SADIQ MAHMUD KHURRAM, J. Noor Hassan alias Nooro son of Abid Hussain (convict) was tried by the learned Additional Sessions Judge/Model Criminal Trial Court Sadiqabad in the case F.I.R. No. 658 of 2019 dated 25.09.2019 registered at Police Station City Sadiqabad, District Rahim Yar Khan, in respect of offences under sections 302, 377, 364-A and 311 P.P.C. for committing the Qatl-i-Amd of Allah Ditta son of Fida Hussain (deceased). The learned trial court, vide judgment dated 13.02.2020, convicted Noor Hassan alias Nooro son of Abid Hussain (convict) and sentenced him as under: Noor Hassan alias Nooro son of Abid Hussain: i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Allah Ditta son of Fida Hussain (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. ii) Rigorous Imprisonment for ten years under section 377 P.P.C. and directed to pay fine of Rs. 50,000/- and in default of payment of fine, the convict was directed to further undergo three months of simple imprisonment.
The convict namely Noor Hassan alias Nooro son of Abid Hussain was ordered to be hanged by his neck till dead.
To the extent of sentence awarded to the convict under section 377 P.P.C., the benefit available under Section 382- B of Code of Criminal Procedure, 1898 was extended to the convict by the learned trial court.
2. Feeling aggrieved, Noor Hassan alias Nooro son of Abid Hussain (convict) lodged Criminal Appeal No.88-J of 2020, through jail, assailing his conviction and sentences. The learned trial court submitted Murder Reference No.05 of 2020 under section 374 Cr.P.C. seeking the confirmation or otherwise of the sentence of death awarded to the appellant namely Noor Hassan alias Nooro son of Abid Hussain. We intend to dispose of the Criminal Appeal No.88-J of 2020 and the Murder Reference No.05 of 2020 through this single judgment.
3. Precisely , the facts necessary , as divulged through the statement of Fida Hussain (PW-8) , the complainant of the case, are as under:- "Stated on oath that I am resident of Mohalla Hussain Abad near Bakhtawar Hospital on bank of canal Sadiq Abad.
On 25.09.2019, my son Allah Ditta aged about 09 years went outside the house for playing at about 03:00 PM and did not return till sunset upon which I became worried and with my witnesses Zulfiq ar and Abdul Saboor started his search however he remained untraceable. When we could not search him, I went to police station and presented my application about abduction of my son Allah Ditta against some unknown accused persons. My application is Ex. P .I. containing my signature in Urdu as Ex.PI/1.
After registration of my F.I.R., I returned to my house. Then at about 09:15 PM., Abdur Razaq ASI/I.O reached my house and asked about recovery/return of my son. It replied in negative. The I.O prepared rough site plan of place of missing of my child on our pointation and returned from there.
Thereafter my PWs Sajjad and Rizwan came in street of my house and upon seeing crowed (sic) in the street, they asked from me what happened upon which I replied that my son has lost. They asked his time of missing. I replied 03:00 PM. as the time of went missing of my son. Then they told me that at 05:00 PM., they saw my son Allah Ditta with accused Noor Hassan Nooro present in Court in custody near Railway lines opposite of under construction building of Iqra College. Upon which I took them to the police station however in the way at Ghousia Chowk we met with Abdur Razaq ASI. and I produced them to him. Said ASI got recorded their statements. I also produced my written application Ex.PI/2 to said ASI. containing my thumb impression and signatures in Urdu as Ex.PI/3.
Thereafter , on recovery of dead body of my son. Allah Ditta on pointation of accused Noor Hassan alias Nooro and after autopsy , his dead body was handed over to me vide receipt corpse Ex. P.A. The police completed its proceedings in the case. Present accuse d is my actual culprit therefore he may be convicted and sentenced as severe as possible."
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Noor Hassan alias Nooro son of Abid Hussain was sent to face trial. The learned trial court framed the charge against the accused on 21.11.2019, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got recorded statements of fourteen witnesses. Fida Hussain (PW-8), the complainant of the case, gave the same evidence as has been reproduced in Paragraph 3 of the judgment.
Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) stated that on 25.09.2019 at about 05.00 p.m., they had last seen the deceased alive in the company of the appellant and further stated that on 27.09.2019, the appellant got recovered his own clothes which he was wearing on 25.09.2019. Zulifqar Ali (PW-7) made the same statement as made by Fida Hussain (PW-8) and further stated that on 26.09.2019, the appellant led to the recovery of the dead body of the deceased, which was taken into possession through the recovery memo (Exh. P.D.). Muhammad Ijaz (PW-4) stated that on 27.09.2019, he identified the dead body of the deceased and in his presence the Medical Officer handed over the last worn clothes of the deceased after post mortem examination of the dead body .
Muhammad Shahzad Patwari (PW-9) prepared the scaled site plan of the place of occurrence (Exh. P.J.).
