MUhAMMAD JAWAD ZAFAR, J.: Muhammad Saleem, son of Muhammad Ismail, caste Bhatti, resident of Gulistan Colony Street No.2, Old Bahawalpur Road, Multan ("Appellant") was tried in crime report bearing FIR No. 110/2019 dated 04.07.2019 for offences under Sections 302 & 324 of the Pakistan Penal Code 1860 ("PPC"), registered with police station Bohar Gate, Multan ("Crime Report" or "FIR") by the learned Additional Sessions Judge, Model Court-II, Multan ("Trial Court") on the allegations of committing murder of wife of complainant Mst. Shahina Bibi (deceased), as well as launching a murderous assault on the son of the deceased, namely, Muhammad Shoaib/Injured Child Witness (PW-10). On conclusion of Trial, vide judgment dated 07.01.2020, the Appellant was convicted and sentenced as under: * Under Section 302(b), PPC, sentenced to death as ta'zir with direction to pay Rs.4,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. to be recovered from the arrears of land revenue and in case of default in payment thereof, to further undergo S.I. for six months. * Under Section 324, PPC, sentenced to rigorous imprisonment of 5 years and fine of Rs.50,000/-. * Under Section 337-F(ii), sentenced to daman of Rs.50,000/- to be paid to injured Shoaib.
2. Being aggrieved by the judgment of the learned Trial Court, the Appellant has challenged his conviction and sentence through Criminal Appeal No. 18-J of 2020 by impugning judgment dated 07.01.2020 ("impugned judgment"), whereas the learned Trial Court has sent Murder Reference No. 09 of 2020 for confirmation or otherwise of the Appellant's sentence in terms of Section 374 of the Code of Criminal Procedure 1898 ("Code" or "Cr.P.C"). Both these matters, due to arising out of the same impugned judgment, are being decided through this single judgment.
3. The prosecution story as documented in the Crime Report (Ex.PA/1), registered on the complaint (Ex.PA) of Muhammad Saeed complainant (PW-9), is that on the intervening night of 04.07.2019, the complainant, along with his family members, was present at his residence when Muhammad Hassan and Muhammad Naveed (PW-11) also arrived. At approximately 10:00 p.m., Muhammad Shoaib (PW-10), the son of the complainant, answered a knock at the door. At that moment, the Appellant Muhammad Saleem, armed with a churri, forcibly entered the house and raised lalkara that his former wife, and the current wife of the complainant, namely, Mst. Shahina, since deceased, would be done to death. In the presence of witnesses, the Appellant inflicted multiple stab wounds on the neck, back, and both shoulders of Mst. Shahina Bibi. In the meantime, Muhammad Shoaib (PW-10) and others attempted to apprehend the Appellant, however, he stabbed Muhammad Shoaib (PW-10) in the abdomen. While the rest were attending to the injured Muhammad Shoaib (PW-10), the Appellant while brandishing the churri (P-1) and extending threats of dire consequences decamped. Mst. Shahina Bibi succumbed to her injuries at the scene, while Muhammad Shoaib (PW-10) remained under medical treatment at Nishtar Hospital, Multan. Motive behind the incident was that the deceased, Mst. Shahina Bibi, was previously married to the Appellant, Muhammad Saleem. Following her divorce, she subsequently married to the complainant (PW-9), which led the Appellant to commit the the overt act of qatl-e-amd. The complainant (PW-9) witnessed the incident under the illumination of an electric bulb.
Consequently, this FIR was registered.
4. The investigation of the case was entrusted to Abdul Razzaq SI (PW-13), who, upon receiving information through wireless, arrived at Mohallah Walwat/Sutriwat - the crime scene - accompanied by Muhammad Sharif 418/C (not produced) and Muhammad Nazik 4681/C (PW-3).
