2025 PLP 1628 (YLR)

Sadiq Mahmud Khurram, J.

Muhammad Ansar son of Abdul Shakoor (convict) was tried by the learned Additional Sessions Judge, Hasilpur in case FIR No.333 of 2020 dated 08.06.2020, registered at Police Station City Hasilpur, District Bahawalpur, in respect of offences under sections 377 and 367-A of the Pakistan Penal Code, 1860. The learned trial court vide judgment dated 10.12.2021 convicted Muhammad Ansar son of Abdul Shakoor (convict) and sentenced him as infra:- Muhammad Ansar son of Abdul Shakoor:- i) Imprisonment for life under section 367-A of Pakistan Penal Code, 1860 and directed to pay fine of Rs.200,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. ii) Rigorous imprisonment of two years under section 377 read with section 511 P.P.C. and directed to pay fine of Rs.20,000/-, and in case of default of payment of fine, the convict was directed to further undergo simple Imprisonment of one month. The benefit available under Section 382-B of Code of Criminal Procedure, 1898 was extended to the convict by the learned trial court. Both the sentences awarded to the appellant were ordered to run concurrently by the learned trial court.

2. Feeling aggrieved, Muhammad Ansar son of Abdul Shakoor (convict) lodged the instant Criminal Appeal No.570-J of 2021, assailing his conviction and sentence.

3. The brief facts of the prosecution case, as stated by Ahmad Hassan (PW-3), the victim of the case, in his statement before the learned trial court, are as under:- "On 8.6.2020, at about 1:00 p.m. I went to Chhonawala road for buying ice where the accused who was on motor cycle said to me that he owed money to your father and asked me to go with him so that he could return the said money. He took me on motor cycle when to Karampur road in maize crop near Paracha farm where he committed sodomy with me and asked me not to come out from maize crop field. I came out from the maize field where I told a passerby to call my father. Later on, my father and Grandfather Khadim Hussain and Sohail Babar reached Karampur road who took me to PS. After this, the police took me to hospital for medical examination where I was medically examined. On the same day, my father took me to the place of occurrence where I was abducted where the police officer recorded my statement. My father and grandfather kept on searching the accused person. On 23.8.2021, they found out that the accused Muhammad Ansar committed sodomy with me whom I also identified. Police officer also recorded my supplementary statement on the same day"

4. After the formal investigation of the case, report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused was sent to face trial. The learned/trial court framed the charge against the accused on 13.10.2021, to which the accused pleaded not guilty and the learned trial court proceeded to examine the prosecution witnesses.

5. The prosecution in order to prove its case got statements of as many as eight witnesses recorded. Ahmad Hassan (PW-3), the victim, narrated the facts of the occurrence. Zulifqar Ali (PW-1) stated that he was told of the details of the incident by Ahmad Hassan (PW-3). Khadim Hussain (PW-2) stated that on 08.06.2020, he had seen the appellant kidnapping Ahmad Hassan (PW-3). Ali Usman 127/C (PW-6) stated that on 08.06.2020, he got conducted the medical examination of Ahmad Hassan (PW-3) and produced the one sealed parcel handed over to him by the Medical Officer before the Investigating Officer of the case. Bilal Qureshi, inspector (PW-4) investigated the case from 23.08.2021 till 30.08.2021, arrested the appellant on 23.08.2021 and detailed the facts discovered during the investigation of the case in his statement before the learned trial court. Ghulam Rasool, SI (PW-7) stated that on 08.06.2020, he recorded the formal FIR (Exh.PD) and investigated the case from 08.06.2020 till 10.12.2020 and detailed the facts discovered during the investigation of the case in his statement before the learned trial court.

