Fayyaz Ahmad vs The State

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

Criminal Appeal No. 102-J of 2018.

(Fayyaz Ahmad Vs. The State.)

Criminal Revision No. 38 of 2018.

(Zadan Bibi Vs. The State and another)

Date of hearing: 18.06.2021.

Appellant by: Mr. Shahid Nadeem Kahloon, Advocate. State by: Mr. Javed Iqbal Bhaaya, Assistant District Public Prosecutor.

Complainant by: Mr. Mian Muhammad Imran, Advocate.

SADIQ MAHMUD KHURRAM, J. –Fayyaz Ahmad son of Muhammad Yar (convict) was tried by the learned Additional Sessions Judge, Chishtian in case FIR No.116 of 2015, dated 11.05.2015, registered at Police Station Shahr Fareed, District Bahawalnagar in respect of an offence under section 376 PPC. The learned trial court vide judgment dated 07.02.2018 convicted Fayyaz Ahmad son of Muhammad Yar (convict) and sentenced him as infra:-

Fayyaz Ahmad son of Muhammad Yar:- Rigorous Imprisonment for fifteen years under section 376 PPC and directed to pay fine of Rs.50,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of four months. The convict was also directed to pay compensation of Rs.2,00,000/- to Mumtaz Bibi under section 544-A Code of Criminal Procedure, 1898.

The convict was, however, extended benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as “Cr.P.C.) .

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2.Feeling aggrieved, Fayyaz Ahmad son of Muhammad Yar (convict) lodged the instant Criminal Appeal No. 102-J of 2018 through jail assailing his conviction and sentence. Zadan Bibi, the complainant of the case, filed Criminal Revision 38 of 2018 seeking the enhancement of the sentence of the convict namely Fayyaz Ahmad son of Muhammad Yar. This Court intends to dispose of the Criminal Appeal 102-J of 2018 and Criminal Revision No. 38 of 2018 through this single judgment.

3.The brief facts of the prosecution case, as stated by Mst. Mumtaz Bibi (PW-7), the victim of the case, in her statement before the learned trial court are as under:- “Stated that prior to registration of FIR Mst. Faiz Elahi took me with her on the pretext of attending natures call, she took me to the sugarcane crop of Hafiz Nazar, accused Muhammad Farooq was already present there with pistol who forcibly took me inside the crops and committed rape with me against my consent. Accused Muhammad Farooq also committed rape with me against my consent several times after that. About 5/6 days prior to occurrence I was present near tube well of Hafiz Nazar when accused Muhammad Farooq came there with a pistol, forcibly took me inside the tube well room and committed rape with me against my consent, he threatened me that he would kill me if I disclosed it to anyone. I returned home and told my mother about the occurrence in the presence of Muhammad Amir and Ahmad Ali P.Ws. and also told her that accused Muhammad Farooq had been previously committing rape with me several times and I have become pregnant. My mother took me to learned Area Judicial Magistrate and on the order of Magistrate I was medically examined. My mother lodged FIR against accused persons Muhammad Farooq and Mst. Faiz Elahi. After registration of FIR I also told my mother in the presence of P.Ws. that accused Muhammad Fayyaz present in court alongwith accused Muhammad Farooq had also committed rape with me against my consent and I became pregnant. I gave birth to child who could not survive. Accused Fayyaz has committed heinous offence with me, he may be sentenced to death.”

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 Fayyaz Ahmad son of Muhammad Yar was sent to face trial The learned trial court framed charge against the appellant on 29.06.2016 to which he pleaded not guilty and the learned trial court proceeded to examine the prosecution witnesses.

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5.The prosecution in order to prove its case got recorded statements of as many as eleven witnesses. Mst. Mumtaz Bibi (PW-7), the prosecutrix narrated the facts of the occurrence. Mst. Zadan Bibi (PW-5) got registered the F.I.R through written application (Exh.PE) and also submitted the application (Exh.PF) naming the present appellant as an accused. Muhammad Amir (PW-6) stated that he was told of the occurrence by Mst. Mumtaz Bibi (PW-7). Abdul Jabbar 182/C (PW-1) stated that he was handed over a sealed envelope by the Medical Officer after the examination of Mst. Mumtaz Bibi (PW-7). Rauf Riaz, 24/C (PW-8) stated that on 24.05.2015, he was handed over a sealed parcel with regard to Mst. Mumtaz Bibi (PW-7) bearing the name of Dr. Shaista Khalid (PW-3) by Faheem Alam 358/HC (PW-9) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Dr. Shakeel Riffat Mirza (PW-2) stated that on 02.07.2015 he examined the appellant and found him able to have sexual intercourse. Niaz Ahmad, ASI (PW-11) investigated the case from 09.05.2016 till 27.05.2016 and detailed the facts discovered during the investigation of the case in his statement before the learned trial court. Manzoor Akmal, S.I. (PW-10) investigated the case from 11.05.2015 till 31.07.2015 and detailed the facts discovered during the investigation of the case in his statement before the learned trial court.

6.The prosecution also got Dr. Shaista Khalid, Woman Medical Officer (PW-3) examined who on 07.05.2015 was posted at THQ, Hospital Chishtian and on the same day conducted the medical examination of the victim, namely Mst. Mumtaz Bibi (PW-7). Dr. Shaista Khalid, Woman Medical Officer (PW-3) after examining Mst. Mumtaz Bibi (PW-7) observed as under:- “Gynecological History.

Relevant gynecological history, she was unmarried. And there was history of amenorrhea four months, she was referred to gynecologist for expert opinion.

