Rooh-ul-Amin Khan, J.--Through the instant appeal filed under Section 410, Cr.P.C., the appellants, namely, Hameed Khan and Gul Nawaz, have challenged the judgment and order dated 19/1/2012 passed by the. learned Additional Sessions Judge, Banda baud Shah, District Karak, whereby each of them has been convicted and sentenced to imprisonment for life with payment of compensation amounting to Rs, 1,00,000/-payable to the legal heirs of the deceased Asmatullah in terms of Section 644-A, Cr.P.C., in default to suffer six months simple imprisonment each, vide case FIR No, 163 dated 5/10/2010 of Police Station Banda Daud Shah, registered under Section 302/34, PPC. Benefit under Section 382-B, Cr.P.C. has, however, been extended to them. Likewise, the complainant Imam Faraz is also unhappy over the impugned judgment of the learned trial Judge and has assailed the same through Criminal Revision No, 11/2012 praying for enhancement of the convictions and sentences so awarded to the convicts/appellants. Since both the appeal and revision are the outcome of one and the same occurrence, therefore, this single judgment shall dispose of both these matteRs,
2. The prosecution story as gleaned from the first information report lodged by the complainant Imam Faraz on 5/10/2010 at 1900 hours is to the effect that on receipt of information that dead body of a person was lying near the village 'Seri Khwa', he alongwith other co-villagers rushed to the spot and identified the dead body of the deceased to be of his nephew Asmatullah, who was done to death through axe blows by unknown persons. He thus lodged the FIR ibid against "unknown culprits, but subsequently, on 8/10/2010, statements of Mst. Noor Fatima, mother, Qismatullah, brother and the complainant Imam Faraz, uncle of the deceased, were recorded under Section 164, Cr.P.C., wherein the convicts/appellants were nominated for the murder of the deceased Asmatullah.
3. On arrest of the convict/appellants and completion of investigation, challan was put in the trial Court against them on 24/2/2011, where they were summoned and the provisions of Section 265-C, Cr.P.C. were complied with on 14/4/2011. They were formally charge-sheeted on 22/4/2011 to which they did not plead guilty, professed innocence and claimed trial.
4. The prosecution, in order to prove its case against the convicts/appellants produced and examined .fifteen witnesses in all and closed its evidence. Thereafter, statements of the convicts/appellants were recorded under Section 342, Cr.P.C., but neither they produced any evidence in defence, nor opted to examine themselves on oath in terms of Section 340(2), Cr.P.C.
The learned trial Judge after considering the arguments of the learned counsel for the parties addressed at the bar and scanning the record, found the accused guilty of the offence charged with and thus on conviction sentenced each of them as mentioned above. Hence this appeal by the convicts/appellants and revision petition by the complainant/petitioner Imam Faraz.
5. Learned counsel for the convicts/appellants vociferously argued that the impugned judgment/order of conviction is against facts, law, thus not sustainable under the law. He argued that the prosecution had not been able to prove its case against the convicts beyond any shadow of reasonable doubt, therefore, the learned trial Judge has fallen into an error while passing the impugned judgment of conviction and sentence. The learned counsel contended that the last seen evidence produced by the prosecution and relied upon by the learned trial Judge is not worthy of credence because there is an inordinate and unexplained delay in its production. He submitted that the evidentiary value of the mobile data collected by the prosecution is also unweighty, because it is not corroborated through any other reliable source. His contention was that the occurrence was an unseen and the appellants have been implicated merely on suspicion. He submitted that there are serious contradictions in the evidence of the prosecution due to which its case is totally untenable. He urged that there is not an iota of independent evidence to substantiate the charge against the convict/appellants. The last limb of his arguments was that the appellants are not charged in the initial report but they were subsequently nominated in the delayed supplementary statements of the complainant and other two PWs, which is the result of due consultation and deliberation, creating serious doubts about the veracity of the prosecution version. The learned counsel, therefore, I argued that the learned trial Judge has failed to appraise the evidence brought on record in its true perspective while convicting the convicts/appellants through the impugned judgment which is liable to be set aside.
