ٹرائل کورٹ بھی ملزم کے ڈی این اے(DNA) ٹیسٹ اور اسکا مقتول/ وکٹم سے لیے گئے نمونہ جات سے تقابل کا حکم دے سکتی ہے

Section 10 of the Punjab Act of 2007 authorizes the court, tribunal or authority to send a forensic material related to the investigation or proceedings before it to the PFSA for analysis and expert opinion. According to section 2(1)(g) of the Act, “forensic material” means “a document, material, equipment, impression, or any other object connected with the commission of an offence, a civil cause or any other proceedings.” This description fully covers a DNA sample.

Hence, the court may also invoke section 10, ibid, to order an accused’s DNA test.

A careful study of the relevant provisions of the Code of Criminal Procedure, 1898, and other applicable statutes discloses a scheme which aims at strengthening the investigator’s hands. Section 2(i) of the Code states that “investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.” Similarly, sub-rule (3) of Rule 25.2 of the Police Rules, 1934, casts a duty on the Investigating Officer to discover the truth of the matter under investigation. His object should be to find the real facts of the case and arrest the actual offender(s). Section 94 Cr.P.C. authorizes the Investigating Officer to produce any “document or thing” necessary or desirable for any investigation.

The Investigating Officer must use modern techniques to get to the truth. In particular, he must have the accused’s DNA test done whenever required. However, where there is a lapse on his part, intentional or unintentional, the court may invoke section 94 Cr.P.C. read with Articles 24, 40, 59 and 164 of QSO to do justice. It may also draw on Rule 2 of Chapter 1-E, Volume III of the Rules & Orders of the Lahore High Court.

DNA test of an accused person does not offend Article 13(b) of the Constitution of 1973. DNA collection in criminal cases is analogous to the police practice of taking photographs or collecting fingerprints of the accused. It accomplishes the same function more effectively. It is not testimonial because the investigator – or the court – draws his own conclusions. One cannot claim that by providing a sample for the test, the accused imparted any information based on his own knowledge and became a witness against himself, violating Article 13(b).

In Pakistan, DNA tests are considered valuable for delivering justice in criminal cases. Several provisions furnish the legal framework for their admissibility. Article 59 of QSO states that expert opinion on the matters such as science and art falls within the ambit of “relevant evidence”. Under this provision, the technician who conducts experiments to scrutinize DNA evidence is regarded as an expert whose opinion is admissible in court. Article 164 provides that the court may allow the reception of any evidence that may become available because of modern devices and techniques. Articles 24 and 40 of QSO are also significant. Article 24 explains when facts that are not otherwise relevant become relevant, while Article 40 describes how much of the information from the accused may be proved. Section 9(3) of the Punjab Act of 2007 enacts that “a person appointed in the Agency as an expert shall be deemed as an expert appointed under section 510 of the Code [of Criminal Procedure, 1898] and a person especially skilled in a forensic material under Article 59 of the Qanun-e-Shahadat, 1984 (P.O. X of 1984).” This section reaffirms the admissibility of DNA evidence and makes the PFSA’s report regarding DNA per se admissible in evidence. Parliament has enacted sections 53A, 164A and 164-B Cr.P.C. to specifically accord statutory recognition to the DNA test in respect of the offences under sections 376, 377 and 377-B PPC.

A fair trial is not solely a question for the accused.A fair trial necessitates striking a balance among the interests of the accused, the victim, and society, which the State and prosecuting agencies represent. The interests of society should not be treated with disdain. It is incorrect to assert that only the accused must be treated fairly. That would be turning Nelson’s eyes to the needs of society at large and the victims, their families and relatives. In a criminal trial, each of them has an inherent right to be treated equally. Denial of a fair trial is as much injustice to the accused as it is to the victim and society.