Accused persons acquitted due to lack of evidence and procedural error

Witnesses’ Presence and Departure:
- The witnesses encountered these individuals and then observed them leaving.
- However, the prosecution argues that the house was locked from the inside, which raises questions about how the accused could have left.
- Additionally, the witnesses did not provide specific details about the features of the individuals they encountered.
Distance and Timing:
- The witnesses’ claim of moving from Model Town to Johar Town on foot within half an hour is considered implausible due to the considerable distance between these places.
- This discrepancy may affect the credibility of their testimony.
Relation with Masood Akbar Warraich:
- The witnesses’ connection to Masood Akbar Warraich remains unclear.
- Masood Akbar Warraich’s absence as a witness further complicates matters.
Lack of Evidence and Statements:
- The witnesses failed to produce any proof of their visit to see Masood Akbar Warraich on the day of the occurrence.
- They did not point out the house of occurrence or Masood Akbar Warraich’s house to the investigating officer.
- Their statements lack details about any weapons carried by the accused.
Appearance Before Police:
- The witnesses’ claim of appearing before the police on the same night does not hold up because no supplementary statement from the complainant was available.
- The draftsman also confirmed this during cross-examination.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)

Criminal Appeal No.58520-J of 2020

Muhammad Umar etc.

Vs.

The State, etc.

Criminal Revision No. No.49773 of 2020

Mirza Munawwar Hussain Baig

Vs.

The State, etc.

J U D G M E N T

Date of hearing

14.05.2024

Appellants by

Ch. Muhammad Yaqoob Advocate (for

Muhammad Umer appellant No.1) and Mr.

Usman Sarwar and Miss Samra Malik,

Advocates (for Muhammad Asim appellant

No.2)

State by

Miss Asmat Parveen, DDPP

Complainant by

Rai Usman Ahmad and Adil Noor Ahmad

Advocates.

====================================

MUHAMMAD AMJAD RAFIQ, J: Appellants,

Muhammad Umer and Muhammad Asim were tried by the learned

Additional Sessions Judge, Lahore in case FIR No.314 dated

22.04.2014 under sections 302, 460 & 411 PPC Police Station

Township District Lahore and on conclusion of trial, vide judgment

dated 12.09.2020, they were convicted and sentenced as under:-

(i) Imprisonment for life under section 302(b)/34 PPC as

‘Tazir’ each on two counts along with compensation

Rs.3,00,000/- each under section 544-A Cr.P.C payable

to the legal heirs of each deceased recoverable as arrears

of land revenue and in default thereof to further undergo

six months S.I each.

(ii) Ten years RI each under section 460 PPC.

(iii) Three years RI each under section 411 PPC with fine of

Rs.50,000/- each and in default thereof to further

undergo two months S.I each.

Sentences of the appellants were ordered to run concurrently with

benefit of section 382-B of Cr.P.C.

2. Case opens up by Mirza Javed Anwar Baig complainant (died

during the trial), through written application (Exh.PB), formalized later

into FIR (Exh.PB/2) about the death of his step daughter Kanwal

Javaid and granddaughter Tayyaba in his house in circumstances

leading to culpable homicide. According to his narration, husband of

Kanawal had gone to Jeddah and she along with her daughter

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Tayyaba was residing with him at 412/A-1 Johar Town Lahore for his

care as an ailing family member. On 21.04.2014 he went to reside

with his son Mirza Munawar Hussain Baig (PW-5) at Government

Punjab Society, as he usually did. On the next day i.e. 22.04.2014 at

about 12:00 noon, he along with his driver returned; knocked at the

door, finding no response from inside he rang her daughter on cell

phone which was not attended, so he went to Hair Salon; returned

again at about 01:45 p.m., repeated the knock and phone but while

facing similar situation, he went to his in-laws at Rehmanpura. After

another failed attempt at 3:00 pm, thinking she might have gone to

her in-laws he decided to visit again. At 9.00 p.m. he returned with

his son (PW-5) but situation remained same, no body opened the

door. Suspecting some foul play he asked his son to access the house

from the neighbour side who along with one Ahmad scaled over the

wall of the house and found Kanwal was lying dead on a bed with

marks of violence on her face and neck while in other room his

maternal grand-daughter Tayyaba was also found dead on carpet

whose hands and feet were tied having violence marks on her face

too. FIR was registered against unknown accused persons.

Subsequently complainant got recorded his supplementary statement

mentioning that some household articles were also missing from the

house.

3. Situation, empty and blank with no lead whatsoever, was given

to investigator who visited the crime scene same night i.e.,

22.04.2014; inquest of dead bodies was formalized through injury

statements and the inquest reports; PFSA crime scene unit was

summoned who collected the articles, suspected to have biological

stains, for DNA and also finger prints. An exhibit sheet showing

collection of 22 articles from the crime scene was prepared by crime

scene unit which they later deposited in the PFSA for analysis.

