CHAPTER No.

05

Loopholes in Admissibility of Forensic Evidence

5.1 Introduction:

This chapter will present the loopholes in admissibility of

forensic evidence in criminal cases in Pakistan. These loopholes
have been identified in the cases given in Appendix A given at the
end of this thesis. There are certain lacunas which not only diminish
the value of forensic evidence but also result in lower conviction
rates.

It is extremely important to identify and discuss these lacunas

due to the fact that superior courts have clarified these mistakes in
various judgements but still investigating agencies seldom care in
following these judgements. These lacunas have been discussed in
detail and reference of these judgements have also been given.

5.2 Admissibility of Forensic Evidence:

Forensic evidence is admissible under section 510, Code of

Criminal Procedure and Punjab Forensic Science Act, 2007. In some
cases, experts are needed to give their testimony in courts of law.
Experts are relevant under article 59 of Qanoon-E-Shahadat
Ordinance, 1984.

5.3 Loopeholes in Admissibility of Forensic Evidence:

Following are the major loopholes and lacunas identified

through various judgements.

5.3.1 No Evidence collected:

One of the major problems that is causing trouble in reliance of

forensic evidence is that despite the availability of forensic evidence

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at the crime scene, investigating officer has not collected evidence
for analysis. It was astonishing to note that in data collected of 164
supreme court reported judgements consisting of last five years, in
13 cases no forensic evidence was collected from the crime scene.
Supreme court has deprecated this negligence of investigating
officers in its various judgements.

In Nisar Ahmed vs state (2023 scmr 478), court has mentioned in its
judgement that no forensic evidence was collected at the crime
scene.

In Aqil vs state (2023 scmr 831), court has also mentioned regarding
non-collection of forensic evidence at the crime scene. It was held
that it was a lapse on the part of I.O not to collect empties at the
crime scene.

Same views are adopted by the supreme court in its judgements

Khadija vs state (PLD 2019 sc 261), Azhar Hussain vs state (2022
scmr 1907), Shamsher haider vs state (2022 scmr 1931), Subhan
aktar vs state (2021 scmr 395), Khalid mehmood vs state (2021
scmr 810), Mst. Mir zalai vs ghazi (2020 scmr 319), Aurangzeb vs
state (2020 scmr 612), Majid vs state (2019 scmr 301), Mian sohail
vs state (2019 scmr 956), Musaddaq vs state (2019 scmr 1048),
Akhmat vs state (2019 scmr 1365), Khalid Mehmood vs state (2022
scmr 1148) and Subtain haider vs state (2022 scmr 2012).

5.3.2 Evidence not sent to Laboratory:

One of the major problems which lowers the efficiency of criminal

justice system is that investigating officers do not send samples or
forensic evidence to laboratory for analysis. They due to ulterior
motive or reasons best known to them do not forward the collected
forensic evidence to forensic science laboratory for analysis. In 164
cases, in 09 cases, evidence was collected but not sent to forensic
laboratory for analysis purposes.

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In Ansar vs state (2023 scmr 929), no recoveries of weapon empties
were sent to forensic lab for analysis and hence recovery of weapon
was held inconsequential.

In Qasim Shahzad vs state (2023 scmr 117), court has deprecated

this practice of investigating officer as he did not sent the blood
stained churri to forensic lab for blood analysis.

In Muhammad usman vs state (2023 scmr 1097), court held

recovery of weapon of offence inconsequential when it was not sent
to lab for analysis.

In Burkhudar vs state (2023 scmr 1791), court acquitted the

accused on the basis that recovered narcotics was not sent to lab.

In Naveed vs state (PLD 2021 SC 600), supreme court disbelieved

the motor cycle is same on which incident took place as its seat was
blood stained and investigating officer did not sent it for forensic
analysis.

In Kashif Ali vs state (2022 SCMR 1515), it was held that in absence
of forensic analysis, recovery of blood stained churri can not be
used against accused. In Farman ali vs state (2020 scmr 597),
empties were not sent to forensic laboratory.

In Sajjad Solangi vs state (2019 scmr 872), weapon of offence was

not sent to lab for checking of it working order and recovery was
disbelieved. Same view was taken in case reported as Mr.Rafiq vs
state (2019 scmr 1068).

