High Court ruled that CCTV footage and DNA evidence were inadmissible due to procedural lapses and chain of custody issues.

Murder reference

The Lahore High Court in "Abdul Hakeem v. The State" ruled that CCTV footage and DNA evidence were inadmissible due to procedural lapses and chain of custody issues.

## JUDGMENT SHEET

### IN THE LAHORE HIGH COURT

#### RAWALPINDI BENCH RAWALPINDI

### JUDICIAL DEPARTMENT

#### Criminal Appeal No. 835 of 2022

#### (Abdul Hakeem v. The State)

#### and

#### Murder Reference No. 44 of 2022

#### (The State v. Abdul Hakeem)

**JUDGMENT**

**Date of hearing:** 20.03.2024

**Appellant by:** Ch. Muhammad Akhtar, Advocate.

**Complainant by:** M/S Hina Noman & Talat Mehmood Zaidi, Advocates.

**State by:** Mian Imran Rahim, Deputy Prosecutor General with Abid Ali Inspector.

**Ch. Abdul Aziz, J.:**

1. **Case Background:** Abdul Hakeem (appellant), involved in case F.I.R No. 138/2021 dated 04.05.2021 registered under Section 302 PPC at Police Station City Attock, was tried by the learned Additional Sessions Judge, Attock. He was convicted and sentenced to death under Section 302 PPC, with a compensation of Rs. 500,000/- to the legal heirs of the deceased under Section 544-A Cr.P.C. In case of non-payment, he was to suffer 06-months simple imprisonment.

2. **Appeal:** Feeling aggrieved, Abdul Hakeem filed Criminal Appeal No. 835 of 2022 against his conviction and sentence. The trial court sent Murder Reference No. 44 of 2022 for confirmation or otherwise of the death sentence.

3. **Prosecution Case:** According to Muhammad Furqan Umar (PW.7), on 03.05.2021, he repeatedly called his father, Younas Umar, who did not respond. He asked Muhammad Waqas, a friend, to check on his father. Waqas found the house locked and the deceased's body inside. The police registered the FIR based on Furqan's statement. DNA swabs were collected, and the CCTV footage showed Abdul Hakeem entering and exiting the house multiple times.

4. **Evidence:** The prosecution produced 11 witnesses. Dr. Mubashar Sittar (PW.3) performed the autopsy, Muhammad Furqan Umar (PW.7) was the complainant, and Muhammad Waqas (PW.9) discovered the body. Investigating Officer Azmat Hayat SI (PW.10) conducted the investigation.

5. **Appellant’s Defense:** Abdul Hakeem denied the allegations, claiming innocence and stating that he was implicated due to suspicion of being an Afghan national. He did not present any defense evidence.

6. **Arguments:**

- **Defense:** The appellant argued the case was based on circumstantial evidence and suspicion. The CCTV footage did not show the crime being committed, and the prosecution failed to prove his guilt.

- **Prosecution:** The state argued the appellant was not initially nominated but was implicated based on evidence, including CCTV footage, DNA reports, and recoveries of stolen items linking him to the crime.

7. **Legal Considerations:** Conviction based on circumstantial evidence requires an unbroken chain of evidence connecting the accused to the crime. Any legal flaw or break in the chain renders the evidence inadmissible.

8. **Assessment of Evidence:**

- **CCTV Footage:** The DVR from the CCTV camera was not properly authenticated. The forensic report was inconclusive, and the visuals were not clear enough to definitively identify the appellant.

- **DNA Evidence:** DNA from the deceased's nails matched the appellant, but the process of sampling and transmission raised doubts about its credibility. Proper procedures were not followed, making the evidence unreliable.

9. **Conclusion:** The prosecution failed to provide a flawless chain of evidence. The CCTV footage was not conclusively verified, and the DNA evidence was compromised. The recovery of stolen items and other circumstantial evidence were insufficient to establish guilt beyond a reasonable doubt.

