Assessment of the application of DNA evidence in context of Islamic Criminal Law

In this day and age, DNA evidence is the ultimate opportunity a criminal lawyer would use to prove a conviction under any criminal offence. Clearly if DNA analysis could be carried out on all the probative samples, then the identification of real suspects or exclusion of individuals would undoubtedly accelerate the criminal investigations[1]. However, use of evidence in the form of forensics is under strong debate within the context of Islamic criminal law, thus the objective of this research paper is to analyze the usage of DNA evidence within the categories specified above.

Islamic Law looks at the issue of evidence in two different jurisdictions due to the different outcomes, the use of evidence may result in. These two jurisdictions are namely, civil and criminal law. The present day may be defined as a collection of rules for ascertaining the answers to questions of fact. Evidence falls in various forms namely, documentary evidence, oral evidence, and expert evidence. Expert evidence can also be further divided into forensic evidence. This would be the main area of contention for the purposes of the discussion.

Principles of Islamic Jurisprudence regarding law of evidence in criminal law:

Islamic criminal is divided into three main categories into which different punishments are articulated with reference to each offense. The first category is Hadd which means ‘fixed’ or ‘limited’ on literal interpretation. This originates from The Quran. The second category of punishment is known as Tazir and it is recognised under various state legislations such as Pakistan Penal Code. Mainly this is a discretionary offence. Finally, the third offense is known as Qisas which operates on the principles of retributive justice.[2]

Islamic rules of evidence appear to be quite similar to those stated supra. It is defined as the evident indication of the commission of an offense. This evidence can either be, a confession by the offender, a solemn oath taken by the plaintiff, or a testimony given by the plaintiff. The evidence required for a conviction differs from one offense to another.

If one is to analyze the Hadd evidential requirements, can be seen through the provisions of the Quran. It specifically mentions that in order to prove an offence of adultery (Zina), the accuser must bring forward four sane male witnesses of high moral probity, as evidence. If the accuser fails to produce them, the law will deem him guilty of false accusation of adultery (Qadhf)[3]. However, the question primarily arises whether these evidential requirements cater to the offence of zina-bil-jabr? As we shall see later on, an offence of Zina-bil-jabr is liable under the category of Tazir and therefore all evidential requirements are the same for state offence.

On the other hand a victim of homicide need only produce the testimony of two witnesses.

Form of evidence admissible in Islamic Civil Law:

Unlike Islamic Criminal law, civil law is not categorized in any form of divisions. In any Islamic court, the form of evidence which is admissible in order to prove an offense of Zina-bil-jabar or Homicide, is mainly testimonial. To give evidence before an Islamic court the witnesses must possess the quality of adala, i.e. to be a Muslim of the highest moral probity. This appears to be in line with the best evidence rule which is to produce the best evidence possible.

In most cases the testimony of two adult witnesses was required, although in cases involving property the testimony of one witness and the oath of the plaintiff was considered sufficient. Documentary evidence played little part in proceedings before the court in the early days of Islam, despite the verse in Qur’an Chapter 11 verse 282 which enjoins Muslims to record debts in writing.

In Islamic legal theory the most important form of evidence was not a written document but the testimony of a witness. Islamic jurists distrusted documents because they could be tampered with or could be forged. For this reason the jurists accepted only two legal means of proof: the testimony of a witness, a confession and an oath. The reluctance of the jurists to accept written documents as evidence brought them in conflict both with the Qur’an, which enjoins the writing down of the contents of a contract, and with general legal and commercial practice, where written documents were widely used. Thus one can see that offences liable to hadd punishments did/do not have room for the use of circumstantial evidence such as DNA despite the growing developments science and technology.

Islamic procedural law developed a compromise to overcome this conflict: documentary evidence was adduced from the proof through a witness.[4] The use of witnesses and the oath is therefore an important area of Islamic procedural law. The person who makes a claim (the plaintiff) has to be able to prove his claim through witnesses. Confronted with a claim the defendant is required to take an oath denying the claim. If he refuses to take the oath judgment is given for the plaintiff. Otherwise the matter will proceed to trial where the plaintiff calls his witnesses.

The Qadi[5] examines the reliability of witnesses on the basis of their moral standing and carries discretion to reject the evidence depending on the result of his enquiry. As a result in actual legal practice professional witnesses emerged whose moral standing and integrity had been established by a Qadi and whose testimony could therefore not be rejected. Their function was not unlike the functions of a notary in English law.

The second method of ensuring that the oral evidence in the forms of testimony given in court represented the truth is to require witnesses to take an oath. The oath taken by the plaintiff or the defendant has to be supported by witnesses in certain circumstances. The support of witnesses is required for cases involving serious allegations such as those aforementioned.[6]

So far these procedures offer little help for the ongoing question of DNA falling as evidence in the context of Islamic Criminal law or Civil law. It further raises questions such as whether DNA evidence holds any evidentiary value at all[7]. The questions to these answers can be assessed with the help of a comparative analysis of the country of Pakistan.