Autopsy was done on the next morning. Police allegedly recorded

statement of two witnesses on the same night (22.04.2014) who

stated to have seen two unknown persons in the morning of

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22.04.2014 at about 7.00 a.m. while leaving the house of occurrence

on motor cycle with some articles wrapped in a cloth, like bale with

LCD and they had a dialogue with unknown accused to know the

presence of their landlord namely Masood Akbar Warraich, in the

house of occurrence. Another set of witnesses namely Imran Yasin &

Javid Iqbal recorded later who had seen Muhammad Umar and

Muhammad Asim (accused/appellants) at the homestead of place of

occurrence while ringing the doorbell at about 11.00 p.m. on

21.04.2014. on arrest of accused/appellant, they were put to

successful test identification parade, later number of stolen articles

were also shown recovered from them. A SIM collected from the

place of occurrence was found to be in the name of wife of

Muhammad Asim, accused/appellant. PFSA report was returned with

matching of some biological stains and finger prints with both the

accused/appellants. They were accordingly challaned; disclosure of

prosecution evidence was made to them and on the basis of

information they denied the formal charge and claimed the trial.

At the trial, prosecution examined as many as 17 witnesses;

Muhammad Munir (PW.1), Ahmad Raza (PW.2), Imran Yasin

(PW.3), Javed Iqbal (PW.4) Mirza Munawar Hussain Baig (PW.5),

Amjad Ali constable (PW-6), Muhammad Yahya S.I (PW-7), Ch.

Zia-ud-Din Chishti draftsman (PW-8), Muhammad Waqas constable

(PW-9), Muhammad Sarwar ASI (PW-10), Muhammad Boota

Constable (PW-11), Dr. Faiza Munir Qazi (PW-12), Dr. Shazia

Manzoor (PW-13), Khalid Hussain 1374/L ASI (PW-14), Mundassar

Hassan Magistrate (PW-15), Muhammad Azeem Junior Forensic

Scientist (PW-16) and Zulfiqar Ahmad Inspector (PW-17).

Statements of accused/appellants under Section 342 Cr.P.C were

recorded wherein they denied the prosecution version with the Claim

that they have falsely been involved in this case. While responding to

question No. 4, Muhammad Umar accused/appellant stated that he

has been involved by Masood Akbar Warraich, his Khalo (husband of

maternal aunt) however, both did not opt to record their statement

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under Section 340(2) Cr.P.C. After conclusion of trial, they were

convicted and sentenced forecited.

In response to claim of appellants’ counsel that no direct

evidence is available in this case, learned counsel for the complainant

stated that DNA & finger prints evidence is sufficient to sustain the

conviction and sentence of the accused/appellants and placed reliance

on case reported as “MUHAMMAD SOHAIL alias SAMMA and

others Versus The STATE” (2019 P Cr. L.J 1652). Learned Deputy

District Public Prosecutor submitted that circumstantial evidence in

this case has a big support to forensic evidence and hypothesis of

innocence stands far away from the accused/appellants who are in

tight clutches of prosecution evidence. She, finally supported the

impugned judgment of conviction and sentence.

6. Proponents’ say in the light of available evidence put the Court

at guard to minutely examine the march of prosecution to catch the

alleged culpability of accused/appellants.

7. According to prosecution’s own showing, it was an unseen

occurrence, hinges upon the circumstantial evidence which usually

flows from the artefacts of death with sequence of articles lying near

or around the dead body, examination whereof with naked eye by the

police or expert is required to be done only in prescribed manner,

procedural mandate is mentioned in Rule. 25.33 of Police Rules,

1934, reproduced below:-

25.33. Investigating Officer - action of at scene of death. -

On arrival at the place where the body of a deceased person is

lying, the police officer making the investigation shall act as

follows:-

(1) He shall prevent the destruction of evidence as to the

cause of death.

(2) He shall prevent crowding round the body and the

obliteration of foot-steps.

(3) He shall prevent unnecessary access to the body until the

investigation is concluded.

(4) He shall cover up footprints with suitable vessels so long

as may be necessary.

(5) He shall draw a correct plan of the scene of death

including all features necessary to a right understanding of

the cas

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(6) If no surgeon or other officer arrives, he shall, together

with the other persons conducting the investigation, carefully

examine the body and note all abnormal appearance.

(7) He shall remove, mark with a seal, and seal up all

clothing not adhering to, or required as a covering for, the

body, all ornaments, anything which may have caused or

been concerned in the death of the deceased and shall make

an inventory thereof.

In the inventory shall be described the position in which

each thing was found and any blood-stain, mark, rent, injury

or other noticeable fact in connection with such thing. The

number and dimension of such stains, marks, rents, injuries,

etc., shall also be given in the inventory.

A counterpart of the mark and seal attached to such thing

or to the parcel in which it has been enclosed shall be entered

in, or attached to, the inventory.

Such inventory shall form part of the inquest report.