Upon arrival, Investigating Officer (PW-13) sent the istighasa (Ex.PA) through Muhammad Shareef 441/C (not produced) for formal registration of FIR (Ex.PA/1), after incorporating police proceedings therein (Ex.PA/3). By that time, the Injured Child Witness (PW-10) had already been escorted to Nishtar Hospital by Aqib Muneer (PW-12) and Khuram Shahzad (not produced). Investigating Officer (PW-13) proceeded to secure the deceased's blood via a recovery memo (Ex.PM). The last- worn clothes of the deceased - a green Qameez (P-8), green trousers (P-9), and a green Dupatta (P-10), all bloodstained - were seized through recovery memo (Ex.PD). The injury statement (Ex.PH) and inquest report (Ex.PN) were prepared, and an application for post-mortem (Ex.PM/1) was scribed. The statement of the Injured Child Witness (PW-10) was recorded under Section 161 of the Code. The Crime Scene Unit collected three live rounds P5/1-3 for caliber determination by Firearm and Tool marks expert. The Crime Scene Unit also collected two nail swabs and buccal swabs of the deceased for DNA analysis. On 05.07.2019, Draftsman Irfan Hayat (PW-4) inspected the crime scene, took rough notes and prepared scaled site plan (Ex.PF). The Injured Child Witness (PW-10) was examined and MLC No. 1462/2019 (Ex.PK) was issued by Dr. Nasir Javed APMO (PW-6). On 07.07.2019, Investigating Officer (PW-13) apprehended the Appellant, recovered a 30-bore pistol (P- 5) with five live bullets (P-6/1-5) during a personal search, which was secured via recovery memo (Ex.PC). A separate FIR was lodged under the Punjab Arms Ordinance 1965, and the pistol was handed over to the Moharrar. On 09.07.2019, bloodstained clothes of the Injured Child Witness (PW- 10) - light blue jeans pant (P-6) and an orange shirt (P-7) - were secured vide recovery memo (Ex.PL), along with the clothes of complainant (PW-9) - Shalwar (P-2) and Qameez (P-3) - via recovery memo (Ex.PN). The Ward Report (Ex.PJ/PJ-1), prepared on 04.07.2019, was obtained by the Investigating Officer (PW-13) on 10.07.2019. Following the Appellant's disclosure, murder weapon - churri (P-1), wrapped in a shopper - was recovered on 11.07.2019 from Hassan Perwana Graveyard via recovery memo (Ex.PB), and site plan of recovery (Ex.PP) was prepared. A separate FIR No. 116/2019 was lodged regarding the weapon's recovery. On 15.07.2019, the 30-bore pistol and five live bullets were submitted to the Crime Scene Unit, Multan. The bloodstained churri (P-1) was sent via road certificate No. 246 on 16.07.2019. On 17.07.2019, Investigating Officer (PW-13) collected three envelopes prepared for DNA and chemical analysis from the Moharrar, submitted them to PFSA, Lahore, via road certificates No. 247 and No. 248. The Ward Report (Ex.PJ/PJ-1) of the Injured Child Witness (PW-10) was obtained on 25.07.2019. Upon completion of the investigation, the Investigating Officer (PW-13) found the Appellant guilty and submitted the challan/police report under Section 173 of the Code before the Trial Court.
5. Formal charge was framed on 30.09.2019, to which the Appellant pleaded not guilty and claimed trial. In order to prove the charge, prosecution produced as many as 13 witnesses. The Ocular account was furnished by complainant Muhammad Saeed (PW-9), Injured Child Witness Muhammad Shoaib (PW-10) and Muhammad Naveed (PW-11); Abdul Razzaq SI (PW-13) is the investigating officer in this case. Autopsy was conducted by Dr. Nighat Noreen (PW-7), while Dr. Nasir Javed APMO (PW-6) and Dr. Muttiullah Majid (PW-8) were produced to substantiate the injury on the person of Injured Child Witness (PW-10). Remaining of the prosecution witnesses ("PWs") were more or less formal in nature.
6. Autopsy of Mst. Shahina Bibi (deceased) was conducted by Dr. Nighat Noreen (PW-7) on 05.07.2019 and she observed twenty two injuries on the body of the deceased. According to the opinion of the doctor, all injuries were ante-mortem in nature, inflicted by sharp edged weapon.
Injury No. 1, 2, 10, and 11 individually and rest all collectively could cause death of a person in ordinary course of nature by damaging 1 and 2 blood vessels, hemorrhage, shock, 10 by damaging vital organ heart. 11 by damaging lungs. She further indicated that the duration between injuries and death was immediate while the time between death and postmortem examination was estimated to be 12 to 24 hours.