6. The prosecution also got Dr. Usama Javed (PW-8) examined, who stated that on 08.06.2020 he was posted as Medical Officer at THQ hospital Hasilpur and on the same day, conducted the medical examination of the victim namely Ahmad Hassan (PW-3). Dr. Usama Javed (PW-8),after examining Ahmad Hassan (PW-3) had observed as under:- "General physical examination Victim was vitally stable well oriented in time and space. O/E he was a young boy of 11 years of age with H/O of sodomy an hour ago. Boy was examined in the knee elbow position under the adequate light. On examination, no tangible mark of violance on the bottom or anal region could be seen. PR examination was however, quite painful. No streak of blood present on anal splinter. Muscle tone was very tight. However, one internal and two external swabs were taken for chemical examination and DNA analysis and were sent to PFSA Lahore. Final opinion After receiving the report of PFSA DNA, and Serology report serial No. 0000767913 and report serial No.0000799373 with agency case number PFSA 2020-31720-DNA-046287, the sperm fraction present on the Kameez of Ahmad Hassan has matched with DNA of Muhammad Ansar. No spermatic material was identified on the internal and external anal swabs of Ahmad Hassan. In the light of above PFSA report, the alleged culprit Muhammad Ansar was involved in the attempted sexual assault of sodomy with Ahmad Hassan victim. I issued true attested copy of MLC No. UJ-380/2020 along with the final opinion as Exh.PF which bears my signature and seal. I also endorsed and put my signature on the application for conducting medical examination which is Exh.PF/1.." The prosecution also got Dr. Mumshad Hussain (PW-5) examined who stated on 23.08.2021, he examined the appellant and found him capable of having sexual intercourse.

7. On 07.12.2021, the learned Deputy District Public Prosecutor gave-up prosecution witness namely Qurban Ali 128/C as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh.PG and PH/1-2).

8. After the closure of prosecution evidence, the learned trial court examined the appellant Muhammad Ansar son of Abdul Shakoor, under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he stated that he had been falsely involved in the case. Neither the appellant opted to get himself examined under section 340(2) Cr.P.C nor he adduced any evidence in his defence.

9. On the conclusion of the trial, the learned Additional Sessions Judge, Hasilpur, convicted and sentenced the appellant as referred to above.

10. The contention of the learned counsel for the appellant precisely was that whole case was invented and untrue and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant further submitted that the appellant was quite innocent and had nothing to do with the alleged occurrence. He further submitted that the prosecution had miserably failed to prove the charge against the appellant beyond the shadow of reasonable doubt and the learned trial court, while passing the impugned judgment of the appellant's conviction, had erred in law and facts of the case, which warranted interference by this Court.

11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further submitted that there was no untoward delay in lodging the FIR. The learned Deputy Prosecutor General further submitted that it was a heinous offence and exploited the victim's future by the appellant at the expense of his lust; that the victim was a young boy and it could not be expected from him to put his future at stake for the purpose to falsely implicate the appellant in this case for nothing; that the medical evidence provided further corroboration to the ocular account; that the impugned judgment entailing the conviction and sentence of the appellant did not warrant interference by this Court. Lastly, the learned Deputy Prosecutor General prayed for the rejection of appeal.

12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully.

