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Submitted By: Bazaf Shahbaz

Registration Number: L1F17LLBH0011

Section: A

Submitted To: Ms. Syeda Fatima

Batool

Topic: DNA Test

Admissible In
Evidence Or Not

Date: 10th June, 2019.

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DNA TEST ADMISSIBLE IN EVIDENCE OR NOT

BAZAF SHAHBAZ

L1F17LLBH0011

bazaf.mian@ucp.edu.pk

Abstract

The accompanying research paper goes for giving the reader a review to take a look at the

viewpoint that what is a DNA test, its suitability and assessment as a proof in legal framework, its

positive and negative perspectives, the difficulties it has looked over the time and the future issues

relating to its credibility and acceptability.

Introduction:

In recent times, a lot has been written on the above stated topic. However, very little serious efforts

have been made in order to get the research on its being admissible in court. The courts have since

long discarded its credibility for being an admissible evidence, but now recent amendments have

been made in the procedural law for its admissibility. However, DNA evidence has not been given

a status of Direct Evidence, rather it is declared a circumstantial evidence. Briefly, we’ll discuss

the difference between the two types of evidence and also a critical analysis of its given status.

The given paper is divided into six sections. The first section, related to mostly the scientific aspect

and biological research of the DNA test, is of very little interest for the understanding of any person
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belonging to field of law, yet is a very crucial section as it shall cover the basics of the topic of the

given research paper. The second section deals with the issues faced by modern legal systems and

also the provisions of laws in the western countries that were amended or added in order to clarify

the DNA evidence’s admissibility in courts. The third section deals with the DNA admissibility

with specific reference to the statutory framework in Pakistan. The fourth section deals with the

research of the most debated case laws related to the given topic and shall cover the two main

branches of the cases in which the DNA evidence is called for, one being the paternity issue and

the other being the cases of sexual assault. This section shall also briefly explain the other cases in

which, occasionally, the DNA evidence can be called for. The fifth section deals with the analysis

of evidence from the Islamic perspective. The sixth and final section of the given paper deals with

the conclusion regarding DNA evidence in practice.

1. What is DNA Evidence:

DNA technology is being increasingly used to offer new solutions to problems that are not

easily solved using traditional methods. Continuous development in DNA technology has

resulted in masses of technical details, which are often left unchallenged, and yet may

contain vital evidence.

1.1. Discovery of DNA:

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A Swiss Physician by the name of Friedrich Miescher discovered DNA while working

in Tubingen Germany in 1869. He found it quite different from proteins and named it

as Nucleon.1

1.2. Presence of DNA:

A DNA (Deoxyribonucleic Acid test) test involves a detailed scrutiny of the DNA

composition of an individual, which is unique to that person. DNA is present in the

nucleus of a cell and every living thing has DNA for instance humans, animals, crops

like corn, wheat, trees and fruits. It is present in almost all the excretions of humans

and animals. It can also be found in anything that has been in contact with human or

animal body like toothbrush, comb, chewing gum, cosmetic items, a used cup or bottle,

socks, gloves, glasses, toothpicks, clothes, watches, fruit pits, half eaten fruit, and

hundreds of other items which can be found at the crime scenes. A person inherits their

DNA makeup from their parents. Therefore, blood relatives share similar DNA.2

1.3. Working of DNA:

DNA is like the engine of the car. The working of the car is dependent on the engine.

Similarly, DNA is the engine of the body because all the functions of the body are

dependent on DNA. It is the base of life which is the storehouse of all functions. In

fact, it is the instruction manual of the body.3

1
Biology for Intermediate Part-II.
2
DNA by Noor Alam Khan, Advocate Supreme Court of Pakistan: https://pljlawsite.com/2013art51.htm
3
Forensic Science at a Glance; Drugs, Sighs, Sorrows and Crimes by M. Sarwar; p. 196.
 Page |5

2. Contemporary and Historical Perspective Regarding Admissibility of

DNA Evidence in Western Countries:

DNA profiling was originally developed as a method of determining paternity, in which

samples taken under clinical conditions were examined for genetic evidence that could link

parent to child. It first made its way into the courts in 1986, when police in England asked

molecular biologist Alec Jeffreys, who had begun investigating the use of DNA for

forensics, to use DNA to verify the confession of a 17-year-old boy in two rape-murders

in the English Midlands. The tests proved the teenager was in fact not the perpetrator and

the actual attacker was eventually caught, also using DNA testing.

