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Medicine, Science and the Law

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DNA evidence in sexual assault cases ! The Author(s) 2020
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DOI: 10.1177/0025802420934240
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Nouman Rasool1,3 and Muzamal Rasool2,4

Abstract
Sexual assault is becoming a global epidemic, affecting close to a billion women throughout the world. This paper
explores the challenges in the admissibility of DNA evidence in rape cases in Pakistan. Delays in the medical examination
of victims, and improper collection and packaging of evidentiary material, compromise the probative biological evidence.
In the last few years, existing laws have been amended to increase the utility of DNA evidence during criminal trials.
However, various issues – for example lack of proper knowledge of DNA evidence by lawyers and judicial officers,
inadequacies in existing laws and conflicting decisions of apex courts – can affect the admissibility of DNA evidence
during criminal trials.

Keywords
Forensic science, DNA analysis, sexual assault, DNA evidence, Pakistan law

Introduction
Sexual assault is a growing serious concern all over the
world, victimising members of both genders.
Identifying offenders and choosing the right punish-
ment is very important to both reduce and eradicate
these crimes from society. The recognition of legal
harm to the victim is a major measurement on which
punishment is decided. Sexual assault can have a severe
and adverse impact upon a victim’s life in Pakistan,
owing to societal discrimination and humiliation. The
victim has to pass through further adverse experiences
in family gatherings, police stations and hospitals. A
sexual assault therefore not only causes physical harm
but also disturbs the well-being of the survivor.1
Sexual assault cases, as legally defined within
Pakistan, include rape and anal sex (whether the
latter is consensual or not) and they are reported
across the country throughout the year. Unlike in
many other countries, homosexuality and anal sex are
unlawful in Pakistan and the person(s) involves in the
criminal act are liable to imprisonment or a fine.
As regards sexual offences, Judicial proceedings and
conviction mainly rely upon proper investigations and
good prosecution. The role of modern DNA technolo-
gy in identifying perpetrators of sexual offences is
increasing gradually, however DNA evidence is not
considered conclusive proof of sexual assault in the
judicial system of Pakistan. The statements of victims
and eyewitnesses are, however, considered primary evi-
dence, while serological or DNA reports are recognised
as corroborative evidence. DNA evidence has not
attained the recognition in the courts of law in
Pakistan which it has achieved in those of developed
countries, such as the USA, UK and other European
countries.2–4
There are different laws which deal with sexual
offences in Pakistan – for example rape is dealt under
section 375 and 376 of Pakistan Penal Code 1860 (PPC,
1860), while anal, oral or any other form of sex is dealt
under section 337 (PPC, 1860). These sections define
the actions classified as sexual crimes and specify the
punishments for these acts. Section 375 (PPC, 1860)
defines rape as the penetration of the genital parts of
a female by a penis. The penetration may or may not
cause physical injury to the genital part of the victim,
1
Dr Panjwani Center for Molecular Medicine and Drug Research,
International Center for Chemical and Biological Sciences, University of
Karachi, Pakistan
2
Advocate, Lahore High Court, Pakistan
3
Center for Professional Studies, Pakistan
4
Post Graduate Institute of Law, University of Lahore, Pakistan
Corresponding author:
Nouman Rasool, International Center for Chemical and Biological
Sciences, University of Karachi, Karachi, 75270, Pakistan.
Email: noumanrasool@gmail.com
2 Medicine, Science and the Law 0(0)
followed by the possible presence of the seminal mate-
rial of the perpetrator. The availability of seminal
material depends upon the condition, including wheth-
er the accused was discharged during coition; and if
discharged, whether he discharged inside the vagina
or outside on the body – for example on the groin,
pubic area, thighs, hips, breasts or belly. If the accused
performs sexual activity using a condom, there is no
chance of obtaining seminal material from the female’s
body. Section 376 (PPC, 1890) describes the punish-
ment for rape, which is death or imprisonment of not
less than ten years, or not more than 25 years. In cases
involving the rape of a minor or a person who is insane,
the offence is punishable by death, or imprisonment for
life and a fine. Moreover, section 376A (PPC, 1860)
also ensures that the identity of the rape victim shall
not be disclosed to the public. Section 377 (PPC, 1860)
deals with other types of sexual activity, categorising
anal and oral sex alongside sex with animals or any
unnatural sexual activity; and punishments are not
less than two years or not more than ten years.
