Through this application under Section 497 Cr.P.C. the Petitioner seeks post-arrest bail in case FIR No.615/2019 dated 2.8.2019 registered at Police Station Dijkot, District Faisalabad, for an offence under Section 377 PPC.
Briefly , the allegation against the Petitioner is that on 29.7.2019 he committed unnatural offence with Complainant' s 10-year-old son Sajjad Ali.
2. The learned counsel for the Petitioner contended that the Petitioner was innocent and the Complainant had falsely implicated him in this case due to ulterior motives. There was an unexplaine d delay of three days in lodging the FIR and medical as well as forensic evidence did not support the ocular accou nt. He further submitted that the Petitioner was a previous non-convict. He was behind the bars since 5.11.2019 but his trial had not commenced.
His continuous incarceration would not serve any useful purpose. The learned counsel prayed that this application be accepted and the Petitioner be admitted to bail.
3. The learned Deputy Prosecutor General assisted by the learned counsel for the Complainant vehemently opposed this application. He contended that there was no reason for the Complainant to make false imputation against the Petitioner . The ocular accoun t furnished by PWs Muhammad Latif (Complainant), Muhammad Shakeel and Abid Hussain was corroborated by medical evidence. He maintained that since there was sufficient incriminating material against the Petitioner , this application was liable to be dismissed.
4. Arguments heard. Record perused.
5. The alleged occurrence took place on 29.7.2019 but the Complainant lodged the FIR on 2.8.2019, i.e. after three days. It is by now well settled that the prosecution story cannot be doubted on the ground of delay alone because in our society people are generally hesitant in reporting such incidents to the police. Reliance is placed on Reliance is placed on Ghulam Husain Soomro v. The State (PLD 2007 SC 71), Muhammad Imran v. The State and others (2014 PCr.LJ 456) and Ihsanulla h alias Sanu v. The State through Additional Advocate General and another ( 2015 YLR 2592 ).
6. The Petitioner is nominated in the FIR with the specific allegation that he committed sodomy with Sajjad Ali. PWs Muhammad Shakeel and Abid Hussain, the eye-witnesses of the incident, and the victim have got their statements recorded under Section 161 Cr.P.C. in support of the prosecution case. The medico-legal examination of the victim shows that the doctor found two lacerations on external anal sphincter , approximately 0.4 x 0.2 cm & 0.3 x 0.2 cm, at 11 O'clock and 6 O'clock respectively . Medical evidence thus shows that carnal intercourse with the boy did take place. On a tentative assessment there is sufficient incriminating material against the Petitioner . There appears to be no motive for the Complainant or the police to falsely implicate him in this case.
7. The Medical Officer took samples which were sent to the Punjab Forensic Science Agency (PFSA) for DNA test and semen detection. The PFSA report states that no semen material was found on the anal swabs. The negative report notwithstanding, it does not mean that no offence was committed: the Explanation to Section 377 PPC perspicuously says that penetration is suf ficient to constitute the of fence.
8. In view of the foregoing, this bail application is dismissed . However , before parting with this order I would like to make an additional note.
9. During the past few decades physical evidence has become increasingly important in criminal investigations and trials. Physical evidence, such as DNA, fingerprints, and trace evidence may "independently and objectively" link a suspect/victim to a crime, disprove an alibi or develop important investigative leads. Physical evidence may also prove invaluable for exonerating the innocent. Scientists and lawyers agree that DNA identification is capable of producing reliable results. Initially , evidence that was suitable for DNA analysis was limited to biological substances that contain nucleated cells. This limitation has been overcome in the last few years with the implementation of mitochondrial DNA sequencing in the forensic arena. Common biological specimen from which DNA can now be successfully isolated and typed are: bones, blood and bloodstains, semen and seminal stains, tissues, organs, teeth, hairs, finger-nails, saliva, urine and other biological fluids.
10. The Supreme Court of Pakistan appreciated the importance of DNA test in dispensation of justice in Salman Akram Raja and another v. Government of Punjab through Chief Secretary , and others (2013 SCMR 203) and observed: "In this regard it is to be noted that the administration of DNA test in order to determine the truthfulness of the allegation of crime is not new. Initially the DNA was not so reliable, therefore, the Courts often excluded it from the evidence and did not base the conviction on it. However , in the last decade or so the DNA technology has significantly advanced and introduction of DNA profiling has revolutionized forensic science. Now DNA test provides the Courts a mean of identifying perpetrators with a high degree of confidence. By using the DNA technology the Courts are in a better position to reach at a conclusion whereby convicting the real culprits and excluding potential suspects as well as exonerating wrongfully involved accused (sic). Reference may be made to the case of United States v. Yee (134 F.R.D. 161), wherein conviction was recorded on the basis of DNA test results."
11. Sexual assault encompasses all unlawful sexual conduct, including (but not limited to) rape, sodomy , incest, child molestation, sex offences involving minors and other sexual conduct. Importantly , both genders are victims of sexual assault and such instances have increased during the last few years. The Parliament has enacted Section 164-B Cr.P.C. to accord statutory recognition to the DNA test in respect of offences under Sections 376, 377 and 377-B PPC. The said section provides: 164B. DNA test. - (1) Where an offence under Section 376, Section 377 or Section 377-B of the Pakistan Penal Code, 1860 (Act XLV of 1860) is comm itted or attempted to have been committed or is alleged to have been committed, Deoxyribo Nucleic Acid (DNA) samples, where practicable, shall be collected 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 of fence.
