'Immediate' DNA Tests In Rape Cases Mandatory, Observes SC

Top court approves bail plea of two men after they claim the girl was not abducted and that she married one of them freely

'Immediate' DNA Tests In Rape Cases Mandatory, Observes SC

The Supreme Court of Pakistan observed on Friday that the immediate administration of a DNA (Deoxyribonucleic Acid) test and preservation of DNA evidence is mandatory in cases of rape.
“Moreover, according to the petitioners counsel, no medical examination of the alleged victim was conducted for recovering DNA (Deoxyribonucleic acid) despite the serious allegation of rape, and this factual line of argument was not belied by the complainant or the learned DPG,” observed the Supreme Court in a five-page judgment authored by Justice Muhammad Ali Mazhar while adjudicating on bail applications filed by Salman Mushtaq and Naheed Akhtar. The two were accused of abducting a girl for rape. Ahmar Ali, the brother of the abducted girl, was also implicated.

“Considering that the offence of rape was suspected and reported to the police, the medical examination should have been conducted immediately and without any delay in order to draw DNA samples," the court observed, lamenting that no explanation was offered for this clear negligence on the part of the prosecution, which is also a violation of the judgment rendered by the apex court in the case of Salman Akram Raja and another vs Government of Punjab through Chief Secretary and others (PLJ 2013 SC 107) wherein it was, among other things, directed in paragraph 16 that in rape cases, the administration of DNA tests and preservation of DNA evidence should be made mandatory.

The five-page judgement, however, confirmed the bails of Mushtaq and Akhtar. The top court also granted post-arrest bail for Ahmar Ali, subject to a surety bond worth Rs100,000 with one surety in the like amount to the trial court's satisfaction.

The top court further directed the petitioners to join the investigation and regularly appear before the trial court, failing which, the complainant may move an application for cancellation of bail in the trial court. 

The case

The case was based on an FIR lodged at the North Cantt Police Station in Lahore. A woman complained that her daughter had allegedly been abducted by Mushtaq and Akhtar, along with two other unidentified individuals and planned to rape her. 

However, Mushtaq and Akhtar told the court that the girl, being an independent person of legal age, had contracted marriage with Mushtaq of her free will and the marriage was duly registered. 

Mushtaq subsequently filed a suit against his 'wife' for failing to fulfill her conjugal duties before a Family Court, which decreed in his favour. Whereas the alleged abductee filed a counter suit in the family court seeking to annul her marriage.

But two lower courts rejected bail petitions of Mushtaq and Akhtar in the abduction case without adverting to the family suits filed for the restitution of conjugal rights and the jactitation of marriage, respectively. 

Ahmar Ali, who is a brother of the alleged abductee, was not nominated in the original FIR but was implicated based on a statement of the alleged abductee.

"The learned Additional Sessions Judge observed that it was unlikely that a real mother would lodge a false FIR against her son for the abduction of his sister. Quite the reverse, it is also a matter of further inquiry to ascertain whether the alleged abductee’s real brother was in actuality involved in the abduction and whether he aided or facilitated the commission of the heinous crime of rape against his real sister,” the top court’s order stated. 

“Even in the suit for jactitation of marriage, the alleged abductee admitted that the marriage was solemnised, but under fear and threat,” the top court’s order further stated, adding that the abductee girl prayed to the Family Court for declaring her nikkahnama as illegal and unlawful.

“Another important aspect we cannot lose sight of is that, if the brother of the alleged abductee was involved in the abduction, then why was he not nominated in the FIR, and why was he only implicated subsequently on the basis of the statement of the alleged abductee recorded under Section 164, CrPC?” the court asked.

The court further asked that while granting pre-arrest bail, whether the arrest will cause humiliation and/or unwarranted persecution or harassment to the applicant for some ulterior motives or that the prosecution is motivated by malice to perpetrate irreparable injury to the reputation and liberty of the accused?

“While considering the grounds agitated for enlargement on bail, whether pre-arrest or post-arrest, the atrociousness, viciousness and/or gravity of the offence are not, by themselves, sufficient for the rejection of bail where the nature of the evidence produced in support of the indictment creates some doubt as to the veracity of the prosecution case,” the top court noted. 

“The court must dwell on all interconnected rudiments, including the gravity of the offence and the degree of involvement of the applicant/accused for bail in the commission of the offence, together with the likelihood of absconding or repeating the offence and/or obstructing or hindering the course of justice, or any reasonable apprehension of extending threats to the complainant or witnesses or winning over the prosecution witnesses.”

“The doctrine of ‘further inquiry’ refers to a notional and exploratory assessment that may create doubt regarding the involvement of the accused in the crime.” 

The top court has further observed that the expression ‘Reasonable Grounds’ is the grounds attracted to the judicial mind that are not imaginative or presumptuous.

“The expression "reasonable grounds" as contained under Section 497, CrPC, obligates the prosecution to unveil sufficient material or evidence to divulge that the accused has committed an offence falling within the prohibitory clause of Section 497, CrPC.” 

The axiom ‘reasonable grounds’ connotes and associates those grounds that are legally acceptable and based on reasons that attract the judicial mind, as opposed to being imaginative, fallacious and/or presumptuous, it further observed.

“In the aforesaid situation, the possibility of mala fide intention in lodging the FIR cannot be ruled out, and, at this stage, there are no reasonable grounds for believing that the accused are involved; rather, there are sufficient grounds for further inquiry to prove the guilt of the accused persons.”

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain