By Javed Qazi
June 28, 2013
The Islamic Ideology Council, which interprets how Islamic law should be applied in Pakistan, has said in a recent statement that DNA samples cannot be used as primary evidence in rape cases. The controversial statement has roused a debate in the country about the nature and importance of DNA evidence.
DNA material seized from a crime scene, victim or suspect - especially in a case of sexual assault - is corroboratory, circumstantial and forensic evidence. More precisely, it is expert evidence, based on data and opinion. In certain cases where ocular evidence stands false, circumstantial evidence is more reliable.
There are three kinds of ocular evidence: wholly reliable, wholly unreliable and partly reliable or partly unreliable. The latter is also corroboratory (it requires verification from other supporting material and evidences).
Generally in rape cases, only a victim or an accomplice is an eyewitness. Finding ocular evidence of the offence is therefore virtually impossible. It has been seen in many rape cases that having been through a traumatic experience, the victim cannot remember the face of the offender. DNA technology came as a breakthrough, as the most important of all forensic and circumstantial evidence.
In the seminal case Schmerber v California in 1966, the US Supreme Court violated the literal interpretation of the Fifth Amendment of the US constitution to allow the state to draw blood from a suspect as evidence. The Fifth Amendment does not allow a suspect to be "compelled in any criminal case to be a witness against himself". Article 13(b) of the Constitution of Pakistan guarantees the same right, and can be interpreted in the same way.
Article 10(a) of the Constitution says every suspect is "entitled to a fair trial and due process" and is in line with the genesis of Islamic jurisprudence - Adl. It extends significant power of interpretation to the courts, so that justice is not only done but is also seen to be done. When a procedure becomes a hurdle in providing justice, it must be ignored. It is Adl that ultimately matters, not the method used to achieve the goal of justice.
In a recent case in Saint Antonio, Texas, a man was charged with raping a 38 year old woman who was going in and out of consciousness after DNA samples collected the next morning linked him to the crime.
In Pakistan, the woman would have needed four eyewitnesses as a prerequisite, and if she couldn't find any, DNA evidence would not be admissible. That would allow the perpetrator to commit the crime over and over again with impunity, leaving no legal resource for the survivors.
It is in such circumstances that circumstantial evidence has to play its role. Forensic experts must carry out the appreciation of evidence, the most reliable one of which is DNA evidence. Courts around the world are giving more and more weightage to DNA evidence.
But Pakistan's Islamic Ideology Council disagrees. "Science is always improving, and in the process it rejects its previous theories," said its member Maulana Shirazi. "Therefore, we cannot rely on science."
What he does not take into account is that DNA evidence is only a type of evidence, and so is an eyewitness testimony. Evidence needs to be corroborated. The higher the quality of evidence, the more useful it will be in administering justice. Eyewitnesses can also lie, or refuse to appear, because of a bias, fear, or threat. Courts are highly cautious when they appraise ocular evidence. On the contrary, circumstantial evidence is more reliable, and the most reliable of circumstantial evidence is DNA evidence. The rate of convictions in rape cases in the US before DNA evidence was used was 33 percent. It has now increased to 50 percent.
What is primary evidence and what is secondary depends on the facts of the case. That is decided when a trial is at the evidentiary stage. Like eyewitnesses, forensic experts that furnish the DNA evidence are cross-examined, and like other ocular or circumstantial evidence, DNA evidence may be rejected by the court if it is unreliable or not corroborated by other material facts and witness accounts.
But making DNA evidence inadmissible as primary evidence in a rape case is tantamount to encouraging crime and discouraging those who dare to take the course of law in a predominantly parochial society like ours. It is infringement of the inalienable rights enshrined in the articles 4, 10(a) and 25 of the Constitution.
In its recent decision (Salman Akbar Raja and Tahira Abdullah v Govt of Punjab) the Supreme Court of Pakistan has relied on United States v Yee (134 FRD 161) to endorse the admissibility of DNA evidence. It has made DNA tests mandatory when a rape case is reported to the police. But there are a number of legal lacunas in our laws that facilitate the perpetrators of rape. There is a need for amending the law to ensure forensic and scientific evidence can be used to ensure justice.