' HAZIQUL KHAIRI, C.J.--- This appeal filed by appellant Azhar Amin alias Naji alias Mota arises out of the judgment, dated 6-5-2006, passed by the learned Additional Sessions Judge, Lahore, whereby the appellant was convicted and sentenced under section 377, P.P.C. To ten years' R.I. And fine of Rs,50,000 and in default whereof to further suffer six months simple imprisonment. He was also convicted under section 302(b) of P.P.C. And sentenced to death. Further he was ordered to pay one lac rupees as compensation to the legal heirs of deceased as required under section 544-A, Cr.P.C. And in default whereof to further suffer S.I. For six months.
2. Brief facts as emerged from the impugned judgment are that on 8-10-2003 complainant Hakim Ali (P.W.2) lodged an F.I.R. Stating that in the night of 7-10-2003 at about 8-00 p.m. His son Hassan Raza, aged about 10/11 years, went out side the house to play but did not return. He searched for him along with P.W.9 Nasir Iqbal, when one Iftikhar Ali coming from Moaza Karol informed him that dead body of a child was lying beside the road in the maize field of Mian Mubarik Ali. The three of them reached there and he found the dead body of his son murdered by some unknown persons by strangulation. The complainant suspected Asif Ali alias Mota, Kamran, Yasin, Gul Zaman alias Fauji and Azhar Amin alias Naji alias Mota of murder of his son and accordingly, moved an application for D.N.A. Test before P.W.9 Mukhtar Ahmad, S.-I. Their D.N.A. Test was taken and as per report, dated 1-12-2003. The D.N.A. Profile obtained from evidence material did not match in the D.N.A. Profile of any suspect. A second D.N.A. Test was taken at the instance of P.W.19 which vide report, dated 3-3-2004 was positive as regards the appellant and on 7-3-2004 he was arrested, on which date he was also charge-sheeted.
3. The appellant denied the charge and the prosecution was invited to lead evidence. P.W.1 Shahid Hussain, real brother of the complainant, deposed that on 8-3-2003 he searched for the deceased but could not find him. Next day a report was lodged with police. He identified dead body. In his presence, the appellant pointed out to the place of occurrence. P.W.2 Hakim Ali, complainant also stated that on 8-3-2008 he found his son missing from the house. He made search for him the whole night and in the next morning he reported the matter at the police station. D.N.A. Test was conducted on him and his wife. P.W.3 Arshad Ali, Security Guard at Salamat Centre deposed that on 7-10-2003 while going with P.W.4 Basharat on motorcycle he saw the deceased in the company of the appellant at Ganda Nala China Scheme. He asked the deceased as to where he was going to which he replied that he was going to purchase Patakhas. P.W.4 Basharat Hussain corroborated the testimony of P.W.3 and stated that he was going on motorcycle when he met the deceased who told them that he was going to purchase Patakhas with the appellant. P.W.5 Nasrullah Khan, A.S.-I. Escorted the dead body of victim Hassan Raza to the mortuary along with Basharat Ali/C where the last-worn clothes of the deceased were handed over. He along with Basharat Ali/C attested the recovery memo. P.W.6 Shaukat Ali stated that in his presence the doctor took four pieces of clothes of the deceased. P.W.7 Babar Hussain, maternal-uncle of the deceased, identified his dead body. P.W.8 Iftikhar Ahmad deposed that on 8-10-2003 while he was on road his servant Muhammad Ashfaq informed him that a dead body was lying in a field of maize. He reported the matter to police, in whose presence he found the dead icdy of deceased with torn anal and neck tied with a "Jarsi". P.W.9 Nasir Iqbal deposed that on 8-10-2003 he was standing along with complainant Hakim Ali (P.W.2) in the field when a man informed them about a dead body lying in the field which turned out to be dead body of the deceased with Phanda of shirt around his neck.
P.W.10 Hameed-ud-Din Chishti, Draftsman on the pointation of P.Ws., took rough notes from the place of occurrence and prepared scaled site plan. P.W.11 Dr. Muhammad Khalid conducted autopsy on the dead body of deceased Hassan Raza and found six injuries on his body. He was of the opinion that the injuries were ante mortem and were caused by blunt means and the cause of death was interference with respiration. P.W.12 Dr. Mehboob Ahmad Pasha conducted the medical examination of the appellant and in his opinion the appellant was capable to perform sexual act.
P.W.13 Khalid Mehmood deposed regarding receipt of sealed parcels said to contain blood-stained earth, last-worn clothes of the deceased, one sealed envelope and two boxes. P. W.14 Tanvir Ahmad, 4.S.-I. Along with Rasheed, S.-I., took into possession the blood-stained earth and Sandal made of Rexene. P.W.15 Muhammad Hashim, Research Officer. D.N.A. Produced his reports bearing his signatures. P.W.16 Rasheed Ahmad A.S.-I. And P.W.19 Mukhtar Ahmad, S.-I. Investigating Officers of the case, deposed regarding various steps taken by police during investigation. He prepared inquest report and rough site plan, memo. Of recovery and the dead body for post-mortem examination, recorded the statements of witnesses on 31-10-2003 whereafter he was transferred.