7. Prosecution gave up Muhammad Saeed 4322/C Telephone operator being unnecessary and after tendering the following documents in evidence, namely, Forensic DNA & Serology Analysis Report bearing No.0000625390 (Exh.PQ) and No.0000625391 (Exh.PR), Forensic DNA & Serology Analysis Report bearing No.0000528893 (Exh.PS), certified copy of PFSA report (Exh.PT), certified copy of Firearm & Toolmark Examination Report bearing No.000584279 (Exh.PU), certified copy of FIR No.114/19 (Exh.PV), attested copy of divorce deed (Exh.PW), certified copy of plaint (Exh.PX), certified copy of judgment dated 04.01.2017 (Mark-H) and decree sheet (Mark-I), attested copy of application moved by Saleem (Exh.PY), certified copy of petition under Section 22-A of the Code (Exh.PZ), certified copy of judgment dated 19.03.2018 (Exh.PZI), certified copy of complaint (Exh.PZ2), Certified copy of judgment dated 19.10.2019 (Exh.PZ3), closed prosecution evidence.
8. After completion of the prosecution evidence, statement of the Appellant under Section 342 of the Code was recorded and he was asked why this case has been registered against you, to which he respondent, as infra: 'Firstly, I am innocent because I was not present at the place of occurrence but due to previous enmity with Saeed Ahmad complainant, he falsely involved me in this false case. It is most important thing that Saeed Ahmad was not present at the time of occurrence rather he was present in his office. According to my information the murder of Shahina Bibi was committed by Muneer Hussain who is step father of Shahina Bibi. Two PWs are close relatives of Saeed Ahmad, one is his brother and other is nephew'.
Appellant tendered three photographs (Mark-A/1-3), mobile phone data of SIM No. 0300-6338604 of complainant as (Mark-B/1-5), two photocopies of one is private complaint under Section 468, 471 & 420 of the PPC (Mark-C) and second copy of application under Section 22-A of the Code against Shahina Bibi etc (Mark-D) and one affidavit from Muhammad Anees son of Muneer Ahmad (Ex.D1) as evidence in his defence, he was asked if he would like to appear on oath as his own witness envisaged under Section 340(2) of the Code, but the Appellant opted not to do so. Upon conclusion of trial, the learned Trial Court found the case against the Appellant to have been proved beyond reasonable shadow of doubt, thus, convicted and sentenced him as detailed above.
9. Arguments heard; record perused.
10. Perusal of the Crime Report reflects that the unfortunate occurrence, whereby the deceased lost her life and PW-10 sustained injuries, took place at or about 10:00 PM on 04.07.2019 while the matter was reported to the local police on the same night within the short span of 1 hour and 30 minutes, leading to chalking out of formal Crime Report at or about 11:30 PM despite the police station being at some distance. The promptness with which the Crime Report got lodged, especially considering the existence of Injured Child Witness (PW-10), not only confirms the presence of PWs at place of occurrence but prompt recourse to law straight at the police station also excludes every hypothesis of deliberation, consultation and fabrication prior to the registration of the case and also rules out the possibility of mistaken identity or substitution. In similar circumstances, the Honourable Supreme Court of Pakistan, in the case of "Aqil v. The State" (2023 SCMR 831), held that: 'A bare perusal of the record shows that the unfortunate incident, wherein the mother and sister of the complainant lost their lives, took place on 05.10.2011 at 07:30 a.m. whereas the FIR was registered on 08:55 a.m. i.e. just after one hour and 25 minutes of the occurrence. The distance between the place of occurrence and the Police Station was 25 kilometers. Thus, it can safely be said that FIR was lodged with promptitude. Promptness of FIR shows truthfulness of the prosecution case and it excludes possibility of deliberation and consultation. There was hardly any time with the complainant or other witnesses to fabricate a false story'.
Reliance is also placed on "Shaheen Ijaz alias Babu v. The State" (2021 SCMR 500). In addition thereto, the Crime Report was lodged by the complainant (PW-9), inmate of the house where the occurrence took place along with the stamp of injuries on the person of Injured Child Witness (PW- 10), are conclusive proof of their presence at the venue of occurrence, as a consequence thereof, the so-called delay as averred by the learned counsel for the Appellant, is out of question, especially considering the ratio decidendi laid down in the aforementioned cases, in as well as the case of "Sheraz Asghar v. The State"(1995 SCMR 1365), wherein it was held that '[b]esides, delay in lodging F.I.R. is not per se fatal to a case. It neither washes away nor torpedoes trustworthy and reliable ocular or circumstantial evidence. F.I.R. in this case has been lodged with an eye-witness.
