P L D 2009 Supreme Court 542 (PLP)

KHALIL-UR-REHMAN RAMDAY, J.

Bail is being canvassed essentially on the ground that Amanullah petitioner had been found innocent by the Investigating Officer who had even recommended his discharge from the case.

2. We have heard the learned counsel for the parties and have also perused the available record.

3. According to medico-legal examination of the prosecution namely, Mst. Gulshan Bibi, she was about 18 years of age at the time of occurrence; her hymen was found torn at multiple places which bled on touch and the vagina admitted two fingers but rightly and painfully. From this medical evidence, it is obvious that sexual inter-course had been freshly committed with the said lady and further that she was not a female of easy virtue and was not used to committing sexual intercourse. No reasons could be offered to us to explain the alleged substitution of Amanullah petitioner with the person who had actually committed the sexual intercourse with the said lady. According to the police file, the petitioner had been declared innocent and his discharge had been recommended only because the C.A.M.B. Forensic Services Laboratory had found, after the D.N.A. test, that the traces of semen found in the vaginal swabs of the prosecutrix were not those of Amanullah petitioner. Such-like reports of the so-called experts are only corroborative in nature and are required only when the ocular testimony is of a doubtful character. In the present case, as has been mentioned above, no reasons could be offered as to why the prosecutrix who had admittedly been subjected to sexual intercourse, should have spared the actual offender and should have, instead substituted the petitioner for him. In the circumstances, at least prima facie and for the purpose of this bail petition, it could not be said that the testimony offered by the prosecutirx could admit of any doubt.

4. In this view of the matter and also in view of the fact that even the learned Illaqa Magistrate had not agreed with the findings of the Investigating Officer about the innocence of the petitioner and had refused to discharge him, this , petition is dismissed and leave refused.

5. But before we part with this order, we would like to add that it is for the first time that we have noticed a D.N.A. test being called into service in such a case. We, therefore, feel compelled to place our warning on record that unless one was absolutely sure and confident of the capacity the competence and the veracity of the Laboratory and the integrity of the one conducting such a test, taking recourse to the same would be fraught with immense dangers and could in fact lead to disastrous consequences not only in criminal cases but even in cases, for example, of paternity and inheritance' etc. In the present case, at least prima facie, we find the laboratory report in question, a doubtful affair. The T.G./Provincial Police Officer, Punjab, as also the Government of the Punjab, need to give a serious thought as to whether D.N.A. tests should be encouraged and carried out in such-like situations. And the said officers shall also take steps to determine the competence and fitness of the said laboratory in the matter of carrying out such like tests and submit their separate reports to the Registrar of this Court for the information of this Bench.

6. A copy of this order shall be sent to the Provincial Police Officer, Punjab, as also to the Home Secretary; Government of Punjab, Lahore, for the said purpose. M.B.A./A-41/S Order accordingly.