Muhammad Tariq Nadeem. J:- Muhammad Arif appellant was tried by the learned trial court in case FIR No. 475 dated 01.07.2019 offences under sections 302, 376, 338-C(c), PPC registered at Police Station Zahirpeer and after conclusion of the trial vide judgment dated 25.03.2021, convicted and sentenced the appellant as under:- Under section 302 (b), PPC Life imprisonment. He was also ordered to pay compensation amount of Rs. 2,00,000/- under section 544-A, Cr.P.C. to the legal heirs of the deceased, recoverable as arrears of land revenue and in default thereof to further undergo six months S.I.
Under section 376, PPC 14 years R.I. with fine of Rs.1,00,000/- and in default of payment of fine he will further undergo for a period of three months S.I.
Under section 338-C(c), PPC seven years R.I. as Taz'zir.
The sentences passed against the appellant were ordered to run concurrently.
The benefit of section 382-B, Cr.P.C. was also extended to him.
The appellant has filed the titled appeal against his convictions and sentences, whereas a criminal revision has been filed by Wali Muhammad petitioner/complainant (PW.2) for enhancement of sentence of the appellant. Since common questions of law and facts are involved, therefore, supra mentioned matters are being disposed of by means of this single judgment.
2. The prosecution story as given in the judgment of the trial court reads as under:- "I am resident of Jajja Abbasian, Basti Wahgian and laborer by profession. One of my niece namely Kubra Bibi d/o Shafi Muhammad aged about 19/20 years having sickle and cloth went to bring gross/fodder from the sugarcane crop. She did not return for quite some time. Upon it, I along with Inayatullah s/o Rassol Bakhsh and Muhammad Ashraf s/o Wali Muhammad went out in her search but unable to trace her. Ultimately in the morning at 6.30 AM it was known to me that the dead body of my niece was present in sugarcane field of Jam Zahid s/o Abdul Karim situated 09/10 acres away from my house. The throat of said Kubra Bibi has been cut with sharp edged weapon.
The blood is also present near the dead body. I identified the dead body of Kubra Bibi. Some unknown person has committed murder of Kubra Bibi"
3. I have heard the arguments of the learned counsel for the appellant and learned Deputy District Public Prosecutor assisted by learned counsel for the complainant assiduously and also scanned the record minutely with their able assistance. I have reappraised the whole evidence and taken everything into my consideration in the light of arguments advanced by both the sides.
4. The facts and circumstances highlighted in FIR (Exh.PJ) as well as other evidence led by the prosecution case clearly depict that the alleged occurrence had not been witnessed by anyone and in order to prove its case, the prosecution has heavily relied upon the circumstantial evidence, which is normally considered as a weak type of evidence. It is well settled by now that in such like cases, prosecution is required to link each circumstance to the other in a manner that it must form a complete, continuous and unbroken chain of circumstances, firmly connecting the accused with the alleged offence and if any link is missing then obviously benefit is to be given to the accused.
Reliance is placed upon the esteemed judgment of the Hon'ble of Supreme Court of Pakistan reported as "Rehmat Ullah & 2 others v. The State & others" (2024 SCMR 1782).
5. In an attempt to prove the accusation against the appellant and to form a complete chain of circumstances, the prosecution has relied upon the last seen evidence furnished by Abdul Wahid (PW.5) and Abdul Malik (PW.6), medical evidence and recovery of weapon of offence.
6. As far as the first significant piece of evidence in this case i.e. evidence of last seen is concerned, the same came out from the mouth of Abdul Wahid (PW.5) and Abdul Malik (PW.6), who were close relatives of Mst.Kubra Bibi (deceased).
Abdul Wahid (PW.5) during his examination-in-chief deposed that on 30-06-2019 at about Asar prayer time, he (PW.5) alongwith his brother Abdul Malik (PW.6) was coming back from their land, they saw the appellant alongwith Mst. Kubra Bibi (since deceased) while holding sickle and a piece of cloth for making fodder, going in the sugarcane crop of one Jam Zahid. They inquired from the appellant where they were going, upon which he replied that they were going to take fodder from the field of Jam Zahid, then they went on their way. Thereafter, they stayed in the house of their niece at Khanpur. On the next day at about 11/12:00 pm, they came back to their home, where they received information regarding murder of Mst. Kubra Bibi (deceased). They immediately reached at RHC, Zahirpeer, where he (PW.5) alongwith his brother Abdul Malik (PW.6) disclosed whole story of last seen to Wali Muhammad, complainant (PW.2).