The first DNA-based conviction in the United States occurred shortly after in 1987 when

the Circuit Court in Orange County, Florida, convicted Tommy Lee Andrews of rape after

DNA tests matched his DNA from a blood sample with that of semen traces found in a

rape victim.4 The first state high court to rule in favor of admitting DNA evidence came

two years later in West Virginia.5

In the first years following these groundbreaking cases, the admissibility of DNA evidence

was not largely disputed. That began to change once the technique began to become more

widely used by prosecutors. Soon defense attorneys began challenging the admissibility of

DNA tests.

4
Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988)
5
State v. Woodall 385 S.E.2d 253 (W. Va. 1989)
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2.1. First Use of DNA Evidence in Murder Conviction:

July of 1988 George Wesley was convicted of murdering Helen Kendrick, an elderly,

developmentally disabled woman. The conviction was based on DNA—Kendrick’s—

found in a blood stain on Wesley’s shirt. In the court’s opinion, a judge wrote, “the

conclusion was that the DNA print pattern on the defendant’s T-shirt matched the DNA

print pattern from the deceased and that the DNA print pattern from the blood of the

defendant was different from that of the decedent.”

The trial lasted for months and included testimony from Richard J. Roberts, who won

the Nobel Prize in Physiology or Medicine in 1993 for discovering split genes.

Eventually, the team of expert witnesses convinced the presiding judge, Joseph Harris,

to admit the DNA evidence. When it was all over, Wesley was convicted and sentenced

to 38 years in prison.

In 1994, New York State’s highest court upheld the use of DNA evidence in Wesley’s

case. His lawyers had appealed the ruling, saying that the DNA evidence used against

him was not reliable enough. The New York Times reported at the time:

“State law-enforcement officials praised the ruling, saying the Court of Appeals had

definitively given its approval to a process in wide use here and around the nation that

had nonetheless been clouded by debate about the risks of misidentification. They

predicted that the techniques, called DNA fingerprinting or DNA typing, will now be
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used more in criminal trials and may prod development of a statewide genetic database

similar to automated fingerprint databases.”6

2.2. Admissibility Standards

In general, two standards are used to judge the admissibility of novel scientific evidence

- the “Frye standard” and the “Daubert standard.”

a. The Frye Standard:

The Frye standard originates from a 1923 case, Frye v. United States, where the

court ruled that, to be admissible, scientific evidence must be “sufficiently

established to have gained general acceptance in the particular field in which it

belongs.”7

b. The Daubert Standard:

The Daubert standard is more recent, derived from the 1993 case Daubert v. Merrell

Dow Pharmaceuticals, where the Supreme Court went beyond Frye to say that

evidence must have sufficient scientific validity and reliability to be admitted as

relevant “scientific knowledge” that would “assist the trier of fact.”8

2.3. The Emergence of DNA Databases:

6
https://www.smithsonianmag.com/smart-news/july-marks-the-25th-anniversary-of-the-first-use-of-dna-evidence-
to-convict-a-killer-10509877/
7
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
8
Daubert v. Merrell Dow Pharmaceuticals, 113 2786 (S.Ct. 1993)
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The Supreme Court of the United States of America weighed in on the legal issues

surrounding the maintenance of DNA databases in Maryland v King.9 The Court upheld

a statute enacted by the State of Maryland for the preservation of DNA samples of some

categories of offenders (e.g. sexual offenders) on the basis of public interest. The Court

found some force in the argument advanced by the accused that the impugned law

related to the involuntary extraction of cheek swabs of an offender for DNA analysis

was contrary to the constitutional protection against unreasonable searches and

seizures, and violated personal privacy, but it further observed that such an involuntary

extraction was like fingerprinting and photographing which had already been held

constitutional. The Court also noted that the law was meant to foster public interest by

establishing a DNA database and that, in such cases, personal interest could not defeat

the interest of an entire community.

