DNA in Rape cases

The virus of rape has turned itself into an epidemic.  This can be observed from the available statistics. There are at least 11 rape cases reported in Pakistan every day with over 22,000 rape cases reported to police across the country in the last six years, according to available statistics. However, only 77 accused have been convicted which comprise 0.3% of the total figure[1]. And if one resides amongst middle-class communities, one would be sure that the figures of reported cases are the only tip of the iceberg.

   As much as the rape is reprehensible, deplorable, and despicable as an offence, the same is often prove as denigration for the victim and her family. And the utmost approach of the victim’s family is to not report it. Since they do not believe that system could provide justice to them. Since the system follows the archaic laws, entangles the victim and her family in anachronistic procedural laws. And since the system requires a lot of money to fetch justice e.g. police, lawyers etc.      

It is a common sense that a culprit will not commit this unacceptable offence before anyone. So, the whole of the case obviously depends on circumstantial evidence. The rule of appreciation of evidence in circumstantial evidence cases is that it must be inter-linked to make out a single unbroken chain. The chain must touches from its one end to the crime and the other end to the neck of the culprit. Above all, there must be no doubt in any link of the chain. And DNA is also a part of circumstantial evidence in rape cases.

Scientifically speaking, a deoxyribonucleic acid known as DNA is a molecule carrying genetic instructions for the development, functioning, growth, and reproduction of all known organisms. it is the hereditary material in humans and almost all other organisms. Every living organism on earth has a unique DNA pattern. This pattern now is used in forensic science to identify culprits. This method is known as DNA profiling or DNA fingerprinting.

 

DNA profiling (also called DNA fingerprinting) is the process of determining an individual's DNA characteristics. It is a forensic science technique that is being used in criminal investigations by comparing suspects' DNA profiles and by linking the same with other available pieces of evidence to reach their involvement in the alleged crime.

In the criminal administration of justice in Pakistan, the DNA has yet not been given substantial evidentiary value. In this regards, the foremost important case to mention is the Salman Akram Raja v Government of Punjab[2], wherein the Supreme Court of Pakistan attempted to remedy the lack of utilization of DNA evidence. And ordered that DNA tests must be conducted in all rape cases, and the samples must be preserved. This was a suo-moto case in response to attempted suicide by a minor victim of rape on her failure to get her complaint registered. The Court observed that “DNA provides a mean of identifying perpetrators with a high degree of confidence”… “by using DNA technology the courts would be in a better position to reach at a conclusion whereby the real culprit would be convicted, potential suspects would be excluded and wrongfully involved accused would be exonerated”.

Due to lackadaisical unempathetic behaviour of legislature, required amendments could not be passed through the legislation in due time. Therefore, the courts too could not help much in giving DNA profiling its true evidentiary value. Thus, in Azeem khan Vs Mujahid Khan[3] the august Supreme Court of Pakistan has had to observe that DNA alone is not sufficient to award capital punishment. And since the respective provision of Criminal Procedure Code, 1898, i.e. Section 510 does not consider the DNA test report as an admissible piece of evidence, therefore, the court could not base it to upheld the capital sentence.

But now, in a recent most revolutionary judgment in the case Ali Haider @ Pappu Vs Jameel Hussain, etc[4]. the august Supreme Court of Pakistan has given the status of DNA test report per see admissible. While referring to Article 164 QSO, 1984 (Evidence law), section 510 CrPC (Procedural law), and section 9 of PFSA, Act of 2007 the court held that “DNA Test Report prepared by an expert of the PFSA is per se admissible”.

To conclude, the court rightly held that “DNA evidence is considered as a gold standard to establish the identity of an accused. It is one of the strongest corroborative pieces of evidence. The usefulness of DNA analysis, however, depends mostly on the skill, ability and integrity shown by the investigating officers, who are the first to arrive at the scene of the crime. Unless the evidence is properly documented, collected, packaged and preserved, it will not meet the legal and scientific requirements for admissibility into a court of law”. Therefore, it is high time that investigating agencies must correct their course, mend their ways, and learn the methods of collection, preservation, and use of DNA profiling in the administration of justice, especially in rape cases to diminish the aftermaths of this abhorrent epidemic.  

Hafiz Muhammad Azeem.

The writer is an Assistant District Public Prosecutor. He holds an LL.M. from the Punjab University, writes on various topics, and teaches law. He can be reached at Khokhar.azeem@yahoo.com. His articles can also be accessed on hmazeem.blospot.com.           

