Sajid Hussain vs State etc.

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

JUDICIAL DEPARTMENT

Criminal Appeal No. 434 of 2025.

(Sajid Hussain Vs. The State and another)

JUDGMENT

Date of hearing: 10.11.2025.

Appellant by: Ms. Maha Azam, Advocate.

State by: Mr. Naveed Ijaz, Deputy District Public Prosecutor .

Complainant by: Mr. Imran Haider, Advocate.

SADIQ MAHMUD KHURRAM, J. Sajid Hussain son of Ghulam Rasool (convict) was tried by the learned Additional Sessions Judge/Special Court Kabirwala in case F.I.R. No.383 of 2022 dated 17.07.2022, registered at Police Station Nawan Sheher, District Khanewal, in respect of an offence under section 376 of the Pakistan Penal Code, 1860. The learned trial court vide judgment dated 11.04.2025 convicted Sajid Hussain son of Ghulam Rasool (convict) and sentenced him as infra:-

Sajid Hussain son of Ghulam Rasool:- Rigorous Imprisonment of Ten years under section 376(1) of Pakistan Penal Code, 1860 and directed to pay fine of Rs.100,000/-, and in case of default of payment of fine, the convict was directed to further undergo simple Imprisonment of three months.

The convict was also directed to pay compensation of Rs.500,000/- under section 544-A of the Code of Criminal Procedure, 1898 to the victim and in case of default of payment of fine, the convict was directed to further undergo simple Imprisonment of six months.

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The benefit available under Section 382-B of Code of Criminal Procedure, 1898 was extended to the convict by the learned trial court

2.Feeling aggrieved, Sajid Hussain son of Ghulam Rasool (convict) lodged the instant Criminal Appeal No.434 of 2025, assailing his conviction and sentence.

3.The brief facts of the prosecution case, as stated by Kiran Shahzadi (PW-3), the victim of the case, in her statement before the learned trial court, are as under:-

“Stated on 16.07.2022 at about 08.00 PM I went to accused Sajid Shah (present in the court) for charity because of illness of my mother. Accused Sajid Shah told me for wait. Accused Sajid Shah hold his pistol and two unknown accused persons were also came there with their weapons. Accused Sajid Shah extended threats me of dire consequences. Accused Sajid Shah dragged inside room and committed zina with me. I tried to save me and make hue and cry. Meanwhile, PWs Ashraf and Akram reached there. They wore my dress to me. Accused persons also extended threats to the PWs for dire consequences. PWs escorted me to my house. I along with PWs told me about the occurrence to my father Nazar Hussain complainant. In the morning of 17.07.2022, we obtained orders for my medical examination. On application Exh.PB which bears my signatures thumb impression Exh.PB/1. I was medically examined by the WMO. After registration of FIR police recordd my statement. I also recorded my statement U/Sec 164 Cr.P.C Cr.P.C before learned Area Magistrate. Accused Sajid Shah is my real culprit, he be punished as per law.”

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 accused was sent to face trial. The learned trial court framed the charge against the accused on 18.10.2023, to which the accused pleaded not guilty and the learned trial court proceeded to examine the prosecution witnesses.

5.The prosecution in order to prove its case got statements of as many as nine witnesses recorded. Kiran Shahzadi (PW-3), the prosecutrix, narrated the facts of the occurrence. Nazar Hussain (PW-1) stated that he was

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told of rape by Kiran Shahzadi (PW-3) and thereafter he submitted the written application (Exh.PA) for the registration of the F.I.R. Muhammad Ashraf (PW-2) stated that on 16.07.2022 he and the other witnesses got Kiran Shahzadi (PW-3) released from the house of the appellant . Jehangir Badar 1255/HC (PW-4) stated that on 17.07.2022, he got recorded the formal F.I.R.