Muhammad Mughees, Junior Forensic Scientist PFSA (PW-11) gave evidence with regard to the report of the Punjab Forensic Science Agency , Lahore (Exh. P.K.). Abdul Sattar 249/C (PW-1) stated that on 27.09.2019, he escorted the dead body of the deceased to the hospital for his post mortem examination. Ahsan Majeed 1236/HC (PW-14) stated that on 27.09.2019, the Investigating Officer of the case handed over to him eight sealed parcels for keeping in safe custody and on 29.09.2019, he handed over the said sealed parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Muhammad Ilyas, SI (PW-10) investigated the case from 26.09.2019 till 23.12.2019 and narrated the facts of the investigation as conducted by him in his statement before the learned trial court. Abdul Razzaq, A.S.I. (PW-12) investigated the case from 25.09.2019 till 26.09.2019, arrested the appellant on 26.09.2019 and narrated the facts of investigation as conducted by him in his statement before the learned trial court. Nazar Hussain Nazar , SI (PW-13) investigated the case from 07.10.2019 till 23.12.2019 and narrated the facts of the investigation as conducted by him in his statement before the learned trial court
6. The prosecution also got Dr. Muhammad Hanif Khalti (PW-3) examined, who on 27.09.2019, was posted as Medical Officer at the T.H.Q. hospital Sadiqabad and on the same day conducted the postmortem examination of the dead body of Allah Ditta son of Fida Hussain (deceased). Dr. Muhammad Hanif Khalti (PW-3), on examining the dead body of Allah Ditta son of Fida Hussain (deceased) observed as under:- "Description of injuries (including findings on dissection).
A dead body of young body wearing white colour Shalwar . He has following injuries:
1. A lacerated wound 3 x 0.7 cm on the occipital region of the skull. The eyes are protruded body in advance stage of putrefaction. Rectum is coming through the anus. ..............
Report Histopathology of Lab Expert: Vide Forensic Histopathology Report No.2019 255754-Path-07479-Path-15227 dated: 4-12-2019, Histological examination of the heart section reveals patent coronaries and un-remarkable myocardium. The lungs and liver sections reveals autolytic changes. The renal sections reveal vascular congestion and presence of hemorrhages inside renal tissue. Histological examination of multiple section from hyoid bone reveals bone, entrapped and those are blood hemorrhage denoting Ante Mortem Injury to hyoid bone.
Forensic T oxicology Analysis: Vide Forensic Toxicology Forensic Report No.2019 255754-T OX-14520 dated: 12-11-2019, drugs, poison were not detected in liver and stomach contents and item No.01.
Forensic D.N.A. and Serology: Vide Forensic and Serology analysis report No.PFSA2019-255754-DNA-37927 dated: 20-12-2019, Seminal material was found on item No.8.4. Trace number of spermatozoa were identified on item No.6.2. The D.N.A. profile obtained from the sperm fraction of item No.8.4 matches the D.N.A. profile of Noor Hassan alias Nooro (Item S.1). The probability of finding un-related, individual at random in the population as being source of the D.N.A. obtained from sperm fraction of item No.8.4 is approximately one in 2 septillion in Caucasians.
FINAL OPINION: In my opinion, the most probable cause of death in this case is respiratory failure due to suf focation (Throttling)."
The prosecution also got Dr. Syed Majeed Gilani (PW-2) examined, who on 28.09.2019 had examined the appellant and had found him capable of having intercourse.
7. On 06.02.2020, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Abdul Saboor and Atta Hussain as being unnecessary and closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency , Lahore (Exh.PK/4) regarding the analysis of hyoid bone and the viscera of the deceased and the report of Punjab Forensic Science Agency , Lahore (Exh.PK/5) regarding detection of any poison. The report of Punjab Forensic Science Agency , Lahore (Exh. P.K.) regarding the D.N.A. analysis of the items submitted to the same was brought on record during the statement of Muhammad Mughees, Junior Forensic Scientist PFSA (PW -11).
8. After the closure of prosecution evidence, the learned trial court examined appellant namely Noor Hassan alias Nooro son of Abid Hussain under section 342 Cr.P.C. and in answer to question why this case against you and why the P.W.s have deposed against you, he replied that he was innocent and had been falsely involved in the case. He further stated that he had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellant namely Noor Hassan alias Nooro son of Abid Hussain opted not to get himself examined under section 340(2) Cr .P.C did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge/Model Criminal Trial Court Sadiqabad, convicted and sentenced the appellant as referred to above.
10. After arguing the matter at some length as far as the merits of the appellant' s case are concerned, the learned counsel for the appellant has submitted that he only prays for the reduction of the appellant' s sentence from death to imprisonment for life and in this conn ection he has referred to various circumstances available on the record indicating some mitigating factors.
11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution had proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the appellant had carnal intercourse against the order of nature with the deceased and then murdered the deceased. The learned Deputy Prosecutor General further argued that the recovery of the dead body on the pointing of the appellant also corroborated the other prosecution evidence. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. The learned Deputy Prosecutor General also opposed the request made by the learned counsel for the appellant regarding the reduction of the appellant' s sentence.