(8) He shall take the finger prints of the deceased person if

the body is unidentified.

(9) The photographing of the body in situ and of the scene of

the occurrence may prove of great evidential value.

8. Under the command of above Rule, investigating officer can seek

technical assistance from the experts as per Rule 25.14 of Police

Rules, 1934:-

25.14. Technical assistance in investigation. –

(1) Investigating officers are expected to take steps to secure

expert technical assistance and advice, whenever such appears

desirable in the course of an investigation for purposes of

evidence or for demonstration in court.

(2) The Criminal Investigation Department is able to obtain

expert technical assistance on many subjects and should be

freely consulted in that connection by investigating officers

through their Superintendents of Police. When such assistance

is required, a full report shall be sent to the Assistant Inspector

General, Crime and Criminal Tribes, so that he may be in a

position to decide whether it is essential to send an expert to

the scene of the crime or whether the material to be dealt with

should be sent to the expert. In making such reports use should

be made of telegraphic and telephonic facilities.

(3) The Criminal Investigation Department, in conjunction with

the Finger Print Bureau, undertakes photographic and some

other varieties of technical work. In addition, it is in contact

with technical experts on may subjects, whose services can

frequently be obtained for work in connection with criminal

investigation. In respect of the examination of handwriting,

investigating officers can obtain the services of the Examiner

of Questioned Documents with the Government of India,

through the Criminal Investigation Department. That

department is also the channel for obtaining the services of the

Inspector of Explosives for Northern India who, as well as

advising on explosives generally, can give expert opinion as to

whether a weapon has been recently fired, whether certain

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matter is gunpowder or not, and all questions generally

savouring of chemical analysis.

Rule 25.14 in all covers calling in aid of PFSA teams for the purpose

of preservation, collection, sampling and packaging of articles,

biological stains and securing the finger prints followed by handing

over the parcels to the police for its dispatch to PFSA analysis.

Investigator is required to stamp such parcels with seal of police

station by mentioning the particulars of case as required by Rule

25.33 cited above, its entry into register No. 19 of police station and

then after obtaining docket/permission from the senior police officer

of the district ensure safe dispatch and deposit of parcels to PFSA.

Rules-25.41 of Police Rules, 1934 relates to channel of

communication with Chemical Examiner which mandates as under:-

“Superintendents of Police are authorised to correspond with and

submit articles for analysis to the Chemical Examiner direct in

all cases other than human poisoning cases…...”

Further requirement of Rule 25.41, has also been observed by this

Court in case reported as “Meer Nawaz alias Meero Vs The State”

(PLJ 2022 Cr. C 955 Lahore).

9. In no case, an expert can take the samples direct to PFSA for

analysis because it is the investigator to decide what sort of analysis

he is seeking in that particular case. Rule-25.41 (2) impliedly

prohibits such practice which is mentioned in said Rule in the form of

Notes: - (2) as under:-

“(2) In no case should the Medical Officer attempt to apply tests

for himself. Any such procedure is liable to vitiate the

subsequent investigation of the case in the laboratory of the

Chemical Examiner”

Juxtaposing of above rule with mandate of PFSA is essential to see if

any power is available to PFSA experts to take a lead on crime scene

independent of investigators. As per section-4 of the Punjab Forensic

Science Agency Act, 2007, functions of PFSA are as under:-

4. Functions of the Agency: The Agency shall:

a) undertake examination of forensic material;

b) render expert opinion with regard to examination of forensic

material conducted by it;

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c) procure, operate and maintain scientific instruments for

examination of forensic material;

d) propose advancement in forensic techniques and suggest use

of suitable scientific instruments for examination of forensic

material;

e) seek clarification from the person involved in collection or

handling of forensic material in the prescribed manner;

f) recommend the procedure for the collection, preservation and

handling of forensic material;

g) subject to the direction of the Government, collect forensic

material that requires special expertise or scientific methods

for collection and preservation;

h) maintain record for examination of forensic material,

including record pertaining to the identity of a person

connected with or accused of an offence, in the prescribed

manner;

i) promote general awareness on matters relating to forensics;

and

j) perform any other function connected with or ancillary to the

above functions.

As per above mandate, PFSA can seek clarification from the person

who has collected or handled the forensic material in prescribed

manner or subject to direction of government collect forensic material

that requires special expertise or scientific methods for collection and

preservation. Thus, in no case PFSA, at its own can visit the crime

scene except summoned by the investigator which he must do if

essential. Similarly, experts of PFSA also cannot dispatch material

directly to PFSA.