**Judgment:** The conviction and death sentence awarded to Abdul Hakeem are set aside. The appellant is acquitted of the charges under Section 302 PPC due to the failure of the prosecution to prove its case beyond reasonable doubt.

**Ch. Abdul Aziz, J.**

dgment Sheet

IN THE LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

Criminal Appeal No.835 of 2022

(Abdul Hakeem v. The State)

and

Murder Reference No.44 of 2022

(The State v. Abdul Hakeem)

JUDGMENT

Date of hearing: 20.03.2024

Appellant by:

Ch. Muhammad Akhtar, Advocate.

Complainant by: M/S Hina Noman & Talat Mehmood Zaidi,

Advocates.

State by:

Mian Imran Rahim, Deputy Prosecutor General

with Abid Ali Inspector.

…………………………….

Ch. Abdul Aziz, J. Abdul Hakeem (appellant) involved in case

F.I.R No.138/2021 dated 04.05.2021 registered under Section 302 PPC

at Police Station City Attock, was tried by learned Additional Sessions

Judge, Attock, who vide judgment dated 30.06.2022 convicted and

sentenced him as under:-

Under Section 302 PPC to suffer death sentence. He was also directed to

pay Rs. 500,000/- as compensation to the legal heirs of deceased under

section 544-A Cr.P.C; the compensation so imposed was ordered to be

recoverable as arrears of land revenue and in case of its non-payment

appellant was directed to suffer 06-months simple imprisonment.

Feeling aggrieved, Abdul Hakeem (appellant) filed Criminal Appeal

No.835 of 2022 against his conviction and sentence, whereas the trial

court sent reference which was numbered as Murder Reference No.44

of 2022 for the confirmation or otherwise of death sentence so awarded

to him. Since both matters are inter se connected, hence are being

disposed of through this single judgment.

Succinctly stated the case of the prosecution as unveiled by

Muhammad Furqan Umar (PW.7) in F.I.R (Exh.PK) is to the effect that

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

on 03.05.2021 at about 2:00 p.m. he had been repeatedly calling his

father Younas Umar on his mobile phone No.0301-8300635 but it was

found not responding; that he got curious and asked Muhammad Waqas

a friend of his elder brother, residing in same vicinity to check his father

by visiting his house; that Muhammad Waqas went to residence of

Younas Umer and thereafter informed the complainant that the main

gate of the house was locked which was opened by breaking it and

found the dead body of Younas Umar in his room; that Muhammad

Waqas informed the complainant about this unfortunate news who

immediately thereafter arrived at the residence of his father situated at

Darul Islam Colony; that the complainant went inside the house and

saw the dead body of his father laying on the bed; that both hands of

the deceased were fastened with cloth and his neck was entrapped with

drawstring (azarband) around it.