Lastly , the learned Deputy Prosecutor General prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial.
13. After perusing the evidence, it is pertinent to mention here that in the instant matter , ocular evidence is not available. There can be no dispute regarding the fact that the case is built on circumstantial evidence. In dealing with circumstantial evidence, the rules especially applicable to such evidence must be borne in mind. Sir Alfred Wills in his book "An Essay on the Principles of Circumstantial Evidence " (pages 173 to 190 of the Fifth American , from the Fourth London Edition publishe d in 1872) lays down the following rules specially to be observed in the case of circumstantial evidence: "RULE 1.--The facts alleged as the basis of any legal inference must be clearly proved, and indubitably connected with the factum probandum.
RULE 2. The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability RULE 4.- In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
RULE 5. -- If there be any reasonable doubt of the guilt of the accused, he is entitled, as of right, to be acquitted."
Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which no conclusion other than one of guilt of the accused can be reached.
14. From the evidence of the prosecution available on record it is clear that the case of the prosecution hinges upon the evidence of the deceased being last seen alive in the company of the appellant , recovery of the dead body of the deceased on the pointing of the appellant , the recovery of the clothe s of the appellant which he was wearing at the time when he was last seen in the company of the deceased , the medical evidence and the evidence of the report of Punjab Forensic Science Agency , Lahore (Exh. P.K.) regarding the D.N.A. analysis of the items sent to it for analysis. Firstly , we shall deliberate upon the evidence of the prosecution that the deceased was last seen alive in the company of the appellant. Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) stated that on 25.09.2019, at about 05.00 p.m., they had last seen the deceased alive in the company of the appellant when the appellant and the deceased were both present across the Railway lines near the under construction building of Iqra Post Graduate Girls College , Sadiqabad. Both the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6), further stated that they had told the fact that they had seen the deceased present across the Railway lines near the under construction building of Iqra Post Graduate Girls College , Sadiqabad, in the company of the appellant to Fida Hussain (PW-8), the complainant of the case and also to the Investigating Officer of the case. During the course of cross-examination of the prosecution witnesses, it was also brought on record that the place where the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) had last seen the deceased alive in the company of the appellant was at a distance of just one acre from where the dead body of the deceased was got recovered by the appellant. During cross-examination Zulifqar Ali (PW-7) explained as under:- "After stopping of official vehicle, accused Noor Hassan alighted of the vehicle and at first, he pointed out the place where the P.W.S. Rizwan and Sajjad met him and then he said to point out the place of presence of dead body .
The distance between both said places is about 1-1/2 acre."
Similarly , Fida Hussain (PW -8), the complainant of the case during cross-examination stated as under:- "The distance between the pointed place of presence of the accused Noor Hassan, and Allah Ditta by my P.W.S. on 25-09-2019 at 05:00 p.m and the place of presence of dead body in Sugar Cane Crop towards Haq Town is about 1-1/2 acres."
We have scrutinized the statement of prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) and find that they made consistent statements and duly identified the appellant namely Noor Hassan alias Nooro as being the person whom they had seen on 25.09.2019 at about 05.00 p.m. alive in the company of the deceased when the appellant and the deceased were both present across the Railway lines near the under construction building of Iqra Post Graduate Girls College , Sadiqabad, at a distance of just one acre from the place where subsequently the dead body of the deceased was got recovered by the appellant . During the course of cross-examination, the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) were also questioned with regard to the distance between them and the appellant at the time when they had seen the appellant with the deceased and both the witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) stated that they had seen the appellant when they were present at a distance of 4/5 feet from the appellant. The prosecution witness namely Rizwan Ahmad (PW -5) stated as under:- "The accused Noor Hassan and Allah Ditta were standing at right side of Railway Line. The distance between the accused Noor Hassan, and Allah Ditta with us was about 4/5 feet."
The prosecution witness namely Sajjad Hussain (PW -6) stated as under:- "We were on Motorcycle and upon seeing them (Noor Hassan and Allah Ditta), we stopped there. Accused Noor Hassan was also on the right side of Railway Lines. He was at the distance of about 3/4 feet from us. "
In this manner , the ability of the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) to had rightly identified the appellant as being present with the deceased cannot be doubted. Another important aspect of the case is that the appellant was closely related to the prosecution witne ss namely Sajjad Hussain (PW- 6) as being his nephew and moreover used to stay with his maternal grandmother in the house of the complainant.
Sajjad Hussain (PW -6) during cross-examination explained as under:- "Accused Noor Hassan is my nephew by relation. Accused Noor Hassan used to stay/reside with his maternal grandmother (complainant' s mother) in complainant' s house Of f and on."
