PLJ 2022 Cr.C. 228
[Lahore High Court, Multan Bench]
Present:
Alia Zia
Bajwa, J.
IRFAN alias
IMRAN alias KADU--Appellant
versus
STATE
and another--Respondents
Crl. A.
No. 478 of 2012, heard on 8.9.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S.
376--Qanun-e-Shahadat Order, (10 of 1984), Art. 2(c)--Rape--DNA report--value
of--Acquittal of--Complainant is not the eye-witness of the occurrence, whereas
ocular account in this case consists of two witnesses--Statements of PW’s are
at variance qua their reaction on attracting to the place of occurrence and
seeing the appellant allegedly in naked condition--Both the prosecution
witnesses are closely related to the victim but on reaching house of the complainant,
they opted to wait for his return and didn’t report the matter to the police
promptly--DNA report available on record suggests that sperm fractions in
vaginal swabs and stains on the shalwar did not match with the profile
of the appellant rather sperm fractions were of some unknown person--Sperm
fraction extracted from vaginal swabs is identical to the sperm fraction
extracted from the stains available on shalwar of the victim, which are
of some other person rather than that of the appellant--In the present case
best possible evidence available is DNA test, which does not support the
prosecution version--Article 2(c) of Qanun-e-Shahadat Order, 1984, evidence
includes both statements in oral form and documents produced before the Court
for evaluation--Arriving at a decision without considering entire evidence
available on the record shall definitely lead to miscarriage of
justice--Negative DNA report qua the appellant shattered the entire prosecution
case--Appellant is acquitted.
[Pp.
231, 232, 233, 234, 235 & 236] A, B, C, D, E, F, G & H
2021 SCMR 736 & 873; PLD 2021 SC 362, PLD 2021 SC 550;
PLD 2021 SC 600, PLD 2020 SC 146; 2013 SCMR 203; 2021 MLD 69; PLD 2002 SC
1048; 2017 YLR 156; 2016 YLR 797; 2013
YLR 272;
AIR 1988 SC 1998 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376--Benefit of doubt--Court may err in letting off 100
guilty but should not convict one innocent person.—Concept of benefit of doubt
is decade tested principle of criminal justice system and has its roots in
Islamic law. [P. 236] G
PLD 2002 SC 1048 ref.
Mr. Ghulam Farid Gurmani,
Advocate for Appellant.
Mr. Ansar Yasin, Deputy
Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 08.09.2021
Judgment
Irfan alias Imran alias
Kadu son of Liaquat Ali, caste Faqeer, resident of Mouza Mast Purah Basti Nawan
Sher, Kabirwala, District Khanewal, appellant, was involved in case FIR No.
30/2011, dated 15.01.2011, offence under Section 376, PPC, registered with
Police Station Saddar Kabirwala. He was tried by learned Additional Sessions
Judge, Kabirwala, under the afore-mentioned offence. Learned trial Court
vide its judgment dated 17.07.2012 convicted and sentenced the appellant in
the following terms:-
Ø
Under
Section 376, PPC, sentenced to undergo R.I. for twelve (12) years with
fine of Rs. 50,000/- and in case of default in payment thereof, to further
undergo S.I. for two months.
Ø
Benefit
of Section 382-B, Cr.P.C. was also extended in favour of the appellant.
The appellant assailed his conviction
and sentence through the instant appeal.
2. The prosecution story as
portrayed in the FIR (Exh.PA/1) lodged on the application (Exh.PA) of Muhammad
Iqbal son of Sohara, caste Sipra, (PW-4) is that he is resident of Mouza
Mastpura, District Khanewal and earns his livelihood through manual labour. On
13.01.2011, he had gone out for labour, when at about 3:00/4:00 p.m. Mst.
Nagina Mai, his daughter, mentally retarded and handicapped, was present in her
house. The appellant took daughter of the complainant to a deserted house,
where he committed rape with her. On hue and cry raised by the victim, Ramzan
son of Noor Muhammad Sipra and others attracted to the spot and on seeing them
approaching, the appellant made good his escape.
3. After registration of the case,
investigation was entrusted to Muhammad Sadiq, S.I. (PW-9). He, on 15.01.2011,
along with other police officials visited the place of occurrence. He
interrogated the victim and observed that she, being deaf and dumb and mentally
retarded, was unable to make statement. He prepared rough site-plan of the
place of occurrence (Exh.PC) and recorded statements of the prosecution
witnesses under Section 161, Cr.P.C. On 13.02.2011, appellant was arrested in
this case and his blood sample was sent to Centre for Applied Molecular Biology
Laboratory, Lahore for DNA test along with vaginal swabs of the victim and her shalwar
which she was wearing at the time of occurrence. On 17.02.2011, potency test of
the appellant was also conducted. During the course of investigation having
found the appellant guilty, Investigating Officer submitted report under
Section 173, Cr.P.C. while placing his name in Column No. 3.