6. On the other hand, the learned Additional Advocate General representing the State assisted by the learned counsel for the complainant argued that the convicts/ appellants have rightly been found guilty of the charge levelled against them. They argued that the medical evidence fully supports the prosecution version; that the deceased was lastly seen in the company of the appellants who were duly armed with axes; that the weapon of offence, i,e, axe has been recovered and that motive for the offence was duly proved. Learned counsel for complainant further submitted that since the learned trial Judge has held responsible the convicts/appellants for the murder of the deceased Asmatullah and the offence carries capital punishment, therefore, the sentence of life imprisonment so awarded to them through the impugned judgment is not enough to meet the ends of justice which needs to be enhanced to the normal penalty of death with adequate increase in the quantum of compensation as well.
7. We have thread barely gone through the entire record of the case and anxiously considered the valuable arguments of the learned counsel for the parties.
8. Perusal of record reveals that on the day of occurrence i,e, on 05.10.2010, a dead-body lying near the village Seri Khwa, was recovered by the local police, which was identified by the complainant as the dead-body of his nephew Asmatullah, He lodged the report with local police against unknown persons for commission of murder of his nephew through blows of Axe. No one was charged in F.I.R, as he was not having any enmity. On 06.10.2012, the tracker dogs were brought by the local police and the team of tracker dogs left two dogs from the spot, where from the dogs went to the Baithak of the accused and sit there in a cot (bed). This was the first clue, disclosing the involvement of the accused in commission of the murder of Asmatullah deceased. Subsequently, Qismatullah and Mst. Noor Fatima recorded their statements with local police under Section 161, Cr.P.C. and disclosed themselves as last seen witnesses. The Investigation Officer recovered blood stained, Mobile Phone Nokia, No, 1202 and a peace of cigarette, Morvin brand from the place of occurrence. He, after recording statements under Section 161,, Cr.P.C. of mother and brother of decease, arrested the accused on 07.10.2010. He also recovered two cigarette of Morvin brand from the pocket of the accused Gul Nawaz and an axe from his residential room.
9. The above resume divulged that the involvement of the accused surfaced through tracker dogs, whereafter, Mst. Noor Fatima (Mother of deceased), and Qismatullah (brother of deceased) recorded their statements under Sections 161 and 164, Cr.P.C. The record was searched from cover to cover, but we could not find the person, who brought the sniffer dogs to the spot. The handler of the tracker dogs is unknown and never been examined by the prosecution. The reliability of dog, as a tracker and detector of crime, has also not been tested by the local police. No doubt, in present scientific arena dogs are reliable and efficient scent detector. Numerous studies have established dog's proficiency at locating an extremely wide range of scent. Trained dogs can significally reduce the amount of time in detecting a crime, but for that purpose proper training institution at government level are required to be established. There are no National or International standards to certify a dog as a "tracker". It may well find that the organization that certifies a dog as a tracker is merely a dog club. ,In order for tracker dogs evidence to be accepted in any criminal case, certain basic points need to be covered, e.g.:--
(i) The handler of dog must be qualified by proper training from a recognized institute/training centre and equipped with sufficient experience to handle the dog and interpret his action.
(ii) The dog shall be sufficiently trained to track human scent and it must be evident from the past history that the dog has been reliable tracker of human scent and has not committed mistake in past.
(iii) The trail left by the suspect was not so stale and contaminated, so as to interfere with the accurate ability of the dog to track and the dog was placed on the track where circumstances indicated the suspect had been.
10.In the instant case, the occurrence has admittedly taken place on 05.10.2010. Large numbers of people from the locality, including elders have been attracted to the spot. The dead-body of deceased was shifted to Police Station and the inhabitants of the village had returned to the village on the same track. The tracker dogs were allegedly brought on the next day, after spot inspection by the Investigation Officer In the circumstances, it would be unjust to say that the trail was not stale and contaminated with different scent. In such an eventuality, it would not be possible for us to hold the accused guilty of the offence merely on the basis that the tracker dogs have gone to the Baithak of accused/appellants. The apex Court of India in a similar case, while considering weight of evidence collected through sniffer dogs, has held as below:- "The evidence based on sniffer dogs has inherent frailties. The possibility of error on the part of the dog or its master is the first amongst them. The possibility of misunderstanding between the dog and its master is close to its heels. The possibility of misrepresentation or a wrong inference from the behaviors of the dog could not be ruled out. The last, but not the least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable dogs to track and identify criminals. Dogs engaged in there actions by virtue of instinct and also by the training imparted to them. Criminal Courts needs not, therefore, bother much about the evidence based on sniffer dogs. Investigating exercise can' afford to make attempt or forays with the help of cannies faculties, but judicial exercise can ill afford them."