10. Further introducing an expert in chain of safe custody of

parceled articles would amount to compromise the process because it

is the legal duty of police to dispatch such articles to PFSA and not

the expert and if the custody protocols are breached, then police can

be held responsible and not the experts. Such breach amounts to

disobeying the direction of law or defective investigation which is

culpable under sections 166 & 186 (2) of PPC, however, if at the

crime scene any expert in connivance destroys or manipulates

evidence can be bracketed for offences under sections 166 or 217 of

PPC but not otherwise because their function is to conduct test or

analysis of forensic material, therefore, are held responsible only if

tender false opinion as mentioned in section 13 of Punjab Forensic

Science Agency Act, 2007 as under:-

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“13. Offence: - (1) If an expert or official of the Agency

knowingly or negligently renders false, incorrect or misleading

opinion before a Court, tribunal or authority, he shall be

punished with imprisonment which may extend to six months

or with fine which may extend to fifty thousand rupees or with

both”

11. Admittedly, there was no direct evidence in the matter and the

prosecution evidence was based upon circumstantial evidence in the

form of ‘Wajtakar’. To believe or rely on circumstantial evidence, the

well settled and deeply entrenched principle is that it is imperative for

the prosecution to provide all links in chain as unbroken, where one

end of the same touches the dead body and the other the neck of the

accused. In a case reported as “MUHAMMAD TAYAB and another

The STATE and others” (2023 YLR 2207), the Division Bench of this

Court while citing and relying on following case law:-

Gul Muhammad and others v. The State” (2021 SCMR 381);

“NAVEED ASGHAR and 2 others Versus The STATE” (PLD

2021 Supreme Court 600); “MUHAMMAD ISMAIL and

others Versus THE STATE” (2017 SCMR 898), “AZEEM

KHAN and another Versus MUJAHID KHAN and others”

(2016 SCMR 274);“NIAZ AHMED Versus HASRAT

MAHMOOD” (PLD 2016 Supreme Court 70);

“MUHAMMAD SALEEM Versus SHABBIR AHMED and

others” (2016 SCMR 1605); “MUHAMMAD HUSSAIN

Versus THE STATE” (2011 SCMR 1127); “ZAFAR ABBAS

Versus THE STATE” (2010 SCMR 939 “TAHIR JAVED

Versus THE STATE” (2009 SCMR 166); “IBRAHIM and

others Versus THE STATE” (2009 SCMR 407); “ALTAF

HUSSAIN Versus FAKHAR HUSSAIN and another” (2008

SCMR 1103); “AKBAR ALI Versus THE STATE” (2007

SCMR 486); “LIAQAT ALI Versus THE STATE” (2007

SCMR 1307); “ABDUL MATEEN Versus SAHIB KHAN and

others” (PLD 2006 Supreme Court 538); “MUNAWAR SHAH

versus LIAQUAT HUSSAIN and others” (2002 SCMR 713);

“MUNIR AHMAD DAR Versus IMRAN and others” (2001

SCMR 1773); “AZIM Versus THE STATE” (PLD 1965

Supreme Court 44) “SIRAJ Versus THE CROWN” (PLD 1956

Federal Court 123).

Including “LEJZOR TEPER versus THE QUEEN” (PLD 1952 Privy

Council 119) & others, dilated upon the strands of circumstantial

evidence like motive, plans and preparatory acts, capacity,

opportunity, identity, continuance, failure to give evidence and failure

to provide evidence, and held that circumstantial evidence must be

conclusive.

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12. Keeping in view the above standards of evidence and

protocols/precautions, let the prosecution evidence be examined.

Prosecution produced Mirza Munawar Hussain Baig PW-5 son of the

complainant that he with the help of neighbour Ahmad Hassan Zaidi

while scaling over to the place of occurrence had viewed the

deadbody of Kanwal lying on the bed and that of Tayyaba in other

room on the carpet with tied hands and feet and associated injuries on

their bodies as mentioned in FIR. Ahmad Hassan Zaidi did not appear

as a witness in the dock and investigating office Zulfiqar Ahmad PW-

17 in his deposition did not mention presence of Mirza Munawar

Hussain Baig PW-5 at the crime scene when he first visited the place

of occurrence. Though stated that he recorded the statement of many

people including Munawar Baig at the spot but presence of this

witness is doubtful in the sense that he has not been cited as attesting

witness on any memo of spot recoveries. Non-appearance of Ahmad

Hassan Zaidi and due to death of complainant his single testimony in

the form of res gestae could not be corroborated. Thus, first relevant

fact becomes rust putting a blur lens on rest of the evidence of

prosecution.