5.3.3 Safe Custody of Samples:

In criminal cases, forensic evidence is collected from crime scene

and parcels are made at the spot in the presence of witnesses. They
are sent to laboratory for analysis as per principles given in the laws
or guidelines given by superior courts of the country. In 164 cases,

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12 cases were identified where safe custody of samples and forensic
evidence was not ensured.

There are many supreme court judgements in which safe custody of

samples and recovered materials is emphasized.

In Mr.Hazir vs state (2023 scmr 986), It was unexplained where

sample were retained for three days as they were received in PFSA
with delay of three days and hence safe custody of samples as well
as narcotics was not established.

Javed Iqbal vs state (2023 scmr 139), it was held that it is duty of
prosecution to establish the safe custody of parcels as well as
samples.

In Said Wazir vs state (2023 scmr 1144), Sample parcels of narcotics

were received after 4 days which was never explained so it was held
that safe custody is not established.

In Zafar Khan vs state (2022 scmr 864), It was held that where safe
custody of samples is not established, recovery could not be
believed.

In Qaiser vs state (2022 scmr 1641), it was held that report of

forensic scientist could not be believed if safe custody of samples is
not established.

Sukhaina Ramzan vs state (2021 scmr 451), Qaiser khan vs state

(2021 scmr 363), Gulzar vs state (2021 scmr 380), Abdul Ghani vs
state (2019 scmr 608), Raza Sultan vs state (2019 scmr 1300), Faiza
Nali vs state (2019 scmr 1649) and Zaheer shah vs state (2019 scmr
204).

5.3.4 Sample bearer not produced:

One of the major reasons of court not relying on forensic evidence in

narcotics cases is that sample bearer is not produced in court for his
testimony. Superior court of Pakistan has held time and time again

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that the person who took samples from the crime scene and submit
these samples to forensic laboratory for analysis of the same is
mandatory to produce as witness in court of law. Out of 164 cases,
in 09 cases sample bearer was not produced by the prosecution.

In Laljan vs state (2023 scmr 1009), accused was acquitted from the
case on the ground that sample bearer was not produced in the
court as witness and even no reason was given for his non
production as witness.

In Abdul Ghaffar vs state (2022 scmr 819), it was held that

responsibility of prosecution to produce sample bearer as witness
was not fulfilled.

Same views are taken by supreme court in Mr Sohaib vs state (2022

scmr 1006), Subhanull vs state (2022 scmr 1052), Hussain khan vs
state (2022 scmr 1660), Umar Zunair vs state (2022 scmr 2093),
Mr.Waiz vs satate (2022 scmr 2105), Abdul Ghani vs state (2022
scmr 2121) and Shah zaneen vs state (2022 scmr 2149).

5.3.5 No Test Protocols:

It was held mandatory by the supreme court in various judgements

to give complete test protocols in the laboratory analysis report.
Complete details of test conducted, reagents used, methods of
analysis must be mentioned in the report to make it admissible in
court. In absence of test protocols, report is inadmissible in
evidence and could not be relied by the court to convict the
accused. Out of 164 cases, 04 cases were identified where test
protocols were not given as per law enunciated by the supreme
court of Pakistan.

In Khairul Bashar vs state (2019 scmr 930), supreme court of

Pakistan has held that three elements are necessary to give in
forensic analysis report. First of all, it is mandatory to mention test,
then results of these tests and finally protocols for these test. In

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absence of any of these three elements, forensic test report cannot
be relied.

In Muhammad Boota vs state (2020 scmr 196), court has held that it
is mandatory that confirmation of narcotics results must be
supported by the test protocols.

Same views are taken in Minhaj khan vs state (2019 scmr 326),
Qaiser Javed vs state (PLD 2020 sc 57).In these cases, plea of
prosecution that non-compliance of mandatory test protocols do not
effect prosecution case was rejected by the superior court.

5.3.6 Case Property not Exhibited:

Case property has been held by supreme court of Pakistan

mandatory to exhibit in the trial court. Case property in narcotics
cases include narcotics, cash sale amount and vehicle recovered.

This view is taken by hon’ble supreme court in its esteemed

judgement reported as Ahmed ali vs State (2023 scmr 781).

5.3.7 Forensic Report Inconsequential:

Forensic evidence is submitted as per law and rules to the forensic

laboratory for analysis and result is given in the report which is
presented as evidence in the trial court. There are certain
circumstances when the report is held inconsequential by the court.
Some of these circumstances are given below.