11.No doubt dogs are intelligent animals with many thought processes similar to the thought process of human beings, but where there are thought processes there is always the risk of error, deception and even self deception. For these reasons, we are of the opinion that in the present state of scientific knowledge evidence of dogs tracking, even if admissible, is not ordinarily of much weight.
In the instant case the Investigating Officer deployed sniffer dogs to track down the hideout of the culprits. The track dog went up to the Baithak of the appellant, but they were not there then.
We have deeply observed that in recent past such tracker dogs are on the increase. Though such dogs may be useful to the Investigating Officers, but whether their movements be of any help to the Court in evaluating the evidence in criminal cases?- The answer must be a big "No", because, Firstly it is not possible to test the correctness of the canine movements through the normal method available in criminal cases, i,e, in cross-examination. Secondly, that the life and liberty of human beings should not be made to depend on animal sensibilities. Thirdly, that the possibility of a dog misjudging the smell or mistaking the track cannot be ruled out, or many a times such mistakes have happened. Fourthly, that even today the science has not finally pronounced about the accuracy of canine tracking. There are basically three kinds of police dogs i-e the tracker dogs, the patrol dogs and the sniffer dogs. Recent trends show that hounds belonging to certain special breeds sheltered in specialized kennels and imparted with special training are capable of leading investigating agency to a useful clue in crime detection and thereby help detectives to make a breakthrough in investigation. At the same time the last, but not the least; is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Police dogs engaged in these actions by virtue of instincts and also by the training imparted to them could not be ruled out.
The case against the accused was sought to be proved by the prosecution with the help of circumstantial evidence. We found that those circumstances were not established by the prosecution and they were insufficient to form a complete chain pointing unerringly to the guilt of accused.
12. The next link in the prosecution chain is furnished by last seen of deceased in the company of accused. PW Hameedullah, disclosed the fact on 16.10.2010 i.e after 11 days, before the local police, while Mst. Noor Fatima and Qismatullah recorded their statements under Section 161, Cr.P.C. after three days of occurrence i,e,. on 07.10.2010. As per prosecution case, the Investigating Officer has visited the spot and house of the deceased on 05.10.2010, then on next day i,e, on 06.10.2010 alongwith tracker dogs, but neither PW Mst. Noor Fatima nor PW Qismatullah disclosed to him the facts of last seen of deceased with accused. The story was developed after pointation of Baithak of accused by the tracker dogs. The complainant and Investigation Officer have categorically admitted the fact that the PWs have charged the accused after pointation of Baithak by the tracker dogs. From the above, it is clear then crystal that the story of last seen is after thought and concocted after three days of the occurrence. The statement under Section 161 recorded by the local police after a considerable delay, without any tangible and plausible explanation must vanished its sanctity and would not be held confidence inspiring evidence. PW-10, is the mother, while PW-11 is real brother of deceased and had they seen the deceased in the company of .the accused, they must have disclosed this fact at the very first instance, before the local police and would have not waited for three days. Evidence of last seen furnished by mother and brother found not supported from other circumstantial evidence, could not be based for conviction of accused. It is by now settled law that the last seen evidence due to its inherent defects is basically a weak type and if it is believed to be true, no conviction can be based on it, unless strongly corroborated by other circumstantial evidence.
13.The prosecution case also hinges on recovery of certain articles from the spot, DNA proficiency and matching analysis. Record reveals that PW Muzaffar Khan ASI, on receipt of information reached to the spot, where he recorded statement of Imam Faraz, complainant in shape of Murasila and after preparation of inquest report and injury sheet the dead-body was shifted to hospital. During his stay at the spot nothing was recovered. The alleged peace of cigarette of Morvin brand and blood stained earth/stone was recovered by the I.O. at the time of inspection of spot in pitch dark of night. PW Muzaffar ASI has categorically admitted that on the spot except dead-body no recovery has been effected. The axe has allegedly been recovered from the dwelling house of accused on pointation of juvenile co-accused Shakil Nawaz. Admittedly the axe was not stained with blood. It is also admitted that the' prosecution has not sent the finger prints of accused and axe to the expert, for comparison of finger print to ascertain that which one of the accused had used the axe at the time of offence. Recovery of weapon of offence, particularly not blood-stained, is,of no avail to the prosecution, if not sent to the laboratory for analysis and expert report. More so, the alleged recovery has not been effected from personal possession of the accused Gul Nawaz and could not be held sufficient to connect him with the commission of offence.
