Tariq Saleem Sheikh, J. Through this single judgment we propose to decide Crl. Appeal Nos.660-A TA and 665- ATA of 2012 as they both arise from judgment dated 31-08-2012 passed by the learned Judge, Anti-T errorism Court-II, Multan, in private complaint titled "Muhammad Asghar v. Tanveer & othe rs" under Sections 365-A, 376 PPC read with Section 7 of the Anti-T errorism Act, 1997 (the "Act"), in case FIR No.171/2010 dated 15-03-2010 registered at Police Station Fareed Town, District Sahiwal.
2. Brief facts of the case are that on 17-11-201 1 the Complainant, Muhammad Asghar (PW-1), filed a private complaint (Exh.P A) stating that he was a resident of House No.320/Y , Scheme No.3, Fareed Town, Sahiwal, and ran a car showroom. On 10-03-2010 at about Isha-wela he was having meals with his family when somebody knocked the door. His niece Rabia Bibi went to attend the call but did not come back for a long time. He along with his brother-in-law Mujahid Hussain and nephew Irfan searched for her the whole night but could not trace her. Next morning someone called on his Cell No.0300-6908476 from Cell No.0301-6530865 and told him that his niece was in his custody and he should arrange ransom in the sum of Rs.50,00,000/- if he wanted her back. However , after hard bargaining the caller agreed to accept Rs.12,00,000/- which the Complainant paid him at a deserted place across the rail track near Okara. Muhammad Younas (PW-3), Irfan and Mujahid Hussain were with him at that time and witnessed the payment. The Complainant alleged that the aforesaid man was Tanveer (Appellant in Crl. Appeal No.660-A TA/2012) and stated that after receiving the money he told him to go to Madni Chowk, Multan, and collect Rabia Bibi. The Complainant and his companions went there but they did not find her. Next morning the man rang him again from his Cell No.0347-756466 5 and demanded an additional sum of Rs.20,00,000/- for her release.
During that conversation the Complainant overheard Rakhshanda (Appellant in Crl. Appeal No.665-A TA/2012) who had been his housemaid and left the job about 15/20 days before the incident. This gave him a cue so he and his companions went to Rakhshanda's house where her father told them that she had gone to city and he would let them know when she returned. In the evening Rakhshanda and her father came to the Complainant's house when he was with Muhammad Younas (PW-3), Irfan and Mujahid Hussain. He inquired from her about Rabia Bibi. After a little reticence she confessed that she and her paramour Tanveer had abducted her for ransom. She also admitted that Tanveer had received Rs.12,00,000/- but was demanding more. Muhammad Asghar urged her to get them to Tanveer whereupon she led them to his house in Chak No.103/7-R where his father met them. They asked him to help recover Rabia Bibi and threatened that they would report the matter to the police if he did not. In order to avoid a situation Tanveer's father brought the girl from inside his house and handed her over to them. In the meanwhile Rakhshanda slipped away . Rabia Bibi's condition was not good but the Complainant and his companions brought her to Sahiwal. When she composed she told them that four men (including Tanveer , Shah Nawaz, Altaf Hussain and an unknown person) abducted her with the aid and abetment of Rakhshanda. They took her to a poultry farm, confined her in a room and raped and tortured her all night. The Complainant lodged FIR No.171/2010 dated 15- 03-2010 against the Appellants and their co-accused at Police Station Fareed Town, Sahiwal. He alleged that the police did not investigate the case honestly so he filed complaint Exh.P A.
3. The learned Judge, Anti-T errorism Court-II, Multan, recorded cursory evidence and holding that the allegations levelled against the Appellants and their two nominated co-accused, namely , Shahi d Nawaz and Altaf Hussain, had substance summoned them for trial and indicted them on 6-01-2012. They denied the charge and claimed trial.
4. During the trial the prosecution produced three witnesses while two others were examined as Court Witnesses.
Complainant Muhammad Asghar (PW-1), Rabia Bibi (PW-2) and Muhammad Younas (PW-3) reiterated the prosecution case as set out in the private complaint Exh.P A. Lady Dr. Uzma Ashraf (CW-1) furnished medical evidence. The Investigating Officer, Allah Yar/SI (CW-2), gave details of his investigation and the evidence he collected in this case.