The laws of evidence in Pakistan regarding admissibility:

The correct identification of criminals and other individuals have always been one of the most important problems in criminal and civil investigations. Currently in Pakistan there is no specific statute dealing with the DNA testing while on the contrary we can find such provisions in Britain and American legislation. In this regard, the courts may rely on the expert evidence provision in the Qanun-e-Shahadat. Article 17[8] is used to bring forward testimony of one man or woman in criminal offences liable to Tazir.

Whereas the provision of Article 164[9], which provides for any evidence being permissible where it concerns modern devices for civil law. In order to answer the question of whether the application of DNA evidence is permissible, the Quran itself answers it perfectly. It does not seem to forbid the admissibility of scientific evidence.

The provisions of Offense of Zina (Enforcement of Hadood) Ordinance, also stipulate some powers for the Court to allow DNA evidence. Thus to some extent proves that DNA evidence is admissible as far as Pakistan Islamic Criminal Procedural law is concerned. There are many issues presented at trial that involve scientific knowledge, or are so complicated or beyond the common knowledge of the judiciary that someone with special skill or education is required to help the judges understand the evidence or matter in issue. The most evident case is that of Muhammad Shahid Sahil v. The State[10]. In this case the petitioner had filed a suit for maintenance for the child[11]. The respondent alleged accusations upon the petitioner for rape as a result of which the petitioner had conceived. Both the parties were relegated to DNA testing in order to prove through conclusive evidence the paternity of the progeny.[12] Although it is common knowledge that when the DNA test report is produced in a trial court, it could be received as evidence summoning the expert to prove what it stipulates. This encourages an expeditious system in order to ascertain the correct father. It also provides an opportunity for the accused to cross-examine the evidence admitted in the court. The trial court was directed to proceed in accordance with the law after the DNA test had been admitted as evidence.

However, the aforementioned case had over-ruled the judgement of Muhammad Azhar v. The State[13], in which the courts took the view that DNA tests are admissible, however, only in the form of supporting evidence which is equally important for a husband to prove an allegation of Zina against his wife. He may also use it to justify his oath as taken under the prescribed manner in Surah Al Noor[14]. The DNA test also serves to determine the parentage of a child for the purposes of Zina. However, if one stops here one would think there is no use of DNA evidence as circumstantial evidence for offences liable to Hadd or Tazir

Previously, the offence of Zina-bil-jabr fell under the provisions of Zina punishable under the Hadood Laws. Currently, this position has now been amended. Offence of Rape[15] is now pushed back into the Pakistan Penal Code by virtue of Protection of Women’s Act 2006[16].

The application of the above provisions can be observed in Salman Akram Khawaja v. Government of Punjab[17]. It put the aforementioned debate into a neat and concise form of what may be counted as law on the admissibility of DNA tests as evidence. It quoted that the judges in Muhammed Shahid Sahil v. The State over-ruled the approach taken in Muhammed Azhar for reasons including the need for an effective justice system[18].

As mentioned earlier, the DNA tests is also seen as an instrument used to prove the parentage of a child. The case of Khizer Hayat v. Additional District Judge Kabirwala[19] affirms the application of Article 128 of Qanun-e-Shahadat. In this case, the parentage could not be proved by the use of the DNA evidence. The parentage instead was conclusive of the valid marriage which continued, furthermore, the plaintiff remained unmarried two years after the dissolution of the marriage which lead to the conclusion that the minor belonged to the defendant. The learned judges held that due to insufficient means used to derive DNA tests, any mistake committed would most likely stigmatise the minor for the rest of his life. Thus a direction to appear for DNA examinations was not directed. The defendant failed to disprove legitimacy and was thusly made to pay maintenance. From this case one can see that commission of a criminal offence can tap into claims of maintenance and parentage which fall in the Civil law domain.

A need to reform the application of DNA evidence in Pakistani Courts:

Throughout the aforementioned debate it appears that circumstances in which DNA testing may be used only pertain to state offences in the form of circumstantial evidence and not primary evidence. Thus one may question whether it is about time the evidential laws governing forensics ought to reform the approach taken regarding DNA evidence.

Recently, the case of Muhammad Shahid Sahil, faced grave criticism by the Council of Islamic Ideology[20]. The Council is an advisory body which may recommend laws, which it deems Islamic, to the Parliament. The Council stated that DNA evidence in rape cases is not according to Shariat. Thus it should only be used as supporting evidence in order to prove an offense of rape or homicide. However, if grave thought is given to this proposition, it seems that the Council is oblivious to the possible consequences this ruling may have. These consequences may include stigmatising a child wrongfully where a DNA test would possibly be useful to prove parentage. It may also stigmatise the mother as well who could fall foul of bringing four witnesses to prove rape unless it publicly done so. The mother would self-invite the punishment of false accusation[21], just as it did in the case of Muhammed Sahil.