It contains the names of the eye-witnesses, the names of the assailant with arms carried by them, active role played by each assailant'. Even otherwise, the honourable Supreme Court of Pakistan observed in "Zar Bahadur v. The State" (1978 SCMR 136) that mere delay does not wash away the reliability of the ocular account or trustworthiness of the same. Relevant excerpt is reproduced infra: 'Two hours and 15 minutes time might had been consumed by the complainant in arranging conveyance and despatching the dead body to hospital at Jhelum. Arranging conveyance for himself and covering the distance of 9/10 miles for reaching at police station. Such delay in detail has been explained by the complainant in the trial Court during cross examination. There lies no fault on the part of complainant in lodging the FIX with such delay. Besides, delay in lodging F.I.R. is not per se fatal to a case. It neither washes away nor torpedoes trustworthy and reliable ocular or circumstantial evidence. F.I.R. in this case has been lodged by an eye witness. It contains the names of the eye witnesses, the names of the assailant with arms carried by them, active role played by each of the assailant. The prompt lodging of the F.I.R. with details excludes possibility, of deliberations, consultations, manoeuvring and false implication'.
11. Prosecution case hinges upon the ocular account, medical evidence, recovery and motive.
Insofar as the ocular account is concerned, it is observed that complainant (PW-9), Injured Child Witness (PW-10) and eye-witness Muhammad Naveed (PW-11) deposed in line with the Crime Report and reiterated the same while appearing in the dock of the Court unflinchingly supported the prosecution case on all material points and despite best efforts, the witnesses of ocular account remained firm and consistent on all material aspects of the incident qua the date, time, place, mode and manner of the occurrence, name of the appellant, weapon of offence and the role played by him for committing murder of the deceased and the defence could not shatter their credibility on material points. Learned counsel objected to the testimony of Injured Child Witness (PW10) and its admissibility due to tender age (eight years old) of said witness and further pointed out that the post-mortem examination got conducted with a delay of at least twelve hours and there is considerable conflict between the number of injuries alleged against the Appellant in the ocular account, injuries observed on the person of the deceased by the investigating agency, and the number of injuries found in the post-mortem examination report.
12. We deliberate upon these submissions in turn. At the outset, it is observed that Article 17 of the Qanun-e-Shahadat 1984 ("QSO") does not spell the number of witnesses required to prove a fact in issue in a case under Section 302 of the PPC in terms of Article 18 of QSO. The Supreme Court of India in "State of U.P v. Krishna Masters & Ors" (2010 (12) Supreme Court Cases 324) observed that: 'Section 134 of the Indian Evidence Act specifically provides that no particular number of witnesses shall, in any case, be required for the proof of any fact. It is well known principal of law that reliance can be placed on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The courts are concerned with the merit and the statement of a particular witness and not at all concerned with the number of witnesses examined by the prosecution. The time-honoured rule of appreciating evidence is that it has to be weighed and not counted. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, where, the court finds that the testimony of solitary witness is neither wholly reliable nor wholly unreliable, it may, in given set of facts, seek corroboration but to disbelieve reliable testimony of a solitary witness on the ground that others have not been examined is to do complete injustice to the prosecution'.
This view finds support from the jurisprudence laid down by superior courts of the land that it is the quality, and not the quantity, of witnesses that matters and an accused facing trial for offence of qatl-e-amd can be convicted based on solitary testimony of a single witness. In "Qasim Shahzad and another v. The State and others" (2023 SCMR 117), it was held that: 'As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of evidence. It is not that who is giving evidence and making statement. What is relevant is what statement has been given and it is not the person but the statement of that person which is to be seen and adjudged. In Niaz-ud-Din v. The State (2011 SCMR 725), it was held that conviction in a murder case can be based on the testimony of a single witness, if court is satisfied that he is reliable and it is the quality of evidence and not the quantity which matters. The same was the view of this Court in Asim v. The State (2005 SCMR 417), Lal Khan v. The State (2006 SCMR 1846) and Muhammad Sadiq v. The State (2022 SCMR 690)'.
Reliance is also placed upon "Sajid Mehmood v. The State" (2022 SCMR 1882).
13. Under the law, a child as young as eight is fully competent to depose as a witness, because said child has the capacity and intellect to depict and comprehend what he is deposing about.