After the receipt of information about the incident, Azmat Hayat

SI reached the spot where Muhammad Furqan (PW.7) got recorded his

statement (Exh.PK) which was dispatched to PS City Attock for the

registration of formal F.I.R (Exh.PK/2). He informed the PFSA crime

scene unit who came at the spot and Nasir Abbas JFS collected the nail

and buccal swab from the dead body for DNA test and also secured

drawstring and Shalwar therefrom which was later taken into

possession by the Investigating Officer through recovery memo

Exh.PG. Azmat Hayat SI (PW.10) also prepared inquest report

(Exh.PD), application for postmortem examination and handed over the

dead body to Muhammad Awais Constable for autopsy. Azmat Hayat

SI further inspected the spot and prepared unscaled site plan (Exh.PT),

secured broken lock (P.4) along with saw blade (P.5) vide memo

Exh.PL. He also took into possession box of mobile phone (P.6) owned

by father of the complainant which was of Nokia Model 1280- having

IMEI No.353297057242856 through memo Exh.PM. The complainant

along with police checked CCTV camera installed at the adjacent

house. From the footage of CCTV camera recording, the complainant

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

found that Abdul Hakeem (appellant) who was servant of his deceased

father entered into the house on multiple occasions and took away some

articles by placing them in a rickshaw. The complainant moved an

application (Exh.PN) to police in which he nominated the accused. The

Investigating Officer also took into possession DVR (P.7) installed in

the adjacent house through memo Exh.PP. He arrested the appellant on

09.05.2021 and during physical remand on 11.05.2021, he made

disclosure and got recovered mobile (P.8) Nokia 1280, SIM (P.9),

driving licence of deceased (P.10), colour copy of CNIC of deceased

(P.11) and keys of the deceased (P.12/1-7) through memo Exh.PQ. The

appellant during interrogation also got recovered stolen Volta battery

(P.13) which was taken into possession through memo (Exh.PR). The

appellant further got recovered rickshaw (P.14) which was taken into

possession through memo Exh.PS. On 19.05.2021 he received the

parcel of DVR from Moharrar/Station clerk and also brought the

appellant in PFSA Lahore where he submitted the parcel of DVR and

also got conducted the DNA test of the appellant from PFSA. On

09.07.2021 he received CD (P.15) and 12 pictures (P.16/1-12) through

Tahir Mehmood ASI who received the same from PFSA, Rawalpindi

which were taken into possession through memo Exh.PW. After

complying legal formalities and recording the statements of relevant

witnesses under Section 161 Cr.P.C., report under Section 173 Cr.P.C.

was prepared through concerned SHO.

Prosecution in order to prove its case against the appellant

produced 11-witnesses, out of whom, Dr.Mubashar Sittar (PW.3)

performed autopsy of Younas Umar on 04.05.2021 and prepared

postmortem report (Exh.PC) along with pictorial diagram (Exh.PC/1),

Muhammad Furqan Umar (PW.7) is the complainant of the case,

Muhammad Waqas (PW.9) upon the direction of the complainant

went to the house of deceased, broke the lock and found the dead body

laying on the bed and informed this fact to the complainant, Azmat

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

Hayat SI (PW.10) investigated the case. The remaining PWs, more or

less, were formal in nature.

After the conclusion of prosecution evidence, the learned trial

court examined the appellant under Section 342, Cr.P.C. who in

response to question “why this case is against you and why witnesses

have deposed against you” made the following reply:-

“I am innocent. I have no concern whatsoever with the said occurrence.

The police arrested me on 05.05.2021 and managed the DNA report falsely

with the connivance of the complainant because neither I have any concern

with the deceased Muhammad Younas nor I was servant of the deceased

Muhammad Younas. No evidence available on judicial file which proves

that I was servant of the deceased Muhammad Younas nor statement of any

person was recorded in this regard. The police arrested me in this case on

suspicion being Afghan national.”

Appellant neither made statement under section 340 (2) of Cr.P.C nor

produced any evidence in his defence.

6. It is contended by learned counsel for the appellant that case in

hand is arising out of an occurrence which remained un-witnessed; that

the appellant was subsequently implicated in the case solely on the basis

of doubt and suspicion; that in order to secure conviction of the

appellant, false evidence was fabricated, the frailty of which was badly

exposed even during trial; that the prosecution relied upon CCTV

camera footage where the appellant is not seen while committing the

crime and that since the prosecution remained unsuccessful in proving

guilt of the appellant, hence, the conviction awarded to him is liable to

be set-aside.

7. On the other hand learned Law Officer assisted by learned

counsel for the complainant submitted that admittedly the appellant was

not nominated in the crime report and was later implicated in the case;

that the non-nomination of appellant in the crime report reflects that the

complainant had no mala fide to falsely implicate him in the case; that

the guilt of the appellant is well established from the chain of

incriminating circumstances and it goes without saying that man can

tell a lie but the circumstances do not; that the appellant was seen in the

CCTV footage; that the DNA report is positive and recoveries of

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

articles belonging to the deceased provide further corroboration to the

case of prosecution so as to connect the appellant with the commission

of crime and that since the prosecution successfully proved its case

against the appellant hence, the conviction awarded to him does not call

interference.

