Muhammad Waheed Khan, J---This judgment shall dispose of Criminal Appeal No, 323 of 2016 filed by appellants Muhammad Sohail alias Samma and Mumtaz Bibi (against their conviction and sentence) and M.R. No, 57 of 2016 forwarded by the learned trial Court for confirmation of death sentence awarded to appellant Muhammad Sohail alias Samma or otherwise. Both the appellants faced trial in a private complaint filed u/S. 302/34, PPC as well as case FIR No, 198/201.4 dated 10.04.2014 registered u/S. 302/34, PPC at Police Station Zafarwal, District Narowal.
As both the matters have been arisen out of the same judgment dated 30.01.20 16 passed by the learned Addl.
Sessions judge, Zafarwal, according to which appellants were convicted and sentenced as under:-- i. Appellant Muhammad Sohail alias Samma Under Section 302(b), PPC awarded death sentence as Ta'zir. He was also directed to pay compensation of Rs, 5,00,000/- to the legal heirs of deceased Sana Ullah Rabbani under Section 544-A, Cr.P.C. and in default thereof, he was ordered to further undergo simple imprisonment for six months. ii. Appellant Mumtaz Bibi Under Section 302(b) read with Sectio n 34, PPC awarded imprisonment of life. She was also directed to pay compensation of Rs, 5,00,000/- to the legal heirs of deceased Sana Ullah Rabbani under Section 544-A, Cr.P.C. and in default thereof, he was ordered to further undergo simple imprisonment for six months.
Benefit of Section 382-B, Cr.P.C. was extended to both the appellants and all sentences were also ordered to be run concurrently .
Co-accused, namely , Zohaib Ahmad being Juvenile was tried separately by the learned trial Court under Juvenile Justice System Ordinance, 2000 and he was also awarded Imprisonment for Life through separate judgment dated 23.12.2015. His appeal is also being decided separately today .
2. Muhammad Afzal s/o Muhammad Boota while appearing as PW -1 narrated the facts of the case as under: "I am resident of Mohalla Havailian, Dhamthal and shop keeper by profession. On 10-04-14 at about 12:30 PM, I alongwith my wife Mst. Shahida Parveen and my son Sana Ullah Rubbani aged about 4/5 years were present on our shop and Sana Ullah was playing there on the shop. In the meantime, Sohail son of Tariq caste Malik, r/o Dhamthal who is resident of same vicinity came to my shop and bought three cigarette of Capstan brand.
Thereafter I came back to my house and after some time, my wife came there and asked about Sana Ullah and I told her that Sana Ullah did not come to home, for which we became worried and started searching for him. At about 3:00 pm, Sammer son of Ishaq, Navid son of Muhammad Akram, Shakeel son of Muhammad Aslam who were also searching for Sana Ullah, entered in a deserted house situated in front of his house and there found the dead body of my son Sana Ullah lying in the toilet. They made noise and I alongwith my wife and other inhabitants of Mohalla came to the scene and saw my son being tied from mouth and hands in dead position and the fire in extinguished form was available. nearby . At that moment, Muhammad lqbal son of Muhammad Ali and Zahoor Ahmad alias Hazoor Hussain son of Muhammad lqbal r/o Dhamthal told me that they saw Sohail and Zohaib sons of Tariq Malik and Mst. Mumtaz Bibi widow of Tariq alongwith my son while entering in the house of Sohail etc. Sohail, Zohaib and Mumtaz Bibi have killed my son by taking him alongwith them by tying his hands and mouth.
The motive behind the occurrence is that a few days before, there was a quarrel with them for not giving edible items on credit and due to that Sohail and his mother threatened to kill and for the said reason my son had been murdered by the above said accused."
3. The dead body of the deceased Sana Ullah Rabbani was brought to hospital and examined by CW-5 Dr. Taj Muhammad CMO, DHQ Hospital, Narowal, who conducted autopsy , the report of which is as under: EXTERNAL EXAMINA TION.
A young boy child aged about 05 years of normal built lying on table, eyes closed, mouth slightly opened, rigor mortes present, post-mortem staining present, natural orifices closed. Secretion coming out from both nostrils.
EXAMINA TION OF CLOTHES. Chocolate colour shirt and blue jeans paint.
EXAMINA TION OF NECK.
No mark of ligature seen on neck. On dissection hyoid bone is taken and sent for Histopathological examination.
CRANIUM AND SPINAL CORD.
