Admissibility of DNA Evidence in PakistanAdmissibility of DNA Evidence in Pakistan

DNA Evidence in Pakistani Courts: 

This article examines the approach of Pakistani courts with respect to the admissibility and evaluation of DNA evidence. The case law analysis brings to the fore two distinct streams of cases in which parties attempt to rely on DNA evidence: paternity/legitimacy of children and sexual offenses. In the first category of cases, courts are reluctant to question paternity/legitimacy on the basis of DNA evidence due to a legislatively enforced conclusive presumption under the Qanun-e-Shahadat Order 1984 in favor of paternity/legitimacy. DNA evidence is admissible in the second category of cases, and its value is determined on a case-by-case basis.

 Introduction

While there is a growing body of reported judgments dealing with questions concerning the admissibility and weight of DNA evidence in Pakistan, there is little scholarship available on the subject. This article hopes to bridge this gap by presenting an analysis of the case law on DNA evidence.

In Pakistan, the legal system lacks a dedicated framework specifically addressing DNA evidence. Consequently, the judiciary must navigate within the existing legal provisions. DNA evidence is primarily assessed under Articles 59  and 164  of the Qanun-e-Shahadat Order 1984 (‘QSO’). Article 59 posits that expert views on subjects such as science and art are considered ‘relevant evidence’. In contrast, Article 164 encompasses the admissibility criteria for evidence emerging from scientific and technological progress. Within the current legal structure, the individual responsible for examining DNA evidence is deemed an expert, and their opinion is considered admissible in court. This approach mirrors the procedure for admitting medical opinions, inadvertently suggesting that DNA evidence is merely another form of medical evidence, and equating DNA specialists to doctors. Such a narrow interpretation could hinder the full potential of DNA evidence. It’s crucial to recognise the fundamental difference between medical opinions and DNA evidence: the former cannot pinpoint culprits, while the latter can, and with remarkable precision. Therefore, a distinct legal perspective for DNA evidence would be more fitting. However, as will be discussed, the judiciary’s interpretation has been somewhat conservative, indicating there’s considerable room for progression.

It’s evident that the current legal approach towards DNA evidence in Pakistan leaves much to be desired. While the Qanun-e-Shahadat Order 1984 (‘QSO’) offers a starting point for its admissibility, the lack of a dedicated framework specifically for DNA evidence results in its potential being underutilized. This limitation becomes even more pronounced when we consider the significant advancements in forensic science and the role DNA evidence plays in modern criminal investigations globally.

One of the primary issues arises from the tendency to equate DNA experts with medical professionals. While both contribute valuable insights to legal proceedings, their roles and the nature of their evidence are inherently different. Medical opinions, as valuable as they are, predominantly deal with the condition, treatment, or prognosis of an individual. In contrast, DNA evidence offers a unique ability to match a suspect to a crime scene or victim with a high degree of certainty. This difference isn’t merely academic; it has real-world implications for the justice system.

For instance, when DNA evidence is treated merely as another form of medical opinion, its unique strengths might not be adequately highlighted during trials. This could lead to situations where compelling DNA evidence is not given the weight it deserves, potentially resulting in miscarriages of justice.

Furthermore, the lack of clear guidelines on the collection, storage, and analysis of DNA samples can raise questions about the integrity and reliability of such evidence. Without robust protocols in place, there’s a risk that DNA evidence could be contaminated or mishandled, rendering it inadmissible or leading to incorrect conclusions.

While the existing legal provisions in Pakistan provide a foundation for the admissibility of DNA evidence, there’s an urgent need for a more comprehensive and nuanced framework. Such a framework would not only ensure the proper utilisation of DNA evidence but would also enhance the credibility of the justice system. It’s high time the courts, in collaboration with legal experts and forensic scientists, take progressive steps to fully integrate DNA evidence into the legal process, ensuring justice is both served and seen to be served. [end of response]

 Judicial Approach to DNA Evidence

The approach of the judiciary towards DNA evidence in Pakistan has been inconsistent. In cases relating to paternity and legitimacy, courts often tread with caution, prioritising traditional forms of evidence over DNA results. This is largely due to the cultural and social implications associated with questioning paternity or legitimacy in Pakistan. A negative DNA result could have dire social consequences for the child in question, and courts are often hesitant to overturn a legislatively enforced conclusive presumption in favour of paternity or legitimacy based solely on DNA evidence.

In cases of sexual offences, the courts are more open to admitting DNA evidence, but its weight varies from case to case. While DNA evidence can be a powerful tool in corroborating the victim’s statement, it is not always treated as primary evidence. This is partly because the Qanun-e-Shahadat Order 1984 classifies it as an expert opinion, which is traditionally treated as secondary or corroboratory evidence. However, there have been instances where the judiciary has leaned heavily on DNA evidence, especially in the absence of other compelling evidence.

One significant challenge is the lack of proper facilities and training for the collection, preservation, and analysis of DNA samples. Mishandling or contamination of samples can render DNA evidence unreliable. This has led to criticisms of the investigative agencies and calls for better training and infrastructure related to DNA evidence collection and analysis.

Statutory Framework in Pakistan

Pakistan’s legal framework currently lacks a specific statute addressing DNA evidence. Instead, courts must navigate within the existing legal structures. DNA evidence is interpreted under Articles 59 and 164 of the Qanun-e-Shahadat Order 1984 (‘QSO’). The former article considers expert opinions on topics like science as ‘relevant evidence’, while the latter addresses the admissibility of evidence resulting from scientific and technological advancements. Presently, technicians who analyse DNA evidence are deemed experts, rendering their findings admissible in court. This classification mirrors the legal treatment of medical opinions, implying a DNA expert is akin to a doctor. Such a perspective might limit the full utilisation of DNA’s potential. A fundamental distinction exists between medical opinions and DNA evidence: while medical opinions do not identify culprits, DNA does — with remarkable precision. Therefore, DNA should be legally viewed differently. Regrettably, current judicial interpretations haven’t been progressive enough in this area.

 DNA Evidence in Pakistani Courts

This segment examines how Pakistani courts have treated cases involving DNA evidence, aiming to discern how the existing legal framework has moulded the judiciary’s approach. Two primary categories of cases have emerged: those concerning paternity/legitimacy and those involving sexual offences. Each category is governed by distinct legal provisions. While DNA evidence is often dismissed in one set of cases, in the other, its reception is inconsistent. To elucidate this further, the analysis is divided into two subsections, focusing on each category.

 Paternity/Legitimacy Cases

The significance of establishing paternity cannot be overstated, given its numerous legal and societal implications. Especially in religious societies like Pakistan, the methods to determine paternity are elaborated upon in legal systems. Since Pakistan is predominantly Muslim, understanding the Muslim Personal Law on this subject is essential to grasp the complex interplay between DNA and paternity disputes.

Based on a prominent saying of the Holy Prophet (PBUH), a child’s lineage is ascribed to the husband if the child is born during the marriage . When paternity disputes arise and direct evidence is unavailable, presumptions are employed to bridge the evidence gap. Muslim scholars, however, differ on the maximum period after a marriage dissolution during which a child can be presumed legitimate. Pakistani legislation, specifically Article 128 of the QSO, aligns with the Hanafi interpretation . Under this provision, a child born between six lunar months after marriage and two years post-dissolution is deemed legitimate. This presumption is ‘conclusive’, barring any evidence contesting it . Two notable exceptions exist: a father’s denial of paternity, and a child’s birth post the mother’s iddat period .

Given this framework, there’s limited room for DNA evidence in paternity cases. A landmark case, Muhammad Arshad v Sughran Bibi exemplifies this. A mother and son filed a maintenance recovery suit, which the purported father (petitioner) contested, denying paternity. He applied for a DNA test, but the Family Court dismissed it. The Lahore High Court, upon reviewing, emphasised the gravity of determining a child’s legitimacy and the severe implications of DNA tests. The court upheld traditional values and the sanctity of marriage, dismissing the petitioner’s plea. Similar cases like Sharafat Ali Ashraf v Additional District Judge, Bahawalpur and Khizar Hayat v Additional District Judge, Kabirwala echo this sentiment.

Interestingly, in Malik Muhammad Rafique v Tanveer Jahan , paternity wasn’t contested by the father but by the paternal uncle. The uncle’s vested interest in inheritance led him to challenge the nephew’s paternity. The High Court, however, denied the DNA test, emphasizing the frivolity of the case and the importance of protecting individual liberties. Another case, Sarwar Mai v Judge Family Court, Muzaffargarh  involved a woman and her son seeking a DNA test to prove their relationship with a deceased man, believed to be the husband and father, respectively. Despite being a case aimed at establishing, rather than refuting paternity, the Lahore High Court denied the DNA test.

India’s Supreme Court, in contrast, has been more open to DNA evidence in paternity disputes. The case Nandlal Wasudeo Badwaik v Lata Nandlal Badwaik & Anr illustrates this. The Supreme Court of India emphasised the scientific accuracy of DNA tests over traditional presumptions.