 

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[1] See, < https://www.thenews.com.pk/latest/743328-about-11-rape-cases-reported-in-pakistan-every-day-official-statistics-reveal>. Accessed on 19-02-2021. These statistics were obtained from the Police, Law, and Justice Commission of Pakistan, Human Rights Commission of Pakistan, Women's Foundation, and provincial welfare agencies.

[2] 2013 SCMR 203

[3] 2016 SCMR 274

[4] Crl. Petition No.513/2020.

Defective Investigation

            An investigation has a cornerstone role to be played in the criminal administration of justice. In Pakistan, it is being played by the local police. It starts with the information provided by any person and recorded by the police in concern registers maintained in the police station in this regard: under section 154 of the Code of Criminal Procedure, (CrPC) 1898. However, the police have many other tasks to do besides investigation; foremost is to maintain law and order. Notwithstanding, in criminal administration of justice, accused persons get acquittal due to defective investigation since the creation and implementation of this system with the advent of the colonial era. Because the court is unable to sentence an accused unless the charge is proved beyond a reasonable shadow of a doubt.

            Having said that, the question is: what are the faults of those whose loved one is murdered. No doubt, culturally there is a trend of indicting the whole family in a criminal case to avenge; yet this trend is the result of the defective investigation. For this reason, the courts have to acquit real culprits along with innocent accused persons. This burden falls on the shoulders of investigating agency: the police. Resultantly, crime in our society never decrease.

            There are various reasons for defective investigation ranging from social, economical and political aspects. Socially, to take avenge real culprits often abscond and innocent family members become the victim of false accusations. The investigating agency cannot do much when the complainant indicts an innocent person as accused. Economically, police are weak as many other departments of this country. A police officer has to visit various offices in his investigation e.g., Forensic Science Agency, NADRA, FIA, Ballistic, Call-Data and Medical experts, etc. He also has to visit a place of occurrence. He also has to raid many times to arrest accused persons. He has to call complainants and witnesses. He has to attend courts i.e., Trial Court, Bail Court, High Court to witness and present records in different proceedings. And he has to bear all expenses himself. Politically, police have to face a lot of pressure which results in a defective investigation. If a son or relative of political-giant is accused of a crime, then from FIR to arrest, from arrest to remand, from remand to recoveries, from investigation to trial, in every aspect, a police officer has to face enormous pressure and has to save his own job or transfer.       

               Courts give the benefit of defective investigation to the accused. Although in the common law system, there is a principle that merely defects in the investigation by itself cannot be a ground for acquittal. Here it is pertinent to refer Indian Supreme Court which held in C. Muniappan and Others Vs State of Tamil Nadu, 2010 that “there may be a highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer, and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in the defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation”.

            Likewise, in Dayal Singh and the Others Vs State of Uttaranchal, 2012 the Indian Supreme Court held that “merely because Police have failed to perform their duties in accordance with the requirements of the law, and there have been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground…”. Be that as it may, still benefit of defective investigation is always given to the accused not as grace but as a right.

            The solution to curing the defective investigation cannot be described in a single line. The whole system needs to be revamped. The investigation wing must be separated from the wing controlling law and order situations. The investigation must be conducted under the supervision of a public prosecutor. The investigating officer must have a training course; he must be learned of law and methods of investigation; he must understand modern techniques of investigation; he must have a thorough knowledge of forensic sciences; he must be equipped with modern gadgets; he must have understandings of modern information technology and use of the same to save and record the evidence and witnesses’ depositions etc. The registers of police stations must be converted into the online system, and the same must be available to the public at all times.

            And for courts, the guidance can be sought from the words of the Indian Supreme Court used in State of Karnataka Vs K. Yarappa Reddy that “it can be a guiding principle that as the investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise, the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the [pic]action taken by the investigating officers. The criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case”.

 

Hafiz Muhammad Azeem

The writer is an Assistant District Public Prosecutor and writes on various topics. He can be reached at Khokhar.azeem@yahoo.com. His articles can be accessed on hmazeem.blospot.com. He holds an LL.M. from the Punjab University and teaches law.

 

 

 

Shootings inside courtrooms

  

               Courtrooms are not safe anymore in Pakistan. Legally speaking, a court is a place where trials are conducted and legal cases are decided in accordance with the law. Persons facing trials, or litigants claiming rights, come to court with a belief that it is the safest place where their rights will be protected, determined, and respected; they are under the protection of the law; they will get justice. However, with an increase in killings, shootings, fighting, and squabbling inside, outside, or even near the courtrooms, the trust of citizens upon which the premises of justice stands is started to be diminishing. Therefore, it is high time to make sure that the courtrooms are the safest place to get justice.