(Exh.PA/1). Muhammad Bilal ASI (PW-5) investigated the case on 07.09.2022 and detailed the facts discovered during the investigation of the case in his statement before the learned trial court. Mazhar Abbas A.S.I. (PW-

6)investigated the case from 17.07.2022 till 12.08.2022 and detailed the facts discovered during the investigation of the case in his statement before the learned trial court. Imran Raza, ASI (PW-7) investigated the case from 25.10.2022 till 05.02.2023 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. Adeeba Ishfaq (PW-8) examined, who on 17.07.2022 was posted at THQ Kabirwala and on the same day, conducted the medical examination of the victim namely Kiran Shahzadi (PW-3). Dr. Adeeba Ishfaq (PW-8) , after examining Kiran Shahzadi (PW-3), observed as under:-

“According to victim, she went to house of accused (Sajid) to collect financial help at about 09:00 PM on 16.7.2022 when he with help of guard forced her on gun point for rape. Rape was attempted by one person and then she was rescued on her screening by nearby people. According to her, incident took place on 16.7.2022 at 09:30 PM at Salar Van.

After examination, I kept final opinion reserved till receiving of report of PFSA. I issued carbon copy of MLC No.59/22 Ex.PE which is in my hand and bears my signatures. I also endorsed injury statement Ex.PE/1.

FINAL OPINION

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I also received PFSA report Ex.PF comprising upon three pages Ex. PF/1-

3.According to report of PFSA, I am of the opinion that rape has been done according to victim.”

The prosecution also got Dr. Muhammad Nabeel Saleem (PW-9) examined who stated on 07.09.2022, he, as the Chairman of the District Standing Medical Board , examined the appellant and gave the opinion as under:- “Opinion of DSMB

After complete physical and mental, genital examination and Cremasteric reflex, all the members of DSMB were of the opinion that there was nothing to suggest that he cannot perform sexual act. ”

7.On 08.11.2024, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Sherbaz Khan as being unnecessary.

On 21.12.2024, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Dr. Naveed Iqbal as being collusive with the accused. On 01.02.2025, the learned Assistant District Public Prosecutor closed the prosecution evidence .

8.The learned trial court also recorded the statement of Muhammad Ahsan Butt (CW-1) who stated that he had conducted the DNA analysis of the items submitted to the Punjab Forensic Science Agency, Lahore and had issued the reports (Exh.PF and Exh.PF/1-2).

9.After the closure of prosecution evidence, the learned trial court examined the appellant Sajid Hussain son of Ghulam Rasool, under section 342 Cr.P.C. and in answer to the 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. The appellant did not opt to get himself examined under section

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340(2) Cr.P.C however produced documents (Exh.DX to Exh.DAA) as evidence in his defence.

10.On the conclusion of the trial, the learned Additional Sessions Judge/Special Court Kabirwala, convicted and sentenced the appellant as referred to above.

11.The contention of the learned counsel for the appellant precisely was that whole case was 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 was quite innocent and had nothing to do with the alleged occurrence. He further submitted that the prosecution had miserably failed to prove the charge against the appellant beyond a reasonable doubt and the learned trial court, while passing the impugned judgment of the appellant's conviction, had erred in law and facts of the case, which warranted interference by this Court.

12.On the other hand, the learned Deputy District Public Prosecutor alongwith the learned counsel for the complainant, contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy District Public Prosecutor along with the learned counsel for the complainant further submitted that there was no untoward delay in lodging the F.I.R. The learned Deputy District Public Prosecutor alongwith the learned counsel for the complainant further

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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 had no adverse effect on fate of the prosecution case because in the cases where family honour was involved, immediate rushing to the police station for lodging the crime report and putting the honour at stake, was 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 did not warrant interference by this Court. Lastly, the learned Deputy District Public Prosecutor alongwith the learned counsel for the complainant, prayed for the rejection of the appeal.

13.We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy District Public Prosecutor and with their assistance, carefully perused the record and evidence recorded during the trial.