13. The learned Deputy Prosecutor General has stressed much upon the rule of appreciation of evidence that the sole statement of the victim can be taken into account to maintain the conviction and sentence of the appellant under the charge of kidnapping for having carnal intercourse against the order of nature. However, the said rule is applicable only when the said statement of the victim is found to be confidence inspiring and trustworthy. The self-contradictory statement of Ahmad Hassan (PW-3), recorded during the trial of the case by the learned trial court, is neither trustworthy nor confidence inspiring and thus, the same is not worthy of any reliance. The very first flaw of the prosecution case which is obvious is the fact that not only the prosecution witness namely Ahmad Hassan (PW-3) but Zulifqar Ali (PW-1) and Khadim Hussain (PW-2) also stated that when the occurrence took place on 08.06.2020, the appellant was not known to the prosecution witnesses namely Ahmad Hassan (PW-3), Zulifqar Ali (PW-1) and Khadim Hussain (PW-2) and the name of the appellant was disclosed to them on 23.08.2021 i.e. after more than one year of the incident. Moreover, the identity of the source which enabled the prosecution witnesses namely Ahmad Hassan (PW-3), Zulifqar Ali (PW-1) and Khadim Hussain (PW-2) to identify the appellant by his name was also not disclosed by any of the prosecution witnesses namely Ahmad Hassan (PW-3), Zulifqar Ali (PW-1) and Khadim Hussain (PW-2). In the absence of the identity of the source which enabled the prosecution witnesses namely Ahmad Hassan (PW-3), Zulifqar Ali (PW-1) and Khadim Hussain (PW-2) to identify the appellant by his name, the prosecution case suffers from a fatal flaw. Moreover, the prosecution witnesses namely Ahmad Hassan (PW-3), Zulifqar Ali (PW-1) and Khadim Hussain (PW-2) made no effort to identify the source who told them about the appellant and also made contradictory statements with regard to the circumstances whereby they came to know about the involvement of the appellant in the incident. Ahmad Hassan (PW-3), the victim of the case, in his statement before the learned trial court, stated that he himself did not know about the identity of the appellant, rather was told about the same by the prosecution witnesses namely Zulifqar Ali (PW-1) and Khadim Hussain (PW-2) and also stated that it was some DSP who had told the prosecution witnesses namely Zulifqar Ali (PW-1) and Khadim Hussain (PW-2) about 1 the name of the appellant. Ahmad Hassan (PW-3), the victim of the case, in his statement before the learned trial court, stated as under:- "My father and grandfather kept on searching the accused person. On 23.8.2021, they found out that the accused Muhammad Ansar committed sodomy with me whom I also identified. .......... After the arrest of accused, DSP, Hasilpur told the name of accused to my father and me." (emphasis supplied) The above referred statement of Ahmad Hassan (PW-3), the victim of the case, that it was after the arrest of the appellant that the DSP, Hasilpur told the name of the appellant to Ahmad Hassan (PW-3) and Zulifqar Ali (PW-1) fully denudes the creation of false evidence against the appellant. Compounding the matter further is the statement of Zulifqar Ali (RW-1), who admitted during cross-examination that he could not remember the name of the person who had told him about the identity of the appellant. Zulifqar Ali, (PW-1) admitted during cross-examination, as under:- "I do not remember who told the name of accused to me.." When the prosecution witnesses could not provide any reason to have named the appellant after a period of one year of the occurrence and when the prosecution witnesses could not even provide consistent evidence as to the identity of the person who disclosed to the said prosecution witnesses that it was the appellant who was involved in the incident, then the prosecution case against the appellant suffers and in this case terminally. It is a well-established principle of administration of justice in criminal cases that finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards the guilt of the accused should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. Reliance is placed on the case of "Ibrar Hussain and others v. The State and another" (2007 SCMR 605), wherein, the august Supreme Court of Pakistan has held as under:- "It is a settled law that in rape/Hudood cases conviction can be awarded on the sole testimony of the victim subject to the condition that the statement of victim must inspire confidence. In the present case as mentioned above the statement of the victim is not inspiring-confidence at all and this fact was not considered by both the Courts below in its true perspective and the principle laid down by this Court in various pronouncements. We are pained to note that both Courts below had given benefit of doubt to the prosecution in violation of principle laid down by this Court in various pronouncements. It is a settled law that benefit of doubt always be given to the accused and this principle was violative by the Courts below."

14. We have also noted grave errors in the testimony of the prosecution witnesses with regard to the allegation that the prosecution witness namely Ahmad Hassan (PW-3) was kidnapped from the area of Hasilpur and taken to the area of Karam Pur. According to the prosecution witness namely Khadim Hussain, (PW-2), on 08.06.2020, he had witnessed the appellant taking away Ahmad Hassan (PW-3) on a motorcycle, however, it is also admitted that neither Khadim Hussain (PW-2) raised any alarm over the appellant taking Ahmad Hassan (PW-3) on a motorcycle with him nor made any effort to stop the appellant from taking away Ahmad Hassan (PW-3). It was admitted by Khadim Hussain (PW-2) that he was maternal grand-father of Ahmad Hassan (PW-3) and that the appellant was not known to him at all still. It is a fact that he made no effort either to stop the appellant or to question the appellant as to why he was taking away Ahmad Hassan (PW-3). We have also noticed that despite the claim of the prosecution witnesses that the appellant was not known to Ahmad Hassan (PW-3) still Ahmad Hassan (PW-3) opted to accompany the appellant on a motorcycle, without any reaosn and without raising any question. It is also a fact admitted by Ahmad Hassan (PW-3) that during his whole journey from the place of abduction to the place of incident, he did not raise any hue and cry. Ahmad Hassan (PW-3) during cross-examination, admitted as under:- "I did not raise any hue and cry when the accused abducted me as accused said that he was friend of my father. The accused did not abduct me on gunpoint." It is also a fact that during the course of investigation, the Investigating Officer of the case, did not prepare any site plan of the place from where Ahmad Hassan (PW-3) was abducted. In this manner, we are convinced in our mind that the prosecution failed miserably to prove that the appellant had kidnapped Ahmad Hassan (PW-3) for the purpose of having carnal intercourse against the order of nature with him.