However, Pakistan’s Supreme Court, in Ghazala Tehsin Zohra v Mehr Ghulam Dastagir Khan , underscored the societal and religious principles behind Article 128 of the QSO, leaning away from DNA tests in paternity disputes. The court stressed the importance of societal cohesion and family values, suggesting that unless religious perspectives evolve, DNA evidence might remain unacknowledged in paternity disputes.

DNA Evidence and the Right to Dignity in Pakistan

Article 14 of Pakistan’s 1973 constitution safeguards the dignity of every individual. This means that no individual, regardless of their status, can be compelled against their will to provide samples for testing, as it infringes upon their personal freedom. Any act of coercion in this regard would be a direct violation of this article. This perspective aligns with the broader view that the law tends to prioritize establishing paternity over addressing questions of illegitimacy.

The Qanun-e-Shahadat, 1984, further underscores the importance of protecting societal cohesion and values. One notable provision within this law states that a child born within two years after the termination of their parents’ marriage (while the mother remains unmarried during this period) is considered legitimate. This time frame is significant, as it goes beyond the typical nine-month gestation period. Such a provision indicates that the birth of a child within this stipulated timeframe is sufficient proof of their legitimacy. Consequently, once legitimacy is established under this provision, the courts are discouraged from allowing any evidence that could challenge the child’s legitimacy.

However, this presents a predicament when a husband refuses to acknowledge a child as his own. According to Muslim Personal Law, there are provisions that allow a father to disown a child. Depending on the interpretation, a father may reject paternity immediately after the child’s birth or within a 40-day period following birth. Beyond this specified time, however, there isn’t a provision that allows for such disavowal.

In essence, while the legal framework in Pakistan seeks to balance the intricacies of DNA evidence with the fundamental right to dignity, it also aims to uphold societal values and norms. The interplay between these aspects presents both challenges and opportunities as the nation navigates the complexities of modern science within a traditional legal and cultural context.

The Supreme Court of Pakistan regards DNA evidence as a pinnacle of reliability in identifying accused individuals. However, there have been instances where negative DNA results have been dismissed, particularly when other medical examinations confirm violations. When rendering judgments, the court also weighs the individual’s dignity and the preservation of societal norms.

The precision and scientific rigour inherent in modern forensic equipment and procedures necessitate that investigative personnel receive foundational training on established protocols. Continuous training updates can help integrate the latest scientific and technological advancements into the investigative process. It’s imperative to revisit and interpret articles within the Qanun-e-Shahadat Order and the Criminal Procedure Code 1898, especially regarding the clarity of roles like the “Chemical Examiner”.

For efficient evidence collection in sexual assault cases, investigators should be equipped with Sexual Assault Evidence Collection Kits (SAECKs) and adhere to guidelines for sample collection, preservation, and transportation. The government has a role in ensuring timely provision of these kits and expediting the sample submission process to forensic laboratories, thus reducing the chances of evidence contamination.

Educating specialists in the medical and legal professions about the nuances of DNA technology is of utmost importance. There’s also a pressing need to upgrade forensic facilities, ensuring quicker test processes and eliminating procedural delays. A central authority overseeing all forensic labs could establish consistent standards, enhancing the credibility of the testing system.

Given societal pressures and the potential for public humiliation, measures must be put in place to protect the privacy and identity of victims. Delays in medical examinations can lead to inaccurate results and further victim trauma, especially when victims must navigate multiple locations for legal processes. Creating dedicated centres that provide comprehensive services under one roof can alleviate this stress.

The integrity of DNA evidence hinges on its proper collection, documentation, and storage. Its true potential in ensuring justice is only realised when every prescribed step is followed with meticulous care.

 Sexual Offences and DNA Evidence

In cases of sexual offences, the role and significance of DNA evidence in Pakistani courts diverge from that in paternity cases. Sexual offences, by their nature, often lack eyewitnesses, making forensic evidence, such as DNA, crucial for establishing the perpetrator’s identity. The gravity and sensitivity surrounding sexual offences demand an evidence-based approach, especially given the dire consequences for both the accused and the victim.

In Pakistan, rape cases often hinge on the victim’s testimony, corroborative evidence, and medical examinations. DNA evidence, however, can provide a definitive link between the accused and the crime. Despite its potential to conclusively determine the identity of the perpetrator, the admissibility of DNA evidence in Pakistani courts remains inconsistent.

The Qanun-e-Shahadat Order 1984 (‘QSO’), which governs the admissibility of evidence in Pakistani courts, does not explicitly mention DNA. Still, Article 164 of the QSO allows for evidence stemming from advancements in science and technology. This provision could be interpreted to include DNA evidence, but its application remains at the discretion of the court.

Several cases highlight the Pakistani judiciary’s varied approach to DNA evidence in sexual offences. In some instances, courts have relied heavily on DNA evidence to convict perpetrators, recognising its scientific credibility and the need for concrete evidence in such heinous crimes. However, in other cases, courts have dismissed DNA evidence, citing procedural irregularities, potential contamination, or the lack of established protocols for DNA testing in Pakistan.

Furthermore, societal norms and beliefs play a significant role in shaping the judiciary’s approach. In a society where the victim’s honour and family reputation are paramount, DNA evidence can be seen as both a tool for justice and a potential source of stigma. Courts are often caught in the crossfire between the need for justice and the societal implications of admitting such evidence. In many cases acknowledged the importance of DNA evidence but emphasised the need for established protocols and standard operating procedures for its collection, storage, and analysis.

The Pakistani judiciary’s approach to DNA evidence in sexual offences, while evolving, remains inconsistent. There is a clear need for comprehensive legislation that explicitly addresses the admissibility, collection, and analysis of DNA evidence. Such legislation would provide clarity, ensure the rights of both the accused and the victim, and uphold the principles of justice.

Court Attitudes on Admissibility of Evidence: A Dive into Recent Case Law

In recent years, the Pakistani judiciary has faced a plethora of cases revolving around the admissibility of evidence, especially in the realm of DNA testing. A closer look at recent decisions sheds light on the ever-evolving stance of the courts on this matter.

 MUHAMMAD ASLAM vs State [2023 SCMR 397]

In a case involving allegations of rape and sharing explicit content of the victim, the court highlighted several discrepancies in the prosecution’s evidence. Notably, the complainant failed to provide a precise date and time for the alleged incident, and the medical examination did not support the claims. Crucially, neither a DNA test nor a grouping test of semen was conducted. Furthermore, the video evidence presented was inconsistent with the prosecution’s timeline. Given these discrepancies and the absence of definitive evidence, the court allowed the appeal and granted the accused bail.

 Mst. ASIYA vs State [2023 SCMR 383]

Mst. ASIYA faced charges of abetting the murder of her husband. While she initially reported her husband’s disappearance, she was later implicated based on a statement recorded 15 days after the incident. The court noted that the recovered body was unidentifiable, and the DNA test results were still awaited. Given the lack of conclusive evidence and the precedence set by granting bail to the principal accused, the court followed the rule of consistency, granting Mst. ASIYA bail.

SAGHIR AHMED vs State [2023 SCMR 241]

In a case involving the alleged sodomy of a minor, the court emphasised the significance of medical evidence. While the medical report indicated potential signs of abuse, the Forensic Science Laboratory’s report remained inconclusive. Given the ambiguous nature of the evidence, the court decided in favour of the accused, granting him the benefit of the doubt and subsequently acquitting him.

 MUHAMMAD NAWAZ vs ADDITIONAL DISTRICT AND SESSIONS JUDGE [2023 PLD 461]

This case underscored the fundamental rights of individuals, specifically the right to privacy. The court held that conducting a DNA test without an individual’s consent in civil cases violates their constitutional rights. In situations where a party withholds DNA evidence, the court may draw an adverse presumption against their claims.

 ABDUL REHMAN vs State [2023 PCrLJ 655]

Despite a prompt FIR and the presence of a video of the alleged incident, the court found several discrepancies in the prosecution’s case. The DNA evidence did not support the claim, and the mobile device allegedly used to capture the video was not conclusively linked to the accused. Given these inconsistencies, the appeal was dismissed.

MUHAMMAD RAHAT FAREED vs State [2023 PCrLJ 436]

This case centred on the importance of timely and accurate medical evidence. Despite allegations of rape, the medical report did not support the prosecution’s claims, and the DNA test results were inconclusive. Given these findings, the court granted the accused bail.

BILAL AHMED vs State [2023 MLD 73]

In a case involving charges of sodomy and murder of a minor, the court highlighted the importance of consistent and conclusive evidence. The medical evidence did not support the allegations of sodomy, and the Forensic Science Agency’s report failed to conclusively link the accused to the crime. Given the lack of definitive evidence, the accused was acquitted.

 SHAHIDA PERVEEN vs PROVINCE OF PUNJAB [2023 MLD 1445]

Highlighting the importance of DNA testing in civil cases, the court held that without the defendant’s consent, DNA testing could not be conducted. In situations where evidence is withheld, the court may draw adverse presumptions against the claims.

