DNA as evidence

November 17, 2019

A DNA test may be irrefutable science, but without a clear-cut policy on admissibility in court, the decision is left to the discretion of judges

“Every month, we get 50 to 100 cases seeking DNA tests to determine parenthood, legitimate status of offspring for eligibility of maintenance and property succession,” says Qazi Laiq, the technical head of the DNA department in PFSA (Punjab Forensic Science Agency).

This, he says, is because most people are now convinced of the accuracy of DNA evidence.“In pregnancy cases when it is meant to determine fatherhood, we have the most advanced technology ‘genetic amniocentesis’ which provides information about the baby’s genetic makeup. Amniocentesis collects DNA from the fetus that can then be compared to the DNA from the potential father,” he says. Even for a five-week pregnancy, the test produces results.

Laiq says that the PFSA was also referred a case in which newborns were mixed up due to tagging errors at the maternity section of a hospital. The case was resolved using DNA tests, he says.

Unidentified bodies have also been identified through DNA procedure on the request of bereaved families. He cites the case of the Ahmedpur East tragedy on the National Highway in Bahawalpur district which claimed 100 lives on June 25, 2017. Most victims, he says, had been burnt so badly that it was difficult to identify them.

“A crisis ensued as families failed to identify their loved ones. We took 400 DNA samples and processed them. These tests helped us identify the deceased,” he says.

On a query regarding the shortage of DNA kits, he says that the suggestion was ungrounded and false, saying the PFSA has never faced a scarcity of DNA kits. Requisitions were submitted to buy new DNA kits and other required items on a yearly basis.

“We have an ample stock, the question of scarcity has not risen yet,” he says.

Section supervisor Nasir Siddiq says that the test is costly.

“The cost of proving or disproving one sample is approximately Rs 0.50 million,” he reveals.

The legal system, however, does not have a clear-cut stance on the admissibility of DNA evidence in family cases. The reason is that Pakistan does not have specific laws that outline the worth of DNA test as evidence. Without a specific ruling on admissibility, much is left to the judges’ discretion.

At present, DNA evidence is evaluated against the backdrop of Articles 59 and 164 of the Qanun-i-Shahadat Order (QSA) 1984. This jurisprudence brands DNA as secondary evidence despite its high accuracy. Paternity test is a sensitive issue and has many legal and social consequences. It is also influenced by religious dynamics under Muslim Personal Law. DNA’s admissibility as evidence is a complex question.

In paternity cases where a child’s lineage is questioned, courts can discourage the DNA test quoting Article 128 of the QSO. According to Article 128 of the QSA, a child born after six lunar months of marriage and within two years after dissolution of marriage will be regarded legitimate and attributed to his/her assumed father. According to the said provision, this is regarded ‘conclusive’ and no evidence can be admitted to refute it. However, in cases that are to determine paternity in property cases, DNA evidence is sometimes welcomed. It depends on how a judge interprets evidence.

A study titled DNA evidence in Pakistan courts: An Analysis in LUMS Law Journal mentions Muhammad Arshad v Sughran Bibi 2008, a case in which 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 requesting 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 the 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. Eventually, the plea for a DNA test was turned down.

In Sharafat Ali Ashraf v Additional District Judge, Bahawalpur, 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 that the respondent and the daughter were entitled to maintenance, and the appellate courts upheld this decision. Thereafter, the petitioner contended before the Supreme Court that the lower courts were guilty of gross injustice by not allowing a DNA test. But, the petition was put to rest on the basis of Article 128 of QSO.

In the case of Malik Muhammad Rafique v Tanveer Jahan 2015, the issue of paternity was pursued not by the father but by a paternal uncle. The father was not alive when the matter came up before the courts. The uncle’s stake in the deceased’s property motivated him to challenge the paternity of the deceased’s son. The High Court declined the plea to order a DNA test.

“As per approaches practiced in Islam and Shariat Law, courts refrain from declaring a child ‘illegitimate’ on the basis of a DNA test. There is also the apprehension that in case DNA tests are allowed for the purpose, the society will plunge into chaos,” says legal expert Rana Rizwan.

The writer is a journalist

DNA as evidence in Pakistan: Punjab lab grapples with cases amid legal concerns