He did not arrest anyone. P.W.17 Dr. Zahoor Ahmad conducted D.N.A. Test of accused twice and verified his reports. P.W.18 Arshad Mehmood, S.-I. Deposed lodging of F.I.R. P.W.20 Syed Ali Abbas, Judicial Magistrate deposed that he had passed order on an application moved by P.W.19 Rashid Ahmad, S.-I. For summoning Dr. Khalid Noor (not produced).
4. A cursory glance on the evidence adduced by the prosecution will reveal glaring discrepancies and contradictions at a number of places A which would lead to in depth examination thereof.
Firstly, reference may be made to F.I.R. In which P.W.2 Hakim Ali had stated that his son was missing from 7-10-2003 evening (P.Ws.1, 8 and 9) stated it was 8-10-2003 evening) and the next morning while he was in search of his son along with P.W.9 Nasir Iqbal, he met Iftikhar Ali (not produced) who told them that the dead body of a child was lying in the maize field of Mian Muhammad.
Mubarik Ali. In his testimony there is no reference to their said meeting with anyone who told him that the dead body of a child was lying in the maize field. It is pertinent to note that he had named nobody in his F.I.R. However, in his application dated 5-11-2003 to police he suspected eight persons including the appellant of murdering his son. Here reference may also be made to another version relating to occurrence as narrated by Iftikhar Ahmad (P.W.8) that on 8-3-2003 while he was present at Bund Road along with Abdul Rashid (not produced) their servant (not produced) told them that a dead body was lying in the maize field. He informed the police of Police Station Gujjarpura, Lahore, and in his presence the dead body was recovered by the police which had been subjected to sodomy. Assuming that even if he was wrongly named as ,Iftikhar Ali instead of Iftikhar Ahmad by the complainant (P.W.2) he (P.W.8) did not mention meeting the complainant (P.W.2) or P.W.1, his brother, which led to lodging F.I.R. By P.W.2 and recovery of dead body. Similarly according to P. W.1 Shahid Hussain on 10-3-2004 after two days of recovery of dead body of the deceased the appellant in his presence, and also in presence of his brother, Hakim Hussain (not produced) and police official A.S.-I. Tanvir Ahmad (P.W.14), made disclosure of the place of occurrence. Nowhere P.W.14 in his testimony mentioned the said disclosure by the appellant nor he referred to the presence of P. W.1 Shahid Hussain and P.W.2 Hakim Ali. His deposition is only to the extent that he along with 5.-I. Rasheed. Took into possession blood-stained earth and a Sandal from the place of occurrence, There was nothing to the effect that the dead body of the deceased was pointed out by the appellant or his blood-stained clothes recovered at the appellant's instance. It was Iftikhar Ahmad (P.W.8) who disclosed to the police on 8-10-2003 that a dead body was lying in the field, of maize and he along with police reached there and found that the dead body was lying facing the mouth towards earth and his neck was tied with a Jarsi. Much afterwards on 7-3-2004 Mukhtar Ahmad (P.W.19) arrested him after the receipt of D.N.A. Report where after the appellant pointed out to him wherefrom the dead body was found. Surely during these five months every body in the surrounding area would have known where the dead body was lying. No credibility could be attached to such pointation.
5. However, the next stage of the case began when the appellant was subjected to D.N.A. Test on an application dated 5-11-2003 of the complainant. D.N.A. Test of the five accused was conducted by P.W.17 Dr. Zahoor Ahmad, C.A.M.B. Forensic Science Laboratory with the following results and conclusion:-- "Result ' D.N.A. Profile obtained from D.8 (semen spot Nos.3 and 4 of Evidence Material) has matched with D.N.A. Profile of D.1, D.2, D.3, D.4 and D.S. No D.N.A. Profile was found from D.6 and D.7 (semen spot Nos.1 and 2 of Evidence Material).
Conclusion ' D.N.A. Profile obtained from the evidence material does not match with D.N.A. Profile of any suspect provided.
' D.N.A. Profile obtained from the evidence material shows the presence of some other male suspect excluding all of the provided suspect."
' Despite the appellant having been cleared in the said D.N.A. Test, P.W.19 at his own accord requested P.W.17 once again to carry out D.N.A. Test of the appellant and others. This time D.N.A.
Profile of the deceased through the blood sample of his parents was compared with blood samples of all the accused and also with the material (piece of cloth/trouser) brought by P.W.17. In conclusion he stated as under:-- "Previously prominent spots from D.8 evidence were analyzed and reported that one spot gave a mixture of victim and another as partial profile out of sixteen loci. This partial profile matched with the standard blood profile of Mr. Azhar Amin Urf Naji son of Muhammad Amin (D.5). This may not determine whether the partial profile belongs to one of the suspects provided or some other assailant unless all sixteen loci of D.N.A. Match occurs. Therefore, the evidence material (D.13) was analyzed for other biological spots. Now one of the spots which was not analyzed previously gave a complete profile of sixteen loci and this profile matches with Mr. Azhar Amin Urf Naji son of Muhammad Amin (D.5)."