MUHAMMAD SAFDAR vs State [2023 YLRN 82]

This case involved charges of kidnapping, sodomy, and murder of a minor. Despite these grave allegations, the medical evidence did not support the claims of sodomy. The Forensic Science Agency’s report did not provide a definitive connection between the accused and the crime, leading to the accused’s acquittal.

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2023 PCrLJN 8 LAHORE-HIGH-COURT-LAHORE

In the case of MUHAMMAD ARSHAD alias ACCHA vs. State, the accused was charged with the murder of a minor post-abduction. The key evidence against the accused was an extra-judicial confession, which is often viewed with caution by courts. The medical evidence did not conclusively establish the cause of death due to the advanced stage of purification, and there was no evidence of rape or unnatural offence. This discrepancy between the prosecution’s claim and medical evidence led to the appeal against the conviction being allowed.

2023 YLR 1558 KARACHI-HIGH-COURT-SINDH

In TARIQ MEHMOOD vs. State, the accused was charged for kidnapping and murder for extortion. The absence of eye-witnesses, discrepancies regarding the deceased’s age and identity, and lack of concrete evidence of the ransom payment were significant gaps in the prosecution’s case. These inconsistencies, combined with the absence of last seen evidence, led to the appeal being allowed.

2023 YLRN 60 KARACHI-HIGH-COURT-SINDH

In the case of WAJID vs. State, the accused was charged with committing sodomy on a minor. Despite the DNA report not being a match, the medical evidence and witness statements strongly supported the prosecution’s version. Given the gravity of the crime and the supporting evidence, the bail application was dismissed.

2023 YLRN 17 KARACHI-HIGH-COURT-SINDH

MUHAMMAD IRFAN vs. State revolved around the abduction and murder of a minor. The medical evidence only established the cause of death and that an unnatural offence occurred. The absence of DNA samples from the accused created doubt, leading to the appeal against conviction being allowed.

2022 SCMR 1447 SUPREME-COURT

In SOHAIL AKHTAR vs. State, the accused was charged with the sodomy of a minor. The medical report did not show evidence of rape, but the DNA report linked the accused to the crime. However, the report’s accuracy was questioned due to the probability ratio. Given the discrepancies and the prolonged detention of the accused, bail was granted.

2022 MLD 464 PESHAWAR-HIGH-COURT

In the case of ABDUL MATEEN vs. State, the accused was alleged to have committed sodomy. While the DNA report did not match the accused, other evidence, including the victim’s age and the act’s circumstances, led to the refusal of bail.

2022 PLD 15 PESHAWAR-HIGH-COURT

In BARKAT KHAN vs. BANARAS KHAN, the dispute was over the relationship of the parties with a deceased owner. DNA evidence played a pivotal role, but its validity was questioned due to its cryptic nature, leading to the revision being dismissed.

2022 YLR 2323 LAHORE-HIGH-COURT-LAHORE

In MUHAMMAD AKRAM vs. State, the accused was charged with rape. The absence of evidence, such as recovery of intoxicating material, and the bailable nature of the offence when with consent, led to the granting of bail.

2022 YLR 1886 LAHORE-HIGH-COURT-LAHORE

In the case of MUHAMMAD ASIF vs. State, the accused was charged with dacoity and murder. The DNA evidence, which matched the accused, was pivotal in dismissing the appeal. The hair samples, in particular, played a crucial role in the decision.

2022 PCrLJ 1396 LAHORE-HIGH-COURT-LAHORE

In IFTIKHAR ALI vs. State, the accused was charged with rape and criminal intimidation. While DNA evidence supported the prosecution’s claims, the medical evidence, including the condition of the victim’s hymen, was vital in establishing the crime, leading to the dismissal of the appeal.

In conclusion, these cases highlight the paramount importance of medical and DNA evidence in criminal proceedings. They underscore the need for thorough investigation and the meticulous gathering of evidence to ensure justice is served.

2022 PCrLJ 186 KARACHI-HIGH-COURT-SINDH:

In the case involving ABDUL MAJEED alias BOHRA vs. State, the accused was charged with the murder of a minor niece post-kidnapping and rape. Despite finding semen on the victim’s clothes, there was no DNA evidence presented to link it to any of the accused. This left a significant gap in the prosecution’s case, as they couldn’t establish who committed the rape. Additionally, the absence of witnesses and blood evidence raised doubts regarding the actual location of the crime. Given these inconsistencies, the appeal against the conviction was allowed.

2022 MLD 1168 KARACHI-HIGH-COURT-SINDH:

In the matter of KAINAT SOOMRO vs. PROVINCE OF SINDH, the applicant lamented the failure of implementing orders related to rape victims. The contention was that police stations weren’t collaborating with civil society organizations promptly upon receiving rape complaints. Furthermore, DNA evidence handling was inconsistent, and the facilities for DNA testing were inadequate. The alleged contemnors assured the implementation of Standard Operating Procedures (SOPs) to address these concerns. The application was then disposed of.

2022 YLRN 132 KARACHI-HIGH-COURT-SINDH:

MUHAMMAD HUSSAIN vs. State revolved around unnatural offences and criminal intimidation charges. The case had significant delays in FIR registration and discrepancies between ocular and medical evidence. The DNA report was negative, and the medical evidence did not match the prosecution’s claims. Given these inconsistencies, bail was granted.

2022 YLRN 121 KARACHI-HIGH-COURT-SINDH:

In the case of MUHAMMAD ASIF vs. State, the accused was charged with rape. There were significant discrepancies between the victim’s statements and the medical evidence. The lack of DNA evidence further weakened the prosecution’s case, leading to the appeal against conviction being allowed.

2022 YLRN 119 KARACHI-HIGH-COURT-SINDH:

Syed ABDUL ASIF SHAH vs. State focused on wrongful confinement and negligence regarding poisonous substances. There were significant doubts regarding the prosecution’s case,due to an unexplained delay in the FIR registration and a lack of concrete evidence. Notably, there was no DNA report of the deceased, nor a clear indication of the poison’s source. With the absence of critical evidence and significant gaps in the prosecution’s case, the High Court overturned the conviction and acquitted the accused.

2022 YLRN 117 KARACHI-HIGH-COURT-SINDH:

In the matter of ALI RAZA AZAM alias SANA vs. State, the accused was charged with rape and criminal intimidation. The complainant’s statement heavily implicated the accused. The non-availability of a DNA report did not grant the applicant the concession of bail. Given the heinous nature of the crime, the bail application was dismissed.

2022 PCrLJN 87 KARACHI-HIGH-COURT-SINDH:

The case ASAD vs. State saw the accused charged with wrongful confinement, rape, and other offences. Notably, the accused’s name wasn’t mentioned in the FIR regarding the rape charge. The DNA analysis was not conducted, and the ocular evidence did not match the DNA results. These inconsistencies created significant doubt, leading to the bail being granted.

2022 PCrLJN 47 KARACHI-HIGH-COURT-SINDH:

ADIL vs. State involved charges of murder, rape, and other heinous offences. Despite the severity of the charges, the DNA test report was pivotal in this case. The evidence surrounding the rape was not clear, and the medical report did not provide a definitive answer. The lack of DNA evidence further weakened the prosecution’s case, leading to the appeal against conviction being allowed.

2021 SCMR 799 SUPREME-COURT:

The case of ZAINAB vs. State centered on the possession of narcotics. The accused, a woman, was arrested with a young child, claiming the child to be hers. To ascertain the child’s relationship and age, the court ordered a DNA test.

2021 PLD 362 SUPREME-COURT:

In ALI HAIDER alias PAPU vs. JAMEEL HUSSAIN, the accused was charged with murder and rape. The DNA evidence played a crucial role in this case. Coupled with other circumstantial evidence, the DNA report provided a clear connection between the accused and the crimes. The evidence was compelling enough to maintain the convictions and sentences, including the death sentence, against the accused.

2021 PLD 362 SUPREME-COURT (second citation)
The case pertains to ALI HAIDER alias PAPU vs. JAMEEL HUSSAIN. The central issue revolves around the admissibility and importance of DNA evidence in cases involving grave offences such as murder, rape, unnatural offences, and sexual abuse. The court deliberated on whether the DNA evidence/report is per se admissible and emphasised the necessity of examining the expert who prepared the DNA report. The judgment highlights the significance of DNA evidence and its role as potentially the most potent corroborative piece of evidence in such cases.

2021 PLD 550 SUPREME-COURT:
The case ATIF ZAREEF vs. State deals with an allegation of gang rape. The court re-evaluated the evidence and granted the benefit of doubt due to the possibility of mistaken identification. The accused was not initially identified by the complainant in the FIR, and the subsequent identification in a supplementary statement raised questions, particularly given the negative DNA test report. However, in the same case, another angle considered the complainant’s unwavering testimony, which was thoroughly corroborated by medical evidence and other witnesses. The DNA report significantly implicated the other accused persons, leading to the upholding of their convictions.