Rationality test is invoked by the courts of law as a means of determining whether a child is a competent witness or otherwise. Said test stems from the combined reading of Article 3 and Article 17 of the Qanun-e-Shahadat 1984 ("QSO") after conducting voir dire. It is trite that voir dire constitutes a sort of inquiry conducted within a trial to determine ancillary issues that are essential for adjudication and it falls within the discretion of the learned Trial Court to assess the competence of a child witness by posing various questions, based on which questions, it is deciphered whether the child witness has passed the rationality test and is deemed to be a competent witness or otherwise. In "Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another" (PLD 2020 Supreme Court 146) the Honourable Supreme Court, after deliberating upon the scope of Articles 3 and 17 of QSO in relation to a child witness, observed as infra: '45. A close reading of the above provisions reveals that the essential conditions for a child, or for that matter any person, to appear and testify as a witness, is that the child or the person must have the capacity and intelligence of understanding the questions put to him, and also be able to rationally respond thereto. This threshold has been referred to as passing the "rationality test", and the practice that has developed with time in our jurisdiction is for the same to be carried out by the presiding Judge prior to recording the evidence of the child witness'.
In the present lis, it is noticed from the deposition of Injured Child Witness (PW-10) that the learned Trial Court did conduct voir dire. Relevant excerpt of the testimony reads as follows: 'Question: Where are you standing at this time?
Ans: I am standing in the Court.
Question: Why you have come to the Court?
Ans: I have come to the Court to record my statement regarding the occurrence of murder of my mother and about my injury.
Witness Muhammad Shoaib is of tender age. He is ask about his age and few questions are put to him, which he answered rationing witness understands the questions. He is able to record his evidence. So, his evidence be recorded'.
Based on the excerpt reproduced, it can safely be stated that Injured Child Witness (PW-10) passed the rationality test and was a competent witness. Furthermore, the testimony of Injured Child Witness (PW-10) is in line with and finds independent corroboration from the depositions of complainant (PW-9) and eye-witness Muhammad Naveed (PW-11), and despite lengthy cross-examination, nothing advantageous could be extracted by the defence, rather, the Injured Child Witness (PW-10) remained firm and shunned away any suggestion that the Appellant is not the culprit. Therefore, the challenge to the testimony of Injured Child Witness (PW-10) is without any substance.
14. Insofar as the aspect of delay of almost 11 hours and 30 minutes in conducting post-mortem examination, it is observed that one person lost her life while Injured Child Witness (PW-10) was evacuated to the hospital as a means to save his person. Possibility of time being consumed in transportation might led to delay in postmortem examination which was still fairly good as the doctor has opined approximately that it ranges from twelve to twenty four hours. In similar circumstances, where the FIR was lodged with promptness but the autopsy was conducted with delay, the Honourable Supreme Court of Pakistan has held, in "Muhammad Asif and another v.
Mehboob Alam" (2020 SCMR 837), that '[i]n a country where the medical facility cum availability of paramedics for the job assigned is not an easy task, the consumption of such a time seems to be quite reasonable hence, the prosecution evidence cannot be brushed aside on this score alone to extend the benefit of doubt as claimed'. Therefore, this contention is repelled. This may be examined from a different lens. The rationale behind the contention of delayed post-mortem is that time was consumed to concoct a frivolous and vexatious narrative against the accused person and said time was used to procure the attendance of witnesses. In the present lis, it is evident from the perusal of the Autopsy that the mouth and eyes of the deceased were closed.
