LAHORE, May 20: Justice Ali Nawaz Chauhan of the Lahore High Court has observed that the DNA test is not acceptable as evidence to establish the offence of zina under the Hudood laws which require a direct testimony in such cases. He made the observation on Friday while announcing judgment on a bail petition moved by Mohammad Azhar, a resident of Lahore, who has been charged with having illicit relations with Iram Shireen of Gujranwala and fathering her child.
The court declared that the findings of the DNA test sent from New York by the complainant, Shireen’s husband Syed Imtiaz Ali, were not complete because these did not include her blood test.
Mr Ali has alleged that his wife committed adultery and the child is illegitimate. The court observed that a similar test conducted by the Centre for Applied Molecular Biology was also incomplete because it too failed to test the mother. As such, both the reports were faulty and missed a vital evidence and thus not acceptable to fix responsibility.
The court observed that the establishment of an offence under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, had its own and direct testimony as provided in the Law of Evidence which sought to produce four direct and voluntary witnesses to testify that they had seen the offence being committed.
“The findings of the DNA test did in no way meet the requirements of this law.”
The court, however, said that the DNA test was a useful test and no one could question its effectiveness as legal evidence in determining biological parentage and kinship.
“Such tests form the basis of evidence in cases of murder, theft, dacoity and deciding biological fathers and mothers of children in the Western judicial system. In Pakistani courts too, such evidence is acceptable in investigating cases other than those registered under the Hudood laws,” the court observed.
The court relied on the opinion of amicus curiae Ismael Qureshi who quoted from Surah Al-Noor to submit that if a spouse charged the other with adultery and had no evidence but their own, their testimony is acceptable provided they bear Liyan. It means both the spouses will swear by Allah four times that they are speaking the truth.