1. MUHAMMAD AMJAD RAFIQ, J:- This criminal revision has been directed against the order of learned Additional Sessions Judge Khanewal dated 04.05.2024, whereby he has rejected the application of accused/petitioner under section 265K of Cr.P.C. wherein he was seeking his acquittal in case FIR No.628/2023 dated 07.06.2023 under section 376 PPC Police Station City Khanewal District Khanewal on the ground of resiling of the complainant/ victim, the sole witness to rape.
2. Hina Tariq levelled allegation of rape against Saeed Ahmad petitioner and one Usman with the narration that she being resident of District Jhang, was on visit to the house of her sister at Khanewal when she fell ill and went to the clinic of Saeed Ahmad petitioner on 06.06.2023 at 4.30 p.m. who injected a drip and administered some tablets to her, then asked that due to sedative medicine she would better go upstairs to stay in comfort, where petitioner along with Usman after extending threats committed rape with her turn by turn. Matter was reported to the police on the next day. i.e., 07.06.2023, so as the medical examination and FIR No. 628/23 dated 07.06.2023 stood registered u/s 376 PPC at police station City Khanewal. She was a family woman having four daughter and one son; therefore, swa bs were sent to PFSA which returned with an opinion that the DNA profile obtained from epithelial fraction of item No. 3 is a mixture of at least two individuals.
2. Saeed Ahmad (Item S1) cannot be excluded as being a contributor to this DNA mixture profile.
3. Accused/petitioner was put to trial through report under section 173 Cr.P.C. who denied the charge and prosecution evidence was summoned comprising of sole witness of rape, the complainant and her sister for res gestae evidence, but when complainant/victim appeared in the dock as PW-1 on 27.10.2023, she totally negated the prosecution case including appearing before PFSA for examination, she was duly cross examined by the learned DDPP but nothing favourable to prosecution could be extracted from her mouth; therefore, petitioner moved an application under Section 265K of Cr.P.C., for his acquittal by premature termination of prosecution. Learned trial Court, however, dismissed such application vide order dated 04.05.2024, impugned herein, considering that DNA report against him is available. Hence, this revision petition.
4. Learned counsel for the petitioner states that DNA is merely a corroboratory evidence which cannot supply conviction, and once the substantive evidence fails, prosecution case cannot be strengthened through corroboratory evidence, and in this respect he placed his reliance on cases reported as "MUHAMMAD HASSAN Versus The STATE and others" (2024 SCMR 1427); "SALAMAT MANSHA MASIH Versus The STATE and another" (PLD 2022 Supreme Court 751).
5. Learned Deputy Prosecutor General supported the impugned order with the submissions that testimony of a hostile witness could be read in the light of other available evidence and then conviction can legally be passed against the accused, but conceded that there was no other eye witness in this case except the victim herself. He however, supported the counsel for complainant that conviction on the basis of forensic evidence may be lawful pursuant to Article 164 of Qanun-e - Shahadat Order 1984, but conceded that there is difference between video evidence and DNA evidence with respect to its efficacy.
6. Heard; record perused.
7. The Supreme Court of Pakistan in a case reported as "Maulvi HAZOOR BAKSH versus THE STATE"(PLD 1985 Supreme Court 233) held that a witness who changes his stance cannot be considered as truthful witness and his testimony should not be relied upon. Further, statement of a resiling witness may be ignored but a resiling complainant uproots the prosecution case in its entirety, because initiation of criminal prosecution is triggered by him and barring in some category of offences, when complaining person does not support formalization of such initiation, no question appears to produce further evidence. In a case reported as "MUHAMMAD AKHTAR and others Versus The STATE and others" (2022 P Cr. L J 591), this Court has thrashed the etymology of word 'testimony' ; according to which, it was derived from word "Testis" where 'Te' stands for 'Tri'
8. (third) and 'Stis' means 'stance' or 'stand', so 'testis' means 'third stand/stance'. In an adversarial system, there are two parties in contest, i.e., 'prosecution' and 'defence'; thus, there are two stances and for resolution of issue Court requires a third stance, i.e., a witness. Prosecution is represented by the complainant who is heard first as per section 244 Cr.P.C., in Magisterial trial and 265F Cr.P.C. in Sessions trial; both says "after hearing the complainant" Court shall summon the witnesses, of course in support of testimony of complainant, but when there is no complaint or allegation, for what purpose the Court should summon the witnesses.
