Muhammad Asif etc. vs State

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

Criminal Appeal No. 264/J/2023 Muhammad Asif and another Vs. The State

Murder Reference No. 21/2023 The State Vs. Muhammad Asif and another

JUDGMENT

Date of hearing: 12.02.2025 For the Appellants: Mr. Farooq Haider Malik, Advocate. Mr. Najeeb Ullah Khan Jatoi, Deputy Prosecutor For the State:

General.

For the Complainant: Nemo.

Tariq Saleem Sheikh, J. – Through this consolidated judgment, we propose to decide Crl. Appeal No. 264/J/2023 and Murder Reference No. 21/2023 arising from the judgment dated 5.6.2023 delivered by the Additional Sessions Judge, Minchinabad.

2.On 2.9.2022, Sher Ali, a 7-year-old boy, was murdered within the jurisdiction of Police Station Ghumandpur, District Bahawalnagar. Upon receiving information about the incident, Ammar Ibrahim/T-SI (PW-7) arrived at THQ Hospital, Minchinabad. In the early hours of 3.9.2022, at 2:10 a.m., PW-3 Fauzia Bibi submitted to him an application (Exh. PA) for the registration of an FIR. She stated that on the morning of 2.9.2022, at 9:00 a.m., her son Sher Ali, born from her first marriage with Lal Khan, went out to play but did not return by evening, which worried her. She, her husband Liaquat Ali, and Ahmad Hassan began searching for him. When they reached the back side of Maqbool’s milk shop, they found Sher Ali’s dead body against a wall, bearing visible signs of violence. Fauzia Bibi sought legal action against the unknown persons responsible for his murder. Ammar Ibrahim/T-SI (PW-7) recorded the police karwai on the application Exh. PA and sent it to Police Station Ghumandpur through Zafar Iqbal 1312/C. Based on this

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application, Zulfiqar Ali/ASI (PW-9) registered FIR No.319/2022 dated 3.9.2022 (Exh. PP).

3.After sending the application (Exh. PA) to the police station, Ammar Ibrahim/T-SI (PW-7) examined Sher Ali’s body, prepared an Injury Statement (Exh. PC) and an Inquest Report (Exh. PD), and entrusted the body to Abdul Sattar 1039/C (PW-2) for autopsy. Then, he proceeded to the crime scene, prepared a rough site plan (Exh. PE), and recorded the statements of PWs Liaquat Ali and Ahmad Hassan. He took possession of five sealed envelopes from the Crime Scene Unit team through Recovery Memo Exh. PF. Further, he secured Sher Ali’s trousers (P-2), which were presented by PW Liaquat Ali (given up), through Recovery Memo Exh. PG. He also collected a shirt button (P-3) and a belt (P-4) of the deceased from the crime scene through Recovery Memo Exh. PH. After the autopsy, Abdul Sattar 1039/C (PW-2) handed over Sher Ali’s last worn clothes, including a T-shirt (P-1), which Ammar Ibrahim/T-SI took into his possession through Recovery Memo Exh. PJ. Upon returning to the police station, he handed over the case property to the police station’s Moharrar for safekeeping.

4.On 4.9.2022, Ammar Ibrahim/T-SI recorded the statements of Amanat Ali (PW-5) under section 161 Cr.P.C. On 5.9.2022, he received three sealed envelopes and three boxes from Abdul Sattar 1039/C (PW-2) through Recovery Memo Exh. PK. On 6.9.2022, he delivered these items along with five sealed parcels of the Crime Scene Unit to the office of the Punjab Forensic Science Agency (PFSA). However, due to certain objections, the PFSA officials returned the sealed boxes and envelopes, which he handed to Moharrar Shoukat Ali 847/HC (PW-1) for safekeeping.

5.On 6.9.2022, Ammar Ibrahim/T-SI also arrested Asif and Tariq. The following day, i.e., 7.9.2022, he obtained their physical remand and arranged for their potency tests, which Dr. Muhammad Ibrahim (PW-8) conducted on the same day. On 8.9.2022, he re-submitted three sealed envelopes and three sealed boxes to the PFSA office. On 13.9.2022, Asif and Tariq were sent to judicial remand. The same day, Muhammad Din Abid/Draftsman (PW-6) visited the crime scene and took

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rough notes on the pointing out of the Investigating Officer. On 14.9.2022, he submitted a scaled site plan in triplicate (Exh. PB and Exh. PB/1) to the Investigating Officer. Upon completion of the investigation, a report under section 173 Cr.P.C. was submitted to the court.

