DNA EVIDENCE AND ITS ADMISSIBILITY IN THE CRIMINAL JUSTICE SYSTEM OF PAKISTAN

By
SUNDUS RAUF¹Advocate High Court, LLM, M.Sc. (Criminology)
Permanent Faculty, College of Law, UOL
sundas.rauf@law.uol.edu.pk

AMNA ZAHID²Advocate High Court, LLB, M.Sc. (Criminology)
Visiting Faculty, College of Law, UOL
amna.zahid@law.uol.edu.pk

Introduction

In the modern era, criminal justice system depends on the exploitation of evidences by using forensic science and it has significant impact on curbing the crime. Forensic science is arguably considered the application of science to law enforcement. Today, forensic science encompasses a wide range of disciplines within the criminal justice system and there are numerous subdivisions that fall under this broad umbrella e.g. Forensic DNA/Serology, fingerprinting, questioned documents, firearms and tool marks analysis, digital forensics, explosive analysis, toxicology, forensic psychology, psychiatry & behavioral science, crime scene investigation etc. Forensic scientists collect, preserve, and analyze scientific evidence during the course of an investigation.

This is a fact that Pakistan is facing several challenges since its creation which include over population, crime, terrorism, natural disaster ect. Several issues arise where it becomes necessary to identify a person by using scientific technique. Normally identification of person is conducted through DNA examination in cases of mass disaster or murdered mutilated body. It is equally important to identify a suspect in the cases of sexual assault. This test is also conducted in order to establish paternity/maternity, whenever it is in question.

In Pakistan DNA test has previously been reported to be conducted for the purpose of identification of dead bodies, in various incidents including:

(i) Identification of Suicide bomber and victims of suicide attack

(ii) Identification of victims of Baldia Town Factory Fire incident in Karachi

(iii) Identification of Victims of plane crashes e.g. Bhoja Air Airbus crash in 2012, PIA Plane Crash in 2016

(iv) Use in Courts to resolve several criminal and civil matters

(v) To identify the real culprit in the cases of sexual assault.

Historical judgment of ATC in Zainab’s rape and murder case of Kasur in the year 2018, has established a strong precedent of conducting DNA test to dig out the truth and to reach the real culprit. It was all for the efficacious, fair and just administration of criminal justice.Reliance was made on the evidence which was available on the basis of modern techniques and devices i.e. CCTV footage, DNA test result and polygraph test. After such strong evidence there was no other option for the accused except to confess his guilt. But in this case also, reliance was not made only on DNA test results as a conclusive proof and it was corroborated with other piece of physical, digital, forensic and circumstantial evidence alongwith confessional statement of the accused.

Biological Importance of DNA in Human Body

Deoxyribonucleic acid, or DNA, is a double-stranded nucleic acid containing the genetic information of a living thing. It is essential for the cell growth, division, and various other functions of an organism.[1]It also serves as the primary unit of heredity in all types of organisms. In other words, whenever an organism reproduces, a portion of their DNA is passed along to their next generation. This transmission of all or part of an organism's DNA helps to ensure a certain level of continuity from one generation to the next, while still allowing for slight changes that contribute to the diversity of life.

The recognition that DNA carries the information blueprint for all living organisms, and the mechanisms that translate the DNA code into the stuff of life, stands as one of the great discoveries of modern science. From the simplest microorganisms to the giant trees and animals that inhabit the Earth, all rely on DNA for their existence. Using far fewer biological "letters" than the 26-letter English alphabet, DNA spells out the instructions for how organisms live, reproduce, metabolize, mature and eventually die[2].

Importance of DNA Analysis in Cases of Sexual Assault

Presently the cases of sexual assault are rapidly increasing. The main problem arises when the offender tries to remove all the possible available evidence from the crime scene. In most of the cases the victims are children of tender age who are mostly strangled to death after being sexually assaulted. In such cases it becomes very difficult to trace any evidence to reach to the real culprit.

It was broken out through Dawn dated 20 January, 2018 that a report submitted to the National Assembly’s Committee on Human Rights, prepared by Additional Chief Secretary and Additional Inspector General of Punjab after Zainab’s incident revealed that in the year 2016 and 2017, 1,297 cases of child rape were reported in Punjab. Out of the total number, 252 cases were against girls while 1,045 were against boys. At least 43 children were murdered after being subjected to sexual assault.[3] The most disappointing fact of the report was that police arrested 1,446 suspects. Only 21 were sentenced and 166 suspects were set free due to lack of evidence against them. This fact is a big question mark on the whole criminal justice system.