2.4. Negative Aspects of Maintenance of DNA Databases:

Tania Simoncelli has pointed out that in addition to undermining the goal of individual

liberty and justice for all, maintaining a DNA database would impose an unjustifiably

heavy cost on society.10 Establishing such a database is not financially viable for

countries like Pakistan because it requires huge resources for building and maintaining

infrastructure. Moreover, samples of DNA are susceptible to extensive misuse if proper

checks are not put in place. DNA is the repository of our genetic makeup; if a country

9
(2013) 133 S. Ct. 1958.
10
Tania Simoncelli, ‘Dangerous Excursions: The Case Against Expanding Forensic DNA Databases to Innocent
Persons’ (2006) 34 (2) The Journal of Law, Medicine & Ethics 390.
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maintains a database but does not introduce measures for curbing its misuse by punitive

sanctions, the right of privacy of those sampled would be jeopardized. 11 Nevertheless,

the potential benefits of DNA evidence are innumerable and each country may benefit

from it according to its legal and scientific infrastructure. It must be borne in mind that

many experts agree on the fact that DNA evidence is not always flawless and

conclusively reliable. Like all other forms of evidence, its results are subject to

interpretation. The possibility of the collection of incomplete samples for extraction,

contamination, intentional planting of biological samples, and the possibility of faulty

conclusions by experts all diminish the claims of the infallibility of DNA evidence.12

3. Statutory Framework in Pakistan:

In Pakistan, there is no particular legal framework that specifically deals with DNA

evidence, and hence the courts have to maneuver while remaining within the legal

framework hitherto available.

3.1. Qanoon e Shahadat Order, 1984:

DNA evidence is evaluated in the context of Article 59 of Qanoon e Shahadat Order,

1984 which states that:

11
Khaleda Parven, ‘Forensic Use of DNA Information v Human Rights and Privacy Challenges’ (2013) 17
University of Western Sydney Law Review 41.
12
Encyclopedia Britannica ‘DNA fingerprinting’ <http://www.britannica.com/science/DNA-fingerprinting>
accessed 10 December 2015.
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“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, or as

to authenticity and integrity of electronic documents made by or through an information

system 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 or as

to the functioning, specifications, programming and operations of information system,

are relevant facts. Such persons are called experts….’

And also Article 164 of the Qanun-e- Shahadat Order 1984 (‘QSO’) which states that:

“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.”

The former provision states that expert opinion on matters such as science and art falls

within the ambit of ‘relevant evidence’, whereas the latter provision provides grounds

for admissibility of various modes of proof made available due to advancements in

science and technology. Under the present legal framework, the technician who

conducts experiment to scrutinize DNA evidence is regarded as an expert whose

evidence/opinion is admissible in court. This legal framework is no different from the

one governing the admissibility of a medical opinion, which gives the impression that
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DNA is another kind of medical evidence, and that a DNA expert is like a doctor. If

DNA is evaluated from this perspective exclusively, we might not fully benefit from

its usage. The main distinction between medical opinion and DNA evidence is that the

former does not identify offenders11 whereas the latter does so with a high degree of

accuracy. Hence, it would be more appropriate to evaluate it from a different legal

perspective. But as we shall see, the courts have not interpreted the law progressively

enough, and there is much ground to be covered.

3.2. Amendment in Code of Criminal Procedure, 1898:

In 2016, an amendment has been made in Section 164 of the Code of Criminal

Procedure, 1898 by inserting Sec. 164-A and 164-B.

Sec. 164-A deals with the procedure of medical examination of the victim of rape and

such other sexual offences that directs that the medical practioner to examine the victim

for the committed offence on him/her so the actual situation of the alleged offence be

determined by the medical expert.

Sec. 164-B deals directly with DNA test of such victim of the offences like as stated in

u/s 376 and 377 of Pakistan Penal Code, 1860. The given test allows the victims of rape

to be determined accurately and to found any traces of DNA of the alleged accused too

so the court can determine the conviction or acquittal of any accused.

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The both above-stated amendments have been a fruitful source in the determination of

such cases like those of sexual assaults.