PW's, being close relatives of the deceased have, through closing of eyes and mouth, along with eyewitnesses of the Crime Report being witnesses in the Autopsy and Inquest Report, establishes that they were present at the venue of occurrence at the relevant time, therefore, plea of delay in post mortem examination loses its significance. Besides, this argument of learned counsel also fails to acknowledge that, as already observed hereinabove, the complainant (PW-9) and Injured Child Witness (PW-10) were natural witnesses as they were, in the ordinary course, resident of the house of occurrence and stamp of injury on the person of Injured Child Witness (PW-10), duly corroborated and fully supported by the medical evidence, clearly proved his presence at the place of occurrence. Argument that no one came to rescue fails on the score that when one person came to rescue the deceased, he was injured and said injury is grievous in nature, as such, the witnesses became fearful for their lives and did not intervene, as is evident from cross- examination of eye-witness Muhammad Naveed (PW11). Further, contention that name of father of injured was wrongly mentioned in MLC No. 1462/19 (Ex.PK/III) as such injured was not present loses credence when the matter was taken at the earliest and correction was made after receiving Court order dated 12.07.2019 as is evident from the testimony of PW-6 and name is correctly mentioned by PW-8, who gave ward report (Ex.PJ) in his deposition and presence of Injured Child Witness (PW-10) was not disputed during cross-examination. Reliance is placed upon "Ansar and otters v. The State and others" (2023 SCMR 929); and, "Ali Taj and another v. The State" (2023 SCMR 900). Additionally, the commission of the overt act of qatl-e-amd took place within the house and as such, who else but the inmates of the house, specifically, complainant (PW-9) and Injured Child Witness (PW-10) were in a better position to disclose who was responsible for committing the murder of the deceased. It needs no reiterating that inmates are deemed to be natural witnesses and their testimonies, especially considering their relationship with the deceased, cannot be discarded because why on earth would the son/Injured Child Witness (PW- 10) and husband/complainant (PW-9) of the deceased substitute the real culprit for the Appellant.
On the contrary, they would be the last persons to even think of doing such a thing. Substitution is always considered a rare phenomenon in cases where the complainant lost his/her close kith and kin. Reliance is placed upon "Muhammad IJaz v. The State" (2023 SCMR 1375); "Aqil v. The State"
(2023 SCMR 831); and, "Imran Mehmood v. The State and another" (2023 SCMR 795). The case of "Imran Mehmood v. The State and another" (2023 SCMR 795) is also relevant to discard the contention that since prosecution witnesses were related to the deceased, their testimony cannot be relied upon because it is trite that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses. Further reliance is placed upon "Ali Asghar alias Aksar v. The State" (2023 SCMR 596); "Amanullah v. The State and another" (2023 SCMR 527); and, "Ghulam Murtaza v. The State" (2021 SCMR 149).
15. Regarding the averment qua contradiction between number of injuries, it is observed that medical evidence available on the record corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and the injured PW is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused. Reason being that witnesses are not supposed to give a photo picture of the ocular account. Reliance is placed on "Ali Taj and another v. The State"
(2023 SCMR 900); "Aman Ullah and another v. The State and others" (2023 SCMR 723); "Muhammad Ilyas v. The State" (2011 SCMR 460); "Faisal Mehmood v. The State" (2010 SCMR 1025); "Naeem Akhtar v. The State" (PLD 2003 Supreme Court 396); and, "Muhammad Iqbal v.
The State" (1996 SCMR 908). It is a settled principle of criminal jurisprudence that the value and status of medical evidence is always corroborative in its nature, which alone is not sufficient to sustain the conviction and discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for a variety of reasons. In "Ali Taj and another v. The State" (2023 SCMR 900) this contention was examined in quite some depth and the honourable Supreme Court of Pakistan held that: 'During occurrence witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where accused caused injuries.
It becomes highly improbable to correctly mention the number and location of the injuries with exactitude. Minor discrepancies, if any, in medical evidence relating to nature of injuries do not negate the direct evidence as witnesses are not supposed to give photo picture of ocular account. Even otherwise, conflict of ocular account with medical evidence being not material imprinting any dent in prosecution version would have no adverse affect on prosecution case.
Requirement of corroborative evidence is not of much significance and same is not a rule of law but is that of prudence. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye -witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. It is a well settled proposition of law that as long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence'.
16. The prosecution, in order to prove the case to a hilt produced documentary evidence id est divorce deed (Exh.PN), copy of civil suit titled as "Mst. Shaheena vs. Muhammad Saleem" (Exh.PX), an application for registration of case filed by the appellant (Exh.PY), a petition under section 22- A(6) of the Code titled as "Muhammad Saleem Vs. SHO and others" and order dated 19.03.2018 (Exh.PZ) and (Exh.PZ/1) and a copy of private complaint titled as "Muhammad Saleed Vs. Makwal and another" (Ex.PZ/2), qua litigation between the Appellant, who is the ex-husband of the deceased, with the deceased and her relatives, which finds corroboration with the testimonies of the witnesses, therefore, motive is proved .