Now the questions are:

· Why the punishment cannot be pronounced solely on the basis of DNA test report in the cases of sexual assault?

· What reasons reduce its evidentiary value and make corroboration necessary?

· What measures should be adopted to increase the reliability of courts on this valuable piece of evidence for the purpose of conviction.

Evidentiary Value of DNA Test Report in The Courts of Criminal justice in Pakistan

In today’s practice the use of modern scientific techniques is inevitable in order to provide speedy and efficacious justice. It is a well settled principle now that “Human beings may tell a lie but scientific analysis would reveal true facts”. As the methods to commit a crime are becoming more and more advanced which cannot be investigated through old traditional ways of investigation. Therefore in the whole world the modern techniques of investigation are being adopted in order to solve specially those crimes in which the offender, acting smartly, leaves the crime place without leaving any sign to chase him.

In such cases the investigation is being conducted on scientific basis using scientific methods and modern devices which start from the Crime scene investigation. DNA test is also one of these modern scientific techniques. Unfortunately, this important evidence is considered to be secondary evidence. This is taken as a relevant fact in the form of an opinion of an expert under Article 59 of Qanoon-e-Shahadat Order, 1984.[4]In order to prove this piece of evidence strict corroboration is required by the court.

In past many genuine complaints remained unresolved due to stereotype method of investigation but now the crime is being tried to be resolved through forensic investigation which is provided and supported under Article 164 of Qanoon-e-Shahadat, Order, 1984.

Article 164 of Qanoon-e-Shahadat Order, 1984 provides:

“Production of evidence that has become available because of modern devices, etc. In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.”[5]

In the land-mark case of Hon’ble Federal Shariat Court titled “Muhammad Shahid Sahil v The State” learned Justice Mr Syed Afzal Haider while holding DNA test an admissible evidence even in the cases of Zina-bil-Jabr held that:

“Under the Hudood Law relating to Zina, convictions are generally not recorded under section 8 of the offences of Zina (Enforcement of Hudood) Ordinance (VII of 1979), but convictions are invariably recorded under section 10 of the same Ordinance and Article 164 of Qanun-e-Shahadat Order, 1984 has made it possible to have recourse to scientific discoveries and the method of semen grouping or chemical analysis to detect semen or blood of human origin in cases falling under criminal jurisdiction is the contribution of modern scientific age which is being employed by Courts including the Federal Shariat Court and also that the Holy Qur’an and Sunnah nowhere forbid employing scientific or analytical methods in discovering the truth.”[6]

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. There are several judgments and precedents of the apex court through which it can be inferred that the Hon’ble judges also appreciate the forensic evidence but either due to lack of clear and express provisions of law or the un-reliable expertise, they are reluctant to rely on it conclusively unless corroborated.

The August Supreme Court held in “Azeem Khan and another v Mujahid Khan and other” that “only the DNA test report is inadmissible evidence to award an accused a capital punishment in the present case as the circumstantial evidence is not supporting this report and the prosecution has failed to prove its case beyond reasonable doubt”.[7]

There is a list of cases of the Superior Courts of law on the point:

i. The case “Salman Akram Raja and another v. Government of Punjab” was about the gang-rape of a 13 years old girl in which no formal F.I.R was registered by the police; concerned medical officer gave its findings/opinion eight days after the examination; due to the attitude of the investigating agencies, the victim attempted to commit suicide; the incident was highlighted by the media and came into the notice of the August Supreme Court who initiated the suomoto action.

It was held by the Hon’bleIftikhar Muhammad Ch. C.J., Jawad S. Khawaja and KhiljiArifHussain, JJ as under:

“Administration of DNA test and preservation of DNA evidence should be made mandatory. It was also held that the DNA test provides the courts a mean of identifying perpetrators with a high degree of confidence. By using DNA technology the courts were in a better position to reach at a conclusion whereby the real culprit would be convicted, potential suspects would be excluded and wrongfully involved accused would be exonerated. It was also held that the consent was not required for conducting DNA test or any blood test in order to ascertain truthfulness of the allegation”.[8]

Why DNA Test is not Considered to be a Conclusive Proof and Corroboration is Required for It?