5. On completion of the prosecution evidence the learned trial Court examined the accused under Section 342 Cr.P.C. They denied the allegations levelle d against them and professed innocence . However , they neither got their statements recorded on oath under Section 340(2) Cr .P.C. nor examined any witness in their defence.
6. On the conclusion of the trial, vide judgment dated 31-08-2012, the learned Judge, Anti-T errorism Court, acquitted Shahid Nawaz and Altaf Hussain. However , he convicted Tanveer and Rakhshanda and sentenced them as under: Tanveer: i) Convicted under Section 365-A PPC and sentenced to imprisonment for life with forfeiture of property , if he had any. ii) Convicted under Section 376(1) PPC and sentenced to rigorous imprisonment for 15 years with fine of Rs.1,00,000/- and in default thereof to undergo simple imprisonment for a further period of two years. iii) Convicted under Section 7(e) of the Act and sentenced to imprisonment for life with forfeiture of property , if he had any .
Rakhshanda: i) Convicted under Section 365-A PPC and sentenced to imprisonment for life with forfeiture of property , if she had any. ii) Convicted under Section 7(e) of the Act and sentenced to imprisonment for life with forfeiture of property , if she had any .
The sentences of both the convicts were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was extended to them.
7. Tanveer and Rakhshanda have challenged their conviction and sentence before this Court through Crl. Appeal Nos.660-A TA and 665-A TA of 2012 respectively .
8. The learned counsel for Appellant Tanveer in Crl. Appeal No.660-A TA/2012, Syed Badar Raza Gillani, Advocate, contended that the prosecution had failed to prove its case against the said Appellant beyond doubt. He argued that there was no evidence that the Appellant had abducted Rabia Bibi and subsequently demanded and received ransom from the Complainant. The Inves tigating Officer, Allah Yar/SI (CW-2), also found the said allegations false.
Similarly , there was no reliable evidence to establish the charge of rape. The deposition of Rabia Bibi did not inspire confidence and if that was rejected the medical evidence furnished by Lady Dr. Uzma Ashraf (CW-1) was of no legal consequence. Lastly , the victim was not recovered from the Appellant and evidence produced by the prosecution in this regard was excogitated. The learned counsel prayed that this appeal be accepted and Appellant Tanveer be acquitted.
9. In support of Crl. Appeal No.665-A TA/2012 Mr. Ashfaq Ahmad Khan, Advocate, argued that Appellant Rakhshanda had been implicated in this case due to suspicion. There was not a whit of evidence that she committed the alleged of fence or abetted it. He also prayed for her acquittal.
10. On the other hand, the learned Deput y Prosecutor General controverted the above contentions. He contended that the prosecution had produced reliable evidence to prove that the Appellants abducted Rabia Bibi, a matric student, for ransom and Appellant Tanveer also ravished her. The ocular account was corroborated by medical and forensic evidence. The Complainant had no motive to falsely implicate the Appellants in this case. He further contended that the learned trial Court had rightly convicted the Appellants and prayed for dismissal of these appeals.
11. Arguments heard. Record perused.
12. The charge against the Appellants is that on 10-03-2010 at about Isha-wela they abducted Rabia Bibi (PW-2) for ransom from her house in Fareed Town, Sahiwal. Appellant Tanveer is also accused of raping her. Complainant Muhammad Asghar (PW-1) and Muhammad Younas (PW-3), who were the paternal uncle and father of Rabia Bibi respectively , deposed that on the aforesa id date and time they were taking meals with other members of the family when somebody knocked the outer gate of the house. Rabia Bibi went to answer the call but did not return for quite some time which worried them. They went out to see her but she was not there . They along with PWs Mujahid Hussain and Irfan (given up) searched her but could not find any clue. A close look at the statements of these witnesses clearly shows that they were not with Rabia Bibi when she was allegedly abducted and did not see the criminals. Resultantly , the prosecution entirely banks on the victim' s testimony to prove the charge of abduction against the Appellants.