Arguments heard and record perused.

A wade through the record reveals that Younis Umar, a retired

army personnel aged about 60 years was living alone in a rented house

situated in a neighbourhood known as Darul Salam Colony Attock. On

03.05.2021 at about 2:00 p.m. his son Muhammad Furqan Umar

(PW.7) called him on his mobile phone No.0301-8300635 which was

found not responding. Muhammad Furqan asked a friend namely

Muhammad Waqas (PW.9) for going to the house of his father Younis

Umar and to inquire about him. Muhammad Waqas (PW.9) entered the

house by breaking lock installed at the outer door and found the corpse

of Younis Umar placed on the bed. Muhammad Furqan Umar (PW.7)

after acquiring knowledge about this unfortunate incident reached

Attock from Risalpur and reported the matter to police. In the First

Information Report (Ex.P.K) the allegation of committing the crime in

question was pointed towards an unknown person and none was named

therein even as a suspect.

10. The case of prosecution mainly hinges upon circumstantial

evidence, the main component of which is the CCTV footage in which

Abdul Hakeem (appellant) was seen while entering and exiting from

the house of deceased, report of PFSA (Ex.PX) according to which

swabs taken from the nail of Muhammad Younis matched with the

DNA profile of Abdul Hakeem (appellant), recovery of various stolen

articles affected from Abdul Hakeem (appellant) and the motive.

11. Before dilating upon the intrinsic worth of the evidence led by

the prosecution, we consider it important to mention here that

conviction can only be awarded on the basis of circumstantial evidence

when it impeccably connects the accused with the commission of crime.

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

For awarding conviction, the incriminating circumstances must be so

closely inter-woven with each other that from their appraisal no

conclusion other than guilt of accused is to be drawn. Any break in the

chain of circumstances or legal inadmissibility of its any part renders

such evidence unworthy of credence and cannot be used for raising the

superstructure of conviction.

12. The record of the case in hand is circumspectively perused and

we came across many legal flaws, raising serious questions about the

legality of conviction awarded to the appellant. It is already mentioned

above that the actual homicide incident remained unwitnessed and till

the registration of FIR, the identity of the culprit was unknown and for

this reason none was nominated therein even as a suspect. According

to the prosecution case, the police acquired knowledge about the culprit

from the visuals captured in the CCTV camera installed at the outer

gate of the house belonging to Muhammad Zahid (PW.11) situated

adjacent to the house of deceased. The DVR of the CCTV camera was

taken into possession by Azmat Hayat SI (PW.10) through recovery

memo (Exh.PP). Before proceeding any further, we deem it appropriate

to reproduce hereunder the observation of the Supreme Court of

Pakistan in the case reported as “Ishtiaq Ahmed Mirza and 2 others vs.

Federation of Pakistan and others” (PLD 2019 SC 675) wherein a

criteria for evaluating the evidentiary worth of visuals captured in

CCTV camera and the voice recorded in any audio device was laid

down:-

* No audio tape or video can be relied upon by a court until the same is

proved to be genuine and not tampered with or doctored.

* A forensic report prepared by an analyst of the Punjab Forensic Science

Agency in respect of an audio tape or video is per se admissible in

evidence in view of the provisions of section 9(3) of the Punjab Forensic

Science Agency Act, 2007.

* Under Article 164 of the Qanun-e-Shahadat Order, 1984 it lies in the

discretion of a court to allow any evidence becoming available through

an audio tape or video to be produced.

* Even where a court allows an audio tape or video to be produced in

evidence such audio tape or video has to be proved in accordance with

the law of evidenc

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

* Accuracy of the recording must be proved and satisfactory evidence, direct

or circumstantial, has to be produced so as to rule out any possibility of

tampering with the record.