3.3. DNA Evidence: A Circumstantial Evidence:

DNA Evidence is not recognized as Direct Evidence, rather it is considered a

circumstantial Evidence. There is no such a big flaw as Direct Evidence is found very

less likely. In offences of PPC, there is seldom any case where the true witnesses can

be found who can claim “I saw the alleged doing rape of the victim.” In most cases,

only the witnesses that are found give circumstantial evidence as “I saw the alleged

entering the room of the victim, and later victim claimed that the alleged had raped

her.” In the given case of circumstantial evidence, it is the duty of the investigation

agency to connect the links of the crime and the duty of the court as to determine the

reliability of the DNA testing as circumstantial evidence is whether the given pieces

of evidence corroborate an undoubted chain to convict the accused.

4. DNA Evidence in Pakistani Courts:

This section of the article is dedicated to the analysis of the cases decided by Pakistani

courts involving DNA evidence. The purpose of this analysis is to explore how the

present legal framework has influenced and shaped the judicial approach. During the

analysis, two streams of cases have surfaced: one deals with paternity/legitimacy and

the other with sexual offences. There are different legal provisions for both these
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streams of cases. In one set of cases, DNA evidence is discouraged and excluded, while

in the other, it is admitted but its reception is not unswerving or optimal.

4.1. Paternity/Legitimacy Cases:

a. Muhammad Arshad v Sughran Bibi13:

In this case, a suit for recovery of maintenance was filed by the mother and her

minor son. The petitioner (father) disowned the minor while responding to the

claim. For substantiating his contention, an application was filed by the petitioner

in a Family Court praying for a DNA test of the child which was dismissed.

Thereafter, the petitioner filed a petition in the Lahore High Court to challenge the

order of the Family Court dismissing his application. While considering his

petition, the Court observed that the determination of a child’s legitimacy entailed

far-reaching consequences, and therefore, the determination of such crucial and

vital issue should not be done in a cavalier manner. The Court felt that the

accusations leveled by the petitioner and his act of disowning the child born in the

wedlock needed to be substantiated through tangible proof and credible evidence,

which were found to be missing in the petitioner’s case. Following the traditional

stance supported by Pakistani law, the Court highlighted that the paternity of a child

born in a lawful wedlock invariably carries the presumption of truth and thus the

mere denial could never take away the status of legitimacy as ‘child follows the

bed’.

13
PLD 2008 Lah 302.
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b. Sharafat Ali Ashraf v Additional District Judge, Bahawalpur14

The petitioner denied his marriage with the respondent and filed a suit for jactitation

of marriage after the respondent had filed a suit for maintenance. During the

pendency of the suit, a daughter was born, and was impleaded as a party. The

Family Court held the respondent and the daughter entitled to maintenance, and the

appellate courts also upheld its decision. Thereafter, the petitioner contended before

the Supreme Court that the courts below were guilty of gross injustice by not

conducting a DNA test. The Court analyzed the record of the case and found that

there was convincing and substantial evidence of marriage between the parties, and

the lower courts had rightly concluded that the parties were lawfully married. The

petitioner had denied the fact of marriage and the legitimacy of his daughter without

substantiating his claim by reliable evidence. He was unable to prove that the

daughter was born either after the dissolution of marriage, or that the respondent

had committed adultery. Since the daughter was born after six lunar months of the

marriage and before the conclusion of two years since dissolution, her legitimacy

and the consequent paternity could not be called into question through

unsubstantiated claims. While dismissing the petition, the Court further

underscored that the case of the petitioner was motivated to avoid his responsibility

of maintaining the daughter.

c. Sarwar Mai v Judge Family Court, Muzaffargarh15

14
2008 SCMR 1707.
15
2010 YLR 1234 (Lah).
 P a g e | 15

A petition was filed in the Lahore High Court by a woman and her son praying for

a DNA test to establish their relationship with a person, who had died long ago, as

his wife and son respectively. They also produced a nikahnama (marriage

registration certificate) and contended that they should be declared his heirs. The

relatives of the deceased initiated a suit for jactitation of marriage in a Civil Court

in which it was claimed that the deceased was a lunatic, and that he did not marry

the petitioner. The suit for jactitation was decreed on the basis of cogency of

evidence and the decree was affirmed in appeal. Thereafter, the petitioner brought

the matter before the Lahore High Court requesting a DNA test of the deceased.