6.On 21.11.2022, the Additional Sessions Judge indicted Asif and Tariq under sections 302, 377, 202, and 118 PPC. Both of them pleaded not guilty and claimed trial.

7.To prove the charge, the prosecution produced nine witnesses. Shoukat Ali 847/HC (PW-1) was the Moharrar of the Police Station and testified about safe custody of the case property. Abdul Sattar 1039/C (PW-2) got Sher Ali’s autopsy conducted. Fauzia Bibi, Ahmad Hassan, and Amanat Ali testified as PW-3, PW-4 and PW-5, respectively. Muhammad Din Abid/Draftsman (PW-6) prepared the scaled site plan Exh. PB and Exh. PB/1. Ammar Ibrahim/T-SI (PW-7) gave the details of his investigation. Dr. Muhammad Ibrahim (PW-8) provided medical evidence. Zulfiqar Ali/ASI (PW-9) registered FIR No.319/2022 Exh. PP. The public prosecutor gave up PWs Liaquat Ali, Ahmad Hassan (son of Shamoon), Altaf, Muhammad Ashraf, Muhammad Nouman, Ishtiaq Ahmad, Muhammad Maqbool, and Muhammad Ajmal being unnecessary. In documentary evidence, the public prosecutor inter alia produced the forensic report Exh. PQ.

8.After the completion of the prosecution evidence, the Additional Sessions Judge recorded the statements of Asif and Tariq under section 342 Cr.P.C. They refuted the evidence recorded during the trial and pleaded innocence. They neither recorded their statements under section 340(2) Cr.P.C. nor examined any witness in their defence to disprove the charges levelled against them.

9.On the conclusion of the trial, vide judgment dated 5.6.2023, the Additional Sessions Judge convicted Asif and Tariq as under:

Muhammad Asif

i)Convicted under section 302(b) PPC and sentenced to death with a fine of Rs.200,000/- and, in default thereof, to suffer simple imprisonment for one year.

ii)Convicted under section 202 PPC and sentenced to rigorous imprisonment for six months with a fine of Rs.50,000/- and, in default thereof, to suffer simple imprisonment for fifteen days.

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iii)Convicted under section 118 PPC and sentenced to rigorous imprisonment for seven years with a fine of Rs.100,000/- and, in default thereof, to suffer simple imprisonment for one year.

Muhammad Tariq

i)Convicted under section 302(b) PPC and sentenced to death with a fine of Rs.200,000/- and, in default thereof, to suffer simple imprisonment for one year.

ii)Convicted under section 377-B PPC and sentenced to rigorous imprisonment for twenty years with a fine of Rs.10,00,000/- and, in default thereof, to suffer simple imprisonment for two years.

iii)Convicted under section 202 PPC and sentenced to rigorous imprisonment for six months with a fine of Rs.50,000/- and, in default thereof, to suffer simple imprisonment for fifteen days.

iv)Convicted under section 118 PPC and sentenced to rigorous imprisonment for seven years with a fine of Rs.100,000/- and, in default thereof, to suffer simple imprisonment for one year.

The convicts’ sentences of imprisonment were ordered to run concurrently, and the benefit of section 382-B Cr.P.C. was extended to them.

10.Muhammad Asif and Muhammad Tariq (hereinafter referred to as the “Appellants”) challenged their conviction and sentence through Crl. Appeal No. 264/J/2023 while the Additional Sessions Judge has sent Murder Reference No.21/2023 to this Court under section 374 Cr.P.C. for the confirmation of their death sentence.

11.In support of Crl. Appeal No. 264/J/2023, Mr. Farooq Haider Malik, Advocate, contended that the incident was unseen and that the Appellants had been falsely implicated without any credible evidence. He argued that three key witnesses – Fauzia Bibi (PW-3), Ahmad Hassan (PW-4), and Amanat Ali (PW-5) – had turned hostile and disowned their previous statements, making the prosecution’s case inherently unreliable. He pointed out that Ahmad Hassan (PW-4) not only retracted his statement but also introduced a plea of alibi for Appellant Tariq, stating that he was with him throughout the day of the incident. These inconsistencies, he contended, should have been properly considered by the trial court, but their disregard resulted in a grave miscarriage of justice. Accordingly, Mr. Malik urged that Criminal Appeal No. 264/J/2023 be allowed and the Appellants be acquitted of the charge.

