DNA evidence not sufficient for zina conviction, says LHC

Staff Report

LAHORE: Justice Ali Nawaz Chowhan of the Lahore High Court on Friday observed that DNA test was not the right kind of evidence to prove commission of zina under Section 10 of the Hudood Ordinance of 1979.

The court granted bail to Muhammad Azhar booked in a hudood case on the complaint of Imtiaz, a US-based Pakistani from Gujranwala.

Imtiaz had doubted the paternity of a daughter born to his wife Iram during his stay in the US. He took the baby to the US where a DNA test showed that the girl was not Imtiaz’s daughter. He divorced his wife and sent the DNA test report to Baghbanpura police station in Gujranwala. He also alleged the girl was Azhar’s biological child. The police registered an FIR against Iram and Azhar and arrested them.

Imtiaz took a DNA test in Lahore in November 2004 which corroborated the result of DNA test done in the US.

A Gujranwala sessions court granted bail to Iram but dismissed Azhar’s application. He moved the LHC seeking bail and said that a case could not be registered against him on the basis of a DNA report.

On May 5, the court had reserved its verdict after hearing arguments. Advocate Ismael Qureshi appeared as amicus curiae and said that it was against Islamic injunctions to convict individuals for committing zina on the basis of a DNA report. He said that under the Hudood Ordinance a case could not be filed on the basis of a DNA report only.

The court ruled that DNA test was acceptable only as an important supporting piece of evidence to prove zina. The court said that husbands could rely on DNA test report to seek dissolution of marriage according to the procedure of oath (lian) prescribed in Surah Al-Noor, Chapter 18 of the Holy Quran. The DNA test could be also be used to determine paternity of a child, Justice Chowhan added.

The court referred to Maulana Abul Aala Maudoodi’s book Tafheem-ul-Quran and said that the writer had underlined strict criteria that four eyewitnesses were required to testify that they had actually seen the commission of the offence. The witnesses should not have been convicted of a major sin or proven liars. They should also not be inimical to the accused. Also, their statements should absolutely corroborate one and another to prove the commission beyond any doubt.

The court also observed that the prosecution had not given Iram a DNA test.

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