The Court rejected the application on the ground that the controversy had been

settled by the subordinate courts on the basis of evidence other than DNA, and that

there appeared to be no justification to start proceedings afresh by allowing a DNA

test of the deceased.

This case is distinguishable from the cases of disputed paternity previously

mentioned above. In most of those cases, the issue of paternity was raised to

jeopardize legitimacy/paternity, but in this case, the request for a DNA test was

made in order to establish paternity. Despite such a difference, the outcome was

similar: the test was not allowed for settling paternity disputes in either way. This

judicial approach has primarily been shaped by Article 128 of the QSO, which does

not allow for the introduction of any piece of evidence meant to destabilize the

presumptive legitimacy. In addition to the aforementioned provision, there is

another hindrance in allowing a DNA test; under the adversarial system of justice
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prevalent in Pakistan, a party asserting a fact has to establish it by producing cogent

evidence in favor of his/her claim, and the courts are reluctant to facilitate the

claimant in discharging the onus of proof by ordering the test.

4.2. Sexual Offences:

a. Muhammad Shahid Sahil v The State16:

The petitioner was alleged to have committed rape, and as a result, the victim

conceived and gave birth to a baby girl. The victim made an application for

conducting a DNA test of the petitioner/accused, which was accepted by the trial

court. The Court directed the petitioner/accused to appear for a DNA test in order

to ascertain whether the victim’s daughter was related to him or not. The

petitioner/accused challenged the above order before the High Court. The latter did

not find any legal infirmity in the order and confirmed it. The Court observed that

once a DNA test is conducted, its report would be produced as evidence by

summoning the expert who conducted the test. The accused would have an

opportunity to cross-examine the expert, and that would be sufficient to grant him

a fair opportunity to question the validity of the evidence. The Court said that DNA

evidence was the best available evidence in this case for unearthing the truth

without loss of time. The Court noted:

16
PLD 2010 FSC 215.
 P a g e | 17

“The prosecution agencies should take heed and use latest available technology to

trace and locate the actual criminal. Under Article 164 of QSO, a court might allow

to be produced any evidence available because of modern devices or techniques.

Furthermore, the 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 both. The 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. It is fundamental duty of the courts to arrive at the truth without

depriving an affected party to establish its point of view.”

Consequently, the accused’s petition was dismissed and the Court directed him and

the victim along with her daughter to appear for a DNA test. It is pertinent to point

out that the above case tends to border on validating the establishment of paternity

of a child conceived as a result of sexual assault through DNA evidence, though as

we have seen already, this evidence is discouraged in paternity disputes. While this

may seem to be the case at the outset, it would be incorrect to conflate the two

situations primarily because a biological father is not treated the same way as a

legal father. Under the present legal system of Pakistan, a legal father is the person

who has been validly married to a child’s mother to whom the child is born during

a specified time after the marriage or its dissolution. Moreover, the case at hand is

different from the cases reproduced in the previous sub-section owing to

distinguishable facts. In the earlier cases, the purpose of the litigants was to question
 P a g e | 18

paternity in civil litigation, particularly when the legal framework has raised a

conclusive presumption in favor of legitimacy, whereas in the present case, the

objective is to establish an alleged rape, a criminal offence, by linking the daughter

with an alleged offender through DNA. It would appear that the present legal

framework does not at least debar any kind of evidence likely to unearth the truth

in such cases.

b. Salman Akram Raja v Government of Punjab17

The Supreme Court of Pakistan tried to remedy the lack of a specialized legal

framework for utilization of DNA evidence. The Court directed that DNA tests be

conducted in all sexual offences, and that DNA samples be preserved as well. This

case was public interest litigation initiated by the Court Suo moto in response to an

attempted suicide by a minor victim of rape on her failure to get her complaint

registered against influential offenders. Concerning DNA, the Court observed that

it provided:

“a mean[s] of identifying perpetrators with [a] high degree of confidence… [and]

by using DNA technology the courts would be 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.”