Murder Reference No. 21/2023

12.The Deputy Prosecutor General controverted the above contentions. He argued that the prosecution successfully proved the charge against the Appellants. Although Fauzia Bibi (PW-3), Ahmad Hassan (PW-4), and Amanat Ali (PW-5) had resiled, the other evidence firmly linked the Appellants to the alleged offences. The report of the DNA test Exh. PQ conclusively established the Appellants’guilt. He prayed that Crl. Appeal No.264/J/2023 be dismissed, and the impugned judgment be upheld.

13.Arguments heard. Record perused.

14.On 2.9.2022, 7-year-old Sher Ali was sodomized and murdered within the remit of Police Station Ghumandpur, District Bahawalnagar. Fauzia Bibi (PW-3) lodged FIR No.319/2022 (Exh. PP) against unknown persons regarding the incident. During the investigation, the perpetrators were identified as Asif and Tariq (the Appellants), who were subsequently arrested, tried, and convicted, as mentioned in paragraph 9 of this judgment. Asif is Sher Ali’s real brother, while Tariq is Sher Ali’s brother-in-law.

15.The prosecution’s case against the Appellants rests on their alleged extra-judicial confession, medical and forensic evidence, and the investigation findings.

16.When Fauzia Bibi (PW-3) appeared in the witness box, she denied having made any application to the police for the registration of FIR and asserted that the police officials conducted the entire proceedings at their own motion. She further stated that she had no objection if the Appellants were acquitted because she had forgiven them in the name of Almighty Allah. However, during cross-examination, Fauzia Bibi admitted that the application Exh. PA bore her thumb impression but hastened to add that she put it on the asking of police officials.

17.The prosecution claimed that the Appellants made extra- judicial confessions during the investigation before Ahmad Hassan (PW-4) and Amanat Ali (PW-5). However, both these witnesses resiled during the trial. During his examination-in-chief, Ahmad Hassan even set up a plea of alibi for Appellant Tariq. He stated that he looks after his cattle and other businesses and that on 2.9.2022, Tariq remained busy

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with him the whole day. In the evening, he learnt from the vicinity that Sher Ali’s dead body had been found. The public prosecutor requested the trial court to declare Fauzia Bibi (PW-3), Ahmad Hassan (PW-4), and Amanat Ali (PW-5) hostile, which it did. Thereafter, both the public prosecutor and the defence cross-examined these witnesses.

18.A hostile witness may be defined as a witness who, in the judge’s opinion, “bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the court. He is not adverse in the statutory sense when his testimony merely contradicts his proof or because it is unfavourable to the party calling him. A witness who retracts evidence supportive of the Crown’s case or purports to have no recollection but does not change sides in the sense of giving evidence that is actually damaging to the Crown’s case, may be treated as hostile, and the Crown is entitled to call such a witness to explore the possibility that the witness will return to his original statement.”1

19.The general rule is that a party may not cross-examine its own witness. Under common law, if a witness refuses to testify, the court or the jury hears no evidence from him. If the witness gives evidence entirely at variance with what was said in a statement, the court or the jury will hear evidence favourable to the other party, ignoring the change.2

20.In the U.K., in criminal proceedings, the issue of a hostile witness is governed by section 119(1) of the Criminal Justice Act 2003, which provides that where a previous inconsistent statement of a witness is admitted by the witness or proved under sections 3, 4 or 5 of the Criminal Procedure Act 1865, the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible. A jury is entitled to find that a previous inconsistent statement is true even where the maker denies its truth.3

21.Sarkar explains the law relating to hostile witnesses in India as follows:

Phipson on Evidence, Sweet & Maxwell (2022), pp. 419-420.

Phipson on Evidence, Sweet & Maxwell (2022), p. 418.

Sarkar’s Commentary on the Law of Evidence, 6th Edn., Vol. 2, p. 2211.