               In Pakistan, work in courts have been divided as per subjects: civil, criminal, family, tax, banking, service matters, etc. Likewise, in the higher judiciary, work is also distributed amongst benches. It is becoming common day by day to watch the situation of chaos inside, outside, or near the courtrooms. What to speak of district judiciary, even the high judiciary is no exception to it.

               Civil and criminal are two major divisions of the court work. In civil matters, often quarrel amongst litigants ends with police intervention, even though late, or after catching TV channel cameras, etc. but never ends with the death of anyone, because only future or financial interests are involved. However, in criminal matters, the situation is entirely different, because the loss of life is involved.

               In criminal litigation, especially murder trials, litigants come to court not to get justice but to take revenge. It is not the hope of justice that is the leading factor, under the present circumstances of the criminal administration of justice in Pakistan, rather it is the rage and revenge that urges litigants involved in murder trials to come to court; many a time, only to get a chance to kill the accused or to injure him or his family members inside, outside, or near the courtrooms during trial hearings.

               In recent days, only in Punjab, it can be seen that the situation inside criminal trial courts is very grim. Moreover, as per news and circulated videos on social media, a man wearing the uniform of an advocate shot down his target during court proceedings in the presence of police. Everyone was unsafe: the judge, the prosecutor, the stenographer, the reader of the court, the police officials, the clerks, the lawyers.

               This is not unpreventable, rather this can be avoided with the use of modern technology. Our criminal laws are as old as one can think i.e. 1898 Procedure, 1908 Penal Code. When the light was rarely available. When the Mobile Phones are unimaginable. When the Internet is beyond thought. When for summons we need many days and a person for this job only. Whereas, as per research, in 1973, the first call from a hand-held device was made with a phone-shaped device of Motorola company. And January 1, 1983, is considered the official birthday of the Internet.          

               After that life has been changed. Today the world is on one click. This is the age of light, speed, and the internet. Sadly, still today we are roaming around the archaic age laws made by colonial masters not to favour the citizens of the subcontinent rather rule on them. Resultantly, we are still losing the lives inside, outside, or near the courtrooms: for what, justice?

               Anyhow, by using modern devices not only this surely can be prevented but also the state expenses can be minimized of court proceedings. The summoning and attendance of accused persons either on bail or under custody should be made possible through the use of modern devices that must be installed inside each criminal trial courtroom. Although the colonial masters’ designed laws fixed the recording of evidence in the presence of the accused; however, it does not debar the use of modern devices for achieving the ends of justice.

               In a recent most case titled Muhammad Israr versus the State, the honourable Peshawar High Court has provided detailed guidelines that must be followed by trial courts in recording evidence through the use of modern devices which can be taken as the first drop of rain. Likewise, the Supreme Court of Pakistan also time and again has highlighted the use of modern devices in recording the evidence.

               Judges should not act as spectators, and courts should not act as post offices. It has often been seen that accused persons facing trial moved applications that their lives are under threat, and judges just pass stereotypes orders for the police officials: mostly to the Station House Officer of the police station to ensure safety, who in compliance increase the quantity of deputed officers. Amongst those mostly remained on various raids, or for whole night security and are too much tired to actively obey the orders; so, they left things in the hands of fate.   

               What should be done is that whenever any witness or accused, or any complainant, or even anyone attending court proceedings moved an application of a life threat, it should not be considered lightly, rather his attendance must forthwith be shifted and be ensured through the use of modern devices: one TV, Internet device, and one operator inside the courtroom; one TV, Internet device, and one operator inside the police station in case of persons other than accused or accused on bail, or inside the jail premises in case of accused facing trials. That police station or jail then simply will be connected through the internet and court proceedings can be conducted safely.

                This is not rocket science, this is very simple, a child of today’s age can do it. So, to conclude in the words of Stephen Hawking that “we are all connected like neurons in a giant brain”, it is the utmost requirement of the time that safety of lives be ensured inside the courtrooms through the use of modern technology and use of modern devices which is available in the hands of more than 180 million citizens of Pakistan.

 

Hafiz Muhammad Azeem

The writer is an Assistant District Public Prosecutor, got the first position in competitive exams, and writes on various topics. He can be reached at Khokhar.azeem@yahoo.com. His articles can be accessed on hmazeem.blospot.com. He holds an LL.M. from the Punjab University and teaches law.