' In cross-examination he admitted that when the request of D.N.A. Test was made no report of Serologist was appended with the request. He further admitted that when he received the request (first time) he was not sure whether the semen were present on the pieces. He also admitted that it is correct that his report dated 1-12-2003 did not carry the fact that the semen shot was available on the material or not. Further that he generally received the material himself but in this case (second time) he received the material from police. He also admitted that both his reports dated 1- 12-2003 and 3-3-2004 were altogether different from one another. It may be recalled that in his first report, dated 1-12-2003, he had specifically stated that "D.N.A. Profile obtained from the evidence material shows the presence of some other male suspect excluding all the provided suspects".
Thus, there were material contradictions in his two reports and there was no satisfactory explanation for lapses on his part and on the part of police as aforesaid and as appearing hereinbelow.
6. It would be interesting to mention the manner in which the subject-matter of D.N.A. Test was sent to P.W.17 and received by him on both the occasions. According to P.W.16 Rasheed Ahmad, A.S.-I.
The dead body of Hassan Raza and his last-worn clothes were produced before him on 8-3-2003 by Basharat Ali, P.W. (given up) and Nusrullah (P.W.5) which were trouser, shirt and Bunyan. P.W.5 deposed that on 8-10-2003, he and Basharat received last-worn clothes of the deceased from P.W.16 Rashid Ahmad, A.S.-I., after post-mortem examination was conducted by P.W.11 Dr. Muhammad Khalid. Afterwards four pieces of clothes were handed over by P.W.6 Shaukat Ali C/7206 to Dr. Zahoor Ahmad (P.W.17) for D.N.A. Test who vide report dated 1-12-2003 had exonerated all the accused persons. There is nothing on record as to who received back the last- worn clothes or prepared E recovery memo. And again packed and sealed the clothes in safe custody. However, second time on 3-3-2004 a resealed envelope for D.N.A. Test was brought by P.W.19 Mukhtar Ahmad S.-I. To P.W.17 which was found to be positive against the appellant. In reply to a question put to him, P.W.19 Mukhtar Ahmad, Investigating Officer stated that it is incorrect to suggest that he had allowed the semen of the appellant on a part of trouser after the first D.N.A.
Report and then gave second D.N.A. Report. Further he had stated that the pieces of trouser were taken in the presence of the Magistrate from that part of the. Trouser which covers the hip because the same contained stains of the blood. These pieces of trouser were not produced by the Magistrate (P.W.20) and lastly and admittedly it was a clear case of tampering with evidence by the police officials by cutting a part of the trouser for D.N.A. Test.
7. According to National Association of Criminal Defence (N.A.C.D.) Washington M.A. Supreme Court has held that D.N.A. Testing is not a miracle fix but along with circumstantial evidence, eyewitness and other physical evidence, genetic analysis can decrease the chances of wrongful exoneration or convictions.
8. In the Criminal Law Hand Book "Know your Rights, Survive the System" by Attorney Paul Dergman and Attorney Sara Berman Barrett it is stated:-- "Until the 1990's the only sure-fire way to establish the identity of an individual was to examine his or her fingerprints. Because each individual's fingerprints have a unique pattern, fingerprint evidence is readily admitted into Court. Now D.N.A. Is rapidly becoming the method of choice when it comes to linking individuals with crime scenes and criminal assaults."
9. It is further stated that different methodologies allow experts to identify these distinguishing elements of "D.N.A." and this sort of technology is extremely complex; few people are able to understand it.
10. In National Forensic D.N.A. Study Report (Authors P. Larrich Ph.D. Trans c Poaratt Ph.d., Michael J.
Gaffney JD, Charles L Johnson M.A. And 3 others) it is stated that lack of appropriate storage space can lead to valuable D.N.A. Evidence becoming degraded.
11. Learned counsel for the appellant Syed Zeshan Taimoor Gilani brought to our notice the case of Muhammad Iqbal and another v. The State 1978 PCr.LJ 670 followed by Yousaf v. The State PLD 1988 Kar. 521 in which it was held that where contradiction exists between medical report and ocular testimony, prosecution and not accused is obliged to clarify position and in case of conflict between two testimonies, medical evidence would be preferred.
12. Another case which was brought to our notice was the case of Muhammad Azhar v. The State PLD 2005 Lah. 589 in which a learned High Court Judge while granting bail in a pending Hudood matter had rightly held that D.N.A. Test may be an important piece of evidence but Hudood Laws have its own standard of proof.
13. In view of the facts stated and reasons given hereinabove, we are unable to subscribe to the findings of the learned trial Court as the prosecution has miserably failed to establish its case against the appellant both on the basis of ocular evidence and D.N.A. Test. As such it is a case of conflict between two testimonies, ocular and medical. The two D.N.A. Reports of P.W.17 are inconsistent and contradictory and the least inspiring more so as the material furnished to P.W.17 the second time has not only been tampered with but there is no evidence at all on record with regard to its repacking, resealing and keeping it in safe custody.
14. Resultantly the appeal is accepted with direction to the jail authorities to release the appellant forthwith unless he is required in some other criminal case.
15. The Criminal Murder Reference No,6/L of 2007 is replied in negative.