Expert Opinion of Gynecologist.

According to gynecologist report her general physical examination her B/P was 120/80 mmhg, pulse was 88/pm, she was oriented in time and place. Breast examination, no discharge from the nipple present, PA examination FHT 18 weeks, FHR present, as per her vaginal examination, her vulva was normal, hymen was torn old healed at 7'0 Clock position, vaginal was admitting two fingers easily, external cervical os 0.5 cm,

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uterus was A/V of 18-20 weeks. On ultrasongrams a single pregnancy with oblique lie and cephalic presentation at the time of unltrsonogram B- P-D 4.3 cm, F.L. 3.1 cm. E-D-D 29.09.2015, gestational age 19 weeks plus two day +- on week. FHR present. Fetal movements present. Liquor adequate. Placenta il Merior and left partially low lying. Comments active alive pregnancy of 19 weeks plus two day + one week.

She was of strong physique, her secondary sexual characteristic were fully developed, she was well oriented in time and space and was confused. No marks of violence were present on any party of body at the time of examination.

LOCAL EXAMINATION.

No marks of violence were present on any party of body. Vagina was admitting two finger easily, hymen torn at old healed tear. Uterus was 18 weeks size and soft pregnant uterus. Os was closed.

SYSTEMIC EXAMINATION: with reference to pregnancy. P/A examination. FHT 18 weeks. FHS audible with fetoscope. P/V examination as mentioned above. Ultrosonogram, single alive pregnancy with cephalic presentation DPD is 4.3 cm. EDD 29.09.2015. G/A 19 weeks +- one weak. FHR positive. FM positive. AF adequate. Placental posterior and low lying.

EVIDENCE COLELCTED.

Two vaginal swabs for semen detection from PFSA.

ARTICLES HANDED OVER TO POLICE. 1. Two vaginal swabs for semen detection.

INITIAL OPINION.

After thorough examination of victim I was of the opinion. that she was 18-19 weeks pregnant. The report of gynecologist THQ Chishtian has already been endorsed and original report was handed to the victim's mother, however, two vaginal swabs were taken, sealed and sent to PFSA, Lahore for detection of semen. Her DNA test for vaginal swabs was not possible as she had washed her clothes and the time period between her examination and intercourse was about 20 days, however, she was referred to PFSA, Lahore for DNA test of fetus to know the paternity of the fetus if required by the police. Final opinion was pending till receiving the reports.

FINAL REPORT.

According to report No.PFSA2015-DNA4263 of PFSA, Lahore DNA analysis to know the paternity of the fetus.

Based on the DNA analysis, Muhammad Fayyaz cannot be excluded as being the biological father of questioned child because they share alleles at all the genetic marks tested. Based on DNA analysis Muhammad Farooq was excluded as being the biological father of the questioned child as they

Criminal Revision No. 38 of 2018. 5

do not share alleles at all the genetic markers tested. No seminal material was detected on vaginal swabs of Mumtaz Bibi. Keeping in view the report of PFSA, Lahore the father of questioned child is Muhammad Fayyaz. Original report of PFSA was handed over to the police. Exh.P-D is true copy of MLC No.28/2015 of Mst. Mumtaz Bibi, which is under my hand and bears my signatures and stamp.”

The prosecution also got Dr. Nasira Tariq, Gynecologist (PW-4) examined who stated that on 07.05.2015, she had examined Mst. Mumtaz Bibi (PW-7) and opined as under:-

INVESTIGATION.

Ultrasound.

A single pregnancy with oblique lie and cephalic presentation at the time of ultrasound with BPD 4.3 cm, femur length 3.1 cm, excepted date of delivery on ultrasound 29.09.2015. Gestational age 19 weeks plus two days + one week. Fetal heart rate positive, fetal movement positive. Liquor adequate placenta, anterior and left partly low lying. Final Opinion.

An active alive pregnancy of 19 weeks plus two days + one week.”

7.On 22.08.2016, the learned Assistant District Public Prosecutor gave up prosecution witness namely Naveed Ashraf 571/C as being unnecessary and on 05.12.2017 the learned Assistant District Public Prosecutor gave up prosecution witness namely Ahmad Ali as being unnecessary and closed the prosecution evidence.

8.After the closure of prosecution evidence, the learned trial court examined the appellant Fayyaz Ahmad son of Muhammad Yar, under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he stated that he had been falsely involved in the case Neither the appellant opted to get himself examined under Section 340(2) Cr.P.C nor adduced any evidence in his defence.

9.On the conclusion of the trial, the learned Addl. Sessions Judge, Chishtian convicted and sentenced the appellant as referred to above.

10.The contention of the learned counsel for the appellant precisely is that whole case is invented and untrue and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant further submitted that the appellant is quite innocent and has

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nothing to do with the alleged occurrence. He further submitted that the matter had been reported to the police with an inordinate delay. He further submitted that the prosecution has miserably failed to prove the charge against the appellant beyond the shadow of reasonable doubt and the learned trial court, while passing the impugned judgment of the appellant's conviction, has erred in law and facts of the case, which warrants interference by this court.

