CAN DNA EVIDENCE LEAD TO CAPITAL

PUNISHMENT: A LOOK AT ZAINAB

ANSARI'S CASE

By

Muhammad Ahmad Pansota

Bar-at-Law, Lahore

The abduction, rape and murder of minor Zainab in January 2018 has raised serious
questions on the admissibility of DNA evidence in the investigation as said evidence apparently
is the only credible evidence available against the accused. The most important question that
now awaits an answer is if the DNA evidence in Zainab's case is admissible and enough to
sentence the accused with capital punishment?

Accused in Zainab's case has been charged with sections 302, 201, 363 and 376 of
Pakistan Penal Code, 1860 ("PPC") and section 7 of Anti-Terrorism Act, 1997 ("ATA"). DNA
evidence is per se admissible under section 9(3) of the Punjab Forensic Science Agency Act,
2007 read with Articles 59 and 164 of Qanun-e-Shahadat Order,1984, dealing with expert
opinion, within contemplation of section 510 Code of Criminal Procedure, 1898 ("CRPC").
Sections 164(A) and 164(B), inserted into CRPC in 2016, enable the authorities to obtain and
use DNA evidence in rape cases. Furthermore, section 27-B of ATA permits admissibility of
electronic and forensic evidence.

Two major categories of cases in Pakistan, where DNA evidence is relied upon, are
legitimacy/paternity cases in civil matters and sexual offences in criminal matters. As far as
the first category is concerned, courts in Pakistan are a bit reluctant to decide questions of
legitimacy or paternity based on DNA evidence, due to the existing provisions in Qanun-e-
Shahadat Order, 1984. Article 128 of the Qanun-e-Shahadat entails that birth during marriage
is conclusive proof of legitimacy. In case of sexual offences, DNA evidence is admissible but
as a corroborative piece of evidence as the same is regarded as an expert opinion, therefore, it
can only be used as a secondary evidence. Section 510, Cr.P.C. allows for the report of
chemical examiner, serologist to be used as evidence without actually calling him in court. The
said section does not envisage DNA which is why the same may be only be admissible if the
maker of the report is present in court and gets the same exhibited on record. In most of the
cases the maker is either reluctant or upon appearance is cross-examined in such a manner that
the whole report is rendered dubious. Supreme Court of Pakistan in the case of Azeem Khan
v. Mujahid Khan (2016 SCMR 274) held that DNA has merely corroboratory value and cannot
be regarded as primary evidence.

The law relating to obtaining blood samples and conducting DNA test came up for
consideration in various cases. Supreme Court of Pakistan in the case of Salman Akram Raja
and another v. Government of Punjab through Chief Secretary. Civil Secretariat. Lahore and
others (2013 SCMR 203) held that the Court has power to order for DNA test or any blood test
in order to ascertain the truthfulness of allegations but such order must be passed with the
consent of a party; the order cannot be made in routine, which view was followed in the case
of Mst. Shamim Akhtar v. Additional District Judge, Gujranwala and another (PLD 2015
Lahore 500), Indian Supreme Court in the case of Goutam Kundu v. The State of W.B (AIR
1993 SC 2295) held that even if there is legislation which could compel a blood test, unless

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and until there is consent of the concerned person, he cannot be compelled to go to the hospital
for giving blood test.

There is yet another aspect of the case which has to be kept in mind i.e. authenticity and
accuracy of the test in our part of the world. Considering this, it was held in the case of Khizar
Hayat v. Additional District Judge. Kabirwala and 2 others (PLD 2010 Lahore 422) that human
error in judgment in conducting of this test cannot be ruled out in our system. Other cases have
highlighted a difference in approach by the courts in Pakistan. In the case of Rashid Minhas v.
M. Fayaz (2012 PCr.LJ 816 (FSC)), the accused was charged with sodomy. Medico legal report
and the chemical examination both confirmed the penetration. Victim also identified the
accused as the only person involved. The trial court stated that the DNA report is of no
assistance to the accused; still acquitted the accused. The Appellate court reversed the order
and convicted the accused. Whereas, in the case of Mazhar v. The State (2012 YLR 652 (FSC))
the Court held that the DNA test cannot provide any benefit to the accused as the prosecution
has already established their case beyond reasonable doubt as per requirement of the criminal
law.

In Pakistan there is lack of proper legislation on DNA testing like other countries of the
world. In United Kingdom, section 45 of Human Tissue Act, 2004 states that it is an offence
to possess without appropriate consent any human bodily material with the intent of analysing
its DNA. In Germany, under the Gene Diagnostics Act of 2009, secret paternity testing is
illegal. Any genetic testing done without the other parent's consent is punishable with fine. In
Canada the Standards Council of Canada regulates paternity testing in Canada whereby
laboratories are ISO 17025-approved and only a handful of labs have this approval, and it is
recommended that testing is performed in these labs. In Philippines DNA Paternity Testing for
official purposes, such as child support and inheritance disputes, must follow the Rule on DNA
Evidence A.M. No.06-11-5-SC. In France without a court order the express consent of the
person must be obtained in writing before carrying out the DNA examination, after the person
has been duly informed of its nature and its purpose. In United States of America, paternity
testing is fully legal, and fathers may test their children without the consent or knowledge of
the mother however only a court-ordered paternity test may be used as evidence in court
proceedings.

Even in the countries mentioned above questions are raised about authenticity of DNA
testing. The Courts in Pakistan have adopted a different approach. It is also observed that in
other criminal cases such as theft, homicide the use of DNA evidence is almost non-existent in
Pakistan. One of the most important factor to be considered is that cases can not solely be
decided by relying on expert evidence as a corroborative piece of evidence and in the absence
of primary evidence. In sexual offences, the DNA evidence although admissible, varies from
case to case.

There is no effective legal framework specifically designed for the admissibility of

DNA evidence. Judges have to decide cases keeping in mind the existing provisions under the
Pakistan Penal Code, 1860, the Qanun-e-Shahadat Order, 1984, the Code of Criminal
Procedure, 1898 and other enabling statutes on the subject. There is not enough space left for
the admissibility of DNA evidence; but it still varies from one case to another. DNA evidence
must immediately be included in section 510, Cr.P.C. so that the same becomes admissible in
evidence per se.

Provincial Governments of Sindh and Punjab have recently announced to put forward
the Bills in order to make DNA primary evidence at provincial level, despite being opposed by
the Islamic Ideology Council ("IIC"). According to the IIC such move would be against the

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Injunctions of Islam/Islamic laws which requires four witnesses to witness the offence of
rape/fornication etc.

It can be argued successfully that although DNA evidence is admissible but as a

corroborative evidence, which alone cannot be used to determine the fate of a case and I am
afraid that in the presence of only DNA evidence court might find it difficult to sentence the
accused in Zainab's case with capital punishment.

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