2021 YLRN 108 QUETTA-HIGH-COURT-BALOCHISTAN:
In the case of ABDUL GHANI vs. State, the accused was charged with raping a ten-year-old girl. The court decided that when rape is established, conducting a DNA test to determine if the semen retrieved from the victim’s body is of the accused is not mandatory by law.

2021 YLR 2224 PESHAWAR-HIGH-COURT:
UMAIR SHOUKAT vs. State deals with charges of sodomy and sexual abuse. The prosecution’s reliance on the accused’s confessional statement during the investigation was under scrutiny. The court pointed out the non-compliance with S.164-B, Cr.P.C., which mandates DNA testing in such cases. Since the investigation was complete and the confession was not recorded as directed by the Supreme Court, the bail was granted.

2021 YLR 955 PESHAWAR-HIGH-COURT:
In the case of JUMARAZ vs. State, the charges were of rape, murder, and an act of terrorism. Despite the absence of a DNA report, the court held that the blood test for DNA to determine if the semen found on the victim was of the accused was not a legal requirement.

2021 MLD 493 PESHAWAR-HIGH-COURT:
The case KASHIF vs. State revolves around charges of kidnapping and rape. The court criticised the non-compliance with S.164-B, Cr.P.C., regarding DNA testing, especially when the provision mandates its applicability. The case was remitted back to the Trial Court for a fresh trial, ensuring the accused’s right to cross-examine the witnesses.

2021 MLD 2058 LAHORE-HIGH-COURT-LAHORE:
GHAFFAR alias KALI vs. State involves charges of rape and enticing or detaining a woman with criminal intent. The court expressed concerns over the lack of DNA test results, even though the victim’s Medico Legal Report mentioned sending vaginal swabs for DNA testing. The Trial Court’s decision to convict without this critical evidence and without giving the accused the right to cross-examine witnesses was overturned.

In essence, these cases underscore the evolving jurisprudence surrounding DNA evidence in Pakistan’s legal system. While DNA evidence is increasingly recognised for its value in corroborating or refuting charges, especially in heinous crimes, the courts also stress the importance of following due process and ensuring the rights of the accused. 

Based on the above  provided citations, the focus of these cases revolves around serious crimes, particularly involving rape, sodomy, and unnatural offences, as well as cases of dacoity and murder. The judicial decisions in these cases hinge on the appreciation of evidence, especially medical and DNA evidence, which plays a crucial role in confirming or refuting the allegations. Here’s an informed analysis of the key takeaways from these cases:

  • Importance of Medical Evidence: Medical evidence is paramount in cases of rape and sodomy. The condition of the victim’s hymen, signs of sexual assault, and other medical indicators are essential in establishing the occurrence of the crime. For instance, in the case involving MUHAMMAD ARSHAD alias ACCHA, the medical evidence did not support the prosecution’s claim, leading to the appeal against conviction being allowed.
  • Role of DNA Evidence: DNA evidence is a powerful tool in the criminal justice system. It can provide conclusive proof of a person’s involvement in a crime. However, its importance varies based on the context. In some cases, like that of WAJID, the DNA report was deemed not conclusive enough to override the Medico-legal report. In other instances, such as the case with IFTIKHAR ALI, the DNA evidence played a decisive role in upholding the conviction.
  • Challenges in Establishing Guilt: The prosecution faces significant challenges in proving guilt beyond a reasonable doubt. This is evident in the cases of TARIQ MEHMOOD and MUHAMMAD IRFAN where discrepancies in evidence, lack of eye-witnesses, and other inconsistencies led to the appeals against conviction being allowed.
  • Timeliness of the FIR: The promptness of filing an FIR is crucial. Delays can lead to suspicions of the veracity of the claims, as seen in the case of SOHAIL AKHTAR where the FIR was lodged two days after the occurrence.
  • In conclusion, the admissibility of evidence, particularly DNA evidence, remains a contentious issue in the Pakistani judiciary. The courts have consistently emphasised the importance of conclusive and consistent evidence, ensuring that justice is served while upholding the principles of fairness and equity. As science and technology continue to advance, it remains to be seen how the legal landscape will evolve in response

  • In conclusion, while DNA evidence holds immense potential in both paternity cases and sexual offences, its treatment in Pakistani courts varies. The existing legal framework, societal norms, and the judiciary’s discretion play pivotal roles in determining its admissibility. As science and technology continue to advance, it is imperative for the legal system to evolve in tandem, ensuring that justice is served while upholding the principles of fairness and equity.

 Recommendations 

Considering the potential benefits and challenges associated with DNA evidence in Pakistan, there is a pressing need for reforms. Firstly, the legal framework should be updated to give DNA evidence its due weight, especially in cases where it can provide conclusive results. Legislation should be introduced to set standards for the collection, preservation, and analysis of DNA samples.

Secondly, training programmes should be initiated for law enforcement agencies and legal professionals to educate them on the intricacies of DNA evidence. This would ensure that DNA evidence is handled correctly from the crime scene to the courtroom.

Lastly, while the introduction of a DNA database in Pakistan, similar to those in developed countries, might be ambitious, it could be a game-changer in solving crimes. However, such a move should be made with caution, ensuring the privacy and rights of individuals are not compromised.

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Older cases:

1- KHIZAR HAYAT vs. ADDITIONAL DISTRICT JUDGE, KABIRWALA 2010 PLD 422     LAHORE-HIGH-COURT-LAHORE

5 & Sched.—Constitution of Pakistan (1973), Art.199—Qanun-e-Shahadat (10 of 1984), Arts.117, 118, 119 & 128—Constitutional jurisdiction of High Court—Scope—Suit for recovery of maintenance allowance for minor son and dowry articles—Trial Court decreed the suit fixing maintenance at Rs.2000 per month and awarding Rs.30, 000 as alternative price of dowry articles—Defendant’s appeal was dismissed by the Appellate Court—Defendant contended that the Appellate Court did not issue direction for conducting DNA test to determine the legitimacy of the minor and that the courts below allowed plaintiff to enter and rely on documents which were not attached at the time of initiation of suit—Validity—Defendant’s admissions regarding his knowledge of the minor’s birth and entry of his name in defendant’s Shajrah Nasab by Halqa Patwari led to the conclusion that his denial of legitimacy of his son was a ploy meant to avoid maintenance—Defendant admitted having divorced the plaintiff but failed to disprove the birth of minor one year before divorce—Birth during marriage was conclusive proof of legitimacy under Art.I28 of the Qanun-e-Shahadat, 1984—Objection to admissibility of documents produced by plaintiff was not tenable as the plaintiff produced the copy of birth certificate of the minor only after defendant refused to acknowledge the minor as his son—Even otherwise, birth certificate was a public document to which presumption of truth was attached, therefore, no exception could be taken to the admissibility of the same—Direction could not be issued for conducting the DNA test as a matter of routine in cases where father refused to acknowledge his child born during lawful wedlock because under Art.128 of the Qanun-­e-Shahadat, 1984, a child born during continuance of a valid marriage or within two years of its dissolution, if mother remained unmarried during that period, was conclusive proof that he was legitimate child of that man, unless the man denied the same—Even otherwise, burden of proof under Arts.117, 118 and 119 of the Qanun-e-Shahadat, 1984 was on the defendant—Birth of the minor one year before divorce indicated that he was born during subsistence of marriage, presumption could safely be drawn that he was legitimate child of the defendant—In view of the undesirable practice of denying legitimacy of one’s own child in order to avoid maintenance or exclude the child form inheritance, issuance of direction for DNA test was not proper—Conditions were not suitable in Pakistan for application of DNA test owing to lack of skills and facilities required for DNA test —Any mistake or malpractice committed in the course of DNA test was tantamount to stigmatize the child for the rest of his life—Possibility of error in the results of DNA test could not be ruled out, therefore, attending circumstance of the case had to be taken into consideration—Point of time at which father denied paternity was a relevant factor, so considerable delay in raising the plea of illegitimacy was not permissible—Defendant denied paternity after more than eleven years of the birth of minor son and failed to produce any cogent evidence to rule out possibility of his cohabitation with the plaintiff—Concurrent findings of courts below could not be assailed in constitutional jurisdiction unless subordinate courts had exceeded jurisdiction, acted without jurisdiction or such findings were not based on any evidence—Findings of fact recorded by a court of competent jurisdiction could not be challenged through constitutional petition merely on the ground that the same evidence could be viewed differently—Courts below did not commit any illegality, material irregularity, misreading or non-reading of evidence—Constitutional petition was dismissed in circumstance.

