Trends of the DNA (Deoxyribonucleic Acid) Evidence in India and Pakistan

Transcription

1 Trends of the DNA (Deoxyribonucleic Acid) Evidence in India and Pakistan 1 Muhammad Ramzan, 2 Syed Muhammad Uzair Iqbal, 3 Ilahi Buksh, 4 Laraib Zara 1 Principal, Toppers Law College, Lahore, Pakistan 2 Principal, Libra College of Law, DIMT Tower, Paudwala, Rajawala Road, Selaqui, Dehradun (Uttarakhand), India 3 Ph.D (Law) Scholar, University of Malaya, Malaysia 4 LL. M, Scholar, University of Punjab, Lahore, Pakistan Abstract: The evolution in the criminal investigation system which is based on modern techniques is supporting the courts in the process of fair trial. The DNA (deoxyribonucleic acid) test is based on forensic science; with the help of this test involvement or innocence of the accused can be determined in specific cases. The DNA testing is also helpful for the innocent people who are wrongly involved in the criminal case by the complainant party. Further, the DNA evidence supporting the investigation to reach the conclusion of the case, it is also helpful to prevent the illegal punishment. The Indian and Pakistani courts have apprehensions on the DNA evidence regarding the validity and admissibility in the eyes of law. This paper analyzes the DNA testing methodologies and observation of the Higher Courts in India and Pakistan, whether the DNA test is an exclusive proof, or just an adequate proof to supplement as corroborative evidence and discuss the legal points on the basis of which the Indian and Pakistani courts are reluctant to appreciate this as a major piece of evidence. Keywords. DNA evidence, Forensic science, methodology, court observation. 1. Introduction The DNA (Deoxyribonucleic Acid) evidence is playing an important role to find out the reality and helping the investigating agencies and courts as well,to reach the conclusion of the case. DNA (Deoxyribonucleic Acid) is one of the evolution has its milestones in the hierarchy of life from oxygen, water to nucleic acids. DNA (deoxyribonucleic acid) is the most complex higher-functioning nucleic acid molecule in the order of life. It is the system which helps to know about the human body and its function. It has various types of chromosomes are available in different cells. As it is present in each cell of the human body and properly help to decide the issue as a valid piece of evidence before the trial court.forensic sciences have embraced this new advent as an axiomatic marker of evidence. It is held as most efficient of technologies available to trial evidence and is one of the admissible pieces of evidence in the eyes of law, as Laboratory analysis of DNA. Crimes that were deemed unsolvable by vintage forensic methods fall under amid of scientific forensic applications now. Forensic DNA evidence is helping to exonerate innocents and incubate wrongdoers. Talking about human DNA potential, it is well studied that a bare touch by humans can transfer of millions of cells, which would be helpful to reach the conclusion about the involvement of the accused in the incident or help the innocent who was wrongly involved in any case.

2 The DNA is functioning like software, which provides the necessary knowledge about the human or his future conditions. 1 In criminal cases, there is a tough job to reach the conclusion regarding the testimony as well as admissibility of the evidence, the material (case property) which is taken into the possession during investigation to prove the case. The evidence which is collected on the bases of the DNA is a valuable and sufficient piece of evidence to conclude the criminal case. The human genetic difference is infinitesimal. About 99.9% DNA of all humans is the same. It differs at the 0.1% level in total volume. This 0.1% evolutionary difference 2 has its bases in genetic evolution or anomalies like genetic drift, 3 natural selection, 4 founder effect, 5 genetic mutations, 6 etc. Moreover, the DNA has to be separated into three types Human chromosomes arranged by size. The Largest being Chromosome 1, and the smallest being chromosome 22. Normal human cells contain two of each chromosome, a total 46 chromosomes. Only one of each pair is shown here. Gametes have 23 chromosomes, half of normal chromosomes from each parent and one sex chromosome. 7 Figure 1.1 Currently, most of the crimes are sophisticated, committed through sharp mind and criminals. The same cannot be traced out help of modern, scientific and latest technology. The DNA evidence is supporting the basic evidence of the case as a collaborating piece of evidence. But, sometimes it conflicts with basic evidence, in this situation the courts have question regarding the admissibility of this type of evidence. Because in India and Pakistan, there are so many problems like to conduct of this DNA test, equipment and incompetency of the person who is conducting this test. Sometimes we have observed that the sample taken from the place of occurrence after the lapse of provided time of the DNA test. Due to these mistakes, the DNA evidence is not useful to conclude the case, in this regards the courts are not much consider this 1 Andrei Semikhodskii, Dealing with DNA Evidence: A Legal Guide, 1st Ed. 2007, New York 2 Gould, S.J., The structure of evolutionary theory. Harvard University Press 3 Crow, J.F. and Kimura, M., 1970.An Introduction to Population Genetics Theory.An introduction to population genetics theory. 4 Bonner, J.T., 1988.The evolution of complexity by means of natural selection.princeton University Press. 5 Provine, W. B. (2004). "Ernst Mayr: Genetics and speciation". Genetics 167 (3): PMC PMID Hartl, D.L., Clark, A.G. and Clark, A.G., Principles of population genetics (Vol. 116). Sunderland: Sinauer associates. 7 This figure of Human chromosomes has been taken from the following source < QmlvLTA4LTAyLXNleC1jaHJvbW9zb21l> accessed on July 6, 2014.