For this reason that the appellant was so closely related to the deceased, the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) were justified in having no apprehension when they saw the deceased in the company of the appellant. Moreover , it was further stated by the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) that they told the said fact to Fida Hussain (PW-8), the complainant of the case and , who was searching for the missing deceased and accompanied Fida Hussain (PW-8) to the Police Station for making their statements in this regard to the Investigating Officer of the case. Though the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) were cross-examined at length, however , nothing fruitful for the appellant cropped up during their cross-examinatio n. It was established on record that between the time and the place where the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) had seen the deceased in the company of the appellant and the time and the place from where eventually the dead body of the deceased was recovered, there was no possibility of any other person intervening, proving, that none other than the appellant was the culprit. Moreover , the clothes (Shalwar P-6 and Qameez P-7) which the appellant was wearing at the time when he was seen by the prosecution witnesses in the company of the deceased were got recovered by the appellant on 27.09.2019 and were identified by both the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) as being the same clothes (Shalwar P-6 and Qameez P-7) which they had seen the appellant wearing when they had come across him and the deceased.
Undoubtedly , "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty . The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The provisions of Article 122 of Qanun-e-Shahadat Order 1984 itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company . He must furnish an explanation that appears to the court to be probable and satisfactory . If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Article 122 of Qanun-e-Shahadat Order 1984. In a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in the discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Article 122 of Qanun-e-Shahadat Order 1984 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts that are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation as an additional link which completes the chain. Be it noted, that only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and only then the onus can be shifted on the accused under Article 122 of Qanun-e-Shahadat Order 1984. In this case, the prosecution has succeeded in proving that the deceased was last seen in the company of the appellant at a place which was near to the place from where eventually the dead body of the deceased was recovered. Hence, we are satisfied that the prosecution has discharged the onus placed upon it to prove the guilt of the appellant , however , the appellant failed miserably to adduce any explanation of him having been seen last in the company of the deceased near the place from where the dead body of the deceased was recovered. Reliance is placed on the case of "QAISAR MEHMOOD and another Vs. The State" ( 2021 SCMR 662 ) wherein the august Supreme Court of Pakistan has held as under:- "........likewise, applying the same principle, the Court may rely upon the evidence of last seen, without a demur , if found free from any taint, constituting a reliable link between the offender and the victim within the proximity of time and space."
Reliance is placed on the case of "WAQAR A. SHAMSI and another Vs. The State (2019 SCMR 2039 ) wherein the august Supreme Court of Pakistan has held as under:- "Calamity strikes by surprise; people seldom fall prey to crimes under ideal circumstances, therefore, it would be unrealistic to insist for or expect choice uniform pieces of evidence in every criminal case; what is to be essentially seen is that whether prosecution was able to come forward with the available evidence, possible under the circumstances of the case and that whether such a volume or nature of evidence is sufficient to sustain the charge.
In the present case, the complainant, deceased' s brother , unsuspectingly sought information from Waqar Ali Shamsi appellant, being a fast friend, expected to know the whereabouts; as the investigation geared up, he made his breast clean, reaching out to the deceased and, thus prosecution was able to constitute a chain of circumstances, link by link, through last seen evidence, occupation of premises, recovery of electric wire and ropes, employed by the culprits to cause death confirmed as asphyxia and, thus argument that there was no evidence for a guilty return does not hold much water . Devastated family residing in an affluent neighbourhood had no axe to grind against the appellant, deceased' s best friend, to swap him with the real offender; his exclusive knowledge is a piece of evidence inexorably pointed upon his culpability; web of circumstances is equally hovering over the guilt of Muhammad Arshad petitioner as well; they cannot escape the consequences of deceased' s murder on the strength of bald denials, supported by inconsequential defence furnished by their well-wishers; their convictions as well as sentences consequent thereupon for an offence under section 302(b) of the Pakistan Penal Code, 1860 are maintained,"