11.On the other hand, the learned Assistant District Public Prosecutor alongwith the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Assistant District Public Prosecutor alongwith the learned counsel for the complainant further submitted that there was no untoward delay in lodging the FIR. The learned Assistant District Public Prosecutor alongwith the learned counsel for the complainant further submitted that it was a heinous offence and exploited the victim's future by the appellant at the expense of his lust; that the victim was a lady and it cannot be expected from her to put her future at stake for the purpose to falsely implicate the appellant in this case for nothing; that delay in reporting the matter to the police has no adverse effect on fate of the prosecution case because in the cases where family honour is involved, immediate rushing to the police station for lodging the crime report and putting the honour at stake, is always difficult for anybody; that the medical evidence provided further corroboration to the ocular account; that the impugned judgment entailing the conviction and sentence of the appellant does not warrant interference by this Court. Lastly, the learned Assistant District Public Prosecutor alongwith the learned counsel for the complainant prayed for the rejection of appeal.

12.I have heard the learned counsel for the appellant, alongwith the learned counsel for the complainant, the learned Assistant District Public Prosecutor and with their assistance perused the record and evidence recorded during the trial carefully.

13.The learned Assistant District Public Prosecutor has stressed much upon the rule of appreciation of evidence that the sole statement of the victim can be taken into account to maintain the conviction and sentence of the appellant under the charge of rape. However, the said rule is applicable only when the same is found to be confidence inspiring and trustworthy. The

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self-contradictory statement of the victim is neither trustworthy nor confidence inspiring and, thus, the same is not worthy of any reliance. This Court has scrutinized the prosecution evidence with care. A perusal of the written application (Exh.PE) as submitted by Mst. Zadan Bibi (PW-5) on 11.05.2015 for the registration of the case reveals that the appellant was not named as an accused in the said application (Exh.PE). Two persons namely Muhammad Farooq and Mst. Faiz Elahi were named as accused in the application (Exh.PE) as submitted by Mst. Zadan Bibi (PW-5). It has also been noticed that the said application (Exh.PE) was filed after about 4/5 months of the occurrence and had not been lodged immediately. With this in mind that the F.I.R had been lodged after 4/5 months of the occurrence and at the time of filing the same, the complainant Mst. Zadan Bibi (PW-5) was in knowledge of all the facts, this Court has come to the conclusion that not naming the appellant namely Fayyaz Ahmad as an accused in the written application (Exh.PE) and in the statements recorded under section 161 Code of Criminal Procedure, 1898 of the witnesses namely Muhammad Amir (PW-6) and Mst. Mumtaz Bibi (PW-7), clearly establishes that the appellant namely Fayyaz Ahmad was involved after much deliberation and invention. In the application (Exh.PE), it had been clearly mentioned that it was Muhammad Farooq (neither summoned nor tried) who had been raping Mst. Mumtaz Bibi (PW-7) and it was Muhammad Farooq (neither summoned nor tried) who was alleged to had raped Mst. Mumtaz Bibi (PW-7) 4/5 days prior to the submission of the written application (Exh.PE). It had been further recorded in the written application (Exh.PE) that it was due to the rape by Muhammad Farooq (neither summoned nor tried) that Mst. Mumtaz Bibi (PW-7) had become pregnant. It has been noticed that when Mst. Mumtaz Bibi (PW-7) appeared before the Dr. Shaista Khalid, Woman Medical Officer (PW-3) for her medical examination on 07.05.2015, there again the history of the incident and of the pregnancy as provided to Dr. Shaista Khalid, Woman Medical Officer (PW-3) was mentioned as raped by Muhammad Farooq (neither summoned nor tried). Dr. Shaista Khalid, Woman Medical Officer (PW-3) in her statement recorded by the learned trial court stated as under:-

“According to her mother's statement the victim was mentally handicap so her mother gave history that a person named Farooq was used to

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commit Zina-bil-Jabar with her daughter off and on due to which she became pregnant. They came to know about all this about 20 days ago, since that he was unable to do Zina. Previous such incidence he was doing the same off and on for the last four months.” (emphasis supplied).

Similarly, Mst. Zadan Bibi (PW-5) admitted during cross-examination that it was only Muhammad Farooq (neither summoned nor tried) who had been saddled with the responsibility of raping Mst. Mumtaz Bibi (PW-7) and making her pregnant in her application submitted by her for the medical examination of Mst. Mumtaz Bibi (PW-7). Mst. Zadan Bibi (PW-5) during cross-examination admitted as under:-

“Application for medical examination of victim was moved with the thumb impression of myself and my daughter. It is correct that in said application I nominated Farooq as only accused.” (emphasis supplied).

Most importantly, Mst. Mumtaz Bibi (PW-7) during cross-examination herself admitted that in the application submitted for her medical examination only Muhammad Farooq (neither summoned nor tried) had been alleged to have raped her and making her pregnant. Mst. Mumtaz Bibi (PW-7) during cross-examination stated as under:-

“My medical examination was conducted on the order of learned Magistrate. It is correct that in application for medical examination I only nominated Farooq as accused.” (emphasis supplied).

All the above referred portions of statements of the prosecution witnesses clearly establishes the fact that the witnesses including Mst. Mumtaz Bibi (PW-7), had initially saddled Muhammad Farooq (neither summoned nor tried) with not only the responsibility of raping Mst. Mumtaz Bibi (PW-7) for the last many months but had also clearly stated that it was due to the rape by Muhammad Farooq (neither summoned nor tried) that Mst. Mumtaz Bibi (PW-7) became pregnant. As mentioned above, these statements by the witnesses were being made after due consideration and consultation and with substantial delay. In that manner, not naming the appellant as the one who had raped Mst. Mumtaz Bibi (PW-7) and as the one due to whose rape Mst. Mumtaz Bibi (PW-7) had become pregnant, has consequences resulting in the failure of the prosecution case against the appellant. The matter does not end here but the witnesses namely Mst. Zadan Bibi (PW-5), Muhammad