13. Next set produced by prosecution was the witnesses of wajtakar

namely Muhammad Munir PW-1 and Ahmad Raza PW-2, who

claimed their arrival at 6.00 a.m. on 22.04.2014 at 36-N, Model Town,

Lahore in order to meet Masood Akbar Warraich, landlord of their

village but were informed of his presence at 412/A-1, Johar Town,

Lahore (Place of occurrence), leading them immediately to said

house and when they reached at the place of occurrence at about 7:00

a.m., they saw two persons coming out of said house on a motorcycle

along with some household articles which were tied in a cloth in the

form of a bale along with L.C.D. Both the witnesses PW-1 and PW-2

also claimed that they had a dialog with said two persons and asked

from them about Masood Akbar Warraich who responded that neither

they know Masood nor he had come to this house, and both the said

persons thereafter went away in their presence. The presence of these

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two witnesses is not proved at the relevant date and time due to the

reason that they have not stated the reason of their meeting with

Masood Akbar Warraich and also did not tell the link of Masood

Akbar Warraich with the house of occurrence. Further they did not

explain features of two persons whom they met nor stated that in their

presence both two accused have also locked the house and then went

away. (Because according to prosecution, house was locked from

inside). Further their story of moving from Model Town to Johar

Town on foot and reaching there within half an hour is also not

believable because both the places are at a quite distance. The fact of

their relation with Masood Akbar Warraich is also a missing link due

to non-appearance of Masood Akbar Warraich as witness. They

conceded that they could not produce any proof regarding their visit to

see Masood Akbar Warraich on the day of occurrence. Both the PWs

during their cross-examination conceded the fact that they never

pointed out the house of occurrence or the house of Masood Akbar

Warraich to the I.O of the case. These PWs have not mentioned any

weapon (Danda) etc. carried by accused/persons of this case while

leaving the house of occurrence because prosecution did not claim

availability of crime weapon at the place of occurrence on first

inspection. Their statements are also not of worth because they did not

see the accused/appellants in a situation when they were allegedly

committing the murders.

Claim of these PWs of their appearance before the police on the

same night i.e., 22.04.2014 after registration of FIR also does not

appeal to the reason because no supplementary statement of the

complainant was available of said date and Ch. Zia-ud-din Draftsman

conceded during cross examination that on Ex. PC (site plan), the I.O.

has written in red notes that accused were not known till 28.04.2014.

Further when these two witnesses appeared during identification

parade, they might have given some statements but identification

parade with complete proceedings was not produced in the evidence,

therefore, it could not help the prosecution to use such identification

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parade as explanatory evidence. Defence claimed these two PWs as

stock witnesses being gunmen of Masood Akbar Warraich, Khalo of

Muhammad Umar accused/appellant and PW-17 during cross

examination stated for such fact as under:-

“During my investigation from 08.05.2014 to onward, the

complainant party did not produce any evidence to controvert

that Muhammad Munir and Ahmad Raza were not gunmen of

Khalu of accused.”

Investigating officer further conceded during cross-examination

that neither he obtained CDR of these PWs nor collected any ticket

etc. of their bus travelling to Lahore on the fateful day. Thus, presence

of PW-1 & PW-2 could not be established as claimed by them.

14. 2

nd set of two witnesses namely Imran Yasin PW-3 & Javid

Iqbal PW-4 deposed to the effect that on 21.04.2014 at 11.00 p.m.

they both saw the appellants while ringing the doorbell at house of

occurrence. Imran Yousaf PW-3 claimed himself as an employee at

Paan & cigarette shop of Khalid Hussain, father-in-law of Kanwal

deceased while Javid Iqbal, PW-4 as Humzulf (husband of wife’s

sister) of Khalid Hussain. According to their statement, they were

proceeding to main bazar Johar Town on a motor cycle when saw the

accused at the door of house of occurrence, and thereafter both these

witnesses went to Rawalpindi who after their return came to know

about the occurrence. PW-3 being permanent resident of Arifwala,

Pakpatan was working at the rented shop of Khalid Hussain at Muslim

Town Morr and Javid Iqbal was running his business of flower shop at

Litton Road, Chowk Jinnah and Shahdara. Both being not of same age

nor resident of Johar Town are not expected to be present at the place

of occurrence at the relevant time; therefore, being chance witness,

they could not justify their presence. It has further been observed that

neither they submit the proof of their commutation to Rawalpindi, nor

Khalid Hussain appeared as a witness to establish his relation with the

witnesses as claimed by them. They both made statement before the

investigating officer on 09.05.2014 as per deposition of PW-17. This

delay of 18 days since 21.04.2014 could not be justified by them.

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Thus, there testimony is of not a value to accept as a support to

prosecution case.

15. Identification parade was deficient to be read into the evidence

because when Magistrate appeared before the trial Court to record his

statement as PW-15 stated as under:-

“It is correct that the original report and proceedings of

identification parade recorded by me are not present before

me.”

A photo copy of identification parade was produced that too with one

page missing wherein only the proceedings to the extent of PW-1 is

mentioned. Mudassar Hassan, Magistrate (PW-15) while appearing

before the trial Court has also not narrated the whole proceedings of

identification parade, however, during cross examination claimed that

PWs have stated the roles of accused but conceded that neither he

recorded features of dummies nor mentioned that PWs have identified

the accused with features, further conceded that he did not verify the

objection raised by accused of their taking of pictures in the police

station; therefore, fact of identification of accused remained unsatiated

and was not proved. However, perusal of record shows that original

report of identification parade is available in the file but could not be

exhibited in evidence. It has further been observed that it was a joint

identification parade which cannot be read against the accused/

appellants because it opposes to dictum laid down by Supreme Court

of Pakistan in many cases like PLD 2019 Supreme Court 488

wherein notice was given to Kanwar Anwar Ali, Special Judicial

Magistrate for his dereliction of duty and lack of sufficient legal

knowledge on conducting defective identification parade, and “Mian

SOHAIL AHMED and others Versus The STATE and others” (2019

SCMR 1956).