There are several reasons which reduce the evidentiary value of the DNA test in various cases due to which the Courts require corroboration of the test with other material particulars and circumstantial evidence. These reasons are listed hereunder:

1. Although the Medical Science has developed a lot in this modern era, but unfortunately at the same time it has not attained the required level of accuracy, competency of persons associated with these test and fairness of society and prevailing system as it has been applied in the developed societies like USA and Europe, either due to lack of skilled persons, tools to perform this test and human error in conducting this test cannot be ruled out in our system.

2. The possibility of error while conducting the DNA test cannot be ruled out either due to contamination of sample or mishandling the same in the laboratory or on the way to laboratory.

3. Another most important reason is the delay in reporting cases of sexual assault either due to social and psychological fear and pressure or lack of courage and awareness. Due to which the examination of the victim is also delayed which may affect the result of the DNA test report.

4. In Pakistan there is lack of proper legislation on DNA testing like other countries of the World to describe the code of conduct for the test and to define the offences relating to it along with punishments if there is any violation of secrecy and privacy. The factors of bribery, enmity or preparing fake reporting on the part of examiners can also not be ruled out.

5. It is necessary to establish proper chain of custody for the test. If the chain is broken the test is not admissible in the court.

Analysis of The Case Cited as 2016 SCMR 274 about The Admissibility of DNA Test:

Title:“Azeem Khan and another v Mujahid Khan and other”

Present: AsifSaeed Khan Khosa, MushirAlam and Dost Muhammad Khan, JJ

The case was related to the kidnap for ransom and then Qatl-e-Amd of a 10/11 years old boy who was killed by the appellants of the case for the reason of raising hue and cries. After the disclosure by the appellants the bones alleged to be of the deceased, were recovered from the crime spot and were sent to the Forensic Science Laboratory, Lahore where a research officer of Molecular Biology, University of Punjab, conducted the DNA test with the positive result.

The prosecution had placed reliance on the following piece of evidence:

i. Cell phone date of two mobile phones

ii. The judicial confession of the appellants recorded by the Magistrate

iii. The extra judicial confession made by one of the appellants before one of the prosecution witnesses

iv. The recovery of bones (12 in number), clothes and slippers of the deceased from the crime spot

v. The recovery of the money

vi. The recovery of Suzuki Mehran Car, which one of the appellants had allegedly purchased from unknown seller, paying a portion of the ransom money, and

vii. Positive result of the DNA test

The Hon’ble Supreme Court held that the crime is an un-witnessed crime. The entire edifice of the prosecution case is based on circumstantial evidence and recovery of the alleged incriminating articles. The Hon’ble court rejected all the above listed evidence after recording its detailed reasons for each piece of evidence and relevant facts.

Only the DNA test report was positive but there were many doubts regarding the report which adversely affected its admissibility as discussed by the Hon’ble judges in the following way:

· The bones were recovered after one month of the murder and according to the well-known medico-legal jurist, MODI such like destruction of the entire body of human being, even of teenager is not possible within two months because some of visceras made of tough tissues and full skeleton of human body remain in contact. In this case only scattered pieces of bones were recovered and not full skeleton of human body, which by itself is unbelievable, being against the well-established and universally recognized juristic view.

· Keeping in view the provision of section 510, Cr.P.C. whereunder, the report of biochemical expert (a biochemist) on DNA is not covered thus, it is open to a serious debate because under the above provision of law, specified experts reports, excluding the report of above said expert, have been made admissible. Hon’ble judges held that they are unable to hold the same as an admissible piece of evidence in absence of any sanction of law.

· To ensure the fair-play and transparency, the samples in the laboratories from the parents (of Deceased) should have been taken in the presence of some independent authority like a Magistrate and also the recovered sample from the crime scene in the same way to dispel the chances of fabrication of evidence through corrupt practices. Transition of the sample to the laboratory should have also been made in a safe and secure manner, but all such safeguards were ignored in the present case.

· Contamination of DNA sample is also a big issue which attributes lesser evidential value to the report. In the recent past many scandals in USA, UK and other countries have surfaced where desired DNA test reports were procured by the investigator after contaminating the sample. Such contamination has also been reported in some cases while the samples remained in the laboratories. Many inquiries were held on this issue and stringent law has been made by many States to prevent the contamination of samples outside and inside the laboratories. Proper procedure has been laid down for securing and carefully putting into parcel the suspected materials to correlate with the samples of the parents to establish paternity or maternity. Similarly, stringent check and procedure has been provided to avoid and prevent cross contamination of the two samples because if both come in contact with each other then, it will give false positive appearance and the expert is thus misled. It has also been discovered that credentials of many experts, claiming possessed of higher qualification in this particular field, were found fake and they were thus, removed from service.