* An audio tape or video sought to be produced in evidence must be the actual

record of the conversation as and when it was made or of the event as

and when it took place.

* The person recording the conversation or event has to be produced.

* The person recording the conversation or event must produce the audio tape

or video himself.

* The audio tape or video must be played in the court.

* An audio tape or video produced before a court as evidence ought to be

clearly audible or viewable.

* The person recording the conversation or event must identify the voice of

the person speaking or the person seen or the voice or person seen may

be identified by any other person who recognizes such voice or person.

* Any other person present at the time of making of the conversation or

taking place of the event may also testify in support of the conversation

heard in the audio tape or the event shown in the video.

* The voices recorded or the persons shown must be properly identified.

* The evidence sought to be produced through an audio tape or video has to

be relevant to the controversy and otherwise admissible.

* Safe custody of the audio tape or video after its preparation till production

before the court must be proved.

* The transcript of the audio tape or video must have been prepared under

independent supervision and control.

* The person recording an audio tape or video may be a person whose part of

routine duties is recording of an audio tape or video and he should not

be a person who has recorded the audio tape or video for the purpose of

laying a trap to procure evidence.

* The source of an audio tape or video becoming available has to be

disclosed.

* The date of acquiring the audio tape or video by the person producing it

before the court ought to be disclosed by such person.

* An audio tape or video produced at a late stage of a judicial proceeding

may be looked at with suspicion.

* A formal application has to be filed before the court by the person desiring an audio

tape or video to be brought on the record of the case as evidence.

In the above backdrop, firstly, it is noticed by us that though the

DVR was statedly taken from the possession of Muhammad Zahid

(PW.11) but he was not the witness of its recovery memo (Exh.PP) and

even otherwise the DVR was not exhibited in his statement. The

foregoing omission gives rise to the query that how it can be ascertained

that the DVR exhibited in the statement of investigating officer was the

same which was installed in the house of Muhammad Zahid (PW.11).

Secondly, it is noticed that from these visuals complainant Muhammad

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

Furqan Umar (PW.7) identified Abdul Hakeem (appellant) as the

person who has been rendering services as servant with the deceased.

These visuals were forwarded to PFSA along with Abdul Hakeem

(appellant) who after in-depth analysis gave his opinion through his

report Exh.PZ which is reproduced hereunder:-

“Forensic facial comparison analysis of accused named “Abdul

Hakeem S/O Abdul Rahim” with the persons seen in videos of

incident contained in Item #1 was inconclusive due to minimal

facial feature information of suspect available in Item #1.”

Admittedly, in accordance with the conclusion given by expert, the

report regarding the visuals captured in the CCTV Camera and extract

from DVR cannot be used for awarding conviction to Abdul Hakeem

(appellant) keeping in view the principle laid down in Ishtiaq Ahmad

Mirza case (PLD 2019 SC 675). We intend to lay emphasis on the point

that PFSA report (Ex.P.Z) admittedly was not supporting the cause of

prosecution but still it was tendered in evidence. We are mindful of the

fact that the report through necessary implication of section 9(3) of the

Punjab Forensic Science Agency Act 2007 was per se admissible but

since it was not in favour of prosecution thus the expert could still be

summoned as court witness to remove ambiguity arising out of it.

Strangely, no effort whatsoever was made by the prosecution to do the

needful of summoning the expert from the PFSA as witness in the case.

There was another remedy available to the prosecution under section

12 of the Punjab Forensic Science Agency Act 2007 but no step even

in this regard was taken. According to section 12, any person affected

from the opinion of an expert can move an application before the court

for re-examination of the substance upon which report is issued by the

PFSA. Upon such application, the court, if satisfied that the opinion of

expert needs reconsideration, can pass an order to the PFSA for reexamination through a penal of three or more experts. For the clarity of

proposition section 12 of Punjab Forensic Science Agency Act 2007 is

reproduced hereunder

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

“(1) A person affected by the opinion of an expert, may for a

sufficient cause, submit an application for re-examination

before the Court, tribunal or authority other than a police

officer before which the opinion is rendered or the court or

tribunal before which the opinion is submitted by the authority.