1- In Mr. Bashir vs state (2023 scmr 190), court has held that
forensic report is inconsequential due to recovery of pistol was
not believed by the court. Same view was taken by supreme
court in Ijaz vs state (2023 scmr 1375) also.
2- In Maskeen ullah vs state (2023 scmr 1568), supreme court
taken view that since recovery of empties was not from the
crime scene. Akbar ali vs State (2021 scmr 104), also
presented similar view.

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 3- In M.Ashraf vs state (2019 scmr 652), it was held that since
crime empties and weapon was sent together for analysis so
in such circumstances positive report is inconsequential.
4- It was held by supreme court in Haji Nawaz vs state (2020
scmr 687) that since no PFSA report was put to accused in his
statement under section 342 Crpc, so it is inconsequential and
can not be used againt accused as evidence.

5.3.8 Forensic Report Deficient:

Forensic report is inadmissible in evidence due to various reasons.

One of the major reason is that it is deficient in material particulars.
Out of 164 cases, in 12 cases Report was held deficient. Some of
these are given below.

1- In Raza vs state (PLD 2020 SC 523), recovery of carbine was

held not supportive to prosecution due to deficient forensic
report as it gave no clear results.
2- In Abdul Ghani vs state (2022 scmr 544), court did not relied
on the report because DNA profile generation was not done
and report was held deficient.
3- In M.Sadiq vs state (2022 scmr 690), it was held that blood
would disintegrate after few weeks and hence it is not reliable.
4- In Liaqat ali vs state (2021 scmr 780),court has not relied on
forensic report by taking view that report was deficient as it
relates to working condition of weapon only and did not
confirm whether empties matched or not. Same view was
taken in case reported as Sufian Nawaz vs state (2020 scmr
192), Mr.Illyas vs Amir (2020 scmr 305), Mr, Arif vs state
(2019 scmr 631).
5- In Fiaz Ahmed vs M.Khan (2020 scmr 281), court did not
believed on forensic evidence because churri recovered was
not stained with blood.

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 6- In Sagheer ahmed vs state (2023 scmr 241), court did not
believed report on DNA forensic report being deficient as it did
not give any definite finding regarding act of sodomy.
7- In Mr.Naeem vs state (pld 2019 sc 669), no definite finding
regarding percentage of intoxicant was given so report was
held deficient by the supreme court of Pakistan.
8- M.Javed vs state (2019 SCMR 1920), report was deficient on
the basis that no semen grouping was done in the analysis.
9- In Khair-ul-Bashar vs state (2019 scmr 930), It was held that
since no test protocols were mentioned in report so it was
deficient report. It is also very important to mention that re-
testing of deficient report was not allowed to be re-tested by
laboratory.

5.3.9 Empty sent with Firearm:

The apex court of Pakistan has held in its various judgements that
fire arm empties should not be sent along with weapon of offence as
it will diminish value of forensic report. In 164 judgements, 5 cases
were identified in which forensic report was not relied due to this
loophole by the investigating officer.

This view of supreme court was given in Sarfraz vs state (2023 scmr
670) by holding that empties were sent to forensic laboratory along
with firearm and hence it does not have any evidentiary value.

Similarly, in, Amanullah vs state (2023 scmr 527), Abdul wahid vs

state (2023 scmr 1278), Muhammad Bilal vs state (2021 scmr
1039), Muhammad Akram vs state (2019 scmr 610), supreme court
has taken the same view.

5.3.10 Report not Corroborated:

There are certain instances in which forensic report is positive but it

does not corroborate with the substantive evidence like ocular
evidence. In these instances, courts generally did not rely on the

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forensic reports. In 164 cases, there are 7 cases in which court did
not rely on forensic evidence due to the fact that report did not
provided corroboration.

In, Muhammad Azhar vs state (Pld 2019 sc 595), court In

Muhammad Adnan vs state (2021 scmr 16), Ghulam abbass vs state
(2021 scmr 23), Muhammad Afzal vs state (2021 scmr 289), Gul
Mehmood vs state (2021 scmr 381), Muhammad Sohail vs state
(2021 scmr 795), Tariq shah vs satate (2019 scmr 1394).

5.3.11 DNA Test is Corroboratory:

DNA is considered as one of the most important forensic pieces of

evidence. Different type of biological materials can be used for DNA
test like semen, saliva, hair, nail, urine, teeth and cells.