According to this section, the penetration of the penis
into anal or buccal cavities is sufficient to establish
carnal intercourse.
Medical examination of the sexual
assault victim
In cases of sexual assault the medical examination of a
victim is necessary to obtain significant biological evi-
dence to link a suspect to a crime and/or victim.
Section 53A of Criminal Procedure Code 1898
(CrPC, 1898) authorises a police officer to take an
accused (post-arrest) for medical examination to a
nearby government hospital, where a medical examina-
tion is then carried out by a medico-legal officer (MLO)
or casualty medical officer (CMO). For such medical
examinations, the consent of the accused is not man-
datory – that is, the accused cannot refuse to undergo a
medical examination, and the police can use force
where this is deemed necessary. Sections 164-A and B
(CrPC, 1898) deal with the medical examination of a
sexual assault victim. Under these sections it is the duty
of the police to provide legal aid to the victim and a
female victim should be escorted by a female police
officer to the hospital. The examination is also carried
out by female MLO or CMO after obtaining the con-
sent of the victim if she is able to provide it; or after
obtaining the consent of the parent or guardian, if the
victim is a minor, unconscious or insane. Such consent
is a prerequisite for the medical examination, and the
police or MLO/CMO cannot force a victim to undergo
such an examination against their free will.
Issues related to medical examination
of the sexual assault victims
The medical examination of a sexual assault victim is
very important in order to obtain the probative biolog-
ical material of the accused for DNA analysis. Such
medical examinations are conducted upon the request
of police, or upon the direction of the court, and they
are carried out in the nearby hospital. In the major
cities of Pakistan, these hospitals have made arrange-
ments for these medico-legal examinations, whereas in
the countryside the hospitals often lack the necessary
equipment or a female doctor. Therefore, the victim
may have to travel to another city or place (sometimes
more than 50km) to be examined, which may take a
few days. In the majority of rape cases the medical
examination of a victim is conducted more than 72
hours after the assault, for various reasons. These rea-
sons include, but are not limited to, the fear of hostility
and humiliation, shame, social pressure, the cynical
attitude of police or the lack of availability of women
medical officers in the hospital.5
In Pakistan only medical doctors appointed as an
MLO or CMO are legally authorised to conduct med-
ical examinations of the victim and accused.
Unfortunately it is common practice that these doctors
do not in fact conduct these examinations, but instead
they are performed by paramedical staff, despite the
fact that they are neither trained nor authorised to
undertake this work. Often the facts relating to sexual
activity are not documented properly – for example
contradictions of facts are observed in police records
and medico-legal reports. However, the forensic inter-
view of a victim is very important and can lead to the
location of useful biological fluid on submitted evi-
dence material.6,7
In interviews the victim is questioned about the time
since the assault, and whether he/she has had coition
prior to or after the assault. Additional information,
such as whether the victim has douched or taken a
bath, passed urine or defecated, is important in
sexual abuse cases. With the help of this information
a DNA analyst can easily locate biological material of
the accused on the submitted evidence. Often it is
observed that these pieces of information are not sub-
mitted in writing by an MLO/CMO in medical reports.
Moreover, rape kits are not available in most of the
hospitals in Pakistan and medical staff use cotton-
wrapped straw from sweeping brooms (Figure 1(a))
for swabbing vaginal and anal canals. Sometimes just
a cotton clog (i.e. a lump of cotton) (Figure 1(b)) is
used to insert into the vaginal canal of the victim to
collect the seminal material.
Amid the lack of knowledge in advances in DNA
profiling, medical doctors in Pakistan have little
Rasool and Rasool
Figure 1. Different forms of swabs used for the collection of semen from the victim (a) Cotton plugs used as swabs (b) straw from
broom wrapped with cotton.
understanding of how to take swabs for DNA analysis
from genitalia, or from other touched, kissed or
smacked areas on the victim’s body, although it is
reported that cells can be transferred even when one
person shakes hands with another.8 Therefore, if semen
is not deposited inside or outside the body of the
victim, the swabbing of the areas touched/kissed by
the assailant may help to get his biological material.