16. As far as the recovery of certain articles belonging to the

deceased are concerned, it is sufficient to mention complainant has

not given any details of said articles during registration of FIR rather

through his supplementary statement claimed that household articles

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which includes mobile phone, LCD, gold ornaments, passport etc.

were allegedly stolen by the accused/appellants. Such supplementary

statement dated 22.04.2014 in the form of written application is

available in the record but has not been exhibited as opposed to

dictum laid down by Supreme Court of Pakistan in a case reported as

“THE STATE and others Versus Abdul Khaliq and others” (PLD

2011 Supreme Court 554), followed in case reported as “YASIR

IMRAN alias YASIR ARAFAT Versus MUHAMMAD ASHRAF and

another” (2014 MLD 337). Non-exhibition of such supplementary

statement (in written form) seemed result of malafide because in such

application names of Muhammad Asim and Muhammad Umar were

mentioned as accused persons despite the fact source of their

nomination was not available with the prosecution, as by then PW-1

or PW-2 did not name any of the accused persons. It was a worst case

of tunnel vision wherein investigation was fully directed and under the

lead of influential who wanted to book the offenders at every cost.

This malafide of prosecution could be arrested, had the complainant

alive and appeared in the dock who did not care for whole day to

check the house why it was locked with no response from inside,

rather preferred to roam around different places without any tension or

depression, and also did not inquire or seek help from the neighbours

or relatives of her step daughter. All that shows that complainant was

hiding something unpleasant against his own near and dear due to

which his affinity with his step daughter fell short of. Thus, details of

articles which were stolen could not be brought on record except in

the form of recovery, later shown from the accused/appellants. I am

conscious that PW-1 and PW-2 though have stated to have seen the

accused/appellants with LCD and house hold articles but PW-1

explained in examination in chief that household articles were in a

cloth in the form of a bale. Similarly, PW-2 has also not stated the

details of household articles that was the reason they were confronted

with their statement under section 161 Cr.P.C. against the fact of

carrying LCD. After recovery such articles were allegedly identified

by the complainant, his son Munawar Hussain Baig PW-5 & mother

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of Kanwal deceased. Complainant did not appear as witness as being

dead, mother of Kanwal deceased was not produced, whereas PW-5

neither narrated in his statement about the details of all articles nor he

was the resident of house of occurrence so as to correctly identify

such articles. Even otherwise process of identification of an article is

also required to be conducted by the Magistrate in the same fashion as

he does for identification of a suspect. This has been explained in law

in terms that evidentiary value of identification parade as being

relevant fact in the form of explanatory evidence is regulated under

Article 22 of Qanun-e-Shahadat Order, 1984, relevant part may be

read as under:-

22. Facts necessary to explain or introduce relevant facts:

Facts necessary to explain or introduce a fact in issue or

relevant fact, or which support or rebut an inference suggested

by a fact in issue or relevant fact, or which establish the

identity of anything or person whose identity is relevant, or

fix the time or place at which any fact in issue, or relevant fact

happened, or Which show the relation of parties by whom any

such fact was transacted, are relevant in so far as they are

necessary for that purpose.

(Emphasis supplied)

The words ‘identity of anything or person’ in the above Article makes

no difference of process for both. I am also mindful of the fact that

identification of articles in the manner as has been done in this case, is

least permissible in law. The most essential requirement is that the

witnesses should not have had an opportunity of seeing the property

after its recovery and before its identification before the Magistrate.

