PLJ 2021 SC (Cr.C.) 241
[Appellate Jurisdiction]
Present:
Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ.
ALI
HAIDER alias PAPU--Petitioner
versus
JAMEEL
HUSSAIN and others--Respondents
Crl. P. No. 513 of 2020, decided on 7.1.2021.
(Against
the judgment of Lahore High Court, Multan Bench, dated 11.02.2020, passed in
Criminal Appeal No. 436 of 2017 and Capital Sentence Reference No. 61 of 2017).
----S. 302(b)--Qatl-i-Amd--Circumstantial
evidence--Conviction and sentence--Challenge to--Extra judicial
confession--Medical evidence supports prosecution case--PW’ s were residents of
locality and their presence near place of occurrence is quite natural--Extra
judicial confession is also inspires confidence when it is read in conjunction
with other circumstantial evidence--Deceased had suffered vaginal injury, as
her hymen was found freshly torn--Death of deceased occurred due to throttling
tallies with DNA report regarding swab obtained from neck of deceased--DNA
report states matching of DNA found in that swab with that of petitioner--Rope
of circumstantial evidence adduced by prosecution ties dead body of deceased
with neck of petitioner--Death sentence upheld.
[Pp.
244, 245, 248 & 249] A, C, D, I, J & K
Qanun-e-Shahadat
Order, 1984 (10 of 1984)--
----Art. 164--Importance of modern
forensic techniques and science under criminal justice system
explained--Science grows so will forensic techniques, tools and devices; courts
must be open to development in forensic science and embrace new techniques and
devices to resolve a dispute. [P. 244] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164--Expert
Evidence--Art. 164 & 59 allows modern forensic science to enter
courts through credible and valued scientific opinions of experts as evidence,
in order to arrive at truth.
[P.
245] B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art.
164--DNA--DNA as a scientific evidence means
“Deoxyribonucleic acid”--DNA can be found in human body and samples from semen,
hair, blood, flesh can establish a DNA match in with DNA of another human
being--Each human being has a unique DNA pattern, which is acquired by
inheriting it from biological parents--DNA analysis on saliva, skin tissue,
blood, hair, and semen can now be reliable used to link criminals to crimes.
[P.
245] C
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art.
164--DNA--This scientific evidence is much speedier, specific, accurate and
conclusive than any other human evidence and can stand scrutiny of court to
determine guilt or innocence of an accused--Through use of DNA evidence,
prosecutors can establish guilt of accused and at same time, DNA aids search
for truth by exonerating innocent. [P.
245] D
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164
& 59--Expert Evidence--DNA report like any other opinion of an expert under
Art. 59 is relevant and thus admissible.
[P.
246] E
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164 & 59--Expert Evidence--Admissibility
of expert opinion is recognized under QSO, section 510 Cr.P.C.--Certain
reports of chemical examiner etc may be used in any
trial without calling chemical examiner, serologist,, finger print expert or
fire arm expert as a witness, has objective of saving time and speeding
criminal trials. [P. 247] F
Punjab Forensic Science Agency
Act, 2007 (XIII of 2007)--
----S. 9--An expert of PFSA is considered to be an expert in
terms of S. 510 Cr.P.C.--Therefore, DNA test report
prepared by an expert of PFSA is per se admissible. [P. 247] G
Qanun-e-Shahadat
Order, 1984 (10 of 1984)--
----Art. 164--Criminal Procedure Code, (V of 1898), S.
510--Art. 164 of QSO, 1984 holds immense importance especially after insertion
of proviso through Act 4 of 2017 and demands that scope of expert opinions
under article 59 and special rule of evidence U/s. 510 Cr.P.C.
be interpreted progressively. [P. 248]
H
2016
SCMR 274 ref.
Qanun-e-Shahadat
Order, 1984 (10 of 1984)--
----Art. 164--DNA--DNA test due to
its accuracy and conclusiveness is one of strongest corroborative piece of
evidence. [P.
248] I
2013
SCMR 203; PLD 2010 FSC 215 ref.
Raja M. Shafat Khan, ASC for
Petitioner.
Mirza Abid
Majeed, DPG for State.
Research Assistance by Rana
Shaheryar, Research Officer/Civil Judge, SCRC,
Date of hearing: 7.1.2021.
Judgment
Syed Mansoor Ali Shah, J.--This
is a troubling and a gut-wrenching case of rape, murder and capital punishment.
