Legal status of biological evidence

Unit-5: 

Legal status of biological evidence 

The work of forensic scientists is not only crucial in criminal investigations and prosecutions, but is also vital in civil/criminal litigations. The success of the analysis of the forensic evidence is based upon a system that emphasizes teamwork, advanced investigative skills and tools (such as GPS positioning, cell phone tracking, video image analysis, artificial intelligence and data mining), and the ability to process a crime scene properly by recognizing, collecting and preserving all relevant physical evidence. 

Forensics involves the application of knowledge and technology from different scientific disciplines in jurisprudence. These are, for example, biology, pharmacy, chemistry, medicine, etc., and each of them applies in the present, increasingly complex legal proceedings in which the required knowledge and skills of experts from these areas to prove offenses.  

The application of science to the legal arena is fundamentally one of reconstruction, that is, trying to assist in determining what happened, where it happened, when it happened, and who was involved.  

It is not concerned with, and cannot determine, why something happened (the motivation). When science is applied in this way, the adjective “forensic” is added, which means that it is applicable to a court of law. 

Forensic analysis is performed on evidence to assist the court in establishing physical facts so that criminal or civil disputes can be resolved. The legal question determines the direction of scientific inquiry. It is the job of the forensic scientist to translate the legal inquiry into an appropriate scientific question, and to advise the judiciary on the capabilities and limitations of current techniques. 

The law defines elements of a crime; science contributes information to assist in determining whether an element is present or absent. 

Legal Status of forensic evidence 

Criminal Justice system of Pakistan 

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

Pakistan does not have a comprehensive nationwide DNA database. There are many ethical and legal issues involved in maintaining a DNA database. 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 recognized 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 analyzed forensic evidence merits treatment as primary evidence. 

The traditional approach of judicial officers and investigating official’s 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 unfavorable 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 (notice) 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 (delayed). 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.

The traditional approach of judicial officers and investigating official’s 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 unfavorable 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 (notice) 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 (delayed). 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 utilization 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, analyses 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. 

Electronic evidence is such evidence that is available because of modern technology and electronic devices. Electronic evidence is admissible in Pakistan under the provisions of QSO, 1984 and ETO 2002. A body of judicial precedents exists to circumvent ambiguities relating to it and its admissibility in law. . Judiciary has welcomed the use and reliance on digital evidence in concluding cases and pronouncing judgements. 

The law on evidence in Pakistan is set out in the Qanun-e-Shahadat Order, 1984 which is the primary document pertaining to rules of evidence. . It governs the law related to the evidence in all Courts across Pakistan. Electronic Transaction Ordinance, 2002 is also an important law recognizing the legality of electronic and digital medium. Article 164 of QSO has paved the way for admissibility of evidence available through modern devices and techniques. The scope of Article 164 has been explained in many precedents given by the Apex Court as well as the High Courts. However, a legal lacuna exists due to a lack of rules and regulations on the preservation, collection, storage, and extraction processes and techniques for electronic evidence such that its credibility is not compromised. This requires an assessment as well as modeling on laws around the world on this subject and development of an exhaustive and detailed legislation setting out the processes required for collecting and preserving electronic/digital evidence. 

Guidelines should be framed for the checks on integrity, reliability and authenticity of electronic/digital evidence. Teams of experts able to collect and preserve such evidence should be introduced in our policing system. Such teams should exist in every district of Pakistan and should be responsible for the collection, storage and extraction of electronic evidence.