For that purpose, it is necessary to seal the property as soon as it is

recovered and to keep it in a sealed condition till it is produced before

the Magistrate. If the police officers who take the sealed bundles to

the police station after recovery and who take it to the Magistrate for

identification proceedings should be examined to prove that the sealed

bundles were not tampered in the way. The sealed bundles should be

opened in the presence of the Magistrate conducting the identification

proceedings and he should depose about it. The property to be mixed

with the property to be identified should also be sealed some days

before witnesses are called and the bundle containing it should also be

Crl. Appeal No.58520 of 2020

Criminal Revision No. 49773 of 2020

opened in the presence of the Magistrate who should testify about it in

Court. Further the result of identification should be entered in the

memorandum by the Magistrate in his own hand. Reliance is placed

on a judgment from Indian jurisdiction reported as “State of Vindhya

Pradeshs v. Sarua Munni Dhimar and others” (AIR 1954 V.P 42

(Vol. 41 C.N.15) and reliance is also on decision by Federal Shariat

Court in cases reported as “NOOR ULLAH and 2 others versus THE

STATE and another” (2012 YLR 2618) and “The STATE versus ZAR

MUHAMMAD and 3 others” (2019 YLR 1663). On the touchstone of

above referred citations, I have no doubt to hold that in the instant

case the identification of recovered items has not been properly

conducted, rendering the entire recovery a nullity in the eyes of law,

therefore, it cannot be said with certainty that the recovered articles

were the same which were allegedly stolen. The recovered jewelry,

the alleged stolen property, has been attempted to be proved as

belongings of the deceased but no receipt etc., was produced by the

prosecution before the I.O in support of their stance. Similar is the

position with the identification of mobile phones and other alleged

stolen articles. The I.O neither got forensic audit of the said mobiles

from the expert concerned who may have retrieved data therefrom

including the person who were in use of these mobile phones. Such

failure on the part of investigator makes the recovery of these articles

doubtful. Supreme Court of Pakistan has held that in cases of

circumstantial evidence, there is every chance of fabricating the

evidence, which can easily be procured; therefore, Courts are required

to take extra care and caution to narrowly examine such evidence with

pure judicial approach to satisfy itself, about its intrinsic worth and

reliability, also ensuring that no dishonesty was committed during the

course of collecting such evidence by the investigators. If there are

apparent indications of designs on part of the investigating agency in

the preparation of a case resting on circumstantial evidence, the Court

must be on guard against the trap of being deliberately misled into a

false inference. Reliance is placed on case titled “Hashim Qasim and

another Vs. The State” (2017 SCMR 986).

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17. SIM P-64 recovered from the place of occurrence by Zulfiqar

Ahmad, investigator (PW-17) was claimed to be found in the name of

wife of Asim accused/appellant. Muhammad Waqas 23386/C PW-9

appeared as recovery witness of such SIM but conceded that he

cannot tell the surroundings of place of occurrence, i.e., east, west,

south and north despite the fact he visited that place thereafter 2/3

times. Investigator PW-17 conceded that he had not recorded the

statement of any official of mobile company in this respect. Further

conceded that neither he took into possession the mobile phones of

accused Muhammad Umar and Muhammad Asim nor collected their

CDR. Thus, this evidence is also not useful for prosecution.

18. In this case, main stay of prosecution was of DNA profile

matching and matching of finger prints. According to report of PFSA

Ex.PAA, DNA profile obtained from Tape role, Right hand nail

scraping of Tayyaba and swabs taken from glass (items; 2, 5 & 9.1)

stood matched with DNA profile of Muhammad Asim

accused/appellant whereas DNA profile generated from ‘Right hand

nail scraping of Kanwal Bibi’(item-3) stood matched with DNA

profile of Muhammad Umar accused/appellant. Similarly, as per

Report EX.PBB, finger prints on ‘an empty used ceramic cup of tea’

were found to be identical with Muhammad Asim accused/appellant.

It was shown that samples for DNA and LFP were collected by the

crime scene unit of PFSA. PW-16 Muhammad Azeem Junior forensic

scientist stated that he collected 22 exhibits from the place of

occurrence mentioned in exhibit sheet Ex. PT and deposited the same

before ERU (evidence receiving unit) of PFSA on 23.04.2014. First

anomaly as observed was of direct depositing of samples by the expert

which was not the mandate of PFSA as held in preceding paragraphs

No. 8 & 9. Neither such samples were recorded in register No.19 of

police station for their custody and then dispatch to PFSA nor PFSA

report Ex. PAA mentions the name of any scientist who deposited

such samples except the expression ‘received from crime scene unit’.

PFSA has also not mentioned the nature of seal over such samples.

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Some of the samples were also deposited by Muhammad Boota