(2) If the Court, tribunal or authority is satisfied that there are

sufficient grounds for re-consideration of the opinion, it may,

for reasons to be recorded in writing, direct the Agency to reexamine the forensic material.

(3) The Director General shall, in receipt of the direction,

constitute a panel of three or more experts to re-examine the

forensic material or refer the same to a forensic examination

facility for examination and opinion.

(4) The Director General shall submit the finding of the expert

or the forensic facility and his opinion to the Court, tribunal or

authority.

Above all in the site plan (Exh.PJ) neither the house of Muhammad

Zahid (PW.11) was shown nor the point, where the CCTV camera was

installed is highlighted. For satisfying the legality of the impugned

judgment, the DVR was requisitioned and despite best efforts it could

not be decodified to examine the visuals thus we are not left with any

other option but to discard it in accordance with the PFSA report

(Exh.PZ).

13. According to the prosecution case, Muhammad Nasir Abbas

JFS/PFSA (PW.5) was summoned at the crime scene to examine the

surroundings and the recovered corpse. He extracted four nail swabs

from both hands of deceased which were dispatched to the office of

PFSA for DNA analysis. According to report (Exh.PX/1) the left-hand

nail swabs of Younas Umar (deceased) matched with the DNA profile

of three individuals out of whom Abdul Hakeem (appellant) was

described as one of the possible contributors. The DNA evidence can

attain admissibility if prosecution satisfactorily proves the process of

sampling, safe custody and onward transmission to the office of PFSA

and the foregoing process is called in the field of forensic as doctrine

of analysis and it stresses for flawless sampling, correct packing, safe

custody and above all free from doubt transmission to the office of

expert. Any defect in the aforementioned process makes even the

positive DNA report doubtful in nature forcing the courts to discard it

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

from consideration. Guidance in this regard can be sought from the case

titled as “Azeem Khan and another Vs. Mujahid Hussain and

others”(PLJ 2016 SC 123) wherein the Supreme Court of Pakistan

held as under:-

"27. In the recent past many scandals in U.S.A., U.K. and other countries

have surfaced where desired D.N.A. 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 corelate 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 D.N.A.

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 fairplay 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."

For exemplifying the impact of defective sampling for DNA

analysis, the case from the case of an American athlete OJ Simpson,

reported as Rufu v. Simpson 103 Cal.Rptr.2d 492 (2001) can be cited

as reference. He was indicted for the vicious killing of two persons, one

out of whom was factually beheaded. The homicide incident though

remained unwitnessed but the police collected various incriminating

articles from the crime scene including a hat, blood stained left hand

glove and a track of blood. Further evidence was collected from the

house of OJ Simpson comprising upon blood on his car parked outside

his house and blood drips leading to the front door along with a blood

stained hand glove of similar description which was secured from the

crime scene. The defective sampling and improper inspection of crime

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

scene persuaded the Jury to clear Simpson from the charge of murder.

In this case, we firstly observed that Muhammad Nasir Abbas

JFS/PFSA (PW.5) uttered not a single word about the identity of the

police officer to whom he handed over the samples so taken from the

nails of the deceased. It needs no elaboration that even for providing

credibility to the positive report of PFSA in the instant case the

prosecution should have led some evidence about the nature of these

nail swabs and the kind of the substance extracted therefrom. Nothing

as such is available on the record that these swabs were pertaining to

the blood, skin tissues or hairs etc. of the unknown person. If at all these

swabs were comprising upon skin tissues etc. then in order to make it

admissible for fetching positive results in the trial, the prosecution

should have got Abdul Hakeem (appellant) medically examined after

his arrest which was affected on 09.05.2021 i.e. just five days after the

incident. The medical examination of Abdul Hakeem (appellant) would

have revealed that whether he was in receipt of some scratches,

lacerations etc. which would have been way forward to connect him

with the nail swabs taken from the deceased. We have further noted that

along with these nail swabs Muhammad Nasir Abbas JFS/PFSA

(PW.5) also secured two buckle swabs of the deceased and drawstring.