(2) The DNA samples collected under sub-section (1) shall at the earliest be sent for investigation to a forensic laboratory where these shall be properly examined and preserved: Provided that confidentiality of such examination shall at all times be observed.1 2
12. The Punjab Forensic Science Agency (PFSA) is a state-of-the-art forensic facility which is assisting law enforcement/investigation agencies and the courts in dispensation of justice. Since the learned counsel for the Petitioner in the instant case laid a lot of emphasis on the fact that the DNA report was negative, this Court vide order dated 26.2.2020 summoned the Forensic Analyst from the PFSA to explain what could be the possible reasons therefor . On 4.3.2020, Qazi Laee q Ahmad, Technical Manager , DNA, PFSA , attended the proceedings and submitted that in this particular case the DNA test was negative because the samples were not preserved and sent to the laboratory in the required manner . He added that the PFSA has designed special Sexual Assault Evidence Collection Kits (SAECKs) in accordance with internationally acclaimed protocols and has supplied them to the Medical Officers throughout the Punjab with guidelines for collection of forensic evidence and its preservation and transportation. However , SAECKs are seldom used and the guidelines are rarely followed. As a result, vital evidence is lost in most of the cases. On the Court' s query he further stated that doctors make swabs with non- sterile objects such as matchsticks, ice cream scoops, broomsticks and twigs and then use them to collect evidence from vagina and/or rectum of the victim. In some cases large cotton plugs are used as swabs. These objects sometimes cause injury or infection to the victim and often jeopardize the process of DNA analysis owing to incorporation of contaminants and potential inhibitors. During the year 2019, SAECKs were used in less than 9% sexual assault cases submitted to the PFSA. This Court took serious notice of this matter and, vide order dated 4.3.2020, summoned the Secretary , Primary and Secondary Healthcare Department, and the Secretary , Specialized Healthcare and Medical Education, Government of the Punjab.
13. Capt. (R) Muhammad Usman, Secretary , Primary and Secondary Healthcare Department, has placed on record a copy of circular dated 8.11.2019 issued to all Chief Executive Officers and District Health Authorities in the province directing them to follow the guidelines given by the PFSA for collection, preservation and transmission of samples for DNA and serology analysis in sexual assault cases. When the Secretary was asked as to whether his directions were being complied with and, if not, what action he had taken against the delinquents, he had no answer . This is indeed deplorable.
14. In a sexual assault case, the victim is the crime scene. The prime responsibility for collection of evidence from him/her rests on the Medical Officer. SWGDAM, a group of scientists representing federal, state and local forensic DNA laboratories in the United States and Canada, observes that history of the incident is extremely important and emphasizes that the Medical Officer should take it down carefully and be guided by it in collection of evidentiary items. SWGDAM states: "Victims of sexual assault may undergo a sexual assault forensic exam conducted by a healthcare professional.
During these exams, items of possible evidentiary value are collected and submitted, upon consent of the victim, for the initiation of a criminal complaint and/or investigation. Prior to collection of evidentiary items, healthcare professionals must consider several factors to assist in guiding their collection and treatment efforts. These factors may include the assault activity , time elapsed since the assault, post assault activities, the age and gender of the assault victim, and mental capacity , to name a few. Evidence collection should be guided by the background history , focusing specifically on the suspect' s actions during the assault. It is not uncommon however , that as a result of the trauma, victims may not be able to organize the memory of the assault or the actions taken by the suspect. In the absence of a victim able to recollect a complete background history , a full range of samples should be collected assisted by the physical assessment."
It further says: "Additional considerations prior to sample collection must include the activities of the victim following the assault.
Activities that may impact evidence collection include bathing, brushing of teeth, mouthwash, vomiting, douching, urination and defecation. Careful consideration of the assault activities and post assault activities prior to sample collection is vital. ...Internal swabs such as from the vagina, mouth or rectum may still be viable for collection even after showering or bathing by the victim, dependent upon the length and thoroughness of the cleansing and time since the assault. Internal and external swabs should still be collected even if the victim has bathed, as the bathing may not have been vigorous enough to remove the fluids or DNA from the victim. Also, potential biological evidence3 4 deposited onto a substrate such as clothing, towels or paper towels do not have the same time restrictions as biological evidence deposited on, or within, the victim' s body ."
15. SAECKs standardize the evidence collection process and ensure proper packaging of evidence to minimize chances of contamination and loss of biological material. On the other hand, the background history and other information mentioned in the excerpt reproduced hereinabove help the forensic expert formulate assumptions used in the interpretation and statistical evaluation of the DNA results.