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Amir (PW-6) and Mst. Mumtaz Bibi (PW-7) in their statements recorded by the learned trial court continued with their allegation that it was Muhammad Farooq (neither summoned nor tried) who had been raping Mst. Mumtaz Bibi (PW-7) and it was due to the rape by Muhammad Farooq (neither summoned nor tried) that Mst. Mumtaz Bibi (PW-7) became pregnant. Mst. Zadan Bibi (PW-5) during her statement before the learned trial court stated as under:-

“Stated that my daughter Mst. Mumtaz Bibi aged 30 years is living with me. About 4/5 months prior to registration of FIR Mst. Faiz Elahi took my daughter Mst. Mumtaz Bibi with her on the pretext of attending natures call, she took her to the sugarcane crop of Hafiz Nazar, accused Muhammad Farooq was already present there with pistol who forcibly took Mst. Mumtaz Bibi and committed rape with her against her consent. Accused Muhammad Farooq also committed rape with Mst. Mumtaz Bibi against her consent several times after that. About 5/6 days prior to occurrence my daughter Mst. Mumtaz Bibi was present near tube well of Hafiz Nazar when accused Muhammad Farooq came there with a pistol, forcibly took her inside the tube well room and committed rape with her against her consent, Mst. Mumtaz Bibi returned home and told me about the occurrence in the presence of my son Muhammad Amir and Ahmad Ali PW and also that accused Muhammad Farooq had also previously committed rape with her several times and she has become pregnant. I alongwith P.Ws. approached the accused Muhammad Farooq who in the presence of P.Ws. admitted the commission of offence. I approached the court of learned Area Judicial Magistrate and on the order of Magistrate Mst. Mumtaz Bibi was medically examined. On 11.05.2015, I submitted application Exh.P-E against accused persons Muhammad Farooq and Mst. Faiz Elahi on which instant case was registered. (emphasis supplied).

Muhammad Amir (PW-6) during his statement before the learned trial court stated as under:-

“Stated that Mst. Mumtaz Bibi is my sister. About 4/5 months prior to registration of FIR Mst. Faiz Elahi took my sister Mst. Mumtaz Bibi with her on the pretext of attending natures call, she took her to the sugarcane crop of Hafiz Nazar, accused Muhammad Farooq was already present there with pistol who forcibly took Mst. Mumtaz Bibi and committed rape with her against her consent. Accused Muhammad Farooq also committed rape with Mst. Mumtaz Bibi against her consent several

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times after that. About 5/6 days prior to occurrence my sister Mst. Mumtaz Bibi was present near tube well of Hafiz Nazar when accused Muhammad Farooq came there with a pistol, forcibly took her inside the tube well room and committed rape with her against her consent. Mst. Mumtaz Bibi returned home and told my mother about the occurrence in my presence and in the presence of Ahmad Ali PW and also told her that accused Muhammad Farooq had also previously committed rape with her several times and she has become pregnant. I alongwith my mother and Ahmad Ali PW approached the accused Muhammad Farooq who in our presence admitted the commission of offence. My mother approached the court of learned Area Judicial Magistrate and on the order of Magistrate Mst. Mumtaz Bibi was medically examined. My mother submitted application against accused persons Muhammad Farooq and Mst. Faiz Elahi on which instant case was registered.” (emphasis supplied)

Mst. Mumtaz Bibi (PW-7) during her statement before the learned trial court stated as under:-

“Stated that prior to registration of FIR Mst. Faiz Elahi took me with her on the pretext of attending natures call, she took me to the sugarcane crop of Hafiz Nazar, accused Muhammad Farooq was already present there with pistol who forcibly took me inside the crops and committed rape with me against my consent. Accused Muhammad Farooq also committed rape with me against my consent several times after that. About 5/6 days prior to occurrence I was present near tube well of Hafiz Nazar when accused Muhammad Farooq came there with a pistol, forcibly took me inside the tube well room and committed rape with me against my consent, he threatened me that he would kill me if I disclosed it to anyone. I returned home and told my mother about the occurrence in the presence of Muhammad Amir and Ahmad Ali P.Ws. and also told her that accused Muhammad Farooq had been previously committing rape with me several times and I have become pregnant. My mother took me to learned Area Judicial Magistrate and on the order of Magistrate I was medically examined. My mother lodged FIR against accused persons Muhammad Farooq and Mst. Faiz Elahi.” (emphasis supplied).

In this manner, it is proved from the record that according to the witnesses it was Muhammad Farooq (neither summoned nor tried) who had been raping Mst. Mumtaz Bibi (PW-7) and Mst. Mumtaz Bibi (PW-7) had become pregnant with the child of Muhammad Farooq (neither summoned nor tried),

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however, during the course of investigation Muhammad Farooq (neither summoned nor tried) was declared to have been falsely involved. Moreover, according to Niaz Ahmad, ASI (PW-11), both Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-6) appeared before him and submitted their sworn affidavits (Exh.DA and Exh.DB) wherein they stated that they had involved the accused in the present case due to some misunderstanding and further stated that they did not want to proceed in the matter and had no objection to the cancellation of the case. The said sworn affidavits (Exh.DA and Exh.DB) were submitted on 25.05.2015 much later in time when the appellant had been named as an accused through written application (Exh.PF) dated 14.05.2015. More importantly, despite naming Muhammad Farooq (neither summoned nor tried) in their statements before the learned trial court, as being the one who had been raping Mst. Mumtaz Bibi (PW-7) for 4/5 months and due to being raped by him that Mst. Mumtaz Bibi (PW-