14.The learned Deputy 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 said statement of the prosecutrix is found to be confidence inspiring and trustworthy. The self-contradictory statement of Kiran Shahzadi (PW-3), recorded during the trial of the case by the learned trial court, is neither

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trustworthy nor confidence inspiring and thus, the same is not worthy of any reliance. The very first flaw of the prosecution case which is obvious, is that though according to the prosecution witness namely Kiran Shehzadi (PW-3) , she had been raped by the appellant on 16.07.2022 at about 10 pm and while she was present inside the house of the appellant, after she had been raped,she was got rescued by Mohammad Ashraf (PW-2) and Mohammad Akram(not produced) , Mohammad Ashraf (PW-2) ,in his statement ,claimed that he and Mohammad Akram(not produced) had got Kiran Shehzadi (PW-3) rescued from the house of the appellant already at about 08.00 p.m. During cross- examination, Kiran Shehzadi(PW-3),stated as under :-

“I have got recorded that accused asked me to wait for about one hour and thereafter he would give her aid. I have got mentioned in application Ex.PB that accused made sit me at his Dera till 10:00 PM. Till the departure of all guests, I remained present at Dera of accused. I in presence of guests while, was wearing Burqa and remained present there. I cannot tell the number of guests sitting at Dera of accused Sajid Hussain. During the 08 O' Clock to 10 PM different persons came at Dera as well as left said place. I do not know as to whether said guests also used the same gate from where I entered inside the Dera. ” Contradicting the statement of the prosecution witness namely Kiran Shehzadi (PW-3) as to the time of the incident itself, Mohammad Ashraf (PW-2) stated that it was on 16th July, 2022 at about 8pm ,when he and Mohammad Akram(not produced) were passing from outside of the house of the appellant, that they heard the hue and cry of Kiran Shehzadi (PW-3) , upon which they entered inside the house of the appellant and then Kiran Shehzadi (PW-3) besieged them to save her from the appellant,however, they were stopped by two unknown accused persons,both armed with firearms, but still they were allowed to take Kiran Shehzadi (PW-3) along with them from the house of the appellant and then all three, namely Kiran Shehzadi (PW-3) , Mohammad

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Ashraf (PW-2) and Mohammad Akram (not produced), went to the house of Nazar Hussain (PW-1) , the father of Kiran Shehzadi (PW-3) and there they told him about the incident. Mohammad Ashraf (PW-2) made the following statement before learned trial court:-

“Stated that on 16.07.2022 at about 08.00 PM I along with Muhammad Akram came back from orchard of mangoes when we passing through near the house (in said house only accused residing) of the accused Sajid Hussain accused present in the court we heard hue and cry of victim Kiran Shahzadi. We entered in the house, upon seeing us victim beg us to save her. Two unknown accused persons armed with weapons stopped us. We beseeched them and worn the dress of the victim and take her and took her to her house and told her father about the occurrence. Accused is real culprit. He be punished as per law.”

The contradiction in the time of the incident itself is more than apparent by the perusal of the above reproduced statements of Kiran Shahzadi (PW-3) and Muhammad Ashraf (PW-2) in the manner that according to Kiran Shahzadi (PW-3) , the incident had taken place at 10 p.m. on the night of 16-07-2022, whereas according to the statement of Muhammad Ashraf (PW-2) , he and Mohammad Akram (not produced) had already got released Kiran Shahzadi (PW-3) from the house of the appellant at about 8 p.m.This contradiction in the statements of Kiran Shahzadi (PW-3) and Muhammad Ashraf (PW-2) is vexing to note and, more importantly, in the circumstances of the case, creates a huge doubt with regard to the veracity of the said statements and has led us to the conclusion that the very time of the incident could not be proved.

15.We have noted with deep concern that the matter related to the time of the incident was brought into further doubt by the statement of Nazar Hussain (PW-1) ,the complainant of the case who stated not only this that he had already got the information from the witnesses as well as Kiran Shehzadi (PW-

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3)regarding the incident , at 8 p.m. on 16-07-2022, but he also stated that Kiran Shehzadi (PW-3) had reached his house at 9.30 a.m. on 16-07-2022, and thereafter, they went to the police station at night time. During cross- examination ,Nazar Hussain (PW-1) stated as under :-

“Kiran Shehzadi on 16.7.2022 reached my house at 09:30 AM and on the same night we went to police station. Police officials refused to initiate any proceedings and thereafter we returned to home and on the following day we again went to police station.”