14.So far, the DNA test is concerned, it can safely be held that, being not conducted from notified laboratory, is not admissible in evidence and could not be based for conviction in a case of capital punishment. The local police on 13.01.2011 transmitted a peace of cigarette, blood and saliva allegedly extracted from Gul Nawaz, to National Forensic Agency project, Islamabad for DNA test, which was returned vide letter of even with the following remarks.
"The subject case received to this office was not processed due to fault in one of the main instrument i.e Genetic Analyzer of DNA lab. The repairing of instrument will take some time as few parts have to be imported. As requested in your letter, the samples are, hereby returned to Mr. Asif Iqbal-constable No, 808 of Police Station Banda Daud Shah, Karak in the same condition as were brought to this office."
On the same day DNA profiling and matching test was conducted by another laboratory namely, Institution of Biomedical and Genetic Engineering (IBGE) Islamabad, but the result was dispatched on 21.01.2011, with the following report.
"Analysis: DNA from the above-mentioned sample was extracted and amplified by using Amp FISTR Y filer (r) set of STR marke Rs, The amplified PCR fragments of both samples were run and separated along, with appropriate allelic ladder, positive and negative controls on ABI-3130 Genetic analyzer. Genotyping and DNA profiling was carried out by using Gene Mapper Ver. 302 software.
Result: The DNA profile of Mr. Gul Nawaz matched with the DNA profile obtained from a piece of cigarette recovered from the crime scene".
Nothing available on file to show that the above Laboratory is notified by Federal or Provincial Government for conducting analysis, DNA profiling and matching tests, rather the laboratory authorities have added a printed foot note on the letter pad to the following effect: "No representative of this institution will appear in the Court and report can be confirmed in writing only."
From perusal of above report, it is manifest that the laboratory even not ready to take responsibility for explaining the report before any Court. In these eventualities, it can be safely held that the alleged DNA test is having no sanctity and thus not admissible in evidence.
15. As stated in the preceding Para, the co-accused Shakeel Nawaz was arrested on 07.10.2010. At the time of arrest and before interrogation the I.O. had collected all the material from the personal possession of the accused. But amazingly, the recovery memo. depicts that the alleged cell mobile has been recovered from the accused Shakeel Nawaz on 17.10.2010. In fact this was not a clerical or arithmetical mistake, because the LO during his statement before the Court has reiterated the same fact and confirmed the date of recovery of cell phone from the accused, i,e, 17.10.2010. We have also noted that before 17.10.2010 Shakeel Nawaz had been shifted to Jail, thus recovery was impossible from his personal possession. The I.O. has also admitted the fact that he has not collected relevant data, as to the ownership of the two mobile Sims. The text of conversation between accused Shakeel Nawaz and deceased Asmatullah has also not been brought on record.
Mere telephone call from the cell phone of accused to the deceased was not sufficient to connect the appellant with the commission of offence. The telephone call, in the above eventuality is a mere presumption and it is golden principle of criminal jurisprudence that presumption, however, strong it may be, could not take the shape of proof.
16. From whatever angle seen, we find that the prosecution case is full of material contradictions and it had not been able to bring home guilt the convicts/appellants, who are thus entitled to the benefit of doubt, which is accordingly extended to them.
17.On contrary, learned counsel for the complainant/petitioner in criminal revision has failed to substantiate through any cogent and tangible evidence available on record that the learned trial Judge has come to the correct conclusion, while passing the impugned judgment, or that he has taken a lenient view while awarding the sentence of life imprisonment and compensation of rupees one lac to the legal heirs of the deceased Asmatullah, which needs enhancement to the normal penalty of death with adequate increase in the quantum of compensation too.
18.As a corollary to what is discussed above, we accept this appeal, set aside the impugned judgment of conviction and sentence and acquit the convict/appellants named above of the charge brought against them in the case in hand. They shall be set free forthwith if not wanted in any other case. The criminal revision No, 11-B of 2012 fails which is accordingly dismissed.
Above are the reasons for our short order of even date.