Abdul Malik (PW.6) stated in line with the testimony of Abdul Wahid (PW.5).
I have also noted that the testimonies of both the supra-mentioned PWs came up with material contradictions and inconsistencies which make the evidence of last seen highly doubtful. Abdul Wahid (PW.5) during his cross examination stated that he did not get record in his statement to the police about the fact that they stayed in the house of their niece at Khanpur on last night. He also did not record in his statement to the police about the time as 11/12:00 p.m. of their returning to home from Khanpur. He (PW.5) further admitted the factum of their going to RHC, Zahirpeer and their disclosure to Wali Muhammad, complainant (PW.2) about last seen has also not been get recorded by him in his statement to police. He (PW.5) did not get record in his statement about the fact that they went to Khanpur while boarding on motorbike. He recorded in his statement under section 161 Cr.P.C. that they lastly seen Mst. Kubra Bibi (deceased) alongwith the appellant while holding a sickle and piece of cloth. Confronted with Exh.DA where word cloth was not mentioned.
He (PW.5) further stated that they reached at RHC, Zahirpeer after 12'O Clock after receiving information of murder of Mst. Kubra Bibi (deceased), when they unfolded the last seen evidence to complainant after offering Zohar prayer, police was not present. It consumed about 15 minutes in offering prayer. He (PW.5) and his brother (PW.6) came back to home after disclosing the fact of last seen to complainant, while complainant and others remained present in hospital for postmortem proceedings.
Abdul Malik (PW.6) during his cross examination stated as under:- ....I alongwith my brother Abdul Wahid departed from Khanpur to our home after 11:00 AM. We reached to our home after 12:00 PM. I and my brother Abdul Wahid are residing in the same Haveli.
When we reached at home, we were informed about the occurrence of murder of Mst. Kubra Bibi, upon which we proceeded to RHC, Zahirpir. When we reached at RHC, Zahirpir proceeding of postmortem examination has been completed and at that time people of our locality were returning back home alongwith dead body, where we informed complainant Wali Muhamamd about last seen evidence after about 03:00 PM. I cannot tell the exact time of our reaching at RHC, Zahirpir, perhaps it might be after 03:00 PM...."
Whereas, Wali Muhammad, complainant (PW.2) during his cross examination stated as infra:- "....PWs Abdul Wahid and Abdul Malik were also reached at RHC, Zahirpir where they disclosed the fact regarding accused Muhammad Arif and then I submitted application Ex.PC to police..."
Contrary to above, Amjad Hussain, SI/Investigating Officer (PW.4) during his cross examination stated infra:- "....I received information of the occurrence in the shape of written complaint submitted by complainant Wali Muhammad at police station. Complainant came at police station alongwith written complaint at about 02:35 PM. I chalked out formal FIR of this case within 05/10-minutes as it was against unknown accused..."
He (PW.4) further destructively stated below:- "....When I reached at the place of occurrence at about 04:40, dead body of deceased was lying there...."
According to the testimony of Amjad Hussain, SI/Investigating Officer (PW.4) both the witnesses of last seen have failed to point out the place where they met with the appellant and Mst. Kubra Bibi (deceased).
As per the contents of FIR (Exh.PJ), the occurrence took place on 30-06-2019 at Asar prayer time and according to the testimony of Wali Muhammad, complainant (PW.2), police took dead body of Mst.Kubra Bibi to RHC, Zahirpeer at about 12:00 p.m. and the dead body of Mst. Kubra Bibi deceased was handed over to him after 02:00 p.m. Funeral prayer of Mst. Kubra Bibi (deceased) was conducted after Asar prayer. PWs Abdul Wahid (PW.5) and Abdul Malik (PW.6) were also reached at RHC, Zahirpeer where they disclosed the fact regarding the evidence of last seen of appellant with Mst. Kubra Bibi (deceased) and then he submitted application (Exh.PC) to police.
In view of above discussion, I am of the view that if Abdul Wahid (PW.5) and Abdul Malik (PW.6) informed the evidence of last seen evidence to the complainant before lodging of the FIR then their names should have been mentioned in the FIR. These self-negating and contradictory statements of the supra mentioned PWs reflect that they are not truthful witnesses, rather they are deposing an afterthought, fabricated and concocted story just to create incriminating evidence to strengthen the case of un-witnessed occurrence against the appellant. Even, it is well settled by now that last seen evidence is always considered to be week type of evidence, unless corroborated by some other independent evidence, which is lacking in this case. In this respect, the reference can be made to the cases of "Fayya z Ahmad vs. The State" (2017 SCMR 2026) and "Muhammad Abid vs. The State" (PLD 2018 SC 813).