Swabs taken from the breast, cheeks, neck and other
body parts of the victim can be useful for the DNA
profiling and the identification of the suspect.9
The improper packaging of vaginal and anal swabs
can destroy the DNA on evidence material. It is
observed that MLO/CMO used plastic or glass con-
tainers/bottles to package vaginal or anal swabs,
instead of paper envelopes. The growth of fungus and
other microbes along with a foul smell is being
observed on the swabs when the bottles are opened in
DNA laboratories for analysis. The spores of fungus
and microbes are visible under a microscope when the
slide is prepared for the examination of spermatozoa.
A vagina is a cavity rich in various flora and fauna, and
these microbes can easily grow on wet swabs in such
conditions and may destroy potential evidence.10
Mostly, no seminal material is found on such swabs
because the microbes not only destroy sperm cells but
also vaginal epithelial cells. If biological material is not
completely degraded, few sperm cells can be recovered
from swabs. But a low number of sperm cells would not
give enough DNA to generate a complete DNA profile
for comparison. Additionally, in gang rape cases the
small quantities of male DNA can cause a difficulty
with the correct interpretation of mixtures.11,12
In some parts of the country police think that DNA
profiles obtained from one type of tissue can only be
3
compared with the DNA profile obtained from the
same kind of tissue – that is, the DNA of the seminal
sample can only be compared with the DNA obtained
from semen and not with the DNA of any other tissue
of the person. Therefore, police sometimes coerce the
accused to donate the semen samples by masturbation,
to provide a reference sample. This sample is stored in
glass or plastic containers and sent to the forensic lab-
oratory for analysis; however, it is usually degraded
prior to analysis. The practice of taking a semen
sample in this manner is practiced in many parts of
the country, although it is contrary to the ethics and
law of the land.
In Pakistan it is the practice for doctors to package
all the clothing in a single cheesecloth or paper envelop,
which may pose a threat of cross-contamination. Any
piece of cloth, tissue paper or towel used to clean the
genital area of the victim should be preserved and sent
for the detection of seminal material from the accused.
In the case of menstruation after a rape, the vaginal
swabs are not good sources of seminal material. In such
scenarios these pieces of evidence are useful. It was held
that the presence of stains on trousers (shalwar) along
with a history of injuries on the vagina or anus is con-
clusive proof of rape, even though no seminal material
is found on the swab or clothing.13,14 During the med-
ical examination, combing pubic hairs of the victim (if
these are long) is a good approach to find any hair
foreign to the victim. Such hair may belong to the
accused.
Injuries on the victim’s body
Injuries inflicted on the victim’s body during an assault
to protect oneself are important to prove the
4 Medicine, Science and the Law 0(0)
occurrence of an offence. It is reported that in many
cases of rape, physical signs of penetration or injuries
on genitalia are absent.15 In case of violent rape, inju-
ries may be found on various parts of the body, includ-
ing the genital area, vulva, labia, mons veneries,
clitoris, hymen, pubic hair or anus. In anal sex, injuries
can be observed on the anus, caused as a result of the
penetration of a penis or finger through the anus and
into the rectum. Tearing of the hymen can provide a
clue, but it is not conclusive proof of penetration. It is
reported that there are many other ways which a
hymen can be torn, not just sexual intercourse.
Similarly, it is also reported that the hymen can some-
times not be torn, even after penetration of the penis
into the vagina, while on other occasions a torn hymen
is unable to provide a clue regarding fresh coition.16–18
In Pakistan the MLO/CMO performs the two-finger
test to determine the virginity of the victim. In this
process, she tries to insert two fingers into the victim’s
vagina to check the rupture of the hymen. It is held that
even penetration of one finger can constitute rape and
sometimes the vaginal opening may constrict after
intercourse.19
Interpretation of a DNA report
Forensic DNA testing, also known as DNA profiling
or DNA fingerprinting, is used to establish the identity
of an accused, victim or any other person linked to a
crime. Forensic DNA analysis ends up with three types
of conclusions – that is, inclusion or a match, exclusion
or no match, and inconclusive. When a DNA profile
from evidence material matches with a DNA profile of
a known person – that is, victim or suspect – inclusion
or match is stated in the report. When a DNA profile
from evidence is not consistent with the DNA profile
from known/reference samples, the result of the DNA
test is an exclusion. This means the suspect or victim is
eliminated as being the source of DNA obtained from
evidence material. In some cases it is difficult to reach a
conclusion regarding the contribution of a person to
the DNA profile obtained from the evidence. In such
cases the result of DNA analysis is reported as incon-
clusive. Inconclusive results are usually observed due to
various reasons, including low template DNA or
degraded DNA, or a partial mixture of more than
three contributors. The interpretation of inconclusive
results requires good knowledge, skills and experi-
ence.20–22
It is observed that many in the legal community,
including lawyers and judges, are not properly educat-
ed regarding forensic DNA analysis. Many of them are
not aware of the technical issues relating to forensic
DNA reporting. Sometimes it is difficult for them to
comprehend the exact meaning of the report. As a
result of these limitations, the significance of a DNA
report may be negotiated, especially in low-template
DNA samples, mixed profiles or Y-STR analysis,
when two or more than two accused in a case are pater-
nal relatives.
