Two weeks ago, the Council of Islamic Ideology (CII) declared that DNA tests should not be used as primary evidence in rape cases.
Although its recommendations are not binding on the government, the CII is a Constitutional body that interprets Islamic injunctions and advises the government on religious affairs.
The CII’s alternative is the religious injunction of producing four male witnesses against the rapist – creating a furore in civil society.
Meanwhile, Sharmila Faruqui, a Pakistan Peoples Party MPA in the Sindh Assembly, moved a resolution demanding the provincial government arrange for DNA tests in all rape cases.
As far as the implementation of the CII’s controversial recommendation is concerned, the Supreme Court had already decided last year in favour of DNA tests in rape cases. “The apex court has declared DNA evidence as admissible in rape cases. Now there is no ambiguity about it,” observed Barrister Salman Akram Raja, who was part of the case.
“Defying apex court judgments amount to contempt of court. In case the CII makes recommendations against the court judgement, it will be open for challenge,” Raja added.
He explained the CII recommendations were not binding on the government. So the burden of taking up or rejecting the recommendation would be on the federal government.
Allama Tahir Ashrafi, a member of the CII, on the other hand, refuted that any decision had been made by the coucil, saying: “The media created a storm out of nothing. There were reports and analyses as if they had a copy of our decision. The CII only discussed the matter. There was no decision, I can assure you.”
He added: “We have never declared DNA tests as un-Islamic. What we discussed was whether such evidence is admissible in rape cases.”
Ashrafi said the CII will meet again in the first week of July to finalise its recommendations on the matter. The council will also invite DNA experts to get their opinion on how effective the tests can be to determine the crime of rape.
His argument against the DNA test was based on an apprehension that the situation might be exploited by one party or another. Ashrafi said DNA would not be able to determine whether a crime had actually occurred or whether the act was consensual. “Therefore, we must adhere to the Quranic injunction of producing four witnesses to prove the crime,” he argued. The condition, he contested, benefits women more than men because no one can accuse them of a sinful act on flimsy grounds.
Asked how a woman could produce four witnesses to testify in her favour before the court, Ashrafi merely said the issue should be taken to the Qazi Court. The CII leader asserted that circumstantial evidence could be examined by the Qazi Court which could decide the matter without demanding four witnesses.
Ashrafi contended that DNA evidence could only be admissible if rape cases were dealt under “Ta’zir” and not under “Hadd.” The punishments under Hadd are those ordained by the Holy Quran or Sunnah. Ta'zir is simply defined as any punishment other than Hadd.
Sharmila Faruqui, on the other hand, completely disagreed with the CII’s recommendations. 'Although the CII recommendations are not binding, but [by saying DNA evidence is secondary] they have supported the rapists,” the Sindh MPA said.
She also pointed out that the CII comprises 20 members and of them only one is woman.
'Under the Women Protection Act, cases of rape should be tried under the Pakistan Penal Code, not under Hudood ordinance," she added, explaining: “The victims’ families are not familiar with DNA tests. They need to be educated and helped by the government.”
Not every religious scholar agrees with the condition of producing four witnesses in rape cases. Dr Javed Ghamdi, another prominent religious scholar, for example, interprets rape as “a crime falling in the category of Hiraba” that includes offences of robbery, harassment, terrorism or promoting terror. Hiraba does not require four witnesses to prove the offence. Circumstantial evidence, DNA and other relevant tests and testimony of experts and victims may be enough to prosecute the accused.
According to the scholar, Islamic jurisprudence also provides another way to deal with rape cases under the law of Jirah (wounds). The two logical frameworks, given by Islam, do not call for producing four witnesses to establish the crime of rape, Ghamdi says.
Shahzad Raza is a freelance contributor. His twitter handle is @shahz79.