15. Another fault of the prosecution case is that the facts narrated in the statement of Ahmad Hassan (PW-3) were not supported by the observations and opinion of Dr. Usama Javaid (PW-8). Though Ahmad Hassan (PW-3) alleged that the appellant had carnal intercourse against the order of nature with him, however Dr. Usama Javaid (PW-8) did not observe any evidence of such act. We have noted that Dr. Usama Javaid (PW-8) on examining Ahmad Hassan (PW-3) found no marks of violence on any part of the body at the time of examination of Ahmad Hassan (PW-3). Dr. Usama Javaid (PW-8) did not observe that there was any presence of laceration, abrasion, contusion on any part of the body especially on elbows, thighs, or backside of Ahmad Hassan (PW-3). Being thrown on hard ground would necessarily had resulted into marks of violence appearing on the body of Ahmad Hassan (PW-3), however, Dr. Usama Javaid (PW-8), after examining Ahmad Hassan (PW-3), opined as under:- "Boy was examined in the knee elbow position under the adequate light. On examination, no tangible mark of violance on the bottom or anal region could be seen. PR examination was however, quite painful. No streak of blood present on anal splinter. Muscle tone was very tight.." The above referred observations of Dr. Usama Javaid (PW-8), after/examining Ahmad Hassan (PW-3) also negate the statements of the prosecution witnesses namely Zulifqar Ali, (PW-1), Khadim Hussain (PW-2) and Ahmad Hassan (PW-3).

16. The learned Deputy Prosecutor General has also laid much stress upon the report of the Punjab Forensic Science Agency, Lahore (Exh.PH/1), wherein it had been determined that the DNA profiles obtained from the stain sections taken from the Qameez of Ahmad Hassan (PW-3) were a mixture of two individuals and the appellant could not be excluded as being a contributor to the DNA profiles obtained from the stain sections taken from the Qameez of Ahmad Hassan (PW-3). In Chapter 17 "Examination of Biological Stains and Hair", from page 430 to page 440 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) it has been discoursed as under:- "DNA PROFILING (DEOXYRIBONUCLEIC ACID TYPING) General- Life on earth is based on cells; Cell is the basic unit of life. There are around trillions of cells in a human blood. Every cell has a nucleus (except the RBCS); Inside the nucleus which is considered to be the central processing unit of the cell, 23 pairs of chro-mosomes are present. Twenty-two pairs of autosomal chromosomes and one pair of sex chromosomes (XX in females and XY in males). Chromosomes carry linearly arranged genetic units, which are materially referred as Deoxyribonucleic Acid (DNA). There are about 3 billion nucleotides in human DNA. Human DNA is approximately 2 metres long if it is place end to end from 46 chromosomes of a single cell. DNA is present in coiled and super coiled form in the cell. The super coiled structures are known as the chromosomes. This DNA contains genetic information which decides the phenotypic character (height, skin colour, eye colour, hair colour, etc) of an individual. The DNA carries the genetic information from parents to offspring, being half of the DNA from mother and the other half from father. The DNA carries all the information to make proteins (hormones, antibodies, enzymes and structural proteins like actin, myosin, keratin, tubuline) for proper functioning of the body. Another class of DNA present in human cell is the mitochondrial DNA which is present in the cell organelle mitochondria. Unlike nuclear DNA mitochondrial DNA is maternally inherited because the mitochondria of sperm are present in the tail and the tails is digested by hyluronic acid present around the egg cell at the time of fertilization. The DNA is the genetic material that makes every individual different, except for genetically identical twins. A pattern of chemical signals ie, genetic code, has been discovered within the DNA molecule, which is very unique to cach individual, just like their actual fingerprint. Thus, the DNA profiling, unique to each individual, is colloquially referred to as 'DNA Fingerprinting' and it is also known as DNA typing. The companies who offer the DNA profiling claim that a DNA match of two individuals is as unlikely as 1 in 30 billion. One more estimation puts it at 1 in 800, 000,