Salman akram raja vs state (2013 scmr 203) is leading Judgement in

which DNA was made mandatory by the superior court. It was held
that it is not necessary to get permission of the victim to conduct
DNA and it is DNA samples must be preserved for use whenever
required.

In Attaul Mustafa vs state (2023 scmr 1698), court has held that it is
merely corroborative evidence and it is not primary evidence.

5.3.12 Evidence sent Late to PFSA:

One of the major issues in criminal justice system is that

investigating officers collect forensic evidence but send this
evidence late in opposition to legal requirement. Out of 164 cases
there were three cases in which supreme court did not relied on
positive forensic report due to this lacuna.

In Muhammad abass vs state (2023 scmr 487), court refused to rely

on positive forensic report of recovered blood stained churri by
holding that it was sent late after 7 months of recovery.

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In M.Amin vs state (2019 scmr 2057), court did not relied on positive
forensic ballistics report as weapon of offence was sent late to
laboratory. In Abdul Jabbar vs state (2019 scmr 129), supreme court
has categorically stated that it was inefficiency of police that crime
empties were sent late to forensic laboratory.

5.3.13 Joint Recovery:

Joint Recovery is also one of the issues which have influence on the
admissibility of forensic evidence. There are thousands of
judgements on this issue that joint recovery is not admissible piece
of evidence but investigating officers still do not take care of this
and make mistakes. Out of 164 judgements, one judgement has
highlighted this loophole and court has not relied on positive
forensic ballistic report.

In Munir Malik vs state (2022 scmr 1494), supreme court has held
that joint recovery from two appellants is inadmissible in evidence.

5.3.14 CDR Data not produced in court:

Supreme court has recently in its landmark judgement Ishtiaq

ahmed (Pld 2019 Sc 675), has held that electronic evidence and
digital evidence must be admitted in evidence after following
established principles given in the judgement. Call Data Record or
CDR data is very important digital forensic evidence which can be
helpful in identifying location of the culprit. It is very important that
CDR data be produced in court through official of the company. In
one out of 164 cases under discussion, in one case this lacuna was
highlighted.

In, Sajid Hussian vs state (2022 scmr 1540), accused was acquitted
on the ground that no CDR data was produced in court to prove his
connection with the offence.

5.3.15 No Forensic Report:

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In some of the cases, there was no forensic evidence report
available on case file. In these conditions, court generally held this
evidence inconsequential. There are four cases out of 164 cases in
which no forensic report was available.

In Abbass ali vs state (2021 scmr 349), no weapon of offence was

ever recovered and hence no report was available despite the
collection of other forensic evidence in the shape of empties.

In State vs ahmed umar vs state (2021 scmr 873), despite the

availability of video tape evidence, prosecution did not presented
the forensic evidence in the court and all four accused were
acquitted from the charge.

In Mazhar vs state (2020 scmr 586), accused was acquitted from

murder case on the ground that no forensic report was produced in
court regarding weapon of offence and empties although evidence
in such regard was collected in shape of recovery.

In Zahid vs state (2020 scmr 590) in a rape case, court had held
that absence of DNA report is useless for accused as it is not ground
for acquittal.

5.3.16 Forensic Evidence not believed:

There are certain circumstances under which court do not believe

on the forensic evidence in one context or the other. There are two
cases out of 164 cases in which court has disbelieved forensic
evidence. These are given below.

In Umair vs state (2023 scmr 566), court did not believe the positive
serology report when bloodstained hatchet was recovered from a
common thoroughfare place.

In Muhammad Yaseen vs state (2021 scmr 404), court did not

believed the recovery of casing after three weeks.

5.3.17 Duplicate Forensic Report:

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There are certain cases in which duplicate forensic report was
presented as evidence in court. This act of prosecution has been
deprecated by the supreme court. In one case, out of 164 cases,
duplicate forensic report was given in evidence.

In Zubair Khan vs state (2021 scmr 492) which was a narcotics case,
the accused was acquitted due to the fact that duplicate report is
inadmissible in evidence.

5.4 Conclusion:

It can be concluded that there are certain loopholes in admissibility

of forensic evidence in court of law. These lacunas have been
identified by the superior courts in various judgements but
investigating officer as well as prosecutors are making these
mistakes abundantly.

These lacunas not only put burden on courts while evidence

recording but also becomes cause of miscarriage of justice. So, in
order to cover up these shortfalls, training & development of
investigating officers and prosecutors is very necessary.

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