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“When the prosecution feels that the witness called for prosecution is not telling the whole truth or that he suppresses some truth, two courses are open. One course is to request the Court under section 154 of the Evidence Act4 to permit the prosecution to put the witness questions which might be put in cross-examination by the other side. If that permission is granted, then the prosecution will naturally be entitled to put such questions and will also be entitled to contradict the witness with his or her police statement as provided by the proviso to sub- section (1) of section 162 Cr.P.C., 1973.5 The other course open is not to make any such request under section 154 of the Evidence Act but only to request the Court, as laid down by the proviso to sub-section (1) of section 162 Cr.P.C., to permit the prosecution to contradict the witness in the manner provided by section 145 Evidence Act.6 When the first course is adopted, then in a loose sense, it is said that the prosecution wants to declare the witness hostile. If the second course is adopted, viz., to contradict the witness with his police statement as laid down in the proviso to sub-section (1) of section 162 Cr.P.C., then only it can be said, and that too in a loose sense, that the prosecution does not want to declare the witness hostile.”

22.In Profulla Kumar Sarkar and others v. Emperor (AIR 1931 Calcutta 401), a Full Bench of the Calcutta High Court considered the following four questions:

1)Whether the evidence of a witness treated as hostile must be rejected in whole or part?

2)Whether it must be rejected so far as it is in favour of the party calling the witness?

3)Whether it must be rejected so far as it is in favour of the opposite party?

4)Whether the whole of the evidence, so far as it affects both parties favourably or unfavourably, must go to the jury for what it is worth?

Rankin, C.J. answered the first three questions in the negative and the last in the affirmative. He held that a previous statement by a witness, if recorded before a committing magistrate and admitted under section 288 Cr.P.C.,7 becomes evidence for all purposes, allowing the jury to consider both statements. However, in other cases, such a statement is not evidence against the accused regarding the truth of its contents. The jury must consider that the witness made a prior statement but must not treat it as evidence against the accused. Under the Evidence Act 1872, this rule applies whether the witness admitted the previous statement or proved against their denial. In civil cases, a witness’s prior Section 154 of the Indian Evidence Act 1872 parallels Article 150 of Pakistan’s Qanun-e-Shahadat

1984 (QSO).

The corresponding provision in Pakistan’s Code of Criminal Procedure 1898 is also section 162(1).

Section 145 of the Indian Evidence Act 1872 parallels Article 140 of Pakistan’s QSO.

Omitted by the Law Reforms Ordinance, 1972.

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statement, even if unsworn and later denied, may be treated as an admission if they are a party to the case. However, in criminal cases, an unsworn previous statement of a prosecution witness is not evidence against the accused, except in special circumstances, such as when it serves as corroboration. If a previous statement was made in the accused’s presence, this could affect its evidentiary value, but even then, it is not proof of the truth of its contents. Instead, the jury may only consider whether the accused’s silence, conduct, or response amounted to an admission. But apart from such special cases, which attract special principles, the unsworn statement, so far as the maker in his evidence does not confirm and repeat it, cannot be used at all against the accused as proof of the truth of what it asserts. This means not merely that it is insufficient proof but that it cannot be used at all. It cannot be coupled with probabilities, which suggest that the witness was more likely to tell the truth on the former occasion than in the witness box so as to go to the jury as part of the proof that what was then stated is true.

23.However, in Jagir Singh v. The State (Delhi Administration) (AIR 1975 SC 1400), the Supreme Court of India ruled that when a prosecution witness is allowed to be cross-examined by the prosecution, it undermines their credibility as a whole rather than merely negating specific portions of their testimony. Consequently, their evidence cannot be relied upon.

24.In Islam v. The State (PLD 1962 Lahore 1053), the High Court rejected the argument that since the witness had been declared hostile, her testimony was entirely unreliable and should be disregarded. The Court ruled that such evidence cannot be rejected outright, in whole or part. Instead, it must be evaluated as a whole – considering both its favourable and unfavourable aspects for both parties – and assessed on its own merit, like any other piece of evidence.

