Colin Pitchfork is a generally unknown figure, but unbeknown to many, his rape and murder spree sparked unrest and horror in his town of Leicestershire from 1983 to 1986. Investigation began and tips guided his arrest in 1987 and conviction/sentence in January 1988. Pitchfork most recently appeared before a court of law in 2009, when the Lord Chief Justice of England and Wales affirmed the life imprisonment sentence issued to him [1]. Our concern with him, however, differs: Colin Pitchfork’s investigation, conviction and sentence mark the first instance of the usage of DNA Evidence in criminal proceedings.
Colin Pitchfork’s undoing, was predominantly brought about by the revolutionary ingenuity of another Leicestrian, Dr Alec Jeffreys, a British Geneticist, in the form of DNA Profiling. Originally conceived on 10 September 1984, Dr Jeffreys’ idea of DNA profiling stemmed from the comparison of x-ray samples against one another [2]. A series of experiments and tests soon paved the way for the utilization of DNA findings as evidence.
For legal proceedings, history records the first usage of DNA evidence in 1985 to ascertain the genetics of an immigrant boy and his genetic affinity with a Ghanian family [3]. Soon afterwards, Colin Pitchfork would become the first criminal convicted on the basis of DNA evidence.
The acceptance of the newly pioneered method was heralded by other states. The first criminal conviction in the United States of America is also contemporaneous. The USA’s first criminal conviction by utilization of DNA evidence was secured in another rape case in 1987 [4]. Canada soon endorsed its acceptance of the DNA evidence to found criminal convictions in 1991. Presently, DNA based evidence is considered ubiquitous and internationally approved. More and more state systems have continually countenanced the use of DNA evidence in criminal investigations and proceedings. [5]
In the nearly four decades since its discovery, the universal acceptance of DNA Evidence has grown gradually. States have embraced the use of DNA evidence worldwide, and have introduced an array of legislative instruments lending support to DNA based investigations.
In Pakistan, DNA evidence remains an unlegislated subject. Resort is ceded to the Code of Criminal Procedure, 1898 and the Qanun-e-Shahadat Order, 1984 to regulate criminal proceedings, investigations and the admissibility of evidence. Civil disputes aside, the use of DNA evidence is predominantly reserved for criminal cases and most particularly sexual offences: in those cases, DNA tests are the norm. In other cases, applications for DNA tests may be made to the trial judge who may then issue appropriate directions thereupon.
While DNA evidence is not etched into the statute book, some provisions of the Qanun-e-Shahadat Order, 1984 enable its admissibility. Article 59 of the Order describes expert evidence opinion the following manner:
Article 164 similarly permits the production of evidence collected by modern day technology:
Although, DNA evidence (axiomatically scientific) has not been defined in either provision, it is encompassed by both the modern devices criterion and the scientific method threshold.
Judicial acceptability for DNA evidence seems to have been generated after the turn of the millennium. [6] The seminal judgment manifests the consensus on admissibility of DNA evidence in civil matters [Muhammad Azhar v State]. [7] For criminal proceedings, however, the burden of proof could not be displaced: the prosecution had to prove its case to the criminal standard of proof. Zina, for instance, would have to be proved to its own standard of proof the Offence of Zina (Enforcement of Hadood) Ordinance, 1979. [8] The initial skepticism for the admissibility of DNA evidence was more fully expatiated half a decade later. In Khizar Hayat v Additional District Judge Kabirwala [9] , the Court held as follows:
However, the jurisprudence on DNA evidence over the past decade leans in favour of its utility and evidentiary value, starting with Muhammad Shahid Sahil v State [10] wherein the Federal Shariat Court, while terming DNA Evidence the ‘best possible evidence’ in order to unearth the truth and falsity of an allegation in a timely manner [11], went on to hold that ‘prosecution agencies should take heed and use latest available technology to trace and locate the actual criminal without loss of time. DNA fingerprints is a successful clincher. [12]’
Further the Court warily delineated the scope of the existing provisions permitting use of DNA evidence, the lacunas therein and whether DNA evidence conforms to Islamic standards:
How DNA samples have to be collected is another matter entirely. By unanimous consensus it is common ground that collection of samples is primarily contingent upon the consent of the person to be tested. [13] Unconsented compulsion to provide a sample would affront the inviolability of dignity of man guaranteed under Article 14 of the Constitution of the Islamic Republic of Pakistan, 1973. [14]
However, the administration of DNA tests has been made mandatory for the State in rape cases. [15] The state is obligated to conduct tests on the victim. It must make an attempt to attain that evidence. [16] However, the victim’s consent is paramount. [17] Consequently, a trial will not be vitiated if DNA tests are not presented to the court, nor will a conviction be fettered by its non-production. Each criminal case would proceed on its own merits and its own facts and circumstances. In some cases, non-production of DNA may be fatal to the prosecution case. [18] Alternatively, the prosecution may yet secure conviction in rape cases without DNA corroboration [19].