4. After submission of report under Section 173, Cr.P.C.,
learned trial Court formally indicted the accused to which he pleaded not
guilty and claimed trial. Prosecution in order to establish its case produced
as many as nine (9) prosecution witnesses.
Muhammad Iqbal (PW-4) is complainant of the case. Ramzan (PW-5)
and Nazar Hussain (PW-6) are witnesses of ocular account. Lady Doctor Hina
Abbas (PW-1) medically examined Mst. Nagina Mai-victim. Dr. Saif-
ur-Rehman, Medical Officer (PW-2) conducted potency test of the appellant.
Statements of rest of the prosecution witnesses are, more or less, formal in nature.
5. After completion of the prosecution evidence, statement of
the appellant as provided under Section 342, Cr.P.C. was recorded by the
learned trial Court. He professed innocence and pleaded false implication in
the case. Neither he opted to appear as witness in his own defense and get
recorded his statement on oath under Section 340(2), Cr.P.C. nor produced any
defence evidence. Upon completion of trial, the learned trial Court found the
prosecution case proved to the hilt, thus, convicted and sentenced the
appellant as mentioned and detailed above.
6. Arguments heard, record perused.
7. There is no cavil to this proposition that it is a brutal
and vicious occurrence in which a mentally retarded and physically handicapped female,
daughter of the complainant, was subjected to sexual assault. The callousness
of the offence, undoubtedly, cannot be tolerated in any manner whatsoever but
at the same time this Court has to assess from the facts and circumstances,
whether evidence produced by the prosecution during the course of trial is
sufficient to maintain the conviction recorded against the appellant.
8. Prosecution case consists of ocular account, medical
evidence in the shape of medical examination of the victim, potency test of the
appellant and DNA report.
9.
There is no denial to the fact that the complainant is not the eye-witness of
the occurrence, whereas ocular account in this case consists of the statements
of Muhammad Ramzan (PW-5) and Nazar Hussain (PW-6). Prosecutrix Nagina Mai was
declared incompetent witness , due to her mental health, by the trial Court as
envisaged under Article 3 read with Article 17 of Qanoon-e-Shahadat, 1984,
therefore, her statement during the course of trial could not be recorded. For
better understanding aforementioned Articles are reproduced infra:
3. Who may testify
All persons shall
be competent to testify unless the Court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to
those questions, by tender years, extreme old age, disease, whether of body or
mind, or any other use of the same kind:
Provided that a
person shall not be competent to testify if he has been convicted by a Court
for perjury or giving false evidence:
Provided further
that the provisions of the first proviso shall not apply to a person about whom
the Court is satisfied that he has repented thereafter and mended his ways:
Provided further
that the Court shall determine the competence of a witness in accordance with
the qualification prescribed by the Injunctions of Islam as laid down in the
Holy Quran and Sunnah for a witness, and, where such witness is not forthcoming
the Court may take the evidence of a witness who may be available.
Explanation. A
lunatic is not incompetent to testify, unless he is prevented by his lunacy
from understanding the questions put to him and giving rational answers to
them.
17.
Competence and number of witnesses
(1) The competence
of a person to testify and the number of witness required in any case shall be
determined in accordance with the Injunctions of Islam as laid down in the Holy
Quran and Sunnah.
(2) Unless
otherwise provided in any law relating to the
Enforcement of
Hudood or any other special law:
(a) in matters
pertaining to financial or future obligations, if reduced to writing, the
instrument shall be attested by two men, or one man and two women, so that one
may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other
matters, the Court may accept, or act on, the testimony of one man or one
woman, or such other evidence as the circumstances of the case may warrant.
Plain scrutiny of the above provisions
of Qanoon-e-Shahadat, 1984 reveals that the essential condition for any person
to appear and testify as a witness in a Court of law is that he/she should
possess the capability and intellect of understanding the questions put to
him/her, and also be able to rationally respond thereto. This threshold has
been referred to as passing the "rationality test", and the practice
that has developed with time in our jurisdiction is for the same to be carried
out by the presiding Judge prior to recording the evidence of a witness.[1]
10.
