Accused persons arrested on charges of sexual abuse, especially of children, have been getting relief as in certain cases the investigating officers have not been following provisions of the law making DNA tests of the victim and accused mandatory.

The superior courts, including the Peshawar High Court, have ruled in different judgments that conducting DNA tests in cases of sexual abuse provided under section 164-B of the Code of Criminal Procedure (CrPC) was mandatory and should be followed by the investigating officer or agency.

Last month a suspect, Mohammad Umair, arrested for sexually abusing a minor boy in the jurisdiction of Mandani police station in Charsadda, was granted bail on condition of furnishing two sureties of Rs100,000 each.

The alleged occurrence had taken place on June 24, 2019, and the accused was charged under section 377-B (sexual abuse of a child) of Pakistan Penal Code read with section 50 (exposure to seduction) and 53 (sexual abuse) of Child Protection and Welfare Act, 2010.

One of the grounds for granting bail to the suspect/petitioner was non-conducting of DNA tests of both the victim and the petitioner.

A single bench of Justice Ahmad Ali on Dec 26, 2019, allowed bail petition of the accused. The bench ruled: “Moreover, in the instant case, no compliance has been made with the provision of Section 164-B CrPC because no samples for DNA test have been obtained either from the accused or victim despite the fact that the word ‘shall’ is used in the said provision, making its applicability mandatory.”

“The prosecution must keep in mind this aspect while dealing with such offences, in the best interest of the victim as well as the accused,” the bench ruled.

The provision of conducting DNA tests of a victim and an accused was introduced in the law through the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016, which was enacted in Oct 2016. Apart from making other amendments, sections 164-A and 164-B were inserted in the CrPC.

Section 164-A deals with medical examination of victim of rape in cases registered under section 376, 377 or 377B of the PPC. The law provides that such a victim shall be examined by a registered medical practitioner.

It is provided that the medical practitioner without delay shall examine the victim and prepare a report of examination giving different particulars, including description of material taken from body of the victim for DNA profiling.

Furthermore, section 164-B deals with DNA test providing that DNA samples shall be collected from the victim and the accused during medical examination within optimal time of receiving information related to commission of the offence.

The law provides that the DNA samples shall at the earliest be sent for investigation to a forensic laboratory where these shall be properly examined and preserved.

One of the important judgments in this regard was delivered by Justice Roohul Amin Khan of the Peshawar High Court in Dec 2017 wherein it was pronounced that after enactment of the law in 2016 it was mandatory to conduct DNA tests of the victim of sexual abuse and the accused person.

The bench had delivered the judgment in a bail petition filed by a suspect, Umar Taj, who was charged with the abduction of a female and sexually abusing her. The bench accepted the bail petition and had given detailed observations about the DNA provision.

In its detailed judgment, Justice Roohul Amin Khan had 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.

The bench had ruled that section 164-B CrPC provided that where an offence under sections 376 or 377 or 377-B of the Pakistan Penal Code, 1860, was committed or attempted to have been committed or was alleged to have been committed, the investigating officer (IO) shall proceed for collecting Deoxyribonucleic 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 related to commission of such offence.

“By use of word ‘shall’ in section 164-B CrPC, its application has been made mandatory in offence under section 376 PPC,” the bench had ruled.

Similarly, in another case last year the high court had granted bail to an accused named Akhter Hussain who was charged with kidnapping and sexually assaulting a young girl in Mardan district. In that case also the investigation officer had not conducted DNA tests of the accused as well as the victim.

“Laws have frequently been changed and judgments are delivered by courts in light of those changes. This is responsibility of the prosecution department to make the investigation officers aware of recent judgments of courts as well as amendments made in important laws,” said advocate Shabbir Hussain Gigyani, who is an expert in criminal law.

He pointed out that while the provision of DNA sampling was made mandatory in 2016 the investigation officers were mostly unaware of it. He said that while in high-profile cases the provision was followed, the officers usually did not comply with it in routine cases.

Mr Gigyani suggested that as the KP Judicial Academy was well equipped and had been conducting trainings for judicial officers and other stakeholders, including prosecutors, police, prison staff, etc, it would be appropriate to conduct trainings regarding improvement in investigation methods keeping in view advancement in science and technology.

Published in Dawn, January 20th, 2020