25.The Supreme Court of Pakistan has examined the probative value of hostile witness testimony in several cases. In Manzoor Ahmad v. The State (PLD 1983 SC 197), it held that there is no general rule that whenever a prosecution witness resiles from their previous statement, they are necessarily lying, as their latest statement under oath at trial may,

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upon scrutiny, be found to be the true version. Implicit reliance cannot be placed on a witness who provides contradictory statements – particularly when the inconsistency arises from motives other than truthfulness. In such cases, accepting parts of the trial testimony is rare but possible, provided they are supported by other credible and satisfactory evidence. In The State v. Abdul Ghaffar [NLR 1996 Criminal (SC) 370], the Court emphasized that the testimony of a hostile witness must be assessed in accordance with the well-established principles of appreciation of evidence evaluation, including the one that grain has to be sifted from chaff. Similarly, in Muhammad Suleman and others v. The State (PLD 2007 SC 223), it was held that a hostile witness’s testimony should not be disregarded merely because they did not support the prosecution. Rather, it must be scrutinized with utmost care and caution and corroborated by independent, reliable evidence before being accepted. Conversely, in Dr. Javaid Akhtar v. The State (PLD 2007 SC 249), it was ruled that a court would be justified in ignoring the statement of a hostile witness.

26.The cases of Jagir Singh and Dr. Javaid Akhtar cited above were decided on their peculiar facts. The generally accepted view is that the testimony of a hostile witness cannot be completely disregarded. The evidence of a hostile witness has to be considered like the evidence of any other witness but with caution for the simple reason that the witness has spoken in different tones. When a witness speaks in different voices, it would be for the court to decide in what voice he speaks the truth. In such cases, the determining test is corroboration from an independent source and conformity with the remaining evidence.

27.In the present case, as noted above, in her application Exh. PA, Fauzia Bibi (PW-3) sought legal action against unknown persons. However, during her testimony at trial, she initially denied having submitted Exh. PA but later, under cross-examination, admitted that her thumb impression was indeed available on the document. Nevertheless, she claimed that she had affixed it at the behest of police officials. Since Fauzia Bibi did not implicate the Appellants in her initial application and never recorded any supplementary statement implicating

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the Appellants or otherwise levelled any direct allegations against them, nothing turned on her testimony, despite her retraction.

28.The State claimed that the Appellants made extra-judicial confessions before PWs Ahmad Hassan and Amanat Ali. However, during the trial, both witnesses refused to support the prosecution. They even denied having joined the investigation and recording statements under section 161 Cr.P.C. After the trial court declared them hostile, the public prosecutor cross-examined them, but he could not elicit anything that could benefit the prosecution.

29.Article 153 of the Qanun-e-Shahadat 1984 (QSO) allows a party to cross-examine its own witness when he exhibits hostility. At the same time, Article 140 mandates that if a witness denies making an earlier statement, they must be confronted with it. A hostile witness’s prior statement cannot be treated as substantive evidence unless properly confronted and admitted under Article 140. In cases where witnesses retract or deny their statements, the prosecution must establish their credibility through corroboration or prove that their earlier statements were voluntarily made. Here, the prosecution neither confronted PW-4 and PW-5 with their prior statements in the manner required by law nor presented independent corroboration. Consequently, the alleged extra- judicial confessions fail to meet the standard of admissible evidence. Nonetheless, even if these testimonies are disregarded, forensic and circumstantial evidence must be independently assessed to determine whether the case meets the standard of proof beyond a reasonable doubt.

30.Dr. Muhammad Ibrahim (PW-8) testified that he conducted Sher Ali’s postmortem at THQ Hospital Minchinabad on 3.9.2022 at 3:00 a.m. He found that the boy’s neck had been pressed with a blunt force. The tear on the anal mucosa and the surrounding blood were ante-mortem. There were abrasions on the deceased’s body, mentioned in the postmortem report Exh. PM, which were postmortem in nature. PW Muhammad Ibrahim stated that, in his opinion, Sher Ali died due to asphyxia caused by neck compression following sodomy.

