MUHAMMAD QASIM KHAN, J. --- Petitioner (Norang) seeks post arrest bail in case F.I.R. No, 119, dated 13.04.2014 for an offence under Section 365-B, PPC registered at police station Sadar, District Toba Tek Singh.
2. I have heard the arguments of learned counsel for the parties at considerable length and after perusing the available record, it has been observed that petitioner alongwith co-accused Hidayat is nominated in the F.I.R. and specific allegation has been levelled that they both abducted Mst.
Nasrin married daughter of the complainant, but it has been noticed that this is a case of divergent versions put by the alleged victim/prosecutrix. Earlier, in total denial to the occurrence as mentioned in the FIR, Mst. Nasrin herself filed an application before the leaned Special Judicial Magistrate for sending her to darul-aman on the pretext that her husband Sabir was an edict person having illicitt relations-with other women and he had expelled her from the house.
Thereafter, Mst. Nasrin filed application for her release from Darul-aman and alleged that she had filed a suit for dissolution of marriage against Sabir and that she had no threat to her life from anyone, consequently she was released from darul-aman. Afterwards, Mst. Nasrin filed another application before the learned Special Judicial Magistrate for sending her to darul-aman and the ground taken in this application was that as she had filed a suit for dissolution of marriage against Muhammad Sabir, therefore, he was out to murder her. She was then again sent to darul-aman on 15.04.2014. Then just after about thirteen days she filed application to seek her release from darul- aman and alleged that now she had no threat to her life. The alleged victim was therefore, released. The record shows that Sabir lqbal (husband of the victim) had filed an application before learned Ex-Officio Justice of Peace to seek registration of case against Norang (petitioner), etc. and in the said application altogether a different story had been mentioned. Furthermore, co-accused of the petitioner with similar attribution has already been enlarged on bail. Except statement of the alleged victim under Section 161 and under Section 164, Cr.P.C., recorded after her joining with family, prima facie no other incriminating material is available on the file to connect the petitioner of the crime. Further, it has been observed that, while. submitting written statement to the suit for dissolution of marriage on 01.04.2014, Safdar (husband of the alleged victim) in clear terms stated that her wife had left the house herself on the instigation of her relatives and opponents, thus, there is no indication about commission of the alleged occurrence of abduction. All- tip above narration of facts clearly indicates that so many versions have been put forth by the prosecutrix herself.
Therefore, the ,involvement of the petitioner in this case would certainly require further inquiry, Consequently, this bail application is allowed and petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs, 100,000/- with one surety in the like amount to the satisfaction of learned Trial Court.
3. Before parting with this order, it is to be mentioned here that while examining the police file this Court had a look at case diary No, 25 dated 11.09.2014, which refers to letter by Forensic Science Agency to the following effect: --- "CASE CLOSURE COMMUNICAOTN OF CASE F.I.R. No, 119/2014 DATED 13.04.20154 POLICE STATION SADDAR TOBA TEK SINGH DISTRICT TOBA TEK SINGH.
Kindly refer to the subject captioned above:
2. It is stated that above-mentioned case was received at PFSA vide PFSA Diary No, 2014.27686 for conducting forensic analysis. The incharge of DNA & Serology (DNA) department of PFSA reported that during review of this case it was found that the submitted evidence between the occurrence and medical examination of the victim is greater than 72 hours ((lapse cases) therefore, no forensic analysis could be conducted on this case and it has been closed as per policy of PFSA.
3. It is requested that submitted evidence/ samples of instant case may be received from the office of PFSA within 15 days of receiving of this letter, otherwise, submitted evidence/samples will be disposed of and the PFSA will not be responsible for any claim."
After going through the above reproduced report of the Forensic Science, it becomes quite obvious that opinion/forensic analysis was declined by the Forensic Science just on the ground that swabs were taken from the victim after seventy two hours of the occurrence. This Court had summoned the Technical Manager, Department of DNA & Serology, Punjab Forensic Science Agency, Lahore, and with reference to relevant policy regarding evidence submission/collection, he submitted before the Court that in .cases of rape, DNA analysis is carried out only when medical examination of the victim is conducted within seventy0two hours (three days) of the assault.