7)had become pregnant, was neither summoned nor tried by the learned trial court. The learned counsel for the complainant has been unable to explain as to why when Muhammad Farooq (neither summoned nor tried) had been alleged to be the one who had been raping Mst. Mumtaz Bibi (PW-7), that Muhammad Farooq (neither summoned nor tried) was never sought to be summoned and tried by the complainant. Mst. Mumtaz Bibi (PW-7), Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-6) did not draw any distinction with regard to the role of the appellant and Muhammad Farooq (neither summoned nor tried) during the occurrence while making their statements before the learned trial court. This Court is unable to find any independent corroboration of the prosecution case against the appellant and is unable to distinguish the case of the appellant from the case of Muhammad Farooq (neither summoned nor tried) as the prosecution evidence with regard to the appellant namely Fayyaz Ahmad and with regard to Muhammad Farooq (neither summoned nor tried) is similar. Mst. Mumtaz Bibi (PW-7), Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-6) themselves chose not to prosecute Muhammad Farooq (neither summoned nor tried) and I find no reason to believe their statements with regard to the appellant in absence of any reason to do so. This conduct on part of the of Mst. Mumtaz Bibi (PW-7), Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-6) with regard to Muhammad Farooq (neither summoned nor tried) has vitiated the trust of this Court in them. I am thus satisfied that the evidence

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of Mst. Mumtaz Bibi (PW-7), Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-6) has no worth and is to be rejected outright..

14.This Court has also noted with great concern that Mst. Zadan Bibi (PW-5) subsequently moved another application (Exh.PF) on 14.05.2015 wherein she proceeded to involve the appellant namely Fayyaz Ahmad in the occurrence but it has been noticed that Mst. Zadan Bibi (PW-5) while appearing before the learned trial court made dishonest and blatant improvements with regard to the source through which she had come to know about the involvement of the appellant in the case. Mst. Zadan Bibi (PW-5) was duly confronted with her application (Exh.PF) dated 14.05.2015 and the learned trial court observed as under:-

“I got recorded in my application Exh.P-F that after registration of FIR I returned home and inquired from my daughter Mst. Mumtaz Bibi as she is a simple girl and she told in the presence of said P.Ws. that accused Muhammad Fayyaz has been committing rape with her alongwith accused Muhammad Farooq, confronted with Exh. P-F where it is not so recorded.” (emphasis supplied).

Similarly, Muhammad Amir (PW-6) also made deceitful and obvious improvements with regard to the source through which he had come to know about the involvement of the appellant in the case. Muhammad Amir (PW-6) was duly confronted with his statement recorded by the police on 14.05.2015 (Exh.DB) and the learned trial court observed as under:- “My statement was recorded at police station after registration of FIR and on 14.05.2015. I got recorded in my statement before police on 14.05.2015 that after registration of FIR we returned home and my mother inquired from my sister Mst. Mumtaz Bibi as she is a simple girl and she told in the our presence that accused Muhammad Fayyaz has been committing rape with her alongwith accused Muhammad Farooq (since not challaned), confronted with Exh.D-B where it is not so recorded.” (emphasis supplied).

The said improvements made by Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-6) were substantial and were made with regard to crucial aspects of the prosecution case. Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-6) introduced improvements in their statements with regard to the source through which the came to know about the involvement of the

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appellant in the occurrence. By improving their previous statements, Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-6) impeached their own credit. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under: - “151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:

(1)by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit;

(2)by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence ;

(3)by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;”

As Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-6) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-

6)cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of “Muhammad Ashraf Vs. State” (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. This Court is satisfied that the evidence of Mst. Zadan Bibi (PW-

5)and Muhammad Amir (PW-6) has no intrinsic worth and is to be rejected out rightly. The august Supreme Court of Pakistan in a recent case reported as “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“Once the Court comes to the conclusion that the eye witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence”.

The august Supreme Court of Pakistan in the case reported as Muhammad Arif Vs. The State (2019 SCMR 631) has enunciated the following principle:

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“It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge.”

15.The learned Assistant District Public Prosecutor has also laid much stress upon the report of the Punjab Forensic Science Agency, Lahore (Exh.PL/1-4), wherein it had been determined that the child born to Mst. Mumtaz Bibi (PW-7) was fathered by the appellant. In Chapter 17 ‘Examination of Biological Stains and Hair”, from page 430 to page 440 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) it has been discoursed as under:-

" DNA PROFILING (DEOXYRIBONUCLEIC ACID

TYPING)

General-

Life on earth is based on cells; Cell is the basic unit of life. There are around trillions of cells in a human blood. Every cell has a nucleus (except the RBCS); Inside the nucleus which is considered to be the central processing unit of the cell, 23 pairs of chro-mosomes are present. Twenty-two pairs of autosomal chromosomes and one pair of sex chromosomes (XX in females and XY in males). Chromosomes carry linearly arranged genetic units, which are materially referred as Deoxyribonucleic Acid (DNA). There are about 3 billion nucleotides in human DNA. Human DNA is approximately 2 metres long if it is place end to end from 46 chromosomes of a single cell. DNA is present in coiled and super coiled form in the cell. The super coiled structures are known as the chromosomes. This DNA contains genetic information which decides the phenotypic character (height, skin colour, eye colour, hair colour, etc) of an individual. The DNA carries the genetic information from parents to offspring, being half of the DNA from mother and the other half from father. The DNA carries all the information to make proteins (hormones, antibodies, enzymes and structural proteins like actin, myosin, keratin, tubuline) for proper functioning of the body. Another class of DNA present in human cell is the mitochondrial DNA which is present in the cell organelle mitochondria. Unlike nuclear DNA mitochondrial DNA is maternally inherited because the mitochondria of sperm are present in the tail and the tails is digested by hyluronic acid present around the egg cell at the time of fertilisation. The DNA is the genetic material that makes every individual different, except for genetically identical twins. A pattern of chemical signals ie, genetic code, has been discovered within the DNA molecule, which is very unique to each individual, just like their actual fingerprint. Thus, the DNA profiling, unique to each individual, is colloquially referred to as 'DNA Fingerprinting' and it is also known as DNA typing. The companies who offer the DNA profiling claim that a