2-MUHAMMAD SHAHID SAHIL vs. State 2010 PLD 215     FEDERAL-SHARIAT-COURT

Ss. 10/11—Qanun-e-Shahadat (10 of 1984), Art.164—Constitution of Pakistan (1973), Art.203-DD—Revisions—Complainant/respondent had alleged in the F.I.R. that accused petitioner had raped her as a result of which she had conceived and gave birth to a daughter—Trial Court while accepting the application of the complainant had directed the parties to appear before the Chemical Examiner, CAME (Centre for Applied Molecular Biology) Laboratories, for DNA test in order to ascertain by conclusive evidence whether the paternity of the child was relatable to the accused—Validity—Impugned order had no legal infirmity or jurisdictional defect and it had rather advanced the interest of justice—Law did not favour a person who had evaded execution of a judicial order and thereby obstructed the course of justice—DNA test report when produced in Trial Court could be received as evidence by summoning the expert to prove its contents—Accused in this way would have equal opportunity to cross-examine the expert, if the report would identify him as the culprit—Best possible evidence in the case in order to find out the truth or falsity of the allegation without loss of time would he the DNA test —Need for scientific verification through blood/semen grouping had been repeatedly expressed by superior judiciary, particularly in rape cases—Prosecution agencies should take heed and use latest available technology to trace and locate the actual criminal—DNA finger printing was a successful clincher—Under Art.164 of Qanun-e-Shahadat, 1984, Court might allow to be produced any evidence available because of modern devices or techniques—Holy Qur’an and Sunnah did not forbid employing scientific or analytical methods in discovering the truth—On the contrary the discovery and investigation had been strongly recommended by the Holy Qur’an and Sunnah—Courts in matters relating to Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had all the powers to permit reception of evidence including resort to DNA test , if demanded by the occasion–Fundamental duty of the courts is to arrive at the truth without depriving an affected party to establish its point of view—Revision petitions were dismissed accordingly and the impugned order was directed to be executed immediately—Accused and the complainant along with her minor daughter were directed to appear before CAMB Laboratories on a specified date and time in compliance with the order of Trial Court—Trial Court was directed to proceed further in accordance with law after considering the report of CAMB Laboratories.

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3- ZAFAR IQBAL vs. ZAREENA BIBI 2010 PCrLJ 604     FEDERAL-SHARIAT-COURT

 11—Qazf liable to Tazir—Appreciation of evidence—Sentence, reduction in—Trial Court had disbelieved the allegation made by the divorced wife of the accused against him regarding oral accusation of Zina against her inside and outside the Court—Accused had withdrawn his application moved before the Family Court for DNA test to determine the paternity of the minor daughter in custody of his ex-wife (complainant) and continued to pay maintenance allowance to the minor, which had been accepted by the complainant—Matter, thus, had ended there and then—Conduct of accused thereafter for the last five years was never challenged—Reassurance of accused that he would continue supporting his minor daughter had further recommended his case—Accused had tendered apology for his past behaviour in the open Court as well—Ayaats 4 and 5 of Sura Nur of the Holy Qur’an deal with false accusation of adultery and the punishment thereof and make things easy for those who repent—Sentence of two years’ R.I. of accused was reduced to the imprisonment already undergone by him in circumstances.

4- MUHAMMAD ARSHAD vs. SUGHRAN BIBI 2008 PLD 302     LAHORE-HIGH-COURT-LAHORE

5 & Sched.—Constitution of Pakistan (1973), Art.199—Constitutional petition—Legitimacy of child—Presumption—Liyan, proceedings of—DNA test —Suit for recovery of maintenance was filed by mother and her minor son but petitioner (father) disowned minor as his son—Application was filed by petitioner in Family Court for DNA test of the child, which application was dismissed—Validity—Legitimacy of child entailed far reaching impact, therefore, determination of such crucial and vital issue should not be taken in cavalier manner—Accusation by petitioner or his act of disowning child born in wedlock were to be substantiated through tangible proof and credible evidence—paternity of child born out of lawful wedlock invariably carried presumption of truth in his favour—Mere simple denial could never take away the status of legitimacy as “child follows the bed”—Every presumption was made in favour of legitimacy of the child and it was presumed to be an issue of his parent without acknowledgement or affirmation of parentage on the part of father—No evidence was available on record to substantiate the frivolous and scandalous version of petitioner with reference to accusation that child was illegitimate—Petitioner did not have recourse to the Court of competent jurisdiction for Liyan—Minor having born out the wedlock between the parties would inevitably be deemed to be a legitimate child and was lawfully entitled to be supported and maintained by petitioner (father).-Constitutional petition was dismissed in limine.

5-MUHAMMAD SHAHID SAHIL V. State PLD 2010 FSC 215

Ss. 10/11—Qanun-e-Shahadat (10 of 1984), Art.164—Constitution of Pakistan (1973), Art.203-DD—Revisions—Complainant/respondent had alleged in the F.I.R. that accused petitioner had raped her as a result of which she had conceived and gave birth to a daughter—Trial Court while accepting the application of the complainant had directed the parties to appear before the Chemical Examiner, CAME (Centre for Applied Molecular Biology) Laboratories, for DNA test in order to ascertain by conclusive evidence whether the paternity of the child was relatable to the accused—Validity—Impugned order had no legal infirmity or jurisdictional defect and it had rather advanced the interest of justice—Law did not favour a person who had evaded execution of a judicial order and thereby obstructed the course of justice—DNA test report when produced in Trial Court could be received as evidence by summoning the expert to prove its contents—Accused in this way would have equal opportunity to cross-examine the expert, if the report would identify him as the culprit—Best possible evidence in the case in order to find out the truth or falsity of the allegation without loss of time would he the DNA test—Need for scientific verification through blood/semen grouping had been repeatedly expressed by superior judiciary, particularly in rape cases—Prosecution agencies should take heed and use latest available technology to trace and locate the actual criminal—DNA finger printing was a successful clincher—Under Art.164 of Qanun-e-Shahadat, 1984, Court might allow to be produced any evidence available because of modern devices or techniques—Holy Qur’an and Sunnah did not forbid employing scientific or analytical methods in discovering the truth—On the contrary the discovery and investigation had been strongly recommended by the Holy Qur’an and Sunnah—Courts in matters relating to Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had all the powers to permit reception of evidence including resort to DNA test, if demanded by the occasion–Fundamental duty of the courts is to arrive at the truth without depriving an affected party to establish its point of view—Revision petitions were dismissed accordingly and the impugned order was directed to be executed immediately—Accused and the complainant along with her minor daughter were directed to appear before CAMB Laboratories on a specified date and time in compliance with the order of Trial Court—Trial Court was directed to proceed further in accordance with law after considering the report of CAMB Laboratories.

An Important Decision of the Supreme Court of Pakistan is reproduced as follows: PLJ 2013 SC 107
[Original Jurisdiction]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja & Khilji Arif Hussain, JJ.

SALMAN AKRAM RAJA and another–Petitioners

versus

GOVERNMENT OF PUNJAB through Chief Secretary, Civil Secretariat, Lahore and others–Respondents

Constitutional Petition No. 38 of 2012, decided on 2.10.2012.

(Petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973)

Administration of DNA Test–

—-Truthfulness of allegation of crime–Determination–DNA was not so reliable–DNA technology had significantly advanced and introduction of DNA profiling revolutionized forensic science–Validity–Now DNA test provides Courts a mean of identifying perpetrators with a high degree of confidence–By using DNA technology Courts were in a better position to reach at a conclusion whereby convicting real culprits and excluding potential suspects as well as exonerating wrongfully involved accused.      [P. 112] A

DNA Test–

—-Courts consider DNA test results while awarding conviction, however, same cannot be considered as conclusive proof and require corroboration from other pieces of evidence.         [P. 112] B

Medical Test–

—-It is well settled that consent of victim is necessary and she cannot be subjected to DNA or other medical test forcibly for prosecution purposes because that would amount to infringement of personal liberty of such persons.  [P. 114] C

AIR 1963 Cuj. 250, AIR 1951 Mad. 910, AIR 1993 SC 2295; 2001 Cr.LJ 2028 & AIR 2005 Cuj. 157, ref.