Scalp, skull, membranes, brain, vertebrae and spinal cord: NAD).
OPINION.
Vide report No 750 dated 24-6-2014, toxicology department ( Ex.CW -51M) liver was found to contain 0.16 mg/kg lorazepam. Vide report No, 2174 dated 11-06-2015 report from I histopathalogi st Forensic Science Laboratory (Ex.CW -5/N) revealed intact coronaries and unremarkable myocardium lung reveal lung congestion and RBCs, in alveoli hyoid bone section having foci of blood hemorrhage features are suggestiv e of ante mortem injury of Hyoid bone.
FINAL OPINION.
In the light of above findings the caus e of death in this case is asphyxia by strangulation and sedation by tranquilizers (lorazepam).
PROBABLE TIME ELAPSED. a. Between injury and death: b. Between death and post-mortem: within 8 hours
4. After registration of the case, investigation started and on conclusion of investigation report u/S. 173, Cr.P.C. was submitted before the learned trial Court, thereafter learned trial Court framed charg e against appellants, which was denied by them and trial commenced.
5. Prosecution produced as many as six witnesses i,e, Muhammad Afzal complainant of the case who appeared as PW-1, Muhammad Iqbal appeared as PW-2, Zahoor Hussain alias Hazoor Hussain appeared as PW-3, Muhammad Illyas appeared as PW-4, Zahoor Khan appeared as PW-5 and Muham mad Umar appeared as PW-6, whereas five witnesses were summoned by the Court i,e, Muhammad Shafique 127/C as CW-1, Ishtiaq Ahmad 812/HC as CW-2, Mirza Tahir Tasleem draftsman as CW-3, Rehmat Ali SI/Investigating Officer of the case as CW- 4, Dr. Taj Muhammad CMO as CW-5, who conducted post-mortem on the dead body of deceased Sana Ullah Rubbani. Thereafter , prosecution closed its evidence by producing certain documentary evidence.
6. Thereafter , appellants were examined u/S. 342, Cr.P.C., wherein they denied all the allegations leveled against them and in response to the question "why the PWs have deposed against you and why this case registered against you. Both the appellants replied that all the PWs are close relative of the complainant and they gave false evidence on the instance of complainant against them and they did not know why this case was registered against them by the complainant. Both the appellants had not opted to record their statements u/S. 340(2), Cr.P.C., however , one Abdul Qayyum was produced as DW -1 in their defence.
7. Learned trial Court after appraisal of prosecution evidence convicted and sentenced appellants in the above mentioned terms, hence, this appeal and Murder Reference.
8. Learned counsel for the appellants submits that impugned judgment is based on conjectures and surmises as the same is based on mis-reading and non-reading of evidence available on record; that there is no eye-witness of the occurrence and the entire case is based on circumstantial evidence; that witnesses produced by the prosecution are closely related to the complainant and no reliance can be placed on their testimony; that report of DNA has no help for the prosecution as recovery was planted upon the appellant Muhammad Sohail alias Samma; that the prosecution has also failed to prove the motive part of the case against the appellants and lastly prayed that since the prosecution has failed to establish its case beyond any reasonable doubt, therefore, by accepting the appeal, appellants may be acquitted of the charge.
9. Conversely , learned Deputy Prosecutor General assisted by the learned counse l for the complainant vigorously controverted the arguments advanced by the learned counsel for the appellants and submits that the prosecution has successfully proved its case against the appellants up to the hilt by producing reliable and trustworthy evidence; that evidence of prosecution is based on last seen, evidence of extra judicial confession, witnesses of Waj Takkar and the most important evidence which is available in shape of positive report of DNA that sufficiently connects the appellant Muhammad Sohail alias Samma with the commission of alleged crime; that during the course of investigation both the appellan ts were found guilty by the Investigating Officer and lastly prayed that in presence of suf ficient evidence on record, appeal filed by the appellants is liable to be dismissed.
