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Saturday Jan 27 2018

Why the DNA report is not enough to prosecute Imran in Zainab’s case

The abduction, rape and murder of seven-year-old Zainab has raised some serious questions about the admissibility of Deoxyribonucleic Acid (DNA) in a Pakistani courtroom. Especially since in the child’s case, the strongest piece of evidence is the DNA collected from both the victim and the accused, which matches. But is that enough to prosecute Imran, the suspect?

Now, sections 164(A) and 164(B) inserted into the Criminal Procedure Code in 2016, enable the authorities to obtain and use DNA evidence in rape cases. Furthermore, section 27-B of the Anti-Terrorism Act permits admissibility of electronic and forensic evidence.

There are two categories of cases in Pakistan, where parties rely on DNA evidence. One, concerning the legitimacy of paternity disputes. The second, in criminal offences, mainly sexual offences.

As far as the first category is concerned, courts in Pakistan are a bit reluctant to decide questions of legitimacy or paternity based on DNA evidence, due to the existing provisions in Qanoon-e- Shahadat. Article 128 of the law entails that birth during a marriage is conclusive enough proof of legitimacy.

In sexual assault incidents, DNA evidence is admissible but as a corroborative piece of evidence. In other words, it has the same value as that of an expert opinion, therefore, it can only be used as secondary evidence, not primary. Section 510 of the Criminal Procedure Code allows for the report of a chemical examiner, Serologist, to be used as evidence without actually calling him in court. The section does not envisage DNA which is why if a DNA report is to be admitted in court than the compiler of the report will also need to make an appearance. This is where authors of DNA reports become reluctant. Appearing in court could lead to cross-examination, which could lead to the entire report being rendered dubious.

Now let’s examine some past precedents. The law relating to obtaining blood samples and conducting DNA tests has come up for consideration in various cases. The Supreme Court of Pakistan in the case of Salman Akram Raja and another v. Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and others (2013 SCMR 203) held that the Court has the power to order for a DNA test or any blood test to be taken, in order to determine the veracity of the claims. But before that, the consent of the party must be sought. There are similar examples from across the border. The Indian Supreme Court in the case of Goutam Kundu v. The State of W.B (AIR 1993 SC 2295) held that even if there is legislation which can compel a blood test, a person cannot be compelled to go to the hospital.

Law aside, there is another aspect to consider. How accurate are DNA tests?

One possible answer to this was found in the Khizar Hayat v. Additional District Judge, Kabirwala and two others (PLD 2010 Lahore 422) case. In it, the court opined that human error in judgment, while the test is being conducted, cannot be ruled out in Pakistan. Other cases have highlighted a different approach by the judges. In the case of Rashid Minhas vs M Fayaz (2012 PCrLJ 816 FSC), the accused was charged with sodomy. Both a medico-legal report and a chemical examination confirmed the penetration. The victim also identified the accused. Yet, the trial court stated that the DNA test was of no assistance and acquitted the accused. Later, however, the appellate court reversed the order and convicted the accused. Whereas, in the case of Mazhar vs The State (2012 YLR 652 FSC) the Court held that the DNA test cannot provide any benefit to the accused as the prosecution has already established their case.

In Pakistan, there is also a lack of proper legislation on DNA testing. In the United Kingdom, for example, Section 45 of Human Tissue Act 2004 states that it is an offence to possess without appropriate consent any human bodily material with the intent of analysing its DNA. In Germany, under the Gene Diagnostics Act of 2009, secret paternity testing is illegal. Any genetic testing done without the other parent’s consent is punishable by a fine. In France, without a court order, the express consent of the person must be obtained in writing before carrying out the DNA examination. Finally, in the United States of America, paternity testing is fully legal, and fathers may test their children without the consent or knowledge of the mother. However, only a court-ordered paternity test may be used as evidence in court proceedings. But even in these first world countries, questions continue to be raised about the authenticity of DNA testing.

In Pakistan, even in cases of criminal and homicidal nature, DNA evidence is almost non-existent.

In sexual offences, the effectiveness of a DNA report, although legally admissible, has varied from case to case.

At the moment, there is no legal framework specifically designed for the admissibility of DNA evidence. Judges have to decide cases keeping in mind the existing provisions under PPC, QSO, CRPC and other enabling statutes. Which is why DNA evidence must immediately be included in Section 510 CRPC so that the same becomes admissible in evidence per se.

In February, the Sindh government unanimously passed a legislation that made DNA testing in rape cases mandatory. Under the bill, a sample will have to be collected within 72 hours of the incident.

It can be argued successfully that although DNA evidence is admissible but as corroborative evidence, which alone cannot be used to determine the fate of the case. Hence, in Zainab’s case, unfortunately, the DNA evidence will not be enough to sentence the accused Imran.

- Pansota is an advocate of the High Court, practising in Lahore. He tweets @pansota1

Note: The views expressed are those of the author, and do not necessarily reflect the official policy or position of Geo News or the Jang Group.