DNA evidence in the legal system of
Pakistan
Qanun-e-Shahadat Ordinance 1984 (QSO, 1984) deals
with the admissibility of DNA evidence in judicial pro-
ceedings in Pakistan. Article 59 (QSO, 1984) allows the
admissibility of expert opinion in a court of law, con-
sidering it relevant fact. Article 164 (QSO, 1984) deals
with the application of modern devices to obtain the
facts in a case. A DNA report is considered to be an
opinion of an expert on the DNA recovered from evi-
dentiary material. Apart from these, there is no legis-
lation in the form of substantive enactment upon the
admissibility of DNA evidence during a judicial trial.
In finalising the inquiry before trial, serology reports
are a prerequisite under section 510 (CrPC 1898). So,
considering DNA as a chemical, the DNA report is
admissible in judicial proceedings under this section.
Sindh province has inserted two new sections – that
is, 156-C and 156-D – in the Code of Criminal
Procedure, 1898 (CrPC, 1898). According to these sec-
tions, the police are responsible for managing the med-
ical examination of sexual assault victims within 72
hours. The police and forensic laboratories are now
responsible for storing and preserving the biological
evidence obtained from the victims of sexual assault.
In Salman Akram Raja v. Government of the Punjab,23
the Supreme Court opined that the government should
take the necessary measures to get justice for the
assault victim. It was held that the DNA test should
be made mandatory in rape cases, however not much
has been done by the government in this regard to date.
For Khyber Pakhtunkhwa (KP) province, the
Peshawar High Court gave a ruling in rape cases that
DNA testing of the rape victim should be carried out
compulsorily under section 164 (CrPC 1898) and the
Protection of Women (Criminal Law Amendment)
Act, 2006.24
The use of DNA evidence in deciding crimes of
sexual violence has gradually gained more attention
from the courts. In 2011, In Khadim Hussain v. the
State,25 the DNA profile obtained from evidence item
did not match the DNA profiles of the accused, how-
ever the accused was convicted by the trial court and
the decision was maintained by the Federal Shariat
Court. Later in 2013, the Federal Shariat Court of
Pakistan observed that no accused should be convicted
in the cases of rape (Zina) without a DNA report.26
Rasool and Rasool
This judgment laid the foundation for the reliability of
courts on DNA evidence in deciding rape cases in
Pakistan. In the case of Allah Ditta v. the State27 and
Tanveer Ahmad v. the State,28 the courts acquitted the
accused, considering that charges of rape were not
proven through DNA reports. In Yasir and other v.
the State, the accused was tried for the charges of the
commission of rape.29 The DNA from Shalwar (trou-
sers) of the victim matched with the DNA profile of
the accused, therefore the accused was convicted. The
court also considered other pieces of evidence in the
case, which supported the credence of the prosecution’s
proposition. The courts in Pakistan are giving heed to
DNA reports in sex crimes for establishing the crimes.
Moreover, the admissibility of a DNA report in
assault cases remains in doubt, as a result of conflicting
decisions of the apex court. It was held that the opinion
of a victim is of primary importance and the DNA
report cannot substitute its position, although in grant-
ing bail to the accused the court mainly relies upon the
DNA report. If the DNA of the assailant is not found
on vaginal or anal swabs or the clothing of the victim
and there is no other concrete evidence, the courts usu-
ally grant him bail. The courts consider a forensic
DNA report as corroborative evidence or secondary
evidence. In Muhammad Ameen v. the State,30 Lahore
High Court refused to grant post-arrest bail, although
no male DNA was found on a vaginal swab of the
victim. The court had considered the DNA report as
secondary evidence with no legal value because it was
contrary to the primary evidence (victim’s statement).