15. Another vital piece of evidence pointing towards the guilt of the appellant is the evidence that the appellant got recovered the dead body of the deceased. The prosecution witnesses namely Zulifqar Ali (PW-7) and Fida Hussain (PW-8) stated that after his arrest, the appellant led to the place where he had buried the dead body of the deceased and on his pointing of the said place, the Investigating Officer of the case recovered the dead body , which was duly identified by Fida Hussain (PW-8) as being the body of his dead son, and the dead body of the deceased was taken into possession through recovery memo (Exh.PD). The place where the appellant had discarded the dead body of the deceased was inside a sugar cane crop field, which place, as mentioned above, was only at a distance of 1.5 acres from the place where the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) had last seen the deceased in the company of the appellant. According to the statement of Abdul Razzaq, A.S.I. (PW-12), the Investigating Officer of the case, the appellant was arrested on 26.09.2019 and immediately pointed out the place where he had been last seen in the company of the deceased by the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) and also got recovered the dead body of the deceased which was taken into possession vide recovery memo (Exh. P.D.). No doubt could be raised with regard to the fact that it was the appellant who pointed the place where he had dumped the dead body of the deceased and got recovered the same. The prosecution witnesses, in a forthright manner , detailed the sequence of the pointing of by the appe llant the place of last seeing of the appellant and the deceased by the prosecution witnesses Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) and the place where the young child had been murdered by the appellant, after the appellant had carnal intercourse against the order of the nature with the deceased and the place where he had discarded the dead body of the deceased, which was then recovered and taken into possession through recovery memo (Exh. P.D.). The information furnished by the appellant to the Investigating Officer at the time of the recovery of the dead body was a relevant fact which was admissible in evidence under Article 40 of Qanun-e-S hahadat Order , 1984. Reliance in this regard is placed on the case of "Khan Muhammad and others versus The State" (2011 SCMR 705) wherein the august Supreme Court of Pakistan has held as under:- "The evidentiary value of the recovery of dead body at the pointation of the appellant can not be undermined on any valid ground. In Hakim Ali v. The State (1971 SCMR 412) a statement of the accused leading to recovery of incriminating articles was found to he a good piece of evidence of corroboration. In that case the petitioner/accused had taken the Investigating Officer to a field and "brought out the decapitated head of the deceased, wrapped up in the loi." In Sh. Muhammad Amjad v. The State (PLD 2003 SC 704), it was observed that "the Banglow in question was in possession of the appellant from where the dead body was recovered. It was also established by an unimpeachable evidence that recoveries of dead body , car or other articles were made on the lead, provided by the appellant. All above pieces of evidence under Article 40 ibid are admissible and were proved by conclusive evidence. It was accordingly held that all such pieces of circumstantial evidence when combined together provided strong chain of circumstances leading to the irresistible conclusion that it was the appellant who had killed the deceased.""
Reliance is also placed on the case of "Nazir Shehzad and another versus The State" (2009 SCMR 1440 ) wherein the august Supreme Court of Pakistan has held as under:- "Both the appellants, who were separately interrogated, informed the Investigating Officer about the place i.e. Rohi Nala in the area of Police Station Kahn a, where they had thrown the dead body. This discovery based on the information furnished by the appellants led to the recovery of dead body from the Nullah. There is no doubt about it that prior to information furnished by the appellants the whereabout of dead body were not known to anyone. The information furnished by the appellants to the Investigating Officer can be used against them under Article 40 of Qanun-e-Shahadat Order , 1984. As in a case of circumstantial evidence where there has been discovery as a result of confession made under Article 40 of the Qanun-e-Shahadat order , 1984, it is expected to find the discovery of something which can be associated with the deceased.
The mere plurality of information received before discovery shall not necessarily take any of these informations out of the section. In a suitable case it is possible to ascribe to more than one accused the information which leads to the discovery , so was held in the case Naresh Chandra Das and another v . Emperor A.I.R. (29) 1942 Cal. 593 .
It was held by this Court in the case of Sher Muhammad v . The State 1968 PCr .LJ 221 as follows:-- "In the absence of any explanation by the accused as to how he came to have knowledge of the dead body in the disused well, it may fairly be presumed that he was the person who had thrown the body in a dismembered state into the well."
Reliance is also placed on the case of "Muhammad Irshad versus The State" (1999 SCMR 1453 ) wherein the august Supreme Court of Pakistan has held as under:- ""As far as the recovery of the dead body is concerned, it was recovered at the pointaion of the appellant after his arrest. The appellant had led Allah Ditta, Inspector Police, the Investigating Officer, Lambardar Allauddin and Muhammad Amin P.Ws. to Killa No.7, Square No.33, where the dead body had been buried in a ditch and after digging the body was got recovered at the instance of the appellant Allauddin Lambardar was given up by the prosecution having beer won over and, therefore, the evidence of the Investigating Officer and that of Muhammad Amin P-W is to be scrutinized. Muhammad Amin P.W. is an independent witness with no inimical background with the appellant. His statement is consistent and despite length? cross-examination, nothing could he elicited by the defence to shake his credit. The Investigating Officer's statement is also consiste nt and we are not persuaded to agree that the appellant had been falsely implicated and the recovery had not taken place at his instance. The clement of fabrication of evidence is absent otherwise the ocular testimony could have been fabricated. In this view of the matter , we have no doubt in our mind that the dead body was got recovered at the instance of the appellant.
An attempt was made to argue that the dead body was not buried, but was lying in open field. We are not prepared to believe because had the dead body been lying in open, vultures and would not have spared it. The process of putrefaction had started and, therefore, this clearly leads one to believe that it was not recovered from an open field as the defence wanted us to believe."
