GHULAM HUSSAIN Vs JUDICIAL MAGISTRATE JARANWALA and 8 others

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lahore high court
lahore high court

GHULAM HUSSAIN —Petitioner

Vs

JUDICIAL MAGISTRATE, 1ST CLASS, JARANWALA, and 8 others—Respondents

Writ Petition No.222995 of 2018, decided on 2nd July, 2018.

Before Asjad Javaid Ghural, J

Penal Code (XLV of 1860)—

—-Ss. 302 & 34—Qatl-i-amd, common intention—Application for obtaining samples of blood of accused persons for the purpose of re-analysis through DNA test—Dismissal of application—Validity—Deceased lady had been done to death by some unknown accused persons and accused were implicated subsequently through supplementary statement—Investigating Officer obtained post mortem examination report, which showed that deceased lady was sexually assaulted prior to her death—Accused persons, after their arrest were produced before the Forensic Science Agency for DNA test, in order to ascertain whether said persons were indulged in the act of sexual intercourse with the deceased lady prior to death or not—Report of Forensic Science Agency excluded the accused persons from the sperm fractions being contributed to DNA—Counsel for the petitioner, failed to satisfy the court as to under what circumstances report received from the office of Forensic Science Agency was to be taken as dubious—Nothing was available on record to show that report in question was manoeuvred or any of the relevant officials in the laboratory was biased—In absence of any sound material creating reasonable doubt, report in question could not be discarded at the whims and wishes of the petitioner—Petitioner could not be allowed to fill-up the lacuna just to implicate the accused persons nominated by him at subsequent stage—Impugned order suffered from no illegality, perversity of reasoning or any irregularity of procedure to warrant interference by High Court—High Court directed that Trial Court decide the fate of the case on the material/evidence available on record.

Abdul Khaliq Safrani for Petitioner.

Mrs. Shazia Ashraf Khan, Assistant Advocate-General Punjab for the State on Court’s call.

ORDER

ASJAD JAVAID GHURAL, J.—Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Ghulam Hussain has challenged the legality and propriety of order dated 24.04.2018, passed by the learned Judicial Magistrate 1st Class, Jaranwala whereby the application of the petitioner for obtaining samples of blood of accused/respondents Nos. 6 to 8 (hereinafter called ‘the respondents’) for the purpose of re-analysis through DNA test was dismissed.

2. Briefly, the facts of the case necessary for disposal of this petition are that the petitioner got lodged a case FIR No.501 dated 22.09.2017 in respect of offences under Sections 302 and 34, P.P.C. at Police Station Lundianwala District Faisalabad regarding the murder of Mst. Sumera alias Sonia, wife of the petitioner’s nephew Ghulam Sarwar, against unknown accused persons. The respondents were implicated in the said case through supplementary statement dated 24.04.2017, as the postmortem examination report had revealed that the deceased lady was done to death after sexually assaulted by the accused persons. The respondents were arrested and produced before the Punjab Forensic Science Agency for Serology analysis and DNA test. The expert report was received with negative results to the extent of the respondents and, thus, the petitioner being dissatisfied with the report, filed an application before the learned Judicial Magistrate, Jaranwala for sampling of the respondents for the purpose of re-analysis through DNA test, which was turned down by the learned Magistrate vide impugned order dated 24.04.2018. Hence, this Constitutional petition.

3. I have heard the learned counsel for the petitioner, learned Assistant Advocate-General, Punjab on Court’s call and have perused the record with their assistance.

4. Admittedly, as per crime report, the deceased lady had been done to death by some unknown accused persons and the respondents were implicated subsequently through supplementary statement dated 24.04.2017. The Investigating Officer had obtained post-mortem examination report, which shows that the deceased lady had been sexually assaulted prior to her death and, thus, the respondents, after their arrest, were produced before the Punjab Forensic Science Agency for DNA test, in order to ascertain whether the said accused persons were indulged in the act of sexual intercourse with the deceased lady prior to her death or not. The required test was done by the said Agency and the report thereof, was received with negative results showing that the DNA profile obtained from the sperm fraction from item Nos.1, 6.4, 6.5, 6.6, 6.7, 6.9 was a mixture of unknown male individuals, eliminating respondents Sadam, Rizwan alias Jani and Imran alias Bhai as contributors to DNA obtained from the viginal as well as shalwar of the deceased lady. The said report certainly does not favour the prosecution and, thus, the petitioner had filed Writ Petition No.195213/2018 to repeat the process of analysis through DNA test, which was disposed of by this Court vide order dated 11.04.2018, as the petitioner had preferred to withdraw the same in order to avail his remedy under Section 176, Cr.P.C. by moving afresh before the Court of first instance but his application before the learned Magistrate was dismissed while observing that proceedings under Section 176, Cr.P.C., was just to hold an inquiry to ascertain the cause of death if it was a case of death under the suspicion circumstances and nothing else.

5. The Investigating Officer got conducted DNA analysis during investigation to satisfy his conscious regarding complicity of the accused persons and their connection with the crime. The report of Punjab Forensic Science Agency, Lahore is available on record, excluding the respondents from the sperm fractions being contributors to DNA obtained from epithelial fraction of item Nos.1, 6.4, 6.5, 6.6, 6.7 and 6.9 rather mixture of unknown individuals. Learned counsel for the petitioner remained fail to satisfy the Court that under what circumstances, the report received from the office of Punjab Forensic Science Agency is to be taken dubious. Nothing is available on record to show that the report in question was maneuvered or any of the relevant officials in the lab was biased. In the absence of any sound material creating reasonable doubt, the report in hand cannot be discarded at the whims and wishes of the petitioner. The petitioner cannot be allowed to fill-up the lacuna just to implicate the accused persons nominated by him at the subsequent stage. I am of the considered view that the order impugned suffers from no illegality or approach, perversity of reasoning or any irregularity of procedure to warrant interference by this Court. Let the learned trial Court to decide the fate of the case on the material/evidence available on record.

6. In view of above, the instant petition, being devoid of any force, stands dismissed in limine.

HBT/G-11/L Petition dismissed.

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