On scrutiny of statements of eye-witnesses, this Court has observed that
Muhammad Ramzan (PW-5) is maternal uncle (mamoon) of the complainant
while Nazar Hussain (PW-6) is cousin of the complainant. Hence, one way or the
other, both the prosecution witnesses are related inter-se, as well as, to the
complainant and victim. In this background, their presence at the place of
occurrence at the relevant time and response shown by them on hearing the hue
and cry raised by the victim, as well as, their reaction to rescue the victim
and catch hold of the perpetrator, when admittedly he was not armed with any
fire-arm weapon, is of pivotal importance. While going through statements of
PW-5 and PW-6, it has been noticed that their statements are at variance qua
their reaction on attracting to the place of occurrence and seeing the
appellant allegedly in naked condition. Muhammad Ramzan (PW-5) claims that they
had put effort to apprehend the appellant, however, he fled away. Relevant
portion of his statement is reproduced as under:
“We put effort to
caught hold the accused but he successfully ran away through the broken wall.”
However, contrary to above, stance of
Nazar Hussain (PW-6) is that on seeing the occurrence, they did nothing.
Relevant extract out of his statement is reproduced as under:-
“We did nothing after seeing the occurrence.”
11.
Another important aspect of the case is that although both the prosecution
witnesses are closely related to the victim but on reaching house of the
complainant, they opted to wait for his return and didn’t report the matter to
the police promptly. Record does not disclose whether they had attempted to
make any effort whatsoever to establish contact with the complainant through
phone to inform him about such a shocking occurrence. Moreover both the prosecution
witnesses are inconsistent with regard to distance between the place of
occurrence and house of the victim. All these facts when taken conjointly
create dents with regard to presence of the prosecution witnesses at the place
of occurrence as claimed by them.
12.
As far as medical evidence in this case is concerned, according to prosecution
theory of case, occurrence took place on 13.01.2011 at 3:00 p.m. Doctor
medically examined the victim on 14.01.2011 at 4:20 p.m. Important aspect of
the case is that at the time of medical examination of the victim, the doctor
obtained vaginal swabs, which were dispatched to the Centre for Applied
Molecular Biology Laboratory, Lahore along with her Shalwar, blood samples of
the victim and the appellant. DNA report available on record as Exh.PE suggests
that sperm fractions in vaginal swabs and stains on the shalwar did not
match with the profile of the appellant rather sperm fractions were of some
unknown person. Moreover, DNA profile reveals that sperm fraction obtained from
vaginal swabs and stains on the shalwar of the prosecutrix were of one
unknown male, which means that although victim was subjected to sexual assault
by some unknown person but it was not the appellant. Relevant portion of the
report is reproduced as under:-
Conclusion:
An unknown male
individual is the source of DNA found in sperm fraction of item 2.1 and as a
major component of DNA in sperm fraction of item 1.0.
Accused Irfan Shah @ Imran @
Kaddu s/o Liaqat Ali (item 4.1) is excluded as being the source of male DNA
found in sperm fraction of item 1.0 and 2.1.
It is consistent view of the superior
Courts of the country[2]
that DNA technology is the mean of identifying perpetrator with a high degree
of confidence. It has been held in a recent verdict[3]
of Honorable Supreme Court of Pakistan that DNA test not only plays a vital
role in bringing the actual culprits to book but it is also very helpful to
exonerate the innocent. DNA test is considered, due to its scientific accuracy
and conclusiveness, as a gold standard to establish the identity of an accused.[4]
It was held in Para No. 5 of Ali Haider alias Papu versus Jameel Hussain and
others – PLD 2021 SC 362 that:
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."
When
it is observed by the forensic scientist that the sperm fraction extracted from
vaginal swabs is identical to the sperm fraction extracted from the stains
available on shalwar of the victim, which are of some other person
rather than that of the appellant, it shall prove fatal to the prosecution
case. In the present case best possible evidence available is DNA test, which
does not support the prosecution version, rather it is sufficient to demolish
the edifice of prosecution case.
13.