17. Insofar as recovery of murder weapon (P-1) is concerned, it has been observed that the Appellant was arrested on 07.07.2019 and pursuant to disclosure made by him, bloodstained murder weapon (P-1) was recovered from Hassan Perwana Graveyard on 11.07.2019. Witnesses of the recovery being police officials is of no consequence because it is trite that the testimony of police officials is as good evidence as of any other witness unless the accused establishes that the police witness who appeared against him had personal motive to falsely implicate him in the offence. The murder weapon (P-1) was deposited in the PFSA on 16.07.2019, and according to the serologist report pertaining to murder weapon (Ex.PT), '[h]uman blood was identified', however, no corresponding DNA was conducted to connect the murder weapon (P-1) with the occurrence despite the depositing of murder weapon (P-1) in the PFSA well in time as well as the availability of samples of deceased in the shape of blood stained cotton and buccal swabs. Therefore, the recovery, due to lack of corresponding DNA comparison becomes inconsequential.
18. We have also observed that in the serologist report pertaining to the clothes and nail swabs, etc (Ex.PQ) of the deceased, it is mentioned that '[p]lease submit the buccal swab standards of victim "Muhammad Shoaib" and suspect "Muhammad Saleem" for subsequent DNA comparison. Buccal swa b standards will be taken at PFSA, Lahore as per policy'. It follows that although buccal swabs of the deceased were taken and sent for analysis, however, no corresponding buccal swab of the Appellant was sent for comparison. The non-submission of the buccal swabs of Appellant with the PFSA for subsequent DNA comparison with the samples of the deceased, and that too despite having custody of the Appellant was never explained by the prosecution. Further, had the same been done, it would have further strengthened the prosecution case by way of forming a forensic link between the Appellant and the scene of the crime in light of Locard's Principle of Exchange.
19. In light of the omissions on part of the investigating agency, as highlighted above, we observe that the forensic aspect with regards to the lack of submission of corresponding buccal swab for subsequent DNA comparison, it would be advantageous to deliberate upon a few things: Locard's Principle of Exchange and the importance of Deoxyribonucleic Acid ("DNA"). Brent E. Turvey in his book "Criminal Profiling: An Introduction to Behavioral Evidence Analysis, 4th edn (London: Academic Press, 2012)" explains the Principle of Exchange, a form of trace evidence, as a cornerstone of forensic science and is attributed to Dr. Edmond Locard, a pioneer in forensic investigation. It follows that whenever two objects come into contact, they inevitably transfer microscopic material. This principle, often summarised as "every contact leaves a trace" implies that a perpetrator will always leave behind evidence at a crime scene while simultaneously taking traces away, and as such, such exchanges provide crucial forensic links between individuals and crime scenes. In order for this to work, DNA tests are conducted from articles at the scene of the crime. DNA is the fundamental genetic material present in all human body cells, except red blood corpuscles. It carries the genetic blueprint that determines an individual's characteristics. DNA profiling, an advanced forensic tool, enables the identification of individuals by analyzing genetic markers in biological samples. The nature and forensic application of DNA were succinctly explained in "Regina v. Alan James Doheny & Gary Adams" ([1996] EWCA Crime 728), where the accused were convicted based on DNA profile comparison. Lord Justice Phillips, referencing Lord Taylor C.J. in "Regina v. Deen" ([1996] EWCA Crim J0731-1), outlined the process of DNA profiling, involving extraction, fragmentation, electrophoresis, and autoradiography to compare crime scene DNA with that of a suspect. Subsequent to "Frye v. United States" (293 F. 1013 (D.C. Cir. 1923)) wherein the "generally accepted" test was laid down and "Daubert v. Merrell Dow Pharmaceuticals, Inc." (509 U.S. 579 (1993)) in which case the Supreme Court of the United States overruled the "generally accepted" test, Chief Justice Roberts in "District Attorney's Office for the Third Judicial District et al. v. William G. Osborne" (2009 U.S. Lexis 4536) highlighted DNA testing's unparalleled role in exonerating the innocent and identifying the guilty, significantly enhancing criminal justice and investigative practices. In the same vein, the Supreme Court of India in "Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh" (2009 (14) SCC 607) observed as under: '46. Submission of Mr Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means: "Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine." There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA profiling and its applications.) But in this case there is nothing to show that such precautions were not taken.
47. Indisputably, the evidence of the experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In cross-examination, PW 46 had stated as under: "If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population."'.