Almost eight year old, Rimsha Bibi
(“deceased”) who left her house for summer tuition in the neighbourhood
was raped in the loneliness of a jawar (millet) field
and then silenced forever by being brutally murdered. First Information Report
(“FIR”) was registered by the father of the deceased against an unknown person
for offences under Sections 302 and 376(i) of the Pakistan Penal Code, 1860
(“P.P.C.”) on 29.06.2016. In the supplementary statement recorded the next day,
the complainant revealed that Jabbar Hussain (PW-6) and Tufail Shah
(PW-7) had seen Ali Haider alias Pappu
(“petitioner”) coming out of the jawar field from
where the dead body of the deceased was recovered at 4:00 p.m. on the fateful
day, while tightening the string of his shalwar.
2. The petitioner was indicted and tried for the alleged
offences. On conclusion of the trial, he was convicted by the trial Court under
Section 302(b) of P.P.C., and sentenced to death and directed to pay
compensation of Rs. 200,000/-to the legal heirs of
the deceased and in default thereof to undergo further simple imprisonment for
six months. He was also convicted under Section 376 of P.P.C. and sentenced to
imprisonment for life with fine of Rs. 30,000/-to be
paid to the legal heirs of the deceased and in default thereof to further
undergo simple imprisonment for three months. On appeal to the High Court by
the petitioner, which was heard along with the Murder Reference sent up by the
trial Court, the High Court maintained the convictions and sentences of the
petitioner. The murder reference was answered in the affirmative and the death
sentence was confirmed through the impugned judgment.
3. We have examined the record of the case with the able
assistance of the learned counsel for the parties. The gruesome incident was
unseen. The circumstantial evidence pieced together by the prosecution, to the
petitioner with the rape and murder of the deceased comprises: (i) the evidence
of waj takkar of Jabbar Hussain (PW-6) and Tufail Shah (PW-7) who had seen the petitioner coming out
of the place of occurrence, i.e., jawar field,
at 04:00 p.m. tightening the string of his shalwar;
(ii) the extra judicial confession of the petitioner, admitting commission of
rape and murder of the deceased in the presence of the complainant (PW-1) and
the said two witnesses of waj takkar
evidence (iii) the medical evidence including the post-mortem report (Ex-PL)
and the statement of Dr. Sunia (PW-11), WHO, DHQ
Hospital Vehari, who had conducted the post-mortem
examination of the deceased: and (iv) the DNA Test Report regarding the vaginal
swabs of the deceased as well as the swab obtained from the neck of the
deceased, which reported matching of the DNA found in those swabs with that of
the petitioner.
Importance of modern forensic
science and DNA
4.
Before analyzing the circumstantial evidence, it might be useful to underline
the role of science, modern forensic techniques and devices under our criminal
justice system. For the law to serve people in this technologically complex
society, Courts need to understand and be open to science and its principles,
tools and techniques. Legal decisions of the Courts must fall within the
boundaries of scientifically sound knowledge. A judge and more so a trial
judge, acts as a gatekeeper of the scientific evidence and must, therefore,
enjoy a good sense and understanding of science. As science grows so will the
forensic techniques, tools and devices; therefore, Courts must be open to
developments in forensic science and embrace new techniques and devices to
resolve a dispute, provided the said technique and device is well established
and widely accepted in the scientific community as a credible and reliable
technique or device.[1]
Article 164 of the Qanun-e-Shahadat
Order, 1984 (QSO) is our gateway allowing modern forensic science to come into
our Courtrooms. Article 164 provides that Courts may allow to be produced any
evidence that may have become available because of modern devices and
techniques. Proviso[2]
to Article 164, added in the year 2017, provides that conviction on the basis
of modern devices and techniques may be lawful. Article 164 read with Article
59, inter alia, allows modern forensic science to enter Courts through
the credible and valued scientific opinions of experts as evidence, in order to
arrive at the truth.
5.
The most significant advancement in criminal investigation
since the advent of fingerprint identification is the use of DNA technology to
help convict criminals or eliminate persons as suspects. DNA as a scientific
evidence means ‘deoxyribonucleic acid.’ DNA can be found in the human body and
samples from semen, hair, blood, flesh can establish a DNA matching with the
DNA of another human being. Each human being has a unique DNA pattern, which is
acquired by inheriting it from the biological parents. DNA analyses on saliva,
skin tissue, blood, hair, and semen can now be reliably used to link criminals
to crimes. Increasingly accepted during the past 10 years, DNA technology is
now widely used in many jurisdictions by police, prosecutors, defense counsel,
and Courts.[3]
This scientific evidence is much speedier, specific, accurate and conclusive
than any other human evidence and can stand the scrutiny of the Court to
determine the guilt or innocence of an accused. In criminal cases, like rape,
murder, etc., timely medical examination and proper sampling of body fluids
followed by quality forensic analysis can offer irrefutable evidence. Criminal
justice system is in search for the truth. The development of DNA technology
furthers the search for truth by helping police and prosecutors in the fight
against violent crimes. Through the use of DNA evidence, prosecutors can
establish the guilt of accused and at the same time, DNA aids the search for
truth by exonerating the innocent.[4]
An authoritative study on the forensic uses of DNA, conducted by the National
Research Council of the National Academy of Sciences, USA has noted that:
“... the reliability of DNA evidence will permit it to exonerate
some people who would have been wrongfully accused or convicted without it.
