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.
8
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
Crl. Appeal No.58520 of 2020
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2
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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3
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.
4.
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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4
under Section 340(2) Cr.P.C. After conclusion of trial, they were
convicted and sentenced forecited.
5.
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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5
(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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6
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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7
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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8
“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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9
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
Crl. Appeal No.58520 of 2020
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10
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
Crl. Appeal No.58520 of 2020
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11
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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14
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
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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
Crl. Appeal No.58520 of 2020
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18
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
20
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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