000. The chemical DNA was first discovered in 1869, but its role in genetic inheritance was not demonstrated until 1943. In 1944, Oswald Avery made the breakthrough discovery that DNA is the basic genetic material. A few years later, in 1953, James Watson and Francis Crick determined that the structure of DNA is a double-helix polymer, a spiral consisting of two DNA strands wound around each other. The technique of DNA Fingerprinting was 229 first developed in 1984 by Dr Alec Jeffreys from Britain. Since then, increasing attention has been paid around the world to the use of DNA profiling for individualization purposes in criminal and allied cases. Paternity testing is another important use through DNA since 1988. The use of Restriction Fragment Length Polymorphism (RFLP) analysis of minisatellites or Variable Number of Tandem Repeat (VNTR) loci scattered along the chromosomes has spread interest among the medico legal professionals. The use of microsatellites or Short Tandem Repeats (STRs) also gained momentum with the passing years. These are consecutive repeats that are abundantly found in DNA. In contrast to 100-200 bps length of RFLPS and VNTRS, the STRS are of a smaller length of 2-10 bps. The short size of STRS is particularly useful if the sample is degraded or with Low Copy Number (LCN) DNA. Such degraded or fragmented DNA is encountered in samples that have been exposed to hostile external environment conditions like sunlight, heat, excessive salt etc. The traditional techniques like RFLP and VNTRS are not very helpful in such cases. The variants of STRS including Autosomal STR, MINI-STR, Y-STR and X-STR have immensely contributed to the forensic field. Three types of results are possible after comparing the question sample (Q) and the known sample (K) in cases of autosomal, Y and X STR markers analysis. These are-(1) Exclusion This result is produced when the STR haplotypes are different and could not have originated from the same source. (2) Inclusion (or failure to exclude)- This result is produced when STR haplotypes that result from Q-K comparison are the same and could have originated from the same source. (3) Inconclusive:-The result is inconclusive when the data are insufficient to render an interpretation or in other words, ambiguous results are obtained. The Autosomal STR markers: are commonly used to establish identity and settle paternity disputes. They are studied on all the 22 pairs of autosomes to avoid linkage issues within the markers. ........ Samples required for DNA profiling. Any biological material such as a drop of blood, saliva, semen, and any body part such as bones, tissue, skull, teeth, and hair with the root found at the scene of crime may serve as a sample for DNA profiling. The CDFD gives the following guidelines about collecting samples: (i) Maternity/paternity/parentage: Blood samples of mother, disputed child and alleged father are required. The blood samples (2 - 3ml) can be collected in the sterile blood collection material (EDTA vials) sent by the laboratory, in the presence of Court authorities. These samples should be sent in ice in a thermos flask either by a messenger or through courier, so as to reach the laboratory within 72 hours after collection. (ii) Identity of the deceased: Any body part of the deceased found at the scene of crime along with the blood samples of the blood relatives of the suspected individuals (viz., parents, and children) should be sent. (iii) Identity of rape/rapist: Blood/semen stained clothes, garments, swabs, and slides of the victim and the accused is forwarded to the laboratory. ........... Problems linked with DNA profiling. One of the lasting effects of the OJ Simpson case will likely be greater scrutiny by defence lawyers of the prosecution's forensic DNA presented in criminal cases. In the Simpson case, the defence, in essence, put the crime evidence laboratory on trial. There is no substantial dispute about the underlying scientific principles in DNA profiling, however, the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry. Although, there is a common consensus within the scientific community that DNA profiling can yield results with a very high probability, the complex procedure of DNA profiling is not without problems. At every phase of the seven-step procedure just described, mistakes and insproper handling of the DNA-probe can produce false results which in some cases can lead to a life sentence or even death-penalty judgement. Therefore, the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry. Furthermore, the DNA samples can be mixed up by the police or the laboratory personnel (this actually took place in one case) or the amount of DNA can be insufficient. The various contaminants include microbes, fibres, concrete, soil, vegetable matter, other body fluids besides foreign DNA from field agents and laboratory workers. It can be avoided by handling the forensic evidence at a place that is segregated from the(sic), where amplication of the sample is to be conducted. If the sample is accidentally mixed with foreign DNA before amplification, the contaminant will also get amplified resulting in mixed profiles at the time of STR analysis. Secondly, a significant 'source of error' is the incomplete digestion of the DNA by the restriction enzymes. The other extreme can be an over-digestion also called 'star activity'. Thirdly, a 'band shift' can occur, meaning that the DNA fragments which are put in several lanes next to each other can influence each other's mobility, thus causing wrong results of the gel electrophoresis. In connection with the problem of 'band shift', the gel electrophoresis itself may not be conducted properly, i.e., the voltage can be too low or too high or the concentration of the gel can be incorrect. Finally, the expert who determines a match can be biased " In our legal framework DNA evidence is evaluated on the strength of Articles 59 and 164 of the Qanun-e-Shahadat, 1984. The former provision states that expert opinion on matters such as science and art falls within the ambit of 'relevant evidence'. On the other hand, the later provision provides that the Court may allow reception of any evidence that may become available because of modern devices and techniques. Under this regime the technician who conducts experiment to scrutinize DNA evidence is regarded as an expert whose opinion is admissible in Court. Subsection (3) of Section 9 of the Punjab Forensic Science Agency Act, 2007, reaffirms this legal position when it