Therefore, DNA identification is not only a way of securing convictions; it is
also a way of excluding suspects who might otherwise be falsely charged with
and convicted of serious crimes.”[5]
Admissibility of DNA Test
6.
DNA Report like any other opinion of an expert under Article 59 is relevant and
thus admissible. Article 164 of the QSO further underlines the admissibility,
reliability and weightage of modern scientific forensic evidence, including the
DNA test, as the said Article provides that convictions may be based on modern
techniques and devices. Over the years DNA test has also come to be recognized
by our statutory criminal law. Section 164-A,[6]
Cr.P.C provides that where an offence of committing
rape, unnatural offence or sexual abuse or an attempt to commit rape or
unnatural offence or sexual abuse under Section 376, Section 377 or Section
377-B respectively of the P.P.C. is under investigation the victim shall be
examined by a medical practitioner who shall examine the victim and prepare a
report of examination giving, inter alia, the “description of material
taken from body of the victim for DNA profiling” under Section 164A(2)(c).
Similarly, under Section 53A[7]
where a person is arrested on a charge of committing an offence of rape or
unnatural offence or sexual abuse or an attempt to commit rape or unnatural
offence or sexual abuse under Section 376, Section 377 or Section 377-B
respectively of the P.P.C. and there are reasonable grounds for believing that
an examination of the arrested person will afford evidence as to the commission
of such offence it is lawful for the medical practitioner to make such an
examination of the arrested person and to use such force as is reasonably
necessary for that purpose. The medical practitioner conducting examination is
to examine, without delay, such person and prepare a report of the examination
giving, inter alia, the description of material taken from person of the
accused for DNA profiling, under Section 53A(2)(d).
Under Section 164-B[8]
where an offence under Sections 376, 377 or Section 377-B, P.P.C. is committed
or attempted to have been committed or alleged to have been committed, DNA
samples where practicable, are to be collected from the victim with his or her
consent or with the consent of his or her natural or legal guardian as provided
in Section 164A and DNA samples of the accused under Section 53A, both within
optimal time period of receiving information relating to the commission of such
offence. Under subsection (2) of Section 164B, such DNA samples are to be sent,
at the earliest, for investigation to a forensic laboratory where these are to
be properly examined and preserved by observing confidentiality of such
examination at all times. The above legislative framework underscores the
relevancy and thus the admissibility of a DNA Test.
Admissible
versus per se admissible
7.
While the admissibility of expert opinion is already recognized under QSO,
Section 510, Cr.P.C. deals with special rules of
evidence and makes the evidentiary procedure simple by providing that certain
reports of the chemical examiner, etc. may be used in any trial without calling
the Government Chemical Examiner, Serologist, finger print expert or fire-arm
expert as a witness. Allowing admission of reports of the said Governmental
experts in evidence without their author appearing as a witness has the
objective of saving time and speeding up criminal trials. This simple procedure
of admission of these reports in evidence, is referred
to as per se admissible. However, the Court may if it considers necessary, in
the interest of justice, summon and examine the person by whom such a report
has been made. Section 510, Cr.P.C refers to reports
of certain experts only but does not specifically mention the expert who
conducts DNA analysis, hence the DNA Test report is not per se admissible but
it is certainly admissible if tendered in evidence by examining as witness the
expert under whose hand it is prepared as per the QSO. Additionally, under
Section 9 of the Punjab Forensic Science Agency Act, 2007 an expert of
the PFSA is considered to be an expert in terms of Section 510, Cr.P.C. Therefore, DNA Test Report prepared by an expert of
the PFSA is per se admissible.
8. This Court in Azeem Khan case[9]
questioned the admissibility of the DNA Test Report on the touchstone of
Section 510, Cr.P.C. and left it open to be discussed
in some other case. It is, therefore, important to address this question and
clear the air regarding the admissibility of DNA Test Report. As explained
above, per se admissibility is a procedural facility for tendering evidence
extended to reports of certain experts but it does not affect or have any
bearing on the admissibility of a document which is governed by the QSO, and
any report or opinion of an expert in matters of science, etc., which is
recognized to be relevant under Articles 59 and 164 QSO and is thus admissible
under the law of evidence (QSO). Besides, much water has flown under the
bridge, since Azeem Khan case. There has been new legislation giving DNA
Test, statutory recognition and importance. Article 164 QSO holds immense
importance especially after the insertion of the proviso through Act 4 of 2017
in the year 2017[10]
and demands that the scope of expert opinions under Article 59 QSO and the
special rule of evidence under Section 510, Cr.P.C.
be interpreted progressively in the years to come to give more space and
recognition to modern forensic science.