This statement of Nazar Hussain (PW-1), that Kiran Shahzadi (PW-3), had arrived at his house on 16-7-22 at 9.30 a.m. makes the whole prosecution case further doubtful with regard to the very time of the incident when the same had taken place. As mentioned above, according to the statement of Kiran Shahzadi (PW-3) , she had gone to the house of the appellant on 16-7-22 at 8.00 p.m. and thereafter, she remained there till 10.00 p.m. and it was at that time when she was raped and subsequently rescued by the witnesses namely, Muhammad Ashraf (PW-2) and Mohammed Akram( not produced), whereas according to the statement of Mohammed Ashraf (PW-2) , he and Mohammed Akram (not produced) had already rescued Kiran Shehzadi (PW-3) from the house of the appellant at 08.00 p.m., when according to Kiran Shehzadi (PW-

3),she had only arrived there at 08.00 p.m.and the incident had taken place subsequently , after about two hours whereas, as mentioned above, Nazar Hussain (PW-1) had an entirely different time to give regarding the incident and stated that Kiran Shahzadi (PW-3) had already arrived at his house at 09.30 a.m. in the morning of 16.07.2022, after the incident had taken place.All these contradictions in the time of the incident have been brought on record during the statements of the prosecution witnesses themselves and the learned

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counsel for the complainant is unable to explain these contradictions. More importantly, when contradictions in the statements of the prosecution witnesses are present with regard to the very time of the incident, then obviously the remaining part of the case also has suffered and, in this case, terminally. It is a well-established principle of administration of justice in criminal cases that a 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 the guilt of the accused 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.”

16.We have also noted that despite the implausibility of the statement of Muhammad Ashraf (PW-2) that he as well as Muhammad Akram (not produced) were successful in not only entering the house of the appellant in the presence of two unknown accused persons, who were also armed with firearms, and got released Kiran Shahzadi (PW-3) from the house of the appellant, it also

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is a fact that according to the statement of Mazhar Abbas ASI (PW-6) , who investigated the case after the incident, according to the unscaled site plan of the occurrence (Exh.PC) as prepared by him, the presence of Muhammad Ashraf (PW-2) and Muhammad Akram ( not produced) had been shown outside the main gate at point number 2 in the said site plan (Exh.PC) and the said witnesses never even were able to enter the house or the room where the incident had taken place .During cross-examination of Mazhar Abbas ASI (PW- 6),the Investigating Officer of the case , stated as under :- “I prepared rough site plan Ex.PC on pointation of complainant and PWs. I have shown point no.1 in rough site plan Ex.PC, where present occurrence took place. The door of the room where I have shown point no.1 open towards South.

I have shown point no.3 in my rough site plan, where PWs were present. It is correct that in between marginal points no.3 and 1, there was door and walls of the room and house. Said marginal point no.3 was located outside of main gate of house and was situated on a Katcha Path. I have shown point no.2, where allegedly two unknown accused stood as guards.” (emphasis supplied)

17.Another crucial aspect of the case is that, according to the statement of Dr. Adiba Ishfaq (PW-8) , who had medically examined Kiran Shehzadi (PW-3) , on 17-07-2022, at the time of the medical examination, she recorded the statement of Kiran Shehzadi (PW-3) regarding the history of the incident and in her statement, Kiran Shehzadi (PW-3) she told Dr. Adiba Ishfaq (PW-

8)that only an attempt to rape her had been made. In her statement recorded by the learned trial court, Dr. Adiba Ishfaq (PW-8) stated as under :- “Rape was attempted by one person and then she was rescued on her screening by nearby people.