In our jurisprudence, as evident from the perusal of "Ali Haider alias Papu v. Jameel Hussain and others" (PLD 2021 Supreme Court 362), DNA evidence used to be considered as a gold standard as a means of establishing the identity of an accused or to connect him/her with the commission of the offence. DNA test, due to its accuracy and conclusiveness, was deemed to be one of the strongest corroborative pieces of evidence as it, with scientific certainty and clarity, disclosed the aforementioned and was, therefore, considered one of the strongest corroborative evidence.
However, in "Ali Haider alias Papu v. Jameel Hussain and others" (PLD 2021 Supreme Court 362), the honourable Supreme Court observed that usefulness of DNA analysis depended mostly on the skill, ability and integrity shown by the investigating officers, who were the first to arrive at the scene of the crime and unless the evidence was properly documented, collected, packaged and preserved, it would not meet the legal and scientific requirements to be considered by the Courts of law.
20. In view of the above, we are of the firm view that the prosecution has succeeded in proving its case to the hilt and beyond shadow of doubt. Insofar, as the quantum of sentence is concerned for considering whether a lesser sentence of life as Ta'zir ought to be imposed or whether this murder reference should be answered in affirmative, we have observed that no corresponding DNA was conducted to connect the murder weapon (P-1) with the occurrence despite availability of samples of deceased in the shape of blood stained cotton and buccal swabs of the deceased.
Similarly, buccal and nail swa bs of the deceased were taken and sent for analysis, however, no corresponding DNA samples of the Appellant were sent for comparison. According to Aftab Ali Shahid JFS Crime Scene Unit Multan (PW-5), three live rounds (P-5/1-3) were found at the place of occurrence, however, entire prosecution case is silent qua this aspect. All these three circumstances, although attract illustration (g) of Article 129 of QSO, yet at the same time, have no probative value in terms of securing an acquittal when taken in conjunction with fact that the testimonies of the eye-witnesses, inclusive of injured witness, remained un-shattered and rather it a mere omission on part of the investigating agency due to their lethargic attitude and as a consequence thereof, it can merely be termed as a mitigating and extenuating circumstance and not otherwise. The honourable Supreme Court of Pakistan in "Dilawar Hussain v. The State" (2013 SCMR 1582) held that: 'It has neither been the mandate of law nor the dictates of this court as to what quantum of mitigation is required for awarding imprisonment for life rather even an iota towards the mitigation is sufficient to justify the lesser sentence. According to our estimation, even a single stance providing mitigation or extenuating circumstance would be sufficient to award lesser punishment as an abundant caution'.
21. In light of the deliberation made hereinabove, Criminal Appeal No. 18-J of 2020 of the Appellant is dismissed by maintaining his conviction for offence under Section 302(b) of the PPC, however, while considering the extenuating circumstances and while taking a lenient view, the sentence of capital punishment is converted into one of imprisonment for life. It is clarified that other sentences awarded to the Appellant by the learned Trial Court are maintained and shall run concurrently.
Benefit of Section 382-A of the Code is also extended to the Appellant. Murder Reference No. 09 of 2020 is answered in negative and the death sentence awarded to the Appellant is not confirmed.
22. Before parting ways with this judgment, it is imperative to address a crucial shortcoming of the investigating agency, specifically, the failure to collect forensic evidence directly from the suspect/accused, which omission undermines, if not weakens, the chain of trace evidence forming a link between the victim and perpetrator, thereby increasing the risk of wrongful acquittals or convictions. To uphold the principles of trace evidence, inclusive of the Locard's Principle of Exchange, as a means to further the administration of justice and ensure no one is either wrongfully acquitted or convicted, the police and investigating agencies are directed to hereby ensure in the future to meticulously document, collect, and preserve forensic evidence not only from the scene of the crime but also from the suspect. This includes securing the scene immediately to prevent contamination, using appropriate protective gear to avoid introducing foreign materials, and employing systematic evidence-gathering techniques such as DNA swa bbing, fingerprint lifting, and trace material collection from the suspect/accused in addition to that secured from the crime scene. Every item retrieved should be carefully catalogued, sealed, and stored to maintain its integrity. The forensics so-collected must also be expeditiously, and without fail, sent to the forensic laboratory, thereby strengthening its probative value. Investigating agencies are, therefore, directed to rectify this deficiency and ensure rigorous forensic collection from suspects, thereby strengthening the administration of justice. Copy of this judgment shall be sent to all the concerned through the office of the Registrar of this Court.