Though Muhammad Nasir Abbas JFS/PFS (PW.5) stated nothing about

the identity of the police official to whom the articles so collected by

him from the crime were handed over but during trial Azmat Hayat SI

(PW.10) claimed to have received all of them from the former. The fact

remains that Azmat Hayat SI (PW-10) stated nothing about the identity

of the police official in whose custody these swabs were placed till

their dispatch to the office of PFSA. As this was not enough, it is further

noticed that Ahmad Nawaz 489/HC (PW.2) appeared before the trial

court and claimed to be Moharrir/Station Clerk who received various

articles but made no reference to the swabs and drawstring secured from

the crime scene. Azmat Hayat SI (PW.10) also could not lift veil from

the police official who handed him over envelopes for onward

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

transmission to the office of PFSA. It evinces from the PFSA report

(Exh.PX/1) that only the buckle swabs of Abdul Hakeem (appellant)

were presented for comparison but the pivotal question remained

unaddressed that when and by whom these were taken. All the

foregoing facts expose that process of collection, sampling, packing,

safe custody and transmission of swabs was prone to many legal defects

on the basis whereof we are inclined to reject the report of PFSA

(Exh.PX/1).

14. The prosecution also heavily banked upon the recoveries of

mobile phone along with SIM (P8 and P9), driving license (P10), CNIC

(P12) and Volta Battery (P13) affected from the appellant on his

disclosure and pointation made during investigation on 11.05.2021.

Admittedly, in the First Information Report (Exh.PK) no reference

about the theft of these articles from the house of the deceased was

made. Above all, no statement under section 161 Cr.P.C of Muhammad

Furqan Umar (PW.7) was recorded during investigation about the theft

of these articles and the foregoing fact was candidly conceded by him

during cross-examination. Similarly, though we have discarded the

PFSA report (Exh.PZ) about the visuals captured in the CCTV camera

but fact remains that even in this report nothing as such is mentioned

that the person coming out of from the house of the victim was carrying

any of these stolen articles. Now the question arises that whether it will

be in the interest of justice to still treat the recovery of aforementioned

articles as sufficient incriminating evidence and inexorably the answer

cannot be given in affirmative. We are mindful of the fact that incident

was un-witnessed and collection of evidence in such like cases is a hard

nut to crack but the fact remains that no efforts whatsoever were made

to lift fingerprints from the crime scene. We are not oblivious of the

fact that as per prosecution case Abdul Hakeem (appellant) had been

serving as part time servant with the deceased thus his finger prints, if

lifted from the spot, would not have been a conclusive evidence but at

least such practice would have lifted veil from the identity of other

Criminal Appeal No.835 of 2022 &

Murder Reference No.44 of 2022

person to whom reference is made in the PFSA report as third

contributor in nail swabs.

15. After having scrutinized the record we do not have any doubt

in our mind that the chain of circumstantial evidence is broken and

besides that it does not prove conclusively that the crime in question

was committed by none other than Abdul Hakeem (appellant). It goes

without saying that if there is a single 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.

Therefore, we allow Criminal Appeal No.835 of 2022 while giving

benefit of doubt in favour of Abdul Hakeem (appellant) and set-aside

his conviction and sentence and in consequence thereof he stands

acquitted of the charge. Appellant Abdul Hakeem is under custody; be

released forthwith if not required to be detained in any other criminal

case.

16.

Resultantly, Murder Reference No. 44 of 2022 is

answered in the NEGATIVE and death sentence awarded to Abdul

Hakeem (convict) is NOT CONFIRMED.

(Sadaqat Ali Khan)

(Ch. Abdul Aziz)

Judge

APPROVED FOR REPORTIN

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