10. W e have heard the arguments of learned counsel for the parties and have gone through the record minutely .
11. In order to prove its case, prosecution produced following evidence:--
1. Last seen evidence.
2. Extra Judicial Confession.
3. Evidence of W aj Takkar .
4. Medical Evidence.
5. Evidence of recovery .
6. DNA Report.
7. Evidence of Motive.
Complainant while recording his statement as PW-1 before the learned trial Court deposed that he is a shopkeeper by profession, On 10.04.2014 at about 12.30 p.m., he alongwith his wife Mst. Shahida Parveen and his son Sana Ullah Rabbani aged about 4/5 years were present at their shop and Sana Ullah was playing there. Appellant Muhammad Sohail alias Samma, who was the resident of the same vicinity , came on his shop and bought three cigarettes of Capstan brand, thereafter he went back to his house. After some time, his wife told him that their son Sana Ullah Rabbani had not come to home, on which they started searching him. At about 3.00 p.m., when Sammer , Naveed and Shakeel were also searching his son, entered in the deserted,house situated in front of his house and found the dead body of his son Sana Ullah Rabbani lying in toilet, who was murdered and his mouth and hands were tied. At that moment, Muhammad Iqbal and Zahoor Ahmad alias Mazoor Hussain told him that they saw the appellant Muhammad Sohail alias Samma and co-accused Zohaib and Mumtaz Bibi alongwith his son while entering into their house and they had killed his son while taking him alongwith them by tying his mouth and hands.
12. To prove the last seen evidence, complainant produced two witnesses, namely Muhammad Iqbal and Zahoor Hussain alias Hamer Hussain, both recorded their statements before the learned trial Court as PW-2 and PW-3 respectively . Both of them stated in unison that they are resident of Dhamthal and on 10.04.2014, they were passing nearby the house of appellant Muhammad Sohail alias Samma and saw him alongwith his co- accused Zohaib and Mumtaz Bibi while taking the son of the complainant into their house and after some time they came to know that son of the complainant Sana Ullah Rabbani had been murdered by the above said three accused. They told the complainant about the factum that they had lastly seen the deceased in the company of appellants and their co-accused Zohaib.
13. On perusal of statements of both the witnesses, it is found that they have mentioned about the time, date and place where they had seen the deceased with the appellants and after some time, the dead body was recovered from a deserted house, which is in front of house of the complainant adjacent to the house of appellants. On perusal of scaled and un-scaled site plan, it reveals that the house of the appellant s and deserted house owned by Muhammad Iqbal (PW-2) are adjacent to each other in a row and there is a wall of five feet high in between both the houses and the place wherefrom dead body of the deceased was recovered is connected with the said wall. All these facts show that the last seen evidence produced by the prosecution not only passed the test of proximity of time but the place also.
14. Furthermore, names of both these witnesses are mentioned in FIR on whose information, instant FIR was lodged by the complainant and this aspect also goes in favour of the prosecution. Even otherwise, the alleged occurrence took place at 3.00 p.m. on 10.04.2014, whereas matter was reported to police on the same day at 4.10 p.m. and this spontaneity in lodging of FIR also speaks volume about sanctity of the prosecution witnesses and it also guarantees truthfulness in most of the cases. Under the circumstances, we hold that the witnesses of last seen evidence are truthful and worthy of credit.
15. So far as the evidence of extra judicial confession is concerned, since this evide nce has some inherent defects, as according to the version of witnesses, all the accused persons one by one made a confession to their guilt before them and they immediately contacted to police for recording their statements but it is on the record that the police never recorded the statements of the witnesses regarding extra judicial confession. So far as the evidence of Waj Takkar is concerned, Muhammad Illyas appeared as PW-4, who in his statement deposed that he had seen the appellant Muhammad Sohail alias Samma while coming from the place of occurrence after committing the murder of Sana Ullah Rabbani but in his statement before the learned trial Court, he has not mentioned the time and date when he saw the appellant coming from the place of occurrence, so, in our view the evidence of extra judicial confession and W aj Takkar is not worthy of credit.
16. There is another piece of evidence in shape of DNA test report available with the prosecution and has paramount importance in this case. Soon after the occurrence Rehmat Ali S.I. visited the crime scene on 10.04.2014 and found three pieces of cigarettes Capstan brand alongwith other things and secured the same through recovery memo. Ex-PC and on pointing out the PWs prepared rough site plan Ex.CW -4/H. The also confirms that he had recorded statement of Muhammad Iqbal and Zahoor Hussain alias Hazoor Hussain the above said witnesses of the last seen u/S. 161, Cr.P.C. on the same day at the place of occurrence. According to report of Punjab Forensic Science Agency Ex-CW/P , parcels containing the pieces of three cigarettes were received by the said Agency on 14.04.2014, whereas the appellants were arrested in the instant, case on 16.04.2014 by the police, which factum also confirmed by Rehmat Ali SI, while deposing as CW-4 before the learned trial Court and on the same day i,e, 16.04.2014, all the three accused were produced before the Punjab Forensic Science Agency and their buccal swabs were taken, the result and conclusion of which as per report is as under: "The DNA profile obtained from item # 1.1, 1.2 and 1.3 (Cigarette butts) matches the DNA ,profile of Sohail Ahmad (item # S1). In the absence of an identical twin, Sohail Ahmad (item # S1) is the source of the DNA obtained from item # 1.1, 1.2 and 1.3 (Cigarette butts) to a reasonable degree of scientific certa inty. Zohaib Ahmad (item # S2) and Mumtaz Bibi (item # S2) are elimina ted as being the source of DNA obtaine d from item # 1.1, 1.2 and 1.3 (Cigarette butts)."