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It is correct that in history, I have mentioned word rape was attempted” There is no allegation against Dr. Adeeba Ishfaq (PW-8) that at the time of Medico Legal Examination of Kiran Shahzadi (PW-3), Dr. Adeeba Ishfaq (PW-8) recorded the history of the occurrence on her own or that she recorded it incorrectly or with any malafide. There was no reason for the victim, namely Kiran Shahzadi (PW-3) not to have narrated that she had been raped and it was not an unsuccessful attempt only, while narrating the said history of the occurrence to Dr. Adeeba Ishfaq (PW-8). Imran Raza ASI (PW-7), who also investigated the case, also arrived at the conclusion that the rape of Kiran Shahzadi (PW-3) could not be proved and stated during cross-examination as under :-

“During my investigation I formulated opinion that due to thickly pupated area where alleged occurrence took place,no substantial evidence regarding Zina bil Jabar was found available.”

These facts also raise doubts with regard to the involvement of the appellant in the occurrence.

18.Another fault of the prosecution's case is that the facts narrated in the statement of Kiran Shahzadi (PW-3) were not supported by the observations of Dr. Adeeba Ishfaq (PW-8). Though Kiran Shahzadi (PW-3) alleged that she had been violently raped, Dr. Adeeba Ishfaq (PW-8) did not observe any evidence of such violence. This Court has noted that Dr. Adeeba Ishfaq (PW- 8), on examining Kiran Shahzadi (PW-3), found no marks of violence on any part of the body at the time of examination of Kiran Shahzadi (PW-3). Dr.

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Adeeba Ishfaq (PW-8) did not observe that there was any presence of laceration, abrasion, contusion on any part of the body especially on elbows, thighs, or backside of Kiran Shahzadi (PW-3). Being thrown on hard ground would necessarily have resulted in marks of violence appearing on the body of Kiran Shahzadi (PW-3), however, Dr. Adeeba Ishfaq (PW-8) did not observe any such marks. During cross-examination, Adeeba Ishfaq (PW-8) stated as under :

“Whatever I observed and taken at the time of examination I have fully described in MLC Ex.PE. I observed no injury on body of examinee.” (emphasis supplied)

19.The learned Deputy District Public Prosecutor alongwith the learned counsel for the complainant have also laid much stress upon the reports of the Punjab Forensic Science Agency, Lahore (Exh.PF and Exh PF/1-2), wherein it had been determined that the DNA profiles obtained from the stain sections taken from the Shalwar of Kiran Shahzadi (PW-3) were a mixture of two individuals and the appellant could not be excluded as being a contributor to the DNA profiles obtained from the stain sections taken from the Shalwar of Kiran Shahzadi (PW-3) . 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

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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 fertilization. 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 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 individualization 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

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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. (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.

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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 ”.

In our legal framework DNA evidence is evaluated on the strength of Articles 59 and 164 of the Qanun-e-Shahadat, 1984. 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 analysis is per se

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admissible in evidence under Section 510, Cr.P.C. Since DNA analysis report 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. Credibility of the DNA test inter-alia depends on the standards employed 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 cases of “Mst. SAKINA RAMZAN versus State” (2021 SCMR 451), “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 when the prosecution could not establish safe transmission of the samples from the place of recovery to the laboratory. In the present case, the prosecution failed to prove the safe transmission of the Shalwar of Kiran Shahzadi (PW-3) to the Punjab Forensic Science Agency, Lahore, making the value of the reports of the Punjab Forensic Science Agency, Lahore (Exh.PF and PF/1-2) of no worth. Dr. Adeeba Ishfaq (PW-

8)stated that she had handed over the parcels containing the swabs taken from the body of the victim as well as the clothes of the victim to Mohammad Sadiq 697/C, however, said Mohammad Sadiq 697/C was never produced as a witness during the trial so as to prove the safe transmission of the said sealed