The council faced grave criticism by the Human Rights Commission of Pakistan, which stated in its latest statement that rape is on a sharp rise in the country and only in Lahore 113 cases of rape including 32 gang rape cases have been reported so far this year. Thus the need for DNA testing is tantamount to identify rapists and murders. This seems an implicit call for reform of the laws in regard to DNA application.

In a meeting by a Women’s forum, it was held that the Council had missed out in considering that identification of rapists is vital to the civil society and using DNA tests was in accordance with the modern day society. Regarding the current functioning of CII, the participants debated the existence of such a body. The need was to change the mindset.

What, in any sane person’s opinion, the Council has done is misread or misinterpreted the Quran which guides courts as to evidence being permissible, it has not in way or sort forbidden the use of modern techniques to full-fill the demands of justice. In conjunction to this, the court in Salman Akram Khwaja rightly pointed out that tactical delays, pre-meditation and improvements can be made if scientific and modern methods can be resorted to, for quick disposal on the complainant’s of arguments. But this cannot cater to offences such as Zina (adultery) liable to Hadd.[22]

Conclusion:

At the outset of the reasonable assessment, it seems that punishments under criminal law for the purposes of Hadd offences, courts are reluctant to take up forensic evidence i.e. DNA evidence. Furthermore if a women cannot prove through DNA (since it has a chance to incur errors) that she has been raped, she may self-invite the offence of false accusation upon herself as previously stated.

Whereas in cases of parentage[23], this offers little help to determine whether DNA evidence ought to be used as primary or secondary evidence in the cases of rape or homicide. All leading judgments only concerned the offence of adultery as opposed to rape. It may be that victims of rape may not have reported so.

The only favourable circumstance in which DNA evidence can be used is civil law. It is possible that DNA evidence could fall as a ‘modern device’ under Art 164 of Qanun-e-Shahadat. This states that evidence in the form of modern devices are admissible and so DNA evidence has limitations as the law requires truth within the context of the legal merits while science requires the validated technology and unanimity among theorist to extract the truth.[24]

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Bibliography

Statutes

• Qanun-e-Shahdat 1984
• Offence of Zina (Enforcement of Hadood) Oordinance
• Protection of Women’s Act 2006

Case Law

• Muhammad Shahid Sahil v. The State
• Salman Akram Khawaja v. Government of Punjab
• Khizer Hayat v. Additional District Judge Kabirwala
• Muhammad Azhar v. The State

Books

• Mahmood M. The Qanun-e-Shahadat Order, 1984. 4^th 2006 Pakistan Law Times Publications
• Subject Guide Introduction to Islamic Law University of London International Programmes.

Websites

• http://www.dawn.com/news/1044879
• http://images.thenews.com.pk/15-04-2013/ethenews/e-171401.htm
• http://joshandmakinternational.com/recent-cases-on-dna-paternity-testing-in-pakistan/
• http://www.pljlawsite.com/2011art31.htm
• http://dailythepatriot.com/the-forensic-dna-evidence-in-criminal-investigations/

Articles

• ASHRAF, A. Advocate High Court LL.M., M.A., DIPL Evidentiary Value of DNA 2011 article 31
• Khan, Dr.M. (2015) ‘The forensic DNA evidence in criminal investigations’, The Patriot, 26 May
• Imran, T. (2013) ‘CII reviews ruling of DNA evidence in rap cases’ The Dawn, 13 September

[1] Khan, Dr.M. (2015) ‘The forensic DNA evidence in criminal investigations’, The Patriot, 26 May

[2] ‘An eye for an eye

[3] Al-Quran Chapter 24 verse 4-5

[4] Subject Guide Introduction to Islamic Law University of London International Programmes.

[5] Arabic name given to a judge

[6] Rape and Homicide

[7] ASHRAF, A. Advocate High Court LL.M., M.A., DIPL Evidentiary Value of DNA 2011 article 31

[8] Qanun-e-Shahadat 1984

[9] Ibid

[10] 2010 PLD 215 Federal Shariat Court

[11] The child was born out of rape

[12] The parties were directed to appear before the chemical examiner, CAME (Centre for Applies Molecular Biology) Laboratories

[13] PLD 2005 Lahore 589

[14] Para 18 (ibid)

[15] Zina-bil-jabar

[16] Section 375 and Section 376

[17] PLJ 2010 SC 215

[18] By effective, one may refer to a time-saving approach

[19] PLD 2010 Lahore High Court 422

[20] Imran, T. (2013) ‘CII reviews ruling of DNA evidence in rap cases’ The Dawn, 13 September

[21] Qadhf

[22] The hadd punishment is conservative and is given textualist approach, it is understandable not to use the DNA as circumstantial for it could lead to stigmatisation of a minor born out of lawful wedlock.

[23] Which may arise due to commission of Tazir offence by defendant such as Zina-bil-jabr, where the plaintiff may claim maintenance for the minor born out of rape.

[24] Supra footnote (1)