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31.It is well settled that medical evidence serves a supporting, confirmatory, or explanatory role in relation to direct or circumstantial evidence, but it is not “corroborative evidence” in the strict legal sense, as it lacks the independent probative force to link the accused to the crime directly.8 Medical findings do not identify the offender. They only confirm the available substantive evidence with regard to certain facts, including the seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence. It does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving the involvement of the accused person in the commission of offence, as it does not establish the accused person’s identity.9 Medical evidence can reinforce the credibility of the direct evidence but cannot replace it. Where direct evidence is found to be unreliable or untrustworthy, a conviction cannot be sustained solely on the basis of medical evidence.10 Therefore, the medical evidence is of little help to the prosecution in bringing home the guilt to the Appellants.

32.Next, we turn to forensic evidence. Ammar Ibrahim/T-SI (PW-7) submitted the following samples to the PFSA: two nail swabs from each of Sher Ali’s hands, two neck swabs, internal and external anal swabs, two buccal swabs, his pants, and buccal swab standards of the Appellants. According to the PFSA report (Exh. PQ), DNA analysis of the right-hand nail swabs contained a mixture of DNA from three persons, including Appellant Tariq and Sher Ali. However, due to limited allelic information, the identity of the third individual could not be established. Seminal material from Appellant Tariq was detected on both internal and external anal swabs obtained from the deceased.

Muhammad Mansha v. The State (2018 SCMR 772), Naveed Asghar and others v. The State

(PLD 2021 SC 600).

Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103), Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410), Muhammad Saleem v. Shabbir Ahmed and others (2016 SCMR 1605), and Hashim Qasim and another v. The State (2017 SCMR 986).

Hayatullah v. The State (2018 SCMR 2092), Aman Ullah and another v. The State and others (2023 SCMR 723), Muhammad Hanif v. The State (2023 SCMR 2016), Muhammad Hassan and another v. The State and others (2024 SCMR 1427).

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33.DNA, or deoxyribonucleic acid, is the genetic material that makes each individual unique, except for genetically identical twins. According to Modi’s Textbook of Medical Jurisprudence and Toxicology (24th Edition), human cells contain a nucleus that carries 23 pairs of chromosomes, which house DNA in a linear arrangement of genetic units. DNA profiling, often called “DNA fingerprinting,” is based on the unique genetic code found within DNA molecules. Chemically, DNA is composed of phosphoric acid, D-2-deoxyribose, and four nitrogenous bases – adenine (A), guanine (G), cytosine (C), and thymine (T). Structurally, DNA forms a double-helix, with A pairing with T and C pairing with G, held together by hydrogen bonds. DNA is a genetic blueprint, encoding instructions for assembling amino acids into polypeptide chains. These instructions are written in three-letter sequences, or triplet codons, each designating a specific amino acid. Due to the complementary nature of the DNA strands, genetic information on one strand is mirrored by the other, which ensures accurate replication and protein synthesis.

34.Advances in modern biological research have significantly enhanced forensic science, which plays a pivotal role in the administration of justice. In Salman Akram Raja and another v. Government of Punjab and others (2013 SCMR 203), the Supreme Court of Pakistan held that DNA testing helps identify perpetrators with high confidence. It enables courts to reach a just conclusion, excluding potential suspects and exonerating wrongfully accused individuals. Given its scientific precision and reliability, DNA analysis is now recognized as one of the most potent forms of corroborative evidence, particularly in sexual offence cases. In Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 SC 362), the Supreme Court stated that DNA evidence is the “gold standard” for establishing an accused person’s identity. Over the years, DNA tests have also come to be recognized by our statutory criminal law.11

35.In Ali Haider alias Papu, the Supreme Court observed that the DNA report, like any other opinion of an expert under Article 59 of See, for example, sections 53A, 164A and 164B of the Code of Criminal Procedure 1898 (inserted by Act 44 of 2016).

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the QSO, is relevant and thus admissible. Article 164 further reinforces the admissibility, reliability, and weightage of modern scientific forensic evidence, including the DNA test. The Supreme Court noted that while the QSO recognizes the admissibility of expert opinion, section 510 Cr.P.C. simplifies the evidentiary procedure by allowing certain expert reports – such as those from chemical examiners, serologists, fingerprint experts, and firearm experts – to be used in trials without requiring the author to testify in court. This per se admissibility rule aims to streamline legal proceedings and expedite criminal trials. Still, if the court deems necessary in the interest of justice, it can summon and examine the expert who prepared the report. The Supreme Court clarified that section 510 Cr.P.C. applies to specific categories of expert reports and does not explicitly include DNA analysts. Consequently, DNA test reports are not per se admissible under this section. Instead, they require the expert who prepared the report to testify in court, as mandated by the QSO. Nonetheless, section 9 of the Punjab Forensic Science Agency Act, 2007, classifies PFSA experts as experts under section 510 Cr.P.C., making their reports per se admissible. It is important to note that DNA is not considered as primary evidence and can be relied upon only for corroboration.12