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parcels. More importantly, Mazhar Abbas, ASI,(PW-6) , who had taken the said sealed parcels said to contain the swabs taken from the body of the victim and clothes , never made any statement that he was handed over the said sealed parcels by Dr. Adeeba Ishfaq (PW-8) .In this manner, the safe transmission of the sealed parcels said to contain the swabs taken from the body of the Kiran Shehzadi (PW-3) could not be proved. Another very important aspect of the case is that, according to the statement of Kiran Shehzadi (PW-3) , she had handed over her clothes to the Investigating Officer of the case at the time when her statement was recorded. Furthermore, during cross-examination Kiran Shehzadi (PW-3) stated that it was on the next evening of the incident, that is on 17-07-2022, that she firstly appeared before the investigating officer of the case and got her statement recorded and also handed over the Shalwar and Qameez she was wearing at the time of the incident to the investigating officer of the case. During cross-examination,Kiran Shehzadi (PW-3) stated as under :-

“On next evening, I appeared before I.O and got recorded my statement.

I also produced my clothes i.e. Qameez and Shalwar to I.O at the time of recording my statement. Except Shalwar and Qameez, I have not produced any piece of clothes.”

However, Mazhar Abbas, ASI (PW-6) , the investigating officer of the case, made a totally contradictory statement and stated that it was on 23-07-2022 that he, for the first time, recorded the statement of Kiran Shahzadi (PW-3) who appeared before him on that day and prior to that she had not given a

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statement.During cross-examination Mazhar Abbas, ASI (PW-6) , the investigating officer of the case stated as under :- “I recorded statement of Kiran Shehzadi victim on 23.7.2022 after seven days of lodging of F.I.R.

I myself had not scribed any recovery memo of Shalwar and Qameez of victim.”

With regard to the handing over and custody of the clothes of Kiran Shehzadi (PW-3) , the following contradictions in the prosecution case are apparent.

a) According to the statement of Dr. Adeeba Ishfaq (PW-8), the clothes of Kiran Shehzadi were received by herself, sealed into a parcel, and were handed over to Mohammad Sadiq 697/C, who was never produced as a witness.

b) Secondly, according to the statement of Kiran Shehzadi (PW-3) herself, she had not handed over her Shalwar and Qameez to Dr. Adeeba Ishfaq (PW-8); rather, she had handed over the said clothes to Mazhar Abbas, ASI (PW-6) ,the Investigating Officer of the case on 17-07- 2022, when her statement was recorded for the first time.

c) According to Mazhar Abbas, ASI, (PW-6) , he himself, firstly never received the clothes of Kiran Shehzadi (PW-3) at all and did not take them into possession and moreover, according to his statement , he had recorded the statement of Kiran Shehzadi (PW-3) for the first time on 23.07.2022 and if the statement of Kiran Shehzadi (PW-3) is to be considered that it was at the time of recording of her statement that she

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had handed over the clothes to the to Mazhar Abbas ASI (PW-6) then it becomes apparent that the said clothes were never ever handed over prior to 23.07.2022 .

d) Moreover, as mentioned above , Dr. Adeeba Ishfaq (PW-

8),Kiran Shehzadi (PW-3) and Mazhar Abbas ASI (PW-6) all made contradictory statements as to the identity of the person who received the said clothes ; with Dr. Adeeba Ishfaq (PW-8) claiming that the said clothes were taken into possession by her, whereas Kiran Shahzadi (PW-3) claiming that she had handed over the clothes to Mazhar Abbas ASI (PW-6) and with Mazhar Abbas ASI (PW-6) denying any part in making a parcel of the said clothes or receiving of the same.