It shows that pieces of cigarettes were sent to the office of Punjab Forensic Science Agency prior to the arrest of the appellants and after arrest, their buccal swabs were procured by the official of said agency and there is no doubt in our mind regarding securing of pieces of Cigarette from the place of occu rrence, preserving it in a sealed parcel and transmitted it to the office of Punjab Forensic Science Agency and there is not an iota of doubt in our mind that same were tampered with at any stage and the positive report of buccal swabs found matched with the pieces of said cigarette secured from the place of occurrence. So, in our view the chain of custody from generation of samples to their deposit with the Punjab Forensic Science Agency and up to its presentation in the Court is established beyond any doubt.
17. Conducting of DNA test in order to prove the truthfulness of allegation of crime is not new. By using DNA technology , the Courts are in a proper position to reach at just conclusion on a disputed fact. Initially , the Court oftenly excluded it from the evidence and not passed the conviction based on it, as the Evidence Act, 1872 had no provision in this regard. However , Article 164 of the Qanun-e-Shahadat Order , 1984, has resolved this anomaly , wherein the evidence available because of modern devices etc. has been made admissible in Courts of law. A recent enactment through Act IV of 2017 dated 16.02.2017, proviso has been added in Article 164 of the Qanun-e- Shahadat Order , 1984, which reads as under: "Provided that conviction on the basis of modern derives or techniques may be lawful.]"
Sub-section (3) of Section 9 of the Punjab Forensic Science Agency Act, 2007 reads as under: "(3) A person appointed in the Agency as an expert shall be deemed as an expert appointed under Section 510 of the Code and a person Specially skilled in a forensic material under Article 59 of the Qanun-e- Shahadat Order , 1984 (X of 1984)."
Perusal of above said provision shows that the report of Punjab Forensic Science Agency regarding the DNA is per se admissible piece of evidence u/S. 510 of Cr.P.C. In this regard we are guided by the dictum laid down in celebrated judgment passed by the augus t Supreme Court of Pakistan in case of "Salman Akram Raja and another v. Government of Punjab through Chief Secretary , and others" reported in (2013 SCMR 203), wherein it is observed that: "In this regard 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 profilin g 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. Reference may he made to the case of United State v. Yee (134 F.R.D. 161), wherein conviction was recorded on the basis of DNA test results."
In criminal cases the identity of actual accused is an element of primary importance. A lot of pre-meditation, improvements and tactical delays on the part of the complainant party can be checked if scientific analysis is resorted to. Apart from saving time and ensuring quick disposal of cases, many genuine complaints remain unresolved due to stereotype method of investigation. So we find that Article 164 of the Qanun-e-Shahadat Order , 1984 has resolved the problem and the evidence based on modern devices and techniques has been made admissible.
18. Under the circumstances, we hold that during these days the science and technology has so much importance and identity of a man cannot be concealed. "In India, the DNA report was admissible in evidence under Section. 45 (Opinion of Expert ) the Evidence Act, 1872 (Article 59 of QSO) . Now the DNA testing has obtained legislative recognition through the Code of Criminal Procedure (Amendment) Act, 2005 by addition of Section's 53 and 53A, which expanded the scope of the term "examination" toinclude DNA profiling . The Indian Superior Courts however elaborated the evidentiary value of the DNA report in criminal cases as a) The Supreme Court of Indian in the case of Mukesh & anr v. State for NCT of Delhi & Ors (2017 AIR (SC) 2161) held: "406 ................DNA profiles generated from the clothes of the accused recovered at their behest consistent with that of the victim is an unimpeachable evidence incriminating the accused in the occurrence. As submitted by the prosecution, there is no plausible explana tion from the accused as to the matching of DNA profile of the victim with that of the DNA profile generated from the clothes of the accused.