13. Rabia Bibi deposed that Appellant Rakhshanda worked for 5/6 months in her house as a maid and then left the job. On the eventful day she called from Cell No.0347-6365645 at her Cell No.0321-6931 119 and asked her to open the door as she was standing outsid e. Simultaneously there was a knock at the door and when she opened it two men pounced on her, put a piece of cloth on her mouth and thrust her into a car parked nearby in which two persons were already on board and sped away . She further deposed that Appellant Rakhshanda stood by and watched all this happening. We have carefully scanned the statement of Rabia Bibi and noted that she did not specifically name Appellant Tanveer as one of the abductors. Further , it does not show that Appellant Rakhshanda was their accomplice. Call data record of the cell phones mentioned by Rabia Bibi in her deposition was not produced at the trial. During investigation the car used in the commission of of fence was also not recovered.
14. The evidence regarding demand and receipt of ransom by Appellant Tanveer is equally unconvincing.
According to Complainant Muhammad Asghar (PW-1), the accused communicated with him from Cell Nos. 0301- 6530865 and 0347-7564665 on his Cell No.0300-6908476. The call data of these cell phones was pivotal to the prosecution case. In his cross-examination Allah Yar/SI (CW-2) deposed that he collected it but only annexed it with the file without securing it through Fard. Admittedly , copies of that record were not provided to the Appellants under Section 265-C Cr.P.C. and during the trial the prosecution did not take any step to prove and get it exhibited as required by law. Therefore, on principle it should be left out of consideration while deciding this case. Nevertheless, since the defence directly referred to some portions thereof and asked Allah Yar/SI (CW-2) some specific questions about it we are constrained to observe that the said data contradicts the prosecution version set out in the complaint Exh.P A and the testimony of PWs Muhammad Asghar and Muhammad Younas in the Court. The following excerpt from the cross-examination of Allah Yar/SI is self-explanatory: "It is correct that I collected the data phone number of the Complainant i.e. 0300-6908476. I had annexed the data collected by me with the Challan file. It is correct that mobile cell number of Tanveer accused was 0301-6530865. It is correct that according to data, 1st call received on the cell phone of Complainant done by the accused Tanveer was received at 5:00 p.m. (evening) on 11.3.2010 and prior to this on that day there was neither any call from the Complainant side nor the accused side (under objection). It was claim of the Complainant according to FIR that early in the morning two times the calls have been made to Tanveer accused on his cell phone but it was not found correct. It is correct that after the 1st call on 5:00 p.m. on that day, about 5/6 calls were done by the Complainant on the cell phone of Tanveer accused. The last done by Complainant on the cell phone of accused was at 9:54 p.m.
It is correct that according to data collected by me only one call was received by the Complainant done by accused.
(under objection). On 12.3.2010 there was no any contact on cell phone either from Complainant side or from accused. I also found the same during the investigation."
15. According to the prosecution, the payment of ransom to Appellant Tanveer was witnessed by Complainant Muhammad Asghar (PW-1), Muhammad Younas (PW-3) and PWs Irfan and Mujahid Hussain (given up). In the first instance, the prosecution was required to prove that the complainant party had arranged Rs.12,00,000/- within a few hours to make the payment but it did not bring any material on record to that effect. Even if it is assumed that they raised that sum the identity of the person who received it has not been established. Muhammad Asghar admitted that he did not know Appellant Tanveer before the incident and although he nominated him in the FIR, as per available record, he did not come face to face with him again until his arrest. In the circumstances, identification test parade was essential but it was not conducted. So far as Muhammad Younas (PW-3) is concerned, he was standing at such distance from the place where Muhammad Asghar allegedly handed over the money that it was not possible for him to have a good look at the accused in the darkness of night. The PWs claimed that there was a street light which illuminated the site but no evidence was led in this regard. Not even site plan of that place was produced. It appears that accusing finger has been pointed at Appellant Tanveer on the statement of Appellant Rakhshanda which itself is tainted. The following excerpt from the cross-examination of Muhammad Asghar (PW-1) is quite instructive: "We three persons including mine (sic) went to pay ransom, again stated we were four persons. I myself handed over the ransom amount to Tanveer accused alone while separating my companions who stayed at some distance.