16. It is the duty of all the government departments to work in tandem so that the desired results may be achieved.
In the instant case it is the PFSA, the Health Department and the Medical Officers working under it. Accordingly , it is directed as under: i) The Health Department shall ensure provision of SAECKs in sufficient quantities to all hospitals in the Punjab, including those at the District and Tehsil Headquarters. The Medical Officers shall without fail use these kits for collection of forensic evidence in all sexual assault cases. ii) The Medical Officers shall adhere to the guidelines issued by PFSA for collection, preservation and transportation of samples. These guidelines are reproduced in the Appendix and shall form part of this order . iii) The Medical Of ficers shall particularly ensure that - a) they take detailed and accurate history of the incident from the sexual assault victim, including (but not limited to) the assault activity , time elapsed since the assault, and post-assault activities of the victim; b) if medico-legal examination is conducted 5-7 days post-sexual assault incident, cervix samples are collected and submitted; c) clothing of victim worn during the incident and possibly bearing semen/sperm stains are submitted for serology- DNA analysis. d) reference standard samples in murder-sexual assault cases are collected and submitted to the PFSA. iv) The DNA samples should be despatched to the forensic laboratory without delay .
17. The Secretary , Primary & Secondary Health Department, Punjab, shall ensure compliance of this order . Appropriate proceedings shall be initiated against Medical Of ficers who neglect or fail to comply with it.
APPENDIX Guidelines for the Collection, Packaging and T ransportation of Evidence in Sexual Assault Cases
1. PFSA Sexual Assault Evidence Collection Kits (SAECKs) are designed for the effective collection of evidence from the victims of sexual assault. PFSA SAECKs must always be used for the collection and packaging of evidence in rape/unnatural of fences cases.
2. Victim' s underwear and garments worn at the time of assault should be collected and packaged in the envelope provided in the sexual assault evidence kit.
3. Evidence should be collected after a thorough evaluation of the assault and background history is obtained, if possible. Documentation typically referred to as medico-legal examination report or certificate (MLC) should contain specific information about the assault, what items were collected during the exam, and personal information from the victim.
4. Prior to collection of evidentiary items, medico-legal examiners must consider several factors to assist in guiding their collection and treatment efforts. These factors may include the assault activity , time elapsed since the assault, post assault activities, the age and gender of the assault victim, and mental capacity , to name a few. History written in the MLC should incorporate descriptive notes on the aforementioned factors.
5. Evidence collection should be guided by the background history , focusing spec ifically on the suspect' s actions during the assault. However if the victim is unable to recollect a complete background history due to trauma or pre- existing mental incapacity , a full range of samples should be collected assisted by the physical assessment.
6. Additional considerations prior to sample collection must include the activities of the victim following the assault.
Activities that may impact evidence collection include bathing, brushing of teeth, mouthwash, vomiting, douching, urination and defecation. Careful consideration of the assault activities and post assault activities prior to sample collection is vital. For example, the analysis of swabs collected by swabbing from areas that are kissed, licked, sucked or bit may be impacted if the victim has showered or bathed between the assault and the time of collection.
The victim should therefore be carefully interviewed to record appropriate observ ations about these post assault activities and findings should be documented on the MLC.
7. Internal swabs such as from the vagin a, mouth or rectum may still be viable for collection even after showering or bathing by the victim, dependent upon the length and thoroughness of the cleansing and time since the assault.
Internal and external swabs should still be collected even if the victim has bathed, as the bathing may not have been vigorous enough to remove the fluids or DNA from the victim.
8. Potential biological evidence deposited onto a substrate such as clothing, towels, paper towels or tissue papers do not have the same time restrictions as biological evidence deposited on, or within, the victim' s body . Therefore garments and wipes etc. must always be collected and submitted for DNA analysis regardless of the time elapsed since sexual assault.
9. Evidential items are collected with the perspective of recovering as much DNA foreign to the victim as possible during the collection process. Measures should, therefore, be taken to concentrate the foreign material by using the fewest number of swabs necessary for the collection site.
10. If multiple swabs are used during the collection, they should be collected concurrently .
11. If swabs are not taken concurrently , then the order of the swabs collected must be noted, appropriately labeled on the swab packaging and documented . When more than one swab is collected from an area then these swabs should also be collected in a consistent fashion. For example if one moistened swab was used for evidence collection, then the second swab should also be moistened.
12. Only sterile standard cotton tip swabs, provided in PFSA SAECK or otherwise commercially available, can be used for collection of evidence from the body of victim. Homemade swabs and cotton balls etc. should never be used for evidence collection.
13. Swabs should always be properly air dried prior to packaging. Swabs should never be packed in any liquid or preservative.
14. Garments, if blood stained or wet, should be dried prior to packaging.
15. Alleged assaults that may have resulted in deposition of semen externally (victim' s clothing, bedding, etc.) should also result in evidence collection because semen will remain indefinitely on these items as long as they are unwashed.
1. Lee, Henry C. and Carll Ladd. "Preservation and Collection of Biological Evidence", Croatian Medical Journal 42, No.3 (2001) : 225-228.
2. ibid
3. Scientific Working Group on DNA Analysis Methods (SWGDAM). Recommendations for the Efficient DNA Processing of Sexual Assault Evidence Kits. Available at http://www .evidencemagazine.com/index.php
4. ibid