3 type of evidence. Further, courts consider the DNA evidence as an expert opinion, if that evidence is a supporting piece of evidence. 2. The trends of the Higher Courts of India regarding the appreciation of the DNA evidence. The Indian courts are giving more wattage of the DNA evidence as compared to Pakistan.The Indian courts started to decide the cases on the evidence which collect through the latest techniques earlier than Pakistan.The Indian courts have broad view regarding admissibility and validity of the DNA evidence. Section 45, the Evidence Act of India, 8 is related to the this type of evidence. Opinions of the Indian courts regarding this type of evidence are based on rational. The court discussed about the validity regarding the DNA evidence as an expert opinion in the Hargavind Soni petition. The court observed that the evidence which is based on the DNA test regarding to clear the paternity of a baby through blood testing is sufficient piece of evidence to prove the case. Further, without consent of the party, this test cannot be conducted. 9 In another case, rape has been committed with young girl, due to that she becomes a pregnant. The high court of Madras, India observed that through the DNA evidence the investigation of this case has to be completed and the same could be helpful to resolve the case. 10 There is no special legislation or rules to judge the evidence in the case of DNA, whether it is admissible or inadmissible? But, the only source we have the court decisions and Evidence Act, regarding the admissibility of the evidence. The Indian apex court stated regarding the protection of the human rights of the citizens, but only can be restricted on the special grounds of public interest. 11 In another decision of the Supreme Court of India, stated that the right of privacy is not provided by the constitution. 12 The Court directed to the Congress Leader that a DNA test has importance regarding the admissibility of evidence. On the other hand, any specific legislation is not available regarding DNA, which provide a guideline to conduct the DNA test in India. The question of admissibility of DNA is under the question of the civil and criminal courts in India, but on this issue the court must evaluate the evidence carefully. 13 There is no specific legislation available in India to determine the validity of the DNA evidence. The courts only relied upon the previous decisions of the Indian higher courts. In absence of proper law regarding the DNA testing, the courts examined the DNA evidence in accordance with the evidence act. 3. The Judicial Trends in Pakistan regarding the admissibility of the DNA evidence In Pakistan, the courts are working under the procedural law and recording the evidence as well as evaluate the evidence under the Qanoon e Shahadat order, 1984 of Pakistan. In the early years of DNA testing, the testing provided some narrowing of suspects, but often yielded erroneous results. Courts 8 Section 45 of the Indian Evidence Act, 1872,A person who has specific expertise regarding the special field, his opinion called expert opinion. The court has jurisdiction to decide wether the opinion of an expert is admissible evidence or inadmissible evidence. As exampal, hand writing expert, finger impression expert etc. 9 Hargavind Soni v. Ramdulari, All India Reporter (Madhya Pradesh), Published, AIR Publishers, New Delhi, India (1986), p Rajeswari v. The State of Tamil Nadu 11 Govind Singh v the State of Madhya Pradesh, reported as (1975) 2 SCC Kharak Singh v the state of Utar Pardesh, reported as (1964) 1 SCR Admissibility of DNA Technology in the Indian Legal System.

