DNA profiling and databasing: An analysis of issues and challenges in the criminal justice system of Pakistan

Abstract

The use of DNA as evidence in judicial trials in Pakistan is fraught with issues and challenges, including sampling, profiling, analysis, inclusion and exclusion criteria, insight and oversight mechanisms, invasion of personal privacy, constitutional safeguards and court admissibility issues. These problems have diminished the significance of this robust forensic evidence and hindered the creation of a central database in the country. This paper discusses these issues and introduces suggestions for the inclusion of DNA as significant evidence in the criminal justice system of Pakistan.

Articulation of the Right to Fair Trial and Forensic Science in the Criminal Justice System of Pakistan

“…The right to fair trial could be another lens to see and ensure that the administration of justice is not a sole effort of either court, lawyer, or the investigation officer instead these are three streams of government's resolve to achieve a goal of administration of justice in a society as a whole (Suddle, 1995). It is to highlight the need to reconstruct the right to fair trial on the line of 'to discover, vindicate, and establish the truth' (Ishaq, 2014) by considering possible pieces of evidence, reports, and opinions from science and technology as well (Munir, 2021). It is noteworthy that the right to fair trial is not a single dimensional right rather it has a multidimensional nature that can support the triangulation of interests (Ishaq, 2014) of the court, lawyer, and the investigation team with a purpose to reveal the truth before and during the trial (Wemmers, 1964).…”

“…It is therefore significant to underscore the need to realize that fair trial can be achieved by focusing on creating a balance of the rights of both victim and accused and the rights of the society as well in order to avoid any prejudice to any one of them. The role of scientific and technological advancement in this respect should not be denied, or overlooked by the courts and reports, opinions, and evidences could be collected from scientific, technological, and forensic experts to eliminate the possibility of prejudice in the discovery of truth in a legal dispute (Munir, 2021). This perspective to right to fair trial underpins a wider sense of the right leading to have more secondary or corroboratory evidence in a case that can help reveal the truth.…”

“…It is to argue that the identification parade (Article 22 of Qanoon-e-Shahdat order 1984) in the wider sense of right to fair trial should be considered by the court (2021 CLD 1112 Lahore High Court) to consider the DNA profiling as a scientific knowledge that could be useful to link crime to the accused, or to acquit a wrongly accused person by proving or disproving the presence of the accused with the crime scene (Munir, 2021). Both these concepts of identification parade and right to fair trial can corroborate or rebut the fact of identifying the accused.…”

“…It is notable that both Identification parade and DNA profiling are similar in that they lose the reliability even as secondary or corroborating evidence if these are delayed. It is to argue that right to fair trial is a gateway from where the court can consider that their interest into the missing evidence is supported by the triangulation of interests of accused, victim and the court (Ishaq, 2014), whereby the court has to perform the administration of justice (Farani, 2013), therefore it will need asking for scientific and technological evidence in disputes brought before it (Munir, 2021). To adopt such a judicial policy will mean to require scientific evidence along with other evidence in both civil and criminal cases.…”

“…The combined effect of these provisions is that a trial Judge may ask questions, or order production of any document or summon any witness or examine a witness, or recall and re-examine any witness in order to discover or to obtain proper proof of relevant fact, if such evidence appears to it essential to the decision of the case. It can be argued that these provisions may be used by the courts to inquire into scientific and technological evidence to discover the truth and to minimize the effect of lack of proper investigation (Munir, 2021).…”