Blood Test–

—-DNA Test–Interfering with personal liberty–Adverse inference–Court has power to order for DNA or any blood test in order to ascertain truthfulness of allegation leveled by victim but such order must be with consent of victim–Benefit cannot be extended to accused.           [P. 114] D

DNA Test–

—-DNA samples should be preserved for make use of it at appropriate stage whenever is required–Legislature is free to regularize procedure by making appropriate legislation in such behalf.       [P. 115] E

Criminal Procedure Code, 1898 (V of 1898)–

—-S. 164–Statement of victim–Rape–State of victim should be recorded u/S. 164, Cr.P.C. preferably by a female Magistrate–Victim of rape were reluctant to appear before male magistrate as they cannot express their agony appropriately before them, therefore, it would be more appropriate if statements of victims were recorded before female magistrate, wherever available.            [Pp. 115 & 116] F & G

Criminal Procedure Code, 1898 (V of 1898)–

—-S. 273–Psychological distress and trauma–Trials for rape cases conducted in camera by female judges–Such measures were essential to allow victim to make her statements free from further psychological distress and trauma–Where accused were hardened criminals, sometimes Courts allow recording of statements in camera and in some of cases trial were conducted inside jails–In gang rape cases, where there was threat to life of victims and her family members such practice can be adopted.           [P. 116] H & I

Criminal Procedure Code, 1898 (V of 1898)–

—-S. 345–Procedure for compounding of offence–Out of Court settlement–Offence of rape–Non compoundable–Not permissible–Out of Court settlement reached between victim and accused might be declared invalid and nullity in eyes of laws on ground that same was result of coercion and even victim did not receive a single penny as compensation from accused–S. 345, Cr.P.C. provides procedure for compounding of offence and no offence can be compounded except as provided–Offence of rape u/S. 376, PPC was non-compoundable, therefore, compounding of such offence was not possible–Due to out of Court settlement complainant party does not come forward to pursue the matter or produce evidence, which results in acquittal of accused–Cases like rape were against whole society and cases were registered in name of state, therefore, in cases where accused succeed’s in out-of Court settlement, state should come forward to pursue the case and Courts should also take into consideration all these aspects while extending benefit to accused.       [P. 117] J

Pakistan Penal Code, 1860 (XLV of 1860)–

—-Ss. 375 & 376–Gang-rape–Thirteen years old girl was subjected to gang rape–No FIR was registered–Attitude of investigating agencies added to plight of victim girl–Incident was highlighted by Media–Suo moto action–Out of Court settlement constitutes mockery of justice and abuse of law–Violates fundamental rights of victim because such offence of rape were not against single person but affect whole society–Administration of DNA test–Petitioner had prayed that following points might be approved and be directed to enforce them through course of investigation and prosecution of all rape matter in Pakistan a every Police Station that receive rape complaints should involve reputable civil society organization for the purpose of legal aid and counseling–On receipt of information regarding commission of rape, I.O should inform such organization at the earliest (i) administration of DNA test and preservation of DNA evidence should be made manadatory in rape cases, (ii) as soon as victim is composed, her statement should be recorded u/S. 164 Cr.P.c., preferably by female magistrate, (iii) trials for rape would be conducted in camera and after regular Court hours, (iv) during rape trial screens or other arrangements would be made so that victims and vulnerable witnesses do not have to face accused persons (v) evidence of rape victims would be recorded in appropriate cases, through video conferencing so that victims particularly juvenile victims do not need to be present in Court–Petition was disposed of.            [Pp. 120 & 121] K

Mr. Salman Akram Raja, ASC and Ms. Tahira Abdullah, in person Assisted by M/s. Malik Ghulam Sabir, Amna Hussain, Zainab Qureshi and Nadeem Shahzad Hashmi, Advocates for Petitioners.

Mr. Jawwad Hassan, Addl. A.G., Punjab, Mr. Sadaqat Ali Khan, P.G. Punjab and Mr. Muhammad Hanif, SP, Rawalpindi for Respondents.

Date of hearing: 2.10.2012

Judgment

Iftikhar Muhammad Chaudhry, CJ.–A 13 years old girl Ayesha alias Aashi resident of Ratta Amral, Rawalpindi was subjected to gang-rape in March, 2012. Her father Muhammad Aslam approached the concerned Police Station on 21.03.2012 for registration of FIR. No formal FIR was registered, however, upon entry of the complaint in the Roznamcha, Sub-Inspector Zafar Iqbal took the rape victim to District Headquarters Hospital, Dheenda Road, Rawalpindi for medical examination on 21.3.2012. The concerned medical officer gave his findings/opinion after eight days of examination. Despite confirmation of commission of the offence, the FIR could not be registered. The attitude of the investigating agencies, added to the plight of victim girl; she attempted to end her life by committing suicide on 16.04.2012. This incident was highlighted by the media, as such, it came into the notice of this Court, thus the suo moto action was initiated and the matter was registered as HRC No. 13728-P/2012. The Prosecutor General, Punjab was directed to pursue the case against the accused persons as well as the concerned police officers/officials who delayed the registration of FIR. In pursuance whereof, on 18.4.2012 an FIR No. 178 of 2012 under Sections 375 & 376 of the Pakistan Penal Code, 1860 was registered at Police Station, Ratta Amral. On the direction of this Court, a 4-Member police investigation team headed by Additional IGP, Punjab was constituted, which submitted report before the Court, holding responsible therein DSP Taimur Khan, Sub-Inspectors Jawwad Shah and Zafar Iqbal for tempering the Roznamach and causing inordinate delay in the registration of FIR. Departmental proceedings were initiated against all the responsible police officers/officials, but on 22.05.2012 when the case was fixed before the Sessions Judge, Rawalpindi, the complainant Muhammad Aslam informed the Court that he had reached an out-of-Court settlement for a consideration of Rs. 1 million with the accused persons and would drop the charge of gang-rape against them.

  1. In the above background, the petitioners, apprehending the acquittal of the accused u/S. 265-K of the Criminal Procedure Code, 1898 approached this Court by means of instant Constitutional Petition. According to them, in such like cases, the out-of-Court settlement constitutes a mockery of justice and abuse of law (Cr.P.C.) as such violates the fundamental rights of the victim because such offences i.e. rape etc. are not against a single person but affect the whole society. They made the following prayers:–

(i)         That the out-of-Court settlement reached between this Complainant and the accused persons be declared as invalid and a nullity in the eyes of law and any order, including acquittal, passed by the trial Court be set aside.

(ii)        That the criminal liability of an accused person for a non-compoundable offence such as rape be declared to be wholly unaffected by any out-of-Court settlement.

(iii)       That the Province of Punjab and the Prosecutor-general Punjab be directed to proceed with the prosecution of the accused persons for the gang-rape of the victim committed that complainants and witnesses can safely depose the truth without fear of intimidation and threats.

(iv)       That the Inspector-General Punjab be directed that the accused police officers liable for misconduct and causing delay in the registration of the F.I.R. be duly punished according to the law.

(v)        That the Inspector-General Punjab be directed to enforce stringent checks and policies within the Police Department to ensure that superior police officers are more vigilant in preventing delays which result in such grave miscarriages of justice.

(vi)       The State and the Provinces be directed to ensure DNA testing in every rape case.

(vii)      Make such other directions as are necessary to protect victims, complainants and witnesses so as to enable proper and due prosecution of rape cases.

  1. The matter was taken up on 31.05.2012 and the notices were issued to respondents as well as to Prosecutor General and PPO, Punjab to appear and explain the circumstances, under which the acquittal in the said case was recorded by the trial Court and as to whether they had filed appeal or not? On the next date of hearing Mst. Tahira Abdullah submitted report stating therein that the aggrieved family did not receive any compensation for the Razinaamas (compromise) through which they forgave the nominated accused and the said compromise was a result of violent intimidation and threat to their lives. Mr. Salman Akram Raja, ASC stated that due to interjection by Jirga, the prosecution witnesses had not supported the prosecution case and were compelled to make compromising statement before the Court which culminated into acquittal of the accused.
  2. Mr. Salman Akram Raja, learned ASC/Petitioner has submitted that the administration of DNA tests should be made mandatory in rape cases because the Courts have accepted the DNA test results as an admissible form of evidence in terms of the Qanoon-e-Shahadat Order, 1984 as well as the Holy Quran and Sunnah. He has placed reliance upon the case of Muhammad Shahid Sahil v. The State (PLD 2010 FSC 215), wherein the DNA tests have been deemed admissible to determine paternity of the child of a rape victim by the Federal Shariat Court. The Court has further held that the Quran and Sunnah nowhere forbid the use of DNA tests rather strongly recommend recourse to such scientific methods; the DNA tests are the best possible evidence in rape cases and therefore should be adopted by prosecution agencies. He has also placed reliance on the case of Amanullah v. The State (PLD 2009 SC 542) wherein it has been held that while relying upon the DNA test results in cases where confidence cannot be placed on the capacity, the competence and the veracity of the Laboratory and the integrity of one conducting such a test, caution should be taken, whereas, it does not prevent making the administration of DNA tests mandatory in rape cases. In fact, the judgment prevented the accused from placing reliance on DNA test results exonerating his guilt even though all other circumstantial evidence indicated the contrary. He has further submitted that making the administration of DNA tests mandatory in rape cases will not violate Article 13 of the Constitution which provides protection against self incrimination. He has placed reliance on the case of Vidhya v. Deputy Superintendent of Police (Crl. O. P. No. 36969 of 2007) wherein the Court held that compelling an accused in a rape case does not amount to testimonial compulsion. The petitioner has also submitted that directives for making DNA tests mandatory have been issued by the Faisalabad police in cases of sexual assault and therefore can similarly be extended to rape cases in all jurisdictions.
  3. In this regard it is to be noted that the administration of DNA test in order to determine the truthfulness of the allegation of crime is not new. Initially the DNA was not so reliable, therefore, the Courts often excluded it from the evidence and not based the conviction on it. However, in the last decade or so the DNA technology has significantly advanced and introduction of DNA profiling has revolutionized forensic science. Now DNA test provides the Courts a mean of identifying perpetrators with a high degree of confidence. By using the DNA technology the Courts are in a better position to reach at a conclusion whereby convicting the real culprits and excluding potential suspects as well as exonerating wrongfully involved accused. Reference may be made to the case of United State v. Yee (134 F.R.D. 161), wherein conviction was recorded on the basis of DNA test results.