The distance between railway track and main road is 25/30 feet and I paid the ransom amount while crossing the railway track. I did not know Tanveer accu sed till then. I had not seen Tanveer accused at the time when Rabia Bibi was recovered from the house of Tanveer . Mst. Rakhshanda co accused had informed me that the person who received the amount was Tanveer . No ID Parade was held against Tanveer accused."
16. Last but not least, during investigation ransom money was not recovered from Appellant Tanveer .
17. The prosecution claims that Rabia Bibi was recovered from Appellant Tanveer . However , it has not been able to prove this fact as well during the trial. Muhammad Asghar (PW-1) deposed that on 12-03-2010 when Appellant Tanveer called him to demand another Rs.20,00,000/- for release of Rabia Bibi he overheard a woman on his side whom he identified as Appellant Rakhsha nda who worked in his house as a maid. According to him, he contacted her and she led to Appellant Tanveer's house where his father handed over the girl to him and other PWs who were accompanying him. We have serious doubt that Muhammad Asghar could recognize Appellant Rakhshanda by her voice on a phone and that too when she was not directly talking to him. Even otherwise, as we have already discussed, the prosecution has failed to establish that Appellant Tanveer made the alleged call to Muhammad Asghar . Further , the disclosures said to have been made by Appellant Rakhshanda somewhat fall within the category of extra-judicial confession. There is no explanation why she made it.
18. The testimony of Rabia Bibi too does not help prove the prosecution's aforesaid allegation because she improved her previous statement to bring it in line with those of PWs Muhammad Asghar and Muhammad Younas.
Relevant extract from her cross-examination is reproduced hereunder: "I remained three days out of my house. I was taken by the accused persons on 10.3.2010 and returned to my house on 13.3.2010. It was evening time on 13.3.2010 when I returned home. I don't know as to whether I mentioned before the doctor examining me on 14.3.2010 that I returned home on 13.3.2010. It is correct that I stated before the medical officer that I came to house on 12.3.2010. Voluntarily stated that I had mistakenly stated that I reached my home on 13.3.2010. It is incorrect to suggest that my voluntee red statement (sic) is false. It is incorrect to suggest that I don't know the exact date of my returning to house for the reason that in fact I was not abducted by anybody ."
19. Now we turn to the charge of rape. The prosecution relies on Rabia Bibi's testimony for the ocular account. Her credibility must be evaluated in the light of her cross-examination and other evidence produced by the prosecution and the defence, if any. In The State and others v. Abdul Khaliq and others (PLD 2011 SC 544), the Hon'ble Supreme Court authoritatively held that there is no statutory command that in offences of sexual abuse the victim's testimony should be accepted without scrutiny . The Court may ask for corroboration when facts and circumstances of a case require.
20. Rabia Bibi deposed that the accused abducted and took her to a poultry farm, tied her limbs and confined her in a room. Later , Appellant Tanveer and three others raped her. It is, however , noted that here again her statement was in conflict with what she stated before the police. As per Exh.DB she told the Investigating Officer, Allah Yar/SI (CW-2), that Appellant Tanveer took her to the house of one Mashaf where they stayed and she introduced herself as his wife. It is by now well settled that when a witness changes his version or dishonestly improves it he loses credibility and his evidence cannot be relied upon. In Ibrar Hussain and others v. The State and another (2007 SCMR 605 ), the Hon'ble Supreme Court of Pakistan ruled: "It is a settled law that witness making improvements and changing version as and when suited according to the situation then such type of improvements were found deliberate and dishonest, therefore, cause serious doubt on the veracity of such witness."
Similarly , in Muhammad Rafique and others v . The State and others ( 2010 SCMR 385 ), the apex Court held: "...This Court in the case of Saeed Muhammad Shah v. State (1993 SCMR 550) observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corrob oration. In the case of Khalid Javed v. State (2003 SCMR 1419 ) while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence."
