-Defective sampling for DNA--The actual homicide incident remained unwitnessed and till registration of FIR, identity of culprit was unknown and for this reason none was nominated therein..................

 PLJ 2024 Cr.C. 1024 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Ch. Abdul Aziz and Sadaqat Ali Khan, JJ
ABDUL HAKEEM and another--Appellants
versus
STATE and another--Respondents
Crl. A. No. 835 & M.R No. 44 of 2022, heard on 20.3.2024.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Defective sampling for DNA--The actual homicide incident remained unwitnessed and till registration of FIR, identity of culprit was unknown and for this reason none was nominated therein even as a suspect--He was indicted for vicious killing of two persons, one out of whom was factually beheaded--The homicide incident though remained unwitnessed but police collected various incriminating articles from crime scene including a hat, blood stained left hand glove and a track of blood--Further evidence was collected from house of OJ Simpson comprising upon blood on his car parked outside his house and blood drips leading to front door along with a blood stained hand glove of similar description which was secured from crime scene--Incident was un-witnessed and collection of evidence in such like cases is a hard nut to crack but fact remains that no efforts whatsoever were made to lift fingerprints from crime scene--As per prosecution case appellant had been serving as part time servant with deceased thus his finger prints, if lifted from spot, would not have been a conclusive evidence but at least such practice would have lifted veil from identity of other person to whom reference is made in PFSA report as third contributor in nail swabs--After having scrutinized record we do not have any doubt in our mind that chain of circumstantial evidence is broken and besides that it does not prove conclusively that crime in question was committed by none other than appellant--It goes without saying that if there is a single circumstance which creates reasonable doubt in a prudent mind about guilt of accused, then accused would be entitled to benefit of such doubt, not as a matter of grace and concession, but as a matter of right--Criminal Appeal was allowed while giving benefit of doubt in favour of appellant. [Pp. 1029, 1034 & 1035] A, B, C & D

PLD 2019 SC 675.

Ch. Muhammad Akhtar, Advocate for Appellant.

Mian Imran Rahim, Deputy Prosecutor General for State.

M/s. Hina Noman and Talat Mehmood Zaidi, Advocates for Complainant.

Date of hearing: 20.3.2024.

Judgment

Ch. Abdul Aziz, J.--Abdul Hakeem (appellant) involved in case F.I.R No. 138/2021 dated 04.05.2021 registered under Section 302, PPC at Police Station City Attock, was tried by learned Additional Sessions Judge, Attock, who vide judgment dated 30.06.2022 convicted and sentenced him as under:

Under Section 302, PPC to suffer death sentence. He was also directed to pay Rs. 500,000/-as compensation to the legal heirs of deceased under Section 544-A, Cr.P.C.; the compensation so imposed was ordered to be recoverable as arrears of land revenue and in case of its non-payment appellant was directed to suffer 06-months simple imprisonment.

Feeling aggrieved, Abdul Hakeem (appellant) filed Criminal Appeal No. 835 of 2022 against his conviction and sentence, whereas the trial Court sent reference which was numbered as Murder Reference No. 44 of 2022 for the confirmation or otherwise of death sentence so awarded to him. Since both matters are inter se connected, hence are being disposed of through this single judgment.

2. Succinctly stated the case of the prosecution as unveiled by Muhammad Furqan Umar (PW.7) in F.I.R (Exh.PK) is to the effect that on 03.05.2021 at about 2:00 p.m. he had been repeatedly calling his father Younas Umar on his mobile phone No. 0301-8300635 but it was found not responding; that he got curious and asked Muhammad Waqas a friend of his elder brother, residing in same vicinity to check his father by visiting his house; that Muhammad Waqas went to residence of Younas Umer and thereafter informed the complainant that the main gate of the house was locked which was opened by breaking it and found the dead body of Younas Umar in his room; that Muhammad Waqas informed the complainant about this unfortunate news who immediately thereafter arrived at the residence of his father situated at Darul Islam Colony; that the complainant went inside the house and saw the dead body of his father laying on the bed; that both hands of the deceased were fastened with cloth and his neck was entrapped with drawstring (azarband) around it.

