DNA Evidence in the Courts
Tahir Shabbir
OVER the past century, human beings are continuously embarking new path in the science by inventing and formulating new method and technologies, one of the aspect of it was the discovery of DNA and its widespread application in the Courts. However, the acceptance of any technology in the courts all over the world is not easy and straightforward. The leading cases of the judiciary decides the applicability of the new technology in the courtroom which later sets the precedents. Before moving further, we would be looking at the reliability of DNA evidence in the other jurisdictions. In US, the first case where DNA was accepted as an evidence was Andrews v. State of Florida in 1987. In this case, Tommie Lee Andrews was suspected in more than twenty assaults in the area of Orlando. Scientist from Lifecodes Corporation collected the semen from the crime scene and connect it with the DNA of perpetrator. At initial stage he was convicted for rape and assault and gave a sentence of twenty-two years but later when his DNA matched the crime scenes of others previous victims his sentence was increase to one hundred years.
Similarly, in the United Kingdom the first person who was investigated by using DNA evidence was not found guilty but rather an innocent. In the case of Colin Pitchfork, the perpetrator was living in the town Narborough in 1983 where the body of the teenager who was 15 years old found as dead and raped, after 3 years another body of the girl also found as dead and raped. The police had clear indication that both crime had done by the same person. Meanwhile the suspect named as Richard Buckland confessed to the murder of the 2nd victim and insisted that he did not kill the first victim named as Lynda Mann. The police started further investigation by collecting the blood samples of males, living in that town and it was found that the real perpetrator was Pitchfork whose DNA had matched with both the dead bodies thus he was sentenced to 30 years in jail. These both cases set the precedent in the UK and US to use reliability of DNA evidence in the courts.
CASE OF PAKISTAN:
Coming to Pakistan there isn’t any particular statue or act which deals with the applicability of DNA evidence but DNA evidence evaluated by article 59 and 164 of the Qanoon-e-Shahadat order. Article 59 of Qanoon-e-shahadat states as:
“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; the opinions upon that point of persons especially skilled in such foreign law science or art, or in questions as to identity of hand-writing or finger impressions-are relevant facts. Such persons are called experts” and Article 164 as “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.”
Upon looking at the different cases of Pakistan, courts in the country only accepts the DNA evidence as a corroboratory but not as the primary evidence which means that all the other evidence of the case would be taken into account including DNA and then the court would reach to a conclusion. This is because of the several factors which include the un-professionalism in the conduction of the investigation and medical reports by doctors and police. Because of these factors the courts use the dual methodology as if the DNA reports matches, the prosecution case becomes more effective and strong but if it does not match the prosecution could still rely on the circumstantial evidences. In the case of Zahid and another v. the State (2020 SCMR 590 SC), three accused were brought before the court in the allegation of the rape. The lady doctor found the marks of the violence on the victim’s body. Justice Faez Isa stated that “as regards the absence of DNA reports, this is not sufficient to secure an acquittal because there was substantial corroboratory evidence to secure the convection of the perpetrators beyond the shadow of reasonable doubt.” Similarly, in the case of Haji Ahmed v. the State (1975 SCMR 69) the conviction of the father was sustained by the court in the absence of DNA reports where he molested his own step-daughter.
In Farooq Ahmed v. state (PLD 2020 SC 313) the forensic comparison of the semen recover from the victim clothes and body had not compared with the perpetrator DNA. The court after several hearing concluded as the victim at the time of the incident was 7 to 8 years old and the judge of the trail court before recording her testimony asked several question from the minor girl which indicated that she was mature enough to testify and she was also cross-examined by the counsel for accused as well. Thus the victim alone proved to be a reliable witness and the prosecution proved the case beyond the reasonable doubt without the need of DNA.
However, in the recent case of Ali Haider Alias Papu v. Jameel Hussain and others (PLD 2021 SC 362), Justice Syed Mansoor Ali Shah sheds light on the significance of the DNA evidence. The fact of the case was that the perpetrator rapped and then murder the eight years old Ramsha Bibi who left her house for the summer tuition. The court relied upon on four main evidences (i) the testimony of the Jabbar Hussain (PW-6) and Tufail Shah (PW-7) who had seen the perpetrator coming out of the place of incident (ii) the extra-judicial confession of the perpetrator who admitted the murder and rape (iii) the statement of Dr. Sunia and the medical evidence including post-mortem report conducted by the lady doctor and (iv) the matching of the vaginal swabs and swabs obtained from the neck of the deceased which matched the DNA of the perpetrator. Justice Shah stated that,
“It might be useful to underline the role of the science, modern forensic techniques and devices under our criminal justice system. For the law to serve people in this technology complex society, courts need to understand and be open to science and its principles, tools and techniques. Legal decision of the courts must fall within the boundaries of the scientific sound knowledge. A judge and more so a trial judge acts as a gatekeeper of the scientific evidences and must therefore enjoy a good sense and understanding of science. As science grows so will the forensic technologies, tools and devices therefore courts must be open to development in forensic science and embrace new techniques and devices to resolve disputes, provided the said techniques and device is well established and widely accepted in the scientific community as credible and reliable.”
To summarize, the importance of DNA has gain importance in the eyes of judges over time. The judges act as a gatekeeper in the acceptance of the DNA reports. The main reason for accepting the DNA reports along with the other circumstantial evidence is because of the poor management in terms of collecting and preservation of DNA by the Police and health department. Currently, only the National Forensic science agency and Panjab Forensic science agency are working satisfactorily. In Sindh, the DNA testing facility is only available in Jamshoro and work has started on DNA testing in Karachi University as well by the Sindh government. In Baluchistan, no single laboratory is present yet to test the DNA reports although for the establishment of it the act was passed in 2015 in the Baluchistan assembly, still no further worked has been done. Based on the judges’ decisions, we can assume that in upcoming years, the Superior judiciary will begin to employ DNA as primary evidence in rape and murder cases.
The writer is a third-year law student at ZFL.
Published in ZU-BLAWGS, August 10th, 2021