9.
It is important to underline that the use of the word “Chemical Examiner” in
Section 510, Cr.P.C. is almost obsolete and has no
established definition. Now, “forensic scientists” run and manage modern
forensic laboratories. It is time for the Government to consider revision of
Section 510, Cr.P.C. allowing reports of all the
Government forensic scientists (as opposed to the specified ones under Section
510, Cr.P.C) to be per se admissible, to speed up the
wheels of dispensation of criminal justice in the country. Needless to say that under the proviso to Section 510, Cr.P.C
the Courts can always summon and examine the expert who has prepared and
authored the report.
DNA,
strongest corroborative piece of evidence today
10.
DNA evidence is considered as a gold standard to establish the identity of an
accused. As a sequel of above discussion, it can safely be concluded that DNA
Test due to its accuracy and conclusiveness is one of the strongest
corroborative pieces of evidence. In Salman Akram
Raja case[11]
this Court has held that DNA test help provides the Courts the identity of the
perpetrator with high degree of confidence, and by using of the DNA technology
the Courts are in a better position to reach at a just conclusion whereby
convicting the real culprits and excluding the potential suspects, as well as,
exonerating wrongfully involved accused. DNA test with scientific certainty and
clarity points towards the perpetrator and is, therefore, considered one of the
strongest corroborative evidence today, especially in cases of rape. The
usefulness of DNA analysis, however, depends mostly on the skill, ability and
integrity shown by the Investigating Officers, who are
the first to arrive at the scene of the crime. Unless the evidence is properly
documented, collected, packaged and preserved, it will not meet the legal and
scientific requirements for admissibility into a Court of law.
11.
Coming back to the merits of the case, we find that Jabbar
Hussain (PW-6) and Tufail
Shah (PW-7) were not chance witnesses. They were residents of the locality and
their presence near the place of occurrence, i.e., the jawar field, was quite natural. They saw the petitioner
coming out of that field while tightening the string of his shalwar
at a time that is in line with the time of occurrence reported in the FIR and
the approximate time of death of the deceased mentioned in the post-mortem
report. The extrajudicial confession though is a weak piece of evidence; but in
the present case, it also inspires confidence when it is read in conjunction
with other circumstantial evidence. The medical evidence, viz,
the post mortem report (Ex-PL) and statement of Dr. Sunia
(PW-11) who made the post-mortem examination of the deceased, supports the
prosecution case. The fact established by the medical evidence that the
deceased had suffered vaginal injury, as her hymen was found freshly torn with
tear at 6 O’clock extending upto perineum with fresh
bleeding, clearly supports the prosecution case that the deceased was raped
before causing her death. The medical opinion of Dr. Sunia
(PW-11) that the death of the deceased occurred due to throttling tallies with
the DNA report regarding the swab obtained from the neck of the deceased: the
DNA report states matching of the DNA found in that swab with that of the
petitioner. The most important piece of circumstantial evidence in the present
case, we find, is the DNA Test Report (Ex-PP) of the Punjab Forensic Science
Agency (“PFSA”). Three vaginal swabs, one swab taken from the neck of the
deceased and stained Sections of the shalwar and
shirt of the deceased along with buccal swab of the
petitioner were sent to the PFSA for forensic examination. According to the DNA
Test Report the semen from vaginal swabs, as well as, the stain of the shalwar of the deceased matched the DNA of the petitioner.
The DNA in the swab obtained from the neck of the deceased also matched the DNA
of the petitioner. The waj takkar
evidence, evidence of extrajudicial confession, medical evidence and DNA Test
Report, together and clearly connects the petitioner with the rape and murder
of the deceased, Rimsha Bibi.
The chain of circumstantial evidence is firm and continuous, leaving no margin
for the hypothesis of innocence of the petitioner. The rope of circumstantial
evidence, adduced by the prosecution, ties the dead body of the deceased with
the neck of the petitioner. The prosecution has thus proved its case against
the petitioner beyond reasonable doubt. Therefore, we are not persuaded to
espouse a view different from that given by the trial Court and confirmed by
the High Court as to the convictions and sentences of the petitioner.
Accordingly, leave is refused and this petition is dismissed.