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DNA match of two individuals is as unlikely as 1 in 30 billion. One more estimation puts it at 1 in 800, 000, 000 The chemical DNA was first discovered in 1869, but its role in genetic inheritance was not demonstrated until 1943. In 1944, Oswald Avery made the breakthrough discovery that DNA is the basic genetic material. A few years later, in 1953, James Watson and Francis Crick determined that the structure of DNA is a double-helix polymer, a spiral consisting of two DNA strands wound around each other. The technique of DNA Fingerprinting was 229 first developed in 1984 by Dr Alec Jeffreys from Britain. Since then, increasing attention has been paid around the world to the use of DNA profiling for individualisation purposes in criminal and allied cases. Paternity testing is another important use through DNA since 1988. The use of Restriction Fragment Length Polymorphism (RFLP) analysis of minisatellites or Variable Number of Tandem Repeat (VNTR) loci scattered along the chromosomes has spread interest among the medico legal professionals. The use of microsatellites or Short Tandem Repeats (STRs) also gained momentum with the passing years. These are consecutive repeats that are abundantly found in DNA. In contrast to 100-200 bps length of RFLPS and VNTRs, the STRS are of a smaller length of 2-10 bps. The short size of STRS is particularly useful if the sample is degraded or with Low Copy Number (LCN) DNA. Such degraded or fragmented DNA is encountered in samples that have been exposed to hostile external environment conditions like sunlight, heat, excessive salt etc. The traditional techniques like RFLP and VNTRS are not very helpful in such cases. The variants of STRS including Autosomal STR, MINI-STR, Y-STR and X-STR have immensely contributed to the forensic field. Three types of results are possible after comparing the question sample (Q) and the known sample (K) in cases of autosomal, Y and X STR markers analysis. These are-(1) Exclusion This result is produced when the STR haplotypes are different and could not have originated from the same source. (2) Inclusion (or failure to exclude)- This result is produced when STR haplotypes that result from Q-K comparison are the same and could have originated from the same source. (3) Inconclusive:-The result is inconclusive when the data are insufficient to render an interpretation or in other words ,ambiguous results are obtained.

The Autosomal STR markers: are commonly used to establish identity and settle paternity disputes. They are studied on all the 22 pairs of autosomes to avoid linkage issues within the markers.

Samples required for DNA profiling. Any biological material such as a drop of blood, saliva, semen, and any body part such as bones, tissue, skull, teeth, and hair with the root found at the scene of crime may serve as a sample for DNA profiling. The CDFD gives the following guidelines about collecting samples:

(i)Maternity/paternity/parentage: Blood samples of mother, disputed child and alleged father are required. The blood samples (2 - 3ml) can be collected in the sterile blood collection material (EDTA vials) sent by the laboratory, in the presence of Court authorities. These samples should be sent in ice in a thermos flask either by a messenger or through courier, so as to reach the laboratory within 72 hours after collection.

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(ii)Identity of the deceased: Any body part of the deceased found at the scene of crime along with the blood samples of the blood relatives of the suspected individuals (viz., parents, and children) should be sent.

(iii)Identity of rape/rapist: Blood / semen stained clothes, garments, swabs, and slides of the victim and the accused is forwarded to the laboratory.

Problems linked with DNA profiling. One of the lasting effects of the OJ Simpson case will likely be greater scrutiny by defence lawyers of the prosecution's forensic DNA presented in criminal cases. In the Simpson case, the defence, in essence, put the crime evidence laboratory on trial. There is no substantial dispute about the underlying scientific principles in DNA profiling, however, the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry.

Although, there is a common consensus within the scientific community that DNA profiling can yield results with a very high probability, the complex procedure of DNA profiling is not without problems. At every phase of the seven-step procedure just described, mistakes and improper handling of the DNA-probe can produce false results which in some cases can lead to a life sentence or even death-penalty judgement. Therefore, the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry.

Furthermore, the DNA samples can be mixed up by the police or the laboratory personnel (this actually took place in one case) or the amount of DNA can be insufficient. The various contaminants include microbes, fibres, concrete, soil, vegetable matter, other body fluids besides foreign DNA from field agents and laboratory workers. It can be avoided by handling the forensic evidence at a place that is segregated from the , where amplication of the sample is to be conducted. If the sample is accidentally mixed with foreign DNA before amplification, the contaminant will also get amplified resulting in mixed profiles at the time of STR analysis. Secondly, a significant 'source of error' is the incomplete digestion of the DNA by the restriction enzymes. The other extreme can be an over-digestion also called 'star activity'. Thirdly, a 'band shift' can occur, meaning that the DNA fragments which are put in several lanes next to each other can influence each other's mobility, thus causing wrong results of the gel electrophoresis. In connection with the problem of 'band shift', the gel electrophoresis itself may not be conducted properly, i.e., the voltage can be too low or too high or the concentration of the gel can be incorrect. Finally, the expert who determines a match can be biased ”.