In this manner it could not be proved that the clothes of Kiran Shahzadi (PW-

3)which were sent to the Punjab Forensic Science Agency, Lahore and were analysed, were handed over to Dr. Adeeba Ishfaq (PW-8) on 17.07.2022 or were handed over to Mazhar Abbas, ASI (PW-6) , the investigating officer of the case by Kiran Shahzadi (PW-3) or were handed over on 23.07.2022. In this manner, the safe custody and the safe transmission of the Shalwar of Kiran Shahzadi (PW-3) to the Punjab Forensic Science Agency, Lahore is not proved and in the absence of that evidence no reliance can be placed on the reports of Punjab Forensic Science Agency, Lahore (Exh.PF and PF/1-2).This portion of the prosecution evidence proves that there are missing links in the chain relating to the submission of the Shalwar of Kiran Shahzadi (PW-3) to the Punjab Forensic Science Agency, Lahore. We have queried the learned Deputy District Public Prosecutor to clarify that what was the evidence

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available on the record to confirm that the Shalwar of Kiran Shahzadi (PW-3) had indeed been kept in safe custody and then transmitted to and deposited in the Punjab Forensic Science Agency, Lahore but, after going through the record of this case from cover to cover, the learned Deputy District Public Prosecutor remained unable to refute that there is no consistent evidence whatsoever available on the record in this respect that how the Shalwar of Kiran Shahzadi (PW-3) was transmitted to the Punjab Forensic Science Agency, Lahore. The learned Deputy District Public Prosecutor could not counter that the prosecution's evidence was contradictory and mutually destructive in this regard. In such a state of contradictory evidence available on the record, safe custody and the transmission of the Shalwar of Kiran Shahzadi (PW-3) to the Punjab Forensic Science Agency, Lahore is not discernible from the record of this case. In the absence of such evidence, the prosecution, which must establish that the chain of custody of the Shalwar of Kiran Shahzadi (PW-3) was unbroken, unsuspicious, indubitable, safe and secure, has failed to do so. The break in the chain of custody of the Shalwar of Kiran Shahzadi (PW-3) casts doubts and impairs and vitiates the conclusiveness and reliability of the reports of the Punjab Forensic Science Agency, Lahore (Exh.PF and PF/1-2). This fact by itself creates sufficient doubts and on this score, the reports of Punjab Forensic Science Agency, Lahore (Exh.PF and PF/1-2) regarding forensic DNA Analysis is of no legal worth. The august Supreme Court of Pakistan has observed in the case of “Azeem Khan and another Vs. Mujahid Hussain and others” (PLJ 2016 SC

123)that the report of Punjab Forensic Science Agency, Lahore with regard to DNA analysis cannot be implicitly relied upon and has held as under:-

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“In the recent past many scandals in USA, UK and other countries have surfaced where desired DNA test reports were procured by the investigative by contaminating the samples. Such contamination has also been reported in some cases while the samples remained in the laboratories. Many inquires were held on this issue and stringent law has been made by many States to prevent the contamination of samples outside and inside the laboratories. Proper procedure has been laid down for securing and carefully putting into parcel the suspected materials to co-relate with the samples of the parents to establish paternity or maternity. Similarly, stringent check and procedure has been provided to avoid and prevent cross contamination of the two samples because if both come in contact with each others then, it will give false positive appearance and the expert is thus misled. It has also been discovered that credentials of many experts, claiming possessed of higher qualification in this particular field, were found fake and they were thus, removed from service. The DNA Wikipedia on web is an unrebutted testimony to these facts.

28.In any case, it is an expert opinion and even if it is admitted into the evidence and relied upon, would in no manner be sufficient to connect the necks of the appellants with the commission of the crime when the bulk of other evidence has been held by us unbelievable thus, no reliance can be placed on it to award a capital sentence. Moreover, to ensure fair-play and transparency, the samples in the laboratories from the parents should have been taken in the presence of some independent authority like a Magistrate and also the recovered samples from the crime scene in the same way to dispel the chances of fabrication of evidence through corrupt practices and the transition of the samples to the laboratory should have also been made in a safe and secure manner. But all these safeguards were kept aside.”

20.The learned Deputy District Public Prosecutor has also rightly pointed out that according to the reports of Punjab Forensic Science Agency, Lahore (Exh.PF and PF/1-2), the DNA profile of the appellant was also obtained from the swabs taken allegedly from the vagina of Kiran Shehzadi (PW-3) , however, admits that according to reports of Punjab Forensic Science Agency, Lahore (Exh.PF and PF/1-2) no DNA profile of Kiran Shehzadi (PW-3) was obtained from the said swabs. Touch DNA is also known as epithelial DNA.

