' SYED AFZAL HAIDER, J.---This judgment will dispose of two connected matters (i) Criminal Revision Petition 4/L of 2009 and (ii) Criminal Revision No,10/L of 2009, initiated by Muhammad Shahid Sahil against the first impugned order dated 11-2-2009 and the second impugned order dated 18-4- 2009 passed by learned Additional Sessions Judge, Chichawatni, whereby the application of respondent No,2 Mst. Nazia Bibi complainant, praying for DNA test of accused to establish the paternity of her minor daughter Mst. Jawaria, was allowed.
2. Brief facts leading up to these criminal revision petitions are that respondent No,2 lodged a crime report against the petitioner which was registered as F.I.R.No,170 of 2005 on 26-5-2005 with Police Station City Chichawatni under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance (VII of 1979). It was alleged therein that the accused/petitioner, Muhammad Shahid Sahil, had raped her as a result of which she had conceived giving birth to a daughter Juveria.
Police investigation ensued the registration of the Crime Report. At the conclusion of the investigation, a report under section 173 of the Code of Criminal Procedure was submitted in the Court of competent jurisdiction requiring the accused to face trial before learned Additional Sessions Judge, Chichawatni. The petitioner was duly charged by the learned trial Court on 3-11- 2007. The petitioner denied the charge and claimed trial. The prosecution witnesses were summoned but before the evidence could be recorded, an application was moved by respondent No,2 praying for conducting DNA test of minor daughter of the complainant and Muhammad Shahid Sohail. After due notice and hearing the parties the application was accepted by the learned trial Court vide orders dated 11-2-2009 and 18-4-2009 which are now under challenge.
3. For technical reasons the impugned order dated 11-2-2009 could not be executed on the given date. The learned trial Court then on 18-4-2009, subject matter of Criminal Revision No,10/L of 2009passed another order directing petitioner to appear in CAME Laboratories, Lahore on 4-5-2009 at 9-00 a.m. Criminal Revision No,10/L/2009 was then moved to challenge the second order and thereby avoid its execution.
4. I have heard learned counsel for the petitioner at some length and gone through the record of the case. The impugned order has also been perused. Certain provisions of the Code of Criminal Procedure, 1898 and Qanun-e-Shahadat Order, 1984 were also read.
5. The basic function of a Court is to resolve a given controversy between the parties and ascertain truth. It is a cardinal principle of administration of justice. Learned trial Court allowed the application of respondent/complainant in order to verify whether she had conceived on account of rape committed by the petitioner. In majority of rape cases direct evidence of sexual assault is not forthcoming but if conception takes places as a result of the criminal act, the evil doer can certainly be identified on the basis of scientific analysis. The parties were directed to appear before Assistant Director, Chemical Examiner, CAME Laboratories, Canal Road, Thokar Niaz Baig, Lahore for DNA test in order to ascertain by conclusive evidence whether the paternity of the child was relatable to the accused. The accused, who is a petitioner in these cases, has not to worry at all because according to him he did not commit rape with the complainant. A special scientific test known as DNA test will certainly settle the issue. Human beings may tell a lie but scientific analysis would reveal true fact. The holding of DNA test has been resorted to. The petitioner is not the first person to face this test. This phenomenon, therefore, is not alien to our jurisprudence.
6. As regards the contention of learned counsel for the petitioner that the victim did not disclose the factum of rape earlier or that it was only when she was divorced by her husband because she gave birth to a baby girl just five months after her marriage, are matters to be agitated and dealt with at the trial. The further argument that the report of the aboratories is not per se admissible should also not worry the petitioner. It is the headache of prosecution party. The law does not oblige the accused to devise method of proving the report. The petitioner as yet does not know what will be result of the proposed test. He has a number of remedies open to him to claim acquittal. There is not legal infirmity or jurisdictional defect in the impugned order to merit reversal.
The impugned order in fact advances the interest of justice. The law does not favour a person who evades execution of judicial order and thereby obstructs the course of justice.
7. Learned counsel for the petitioner urged again that even if the report of CAMB Laboratory is obtained it will not be per se admissible in evidence as the Code of Criminal Procedure envisages acceptance in evidence a report made by Chemical Examiner, a Serologist, Finger Print Expert or Fire Arm Expert appointed by the Government. The argument of the learned counsel is not tenable because the production of report in the trial court after the De-oxy-ribonucleic Acid test commonly known as DNA has been undertaken, received as evidence can be by summoning the expert who conducted the test to prove its contents in the Court. In this way the accused will have equal opportunity to cross-examine the expert if the result of the test identifies him as the culprit. The trial Court has the power under section 540 of the Code of Criminal Procedure and Article 161 of Qanun- e-Shahadat Order, 1984 to summon material witness or examine or recall and re-examine a person if his evidence appears to it essential to the just decision of the case. Reference the cases of Muhammad Mumtaz v. The State 2001 PCr.LJ 370 (Lahore), Mst. Aamna Bibi v. Kashif-ur-Rehman and another reported as 1995 PCr.LJ 730 (Quetta), and PLD 1983 Lahore 139 reported as Abdul Ghafoor v. The State and 2 others and Ali Nawaz Gardezi v. Colonel Muhammad Yousaf PLD 1962 Lah. 558 (at page 620). In fact the Courts are not required to sit unconcerned. Article 161 goes to the extent of stipulating that in order to discover or to obtain proper proof of relevant facts, the Court may ask any question at any time, in any form, at any time of any witness or of the parties about any fact relevant or irrelevant.