enacts that "a person appointed in the Agency as an expert shall be deemed as an expert appointed under Section 510 of the Code of Criminal Procedure, 1898] and a person specially skilled in a forensic material under Article 59 of the Qanun-e-Shahadat, 1984 (P.O. X of 1984)." A combined reading of all these provisions shows that the report of the Punjab Forensic Science Agency regarding DNA analysis is per se admissible in evidence under Section 510, Cr.P.C. Since DNA analysis report is reckoned as a form of expert evidence in criminal cases, it cannot be treated as primary evidence and can be relied upon only for purposes of corroboration. This implies that no case can be decided exclusively on its basis. Credibility of the DNA test inter-alia depends on the standards employed for collection and transmission of samples to the laboratory. Safe custody of the samples is pivotal. Thus, in every case the prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the said chain on lapse in the control of the sample would make the DNA test report unreliable. In the cases of "Mst. Sakina Ramzan v. State" (2021 SCMR 451), "Ikramullah v. The State" (2015 SCMR 1002), "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039) and "Khair-ul-Bashar v. The State" (2019 SCMR 930) the august Supreme Court of Pakistan refused to rely on the report of the Government Analyst and set aside conviction when the prosecution could not establish safe transmission of the samples from the place of recovery to the laboratory. In the present case, the prosecution failed to prove the safe transmission of the Qameez of Ahmad Hassan (PW-3) to the Punjab Forensic Science Agency Lahore, making the value of the report of the Punjab Forensic Science Agency, Lahore (Exh.PH/1) of no worth. Dr.Usman Javaid (PW-8) never stated in his statement before the learned trial court that Qameez of Ahmad Hassan (PW-3) was handed over to him to the Investigating Officer of the case. Similarly, none of the prosecution witnesses Zulifqar Ali, (PW-1), Khadim Hussain (PW-2) and Ahmad Hassan (PW-3) stated that any of them had handed over the Qameez as worn by Ahmad Hassan (PW-3) on the day of incident either to the Investigating Officer of the case or to the Medical Officer. Similarly, the prosecution did not produce any witness who would have stated that it was him who had taken the parcel containing the Qameez to Punjab Forensic Science Agency, Lahore. Strangely enough, both the Investigating Officers of the case namely Ghulam Rasool, SI (PW-7) and Bilal Qureshi Inspector (PW-4), did not utter a single word of having taken into possession any Qameez as worn by Ahmad Hassan (PW-3) on the day of incident or having taken any such Qameez as worn by Ahmad Hassan (PW-3) to the Punjab Forensic Science Agency, Lahore. Ghulam Rasool, SI (PW-7) and Bilal Qureshi Inspector (PW-4) were never questioned with regard to these omissions in their statements. As mentioned above, no DNA profile of the appellant was generated from the internal and external anal swabs sent for analysis. In this manner, the safe custody and the safe transmission of the Qameez of Ahmad Hassan (PW-3) to the Punjab Forensic Science Agency, Lahore is not proved and in absence of that evidence no reliance can be place on the report of Punjab Forensic Science Agency, Lahore (Exh.PH/1).This portion of the prosecution evidence proves that there are missing links in the chain relating to the submission of the Qameez of Ahmad Hassan (PW-3) to the Punjab Forensic Science Agency, Lahore. We have queried the learned Deputy Prosecutor General to clarify that what was the evidence available on the record to confirm that the Qameez of Ahmad Hassan (PW-3) had indeed been kept in safe custody and then transmitted to and deposited in the Punjab Forensic Science Agency, Lahore but, after going through the record of this case from cover to cover, the learned Deputy Prosecutor General remained unable to refute that there is no consistent evidence whatsoever available on the record in this respect that how the Qameez of Ahmad Hassan (PW-3) was transmitted to the Punjab Forensic Science Agency, Lahore. The learned Deputy Prosecutor General could not counter that the prosecution evidence was contradictory and mutually destructive in this regard. In such a state of contradictory evidence available on the record, safe custody and the transmission of the Qameez of Ahmad Hassan (PW-3) to the Punjab Forensic Science Agency, Lahore is not discernable from the record of this case. In the absence of such evidence, prosecution, which must establish that the chain of custody of the Qameez of Ahmad Hassan (PW-3) was unbroken, unsuspicious, indubitable, safe and secure, has failed to do so. The break in the chain of custody of the Qameez of Ahmad Hassan (PW-3) casts doubts and impairs and vitiates the conclusiveness and reliability of the report of the Punjab Forensic Science Agency, Lahore (Exh.PH/1). This fact by itself creates sufficient doubts and on this score, the report of Punjab Forensic Science Agency, Lahore (Exh.PH/1) regarding forensic DNA Analysis is of no legal worth. The august Supreme Court of Pakistan has observed in the case of "Azeem Khan and another v. Mujahid Hussain and others" (2016 SCMR 274) that the report of Punjab Forensic Science Agency, Lahore with regard to DNA analysis cannot be implicitly relied upon and has held as under:- "In the recent past many scandals in USA, UK and other countries have surfaced where desired DNA test reports were procured by the investigative by contaminating the samples. Such contamination has also been reported in some cases while the samples remained in the laboratories. Many inquiries were held on this issue and stringent law has been made by many States to prevent the contamination of samples outside and inside the laboratories. Proper procedure has been laid down for securing and carefully putting into parcel the suspected materials to co-relate with the samples of the parents to establish paternity or maternity, Similarly, stringent check and procedure has been provided to avoid and prevent cross-contamination of the two samples because if both come in contact with each others then, it will give false positive appearance and the expert is thus misled. It has also been discovered that credentials of many experts, claiming possessed of higher qualification in this particular field, were found fake and they were thus, removed from service. The DNA Wikipedia on web is an unrebutted testimony to these facts.