7. It is further noted that the prosecution has also examined Muhammad Ashraf (PW.3), who during his cross-examination stated as under:- "...I got recorded my statement to police at the spot on 01-07-2019 at about 11/11:30 AM. When police recorded my statement u/s 161 Cr.P.C. many people including complainant and PW Inayatullah were present, however, police did not join the people who gathered there..."
Whereas, according to the testimony of Amjad Hussain, SI (PW.4), he received information of occurrence at about 02:35 p.m. Relevant lines of his cross examination read as under:- "...I received information of the occurrence in the shape of written complaint submitted by complainant Wali Muhammad at police station. Complainant came at police station alongwith written complaint at about 02:35 PM. I chalked out formal FIR of this case within 05/10-minutes as it was against unknown accused. It is correct that investigation of this case was entrusted to me by the order of SHO concerned after 02:40 PM. I reached at the place of occurrence after two hours of chalking out of the FIR. Volunteer stated that on the same time, I had chalked out another case of similar nature due to which, I reached at the place of occurrence after inspecting the place of other case.----------------------------When I reached at the place of occurrence at about 04:40, dead body of deceased was lying there....."
In the light of above mentioned circumstances, it is abundantly clear that on 01-07-2019, FIR was not lodged till 11:30 a.m. rather the same was registered at 02:40 p.m. In this way, the statement of Muhammad Ashraf (PW.3) is of no avail to the prosecution.
8. I have noticed that the occurrence allegedly took place on 30-06-2019 at Asar prayer time and as per statement of Wali Muhammad, complainant (PW.2) dead body of Mt. Kubra Bibi was found in the sugarcane crop of Jam Zahid on the next morning i.e. 01-07-2019 at about 06:30 a.m. Initially, it was not the case of prosecution that appellant, who was fiance of Mst. Kubra Bibi (deceased) used to commit rape with her (deceased) since 03/04 months, subsequently, Wali Muhammad, complainant (PW.2) got recorded his supplementary statement (Exh.PC) wherein he (PW.2) stated that Abdul Wahid (PW.5) and Abdul Malik (PW.6) have narrated the above-mentioned facts to him.
He (PW.2) further stated in his examination-in-chief that the on the day of occurrence, appellant committed rape with the deceased. Abdul Wahid (PW.5) was dully confronted with this fact.
Relevant portion of his testimony reads as under:- "....I got recorded in my statement to police that accused Muhammad Arif had used to commit rape with Mst. Kubra for last 03/4 months. Confronted with Ex.DA where period of 03/4 months is not so recorded...."
I have noted that Abdul Wahid (PW.5) was brother-in-law of Mst. Kubra Bibi (deceased) and as per his evidence, he (PW.5) had knowledge that the appellant used to commit rape with Mst. Kubra Bibi (deceased) since 3/4 months of the occurrence. Although, Wali Muhammad, complainant (PW.2) has disclosed in his evidence that the appellant was fiance of Mst. Kubra Bibi (deceased) but in our rural areas a girl is not allowed to accompany her fiance before her marriage and more difficult to go inside the sugarcane crop alongwith him. Even otherwise, this fact do appeal to a prudent mind that a brother-in-law, who had already knowledge that the appellant used to commit rape with his sister-in-law (deceased) then why he had allowed the deceased to accompany the appellant to go in a sugarcane crop.
Moreover, he (PW.5) during his cross examination stated that he himself never seen the appellant while committing rape with Mst. Kubra Bibi (deceased). I have further observed that if according to the statement of the said witness, the appellant used to commit rape with Mst. Kubra Bibi (deceased) for last 03/04 months but such stance of the prosecution is not supported from any substantial evidence because no report during that period was made by the complainant or any of the family members of Mst. Kubra Bibi (deceased) even no complaint was made to police in that regard by Mst. Kubra Bibi (deceased) herself.
Whereas, Abdul Malik (PW.6) during his court statement has not uttered even a single word about the commission of rape with Mst. Kubra Bibi (deceased) by the appellant. The testimony of supra-mentioned PWs reveals the prosecution has subsequently cooked up false story in order to make the prosecution story in line with the medical evidence.
9. So far as the allegation of commission of rape with Mst. Kubra Bibi (deceased) on the day of occurrence is concerned, the same is not synchronized with the medical evidence because as per the statement of Doctor Sidra Aslam, WMO (PW.10) on external examination, no vaginal tears seen. Hymen orifice was old ruptured.