36.The usefulness of DNA evidence depends mostly on the skill, ability, and integrity of the investigating officer who collects the samples. Unless the evidence is properly collected, documented, packaged, and preserved, it will not meet the legal and scientific requirements for admissibility in a court of law.13 The prosecution must also prove that the chain of custody remained intact from collection to submission at the forensic laboratory, with clear documentation of each transfer. If mishandling or improper preservation is established, Atta ul Mustafa v. The State and other (2023 SCMR 1698), Tanvir v. The State and another (PLD 2020 Lahore 774).

Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 SC 362), Abdul Hakeem v. The State (2024 PCr.LJ 1764).

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even scientifically sound DNA results may be disregarded by the court.14

37.When DNA samples are taken from the accused, the prosecution must also prove that their collection was legally compliant. The identity of the individual who took the samples must be established, along with confirmation that the procedure was followed correctly. Safe custody and secure transmission must be demonstrated to exclude the possibility of tampering or substitution. If the defence raises credible doubts about these aspects, the evidentiary value of the DNA report may be significantly undermined.

38.It needs to be emphasized that the legal standard for forensic evidence does not demand absolute perfection in handling DNA samples but requires proof that their integrity remains intact. The prosecution must demonstrate an unbroken chain of custody to preserve their probative value. While minor procedural lapses do not necessarily affect admissibility, significant gaps, delays, or irregularities must be scrutinized for potential contamination or tampering, as they can undermine its evidentiary value.

39.In this case, the prosecution failed to ensure the safe custody, proper documentation, and traceability of key forensic samples. During examination-in-chief, Ammar Ibrahim/T-SI (PW-7) stated that on 3.9.2022, the PFSA Crime Scene Unit team handed over five sealed

In Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), the Supreme Court held:

“27. 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 correlate 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 other 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.”

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envelopes for DNA analysis, which he took into possession through Recovery Memo Exh. PF. He handed them over to Moharrar Shoukat Ali 847/HC (PW-1) the same day. However, inconsistencies arose in their handling. PW Shoukat Ali 847/HC stated that he returned the parcels to PW Ammar Ibrahim on 5.9.2022, whereas the latter asserted that he received them back on 6.9.2022 for submission to the PFSA. While this discrepancy does not automatically render the forensic evidence inadmissible, it shifts the burden onto the prosecution to establish that these variations did not compromise the integrity of the samples. The prosecution failed to make any effort to discharge this onus.

40.The collection of the Appellants’ buccal swabs also raises a serious procedural concern. The record confirms that the swabs were received at the PFSA on 8.9.2022, yet there is no evidence regarding who collected them and when. Neither the Investigating Officer, Ammar Ibrahim/T-SI (PW-7), nor any other witness provided details in this regard. The person who obtained these swabs was a material witness whose testimony was essential to verify proper collection and preservation. The failure to produce him in court creates a significant evidentiary gap, raising legitimate concerns about whether the DNA samples used for comparison were properly obtained.

41.Given the above, the prosecution failed to establish safe custody and secure transmission of the DNA samples from both the Appellants and the deceased to the PFSA. As a result, the PFSA report Exh. PQ does not meet the legal standard required for evidentiary reliability.

42.Mr. Malik argued that the PFSA report (Exh. PQ) indicates the presence of a third, unidentified DNA contributor in the right-hand nail swabs of the deceased. He contended that since the identity of this individual remains unknown, Appellant Asif’s involvement in the crime is not established beyond a reasonable doubt. However, since we have already held that the said report is unreliable due to chain-of-custody failures and procedural lapses, this argument has become redundant.

43.Medical evidence and DNA analysis must each be independently reliable before they can corroborate one another.