28. In any case, it is an expert opinion and even if it is admitted into the evidence and relied upon, would in no manner be sufficient to connect the necks of the appellants with the commission of the crime when the bulk of other evidence has been held by us unbelievable thus, no reliance can be placed on it to award a capital sentence. Moreover, to ensure fair-play and transparency, the samples in the laboratories from the parents should have heen taken in the presence of some independent authority like a Magistrate and also the recovered samples from the crime scene in the same way to dispel the chances of fabrication of evidence through corrupt practices and the transition of the samples to the laboratory should have also been made in a safe and secure manner. But all these safeguards were kept aside.

17. Considering all the above circumstances, we entertain serious doubt regarding the involvement of Muhammad Ansar son of Abdul Shakoor (appellant), in the present case. It is a settled principle of law that for giving benefit of doubt, it is not necessary that there should be so many circumstances rather if only a single circumstance, creating reasonable doubt in the mind of a prudent person, is available, then such benefit is to be extended to an accused not as a matter of concession but as of right. The zeal to punish an offender even in derogation or violation of the law would blur the distinction between arbitrary decisions and lawful judgments. No doubt, duty of the courts is to administer justice; but this duty is to be performed in accordance with the law and not otherwise. The mandatory requirements of law cannot be ignored by labelling them as technicalities in pursuit of the subjective administration of justice. One guilty person should not be taken to task at the sacrifice of the very basis of a democratic and civilized society, i.e. the rule of law. Tolerating acquittal of some guilty, whose guilt is not proved under the law is the price which the society is to pay for the protection of their invaluable constitutional right to be treated in accordance with the law. Otherwise, every person will have to bear peril of being dealt with under the personal whims of the persons sitting in executive or judicial offices, which they in their own wisdom and subjective assessment consider good for the society. The august Supreme Court of Pakistan in the case of "Muhammad Mansha v. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)." Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah v. The State (2021 SCMR 736) in which it has been observed in paragraph No.13 of page 236 as infra: "

9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. 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 got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."

18. For what has been discussed above, the instant Criminal Appeal No.570-J of 2021 lodged by Muhammad Ansar son of Abdul Shakoor (appellant) is allowed and the conviction and sentences of the appellant Muhammad Ansar son of Abdul Shakoor awarded by the learned Additional Sessions Judge, Hasilpur, vide judgment dated 10.12.2021 are hereby set-aside. Muhammad Ansar son of Abdul Shakoor (appellant) is ordered to be acquitted by extending him the benefit of doubt. The appellant namely Muhammad Ansar son of Abdul Shakoor is in custody and is ordered to be released, if not required in any other case. JK/M-135/L Appeal allowed.