9. Of course, there is a difference between resiling of complainant and resiling of a witness. In former case, no probability of conviction remains there and then; therefore, dragging the matter for conducting whole trial would be an abuse of process, but in later case, situation remains open to get a support to the testimony of the complainant through other forms of evidence. However, in former case there is an exception that if video evidence of the occurrence is available and some witnesses also support the occurrence, then resiling of complainant shall not matter at early stage and trial must go on.
10. The question involved in present case is that whether above exception shall also apply for conducting of whole trial where only forensic evidence in the form of DNA matching report is available. As we know DNA evidence is not a substantive piece of evidence rather corroboratory in nature and it is trite that conviction cannot be passed mere on corroboratory evidence. In this respect the cases reported as "RIAZ AHMED Versus THE STATE" (2010 SCMR 846); "MUHAMMAD HASSAN Versus The STATE and others" (2024 SCMR 1427); "SALAMAT MANSHA MASIH Versus The STATE and another" (PLD 2022 Supreme Court 751) are referred. There are judgments which enunciate that on the basis of sole evidence of DNA it would be unsafe to record conviction.
11. Reliance is placed on cases reported as "ATTA UL MUTAFA Versus The STATE and another" (2023 SCMR 1698); "State of Gujarat Vs. Jayantibhai Somabhai Khant" (2015 Crl.L.J 3209); "NAGAPPA v. THE STATE OF KARNATAKA" (2019 SCC Online Kar 3880), and in some of the judgments upon resiling of complainant/victim, DNA evidence, showing accused even a biological father of victim's child, was rejected by the Courts and accused was acquitted. Reliance in this respect is placed on cases reported as; Premjibhai Bachubhai Khasiya v. State Of Gujarat and Anr., (2009 CRl.L.J 2888); "Suresh Devidas Malche vs The State of Maharashtra" (Appeal No. 306 of 2016); "Nazim Versus The State" (Criminal Appeal No. S-98 of 2021) decided on 15.12.2023 by High Court of Sindh, Circuit Court, Hyderabad.
12. In a case reported "KANEEZ FATIMA and another versus SENIOR CIVIL JUDGE (FAMILY DIVISION) and 2 others" (PLD 2024 Lahore 715), it was held by this Court that for determination of paternity, physiognomy must be preferred over DNA evidence. 'Physiognomy' is a form of circumstantial evidence to examine resemblance in bodily and physical features of child with the claimants.
9. Why it is unsafe to rely on DNA evidence solely for the purpose of recording conviction has well been responded in an Indian judgment reported as "NAGAPPA v. THE STATE OF KARNATAKA" (2019 SCC Online Kar 3880) which enunciates somewhat as under; "......because entire process of procuring the DNA evidence is controlled by human agencies i.e., Investigating Officers and forensic scientist, there is ample chance of manipulation, tempering of such evidence by corrupt officers or scientist which needless to say highly prejudices the accused persons. Even preservative methods adopted are not properly brought on record.
13. ".....that it is highly unsafe to rely upon the sole DNA test to convict the person on the basis of said test. There must be a unique balance between scientific evidence and human evidence. Therefore, existing value based criminal justice system cannot be done away with and as such, a susceptible balance has to be struck between modern system based on scientific and technological knowledge and our existing value based system".
14. It has further been observed that Constitutional guarantee against self-incrimination as per Article 13 of the Constitution of the Islamic Republic of Pakistan 1973 also stands as safeguard against the DNA evidence. According to such Article no person shall be compelled to become witness against himself. However, through statutory law it is permitted to conduct DNA sampling of an accused who is under the charge of rape, as mentioned in section 53A of Cr.P.C. Such DNA evidence can only be used in conjunction with other substantive evidence to record the conviction against the accused otherwise conviction solely on the basis of DNA evidence would be unconstitutional.
15. For what has been discussed, after resiling of the complainant, learned trial Court must have acquitted the accused under section 265K of Cr.P.C., because there remained no probability of conviction any more. Thus, this criminal revision is allowed, order impugned dated 04.05.2024 is set aside; and accused/petitioner is acquitted of the charge.