There is unanimity among scientists and lawyers that DNA identification is capable of producing reliable results. In Salman Akram Raja and another v. Government of Punjab through Chief Secretary, and others (2013 SCMR 203), the august Supreme Court of Pakistan observed: "In this regard it is to be noted that the administration of DNA test in order to determine the truthfulness of the allegation of crime is not new. Initially the DNA was not so reliable, therefore, the Courts often

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excluded it from the evidence and did not base the conviction on it. However, in the last decade or so the DNA technology has significantly advanced and introduction of DNA profiling has revolutionized forensic science. Now DNA test provides the Courts a mean of identifying perpetrators with a high degree of confidence. By using the DNA technology the Courts are in a better position to reach at a conclusion whereby convicting the real culprits and excluding potential suspects as well as exonerating wrongfully involved accused. (sic) Reference may be made to the case of United States v. Yee (134 F.R.D. 161), wherein conviction was recorded on the basis of DNA test results."

In our legal framework DNA evidence is evaluated on the strength of Articles 59 and 164 of the Qanun-e-Shahadat, 1984 (QSO). The former provision states that expert opinion on matters such as science and art falls within the ambit of 'relevant evidence'. On the other hand, the latter provision provides that the Court may allow reception of any evidence that may become available because of modern devices and techniques. Under this regime the technician who conducts experiment to scrutinize DNA evidence is regarded as an expert whose opinion is admissible in Court. Subsection (3) of Section 9 of the Punjab Forensic Science Agency Act, 2007, reaffirms this legal position when it enacts that "a person appointed in the Agency as an expert shall be deemed as an expert appointed under Section 510 of the Code [of Criminal Procedure, 1898] and a person specially skilled in a forensic material under Article 59 of the Qanun-e-Shahadat, 1984 (P.O. X of 1984)." A combined reading of all these provisions shows that the report of the Punjab Forensic Science Agency regarding DNA is per se admissible in evidence under Section 510, Cr.P.C. Reliance is placed on “Muhammad Sohail alias Samma and others v. The State and others” (2019 PCr.LJ 1652). Nevertheless, it must be noted, there is no express provision like Article 128 of the Qanun-e-Shahadat Order foreclosing admissibility of evidence by articulating a conclusive presumption as in paternity disputes. Since DNA is reckoned as a form of expert evidence in criminal cases, it cannot be treated as primary evidence and can be relied upon only for purposes of corroboration. This implies that no case can be decided exclusively on its basis if there is no primary piece of evidence, like oral evidence. Credibility of the DNA test inter alia depends on the standards employed

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for collection and transmission of samples to the laboratory. Safe custody of the samples is pivotal. Thus, in every case the prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the said chain or lapse in the control of the sample would make the DNA test report unreliable. In The People v. O.J. Simpson the famous U.S. footballer was accused of slitting throat of his ex-wife Nicole Brown Simpson, and knifing to death her friend, Ronald Goldman. The prosecution's case was essentially based on DNA evidence but the Court rejected it when it was found that the Los Angeles Police Department had made serious mistakes in handling it. In the same vein in “Ikramullah v. The State” (2015 SCMR 1002), “The State through Regional Director ANF v. Imam Bakhsh and others” (2018 SCMR 2039) and “Khair-ul-Bashar v. The State” (2019 SCMR 930) the august Supreme Court of Pakistan refused to rely on the report of the Government Analyst and set aside conviction in narcotics cases when the prosecution could not establish safe transmission of the samples from the place of recovery to the laboratory.

16.It has been noticed by this Court that Mst. Mumtaz Bibi (PW-7) as well as Mst. Zadan Bibi (PW-5) and Muhammad Amir (PW-6), in their statements recorded during the investigation of the case as well as by the learned trial court, clearly stated that Mst. Mumtaz Bibi (PW-7) had become pregnant because of being raped by Muhammad Farooq (neither summoned nor tried). Though subsequently, during the trial, the same allegation was also levelled against the appellant but it is obvious that Mst. Mumtaz Bibi (PW-7) could have become pregnant after being raped either by Muhammad Farooq (neither summoned nor tried) or the appellant and not both. In this regard, when Mst. Mumtaz Bibi (PW-7) herself stated that she had become pregnant due to Muhammad Farooq (neither summoned nor tried), then the report of the Punjab Forensic Science Agency, Lahore (Exh.PL/1-4) offers no corroboration of the prosecution evidence. Furthermore, this Court has noticed that according to the report of Punjab Forensic Science Agency, Lahore (Exh.PL/1-4), buccal swabs standards of a child were taken on 31.07.2015, however, during the course of trial, no evidence has been brought on record as to when the said child (now dead) was taken to Punjab Forensic Science Agency, Lahore for the purposes of determination of his

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paternity. Furthermore, according to Mst. Mumtaz Bibi (PW-7), the child died but she did not provide the date as to when the said child was born or the date as to when the said child died, putting in doubt the whole circumstances in which the buccal swabs standards were procured by the Punjab Forensic Science Agency, Lahore. Manzoor Akmal, S.I (PW-10) stated that he received the information on 27.07.2015 that a child had been born to Mst. Mumtaz Bibi (PW-7) and after receiving the said information he went to THQ Hospital, Chishtian to determine the said fact of the birth of the now dead child, however, the Medico Legal Examination Certificate taken into possession by Manzoor Akmal, S.I. (PW-10) was never produced before the learned trial court so as to prove that when the said child was born,whether it was dead or alive at the time of his birth , if born alive when the child died and when he was taken to Punjab Forensic Science Agency, Lahore and by whom. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 provides as under:-