14412/C firstly on 28.04.2014 and then on 5

th May, 2014 as

mentioned in the PFSA report without specifying the nature of

samples in the report. If Boota was the man who deposited the

samples and that too on 5th May, 2014, then prosecution case becomes

zero because by then accused have already been arrested on

29.04.2014. Thus, sampling is in serious doubts. No seminal material

was detected on the vaginal swabs of victims/deceased ladies which

indicates a different story, if the victims were at the mercy of accused

for whole night. No drug or poison was detected from the water rinse

bottles which were transmitted to the office of PFSA for analysis. It

has further been observed that despite the fact that human DNA was

obtained from items 1.1, 4, 6, 7.1, 8.1, 10.1, 11.1, 12.1, and 15 but no

DNA profile matching was done, similarly, analysis of item 16 was

also not done. All that indicate something adverse to prosecution,

disclosure of which may have run against the culpability of accused

persons and it can safely be said that it was an attempt to hide or

conceal something to save the actual culprits responsible for such

murders. Thus, Prosecution has not come up with complete truth. It

has further been observed that expert who appeared as PW-16 neither

deposed about the complete process of collection of samples with

precautions taken to avoid contamination nor stated the places from

where his team preferred to take such samples. In this case what the

expert or police had collected from the spot remained within the

knowledge of police and experts only because neither complainant,

his son nor other private person are the attesting witnesses to such

sampling and collection. Moreover, deposition of Zulfiqar Ahmad

PW-17, investigator put another doubt when he without naming the

forensic scientist said that “officials of crime scene unit of PFSA

procured finger prints and DNA sampling of accused persons

thorough collecting 22 different articles” which raises a suspicion that

sampling was done in the presence of accused/appellants that was the

reason both accused/appellants while responding to question No.4 in

their statements under section 342 Cr.P.C stated that they were

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arrested much prior to the date as shown by the police. These

statements of accused/appellants also lend support from the deposition

of investigator PW-17 when stated that “I formally arrested the

accused Muhammad Asim and Muhammad Umer on 29.04.2014”.

Word “formally” has clear connotation that they were already in

custody. Sans direct evidence and frail circumstantial evidence, Court

cannot record conviction mere on the basis of PFSA reports

particularly when there are serious doubts on preservation, collection,

packaging and dispatch of samples. Reliance is on case reported as

“BAHADER KHAN Versus THE STATE and another” (2012 P Cr. L

J 24).

19. On the basis of claim for matching of DNA profile of

Muhammad Asim with DNA available on tape role, glass and nail

scraping of Tayyaba; and finger prints on ‘an empty used ceramic cup

of tea’ were found to be identical with Muhammad Asim accused,

likewise matching DNA of Muhammad Umar with nail scraping of

Kanwal deceased, learned counsel for the complainant stated that

conviction can be recorded even on the basis of forensic evidence and

has referred proviso to Article 164 of the Qanun-e-Shahadat Order,

1984. Which says that “conviction on the basis of modern devices or

techniques may be lawful”. Counsel was reminded that proviso to

Article 164 was added in the year 2017 but present case relates to the

year 2014 well before the said amendment. Even otherwise, nonanalysis of item No.16 and non-disclosure of matching of human

DNA on other items with any other person or with the

accused/appellants plus above cited irregularities make such evidence

doubtful. Even otherwise such reports are only corroborative evidence

and corroborative evidence could only be relied upon if the

prosecution has proved the case through substantive evidence and in

this case, there is no direct evidence of committing of murder;

circumstantial evidence structured by the prosecution is of no worth to

rely on to pass or uphold conviction against the accused/appellants.

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20.

So far as medical evidence is concerned, it has been observed

that Kanwal died of asphyxia due to manual restriction of breathing

while applying yellowish sticky material while Tayyaba due to head

injury in the nature of gapped incised wound on her forehead. Nobody

has witnessed the occurrence; therefore, the condition of dead bodies

hardly helps the prosecution to claim it as supportive evidence. Even

no evidence of rape was available due to absence of marks of violence

near or around the organs of generation as mentioned in postmortem

reports, nor seminal material was detected on the vaginal swabs. Thus,

medical evidence in this case is only in support of a fact in issue that

two ladies have met unnatural death. It is trite that medical evidence

cannot be made basis to record or sustain conviction because it could

only give details about the locale, dimension, kind of weapon used,

the duration between injury and medical examination or death and

autopsy, etc. but never identifies the real assailant. In the case

“MUNAWAR ALI alias MUNAWAR HUSSAIN versus THE STATE”

(PLD 1993 Supreme Court 251) the Supreme Court of Pakistan held

that:-

“Medical evidence is corroboration to show that injuries were

caused in a particular manner, with particular weapon and

even it can supply corroboration to the fact as to how many

assailants there were and whether number of injuries is

commensurate with number of assailants or not, but, medical

evidence can never be used as corroboration qua accused to

show that particular accused has caused these injuries.”

21. For what has been discussed above and having considering all

the pros and cons of this case, I have come to this irresistible

conclusion that the prosecution could not prove its case against the

appellant beyond reasonable doubt and it is trite that to extend benefit

of doubt to an accused person, it is not necessary that there should be

several circumstances creating doubt, rather one reasonable doubt is

sufficient to acquit. Reliance is placed on the cases “Sajjad Hussain

Vs. The State” (2022 SCMR 1540) and “Abdul Ghafoor Vs. The

State” (2022 SCMR 1527). Consequently, the appeal is allowed and

the accused/appellants Muhammad Umer and Muhammad Asim are

acquitted of the charges. They are directed to be released forthwith if

Criminal Revision No. 49773 of 2020

not required in any other case. The case property, if any, shall be

disposed of in accordance with law and the record of the trial Court be

sent back immediately.

22. In the light of above discussion, Criminal Revision No.49773 of

2020 for enhancement of sentence of the appellants has become

infructuous and is dismissed.

(Muhammad Amjad Rafiq)

Judg

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