be that as to whether on the available material, the appellant could be awarded the capital punishment of death or there is/are any mitigating circumstance(s) which could warrant reduction of the quantum of sentence.
14. In order to answer the above question, it would be relevant to mention here that it is the case of prosecution that when the appellant was arrested on 20.08.2019 as a suspect in the instant case then instead of taking any sample from him for sending the same to FSL, he was personally sent to the Punjab Forensic Science Agency Lahore under the escort of Muhammad Iltaf SDPO/CIO, however, quiet astonishingly neither the statement of said Iltaf has been recorded by the I.O. under Section 161 Cr.P.C. nor he has been produced by the prosecution as its witness. Learned counsel representing respondent/complainant stated that during the course of trial he submitted an application under 540 Cr.P.C. to summon the said Iltaf as a prosecution witness, however, his that application was dismissed initially by the learned trial Court and then a revision petition before this Court was also withdrawn by the prosecution, therefore, in the given facts and circumstances, the prosecution has not been able to prove the safe shifting and production of the appellant for his DNA test before Punjab Forensic Science Agency Lahore.
15. Another aspect paving a way to mitigate the quantum of sentences of appellant is that as per card of arrest (Ex.PW-12/10) he was arrested on 21.08.2019, however, surprisingly he was allegedly sent to Punjab Forensic Science Agency Lahore a day before his arrest i.e. on 20.08.2019 as transpired from letter of Superintendent of Police Investigation Abbottabad (Ex.PW-12/4). Besides that, as per Memo (Ex.PW-12/9) dated 20.08.2019, the I.O. added Section 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 against the appellant in the instant case but the prosecution has not explained as to why appellant was not arrested on that very date i.e. 20.08.2019 or prior to that particularly when sections 302/376 PPC were already embodied in the FIR and without his formal arrest, when and how the appellant was sent to the Punjab Forensic Science Agency Lahore is a lacuna which has not been explained by the prosecution.
16. The aforesaid shortcomings in the prosecution case becomes more significant when it is seen that neither any evidence has been produced that as to how, when and through what source, the appellant was shifted from Abbottabad to Lahore, therefore, such aspects of the case could be treated as mitigating circumstances for the reduction of the sentence of appellant from capital punishment to imprisonment for life. In the case titled “Rashed alias Chand and others vs. The State” reported as 2022 PCr.LJ 664 [Lahore] it was observed that although a positive forensic report of DNA test is available on the file which establishes that original source of DNA sampling of semi-smoked cigarette Butt is appellant Fiaz alias Mansha while sample of finger prints obtained from switch boards are of Appellant Rashed alias Chand but it is unfortunate to note that said articles of DNA sampling and fingerprints samples, were not sent to PFSA instantly rather the same was done only after the arrest of appellants and after obtaining their buccal swab standards and finger print samples. This sole fact has shaken the credibility and evidentiary value of report of Deoxyribonucleic Acid (DNA) Test and fingerprint matching report and these reports have proved a futile exercise because, although these tests provide strong corroboration to the stance of prosecution in identifying the accused person(s), but in case of any forensic evidence, concerned authorities must adhere to the fundamentals of preserving specimens, labeling, and the chain of custody and also to comply with any constitutional or statutory requirements regulating the collection and handling of samples. For collection, preservation, safe custody and dispatching of DNA sampling and fingerprint samples to Forensic Laboratory, same principles will be applicable, which are applicable in cases of other items/samples collected for forensic opinions.
17. Another mitigating circumstance, which could be considered is that though the prosecution has relied upon the statement of PW-15 Khadija to the effect that the appellant was last seen in the company of the victim, however, it is noteworthy that PW-15 was of 12 years of age at the time of recording of her statement in the Court and thus she was a child witness, however, learned trial Court has neither conducted any “rationality test” nor put any question to her to know that whether she was competent and capable of giving statement before the Court. In the case titled “Raja Khurram Ali Khan and 2 others vs. Tayyaba Bibi and another” reported as PLD 2020 Supreme Court 146, the Apex Court has held that the essential conditions for a child, or for that matter any person, to appear and testify as a witness, is that the child or the person must have the capacity and intelligence of understanding the questions put to him, and also be able to rationally respond thereto. This threshold has been referred to as passing the “rationality test”, and the practice that has developed with time in our jurisdiction is for the same to be carried out by the presiding Judge prior to recording the evidence of the child witness. Moreover, we have noted that in our jurisdiction, the judicial acceptance of a child witness, as a safe piece of evidence, has been rather hesitant and cautious.
Since in the instant case, the learned trial Court has straightaway recorded statement of a child witness namely Khadeja as PW-15 like a major witness, without conducting the aforesaid “rationality test”, therefore, this aspect too, could be considered as a mitigating circumstance for the reduction of the sentence of the appellant from death to imprisonment for life.
18. Keeping in view the above aspects of the case, this Court has come to the conclusion that as like the concept of benefit of doubt for considering the question of guilt or otherwise, the Court of law could also consider any mitigating circumstance(s) for awarding lesser penalty keeping in view the facts and circumstances of the case. The aforesaid principle of appreciating of evidence qua considering the mitigating circumstances for the purpose of reduction in capital punishment was applied by the Apex Court in the case titled “Mir Muhammad alias Miro vs. The State” reported as 2009 SCMR 1188 where the Apex Court converted the death sentence awarded to the accused into that of life imprisonment. Similarly, in the case titled “Muhammad Riaz and another vs. The State and another” reported as 2007 SCMR 1413, it has been observed by the Apex Court that normally penalty for an act of commission of Qatl-i-Amd provided under the law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case.
In view of the above discussion and for mitigating circumstances as highlighted in the preceding Paras of this judgment, the sentences of death awarded to the appellant under Section 302(b) and 376(3) PPC are reduced from that of death on two counts to the imprisonment for life on two counts.
19. In view of the above discussions and expositions of law on the subject, the convictions awarded to the appellant namely Siraj Ahmad by the learned trial Court vide order and judgment dated 17.03.2022 under Section 302(b) PPC, under Section 376(3) PPC and under Section 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, are maintained, however, sentences awarded to the appellant under Section 302(b) PPC as well as under Section 376(3) PPC are only reduced from death on two counts to the imprisonment for life on two counts (the former as Ta’zir), whereas the rest of his conviction/sentences and the payment of compensation amount of
Rs. 500,000/-to the legal heirs of deceased under Section 544-A Cr.P.C. and payment of fine amounts shall remain intact. All the sentences of imprisonment awarded to the appellant shall run concurrently and the benefit of Section 382-B Cr.P.C. is also extended to him. With the aforesaid modifications, the instant appeal is partially allowed. Since we have reduced the sentences of the appellant from death on two counts to the imprisonment for life on two counts, therefore, Murder Reference No. 01-A/2022 sent by the learned trial Court to this Court is answered in negative.
The above are the detailed reasons of our short order of even date.
(A.A.K.) Appeal allowed
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