KARACHI, April 13: The police have not only developed cold feet on the Colony Gate sodomy case, but they also seem to have failed to preserve the most crucial evidence which should have been procured and preserved at the time of the victim’s death.

The Sindh home minister has promised speedy and impartial investigation of the case, it seems that the police have deliberately weakened the case to save their colleagues, accused of subjecting 12-year-old Owais to sexual abuse.

A forensic expert at Dow Medical College, Associate Professor S. M. Nizamani, told Dawn that the investigation officer of the case should have ensured the presence of a magistrate when the victim, Owais, recorded his dying declaration.

He said: “To obtain material evidence, the police should have sealed the the victim’s statement and sent it to the area magistrate to convert it into what in technical language is known as dying disposition.”

Owais struggled for life for three hours and forty-five minutes during which he recorded his statement to a duty officer, Dr Sanjay, in the burns ward at Civil Hospital.

“It is deplorable that the investigation officer did not bother to show up at the hospital while the victim was alive and made his statement,” the expert said.

Mohammed Irfan, Owais’s older brother, who was with Owais when he was making his dying declaration to a doctor, told Dawn that besides him their cousin Aijaz also was present at that time.

However, the doctor did not obtain the thumb impressions of the two witnesses who saw the process of recording of the statement by the victim.

“Another cousin of mine, Shahid, an assistant sub-inspector at Orangi police station, had arrived at the hospital when the doctor had already recorded the statement,” Irfan recalled.

According to article 46 of the Qanun-i-Shahadat Order 1984, dying declaration is a substantive piece of evidence and can justifiably be used against the accused when there is nothing to suggest that the deceased had substituted an innocent person in place of the real culprit.

It also goes without saying that the exact contents of the dying declaration recorded by a competent magistrate in the proper manner in the words of the maker of the declaration should obviously carry greater weight than an oral statement which may suffer from all the infirmities of human memory and human character, the order holds.

About recording of statement by a doctor, the Qanun-i-Shahadat Order 1984 says that “the law normally requires that a doctor should not venture to record the dying declaration of a dying man himself but should procure the services of a magistrate through a police officer.”

It says: “A doctor could only record the dying declaration in exceptional cases, where he is of the firm opinion that the declarant is not likely to survive for sufficient time and valuable evidence is going to be lost in the process.”

Similarly, the dying declaration thus recorded must be made in the presence of respectable witnesses and the person who records the statement has to get the signature or thumb-marks of the declarant and the witnesses, the order holds.

Forensic experts point out while the doctor should be blamed for not obtaining the thumb impressions of the witnesses, he should be excused for not getting the thumb impression of the victim, for his fingers were bandaged.

Referring to another vital piece of evidence, experts point out that the police had also ignored medical examination.

Refuting a statement made by the inquiry officer of the case, Kamran Khan, earlier, the victim’s brother Irfan told Dawn that neither he nor any other member of his family had refused to allow the medical examination of Owais.

“No one had asked for our permission. Like most people, I was not aware of the procedure, so I thought that the police would carry out what is required by the law,” Irfan told this reporter.

He said a police official, probably of the investigation wing of Shah Faisal Colony police station and who had introduced himself as Tauqir, had come to the burns ward very late in the night when Owais had already died.

“He told us that he looked for Owais all over the city. First, at Abbasi Shaheed Hospital, and then at Jinnah Postgraduate Medical Centre. Finally, he he said, had come to Civil Hospital,” Irfan said.

“The policeman must have been lying because he must have known that all serious burns cases are brought to Civil Hospital.

“SI Kamran Khan never came to the hospital during the crucial three hours and forty-five minutes when Owais was alive,” he said.

Dr Nizamani said autopsy examination was not needed at all. “The doctor should have simply obtained a slide of anal swabs of the victim for semen detection.”

The head of the forensic medicine department at Sindh Medical College, Dr Ghulam Ali, was also of the opinion that the medicolegal officer should have obtained anal swabs of the victim.

He said a slide of the anal swabs could still be obtained from the body after exhumation, as sperms could be obtained from a body even after 6-12 months, he said.