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.

Published in Dawn, December 26th, 2017