16. The prosecution evidence is further corroborated by the report of the Punjab Forensic Science Agency , Lahore (Exh. P.K.) regarding the analysis of the items sent to it for D.N.A. analysis. According to the statement of Muhammad Mughees, Junior Forensic Scientist PFSA (PW-11), the last worn clothes of the deceased, including Shalwar and Qameez of Allah Ditta (deceased), were submitted to the Punjab Forensic Science Agency , Lahore on 30.09.2019, whereas the buccal swabs standards of the appellant namely Noor Hassan alias Nooro were taken on 1st October of 2019 at the Punjab Forens ic Science Agency , Lahore. According to the report of the Punjab Forensic Science Agency , Lahore (Exh. P.K.) regarding the D.N.A. analysis of the items sent to it for analysis, the D.N.A. profile obtained from the sperm fraction of the stained sections of the Qameez of Allah Ditta (deceased) matched with the D.N.A. profile of the appellant namely Noor Hassan alias Nooro. Furthermore, according to the report of the Punjab Forensic Science Agency , Lahore (Exh. P.K.) regarding the D.N.A. analysis of the items sent to it for analysis, the D.N.A. profile obtained from epithelial fraction of the Qameez of Allah Ditta (deceased) matched the D.N.A. profile of the appellant namely Noor Hassan alias Nooro. When an individual touches an object, epithelial cells are left behind. Touch D.N.A. is also known as epithelial D.N.A. The same traditional D.N.A. analysis procedures are used to analyze and examine these remaining epithelial cells as are used to analyze and examine bodily fluids. The amount left behind is often less than 100 picograms and is also called low copy D.N.A. This is evidence with "no visible staining that would likely contain D.N.A. resulting from the transfer of epithelial cells from the skin to an object. Due to developmen t, lower amounts of human D.N.A. can be detected and, possibly , a full or partial STR profile can be generated. D.N.A. evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to exonerate innocent individuals accused of similarly heinous actions. The technology has advanced to Polymerase Chain Reaction (PCR) based short tandem repeat (STR) testing. This system multiplies a single copy of a D.N.A. segment to allow for the analysis of the genetic makeup of a small sample.
Current analysis makes it possible to determine whether a biological tissue matches a suspect with near certainty .
D.N.A. is comprised of "coding" and "non-coding regions. The loci examined are found on "junk D.N.A.," which are segments of the D.N.A. not known to code for any specific trait, but known to be different between individuals.
"Junk D.N.A." are the non-coding region s which contain valuable information about identity , but do not contain information regarding coding for other genetic traits. This allows the development of a D.N.A. profile without an examination into other genetic markers. The relevant portion of the report of the Punjab Forensic Science Agency , Lahore (Exh. P.K.) regarding the D.N.A. analysis of the items sent to it for analysi s, as brought on record through the statement of Muhammad Mughees, Junior Forensic Scientist PFSA (PW -11) reads as under:- "8.2-8.6 Stain sections taken from the piece of "Qameez"
Results and Conclusion Seminal material was found on item # 8.4.
Trace number of spermatozoa were identified on item #6.2.
The D.N.A. profile obtained from the sperm fraction of item 8.4 # matches the D.N.A. profile of Noor Hassan @Nooro (item # S1). The probability of finding an unrelated individual at random in the population as being a source of the D.N.A. obtained from the sperm fraction of item # 8.4 is approximately one in 2 septillion in Caucasians.
The D.N.A. profile obtained from the epithelial fraction of item # 8.4 is a mixture of at least two individuals with major and minor components. The major component of the D.N.A. profile obtained from the epithelial fraction of item #8.4 is consistent with the D.N.A . profile of Noor Hassan @Nooro (item #S1) . The probability of finding an unrelated individual at random in the population as being major contributor to the D.N.A. obtained from the epithelial fraction of item # 8.4 is approximately one in 2 septillion in Caucasians. The minor component of the D.N.A. profile obtained from the epithelial fraction of item # 8.4 is partial and inconclusive."(emphasis supplied)
In this manner , the best evidence in the shape of the report of the Punjab Forensic Science Agency , Lahore (Exh.
P.K.) regarding the D.N.A. analysis of the items sent to it was brought on record by the prosecution, which conclusively proved that the appellant was responsible for the commission of the crimes. Reliance in this regard is placed on the case of "ALI HAIDER alias PAPU Versus JAME EL HUSSAIN and others"(PLD 2021 Supreme Court 362) wherein the august Supreme Court of Pakistan has held as under:- "5. The most significant advancement in criminal investigation since the advent of fingerprint identification is the use of D.N.A. technology to help convict criminals or eliminate persons as suspects. D.N.A. as a scientific evidence means 'deoxyribonucleic acid.' D.N.A. can be found in the human body and samples from semen, hair, blood, flesh can establish a D.N.A. matching with the D.N.A. of another human being. Each human being has a unique D.N.A. pattern, which is acquired by inheriting it from the biological parents. D.N.A. analyses on saliva, skin tissue, blood, hair, and semen can now be reliably used to link criminals to crimes. Increasingly accepted during the past 10 years, D.N.A. technology is now widely used in many jurisdictions by police, prosecutors, defense counsel, and courts. This scientific evidence is much speedier , specific, accurate and conclusive than any other human evidence and can stand the scrutiny of the court to determine the guilt or innoce nce of an accused. In criminal cases, like rape, murder , etc., timely medical examination and proper sampling of body fluids followed by quality forensic analysis can offer irrefutable evidence. Criminal justice system is in search for the truth. The development of D.N.A. technology furthers the search for truth by helping police and prosecutors in the fight against violent crimes. Through the use of D.N.A. evidence, prosecutors can establish the guilt of accused and at the same time, D.N.A. aids the search for truth by exonerating the innocent. An authoritative study on the forensic uses of D.N.A., conducted by the National Research Council of the National Academy of Sciences, U.S.A. has noted that: "...the reliability of D.N.A. evidence will permit it to exonerate some people who would have been wrongfully accused or convicted without it. Therefore, D.N.A. identification is not only a way of securing convictions; it is also a way of excluding suspects who might otherwise be falsely charged with and convicted of serious crimes."