3. After the receipt of information about the incident, Azmat Hayat SI reached the spot where Muhammad Furqan (PW.7) got recorded his statement (Exh.PK) which was dispatched to PS City Attock for the registration of formal F.I.R (Exh.PK/2). He informed the PFSA crime scene unit who came at the spot and Nasir Abbas JFS collected the nail and buccal swab from the dead body for DNA test and also secured drawstring and Shalwar therefrom which was later taken into possession by the Investigating Officer through recovery memo. Exh.PG. Azmat Hayat SI (PW.10) also prepared inquest report (Exh.PD), application for postmortem examination and handed over the dead body to Muhammad Awais Constable for autopsy. Azmat Hayat SI further inspected the spot and prepared unscaled site plan (Exh.PT), secured broken lock (P.4) along with saw blade (P.5) vide memo. Exh.PL. He also took into possession box of mobile phone (P.6) owned by father of the complainant which was of Nokia Model 1280-having IMEI No. 353297057242856 through memo. Exh.PM. The complainant along with police checked CCTV camera installed at the adjacent house. From the footage of CCTV camera recording, the complainant found that Abdul Hakeem (appellant) who was servant of his deceased father entered into the house on multiple occasions and took away some articles by placing them in a rickshaw. The complainant moved an application (Exh.PN) to police in which he nominated the accused. The Investigating Officer also took into possession DVR (P.7) installed in the adjacent house through memo. Exh.PP. He arrested the appellant on 09.05.2021 and during physical remand on 11.05.2021, he made disclosure and got recovered mobile (P.

Nokia 1280, SIM (P.9), driving licence of deceased (P.10), colour copy of CNIC of deceased (P.11) and keys of the deceased (P.12/1-7) through memo. Exh.PQ. The appellant during interrogation also got recovered stolen Volta battery (P.13) which was taken into possession through memo. (Exh.PR). The appellant further got recovered rickshaw (P.14) which was taken into possession through memo. Exh.PS. On 19.05.2021 he received the parcel of DVR from Moharrar/Station clerk and also brought the appellant in PFSA Lahore where he submitted the parcel of DVR and also got conducted the DNA test of the appellant from PFSA. On 09.07.2021 he received CD (P.15) and 12 pictures (P.16/1-12) through Tahir Mehmood ASI who received the same from PFSA, Rawalpindi which were taken into possession through memo. Exh.PW. After complying legal formalities and recording the statements of relevant witnesses under Section 161, Cr.P.C., report under Section 173, Cr.P.C. was prepared through concerned SHO.

4. Prosecution in order to prove its case against the appellant produced 11-witnesses, out of whom, Dr. Mubashar Sittar (PW.3) performed autopsy of Younas Umar on 04.05.2021 and prepared postmortem report (Exh.PC) along with pictorial diagram (Exh.PC/1), Muhammad Furqan Umar (PW.7) is the complainant of the case, Muhammad Waqas (PW.9) upon the direction of the complainant went to the house of deceased, broke the lock and found the dead body laying on the bed and informed this fact to the complainant, Azmat Hayat SI (PW.10) investigated the case. The remaining PWs, more or less, were formal in nature.

5. After the conclusion of prosecution evidence, the learned trial Court examined the appellant under Section 342, Cr.P.C. who in response to question “why this case is against you and why witnesses have deposed against you” made the following reply:

“I am innocent. I have no concern whatsoever with the said occurrence. The police arrested me on 05.05.2021 and managed the DNA report falsely with the connivance of the complainant because neither I have any concern with the deceased Muhammad Younas nor I was servant of the deceased Muhammad Younas. No evidence available on judicial file which proves that I was servant of the deceased Muhammad Younas nor statement of any person was recorded in this regard. The police arrested me in this case on suspicion being Afghan national.”

Appellant neither made statement under Section 340 (2) of, Cr.P.C. nor produced any evidence in his defence.

6. It is contended by learned counsel for the appellant that case in hand is arising out of an occurrence which remained un-witnessed; that the appellant was subsequently implicated in the case solely on the basis of doubt and suspicion; that in order to secure conviction of the appellant, false evidence was fabricated, the frailty of which was badly exposed even during trial; that the prosecution relied upon CCTV camera footage where the appellant is not seen while committing the crime and that since the prosecution remained unsuccessful in proving guilt of the appellant, hence, the conviction awarded to him is liable to be set-aside.

7. On the other hand learned Law Officer assisted by learned counsel for the complainant submitted that admittedly the appellant was not nominated in the crime report and was later implicated in the case; that the non-nomination of appellant in the crime report reflects that the complainant had no mala fide to falsely implicate him in the case; that the guilt of the appellant is well established from the chain of incriminating circumstances and it goes without saying that man can tell a lie but the circumstances do not; that the appellant was seen in the CCTV footage; that the DNA report is positive and recoveries of articles belonging to the deceased provide further corroboration to the case of prosecution so as to connect the appellant with the commission of crime and that since the prosecution successfully proved its case against the appellant hence, the conviction awarded to him does not call interference.