The accused was an Imam (cleric) in a mosque, who
allegedly raped his student. The student’s father lodged
a First Information Report (FIR) against the accused
of raping his daughter. In this case the court held that
no father would like to falsely implicate a person by
taking the risk of stigmatizing his daughter. In Wishal
Masih v. the State,31 the Lahore High Court upheld a
decision of conviction by the trial court although no
male DNA was obtained from vaginal swabs. The
court opined that a negative DNA report did not sup-
port the defence proposition, since the injuries of the
genital area of the victim mentioned in the medico-legal
report supported the veracity of the statement of the
victim. Similarly, in the Fort Monro gang rape case five
accused were alleged to have raped five girls. The DNA
of one of the accused was found on vaginal swab of one
of the victims, however, regardless of the DNA report,
the trial court acquitted all the suspects because the
victims declined to identify them. So, the presence of
seminal material on the vaginal swab of a victim is of
less evidentiary value compared to the statement of a
victim.33,34 Judicial responses to DNA evidence in
India are the same as those in Pakistan in sexual assault
cases.35 In developed countries, such as the USA, UK
5
and some other European countries, the court mainly
relies upon DNA evidence during trials.
Competency of expert testimony
Over the course of time, DNA evidence has gained
weight in the eye of judges, who started relying on
DNA reports for deciding cases. The admissibility
mainly depends upon the discretion of a judge, who
acts as a gatekeeper and allows the submission when
convinced by the subject matter of the report. There is
no guiding rule or principle available in Pakistani law
which can be used to check the authenticity and qual-
ification of the expert. There are two guiding principles
in America which are considered as standard for
admissibility of forensic evidence – that is, the Frye
test32,33 and Daubert test.34 These two case laws deter-
mine the qualifications, skills, knowledge and experi-
ence of an expert who testifies, along with the
opinion he makes and the technology used in making
such opinion.35 Rule 702 of the Federal Rules of
Evidence USA, formulated based on these two case
laws, clearly explains the possibilities of accepting
forensic evidence during judicial trials, even in the pres-
ence of any discrepancies or shortcomings. Section 293
(CrPC, 1898) of India also deals with the cross exam-
ination of the forensic expert report/testimony in order
to ensure the competency of experts and the authentic-
ity of technology used during examination of the phys-
ical evidence. In the DNA Evidence Act (2016) India
has formulated guiding principles for eradicating short-
comings in the DNA test and in expert opinion. This
Act deals with the data/facts used for testimony and on
principles and procedures used to guide expert opinion.
In Pakistan, section 510 (CrPC 1898) deals with the
admissibility of DNA reports in criminal proceedings.
According to this section, the DNA report is per se
admissible and there is prima facie no need to examine
the expert on voir dire. Nothing is mentioned in this
section related to the qualifications, education or expe-
rience of the expert, or the reliability and credibility of
the method used to generate a DNA report. Amid the
non-uniform standards of analysis in forensic facilities,
the courts in Pakistan are unclear about the criteria
regarding the technical issues associated with the
admissibility of DNA evidence.
DNA databases
Two different kinds of databases are established and
used in forensic DNA analysis. One is a population
database containing allele frequencies of random unre-
lated individuals, while the other is an intelligence data-
base. The population database is used to estimate the
weight of DNA evidence based upon frequencies of
6 Medicine, Science and the Law 0(0)
allele prevalent in a particular population, while a
DNA intelligence database is used to solve a crime by
identifying suspects and linking crimes and criminals
with each other.36 In Pakistan various subpopulation
structures living across the country have a distinctive
genetic makeup. No local population database contain-
ing allelic frequencies of these subpopulations has yet
been developed for use in forensic casework and rela-
tionship testing. There are three laboratories – the
Punjab Forensic Science Agency, Sindh Forensic
DNA and Serology Laboratory, and Liaqat
University of Medical and Health Sciences – which
are routinely doing forensic casework and relatedness
testing for judicial proceedings.37–39 These laboratories
use allele frequencies of Asian populations from the
NIST database.40 Additionally, the sample size for cal-
culating allele frequencies for the Asian population in
STRBase is not very large. As a result of all these
factors, a correction factor h with value 0.03 is used
for statistical calculations.21,41,42 These allele frequen-
cies can be used for casework samples, however serious
issues may arise in determining paternity and related-
ness for the local population.