The above view was reiterated in Muhammad Naeem Inayat v. The State (2010 SCMR 1054 ), Muhammad Saleem v. Muhammad Azan and anoth er (2011 SCMR 474) and Sardar Bibi and others v. Munir Ahmed and others ( 2017 SCMR 344 ).
21. It is important to note that the learned trial Court has partially disbelieved the prosecution witnesses, including Rabia Bibi, and acquitted two co-accused Shahid Nawaz and Altaf Hussain. In order to sustain conviction against the Appellants their testimony must be corroborated by some independent evidence. The learned Deputy Prosecutor General argued that the medi cal evidence and the DNA test report provide the requisite corroboration while the learned counsel for the Appellants contended that they do not. W e take up the DNA report first.
22. DNA stands for deoxyribonucleic acid and is sometimes called the "molecule of life." Modi' s Textbook of Medical Jurisprudence and Toxicology (24th Edition) explains that "life on earth is based on cells; almost every cell has a nucleus; and each nucleus carries a complete set of chromosomes. Human beings have 23 pairs of chromosomes in each nucleus. These chromosomes carry linearly arranged genetic units, which are materially referred as Deoxyribonucleic Acid (DNA). The DNA is the genetic material that makes every individual different, except for genetically identical twins. A pattern of chemical signals i.e., genetic code, has been discovered within the DNA molecule, which is very unique to each individual, just like their actual fingerprint. Thus, the DNA profiling, unique to each individual, is colloquially referred to as "DNA Fingerprinting? and it is also known as DNA typing ....
Chemically , DNA is made up of phosphoric acid, D-2-deoxyribose (R-D-2- deoxyrib ofuranose) and four nitrogenous bases, namely , purines-adenine (6-aminopurines), guanine (2-amino-6-oxypurine), pyrimidines-cytosine (2-oxy-4- aminopyrimidine) and thymine (5-methyl-2, 4-dioxypyrimidine). The four bases found in DNA are thus adenine, guanine, cytosine and thymine, which are abbreviated A, G, C, and T respectively . The DNA chain can then be thought of as a long sequence of these four letters. The DNA is a double helix-two strand, twisted around one another much like a twisted ladder . The rungs of the ladder are formed by the pairing of A of one strand with the T of the other . Similarly , the pairing of C of one strand is formed with G of the other strand. Purines and pyrimidines on adjacent strands are held together in the same plane by hydrogen bonding. The genetic blueprint is a code of instructions. The words in the code sheets are all three-lettered, spelt by the various combinations of the four nucleotide bases, also known as triplet codon. Each word designates an amino-acid and the entire DNA string is a1 code of instructions for assembling amino-acids into large poly-peptide chains. A discrete segment on the DNA instructs just the productions of a single protein. Also, because of the specific affinity between A and T, G and C, the instructions on one strand of the double helix are reflected by the other strand."
23. There is unanimity among scientists and lawyers that DNA identification is capable of producing reliable results.
In Salman Akram Raja and another v. Government of Punjab through Chief Secretary , and others (2013 SCMR 203 ), the Hon?ble Supreme Court of Pakistan observed: "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 did not base the conviction on it. However , in the last decade or so the DNA technology has significantly advanced and introduction of DNA profiling 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. (sic) Reference may be made to the case of United States v. Yee (134 F.R.D. 161), wherein conviction was recorded on the basis of DNA test results."
