' ALI BAQAR NAJAFI, J.---Petitioner, Ghulam Abbas son of Muhammad Anwar, seeks post-arrest bail in case F.I.R. No,18 of 2012 dated 11-1-2012 under sections 302, 201, P.P.C. Read with sections 377 added, 34 (deleted) P.P.C. Registered at Police Station Jalalpur Bhattian, District Hafizabad.
2. As per, the story narrated in the F.I.R. The nephew of the complainant, namely, Muhammad Ikram used to work in the Marco Rice Mill for the last three years. On 10-1-2012 at 7-00 p.m. He went to the said mill for his duty and in the following morning at 5-30 a.m. Muhammad Akbar son of Muhammad Bashir informed him that he was further informed by one Nasir Sher on mobile phone that said Muhammad Ikram is dead. The complainant along with Muhammad Nawaz and Ahmad Khan went to the mill/factory and found his dead body lying under the "bin" of rice mill. He had shown his suspicion that he may have been killed after committing sodomy or after refusal to commit sodomy by Rashid Ali and Alamgir and some unknown persons, whereafter they tried to hide his dead body. Hence this F.I.R.
3. Learned counsel for the petitioner submits that it is an unseen occurrence and accused were nominated on the basis of suspicion; that the petitioner was not nominated in the F.I.R.; that on 21- 7-2012 in the first supplementary statement he involved Naseer Ahmad and Waqas Azhar (son of the mill's owner); that in the second supplementary statement dated 7-1-2013 based on the statements of Liaquat Ali and Ashraf the petitioner was involved, who has stated that the petitioner had confessed his guilt through an induced extraordinary confession, which of course is not admissible in evidence; that during the investigation the DNA Test of the petitioner was conducted on 16-12-2012 to compare the specimens extracted from the clothes of the deceased which resulted into negative; that the cause of death as declared in the autopsy is Asphyxia and act of sodomy; that to find out the truth the petitioner was subjected to Polygraph Test on 28-11-2012 in which the conclusion was given that the petitioner was a "deceptive" which by itself is not worth- reliance and in the absence of corroboration with substantive piece of evidence he cannot be connected with the commission of crime; that the instant test is employed world over for espionage and not to ascertain the guilt of the accused that too in a murder case; that such a test is against the spirit of Article 13(b) of the Constitution of Islamic Republic of Pakistan, 1973, wherein nobody can be compelled to become a witness of his own self; that other two co-accused, namely, Naseer Ahmad and Rashid Ali were tested who also gave negative result in the Polygraph Test but they were not involved. Lastly, submits that the above grounds are enough to establish that the case of the petitioner is that of further inquiry into his guilt and, therefore, he is entitled to the post- arrest bail.
4. Conversely, learned counsel for the complainant submits that the petitioner on the basis of extraordinary confession has released his tension, as a murder cannot be hidden; that the report of the autopsy is duly corroborated with the said extraordinary judicial confession; that the Polygraph Test was conducted by a highly sophisticated team of Forensic Experts who in a scientific manner dig out the truth by employing latest means of investigation which standards are followed all over the world; that on both questions of murder and sodomy the petitioner was found to have deceived the Examiner; that the Expert opinion cannot be substituted that too at the bail stage; that the offence falls within the prohibitory clause and no deeper appreciation of evidence is permissible as a tentative assessm ent is to be made on the basis of available record.
5. Learned Deputy Prosecutor-General adds that there is no mala fide on the part of the complainant and they waited till the actual facts were brought forth on the basis of investigation results; that even otherwise only DNA Test is enough to connect the petitioner with the alleged crime.
6. I have heard the learned counsel for the parties and perused the available record.
7. It is a blind murder and the petitioner is not nominated in the F.I.R., so much so that he was not nominated in the first supplementary statement recorded on 21-7-2012 i.e, after 7 months. However, on 7-1-2013 i.e, after about a year, he was involved on the basis of the statements of Liaqat Ali and Ashraf. Surprisingly, the Polygraph Test was conducted on 28-11-2012, whereafter the DNA Test was conducted on 16-12-2012, which means that prior to involvement of the petitioner in the supplementary statements these two tests were conducted. The result of the. DNA Test otherwise does not match with the profiles of the petitioner (S-4) when compared with the specimen item No,1.11 and 1.16 taken from the trouser of Ikram deceased. However, item No,3.1 taken from the sweater of the deceased was found to have matched with the DNA profiles of two individuals.
8. The Polygraph Examination Report submitted by Punjab Forensic Science Agency dated 28-11- 2012 shows that the total score of the examinee (the petitioner) was +3 indicating the "deception" on the question of murder of Ikram. Same was the result on the question of committing sodomy with the deceased. The conclusion drawn was that the petitioner/Ghulam Abbas was not truthful.
The record further reveals that such a test was also conducted in respect of Naseer Ahmad and Rashid Ali (the nominated accused persons) in which the conclusion was "cannot be confirmed as truthful" and "no opinion", respectively.
9. On the veracity of Polygraph Test the courts all over the world have not put much reliance to inculpate the accused persons. In our country, in the case titled "Muhammad Asif v. State" reported as 2008 M LD 1385, it was observed by the Division Bench of this Court that the Polygraph Test, which originated in the United States of America, is considered to be highly unreliable and normally this test is not administered to an accused charged with criminal offences. In United States v. Scheffer (523, U.S. 303 (1998)), it is held that there is simply no consensus that the polygraph evidence is reliable unlike other expert witnesses who testify about factual matters, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene. A polygraph expert can supply only with another opinion, as the said test did not enjoy general acceptance from the scientific community.
It was concluded that the polygraphs measure physiological arousal which can pinpoint deception rather than lies. Such a test is normally used by enforcement and intelligence agencies in the United States and elsewhere but its admissibility is always subject to the discretion of the trial Judge.
10. In Europe the polygraphs are not considered reliable evidence and are not generally used by even law-enforcing agencies and generally such a test is inherently inconclusive and not admissible in court. In Canada such a test is rejected by the courts even as a piece of evidence. In Australia the evidence based on Polygraph Test was also rejected by the courts. In India, the Supreme Court declared the Polygraph Test on suspects as illegal and against constitution. This test has not been awarded a general acceptability by the courts, so it is not safe in Pakistan as well to rely totally upon such a result that too to connect an accused with the commission of crime not less than a murder.
At present the veracity of the Polygraph Test and the effect of DNA Test is to be seen by the trial Court after recording evidence. In view of what has been stated above, the petitioner has made out a case of further inquiry into his guilt as contemplated in section 497(2), Cr.P.C. I, therefore, admit the petitioner to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.