Moreover, no seminal material was found on item No.8 (one internal vaginal swab from Kubra Bibi) and item No.9 (one external vaginal swab from Kubra Bibi), therefore, no further DNA analysis was conducted on these items.
10. The prosecution has laid much emphasis about the DNA report (Exh.PP), based on the DNA analysis, source of DNA, obtained from item No.10 i.e. fetal tissue, cannot be excluded as being biological child of Muhammad Arif, appellant (item No.S1 i.e. buccal swa b standards of Muhammad Arif) because they share alleles at all genetic markers tested. Assuming 50% prior chance, the probability of paternity is 99.9999999990% and combined paternity index (CPI) is 103,380,832,929.
Although, in terms of section 510 Cr.P.C. the DNA report is per se admissible in evidence and it is high degree corroborative piece of evidence, which plays very significant role in the safe administration of justice. Moreover, it gives a passage to the Courts of law to reach at a just conclusion but at the same time this court has to observe whether DNA report has been issued in accordance with law. In this regard, court should be very conscious about the safe transmission of sealed sample parcels to the office of the Punjab Forensic Science Agency, which is lacking in this case, as I have observed that although Doctor Sidra Aslam, WMO (PW.10) during her examination- in-chief stated that after conducting autopsy on the dead body of Mst. Kubra Bibi, she (PW.10) handed over to police, last worn clothes of Mst. Kubra Bibi (deceased), police papers, postmortem report, stitched dead body of deceased, sealed jars i.e. stomach, large and small intestine, liver, spleen, kidney, hyoid bone, complete heart, brain and lungs with 10% formalin. Samples of saturated saline i.e. blood samples. Two internal and two external vaginal swabs for semen detection and DNA typing. Container containing fetal tissues for DNA typing and gestational age.
Similarly, Muhammad Naveed 2527/C appeared in the dock as PW.1 and endorsed the above- mentioned statement of Doctor Sidra Aslam, WMO (PW.10). He (PW.1) further stated that he handed over above-mentioned articles to the Investigating Officer, who took into possession abovesaid documents vide recovery memo (Exh.PA) attested by witnesses Inayatullah (jettisoned PW) and Muhammad Ashraf (PW.3). Surprisingly, Amjad Hussain, SI/I.O (PW.4), while appearing in the court did not utter even a single word regarding handing over to him sealed jar said to contain fetal as well as other articles and documents in his evidence by Muhammad Naveed 2527/C (PW.1). It is true that Muhammad Aslam 272/HC (PW.9) has deposed in his evidence that on 01-07-2019, he was posted as Moharrar at Police Station Zahirpeer. On the same day, Amjad Hussain, SI (PW.4) handed over to him sealed parcels for onward transmission to the office of the Punjab Forensic Science Agency, Lahore for toxicology analysis. He (PW.9) handed over above said sealed parcel to Amjad Hussain, SI (PW.4) on 14-07-2019.
I am of the view when evidence of Amjad Hussain, SI (PW.4) is completely silent with regard to handing over the sealed jar said to contain fetal tissue to Muhammad Aslam 272/HC (PW.9) then all the afterward proceedings are nullity in the eye of law. In this way, the prosecution has failed to prove the factum of safely transmission of sealed jar of fetal tissue to the office of the Punjab Forensic Science Agency, Lahore. In this way, I have no hesitation to hold that when the safe transmission of sample parcels to the office of the Punjab Forensic Science Agency is not proved then the positive report of DNA cannot be relied upon.
I have also observed that DNA is considered a type of expert evidence in criminal proceedings; therefore, it cannot be accepted as primary evidence and may only be used for corroboration. In any event, it is an expert opinion, and even if it was accepted as evidence and relied upon, it would not be adequate to link the appellant's neck to the commission of the crime when I have found all the other evidence to be implausible. As a result, it cannot be relied upon to impose conviction on a capital charge. In this way, this piece of evidence is also not helpful to the prosecution case.
11. Though, the medical evidence which is in the shape of statement of Doctor Sidra Aslam, Woman Medical Officer (PW.10), who conducted autopsy on the dead body of Mst.Kubra Bibi, deceased and issued PMR (Exh.PS) but no other trustworthy direct or indirect evidence is available against the appellant, which could be supported by the medical evidence. It is well settled by now that the medical evidence may confirm the ocular account with regard to seat of injuries and its duration, nature of injuries and kind of weapon used for causing such injury but it cannot connect the accused with the commission of crime. I am fortified with the judgment passed by the Supreme Court of Pakistan reported as "Muhammad Hassan & another vs. The State & another" (2024 SCMR 1427).