8. Arguments heard and record perused.

9. A wade through the record reveals that Younis Umar, a retired army personnel aged about 60 years was living alone in a rented house situated in a neighbourhood known as Darul Salam Colony Attock. On 03.05.2021 at about 2:00 p.m. his son Muhammad Furqan Umar (PW.7) called him on his mobile phone No. 0301-8300635 which was found not responding. Muhammad Furqan asked a friend namely Muhammad Waqas (PW.9) for going to the house of his father Younis Umar and to inquire about him. Muhammad Waqas (PW.9) entered the house by breaking lock installed at the outer door and found the corpse of Younis Umar placed on the bed. Muhammad Furqan Umar (PW.7) after acquiring knowledge about this unfortunate incident reached Attock from Risalpur and reported the matter to police. In the First Information Report (Ex.P.K) the allegation of committing the crime in question was pointed towards an unknown person and none was named therein even as a suspect.

10. The case of prosecution mainly hinges upon circumstantial evidence, the main component of which is the CCTV footage in which Abdul Hakeem (appellant) was seen while entering and exiting from the house of deceased, report of PFSA (Ex.PX) according to which swabs taken from the nail of Muhammad Younis matched with the DNA profile of Abdul Hakeem (appellant), recovery of various stolen articles affected from Abdul Hakeem (appellant) and the motive.

11. Before dilating upon the intrinsic worth of the evidence led by the prosecution, we consider it important to mention here that conviction can only be awarded on the basis of circumstantial evidence when it impeccably connects the accused with the commission of crime. For awarding conviction, the incriminating circumstances must be so closely inter-woven with each other that from their appraisal no conclusion other than guilt of accused is to be drawn. Any break in the chain of circumstances or legal inadmissibility of its any part renders such evidence unworthy of credence and cannot be used for raising the superstructure of conviction.

12. The record of the case in hand is circumspectively perused and we came across many legal flaws, raising serious questions about the legality of conviction awarded to the appellant. It is already mentioned above that the actual homicide incident remained unwitnessed and till the registration of FIR, the identity of the culprit was unknown and for this reason none was nominated therein even as a suspect. According to the prosecution case, the police acquired knowledge about the culprit from the visuals captured in the CCTV camera installed at the outer gate of the house belonging to Muhammad Zahid (PW.11) situated adjacent to the house of deceased. The DVR of the CCTV camera was taken into possession by Azmat Hayat SI (PW.10) through recovery memo. (Exh.PP). Before proceeding any further, we deem it appropriate to reproduce hereunder the observation of the Supreme Court of Pakistan in the case reported as “Ishtiaq Ahmed Mirza and 2 others vs. Federation of Pakistan and others” (PLD 2019 SC 675) wherein a criteria for evaluating the evidentiary worth of visuals captured in CCTV camera and the voice recorded in any audio device was laid down:

* No audio tape or video can be relied upon by a Court until the same is proved to be genuine and not tampered with or doctored.

* A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the provisions of Section 9(3) of the Punjab Forensic Science Agency Act, 2007.

* Under Article 164 of the Qanun-e-Shahadat Order, 1984 it lies in the discretion of a Court to allow any evidence becoming available through an audio tape or video to be produced.

* Even where a Court allows an audio tape or video to be produced in evidence such audio tape or video has to be proved in accordance with the law of evidence.

* Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, has to be produced so as to rule out any possibility of tampering with the record.

* An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.

* The person recording the conversation or event has to be produced.

* The person recording the conversation or event must produce the audio tape or video himself.

* The audio tape or video must be played in the Court.

* An audio tape or video produced before a Court as evidence ought to be clearly audible or viewable.

* The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognizes such voice or person.

* Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.

* The voices recorded or the persons shown must be properly identified.

* The evidence sought to be produced through an audio tape or video has to be relevant to the controversy and otherwise admissible.

* Safe custody of the audio tape or video after its preparation till production before the Court must be proved.

* The transcript of the audio tape or video must have been prepared under independent supervision and control.

* The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.

* The source of an audio tape or video becoming available has to be disclosed.

* The date of acquiring the audio tape or video by the person producing it before the Court ought to be disclosed by such person.

* An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.

* A formal application has to be filed before the Court by the person desiring an audio tape or video to be brought on the record of the case as evidence.