17
2013 SCMR 203.
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The Court cautioned that DNA evidence is not infallible and should not be taken as

a conclusive proof. It should always be acted upon after corroboration from other

pieces of evidence. This caution is appropriate and timely as sometimes people

indulge in exaggerating DNA’s accuracy. DNA evidence is ‘largely rooted in

probabilities, even a confirmed “match” does not supply concrete proof of guilt’.

The Supreme Court also engaged with the issue of consent of a victim and an

accused to DNA testing. It was held that the victims could not be coerced to provide

a sample for DNA testing or any other medical test because it infringes upon their

personal liberty. On the other hand, the consent of the accused persons is not a pre-

requisite for conducting DNA tests, and their sample can be extracted without their

consent because it would facilitate in ascertaining the truthfulness of allegations.

Despite the significance of this decision in highlighting the role of DNA evidence,

it has not so far brought a large-scale shift among the investigating agencies in their

attitudes towards the collection of DNA evidence in all sexual offences. Moreover,

the decision has not specifically encouraged the use of DNA evidence in other kinds

of offences such as those related to property and homicide. At any rate, DNA

evidence is being received in sexual offences by courts in Pakistan, but the analysis

of the cases below would demonstrate its divergent and minimalistic use,

reinforcing the case for the re-evaluation of the present legal framework.
 P a g e | 20

c. Khadim Hussain v The State18

The Federal Shariat Court maintained the conviction of an accused by a trial court,

though a DNA report on the swab samples taken from the victim did not match the

profile of the accused. The victim was allegedly raped by the accused and her father

lodged the report of this incident. The prosecution produced, as witnesses, the

father, the victim, and the doctor who examined the victim and found her to have

been subjected to rape. The evidence of the doctor was found to be insufficient in

identifying the accused, but the Court regarded it as corroborating the statement of

the victim, which was found to be truthful and confidence inspiring. Moreover, the

accused had absconded for a reasonable period of time, lending credence to the

prosecution’s version of the events. In view of these circumstances, the Court

concluded that the mere non-matching of the DNA profile of the accused was not

sufficient for acquitting him.

5. Islamic Position on Law of Evidence:

There is even evidence of the use of forensic evidence in the early days of Islam.

Anwar Mahmud Dabur narrates the story of a woman who falsely accused another

man of rape.19 She spread the egg yolk on herself and her clothes and brought it as

evidence to Caliph Umar ibn Khattab. The Caliph consulted another woman who

confirmed the woman’s clothing bore semen stains. The Caliph consulted Ali

18
2011 PCrLJ 1443 (FSC).
19
Al-Qara’in wa Dawruha fi al-fiqh al-Jina’i al-Islami (p. 215)
 P a g e | 21

(subsequently the fourth Caliph), who immersed the stained cloth in boiling water

that turned the stains into white solid, which smelled and looked like egg yolk.

The Islamic tradition provides for the use of the scientific evidence in legal matters.

Forensic evidence can be used under the tradition of Qarinah (circumstantial

evidence) and al-ra’y al-khabir (expert opinion). The Prophet himself is reported

to have consulted an expert on face recognition to settle a paternity dispute.20

5.1. Traditional Modes of Paternity Determination in Islamic

Law (Sharî‘ah)21

The fuqahâ’ agree that paternity is legally dismissed if it contradicts tangible,

material reality, as when a woman ascribes paternity of her baby to a “child-

husband” too young to father a child, or when a woman gives birth to a “full-

term” child before six months of her contracted marriage have lapsed. According

to Islamic Law, paternity is established in one of the following ways:

a. Al-Firâsh. The Arabic term Al–firâsh (lit. bed) is a euphemistic expression

used to refer to sexual intercourse between a man and a woman. Since it is almost

impossible to ascertain the occurrence of coitus between couples, the majority

of fuqahâ’ consider the high probability (ghalabat al-·ann) of sexual intercourse,