24. In our legal framework DNA evidence is evaluated on the strength of Articles 59 and 164 of the Qanoon-e- Shahadat, 1984 (QSO). The former provision states that expert opinion on matters such as science and art falls within the ambit of relevant evidence?. On the other hand, the latter provision provides that the Court may allow reception of any evidence that may become available because of modern devices and techniques. Under this regime the technician who conducts experiment to scrutinize DNA evidence is regarded as an expert whose opinion is admissible in Court. Sub-section (3) of Section 9 of the Punjab Forensic Science Agency Act, 2007, reaffirms this legal position when it enacts that "a person appointed in the Agency as an expert shall be deemed as an expert appointed under Section 510 of the Code [of Criminal Procedure, 1898] and a person specially skilled in a forensic material under Article 59 of the Qanoon-e-Shahadat, 1984 (P.O. X of 1984)." A combined reading of all these provisions shows that the report of the Punjab Forensic Science Agency (PFSA) regarding DNA is per se admissible in evidence under Section 510 Cr.P.C. Reliance is placed on Muhammad Sohail alias Samma and others v. The State and others (2019 P.Cr.LJ 1652). Nevertheless, it must be noted, there is no express provision like Article 128 of the QSO foreclosing admissibility of evidence by articulating a conclusive presumption as in paternity disputes. Since DNA is reckone d as a form of expert evidence in criminal cases, it cannot be treated as primary evidence and can be relied upon only as corroboratory evidence. This implies that no case can be decided exclusively on its basis if there is no primary piece of evidence, such as oral evidence.
25. Credibility of the DNA test inter alia depends on the standards employed for collection and transmission of samples to the laboratory . Safe custody of the samples is pivotal. Thus, in every case the prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the said chain or lapse in the control of the sample would make the DNA test report unreliable. In The People v. O.J.
Simpson the famous U.S. footballer was accused of slitting throat of his ex-wife Nicole Brown Simpson, and knifing to death her friend, Ronald Goldman. The prosecution's case was essentially based on DNA evidence but the Court rejected it when it was found that the Los Angeles Police Department had made serious mistakes in handling it. In the same vein in Ikramullah v. The State (2015 SCMR 1002 ), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ) and Khair-ul-Bashar v. The State (2019 SCMR 930) the Hon'ble Supreme Court of Pakistan refused to rely on the report of the Government Analyst and set aside conviction in narcotics cases when the prosecution could not establish safe transmission of the samples from the place of recovery to the laboratory . In the instant case, there was an unexplained delay of six days in sending the vaginal swabs of Rabia Bibi to the PFSA . The prosecution did not lead any evide nce to prove their safe custody and delivery at the PFSA. The police official who took them to the laboratory was also not examined. In the absence of such evidence, in our opinion, the DNA test report lacks credibility . The Federal Shariat Court in Yousuf and another v. The State (1995 PCr.LJ 1739) and a Division Bench of the Sindh High Court in "Shakir2 3 Muhammad alias Shakeel and another v. The State" (2019 PCr.LJ Note 120) also discarded such report on this ground.
26. The medical evidence furnished by Dr. Uzma Ashraf (CW-1) is of no avail to the prosecution inasmuch as we have disbelieved the ocular account and discarded the DNA test report. It is trite that medical evidence is a confirmatory piece of evidence and canno t be a substitute for primary evidence. It can furnish details of the injuries and their duration (and the weapon of offence, if any, used in the commission of offence) but cannot identify the culprit. Reliance is placed on Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410 ) and Hashim Qasim and another v . The State ( 2017 SCMR 986 ).
27. The offences alleged against the Appellants are indeed heinous but they cannot be punished on that ground alone. The evidence produced by the prosecution is highly discrepant and suffers from serious legal infirmities. It is well settled that it is not necessary that there should be many circumstances which create doubt in the prosecution case. Even a single circumstance which creates a reasonable doubt in a prudent mind about the guilt of an accused would entitle him to acquittal. Reliance is placed on Allah Bachaya and another v. The State (PLD 2008 SC 349), Muhammad Akram v. The State (2009 SCMR 230) and Abdul Jabbar and another v. The State (2019 SCMR 129 ).
28. In view of the foregoing, Crl. Appeal Nos.660-A TA and 665-A TA of 2012 are allowed . The impugned judgment is set aside and the Appellants are acquitted of the charge. They shall be released from jail forthwith if not required to be detained in some other case. . https://www .vocabulary .com>DNA . A review of the decided cases shows that there is divergence of judicial opinion on the question as to whether DNA is to be treated as primary evidence or corroboratory/secondary evidence. In most of the cases, it is treated as corroboratory evidence which alone cannot determine the fate of a case. . Modi - A Textbook of Medical Jurisprudence and Toxicology (24th Edition) at page 421