· The entire case of prosecution was based on circumstantial evidence. The principle of law, consistently laid down by this Court is, that different pieces of such evidence have to make one chain, an unbroken one, where one end of it touches the dead body and the other the neck of the accused. In case of any missing link in the chain, the whole chain is broken and no conviction can be recorder in crimes entailing capital punishment. This principle is fully attracted to the facts and circumstances of the present case. There are many links which are missing.

Due to the reasons discussed above in detail the Hon’ble Supreme Court refused to award capital punishment just on the basis of only one piece of evidence i.e. DNA test in a situation when no other circumstantial evidence was supporting the case of prosecution. It does not appear from the detailed analytical study of the whole case that the intention of Hon’ble Judges was to declare DNA Test report an inadmissible piece of evidence. Rather, the verdict contains clear guidelines to be followed in order to get DNA based evidence admissible in the court.

Suggestions:

Keeping in view these circumstances following suggestions are being recommended for the purpose of making the prosecution case stronger, to punish the offender, for the effective administration of justice and to eradicate the crime from Pakistan.

1. More labs with qualified experts and advanced equipment should be established in all the provinces and major cities of Pakistan so that quick investigation could be possible to reach the real culprit and exonerate the suspects.

2. Government should ensure that the scientists and officials relating to the forensic evidence must be protected and secured from the external influence, threats, political influence, bribery, coercion and intimidation.

3. There should be collaboration with other countries for this purpose. The scientists, law enforcement officials and crime scene investigators should be sent to other countries to learn new techniques of performing experiments so that they could apply them in Pakistan in order to extract the truth from the physical evidence.

4. If forensic investigation including DNA analysis is properly conducted, the Courts must consider this type of evidence as an important piece of evidence and must rely on it so that the other criminals would be able to realize that they would have to face the consequences if they commit a crime in future. Once the offender of a case is punished, no one would dare to commit such offence again.

5. Women Protection Centers should be extended throughout the country at least at each district. The centers should be well established, well equipped and consisting of a trained and skilled team including a lady doctor, a prosecutor, a forensic scientist, a psychologist, an investigator and any other such persons who may ensure the protection and security of such victims as well as the center.

6. DNA data base should be maintained for the speedy investigation in case of any crime.

7. Necessary amendment in the respective laws particularly in the Qanoon-e-Shahadat Order, 1984 be made to make DNA test a conclusive proof of evidence in order to eliminate the crime from the society.

Conclusion

This study has examined in depth the practice of the courts in admitting the DNA analysis report in criminal cases. A number of reported judgments of the Hon’ble Supreme Court, High Courts and Federal Shariat Court have been referred to answer the questions. The whole and detailed study has revealed that nowhere it is found that the DNA test is inadmissible piece of evidence and can never be admitted in the Court of law in Pakistan. This is a very effective tool to reach the conclusion in any issue on scientific basis. The difference and variation in opinions of judges regarding the admissibility of test in various cases is only due to its being not supported by the circumstantial evidence. It is evident from these reported judgments that the courts want to apply the evidence through modern devices but they have to be conscious due to lack of express provisions of law about it. Article 164 is also not explanatory in itself. It should be elaborated and well explained by the Legislature in order to remove all ambiguities about the admissibility of DNA test and evidence through other modern devices so that the actual culprit could be punished, the innocent could be exonerated, the crime could be eradicated and administration of criminal justice could be possible.

-----------------------------

THE END

[1]. https://www.biology-online.org/dictionary/Deoxyribonucleic_acid.

[2]. https://sciencing.com/importance-dna-human-cell-19447.html.

[3]. https://www.dawn.com/news/1384159.

[4]. Opinions of experts: When the Court has to form an opinion upon a point of foreign law, or of science/or art, or as to identity of hand-writing or finger impressions; the opinions upon that point of persons specially skilled in such foreign law science or art, or in questions as to identity of hand-writing or finger impressions are relevant facts. Such persons are called experts.

[5]. The Qanoon-e-Shahadat Order, 1984( P. O. No. X of 1984).