419 ............DNA Analysis Report, as provided by PW-45 is a vital piece of evidence connecting the accused with the crime: 449 ........... The DNA report and the findings thereon, being scientifically accurate clearly establish the link involving the accused persons in the incident," b) The Supreme Court of India in the case of Kamti Devi v . Poshi Ram. (2001) 5 SCC 31 1 held: ".11..... the method of proving identity through DNA profiling was scientific and accurate. c) Delhi High Court in the case of state through reference v . Ram Sinah and other (2014(4) CCR174) held.
"345. In the light of the above, we conclude that in order to prove the authenticity and correctness of DNA analysis, the prosecution must establish the following: I. The process of generation of DNA profiles from the samples taken from the victims and the accused persons individually .
II. The chain of custody from the generation of the samples to their deposit with the CFSL Laboratory and upto its presentation in the Court must be established beyond any doubt. That is to say, to prove the DNA matching, it is necessary used establish that the various exhibits which were used for the purpose of DNA analysis were received by the expert/laboratory without any tampering. In other words, there was no manipulation with the exhibits from the time of their generation till the time they were received for forensic examination and thereafter till the time the complete record of biological evidence is presented in the Court.
III. The process of matching the DNA through the concerned expert, thus linking the accused with the victims, the scene of crime, the dumping spot and the weapons of offence."
Deoxyribonucleic Acid Test, commonly known as DNA is almost conclusive proof of one's identity . In our opinion, after receipt of report of DNA Lest as discussed above, the controversy should have been resolved and we have entertained no doubt in our mind regarding the culpability of appellant Muhammad Sohail alias Samma.
19. We have also noticed another aspect of the case which is available in shape of medical evidence. CW-5 Dr. Taj Muhammad while appearing before the learned trial Court has given final opinion in the following words: "In the light of above findings the caus e of death in this case is asphyxia by strangulation and sedation by tranquilizers (lorazepam). ''
20. For what has been discussed above, we hold that the prosecution has success fully proved its case against the appellant Muhammad Sohail alias Samma by producing cogent, reliable and trustworthy evidence based on last seen, medical evidence and. DNA report, ,which fully connects him in the commission of alleged crime and furthermore, he was also found guilty by the Investigating Officer . during investigation. So, it is established on record that he being a sole perpetrator committed the gruesome act of killing innocent child aged about 4/5 years.
So, Criminal Appeal No, 323 of 2016 is dismissed to the extent of appellant Muha mmad Sohail alias Samma and his conviction u/S. 302(b), PPC is maintained. However , as far as quantum of sentence awarded to him is concerned, as we have observed some extenuating circumstances in his case because prosecution has specifically introduced the motive on the basis of which appellants have committed the alleged crime but we found nothing except the statement of complainant regarding the previous quarrel between the parties, there is no other evidence available in this regard. Even in his statement, the complainant has not given any time, date and place of occurrence, and also not explained whether the said incident was reported to police or not. Therefore, we are of the view that to meet the ends of justice for the safe dispensation of criminal justice, the sentence of death awarded by the learned trial Court to the appellant Muhammad Sohail alias Samma is not justified. Guidance in this regard is sought from the ratio decidendi laid down by the Hon'ble Supreme Court of Pakistan in the case of "Muhammad Riaz and another vs. The State and another" ( 2007 SCMR 1413 ), wherein their Lordships have held as under: "No doubt normal penalty for an act of commission of Qatl-i-Amd provided under 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."
Hence, death sentence awarded by the learned trial Court to the appellant Muhammad Sohail alias Samma is converted into life imprisonment and as a result thereof, Murder Reference No, 57 of 2016 is answered in NEGA TIVE and his death sentence is NOT CONFIRMED . Benefit of Section 382-B, Cr.P.C. is also extended to him.
21. As far as, the case of appellant Mst. Mumtaz Bibi is concerned, she is the mother of main accused/appellant Muhammad Sohail alias Samma and the only incriminating material available with the prosecution against her is in shape of last seen evidence. Though, we have fully believed the evidence of last seen as mentioned above but in the case of present appellant, no corroboration of last seen is available, so, by extending benefit of doubt to the appellant Mst. Mumtaz Bibi, we accept Criminal Appeal No, 323 of 2016 to her extent and she is acquitted of the charge. She is in jail, so, she is ordered to be released forthwith if no required in any other criminal case.