The same traditional DNA analysis procedures are used to analyze and examine these remaining epithelial cells as are used to analyze and examine bodily fluids. This is evidence with “no visible staining that would likely contain DNA resulting from the transfer of epithelial cells from the skin to an object. Had the swabs been taken from the vagina of Kiran Shehzadi (PW-3),

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then her D.N.A. profile must have been obtained from the said items as the epithelial cells from the skin of Kiran Shehzadi (PW-3) must have been left behind on the swabs taken from her body and subsequently, the presence of D.N.A. profile of Kiran Shehzadi (PW-3) would have been identified on the said swabs by the Punjab Forensic Science Agency, Lahore, however, no DNA profile of Kiran Shehzadi (PW-3) was obtained from the swabs analysed proving that the said swabs were not proved to had been taken from the body of Kiran Shehzadi (PW-3).

21.We have also noted that according to the Medico Legal Examination Certificate prepared by Dr. Naveed Iqbal (given up as being collusive with accused), who had initially examined the appellant namely Sajid Hussain, on 25th of July, 2022, the appellant was not having the capacity to have sexual intercoursee however, the appellant was then got re-examined by the District Standing Medical Board and the Chairman of the District Standing Medical Board , namely Dr.Muhammad Nabil Salim (PW-9) did appear before the court and got recorded a statement that in the opinion of the District Standing Medical Board there was nothing to suggest that the appellant could not have sexual intercourse however, most importantly, Dr. Muhammad Nabil Salim (PW-9) admitted during cross-examination that the opinion of the District Standing Medical Board was only suggestive in nature and was not confirmatory at all and the tests which were advised ;which needed to be performed prior to making a conclusive opinion with regard to the capacity of the appellant to have a sexual intercourse, were not conducted and therefore no conclusive opinion was given by the District Standing Medical Board with

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regard to the capacity of the appellant to have sexual intercourse. During cross-examination, Dr. Muhammad Nabil Salim (PW-9) admitted as under :- “After physical examination of Sajid Hussain, Medical Board advised RBS, Testosterone level and color Doppler penis test. RBS and Testosterone level test were not got conducted by the police whereas no facility of Color Doppler test of Penis was available in hospital as reported by Dr. Asif Rafique, Radiologist of Nishtar Hospital Multan. We gave our opinion in absence of said tests. All the aforesaid test, RBS etc, were advised to check potency of examinee. As per our report at the time of examination, blood pressure of examinee Sajid Hussain, was, 170/100 mmHG. We after the physical, mental and genital examination gave opinion which is suggestive in nature and not confirmatory in nature.” (emphasis supplied)

In this manner, the fact that the appellant was capable of having sexual intercourse was also not proved.

22.Considering all the above circumstances, we entertain serious doubt regarding the involvement of Sajid Hussain son of Ghulam Rasool (appellant), in the present case. It is a 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, the 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

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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 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 Najaf Ali Shah Vs. the State (2021 S C M R 736) in which it has been observed in paragraph No.13 of page 236 as infra:

“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent

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person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.”

23.For what has been discussed above, the instant Criminal Appeal No.434 of 2025 lodged by Sajid Hussain son of Ghulam Rasool (appellant) is allowed and the conviction and sentence of the appellant Sajid Hussain son of Ghulam Rasool awarded by the learned Additional Sessions Judge/Special Court Kabirwala, vide judgment dated 11.04.2025 are hereby set-aside. The appellant namely Sajid Hussain son of Ghulam Rasool is ordered to be acquitted by extending him the benefit of doubt. The appellant namely Sajid Hussain son of Ghulam Rasool is in custody and is ordered to be released, if not required in any other case.

( MUHAMMAD JAWAD ZAFAR) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Approved for Reporting

Judge