Admissibility of D.N.A. Test
6. D.N.A. Report like any other opinion of an expert under Article 59 is relevant and thus admissible. Article 164 of the QSO further underlines the admiss ibility , reliability and weightage of mode rn scientific forensic evidence, including the D.N.A. test, as the said Article provides that convictions may be based on modern techniques and devices. Over the years D.N.A. test has also come to be recognized by our statutory criminal law. Section 164-A , Cr.P.C provides that where an offence of committing rape, unnatural offence or sexual abuse or an attempt to commit rape or unnatural offence or sexual abuse under section 376, section 377 or section 377B respectively of the P.P.C. is under investigation the victim shall be examined by a medical practitioner who shall examine the victim and prepare a report of examination giving, inter alia, the "description of material taken from body of the victim for3 4 5 6 D.N.A. profiling" under section 164A(2)(c). Similarly , under section 53A where a person is arrested on a charge of committing an offence of rape or unnatural offence or sexual abuse or an attem pt to commit rape or unnatural offence or sexual abuse under section 376, section 377 or section 377B respectively of the P.P.C. and there are reasonable grounds for believing that an examination of the arrested person will afford evidence as to the commission of such offence it is lawful for the medical practitioner to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. The medical practitioner conducting examination is to examine, without delay , such person and prepare a report of the examination giving, inter alia, the description of material taken from person of the accused for D.N.A. profiling, under section 53A(2)(d). Under section 164-B where an offence under sections 376, 377 or section 377B, P.P.C. is committed or attempted to have been committed or alleged to have been committed, D.N.A. samples where practicable, are to be collected from the victim with his or her consent or with the consent of his or her natural or legal guardian as provided in section 164A and D.N.A. samples of the accused under section 53A, both within optimal time period of receiving information relating to the commission of such offence. Under subsection (2) of section 164B, such D.N.A. samples are to be sent, at the earliest, for investigation to a forensic laboratory where these are to be properly examined and preserved by observing confidentiality of such examination at all times. The above legislative framework underscores the relevancy and thus the admissibility of a D.N.A. Test.
Admissible versus per se admissible
7. While the admissibility of expert opinion is already recognized under QSO, section 510, Cr.P.C. deals with special rules of evidence and makes the evidentiary procedure simple by providing that certain reports of the chemical examiner , etc. may be used in any trial without calling the Government Chemical Examiner , Serologist, finger print expert or fire-arm expert as a witness. Allowing admission of reports of the said Governmental experts in evidence without their author appearing as a witness has the objective of saving time and speeding up criminal trials.
This simple procedure of admission of these reports in evidence, is referred to as per se admissible. However , the court may if it considers necessary , in the interest of justice, summon and examine the person by whom such a report has been made. Section 510, Cr.P.C refers to reports of certain experts only but does not specifically mention the expert who conducts D.N.A. analysis, hence the D.N.A. Test report is not per se admissible but it is certainly admissible if tendered in evidenc e by examining as witness the expert under whose hand it is prepared as per the QSO. Additionally , under section 9 of the Punjab Forensic Science Agency Act, 2007 an expert of the PFSA is considered to be an expert in terms of section 510 Cr.P.C. Therefore, D.N.A. Test Report prepared by an expert of the PFSA is per se admissible.
8. This Court in Azeem Khan case questioned the admissibility of the D.N.A. Test Report on the touchstone of section 510, Cr.P.C. and left it open to be discussed in some other case. It is, therefore, important to address this question and clear the air regarding the admissibility of D.N.A. Test Report. As explained above, per se admissibility is a procedural facility for tendering evidence extended to reports of certain experts but it does not affect or have any bearing on the admis sibility of a document which is governed by the QSO, and any report or opinion of an expert in matters of science , etc., which is recognized to be relevant under Articles 59 and 164 QSO and is thus admissible under the law of evidence (QSO). Besides, much water has flown under the bridge, since Azeem Khan case. There has been new legislation giving D.N.A. Test, statutory recognition and importance. Article 164 QSO holds immense importance especially after the insertion of the proviso through Act 4 of 2017 in the year 2017 and demands that the scope of expert opinions under Article 59 QSO and the special rule of evidence under section 510, Cr.P.C. be interpreted progressively in the years to come to give more space and recognition to modern forensic science.