The primary objective of the forensic DNA intelli-
gence database is to help police in the identification of
the person who was present at a crime scene. The DNA
profile obtained from crime scene samples can help to
link different crimes with each other and with the per-
petrator.43 Such DNA databases have been established
in different countries at a national level and serve as a
vital tool for law enforcement agencies, assisting in the
prevention and detection of crime, and the effective
prosecution and conviction of offenders.44,45 In
Pakistan, no well-managed DNA intelligence database
has been developed to help law enforcement agencies
and prosecution. The functional laboratories have
made their own repositories of in-house-generated
DNA profiles of accused, arrestees, victims, elimination
samples (victim’s husband, family members of a house,
crime scene officers) and profiles generated for paterni-
ty and relatedness in civil matters. At the national level,
no consolidated DNA intelligence database is avail-
able, for optimum use of DNA technology and to
reduce the cost of analysis. Moreover, the prevailing
legislation is inadequate for the development of any
intelligence DNA database in Pakistan.
Conclusion
As in other countries, sex crimes are common in
Pakistan, affecting the lives of hundreds of victims
per annum. The use of modern technology – that is,
forensic DNA analysis – is a vital tool to curb such
crimes. In the past few years several serial rapist and
killers of children were caught by conducting mass
DNA tests in Pakistan. Despite their utility, the biolog-
ical evidence is prone to various threats, starting from
collection to utilisation during the trial in a court. The
faulty packaging of evidence material sometimes
destroys it before analysis. At the national level, there
are no regulations to ensure that forensic facilities
avoid errors and perform uniform and quality analyses.
Without proper quality control measures, it is highly
unlike that we will get the maximum advantage of bio-
logical evidence in sexual assault cases. The DNA
report predominantly influences the investigation, lead-
ing to convictions or the exoneration of accused people
in cases of carnal abuse. In the famous Zainab rape and
murder case, the DNA profiles of more than a thou-
sand males dwelling in the vicinity were generated, and
the perpetrator, named Imran Ali, was identified based
on matching his DNA profile with the profile obtained
from vaginal swabs of the victim. The suspect was con-
victed, sentenced to the death penalty by the trial court
and sustained by the apex court, then finally executed
in 2019. In 2020, an act named as Zainab Alert Bill was
enacted by the parliament of Pakistan to cover sex
crimes against minors/children. This bill ensures
speedy investigation, proper medical examination and
compulsory forensic DNA analysis of evidence with the
limitation of a period of two months to decide the case
in court. According to this Bill, sexual violence against
a child would be penalised by death or imprisonment
for life. The enactment of new laws and amendments in
existing laws dealing with DNA evidence in sexual
assault cases is encouraging successful prosecutions in
establishing a case, especially where no other evidence
(i.e. witnesses) is available. Despite the growing utility
of DNA evidence in judicial proceedings, a good
number of lawyers and judicial officers have little
knowledge regarding the technology behind DNA
analysis. There are a few skilled and learned defence
lawyers available in Pakistan with the ability to exam-
ine the DNA evidence efficiently on voir dire to analyse
its relevancy and credibility. Without an allele frequen-
cy database of the local population there is a threat to
justice due to erroneous statistical calculations, result-
ing in overemphasis on the DNA evidence. The absence
of a proper intelligence database is also another impor-
tant issue that needs to be addressed immediately to
ensure the optimum use of DNA technology. The
establishment of more forensic facilities is required to
avoid backlogs from existing DNA laboratories and
help with the proper treatment of cases in courts.
There should be an authority at the national level,
responsible for making standards and guidelines for
forensic laboratories, to ensure the uniformity and
validity of forensic analysis across the country.
Rasool and Rasool
Contributorship statement
Both authors contributed equally to this study.
Declaration of conflicting interests
The authors declared no potential conflicts of interest with
respect to the research, authorship and/or publication of this
article.
Funding
The authors received no financial support for the research,
authorship and/or publication of this article.
ORCID iD
Nouman Rasool https://orcid.org/0000-0003-0210-5845
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