In Pakistan the Courts also consider the DNA test results while awarding conviction, however, the same cannot be considered as conclusive proof and require corroboration/support from other pieces of evidence. In the case of Muhammad Azhar v. The State (PLD 2005 Lahore 589) the Court has accepted the admissibility of DNA test results in the following words:

“18. The DNA test may be an important piece of evidence for a husband to establish an allegation of Zina against his wife and use this as a support justifying the taking of the oath as ordained by Surah Al-Noor, which leads to the consequences of breaking the marriage. The DNA test may further help in establishing the legitimacy of a child for several other purposes. Therefore, its utility and evidentiary value is acceptable but not in a case falling under the penal provisions of Zina punishable under the Hadood Laws having its own standard of proof.”

In Muhammad Shahid Sahil’s case (supra) the Federal Shariat Court has laid great emphasis on the administration of DNA test in rape cases. The Court has also overruled the finding of the High Court in Muhammad Azhar’ case to the effect that DNA test has no evidentiary value in a case falling under the penal provisions of Zina punishable under the Hudood Laws having its own standard of proof. Relevant Paras from the said case are reproduced hereinbelow:–

  1. In criminal cases the identity of the actual accused is an element of primary importance. A lot of pre-meditation, improvements and tactical delays on the part of complainant party can be checked if scientific analysis is resorted to. Apart from saving time and ensuring quick disposal of cases particularly of sexual assault, such an exercise can act as a deterrent in future. Many genuine complaints remain unresolved due to stereotype method of investigation. From the point of view of a new born it is his right to be born with known paternity. The law, be it enacted or judge made, must come to the rescue of the aggrieved.
  2. Article 164 of Qanun-e-Shahadat Order, 1984 has resolved the problem by enacting that in such cases that the Court may consider it appropriate it may allow to beproduced any evidence that may become available because of modern devices or techniques.
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Reference may also be made to the cases of Khizar Hayat v. Additional District Judge, Kabirwala (PLD 2010 Lahore 422), Khurram Shahzad v. State (PLD 2012 FSC 1), The matter of: Estate and Assets of Late Abdul Ghani (2012 YLR 1752), The State v. Abdul Khaliq (PLD 2011 SC 554). In the case of Khadim Hussain v. State (2011 PCrLJ 1443) the Federal Shariat Court has held that despite the fact that DNA report about the swabs did not match with the profile of accused, the observations of lady doctors, were enough evidence of the fact that victim had been subjected to sexual intercourse; opinion of the Lady Doctor lent corroboration to the statement of the victim that accused had subjected her to Zina; non-receipt of matching report of DNA test, did not negate the ocular account of prosecution witness. In Abdul Khaliq’s case (supra), the Court has emphasized upon the administration of DNA test especially in gang rape cases. However, it is consistently held by the superior Courts that the request for administration of DNA test should be made at the earlier stage of the case. Reference may also be made from Indian jurisdiction to the cases of P. Rajeswari v. State of Tamil Nadu [(1996) CCR 774] = (1996 Crl. LJ. 3795), Geeta Saha Vs. NCT of Delhi [1999(1) JCC 101], Km. Mahima v. State [106 (2003) DLT 143], Thogorani aliasi K. Damayanti v. State of Orissa. (2004 Cr. LJ 4003) Solaimuthu v. Stale rep. by Inspector of Police (2005 Cr. LJ 31) and Raghuvir Dessai v. State (2007 Cr. U 829).

  1. It is well settled that the consent of victim is necessary and she/he cannot be subjected to DNA or other medical test forcibly for prosecution purposes because that would amount to infringement of personal liberty of such persons. Reference may be made to the cases of Bipinchandra Shantilal Bhatt vs Madhuriben Bhatt (AIR 1963 Guj 250), Polavarapu Venkataswarlu v. Polavarapu Subbayya (AIR 1951 Mad 910), Sabayya Gounder v. Bhoopala Subramanian (AIR 1959 Mad 396), Venkateswarulu v. Subbayya (AIR 1951 Mad 910), Goutam Kundu v. State of West Bengal (AIR 1993 SC 2295), Ms. X v. Mr. Z And Anr. [96 (2002) DLT 354], Syed Mohd. Ghouse v. Noorunnisa Begum (2001 CR.L.J. 2028) and Haribhai Chanabhai Vora v. Keshubhai Haribhai Vora (AIR 2005 Guj 157). In Syed Mohd. Ghouse’s case (supra), the Andhra Pradesh High Court relying upon the case of Gautam Kandu (supra), quashed and set aside the order for conduction DNA test by observing that before ordering the blood test, either for DNA or other test, the Court has to consider the facts and circumstances of the given case and the ramifications of such an order. But the Court cannot compel a person to give the sample of blood. In Haribhai Chanabhai Vora’s case (supra) the Gujarat High Court has held that when the petitioner (therein) had not given consent, he could not be compelled to submit himself for DNA test as it would be interfering with the personal liberty, and at the most, adverse inference can be drawn at the final conclusion. Thus, it is held that the Court has power to order for DNA or any blood test in order to ascertain the truthfulness of the allegation leveled by the victim but such order must be with the consent of victim. However, this benefit cannot be extended to the accused. Reference in this behalf may be made to Solaimuthu’s case (ibid), wherein the Madras High Court held that DNA test did not offend Article 20(3) of the Indian Constitution.
  2. The petitioner has further submitted that the preservation of DNA samples should be made mandatory in rape cases because the same is essential to allow the administration of DNA tests after a considerable amount of time has passed since the commission of rape. He has placed reliance on the case of Regina v. Robert Graham Hodeson [(2009) EWCA Crim 490] wherein the Court quashed a conviction for rape and murder after 27 years due to a DNA test conducted post-conviction that proved the innocence of the accused. The petitioner has further submitted that failure to preserve potentially exculpatory evidence can amount to a violation of due process if the accused can show that the evidence was suppressed or destroyed by the prosecution; the evidence possessed an exculpatory value that was apparent before it was destroyed; and the victim was unable to obtain comparable evidence by other reasonably available means. Reliance in this behalf has been placed on the case of People v. Pressley, 804 (Colo. APP. 1990): 2010 Maryland Code, Criminal Procedure Sec 8 – 201; DNA Testing Availability Act Sec 2292, 106th Congress (1999 -2000) and American Bar Association Criminal Justice Standards on DNA evidence 2006. According to the petitioner, these provisions and standards stipulate mandatory collection and preservation of DNA samples and also provide ramifications for failures to do the same.
  3. We are in agreement with the learned counsel to the extent that DNA samples etc. should be preserved for make use of it at the appropriate stage whenever is required. However, the legislature is free to regularize the procedure by making appropriate legislation in this behalf.
  4. Petitioner, Mr. Salman Akram Raja, ASC has submitted that NGOs which provide counseling and other forms of support to rape victims, must be registered in Police Stations so that on receipt of information regarding the commission of rape, the Investigating Officer/Station House Officer should inform such NGOs at the earliest. He placed reliance upon the case of Delhi Commission of Women v. Delhi Police (W.P No. 696/2008), wherein the Delhi High Court classified certain NGOs providing counseling services for rape victims as “Crisis intervention centers”. He also placed reliance on a Delhi Police Standing Order 303/2009 in which the Police implemented the aforementioned judgment by directing the IOs/SHOs to contact these NGOs at the earliest when they receive information about the commission of a rape. It is to be noted that in Pakistan the NGOs play their important role to help the victims of rape, especially girls belonging to poor families. However, sometimes, the family of victim cannot approach such NGOs. Therefore, the suggestions of Mr. Salman Akram Raja, carry weight.
  5. The petitioner has also submitted that as soon as a victim of rape approaches, her statement should be recorded under Section 164 of the Code of Criminal Procedure, 1898 preferably by a female Magistrate. He has placed reliance on the case of Delhi Commission for Women v. Delhi Police [W.P.(CRL) 696/2008] wherein Delhi High Court has issued directions that the Magistrate, unless there are compelling reasons, shall record the statement of the victim under Section 164 on the day the application is moved by the Investigating Officer.

It is to be noted that the victims of rape are reluctant to appear before male Magistrate as they cannot express their agony appropriately before them, therefore, it would be more appropriate if the statements of victims are recorded before female Magistrate, wherever available.