In the above backdrop, firstly, it is noticed by us that though the DVR was statedly taken from the possession of Muhammad Zahid (PW.11) but he was not the witness of its recovery memo. (Exh.PP) and even otherwise the DVR was not exhibited in his statement. The foregoing omission gives rise to the query that how it can be ascertained that the DVR exhibited in the statement of Investigating Officer was the same which was installed in the house of Muhammad Zahid (PW.11). Secondly, it is noticed that from these visuals complainant Muhammad Furqan Umar (PW.7) identified Abdul Hakeem (appellant) as the person who has been rendering services as servant with the deceased. These visuals were forwarded to PFSA along with Abdul Hakeem (appellant) who after in-depth analysis gave his opinion through his report Exh.PZ which is reproduced hereunder:

“Forensic facial comparison analysis of accused named “Abdul Hakeem S/O Abdul Rahim” with the persons seen in videos of incident contained in Item # 1 was inconclusive due to minimal facial feature information of suspect available in Item # 1.”

Admittedly, in accordance with the conclusion given by expert, the report regarding the visuals captured in the CCTV Camera and extract from DVR cannot be used for awarding conviction to Abdul Hakeem (appellant) keeping in view the principle laid down in Ishtiaq Ahmad Mirza case (PLD 2019 SC 675). We intend to lay emphasis on the point that PFSA report (Ex.P.Z) admittedly was not supporting the cause of prosecution but still it was tendered in evidence. We are mindful of the fact that the report through necessary implication of Section 9(3) of the Punjab Forensic Science Agency Act 2007 was per se admissible but since it was not in favour of prosecution thus the expert could still be summoned as Court witness to remove ambiguity arising out of it. Strangely, no effort whatsoever was made by the prosecution to do the needful of summoning the expert from the PFSA as witness in the case. There was another remedy available to the prosecution under section 12 of the Punjab Forensic Science Agency Act 2007 but no step even in this regard was taken. According to Section 12, any person affected from the opinion of an expert can move an application before the Court for re-examination of the substance upon which report is issued by the PFSA. Upon such application, the Court, if satisfied that the opinion of expert needs reconsideration, can pass an order to the PFSA for re-examination through a penal of three or more experts. For the clarity of proposition Section 12 of Punjab Forensic Science Agency Act 2007 is reproduced hereunder:

“(1) A person affected by the opinion of an expert, may for a sufficient cause, submit an application for re-examination before the Court, tribunal or authority other than a police officer before which the opinion is rendered or the Court or tribunal before which the opinion is submitted by the authority.

(2) If the Court, tribunal or authority is satisfied that there are sufficient grounds for re-consideration of the opinion, it may, for reasons to be recorded in writing, direct the Agency to re-examine the forensic material.

(3) The Director General shall, in receipt of the direction, constitute a panel of three or more experts to re-examine the forensic material or refer the same to a forensic examination facility for examination and opinion.

(4) The Director General shall submit the finding of the expert or the forensic facility and his opinion to the Court, tribunal or authority.

Above all in the site plan (Exh.PJ) neither the house of Muhammad Zahid (PW.11) was shown nor the point, where the CCTV camera was installed is highlighted. For satisfying the legality of the impugned judgment, the DVR was requisitioned and despite best efforts it could not be decodified to examine the visuals thus we are not left with any other option but to discard it in accordance with the PFSA report (Exh.PZ).

13. According to the prosecution case, Muhammad Nasir Abbas JFS/PFSA (PW.5) was summoned at the crime scene to examine the surroundings and the recovered corpse. He extracted four nail swabs from both hands of deceased which were dispatched to the office of PFSA for DNA analysis. According to report (Exh.PX/1) the left-hand nail swabs of Younas Umar (deceased) matched with the DNA profile of three individuals out of whom Abdul Hakeem (appellant) was described as one of the possible contributors. The DNA evidence can attain admissibility if prosecution satisfactorily proves the process of sampling, safe custody and onward transmission to the office of PFSA and the foregoing process is called in the field of forensic as doctrine of analysis and it stresses for flawless sampling, correct packing, safe custody and above all free from doubt transmission to the office of expert. Any defect in the aforementioned process makes even the positive DNA report doubtful in nature forcing the Courts to discard it from consideration. Guidance in this regard can be sought from the case titled as “Azeem Khan and another vs. Mujahid Hussain and others” (PLJ 2016 SC 123) wherein the Supreme Court of Pakistan held as under:

“27. In the recent past many scandals in U.S.A., U.K. and other countries have surfaced where desired D.N.A. 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 D.N.A. 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.”