9. It is important to underline that the use of the word "Chemical Examiner" in section 510 Cr.P.C. is almost obsolete and has no established definition. Now, "forensic scientists" run and manage modern forensic laboratories. It is time for the Government to consider revision of section 510 Cr.P.C. allowing reports of all the Government forensic scientists (as opposed to the specified ones under section 510 Cr.P.C) to be per se admissible, to speed up the wheels of dispensation of criminal justice in the country . Needless to say that under the7 8 9 10 proviso to section 510 Cr.P.C the courts can always summon and examine the expert who has prepared and authored the report.
D.N.A., strongest corroborative piece of evidence today
10. D.N.A. evidence is considered as a gold standard to establish the identity of an accused. As a sequel of above discussion, it can safely be concluded that D.N.A. Test due to its accuracy and conclusiveness is one of the strongest corroborative pieces of evidence. In Salman Akram Raja case1 1 this Court has held that D.N.A. test help provides the courts the identity of the perpetrator with high degree of confidence, and by using of the D.N.A. technology the courts are in a better position to reach at a just conclusion whereby convicting the real culprits and excluding the potential suspects, as well as, exonerating wrongfully involved accused. D.N.A. test with scientific certainty and clarity points towards the perpetrator and is, therefore, considered one of the strongest corroborative evidence today , especially in cases of rape. The usefulness of D.N.A. analysis, however , depends mostly on the skill, ability and integrity shown by the investigating officers, who are the first to arrive at the scene of the crime.
Unless the evidence is properly documented, collected, packaged and preserved, it will not meet the legal and scientific requirements for admissibility into a court of law ."
Furthermore, Dr. Muhammad Hanif Khalti (PW-3) also determined the cause of death of the deceased as being respiratory failure brought about due to throttling. A perusal of the prosecution evidence recorded during the course of trial conclusively proves that it was the appellant who was responsible for the offences committed. There is no evidence on record that the prosecution witnesses were motivated by any enmity to depose against the appellant and no reason existed prior to the occurrence, which could have interested the prosecution witnesses to get the appellant involved in this occurrence falsely and let off the real accused. All the prosecution witnesses were subjected to cross-examination but the defence failed to make any cracks in their deposition and the genuineness of their statements has been proved. Moreover , there is no such material available on record which would indicate the substitution of the appellant in the case with the real culprit. Substitution is a phenomenon of a rare manifestation because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of "Irshad Ahmad and others v. The State and others" (PLD 1996 SC 138). The appellant namely Noor Hassan alias Nooro remained unable to establish any animosity of the complainant or the police for his false involvement in the case.
17. Now coming to the quantum of sentences awarded to the appellant, we have noted some mitigating circumstances in favour of the appellant namely Noor Hassan alias Nooro son of Abid Hussain. Firstly , according to the learned trial court, the age of the accused at the time of recording of his statement under section 342 of the Code of Criminal Procedure, 1898 on 06.02.2020 was only about 19/20 years when the occurrence had taken place on 25.09.2019. It has also been observed by us that the prosecution case is based upon circumstantial evidence, as has been discussed in the preceding paragraphs which needs to be considered with a great deal of caution. In view of the above mentioned facts, the sentence of death awarded to the appellant is quite castigatory .
Reliance in this regard is placed on the case of "Akhtar Vs. The State" (2020 SCMR 2020 ) wherein the august Supreme Court of Pakistan has held as under:- "8. So far as prayer of learned counsel for the appellant regarding alternate sentence of imprisonment for life instead of death is concerned, it has been observed by us that the prosecution case is based upon circumstantial evidence, as has been discussed in the preceding paragraphs. Although the conv iction of appellant under section 302(b), P.P.C. does not call for any interference by this Court, but considering the overall circumstances of the case, we are of the view that instead of death sentence, the alternate sentence of imprisonment for life provided under section 302(b), P .P.C. shall meet the ends of justice."
18. In the light of above discussion, the conviction of the appellant namely Noor Hassan alias Nooro son of Abid Hussain, as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentence of death awarded to the appellant namely Noor Hassan alias Nooro son of Abid Hussain under section 302(b) P.P.C. is altered to imprisonment for life. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and sentence in default thereof are maintained and upheld. The conviction of the appellant namely Noor Hassan alias Nooro son of Abid Hussain under section 377 PPC and the sentence awarded to him thereunder is maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Noor Hassan alias Nooro son of Abid Hussain. All the sentences of the appellant namely Noor Hassan alias Nooro son of Abid Hussain are ordered to run concurrently .
Consequently , with the above said modif ication in the sentences awarded to the appellant namely Noor Hassan alias Nooro son of Abid Hussain under section 302 (b) P.P.C., the Criminal Appeal No.88-J of 2020, is hereby dismissed.
19. Murder Reference No. 05 of 2020 is answered in Negative and the sentence of death awarded to Noor Hassan alias Nooro son of Abid Hussain, is Not Confirmed.