There is another distressing and inacceptable aspect of this case, which
requires to be deprecated by this Court to impede the miscarriage of justice in
future. Although DNA report was exhibited in evidence as EX:PE and was also put
to accused under Section 342, Cr.P.C. but learned trial judge did not utter a
single word qua that report, either to accept it or discard the same, while
pronouncing the impugned judgment of conviction. Such indifferent attitude of
the trial Court, which resulted in conviction of present appellant, is in
conflict with the fundamental norms of justice and right to fair trial as
guaranteed under Article 10-A of the constitution of Pakistan, 1973. Every
Court of law is obliged to consider entire evidence available on the record
before pronouncing a judgment of conviction or acquittal. Term evidence has
been defined in Article 2(c) of Qanun-e-Shahadat Order, 1984 as under:
(c) "Evidence"
includes;
(i) all
statements which the Court permits or requires be made before it by witnesses,
in relation to matters of fact under inquiry ; such statements are called oral
evidence ; and
(ii) all documents
produced for the inspection of the Court;
such documents
are called documentary evidence ;
The
above quoted provision of law makes it abundantly clear that evidence includes
both statements in oral form and documents produced before the Court for
evaluation. While appraising the evidence, it is incumbent upon the Court to
carefully peruse, read and consider each and every piece of evidence, both oral
as well as documentary, and then draw a definitive conclusion. Arriving at a
decision without considering entire evidence available on the record shall
definitely lead to miscarriage of justice. It was pronounced by the esteemed
Supreme Court of Pakistan in a recent verdict in Naveed Asghar and 2 others
versus The State - PLD 2021 SC 600 as under:
“Cases are to be
decided on the basis of evidence and evidence alone and not on the basis of
sentiments and emotions”
“It is, therefore,
duty of the Court to assess the probative value (weight) of every piece of
evidence available on record in accordance with the settled principles of
appreciation of evidence, in a dispassionate, systematic and structured manner
without being influenced by the nature of the allegations. Any tendency to
strain or stretch or haphazardly appreciate evidence to reach a desired or
popular decision in a case must be scrupulously avoided or else highly
deleterious results seriously affecting proper administration of criminal
justice will follow”
In State of U.P. v. Anil Singh - AIR 1988 SC 1998 the
Court made following observations:
“It is the duty of
the Court to cull out the nuggets of truth from the evidence”
That above-referred judicial
prescriptions unequivocally reiterate that it is bounden duty of every Court to
consider evidence in toto before declaring a person guilty or innocent, and any
deviance therefrom shall not be in consonance with the universal principles of
safe administration of justice.
14.
It is golden principle of law that Court may err in letting off 100 guilty but
should not convict one innocent person.[5]
Doubt pervades most laws, becomes alarming when it arises in criminal law and
seems especially discomfiting in the context of Islamic criminal law.[6]
The concept of benefit of doubt is decade tested principle of criminal justice
system and has its roots in Islamic law. While extracting wisdom from the Hadith
of our Holy Prophet (PBUH), which is the foundation of rule of benefit of
doubt, Supreme Court of Pakistan while elaborating this rule held in Ayub
Masih v. The State – PLD 2002 SC 1048 in Para No. 10 as infra:
“It will not be out
of place to mention here that this rule occupies a pivotal place in the Islamic
law and is enforced rigorously in view of the saying of the Holy Prophet
(P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is
better than his mistake in punishing an innocent."
15.
All the above narrated facts and circumstances when evaluated on the yardstick
of judicial prescriptions laid down in various judgments, reflect that the
prosecution has miserably failed to bring on record any convincing and reliable
evidence/material to establish that it was the appellant, who committed the
alleged occurrence rather the negative DNA report qua the appellant shattered
the entire prosecution case. It is established principle of law that for
extending benefit of doubt, it is not necessary that there should be several
circumstances, rather one reasonable doubt is sufficient to acquit an accused,
not as a matter of grace but as of right. Respectful reliance can be placed on
verdict rendered by prestigious Supreme Court of Pakistan in Najaf Ali Shah
vs. The State (2021 SCMR 736) wherein it was held as infra:
“It is a well
settled principle of law that for the accused to be afforded this right of the
benefit of the doubt it is not necessary that there should be many circumstances
creating uncertainty and if there is only one doubt, the benefit of the same
must go to the petitioner.”
Same principle was also reiterated in The
State through P.G. Sindhand others versus Ahmed Omar Sheikh and others -
2021 SCMR 873:
“Even
if a single circumstance create reasonable doubt in a prudent mind regarding
guilt of an accused then the accused shall be entitled to such benefit not as a
matter of grace and concession but as a matter of right and such benefit must
be extended to the accused person(s) by the Courts without any reservation”
16. The case in hand is a textbook
case of defective investigation and poor appreciation of evidence by the trial
Court, exposing the flaws of our criminal justice system. It is evident from
the DNA report that prosecutrix, a dumb and deaf female, was subjected to
sexual assault but actual culprit could not be brought to book, rather an
innocent person faced the agony of trial and conviction. It can be termed a 'case
of miscarried justice'
in which both victim and appellant were denied justice.
17. In the circumstances discussed above, this Court is fully
convinced that the prosecution has miserably failed to prove its case against
the appellant beyond reasonable doubt, therefore, while allowing Crl.
Appeal No. 478/2012, the conviction and sentence recorded by the
learned trial Court are set aside and the appellant Irfan alias
Imran alias Kadu is acquitted of the charge, while
extending him benefit of doubt. The sentence of the appellant was suspended by
this Court vide order dated 21.01.2014, hence, his sureties stand
discharged from their liabilities.
(K.Q.B.) Appeal
allowed