  1. The petitioner has also submitted that the trials for rape cases should be conducted in camera, by female judges, where possible, and after regular Court hours. According to him, these measures are essential to allow the victim to make her statements free from further psychological distress and trauma. He referred to the proviso to Section 327(2) of the Indian Code of Criminal Procedure which provides that in-camera trials under the sub-section “should be conducted as far as practicable by a woman judge or magistrate”. Reliance is also placed on the case of State of Punjab v. Gurmit Singh (AIR 1996 SC 1393) wherein it has been held that wherever possible it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females should be tried by lady Judges, wherever available, so that prosecutrix can make her statement with greater ease and that trial of rape cases in camera should be the rule and an open trial in such cases an exception.
  2. The petitioner has further submitted that during a rape trial, a screen or some other arrangement should be made so that the victims and vulnerable witnesses do not have to face the accused. He has placed reliance upon the case of Sakshi v. Union of India (AIR 2004 SC 3566) = [(2004)5 SCC 518] wherein the Court directed that in holding trials of child sex abuse or rape, a screen or some other arrangement may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused. The petitioner has also submitted that the questions put in cross-examination on behalf of the accused should be given in writing to the Presiding Officer of the Court who should put them to the victim or witnesses in a language which is clear and not degrading. Reference in this behalf has also been made to Sakshi’s case (supra). It is further contended by the petitioner that evidence of rape victims should be recorded through video conferencing so that the victims do not need to be present in Court. He has placed reliance upon the case of State of Maharashtra v. Dr. Praful B. Desai [(2003)4 SCC 601] wherein the Court has held that recording of evidence by video conferencing also satisfies the object of Section 273, Cr.P.C. that evidence is to be recorded in the presence of the accused.

It is to be noted that in the cases where accused are hardened criminals, sometimes the Courts allow the recording of statements in Camera and in some of the cases the trial are conducted inside Jails. Therefore, in the gang rape cases, where there is threat to the life of the victims and her family members, such practice can be adopted.

  1. The petitioner has also prayed that in the instant case the out-of-Court settlement reached between the victim and the accused persons may be declared invalid and nullity in the eyes of laws on the ground that the same was the result of coercion and even the victim did not receive a single penny as compensation from the accused.

In this regard it is to be noted that Section 345 Cr.P.C. provides procedure for compounding of offence and no offence can be compounded except as provided in the said provision. The offence of rape under Section 376, PPC is non-compoundable, therefore, compounding of such offence is not permissible. Even otherwise sometimes due to out-of-Court settlement, the complainant party does not come forward to pursue the matter or produce evidence, which results in the acquittal of the accused. The cases like rape, etc., are against the whole society and the cases are registered in the name of the State, therefore, in the cases where the accused succeed(s) in out-of-Court settlement, the State should come forward to pursue the case and the Courts should also take into consideration all these aspects while extending benefit to the accused.

  1. At this juncture, it would be appropriate to consider in detail Delhi Commission of Women’s case (supra), referred to by the petitioner. In the said case, the Delhi High Court has issued the guidelines to police, hospitals/doctors, Child Welfare Committees, Sessions Courts, Magistrate Courts, Prosecutors and other concerned authorities, which include the following:–

(I)        POLICE

  1. Every Police Station shall have available round the clock a lady police official/officer not below the rank of Head Constable.
  2. As soon as a complaint of the offence is received, the duty officer receiving the complaint/information shall call the lady police official/officer present at the Police Station and make the victim and her family comfortable.
  3. The duty officer, immediately, upon receipt of the complaint/information intimate to the “A rape Crises Cell” on its notified helpline number.
  4. After making preliminary inquiry/investigation, the Investigation Officer along with the lady police official/ officer available, escort the victim for medical examination.
  5. The Assistant Commissioner or Police shall personally supervise all investigation in to the office.
  6. The statement of victim shall be recorded in private, however, the presence of family members while recording statement may be permitted with a view to make the victim comfortable. In incest cases where there is a suspicion of complicity of the family members in the crime such family members should not permitted.
  7. The Investigation Officer shall bring the cases relating to “child in need of care and protection” and the child victim involving in incest cases to the Child Welfare Committee.
  8. The accused should not be brought in the presence of victim except for identification.
  9. Except the offences which are reported during the night no victim of sexual offence shall be called or made to stay in the Police Station during night hours. The Social Welfare Department of the Govt. of NCT of Delhi shall ensure that Superintendents of the Foster Home for Women will provide necessary shelter till formal orders secured from the concerned authorities.
  10. The Investigation Officer shall ensure that in no case the accused gets the undue advantage of bail by default as per the provisions of Section 167, Cr.P.C. it is desirable that in cases of incest the report under Section 173, Cr.P.C. is within 30 days.
  11. Periodically Training to deal with rape cases should be provided to the Police officers, Juvenile Police Officers, Welfare Officers, Probationary Officers and Support Persons. A Training Module be prepared in consultation with the Delhi Judicial academy.
  12. The police should provides information to the Rape Crises cell regarding the case including the arrest and bail application of the accused, the date of filling of the investigation report before the magistrate.
  13. The police should keep the permanent address of the victim in their file in addition to the present address. They should advise the victim to inform them about the change of address in future.
  14. Subject to the outcome of the W.P. (C) 2596/2007 titled Rajeev Mohan Vs. State, pending before this Hon’ble Court in cases where the victim informs the police about any threats received by the accused family, the concerned DCP should consider the matter and fresh FIR must be registered under Section 506 of the Indian Penal Code;

(II)       DOCTORS/HOSPITALS/HEALTH DEPARTMENT

(a)        Special rooms to be set up in all Government hospitals for victims to be examined and questioned in privacy.

(b)        A sexual assault evidence collection kit or sexual assault forensic evidence (SAFE) kit consisting of a set of items used by medical personnel for gathering and preserving physical evidence following a sexual assault should be available with all the Govt. Hospitals. …..

(c)        A detailed description of “Assault/Abuse History” be mentioned by the attending doctor on the MLC of the victim. The doctor must ensure that the complete narration of the history of the case detained by the victim and her escort is recorded.

(d)        After the examination is complete the victim should be permitted to wash up using toiletries provided by the hospitals. The hospitals should also have clothing to put on if her own clothing is taken as evidence.

(e)        All hospitals should co-operate with the police and preserve the samples likely to putrefy in their pathological facility till such time the police are able to complete their paper work for despatch to forensic lab test including DNA .

(V)       COURTS

(a)        The Magistrate unless there are compelling reasons shall record the statement of the victim under Section 164, Cr.P.C. on the day on which the application is moved by the Investigation Officer. The Magistrate before proceeding to record the statement shall ensure that the child is made comfortable and she is free any extraneous pressure.

(b)        An endeavour shall be made to commit such cases of offence to the Court of Sessions expeditiously and preferably within 15 days.

(c)        The Hon’ble Supreme Court in Delhi Domestic Working Women Forum Vs. Union of India, 1995 (1) SCC 14 and reiterated by this Hon’ble Court in Khem Chand Vs. State of Delhi 2008 (4) JCC 2 497 had directed that the victim be provided with a counsel. The existing practice of the victims being represented by a counsel from the Rape Crisis Cell may continue. In cases where the victim has a private lawyer, she may be allowed to retain the private lawyer.

(d)        That as far as possible chief examination and cross-examination of the victim must be conducted on the same day.

(e)        The Additional Session Judge/District Judge shall maintain a panel of psychiatrists, psychologists and experts in sign language etc. who would assist in recording the statement of witnesses as and when requested by the Session Courts.

(f)        If it is brought to the notice of the Court from a support person/Rape Crises Cell Advocate/Victim, regarding threats received by the victim or her family members to compromise the matter, the judge shall immediately direct the ACP to look into the matter and provide an action taken report before the Court within 2 days. The Court must ensure that protection is provided to the victim and her family.

(g)        In cases in which the witness is sent back unexamined and is bound down, the Court shall ensure that at least the travelling expenses for coming to and from for attending the Court are paid.

  1. In view of the above propsals, the petitioner has prayed that following points may be approved and the concerned public authorities be directed to enforce them through the course of investigation and prosecution of all rape matters in Pakistan:–

(a)        Every Police Station that receives rape complaints should involve reputable civil society organizations for the purpose of legal aid and counseling. A list of such organizations may be provided by bodies such as the National Commission on the Status of Women. Each Police Station to maintain a register of such organization. On receipt of information regarding the commission of rape, the Investigating Officer(IO)/Station House Officer (SHO) should inform such organizations at the earliest.

(a)        Administration of DNA tests and preservation of DNA evidence should be made mandatory in rape cases.

(b)        As soon as the victim is composed, her statement should be recorded under Section 164, Code of Criminal Procedure, 1898, preferably by a female magistrate.

(c)        Trials for rape should be conducted in camera and after regular Court hours.

(d)        During a rape trial, screens or other arrangements should be made so that the victims and vulnerable witnesses do not have to face the accused persons.

(e)        Evidence of rape victims should be recorded, in appropriate cases, through video conferencing so that the victims, particularly juvenile victims, do not need to be present in Court.

When we inquired from the learned Advocate General and Prosecutor General, Punjab etc. that as to whether they had any objection, if the petition is disposed of in the light of the above said recommendations/prayers, they stated that they have no objection because such suggestions are already under consideration of the concerned authorities and legislation is likely to be made in this regard. Thus, the petition is disposed of in the above terms.

(R.A.)  Petition disposed of.

By The Josh and Mak Team

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