Therefore, DNA evidence is supplementary, not conclusive. It can only be used as corroborative evidence [20]. Medical and ocular accounts must augment each other [21]. If the prosecution discharges its burden and standard of proof, production of DNA evidence is not strictly necessary [22].
No doubt DNA evidence has probative value. Its veracity, however, sans conformity with contemporary international standards may inspire suspicion. The Supreme Court of Pakistan has been most stern in directing that laboratory standards must be neoteric and that strict protocols must be adhered to [23].
In 2015, the Supreme Court of Pakistan set about clarifying the scope of DNA evidence, its admissibility, and the consequence of its admissibility [24]. Delving into its probity, the court held that capital punishment could not be based upon DNA evidence alone [25]. Stricter safeguards ought to be deployed to ensure non-contamination of evidence.
Recent jurisprudence of the Supreme Court is most instructive in determining the parameters of the evidentiary value of DNA evidence. DNA evidence is predominantly used when trying all sexual offences. However, the production of the DNA tests was held not to be a strict obligation upon the prosecution [26]. As long as there is sufficient corroboratory evidence to prove guilt to the criminal standard, DNA evidence could become superfluous [27]. Every conviction, or acquittal, would depend on the particular facts and circumstances of each case.
Gleaning over our jurisprudence provides sufficient clarity for now. However, legal reform remains imperative. Investigative safeguards must be implemented with urgency, starting with legislative ratification of DNA testing standards. The possibility for error must be eliminated.
While most investigators and judges concur on the utility of DNA evidence in practice, the Code of Criminal Procedure is silent upon its collection, preparation and presentation to the court. The Code limits itself to a specific set of experts: Chemical Examiner; or Assistant Chemical Examiner to Government; the Chief Chemist of Pakistan Security Printing Corporation, Limited; a Serologist; a finger print expert; or a fire-arm expert [28]. Framed in 1898, the Code of Criminal Procedure is also termed by many as archaic. Yet it continues to regulate criminal procedure. Needless to say, comprehensive amendments are also necessitated in that respect, including the permissibility of DNA evidence by experts/geneticists. Otherwise, the Code might be deemed inadequate for its lack of contemporaneity with the evolving standards of investigation.
As the fabled pioneer Bill Gates himself puts it: “DNA is like a computer program but far, far more advanced than any software ever created.” Now is the time that our legal system embraces it as such.
1. R V PITCHFORK [2009] EWCA CRIM 963
2. DNA PIONEER'S 'EUREKA' MOMENT, BBC: HTTP://NEWS.BBC.CO.UK/2/HI/PROGRAMMES/NEWSNIGHT/8245312.STM
3. IBID
4. ANDREWS V. STATE, 533 SO. 2D 841 (FLA. DIST. CT. APP. 1988)
5. EVOLUTION OF DNA EVIDENCE FOR CRIME SOLVING – A JUDICIAL AND LEGISLATIVE HISTORY, FORENSIC MAGAZINE, VOL 2, NO. 4, JUNE-JULY 2005.
6. Muhammad Pervez v Additional District Judge, 2000 CLC 1605
7. PLD 2005 Lahore 589, paragraph 3
8. ibid, paragraph 18
9. PLD 2010 Lahore 422
10. PLD 2010 FSC 215
11. Ibid, paragraph 8
12. Ibid, paragraph 8
13. Shamim Akhtar v Additional District Judge Gujranwala, PLD 2010 Lahore 522; Rubina Kausar v Additional District and Sessions Judge, PLD 2017 Lahore 604; Safia Bibi v Muhammad Akbar, PLD 2018 Lahore 758
14. Salman Akram Raja v Government of Punjab, 2013 SCMR 203, paragraph 6
15. Ibid, paragraph 16
16. Shabbir Ahmed v State, 2020 MLD 995
17. Shamim Akhtar v Additional District Judge Gujranwala, PLD 2010 Lahore 522; Rubina Kausar v Additional District and Sessions Judge, PLD 2017 Lahore 604; Safia Bibi v Muhammad Akbar, PLD 2018 Lahore 758
18. Hiader Ali v State, 2016 SCMR 1554; Allah Ditta v State, 2017 PCrLJ 789
19. Shakeel v State, PLD 2010 SC 47; Rashid Minhas v Muhammad Fayyaz, 2012 PCrLJ 816; Malik Aqeel Ahmed v State, 2016 MLD 129
20. Rashid Minhas v Muhammad Fayyaz, 2012 PCrLJ 816
21. Muhammad Mushtaq v State, 2020 MLD 588
22. Mazhar v State, 2012 YLR 652, paragraph 19
23. Aman Ullah v State, PLD 2009 SC 542, paragraph 5
24. Azeem Khan v Mujahid Khan, 2016 SCMR 274
25. Ibid, paragraph 28
26. Irfan Ali Sher v State, PLD 2020 SC 295; Farooq Ahmad v State, PLD 2020 SC 313
27. Zahid v State, 2020 SCMR 590
28. Section 510, Code of Criminal Procedure, 1898
Mian Abdul Rauf Law Associates