4. This Court is well aware that medico-legal system in Pakistan is not so developed, efficient and responsive as compared to other countries in the world and in our society passage of seventy-two hours in medical examination of the victim is quite normal phenomena, for the reason that whenever such an incident takes place, the victim or her other family members may not happily expose such incident for certain obvious reasons. Even in number of cases, when the matter is reported, sometimes the police shows reluctance in registration of F.I.R. and the victim has to approach the Court of law to get directions for registration of case or for conduct of her medico- legal examination. If an appropriate direction for conduct of medical examination of the victim is issued, then non-availability of female doctor in the nearby hospital may result in delay. In this respect after research particularly with reference to Lahore, Hasan et al., 2007 reported that most of the rape victims were medically examined after 72 hours of sexual assault and a table was drawn, as under:--- Time duration Number of Cases Percentage Less than 24 hours 6 4.9% 24-48 hours 9 7.3% 48-72 hours 15 12.2 More than 72 hours 93 75.6 TOTAL 123 100 After perusal of above drawn table, the pathetic factual position in our country becomes clear.
Furthermore, while browsing on the issue of rape cases and medico-legal aspects, this Court has been able to note big difference about the standards/policy set by Department of DNA & Serology, Punjab Forensic Science Agency, Lahore and the other developed word, e.g. according to the guideline issued by National Institute of Justice, US, 'the sperm cells may be found in female reproductive tract for seven days after ejaculation. There is no second opinion that this fact has been realized by different jurisdictions, crime laboratories and law enforcing agencies that 3 days rule (72 Hours Rule) is not a universal truth, therefore, these agencies are not stuck with it and relaxed their policies regarding such cases. Some of the examples are:--- Jurisdiction/Agency Time limit for examination since assault National Protocol of Sexual Assault Forensic Medical Examination (Adults/Adolescent) by US Department of Justice, US.96-hours (Four days)
Ohio Protocol of Sexual Assault Forensic Medical Examination issued by Ohio Attorney General office of criminal identification and investigation (2011), US96-hours (Four days)
North Dakota Model Law Enforcement Sexual Assault Policy (2011)96 hours (Four days)
Pima County Protocol for the violence against Woman Act (2009) USrive days Sexual Assault Examination Policy by Russian I FederationFive days Washington Country Sheriff, Oregon, USANo limit Oregon State of Police, USA No cut off limit for receiving sexual assault samples. Best samples are those taken upto 84-hours after assault Texas Evidence Collection Protocol, Office of the Attorney General, SAPCSD, Texas, USANo time limit Furthermore, the medical experts on this issue, after thorough research have formed a view that sperm cells (male reproductive cells) stay in the female reproductive system for many days and these can be detected after many days of sexual assault. In this context, some references are quoted hereunder:-- Sr.
No.Presence of sperm cells in vagina after time since sexual assaultReferences 1 More than 6 days Nicolson, 1965 2 Upto nine days Morrison, 1972 3 7-10 days Silverman and Silverman, 1978 4 More than 5 days Allard, 1997 5 Upto 7 days Jones 2005 After comparative study, as above, this Court is of the considered view that the policy being followed by Department of DNA & Serology, Punjab Forensic Science Agency, Lahore, needs to be updated to meet with challenges of time and to bring it in consonance with the scheme of other developed countries. The Punjab Forensic Science Agency, Lahore shall accordingly revisit and upgrade their analysis system so that an important piece of evidence must not be wasted just for technical reasons, especially when those reasons have no strong basis. In this respect it may also be observed that Punjab Forensic Science Agency may also opt for cervix analysis of the victim, as according to research cervix is the part of female reproductive system, next to vagina and the sperm cells swim in vagina and get enter into cervix. These cells can be detected in cervix for many weeks. In this respect the Forensic Science Agency shall issue instructions to all the Women Medical Officers throughout the Province of Punjab, for doing the needful after getting consent from the victim. Office is directed to send a copy of this order to the concerned quarters for re-evaluation of policy of Department of DNA & Serology, Punjab Forensic Science Agency, Lahore.
5. While closing this order, I would like to pay gratitude for the commendable research work by the learned Deputy Prosecutor General (Mr. Muhammad Akhlaq) in assisting this Court on the above important aspect.