20
Sunan al-Dar Qutni, p. 240
21
https://aljumuah.com/can-islamic-courts-allow-dna-evidence/
 P a g e | 22

say, between a man and woman who have contracted marriage but not formally

actually wed and begun living together. Thus the Ḥanafî fuqahâ’ consider the

marriage contract a legally valid way to establish paternity. However, some

later fuqahâ’, including Ibn Taymiyyah and Ibn Al-Qayyim, hold that for

paternity to be upheld the occurrence of coitus between couples must be definitely

established (as opposed to reliance on high probability). But the opinion of the

majority of fuqahâ’ preponderates, for it is based on an authentic ḥadîth: “Al-

waladu li’l-firâsh(a baby belongs to the bed (meaning the established paternity of

a husband with his wife) where it was [likely] conceived,” in addition to the fact

that most of the Sharîʿah rules are predicated on high probability, reiterating that

ascertaining the actual occurrence of coitus is generally unfeasible.

b. Al-Istil ḥâq (lit. adding). This Arabic term denotes a man’s acknowledgment

that he is a child’s father (even as to adult children). The fuqahâ’ laid down a

number of conditions to govern the process of al-istil ḥâq, chief among them is

that the al-istil ḥâq claim must be reasonable and congruent with the nature of

things. So, if a 20-year-old claims to be father of a 15-year-old, his claim is

rejected, because such an assertion contradicts reason and nature.

c. Al-Bayyinah (lit. clear evidence). The fuqahâ’ are unanimous that paternity

can be established by the testification of upright witnesses. Moreover,

the fuqahâ’ posit that if a large number of people who are closely familiar with

the persons involved say that they know that so and so is the son of so and so,

their testimony is given legal consideration.

 P a g e | 23

d. Al-Qiyâfah (lit. tracking). Technically this term refers to the studied ability of

some (particularly the ancient Arabs) to discern genealogical affinity by

examining, observing, and comparing bodily features. The

Ḥanafî fuqahâ’ maintain that, owing to its conjectural nature, al–qiyâfah is not a

legally acceptable means of determining the genealogy of a person. The majority

of the fuqahâ’, however, uphold it based on the ḥadîth narrated by ʿA’ishah j who

said that on one occasion the Prophet ‫ ﷺ‬entered upon her with his face sparking

with delight and said: “Muja··ir Al-Mudlijî [an Arab expert in al–qiyâfah] has

just observed the feet of Zayd ibn Ḥârithah and Usâmah ibn Zayd and remarked:

‘These feet are a father-and-son’s feet’” (Bukhari). They hold that the Prophet’s

fo lavorppa sih fo evitacidni si noitale ‫ ﷺ‬al–qiyâfah, because he would never

approve or be pleased by something he knew to be false.

e. Al-Qurʿah (lit. lottery). This mode of establishing genealogical relationships,

by controlled selection, is adopted by the followers of the <ahirî madhhab. It was

primarily used (by scholars of the Mâlikî and Ḥanbalî schools) to decide dispute

over the paternity of a child by multiple claimants as a way of assigning paternity.

The majority of the fuqahâ’, however, did not uphold this mode. But thanks to

the technological advance in the field of blood analysis and DNA

fingerprinting, al-qurʿah is no longer accepted.

6. Conclusion:
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DNA has opened new vistas in forensic sciences. But whatever worth DNA

evidence may promise, its use is dependent on the existing legal framework and

scientific infrastructure of a country. On the one hand, DNA’s admissibility is

hindered in paternity disputes owing to a statutory conclusive presumption in the

favor of legitimacy. In these cases, the courts prefer the collective interest of the

community by favoring the legitimacy of an offspring over an individual’s interest

in unearthing the truth. According to prevalent judicial opinion, this approach is

also in consonance with the Islamic dictates. This is why there is little prospect of

making DNA evidence admissible in these cases. On the other hand, DNA evidence

is admitted by the courts in sexual offences and is treated as a kind of expert

evidence.

DNA evidence is equated with expert evidence in the present legal framework in

Pakistan which diminishes its value significantly. Due to their pre-settled notions

informed and shaped from the perspective of expert evidence, the judicial officers

are not willing to give more credence to DNA evidence than what they normally

extend to other medical or expert evidence. As a consequence, DNA evidence has

been marginalized as corroboratory or secondary evidence, and has been deprived

of its potential as primary evidence. As long as DNA evidence is not freed from

this reductionist perspective, it is difficult to benefit from its true potential. Thus a

thorough re-evaluation of the present legal system is required in order to maximize

the utilization of DNA evidence and its elevation to the status of primary evidence.