KARACHI: A sessions court has ruled that the evidentiary value of a DNA test is not acceptable in a case falling under the penal provisions of zina punishable under the Hudood laws, which had its own “standard of proof”.
“Otherwise who launch a charge of zina are required to produce four witnesses to support their allegations and upon failure are liable to suffer punishment as prescribed in Ayat No. 4 of Surah Al-Noor,” ruled Additional District and Sessions Judge (East) Ghulam Mustafa Laghari.
He made these observations in a detailed judgment in retrial of three men in the 2008 Mazar-i-Quaid gang rape case. The court had already acquitted all the three accused through a short order.
“The DNA test may help in establishing the legitimacy of a child for several other purposes, its utility and evidentiary value is acceptable but not in a case falling under the penal provisions of zina punishable under the Hudood laws having its own standard of proof,” the judge wrote in the verdict.
In his detailed verdict, a sessions judge acquits the accused giving them benefit of doubt
The then assistant manager security of the mausoleum, an accountant and a personal assistant to the resident engineer of the Quaid-i-Azam Management Board were charged with abducting an 18-year-old woman during a visit to the mausoleum and subjecting her to a sexual assault on the night of March 15, 2008. She was found in an unstable condition outside the mausoleum on March 17 and Rangers personnel had handed her over to the Brigade police.
In the detailed verdict, the judge noted medico-legal officer Dr Rohina Hassan deposed that there was no mark of violence on the body of the victim, who was very sluggish.
The court pointed out that the clothes of the victim produced in court as evidence were not sealed, while prosecution witness Dr Ghulam Sarwar Channa deposed that he did not see any injury on the body of the accused regarding rape.
Regarding the medical evidence, the judge said: “DNA can be extracted from the cells of a variety of body fluids and tissues. While the majority of tests are carried out using DNA from blood cells, cells obtained from the lining of the cheek using a mouth wash or cells in the roots of a person’s hair”.
“Prosecution has failed to produce sufficient evidence through their witnesses of the incident,” the judge ruled.
The court added that the prosecution did not produce solid and concrete evidence through the victim and other witnesses. “It appears that they have not deposed inspiring confidence evidence to each other, many contradictions made out between the evidence of prosecution witnesses.”
The verdict stated that prosecution tried to improve its case, as the Medico-Legal Officer of the Civil Hospital Karachi, Dr Ghulam Sarwar Channa, deposed that he did not see any injury on the body of the accused regarding rape, while another witness, Dr Abdul Jabbar Hameed, deposed that “no fresh stain of either blood or semen were observed on any of the items recovered from the crime scene and therefore not used for DNA extraction”.
“It is admitted position that after two days of the incident the victim was produced before the WMLO for her medical examination. From perusal of the above medical evidence, there are so many dents in the prosecution case,” the court said.
Another prosecution witness, Judicial Magistrate Javed Hussain, deposed that the victim did not specifically state that one accused had allegedly committed zina with her.
The judge further noted that the victim’s husband deposed that the room, where she was allegedly subjected to the gang rape, was hardly 10x12 feet while another witness deposed that the size of the room was 4x4 feet.
The victim’s husband admitted that military officers were present at the four corners of the mausoleum, while another witness deposed that police enquired from the security guards, but they did not say anything.
Resultantly, the judge said that “relying on the supra case laws and the case in hand where many instances of doubt arose in the mind with regard to the genuineness of the case, as such accused persons are entitled for the benefit of doubt”.
“The prosecution has miserably failed to prove its case against the accused persons beyond any shadow of doubt. As such the accused persons are given the benefit of doubt and acquitted under Section 265-H(i) of the Criminal Procedure Code,” the judge wrote in the verdict.
The judge had cancelled the bail bond of the accused, who were present in the courtroom when the verdict was announced.
Advocates Arshad H Lodhi and Ghulam Mustafa Memon appeared on behalf of the accused, Barrister Amna Usman represented the complainant and assisted state prosecutor Nuzhat Qamar.
A case was registered under Section 365-B (kidnapping with intent to commit zina) and 34 of the Pakistan Penal Code read with Section 376(ii) of the Protection of Women (Criminal Laws Amendment) Act, 2006 at the Brigade police station in 2008.
Published in Dawn, October 11th, 2021