ISLAMABAD:

On May 25, 2012, in an Islamabad suburb, twelve-year-old S* was making her way back home from school when she was abducted and sexually assaulted.

A young bearded man clad in white shalwar kameez, armed with a knife and a screwdriver, attacked S. A police report was filed the same day and S went through a medical examination at a local public hospital.

While a district court took up the case in just a few weeks, it would take four years for the perpetrator to get his sentence. On July 29, 2016, he was sentenced to life imprisonment. Shockingly, one vital piece of evidence never made it to court.

“The results of DNA tests conducted after the victim was medically examined were never presented,” said the lawyer who represented S. “The laboratory later admitted that the samples had been misplaced.”

While the prosecution in the case of S was able to prove charges against the rapist based on corroborative evidence and successful identification, flawed investigations and poor DNA testing standards continue to be major factors behind the low conviction in rape cases in Pakistan.

Design: Mohsin Alam

Systemic flaws

According to lawyers and experts, there are countless flaws inherent in the current system for collection of DNA evidence. “From conducting medical examinations of victims to preserving and testing DNA samples, the standards in place right now make it almost impossible to convict suspects using DNA evidence,” lamented Advocate Imtiaz Ahmad Somra. The lawyer, who has prosecuted dozens of cases of child sexual abuse, said without adequately trained and equipped police officers and medical staff, DNA evidence would remain of little to no help.

“I have pleaded at least 20 cases since 2009 where the results of DNA tests were negative but the suspects were convicted based on circumstantial evidence, statements and the initial medical examination,” said Somra. “In that same period, I don’t recall a single case where DNA tests proved the charges against suspects.”

According to Somra, police officials are bound by law to take victims of sexual crimes to a hospital for medical examination within 24 hours of the incident being reported. The initial examination, conducted by a lady doctor, looks for signs of sexual violence. Doctors also collect swabs from the victims and hand them to the police for forensic testing.

At the forensic lab, experts run tests on these samples to detect semen. If detected, a DNA test is carried out to ascertain or corroborate the suspect’s identity. Depending on the urgency of the case and police interest, the process can take from two weeks to a few months.

“But most reports from the Punjab Forensic Science Agency (PFSA), to which the Islamabad Police sends samples, conclude that no semen was detected and as such a DNA test is seldom conducted in the first place,” said Somra. He believes this is due to poor standards for sample collection and preservation.

“Samples collected from the victims must be preserved at a controlled temperature and sent to a laboratory as soon as possible before the semen dies. But often times, the samples are kept at police stations at room temperature for days before they are finally sent to the lab,” he revealed. “With such flawed practices, the observations a doctor makes and the tests which they run during initial medical examination become more important for prosecution.”

“Under Qanoon-e-Shahdat, the statement of a child victim of rape or sodomy is a sufficient evidence for conviction. There have been several cases where DNA tests were negative but suspects were convicted on the basis of the victim’s statements and other corroborative evidence,” said the lawyer.

 

“The major issue in child sexual abuse cases is lack of counseling of the child victims,” he said. “Counseling by psychologists is very important for successful trials of rape suspects.”

There are also other challenges to DNA tests in rape cases, according to Somra. It is sometimes also difficult to prove identification through semen through DNA tests if the culprit has used a condom or has discharged out of vagina. “That’s why it is very crucial for the police to also look for and collect any possible body parts like hair, nails, skin or blood from the crime scene apart from semen,” he said.

“I have also dealt with cases where vaginal or anal swabs from the rape victims were collected within five to six hours but the DNA test reports still came negative as no semen could be detected. This is because the police do not follow the proper procedure to preserve these samples,” he said.

 

While DNA testing is poorly carried out in some provinces, there are others where it isn’t being carried out at all. Currently, no DNA testing of sexual assault victims is being done in Balochistan.

Untimely reporting

Dr Farrukh Kamal, former medico-legal officer at the Pakistan Institute of Medical Sciences, says sexual assault can be proved through chemical examination of vaginal swabs if they reach a laboratory within 13 days of the incident. “This is what the medical books say. The best practice is to examine the victim as soon as possible for better results. But sometimes we receive cases which are reported weeks after the assault, we tell the victim and the police that due to time lapse, it is difficult to prove the incident but we conduct tests anyway,” he said.

As per law, a female rape victim can only be examined if she consents to the examination. “In rape cases, we collect blood samples of the victim for the DNA test. These and other samples are sealed by the hospital to prevent any interference and can only be opened at a laboratory. They need to be kept at a controlled temperature inside a refrigerator,” he added.

Dr Kamal said a lady doctor, during the initial medical examination of the victim, can detect penetration if it is the victim’s first time. “But if there have been penetrations before, then it’s a bit difficult to establish that immediately,” he said, adding doctors also look for possible signs of resistance by the victims, for example the state of their clothes and body.

The penetration test, more commonly known as a two-finger test, has been criticised by activists for years as it can lead to discredit sexually experienced victims. In a ruling by Lahore High Court on January 4th, 2021, the investigation practice was outlawed in Punjab. However, it is still used in rape investigations in other provinces.

 

To a question whether police investigators in Islamabad collect or look for hair, nails and other such things at the crime scene which can lead them to the suspect, he said NO. “At least I haven’t seen this.”