12. With regard to pointing out the place of occurrence on 07-07-2019 by the appellant in presence of witnesses and preparation of memo (Exh,PG) is concerned, in order to apply Article 40 of the Qanoon-e-Shahadat Order, 1984, the prosecution must establish that information given by the accused led to the recovery or some fact deposed by him must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given by the accused. I have noted that the place of occurrence was already in the knowledge of the prosecution witnesses and police. I have noted that Wali Muhammad, complainant (PW.2) has disclosed in his examination-in-chief as under:- ..On the next morning i.e. 01.07.2019 at about 06:30 AM, dead body of Mst. Kubra was found in the sugarcane crop of Jam Zahid at the distance of 09/10-acres away from my house. Her neck was cut through sharp edged weapon. Blood was alrady present there. I identified the dead body as my niece Kubra Bibi..."
Similarly, Muhammad Ashraf (PW.3) has also admitted in his cross-examination as under:- "....I had seen the place of occurrence as the dead body of deceased Mst. Kubra was recovered from that place of occurrence..."
More so, Amjad Hussain, SI (PW.4) has stated before the court that after lodging of formal FIR, investigation of this case was entrusted to him and he visited the place of occurrence where dead body of Mst. Kubra Bibi (deceased) was lying. He prepared rough site plan of the occurrence (Exh.PK).
In the light of above facts, this piece of evidence is also no avail to the prosecution. Reference in this respect may be made to the following case law titled as "Rehmatullah and 2 others vs. The State & others" (2024 SCMR 1782).
13. So far as recovery of Churri (P.2) at the instance of the appellant on 08-07-2019, vide seizure memo (Exh.PH) from his house as well as the positive report of the Punjab Forensic Science Agency, Lahore (Exh.PP) to the extent of weapon of offence are concerned, the same are not helpful to the prosecution because as per statement of Rafiullah 500/HC (PW.8), on 01-07-2019, he was posted as Moharrar at Police Station Zahirpeer, on the same day, I.O handed over to him sealed parcels i.e. Churri, sickle/daranti and blood stained soil and other sealed parcels for keeping the same in safe custody in malkhana. I have noted that if the Churri was recovered on 08-07-2019 then how the same was handed over to Rafiullah 500/HC (PW.8) seven days before. This fact makes the recovery of Churri P-2 highly doubtful.
Although, as per report of the Punjab Forensic Science Agency, Lahore (Exh.PP) human blood was identified on item No. 5.2, swa bs taken from blade of that "Churri" but same was not got matched with the blood stained clothes of Mst. Kubra Bibi (deceased) or blood stained soil taken into possession from the place of occurrence. In this way, this piece of evidence also cannot be used against the appellant. Guidance has been sought from the dictum laid down in the case of "Muhammad Asif vs. The State" (2017 SCMR 486).
More so, when the evidence qua last seen had already been disbelieved by this Court, due to the reasons mentioned earlier, I am of the view that conviction cannot be sustained merely on the ground of op-cit recovery of weapon of offence. Guidance has been sought from the dictum laid down in case of "Abdul Hayee and Abdullah alias Ghazali and another vs. The State and others"
(2025 SCMR 281).
14. After analyzing the prosecution case from every angle, I have concluded that the case against the appellant is replete with doubts and his convictions and sentences cannot be upheld on the basis of such shaky and untrustworthy evidence. The offence alleged against the appellant is indeed heinous but he cannot be punished on that ground alone. Wisdom has been derived from the case law titled as "Khial Muhammad vs. The State" (2024 SCMR 1490).
15. The evidence produced by the prosecution is highly discrepant and suffers from serious legal infirmities. The Supreme Court of Pakistan time and again held that in the event of a doubt, the benefit must be given to the accused not as a matter of grace, but as a matter of right. Reliance is placed upon the following case laws titled as "Muhammad Riaz vs. Khurram Shahzad and another" (2024 SCMR 51) and "Muhammad Nawaz & another v. The State and others" (2024 SCMR 1731).
16. For the foregoing reasons, Criminal Appeal No.175 of 2021 is accepted and Muhammad Arif, appellant is acquitted of the charge by extending benefit of doubt to him. He is in jail; he be released forthwith if not required in any other case.
17. As a natural corollary, criminal revision filed by Wali Muhammad, complainant (PW.2) for enhancement of sentence of appellant and compensation is dismissed.