For exemplifying the impact of defective sampling for DNA analysis, the case from the case of an American athlete OJ Simpson, reported as Rufu v. Simpson 103 Cal.Rptr.2d 492 (2001) can be cited as reference. He was indicted for the vicious killing of two persons, one out of whom was factually beheaded. The homicide incident though remained unwitnessed but the police collected various incriminating articles from the crime scene including a hat, blood stained left hand glove and a track of blood. Further evidence was collected from the house of OJ Simpson comprising upon blood on his car parked outside his house and blood drips leading to the front door along with a blood stained hand glove of similar description which was secured from the crime scene. The defective sampling and improper inspection of crime scene persuaded the Jury to clear Simpson from the charge of murder. In this case, we firstly observed that Muhammad Nasir Abbas JFS/PFSA (PW.5) uttered not a single word about the identity of the police officer to whom he handed over the samples so taken from the nails of the deceased. It needs no elaboration that even for providing credibility to the positive report of PFSA in the instant case the prosecution should have led some evidence about the nature of these nail swabs and the kind of the substance extracted therefrom. Nothing as such is available on the record that these swabs were pertaining to the blood, skin tissues or hairs etc. of the unknown person. If at all these swabs were comprising upon skin tissues etc. then in order to make it admissible for fetching positive results in the trial, the prosecution should have got Abdul Hakeem (appellant) medically examined after his arrest which was affected on 09.05.2021 i.e. just five days after the incident. The medical examination of Abdul Hakeem (appellant) would have revealed that whether he was in receipt of some scratches, lacerations etc. which would have been way forward to connect him with the nail swabs taken from the deceased. We have further noted that along with these nail swabs Muhammad Nasir Abbas JFS/PFSA (PW.5) also secured two buckle swabs of the deceased and drawstring. Though Muhammad Nasir Abbas JFS/PFS (PW.5) stated nothing about the identity of the police official to whom the articles so collected by him from the crime were handed over but during trial Azmat Hayat SI (PW.10) claimed to have received all of them from the former. The fact remains that Azmat Hayat SI (PW-10) stated nothing about the identity of the police official in whose custody these swabs were placed till their dispatch to the office of PFSA. As this was not enough, it is further noticed that Ahmad Nawaz 489/HC (PW.2) appeared before the trial Court and claimed to be Moharrir/Station Clerk who received various articles but made no reference to the swabs and drawstring secured from the crime scene. Azmat Hayat SI (PW.10) also could not lift veil from the police official who handed him over envelopes for onward transmission to the office of PFSA. It evinces from the PFSA report (Exh.PX/1) that only the buckle swabs of Abdul Hakeem (appellant) were presented for comparison but the pivotal question remained unaddressed that when and by whom these were taken. All the foregoing facts expose that process of collection, sampling, packing, safe custody and transmission of swabs was prone to many legal defects on the basis whereof we are inclined to reject the report of PFSA (Exh.PX/1).

14. The prosecution also heavily banked upon the recoveries of mobile phone along with SIM (P8 and P9), driving license (P10), CNIC (P12) and Volta Battery (P13) affected from the appellant on his disclosure and pointation made during investigation on 11.05.2021. Admittedly, in the First Information Report (Exh.PK) no reference about the theft of these articles from the house of the deceased was made. Above all, no statement under Section 161, Cr.P.C. of Muhammad Furqan Umar (PW.7) was recorded during investigation about the theft of these articles and the foregoing fact was candidly conceded by him during cross-examination. Similarly, though we have discarded the PFSA report (Exh.PZ) about the visuals captured in the CCTV camera but fact remains that even in this report nothing as such is mentioned that the person coming out of from the house of the victim was carrying any of these stolen articles. Now the question arises that whether it will be in the interest of justice to still treat the recovery of aforementioned articles as sufficient incriminating evidence and inexorably the answer cannot be given in affirmative. We are mindful of the fact that incident was un-witnessed and collection of evidence in such like cases is a hard nut to crack but the fact remains that no efforts whatsoever were made to lift fingerprints from the crime scene. We are not oblivious of the fact that as per prosecution case Abdul Hakeem (appellant) had been serving as part time servant with the deceased thus his finger prints, if lifted from the spot, would not have been a conclusive evidence but at least such practice would have lifted veil from the identity of other person to whom reference is made in the PFSA report as third contributor in nail swabs.

15. After having scrutinized the record we do not have any doubt in our mind that the chain of circumstantial evidence is broken and besides that it does not prove conclusively that the crime in question was committed by none other than Abdul Hakeem (appellant). It goes without saying that if there is a single 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. Therefore, we allow Criminal Appeal No. 835 of 2022 while giving benefit of doubt in favour of Abdul Hakeem (appellant) and set-aside his conviction and sentence and in consequence thereof he stands

acquitted of the charge. Appellant Abdul Hakeem is under custody; be released forthwith if not required to be detained in any other criminal case.

16. Resultantly, Murder Reference No. 44 of 2022 is answered in the NEGATIVE and death sentence awarded to Abdul Hakeem (convict) is NOT CONFIRMED.

(A.A.K.) Appeal Allowed