“(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;”

This Court thus presume the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that had Medico Legal Examination Certificate procured by Manzoor Akmal, S.I. (PW-10) been produced before the learned trial court then it would have not supported the prosecution case. In the instant case, as mentioned above the prosecution did not lead any evidence to prove that which child was sent to Punjab Forensic Science Agency, Lahore and when he was taken there and by whom. The police official who took the said to the Punjab Forensic Science Agency, Lahore was also not examined. In the absence of such evidence the DNA test report lacks credibility. The Federal Shariat Court in “Yousuf and another v. The State” (1995 PCr.LJ 1739) and a Division Bench of the Sindh High Court in "Shakir Muhammad alias Shakeel and another v. The State" (2019 PCr.LJ Note 120) also discarded such report on this ground. Furthermore, it is trite that medical evidence is a

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confirmatory piece of evidence and cannot be a substitute for primary evidence. It cannot identify the culprit. Reliance is placed on “Mursal Kazmi alias Qamar Shah and another v. The State” (2009 SCMR 1410) and “Hashim Qasim and another v. The State” (2017 SCMR 986). It is a well-established principle of administration of justice in criminal cases that finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. Reliance is placed on the case of “IBRAR HUSSAIN and others Versus THE STATE and another” (2007 SCMR 605), wherein, the august Supreme Court of Pakistan has held as under:- “It is a settled law that in rape/Hudood cases conviction can be awarded on the sole testimony of the victim subject to the condition that the statement of victim must inspire confidence. In the present case as mentioned above the statement of the victim is not inspiring-confidence at all and this fact was not considered by both the Courts below in its true perspective and the principle laid down by this Court in various pronouncements. We are pained to note that both Courts below had given benefit of doubt to the prosecution in violation of principle laid down by this Court in various pronouncements. It is a settled law that benefit of doubt always be given to the accused and this principle was violative by the Courts below.”

17.This Court has also observed that despite the fact that Mst. Mumtaz Bibi (PW-7) was being raped for four to five months prior to the occurrence, however, the matter was not reported to the police by Mst. Mst. Mumtaz Bibi (PW-7) or the witnesses for that long a duration. There is a haunting delay in reporting the matter to the police which casts a shadow of doubt upon the whole prosecution case and in absence of very strong circumstances pointing towards the guilt of the appellant, no implicit reliance can be placed upon the statement of Mst. Mst. Mumtaz Bibi (PW- 7). There was no reason for Mst. Mst. Mumtaz Bibi (PW-7) or the other witnesses not to have reported the matter of Mst. Mumtaz Bibi (PW-7) being raped. This failure of Mst. Mumtaz Bibi (PW-7) and her relatives to report her rape and pregnancy in itself is sufficient to denude the lack of any substance in the prosecution case against the appellant. The august Supreme Court of Pakistan in the case of “Abdul Khaliq Vs. The State” (1996 SCMR 1553) has held as under:

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“It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nill unless there is plausible explanation for such delay”.

The august Supreme Court of Pakistan in the case of “Muhammad Khan Vs. Maula Bakhsh” (1998 SCMR 570) has held as under:

“It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C is recorded with delay without offering any plausible explanation”.

The august Supreme Court of Pakistan in the case of “Syed Saeed Muhammad Shah and another Vs. The State” (1993 SCMR 550) at page 571 has held as under:

“In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation”.

18.Considering all the above circumstances, this Court entertains serious doubt regarding the involvement of Fayyaz Ahmad son of Muhammad Yar (appellant), in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be so many circumstances rather if only a single circumstance, creating reasonable doubt in the mind of a prudent person, is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The zeal to punish an offender even in derogation or violation of the law would blur the distinction between arbitrary decisions and lawful judgments. No doubt, duty of the courts is to administer justice; but this duty is to be performed in accordance with the law and not otherwise. The mandatory requirements of law cannot be ignored by labelling them as technicalities in pursuit of the subjective administration of justice. One guilty person should not be taken to task at the sacrifice of the very basis of a democratic and civilized society, i.e., the rule of law. Tolerating acquittal of some guilty whose guilt is not proved under the law is the price which the society is to pay for the protection of their invaluable constitutional right to be treated in accordance with the law. Otherwise, every person will have to bear peril of being dealt with under the personal whims of the persons sitting in executive or judicial offices, which they in their own wisdom and subjective assessment consider good for the society. The august

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Supreme Court of Pakistan in the case of “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan “Muhammad Akram Vs. the State” (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra:

“It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”

19.For what has been discussed above, the instant Criminal Appeal No.102-J of 2018 lodged by Fayyaz Ahmad son of Muhammad Yar (appellant) is allowed and the conviction and sentence of the appellant Fayyaz Ahmad son of Muhammad Yar awarded by the learned Additional Sessions Judge, Chishtian, vide judgment dated 07.02.2018 are hereby set-aside. Fayyaz Ahmad son of Muhammad Yar (appellant) is ordered to be acquitted by extending him the benefit of doubt. The appellant namely Fayyaz Ahmad son of Muhammad Yar is in custody, hence it is directed that he be released forthwith if not required in any other case. The disposal of the case property shall be as directed by the learned trial court, in the impugned judgment.

20.Pursuant to the discussion made and conclusions arrived at above, the Criminal Revision No. 38 of 2018, seeking the enhancement of the sentence of the accused namely Fayyaz Ahmad son of Muhammad Yar, is hereby dismissed.

(SADIQ MAHMUD KHURRAM)

JUDGE

Rashid Approved for Reporting

Judge