Presently, a Writ Petition is pending in the Lahore High Court, Lahore wherein, inter alia, a declaration is sought that the two-finger test in relation to rape/sexual assault cases is unconstitutional. The Ministry of Law and Justice has given instructions to its Additional Attorney-General at Lahore i.e. Ch. Ishtiaq Ahmed Khan, which are as under:-
(i) that the two-finger test is inconclusive;
(ii) the said two-finger test and the manner in which it is conducted is against Article 14 of the Constitution which prescribes the fundamental right of “dignity of man”;
(iii) previously, Article 151(4) of the Qanoon-e-Shahadat Order, 1984 permitted the accused to challenge the character of a victim of rape/sexual assualt, as a defence. Through section 16 of Act No.XLIV of 2016, Article 151(4) of Qanoon-e-Shahadt Order, 1984 has been omitted. One logical conclusion of such omission is that the two-finger test and the manner in which it is carried out, which amounts to challenging the character of a rape/sexual assault victim, cannot be permitted;
(iv) further references have also been invited to the World Health Organization statement and other cases and material from foreign jurisdictions;
(v) in sum and substance especially in view of the statutory amendment pointed out above, the evidentiary value of the two-finger test is highly suspect;
(vi) hence, the two-finger test may not be a part of the medico-legal examination report in a rape/sexual assault case.
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