8. In a case like this the best possible evidence can be in the form of a DNA test so that the truth or falsity of the allegation is clinched without loss of time. The need for scientific verification through blood/semen grouping has been expressed repeatedly by superior judiciary particularly in rape cases. The prosecution agencies in Pakistan 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.
9. Three cases illustrating the efficacy of DNA fingerprinting have been referred in LYON'S JURISPRUDENCE & TOXICOLOGY, 11TH Edition published by Delhi Law House at pages 671 & 672. The first case deals with Premananda Swami Case. In this case a renowned Swami had raped a girl as a consequence of which pregnancy had taken place. The question regarding the determination of the paternity of the child had arisen. The blood samples were collected from the child, mother of the child and the accused. DNA profiling established paternity and the Swamiji was convicted and jailed on the basis of this technique. The second case relates to assassination of Rajiv Gandhi who was assassinated by a human bomb. His body was blown to pieces. A piece of jeans was located at the scene of crime with some adherent tissue. It was collected and sent for DNA analysis. The reference blood samples were collected from the suspect's mother and father. DNA fingerprinting analysis concluded that the DNA isolated from the tissues could not be excluded from being the offspring of the DNA isolated from the suspects parents. Thus, the identity of the person was established by DNA finger printing analysis.
10. In criminal cases the identity of the actual accused is an element of primary importance. A lot of pre-meditation, improvements and tactical delays on the part of complainant party can be checked if scientific analysis is resorted to. Apart from saving time and ensuring quick disposal of cases particularly of sexual assault, such an exercise can act as a deterrent in future. Many genuine complaints remain unresolved due to stereotype method of investigation. From the point of view of a new born it is his right to be born with known paternity. The law, be it enacted or judge made, must come to the rescue of the aggrieved.
11. With the development of scientific knowledge provisions of the Code of Criminal Procedure and Qanun-e-Shahadat Order, 1984 have to be construed afresh in the light of latest scientific developments. The word expert used in Article 59 of the Qanune-e-Shahadat Order, 1984 has to be interpreted in the light of latest discoveries. However, a distinction must be drawn between opinion and report of an expert. A certain category of the report e.g. The report of a Chemical Examiner, had been duly declared as evidence but in other cases the report of an expert will have to be proved through the deposition of the expert who issues that report. Opinion of expert is, however, relevant under Article 59 of Qanun-e-Shahadat Order, 1984. This aspect needs re-examination by relevant authorities in the larger interest of justice.
12. Article 164 of Qanun-e-Shahadat Order, 1984 has resolved the problem by enacting that in such cases that the Court may consider it appropriate it may allow to be produced any evidence that may become available because of modern devices or techniques.
13. I am conscious of the fact that in the case of "Muhammad Azhar v. The State" reported as PLD 2005 Lahore 589, the learned Single Judge of the Lahore High Court had found that the utility and evidentiary value of DNA test may further help in establishing the legitimacy of a child for several other purposes but not in a case falling under the penal provisions of Zina punishable under the Hudood Laws having its own standard of proof. I disagree, most respectfully with the portion (under emphasis) because (a) under the Hudood law relating to Zina, convictions are generally not recorded under section 8 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), but convictions are invariably recorded under section 10 which deals with Zina liable to Tazir; (b) after all, the method of semen grouping or chemical analysis to detect semen or blood of human origin in cases falling under criminal jurisdiction is the contribution of modern scientific age which is being employed by Courts including the Federal Shariat Court, (c) Article 164 of the Qanun-e- Shahadat Order, 1984 has made it possible to have recourse to scientific discoveries and (d) the Holy Qur'an and Sunnah no where forbid employing scientific or analytical methods in discovering the truth. On the contrary many Ayats can be quoted from the Holy Qur'an to establish that discovery, and investigation have been strongly recommended. The tradition relatable to Hazrat Maaz bin Jabal (R.A) is quite illustrative. He employed the term IJTEHAD for the first time in the history of Islamic Jurisprudence and that too in the presence of the Holy Prophet (p.b.u.h.) when he stated that in matters where the Holy Qur'an and Sunnah are silent he will exercise mental faculties for resolution of disputes. He was deeply appreciated. It is, therefore, clear that in matters relating to Hudood Ordinance the Courts have all the powers to permit reception of evidence including resort to DNA test, if the occasion so demands. The fundamental duty of the Courts is to arrive at the truth without of course depriving an affected party to establish his point of view the contrary.
14. As a result of what has been stated above, Criminal Revision No,4/L of 2009 as well as Criminal Revision No,10-L of 2009 are dismissed. Parties as well as the learned trial Court should be informed without loss of time. The impugned order shall be executed immediately. Petitioner as well as respondent No,2 along with her minor daughter Juvaria are directed to appear in CAMB Laboratories on 28-5-2009 at 9-00 a.m. In compliance with the order of learned trial Court. The learned trial Court, after considering the report of CAMB Laboratories shall proceed in accordance with law.