Is DNA evidence admissible under Pakistani statutory and case law?

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. In Pakistan, DNA evidence is evaluated in the context of Articles 59 1 and 1642of the
Qanun-e Shahadat Order 1984. 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. Furthermore, the Supreme Court declared that DNA
evidence is an expert opinion and even it is admitted into the evidence and relied 3. The superior
courts put certain limitation on the admissibility of DNA which is as follows. Firstly, to ensure
fair-trial and transparency, the samples in the laboratories from the parents should have been
taken in the presence of some independent authority like a Magistrate and also the recovered
samples from the crime scene in the same way to dispel the chances of fabrication of evidence
through corrupt practices and the transition of the samples to the laboratory should have also
been made in a safe and secure manner.4 Secondly, the Supreme Court of Pakistan in the case of
Salman Akram Raja and another v. Government of Punjab, held that nobody could be forced to
have her blood test samples obtained for conducting of DNA Test. 5Thirdly, it was also held in
the supreme court judgment “that DNA test as per information available in text books, medical
science and various authoritative writings on the point available on internet, possibility of error
cannot be excluded.”6Fourthly, the supreme court declared that DNA evidence would in no
manner be sufficient to connect the necks of the appellants with the commission of the crime

1
Article 59 of QSO: ‘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….’
2
Article 164 of QSO: ‘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.’
3
2016 SCMR 274 SUPREME-COURT AZEEM KHAN Vs. MUJAHID KHAN
4
2016 SCMR 274 SUPREME-COURT AZEEM KHAN Vs. MUJAHID KHAN
5
(2013 SCMR 203)
6
, (PLD 2010 Lahore 422
when the bulk of other evidence has been held by us unbelievable thus no reliance can be placed
on it to award a capital sentence.”7

Judicial review:

here is a plethora of judgments in which the honourable supreme court of Pakistan For instance,
in the judgment of Baz Muhammad Kakar versus Federation of Pakistan reported as PLD 2012
SC 923, the honourable supreme court in its judicial review powers under Article 184(3) of the
constitution declared contempt of court ordinance 2012 ultra vires and unconstitutional.
Similarly the Honourable Lahore High court in its judgement Amin Masih vs Federation of
Pakistan reported as PLD 2017 Lahore 610 declared the Federal Revision and Declaration
ordinance 1981 ultra vires and unconstitutional and restored the repealed section 7 of Divorce
Act 1869.

When the honorable High court under Article 199 of the constitution can declare any law ultra
vires then how can the Supreme Court be barred from exercising its judicial review powers
keeping in consideration the principle of stare decisis. Already it has been enunciated by the
Supreme Court in its judgement reported as PLD 2011 sc 997 Watan party vs Federation of
Pakistan that the powers exercised by the Supreme Court under Article 184(3) of the constitution
are the same powers exercised by the High courts under Article 199 of the constitution of
Pakistan.

In case of Musammat Badshah Begum v. Additional Commissioner Lahore Division , the

Supreme Court observed that the Court has ample power of judicial review in order to make sure
just, fair, and reasonable application of law. Further, courts are not bound by the letters of law
rather bound by the spirit of law.8

In case of Sayed Abul Ala Maudoodi v. Government of West Pakistan151 , the Supreme Court
held that the Constitution is supreme and it has to prevail over the ordinary law. This is possible
only when the authority of judicial review is admitted. 9 Muhammad Basher v. Abdul Kareem152

7
2016 SCMR 274 SUPREME-COURT AZEEM KHAN Vs. MUJAHID KHAN
8
SCMR 629 (SC 2003).
9
PLD 673 (SC 1964).
. The Court observed that it is duty of the Court to protect fundamental rights of the people, to
act and aid the law, and to protect the law and Constitution against exploitation by the state
functionaries. Further, it is duty of the Court to strike a fair balance so as to create a rational
compromise of state functionaries with the rights of citizens.10

Similarly in the case of Miss BENAZIR BHUTTO vs. FEDERATION OF PAKISTAN and
another (PLD 1988 Supreme Court 416); the august Supreme Court of Pakistan while describing
the scope of Article 199 of the Constitution held as under:- “Article 199(1)(c) authorises the
High Court to enforce the Fundamental Rights of an aggrieved person and to declare that so
much of the law which is inconsistent with the Fundamental Rights shall be void.

In a land mark judgment handed down in the case titled “SHARAF FARIDI and 3 others vs THE
FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN through Prime Minister of Pakistan
and another” reported as (PLD 1989 Karachi 404) following principle was laid down:- “---Art.
199(1)(c) & Part II-Fundamental Rights…High Court is authorized to enforce the Fundamental
Rights of an aggrieved person and to declare that so much of the law which is inconsistent with
the Fundamental Rights shall be void--High Court has power to declare the law to be void and
power to enforce the Fundamental Rights which are violated by the law itself.”

10
PLD 271 (SC 2004)