No training, no funds

A senior police officer, talking on the condition of anonymity, conceded that investigation and evidence collection from crime scenes by the police is not up to the mark. “Ideally it is forensic experts who should collect evidence from the crime scene, not the police. But here [in Pakistan], the police do it. Evidence collection is not up to international standards where the investigators look for all sorts of objects and signs that could lead to the perpetrator. In Pakistan, due to lack of training and facilities, mostly what a police official collects as forensic evidence is the victim’s clothes,” the officer said, adding progress has been made in Punjab where forensic experts are involved in evidence collection from crime scene.

For better investigation procedures, it is essential that the rape incident is reported to police as soon as possible and before the victim takes a bath or changes clothes, said the officer.

He added that most of the genuine rape incidents go unreported in Pakistan due to societal taboos, and even if they are reported, the victims are reluctant to undergo medical tests and press charges.

When asked how perfect the preservation of samples are by the police before they are sent to lab, the officer said as per procedure the samples should be sent to the lab as soon as possible, preferably the same day because police do not have facilities to preserve them at the police station level. The senior cop, however, conceded that at times the process to dispatch samples to the labs get delayed due to lack of funds. “Punjab Forensic Science Agency is providing free DNA testing facility to Punjab Police but not the capital police. A DNA test costs between Rs5,700 and Rs8,000, an amount which an investigation officer has to spend from his own pocket. To receive a refund for this amount from the state, it takes at least three to six months, if the file moves smoothly through various departments. So why would he spend an amount when he knows that he will get it back in six months at the earliest,” he explained.

He said that the investigation funds that the police get are insufficient for the caseload they deal with. “This fund is not provided before the start of investigation. Due to this, sometimes police officials seek money from victims and their families.”

The officer said establishment of the National Forensic Science Agency a few years ago in the capital was a good initiative that could have addressed many of these issues but the agency has not as yet been made fully operational.

It is pertinent to note here that the capital police recently signed an agreement with the PFSA to charge the department on a monthly basis instead of individual officers who take the samples for DNA tests from Islamabad to Lahore. Officials say if the policy is implemented, this could resolve the funds issue to some extent.

Meanwhile, spokesperson for the ICT police said that a government hospital in the capital has all the basic facilities for conducting medical examination but DNA tests are sent to PFSA as it is considered the best facility in the country for such procedures.

Advocate Umer Gilani says that the entire policing system needs to be redesigned in order to improve investigations in all criminal cases. “The poor investigation that we see in rape cases is not unusual; investigation is badly conducted in almost all cases, be they of murder, abduction, snatching or land-grabbing. It is wishful to think that these problems can be solved one by one,” he said.

 

Second round of litigation

Once an accused is convicted, he usually files an appeal against the decision before a higher court. In the case S, the accused, after he was convicted in July 2016, filed an appeal before the Islamabad High Court and challenged the judgment, saying the crucial piece of evidence, the DNA report, was never presented before the trial court, which could justify the link between the accused and the victim.

Conversely, the state counsel in the case said that the judgment did not suffer from any illegality and it was passed after due appreciation of law and record. He, however, revealed “every effort to bring the DNA report on record had been made, but that it was not available as the then Investigation Officer of this case had died during the trial.”

Surprised by this revelation, IHC’s Justice Mohsin Akhtar Kayani directed SHO Sihala police station to submit the reasons of non-submission and in response Kayani was informed that blood samples were taken and sent to the NFSA however a report was not placed on record as it had never been received.

The judge asked the district attorney to justify his position as the custodian of prosecution services in the capital but he could not answer and justify his conduct as to why DNA report was not placed on record. The judge also noted in the order, the SHO, DSP and other police officials contacted the NPSA and produced an attested copy of test results of DNA of high vaginal swabs on record with a covering letter by the deputy director NFSA dated January 25, 2020 – almost four years after the conviction and eight years after the FIR.

“Entire case file reveals that no positive effort has been put for successful prosecution, rather a major piece of evidence was not taken into account,” Justice Kayani stated, saying the court was not in a position to accept the piece of evidence at this stage.

On the conduct of the trial court, the high court judge opined that the “courts could not sit as silent spectators, especially when the public prosecutor has not peformed his duties and responsibilities in accordance with law, stating that “such illegal conduct shall not be allowed to proceed further.”

Resultantly, IHC judge allowed the criminal appeal against the 2016 judgment and remanded the case to trial court to “call the report of NFSA under the law” and give the right of hearing both sides, and decide that matter in accordance with law within two months.

Justice Kayani also directed the Chief Commissioner Office Islamabad to immediately remove the district attorney from his office as he has not performed his duties in a manner fit for the position.

The judge while allowing commissioner to seek supplementary grant and directing the federal government to provide budget ordered the capital’s Inspector General to inquire about the status of incomplete challan pending for reports relating to DNA, chemical examination, forensic or any other technical report and shall initiate departmental actions against those investigation officers as well as SHOs for non-performance of their police functions.

The directions appear to be encouraging yet the fact is that the courts and the officials concerned took eight years to bring a DNA report of the accused on record is extremely alarming. The slow pace of trial in rape cases is also concerning. Moreover, without the state’s provision of proper counselling by psychologists, the victims of sexual assault are bound to struggle with the brutal and traumatising investigation process.

*Name withheld to protect identity