 

ATTEMPT TO COMMIT SUICIDE

             Suicide is the intentional, voluntary, un-accidental, act of a sane man which results in his own death. In Pakistan, section 325 of Pakistan Penal Code, 1860 provides that “whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both”. The law to punish the attempt to commit suicide is as old as the penal code itself.

            Because in subcontinent penal code is designed and enforced by Englishmen, that is why, it would be judicious to quote Blackstone's common law view of suicide here: “the law of England wisely and religiously considers that no man hath a power to destroy life but by commission from God, the author of it; and, as the suicide is guilty of a double offence; one spiritual, in invading the prerogative of the Almighty and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of felony, a felony committed on one's self”.

Presently, as per World Health Organization, more than 700 000 people die due to suicide every year, and for every suicide, there are many more people who attempt suicide. Suicide is the fourth leading cause of death in 15-19-year-olds. The question is: Whether the criminalization of suicide-attempt is productive in the prevention of it? Research answers in No. Rather, it adds more mental issues, agony and sufferings by labelling the victim as accused in society. Astonishingly, this is the only offence where the accused is also the victim.

The main purpose of the legislation is always to diminish the mischief caused by the act or omission which is designated as an offence; so, if the offence attempt-to-commit-suicide is not diminishing the attempts and if the offence is not proving helpful in the prevention of this crime, then is it not indispensable to review the law and to legislate it in accordance with socio-economic and phycological scenario of our society.

            Firstly, the vires of this legislation was discussed by the Bombay High Court in Maruti Shri Pati Dubal Vs State of Maharashtra, 1987 and held the section 309 of Indian Penal Code (which is similar to section 325 of Pakistan Penal Code) unconstitutional on the grounds that: “If the purpose of the prescribed punishment is to prevent the prospective suicides by deterrence, it is difficult to understand how the same can be achieved by punishing those who have made the attempts. Those who make the suicide attempt on account of the mental disorders require psychiatric treatment and not confinement in the person cells where their condition is bound to worsen leading to further mental derangement. Those on the other hand who make the suicide attempt on account of acute physical ailments, incurable diseases, torture or decrepit physical state induced by old age or disablement need nursing homes and not prisons to prevent them from making the attempts again. No deterrence is further going to hold back those who want to die for a social or political cause or to leave the world either because of the loss of interest in life or for self-deliverance. Thus, in no case the punishment serves the purpose, and in some cases, it is bound to prove self-defeating and counter-productive”

Then, the Indian Supreme Court in P. Rathinam Vs Union of India, 1994 held the same to be unconstitutional by observing in conclusion “that Section 309 of the Penal Code deserves to be effaced from the statute book to humanise our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide”. The court also referred two leading countries in its judgement: United Kingdom and United States of America.

“At English Common Law suicide was taken as felony as much so that a person who had met his end after committing suicide was not allowed Christian burial… and the property of the person concerned used to get forfeited to the Crown… but times changed, notions changed and presently, even attempt to commit suicide is not a criminal offence, as would appear from Suicide Act, 1961”.

As per above referred judgment, “in the United States by early 1970's comparatively small number of States (9) listed suicide as a crime, although no penalties were exacted”. And then court referred, “the latest American position as it had been mentioned at p. 348 of Columbia Law Review, 1986: Suicide is not a crime under the statutes of any State in the United States. Nor does any State, by statute, make attempting suicide a crime…”

Although P. Rathinam’s case was not approved by the full bench of the Indian Supreme Court, i.e., Smt. Gian Kaur VS the State of Punjab in 1996; despite the grounds and reasoning referred by the court in P. Rathinam’s case deserves much legal appreciation.

 Be that as it may, in India, under section 115 of Mental Health Care Act, 2017 presumption of severe stress in case of attempt to commit suicide was provided to the accused. It provides that “Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code”.

However, In Pakistan, although Mental Health Ordinance, 2001’s section 49 states that “a person who attempts suicide shall be assessed by an approved psychiatrist and if found to be suffering from a mental disorder shall be treated appropriately under the provisions of this ordinance”. Yet it does not diminish the aftermaths of arrest of the victim-cum-accused under section 325 of PPC.

Therefore, it is high time that necessary amendments in penal and procedural laws regarding the attempt to commit suicide be made because it is a more medical, psychiatric, and sociological issue than crime. It is also indispensable because, in criminal law, offences must always have justifications. And what justification could be there for punishing a person suffering from mental and phycological illness or with socio-economic issues, which are beyond his control.