Forensic evidence and justice

October 30, 2022

In many cases of heinous crimes, the accused are sent to court without proper investigation

Forensic evidence and justice


he criminal justice system, especially its lower tier in Sindh, is not delivering much at the grassroots level. This is evident from a low conviction rate in subordinate courts in cases of heinous crimes i.e. murder and rape.

One of the reasons behind this low conviction rate is the reliance on traditional evidence instead of forensic evidence made possible by modern technology. In many cases, the forensic evidence is not available due to the lack of capacity among investigation officers to collect it and the inability of the forensic laboratories to deal efficiently with it. The issues faced by the police in gathering forensic evidence are related to its collection, preservation, transportation, analysis and interpretation. In many cases this unavailability of forensic evidence results in miscarriage of justice.

Pakistan does not have a comprehensive nationwide DNA database. Use of DNA evidence has revolutionised the world of forensic science in some technologically advanced countries. Many maintain DNA databases for the investigation of crimes. Many crimes that were once difficult to investigate due to lack of evidence are now being revisited and the offenders are being put behind bars. Such DNA databases enhance the probability of arrest of profiled offenders. Consequently, the databases are likely to reduce the commission of repeat offences.

There are many ethical and legal issues involved in maintaining a DNA database. However, their use is gaining currency on account of the public interest argument. In cases involving rape and murder etc, timely medical examination and proper sampling of body fluids followed by quality forensic analysis can provide irrefutable evidence. Use of forensic evidence can help the prosecutors establish the guilt of many accused. It can also help exonerate the innocent.

In a recent decision, (2021 PLD 362 SC) the Supreme Court of Pakistan held that admissibility of forensic evidence like any other opinion of an expert under Article 59 is relevant and thus admissible. Article 164 of the Qanoon-i-Shahadat Ordinance too underlines the admissibility, reliability and weight of modern forensic evidence, including the DNA test. Convictions may thus be based on use of modern forensic techniques. Over the years, the DNA test has come to be recognised as relevant.

The availability of a legal framework for admissibility of forensic evidence in sexual offences does not mean that the forensic evidence has been awarded its due role in the investigation of crimes. This legal framework has adversely impacted forensic evidence in various ways. Treating forensic evidence as a form of expert evidence has eclipsed its significance and potential to be used as primary evidence. Expert evidence/ opinion in Pakistan is often treated as corroboratory evidence and not primary evidence. This means that a case cannot be decided on the basis of expert evidence alone (in the absence of other primary pieces of evidence, such as oral evidence). Properly collected, preserved and analysed forensic evidence merits treatment as primary evidence.

The availability of a legal framework for admissibility of forensic evidence in sexual offences does not mean that forensic evidence has been awarded its due role in the investigation of crimes. Treating forensic evidence as a form of expert evidence has eclipsed its significance and potential to be used as primary evidence. 

The traditional approach of judicial officers and investigating officials vis-à-vis expert evidence is likely to diminish the important role of forensic evidence in numerous ways. For instance, the non-availability of expert evidence in a case due to carelessness of investigating agencies does not prompt the courts to direct them to procure it. In such a situation, the courts do not feel obliged to take any punitive action or play an active role to ensure the availability of expert evidence. This approach is shaped by the view that if a particular piece of evidence is not brought before the court, the unfavourable consequences of the omission have to be borne by the concerned party, and that given the adversarial system, the courts are not bound to go the extra mile to procure a missing piece of evidence.

The prosecution agencies should take heed and always use the latest available technology to trace and locate the criminal. Under Article 164 of the QSO, a court might allow any evidence available through use of modern devices or techniques to be produced. The Holy Quran and Sunnah do not forbid use of scientific or analytical methods in pursuit of truth. The courts in matters relating to the Offence of Zina (Enforcement of Hudood) Ordinance 1979 have the power to permit reception of evidence, including resort to forensic tests, if demanded by the occasion. It is the fundamental duty of the courts to arrive at the truth without depriving an affected party any means of establishing its case.

The admissibility of the forensic evidence in paternity disputes is hindered. In these cases, the courts prefer the collective interest of the community by refusing to question the ‘legitimacy’ of a child. According to the prevalent judicial opinion, the approach is in consonance with the Islamic dictates. This is why there is little prospect of making forensic evidence admissible in these cases. On the other hand, forensic evidence is admitted by the courts in sexual offences and is treated as a kind of expert evidence. The utilisation of forensic evidence in other offences is almost negligible in Sindh. This situation has arisen due to the legal framework that treats it as expert evidence.

It is high time Pakistan developed the requisite scientific infrastructure for the extraction and preservation of DNA evidence. A failure in this regard will result in miscarriage of justice in a lot of cases. An analysis of data on murder and rape cases instituted in Karachi over the last year will make it quite clear that the investigation officers’ lack of capacity to collect, preserve, transport, analyse and interpret forensic evidence in heinous offences is the main reason the prosecutions failed to establish the cases and courts acquitted the accused due to insufficient evidence.

The writer is an  Advocate of the High Courts and a PhD scholar.

Forensic evidence and justice