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Corroboration does not mean that one form of evidence can compensate for the deficiencies of the other. In this case, the DNA report (Exh. PQ) is unreliable due to serious chain-of-custody failures, while the medical evidence, though relevant in establishing the cause of death and nature of injuries, does not identify the perpetrator. Since the forensic evidence lacks evidentiary integrity, it cannot support the medical findings, nor can medical evidence validate an unreliable forensic report. Each must independently meet the standard of reliability before they can collectively strengthen the prosecution’s case. In the absence of a credible forensic link, the medical findings remain inconclusive in proving the accused’s involvement.

44.Finally, the investigation findings. Ammar Ibrahim/T-SI (PW-7) investigated this case. He provided the details of his investigation during his examination-in-chief. However, a scrutiny of his cross- examination shows that his conclusion regarding the Appellants’ guilt relied more on suspicion than on concrete proof. He stated:

“After recording statements of witnesses under section 161 Cr.P.C., I assessed that the present accused were the real culprits.”

PW Ammar Ibrahim/T-SI further deposed:

“During the investigation, the behaviour of Tariq accused was found suspicious. Hence, I assessed that he assisted Asif accused in disposing of dead body of deceased.”

(emphasis added)

45.In a criminal trial, mere suspicion – however strong – cannot form the basis of conviction. The prosecution must prove its case beyond a reasonable doubt, relying on legally admissible evidence rather than the subjective impressions of an investigating officer.

46.In this case, it appears that the Investigating Officer, Ammar Ibrahim/T-SI (PW-7), relied solely on the evidence of extra-judicial confession furnished by PWs Ahmad Hassan and Amanat Ali and the forensic report Exh. PQ without independently exploring other leads. Extra-judicial confessions are inherently weak evidence because they can be easily concocted,15 while the forensic report, as discussed, suffered procedural flaws. Ammar Ibrahim failed to verify the authenticity of the Mst. Asia Bibi v. The State and others (PLD 2019 SC 64).

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DNA evidence before drawing his conclusions. Consequently, his statement does not advance the prosecution’s case.

47.In cases based entirely on circumstantial evidence, it is essential that each circumstance be examined with the utmost care and caution before drawing any conclusion against the accused. The process of inference and deduction in such cases is complex and requires scrutiny before facts and circumstances are deemed established. A conviction is justified if the proven facts and circumstances exclude every reasonable hypothesis of innocence. Conversely, if the evidence can be reconciled with a reasonable hypothesis consistent with the accused’s innocence, it must be treated as insufficient and result in acquittal. In a murder case, circumstantial evidence should form an unbroken and well-connected chain, linking the crime to the deceased on one end and the accused on the other. Any missing link in this chain renders the evidence unreliable, making it unsafe to base a conviction on it, especially in capital sentence cases.16

48.In this case, the Appellants’ alleged extra-judicial confessions are not proved, the forensic evidence is unreliable, and the Investigating Officer’s conclusions were based on suspicion rather than credible evidence. While the PFSA report confirms a match between the internal and external anal swabs of the deceased and Appellant Tariq’s DNA, its evidentiary weight is diminished because the chain of custody is unreliable. Importantly, the prosecution gave up several witnesses, including PWs Liaquat Ali, Ahmad Hassan (son of Shamoon), Altaf, Muhammad Ashraf, Muhammad Nouman, Ishtiaq, Muhammad Maqbool, and Muhammad Ajmal, on the ground that their testimony was unnecessary. Although the prosecution has discretion in presenting its case, the trial court had an independent duty under section 540 Cr.P.C. to summon witnesses whose testimony was crucial to determining the truth. The failure to do so deprived the defence of potentially exculpatory evidence and limited the trial court’s ability to evaluate all relevant facts.

49.Given the above deficiencies, the prosecution has failed to prove its case beyond a reasonable doubt, and the benefit of doubt must be Naveed Asghar and others v. The State (PLD 2021 SC 600).

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extended to the Appellants. Hence, we allow Crl. Appeal No. 264/J/2023 and acquit them. They shall be released from jail if they are not required to be detained in some other case.

50.Murder Reference No.21/2023 is answered in NEGATIVE, and the death sentence awarded to the Appellants is NOT

CONFIRMED.

(Muhammad Tariq Nadeem) (Tariq Saleem Sheikh) Judge Judge Naeem

Approved for reporting

Judge Judge