PESHAWAR: A single-member Peshawar High Court bench has
ruled that after the enforcement of a law last year to check the
incidents of sexual abuse, it was mandatory to conduct DNA tests on both
the suspected rapist and his alleged victim.
Justice
Roohul Amin Khan Chamkani ruled that under Section 164-B of the Code of
Criminal Procedure (CrPC), which was inserted in the law through the
Criminal Law (Amendment) (Offences Related to Rape) Act, 2016, samples
of the DNA of the alleged rape victim and the suspected rapist should be
collected and sent for examination at the earliest.
The
bench gave the ruling in a detailed judgment of a bail petition filed by
Umar Taj, who was charged with the abduction of a woman and sexually
abusing her. The bench had accepted the bail petition on Dec 18 and
directed the petitioner to submit surety bonds of Rs200,000 each.
In
the detailed judgment, Justice Roohul Amin Khan discussed provisions of
two laws, Protection of Women (Criminal law Amendment) Act, 2006, and
the Criminal Law (Amendment) (Offences Related to Rape) Act, 2016. Both
these laws introduced by the federal government were aimed at protection
of women in offences related to sexual abuse, fornication, adultery,
etc.
Issues detailed verdict on bail petition of a suspected rapist
The bench ruled that Section 164-B CrPC related to conducing
of DNA tests shall be applicable to offences under Section 376
(Punishment for Rape) of the Pakistan Penal Code.
“Coming
to the applicability of PPC Section 376, needless to say that it
provides punishment of death or imprisonment of either description for a
term which shall not be less than ten years or more than twenty-five
years and fine for an accused proved guilty of the offence of rape,
however, section 164-B Cr.P.C. provides that where an offence under
sections 376 or 377 or 377-B of the Pakistan Penal Code, 1860, is
committed or attempted to have been committed or is alleged to have been
committed, the Investigating Officer (I.O.), shall proceed for
collecting Deoxyribo Nucleic Acid (DNA) samples, where practicable, from
the victim with his or her consent or with the consent of his or her
natural or legal guardian and the accused during the medical
examinations conducted under section 164-A within optimal time period of
receiving information relating to commission of such offence,” the
bench ruled.
The bench further observed: “It further
provides that the DNA samples collected shall be sent at earliest for
the purpose of investigation to a Forensic Laboratory, where the same
shall be properly examined and preserved.”
“By use of
word ‘Shall’ in Section 164-B CrPC, its application has been made
mandatory in offence under section 376 PPC,” it added.
In
the instant case, the bench observed apparently, the provision of
section 164-B of the CrPC had not been complied with, as a sample for
DNA test had not been obtained from the alleged victim.
In
instant case, the FIR was registered on complaint of husband of the
victim, Inayatullah, on Nov 1, 2017, under section 496-A (enticing or
taking away a woman), 496-B (fornication) and 376 (rape) of the PPC. The
complainant alleged that his wife had gone to the residence of her
parents. However, he alleged that she had left that residence with the
accused/ petitioner Umar Taj.
Subsequently, the victim
was recovered from residence of Umer Taj who claimed that she had gone
with him with her free will and they had also entered into wedlock. The
petitioner claimed that he was not aware that she was already married.
Subsequently, the victim alleged that she was abducted by the petitioner and also sexually abused.
The
petitioner’s lawyer, Shabbir Hussain Gigyani, had contended that the
nikahnama (marriage deed) of the petitioner with the victim was duly
registered.
The bench observed in its judgment that under
Section 203-C CrPC the offence of fornication was non-cognisable and in
this regard a complaint has to be lodged in the concerned court.
It
was added that the presiding officer of the court taking cognisance of
an offence shall at once examine on oath the complainant and at least
two eye witnesses to the act of fornication.
The bench
ruled that it appeared from record that in the instant case the
mandatory provisions as required under section 203-C have not been
complied with, hence, in the given scenario, applicability and relevancy
of section 696-B PPC (fornication) shall be looked into by the
prosecution or trial court at the time of submission of complete challan
(final charge sheet) or taking cognisance of the case, respectively.