4 concerned with the reliability of DNA evidence often excluded it. There is no special legislation available which guide how to produce this type of evidence before the trial court for the ultimate conclusion of the case. In Pakistan, courts are working under procedural law. So, DNA evidence is evaluated in the context of Articles and of the Qanun-e-Shahadat Order 1984 ( QSO ) of Pakistan. The courts in Pakistan treated the DNA evidence as expert opinion according to the law.an expert must be satisfied with the court regarding the qualification of expertise as an expert testimony.the High Court, Quetta, defines the expert in these words, Expert means who has special expertise in specific field. 16 DNA evidence is based on scientific techniques which would be helpful to reach the conclusion of the case.but, there are many factors involved behind this type of evidence. These must be evaluated while determining the admissibility of this type of evidence. There are different opinions of the courts regarding the admissibility of the DNA evidence.but, court in Pakistan follows the guideline which is provided by the law of evidence, while deciding the question of the admissibility. 17 DNA evidence is used as explanatory or confirmatory piece of evidence and has no value as independentevidence.the court observed that in criminal cases the conviction cannot be madeon theuncorroborated testimony of an expert. 18 There is another view of the Honorable Supreme Court of Pakistan, Mr. JusticeSajjad Ali Shah observed that the eyewitness of the case involved the accused in this case, on the other hand DNA report was also sporting the story of the complainant side, and granting bail was cancelled. 19 In Pakistan, actually there is two parallel legal systems like Sharia at Law and Pakistan Penal code. Under Pakistan Penal Code, the DNA test is admissible in any court of law, but on the other hand Sharia at law discourages the admissibility of DNA test. Mostly Pakistani investigation authorities are using this scientific/dna evidence to prove or disprove the rape cases. The admissibility of the evidence has to be decided by the trial court, but in rape cases The Council of Islamic Ideology (CII), has the opinion that this type of evidence is not acceptable as basic evidence. 20 One of the members of the council of Islamic Ideology has opinion that this type of evidence cannot be used as basic evidence, it can be helpful to the investigation authorities in criminal cases. 21. Islamic scholars have viewed that as per Holy Quran, four eyewitnesses are required in certain cases to prove the case. 14 Article 59 of of the Qanoon e Shahadat Order, 1984 is related to the considration of the expertopinions as valid piece of evidence. In these cases courts mostly examined theforegin law of the other comonwelth countries to confirm hand-writing or finger impressions or other electronic documents. But expert opinion can be revant if all kind of requirmentsfillful while taking sample. In some cases, there is question mark of the procedure of sampling or the opinion of the expert is not clear, in this situation it is incorrect to consider this expert opinion as piece of evidence. 15 Article 164 of the Qanoon e Shahadat Order, 1984 is clearly stated that evidence collected through modern deviece must be protected. But it depends on the case to case regarding the appreciation of such evidence by the court after determining of the Admissibility of the such type of evidence. 16 PLD 1984 Quetta Article131of the Qanoon e Shahadat Order, 1984, The Court has power to decide whether, evidence produced before him is admissible or inadmissible MLD Syed Riasat Ali v Malik Aqeel, reported as 2010 YLR Allama Tahir Mehmood Ashrafi. a member of Council of Islamic Idealogoy Pakistan (CII) present at the meeting chaired by Senator Maulana Muhammad Khan Sherani.

5 There are so many reasons that the higher courts of India and Pakistan are not fully convinced on the DNA evidence as primary evidence of the case. The court considers the DNA evidence as secondary evidence and the DNA evidence is to be collaborating with other evidence.it is difficult for the courts to rely on the DNA evidence when it is contradicted by the ocular evidence.the main reason is incompetency of the person who is conducting the DNA test. He is not fully qualified and has no specific qualification regarding to conduct this test.the second reason is the person who is collecting the material from the spot, usually a police officer collects the evidence from the spot and most of the time he has not proper knowledge and the sensity of this kind of test.the third reason is, in some cases the material mustbe collected within a specific time, but many times the material has been taken in possession with unexplained delay. 4. Conclusion The DNA (Deoxyribonucleic Acid) has value on the bases of the genetic information that carries in the coded form. It specified the role of the human body organs. It is happening in the each cell and remains as a single in the life time.there is always questioned by the various communities in India and Pakistan, i.e., religious, judiciary and lawyers, etc., the evidence which is collected on the bases of the DNA evidence, is not sufficient as a basic piece of evidence. The Indian and Pakistani judiciary observed through their different decisions that the DNA evidence is not sufficient admissible evidence due to certain reasons. But recently, the trend of the courts in India and Pakistan are going to change regarding the validity and admissibility of the DNA evidence. References [1] Andrei Semikhodskii, Dealing with DNA Evidence: A Legal Guide, 1st Ed. 2007, New York [2] Gould, S.J., The structure of evolutionary theory. Harvard University Press [3] Crow, J.F. and Kimura, M., An Introduction to Population Genetics Theory. An introduction to population genetics theory. [4] Bonner, J.T., The evolution of complexity by means of natural selection. Princeton University Press. [5] Proven, W. B. (2004). "Ernst Mayr: Genetics and speciation". Genetics 167 (3): PMC PMID [6] Hartl, D.L., Clark, A.G. and Clark, A.G., Principles of population genetics (Vol. 116). Sunderland: Sinauer associates. [7] Lisa Gannett, The Human Genome Project, Stanford Encyclopedia of Philosophy, Retrieved [8] Admissibility of DNA Technology in the Indian Legal System. [9] Jane Moira Taupin, Introduction to Forensic DNA Evidence for criminal justice professionals by. CRC Press, 2013.

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