P L D 2005 Lahore 589 (PLP)

ALI NAWAZ CHOWHAN, J.

Muhammad Azhar petitioner in this case is involved in case F.I.R No.463 dated 21-8-2004 registered at Police Station Baghbanpura, Gujranwala, under section 10 of Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979.

2. The complainant in this case is Syed Imtiaz Ali who made the following accusations in the F.I.R:-‑ urdu 592

3. When the arguments were being heard in this bail application, an important legal question arose with respect to the evidentiary value of deoxyribonucleic acid commonly called as the DNA report. It is this report on which the complainant is basing his case with respect to the legitimacy of one of his daughters Ayusha Ali.

4. Since this question was of great public importance, this Court had also the advantage of hearing a known Islamic Scholar and a Senior Advocate Mr. Muhammad Ismail Qureshi, Advocate, in the matter as well. The consensus was that Islam was not opposed to science and its achievements, rather it encourages pursuit of knowledge and research and the DNA test, which forms an important basis for determining A genetically about a biological father, has a place in evidence. But the question is, can such an evidence be used against an offence of Zina under the Islamic Law which has prescribed a standard of proof for that purpose?

5. A photocopy of Laboratory Test Report from the U.S.A reflecting the DNA Test of the child was delivered to this Court. This appears to be a non-consensual test report the "motherless" test report because the DNA of the mother is missing. The conclusion reflected in the report says as follows:‑ "The alleged father, Syed I. Ali, is excluded from paternity in the following systems; VWF, ACTBP2, and TH. Therefore, he cannot be the biological father of the child Ayusha Ali."

6. There is a photocopy of another report from the Centre for Applied Molecular Biology established by the Government of Pakistan, which was handed over to the police and this local DNA Report makes the following conclusion: "(i) Syed Imtiaz Ali sbo Syed Fida Hussain (S.-I.) is not the biological father of Ayusha Ali (AA). (ii) M. Azhar s/o Ch. Ghulam Rasool (LO) is the biological father of Ayusha Ali (AA)." This too is a "motherless" report.

7. Although, motherless DNA tests are taking place in the West and may be useful for answering the question as to who the biological father may be, but with a mother's test the picture is complete with respect to the biological mother as well, which test in this case has as yet to take place.

8. This Court has been shown a copy of the letter written by Centre for Applied Molecular Biology in Pakistan dated October 4, 2004, asking that the blood of .the mother of the disputed child be also sent for a complete analysis.

9. We are aware that the DNA to be tested can be extracted from the cells of a variety of body fluids and tissues. While the majority of B tests are carried out using DNA from blood cells, cells obtained from the lining of the cheek using a mouth-wash or cells in the roots of a person's hair.

10. Several law professors and thinkers wish to hold fast to the age old presumption of maternity and favour the doctrine which protects the parent/child relationship and discourages dabbling in such questions in the best interest. of the family life. It is suggested that raising such a c question should have the embargo of time and should be a very serious question to be entertained and usually dismissed. In a marriage, where the biological father is unknown or without financial means the Court may find the husband's responsibility in support of the child.

11. Islamic Law has also leaned in favour of legitimization rather than stigmatization. Reference in this connection may be made to the case of: Manzoor Hussain (1992 SCMR 1191).

12. Here is a case where a spouse is levelling a charge against another spouse, both of whom are Muslims, and the question of this type in the legal sense comes within the ambit of Ayats Nos.6 to 9 of Surah Al-Noor and the English Translation of these Ayats as rendered by Abdullah Yousaf Ali is being re-produced below in extenso:‑ "

6. And for those who launch A charge against their spouses, And have (in support) No evidence but their own, Their solitary evidence (Can be received) if they Bear witness four times (With an oath) by Allah That they are solemnly Telling the truth.

7. And the fifth (oath) (Should be) that they solemnly Invoke the curse of Allah On themselves if they Tell a lie.

8. But it would avert The punishment from the wife, If she bears witness Four times (with an oath) By Allah, that (her husband) is telling a lie.

9. And the fifth (oath) Should be that she solemnly Invokes the wrath of Allah On herself if (her accuser) Is telling the truth."

13. In either case, where the wife takes the oath, as prescribed, or the husband, the marriage stands dissolved because obviously the parties cannot live together happily after such an incident. The breaking of the marriage itself is a great punishment because it breaks the home and it also creates stigmas against both.

14. Others who launch a charge of Zina are required to produce four witnesses to support their allegations and upon failure are liable to suffer punishment as prescribed in Ayat No.4 of Surah Al-Noor.

15. I have now to find out the rationale behind these dictates of Holy Qur'an. Reference may be made to Tatheem-ul-Qur'an, Volume III, scribed by Syed Abu-ul-Aala Maudoodi, who in this commentary gives the following views in this connection:-‑ urdu 595 Underlining has been done by this Court.

16. Further commenting on the subject, the author feels that besides the evidence of four witnesses as is prescribed, only voluntary confession can result in the punishment prescribed for Zina.

17. Offence of Zina is specific to the Islamic Jurisprudence and lays down the standard of proof, the rationale behind the standard of proof and the punishment. The purpose being to check licentiousness, lewdness, adultery or vulgarity committed at public places where four or more persons could witness the same. It is then that the State comes forward punishing those so involved because it is a crime against the society and not compoundable. So, amongst the standard of proof, there is a requirement of four witnesses because of its nexus with the rationale and not otherwise.

18. The DNA test may be an important piece of evidence for a husband to establish an allegation of Zina against his wife and use this as a support justifying the taking of the oath as ordained by Surah Al-Noor, which leads to the consequences of breaking the marriage. The DNA test may further help in establishing the legitimacy of a child for several other purposes. Therefore, its utility and evidentiary value is acceptable but not in a case falling under the penal provisions of Zina punishable under the Hadood Laws having its own standard of proof.

19. The learned counsel for the complainant's side did not differ with the requirements for production of four witnesses in a Zina case, but went on to state that the offence was, anyhow, liable to Ta'zir.

20. As the spouses have as yet to undergo the exercise prescribed by Surah Al-Noor and referred to above before a Court of law and the fate of the case as well as the guilt of the accused are as yet to be established, as such the matter is still one of further inquiry. Therefore, I admit the petitioner to post-arrest bail provided he furnishes bail bond in the sum of Rs.25,000 with a surety in the like amount to the satisfaction of the trial Court. M.B.A./M-1058/L Order accordingly.