ATIR MAHMOOD, J.---Through this constitutional petition, the petitioners have challenged the legality of order dated 10.01.2013 passed by respondent No,10/learned Civil Judge Shakargarh, District Narowal, whereby, application of respondents Nos,1 to 7-D for conducting DNA test of petitioner No,2 was accepted and order of learned Additional District Judge, Shakkargarh, District Narowal dated 20.12.2013 whereby appeal of the petitioners filed against order of learned trial Court, was dismissed.
2. Precisely the facts of the case are that respondents Nos,1 to 7-D filed a suit for declaration with consequential relief against the petitioners before learned trial Court, alleging therein that Muhammad Yaqoob (deceased) died issueless, however, petitioner No,2 was his adopted son, therefore, the mutations sanctioned relating to legacy of Muhammad Yaqoob in favour of petitioners are the result of fraud. Suit was contested by the petitioners by way of filing written statement. Issues were framed and evidence of the parties was recorded. When the case was at the verge of final arguments, respondents Nos,1 to 7-D filed an application before the learned trial Court for issuance of direction for DNA test of petitioner No,2. Petitioners contested this application.
Learned trial Court vide impugned order dated 10.01.2013 accepted the application. Feeling dissatisfied, petitioners filed revision petition before respondent No,11/learned Additional District Judge, Shakkargarh, District Narowal which was dismissed vide impugned order dated 20.12.2013.
3. Learned counsel for the petitioners contends that impugned orders are illegal and unlawful; that learned courts below have failed to look into the matter the settled proposition of law that Court is not supposed to aid any litigant or to fill-up lacuna of the case of a litigant, however, it is the duty of litigant to prove its case and filing of application by the respondents is definitely to fill-up lacunas of the case; that DNA Test is not a dependable test, when there is independent evidence available on the record to adjudicate the case; that petitioners have not given their consent for DNA test, to compel a person to undergo or to submit to medical examination of his/her blood without consent tantamount to interference with his/her fundamental right of life and liberty; that there is no provision in the Code of Civil Procedure, 1908 or Qanun-e-Shahadat Order, 1984 or any other law which may be said to authorize the Court to compel a person to undergo such a medical test against the wish of the petitioners; that during the lifetime of deceased, nobody never challenged the paternity of petitioner No,2 and even after three years of sanctioning of inheritance mutations, respondents Nos,1 to 7-D preferred a false application. Lastly, prayed that this writ petition be allowed and impugned orders passed by learned courts below be set aside.
4. Respondent have already been proceeded against ex parte vide order dated 27.09.2017.
5. Arguments advanced by the learned counsel for the petitioners have been heard and record made available before me has also been perused.
6. The only question involved in this case is as to whether paternity of a person in a civil case pertaining to inheritance could be determined by conducting a DNA test when independent evidence is available on the record. Admittedly, father of the petitioner No,2 namely Muhammad Yaqoob is not alive. The DNA test is sought to be conducted by matching blood samples of the petitioner with her mother Mst. Safia Bibi. Admittedly, during the lifetime of deceased, the paternity of the petitioner No,2 was not questioned by the other side, however, when mutations were sanctioned in favour of the petitioner, the respondents sought attestation of paternity of petitioner No,2. The respondents being real brothers, sisters and nephews of the deceased asked for DNA in a routine manner, without prima facie establishing that such test is inevitable. The choice to DNA Test is made in exceptional circumstances. Entertaining applications for DNA Test as a routine in inheritance cases would open Pandora box and co-sharers in the property would move such applications frequently. In a case reported as "Salman Akram Raja and another v. Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and others" (2013 SCM R 203), the august Supreme Court of Pakistan has observed as under: It is well settled that the consent of victim is necessary and she/he cannot be subjected to DNA or other medical test forcibly for prosecution purposes because that would amount to infringement of personal liberty of such persons. Reference may be made to the cases of Bipinchandra Shantilal Bhatt v. Madhuriben Bhatt (AIR 1963 Guj. 250), Polavarapu Venkataswarlu v. Polavarapu Subbayya (AIR 1951 Mad. 910), Sabayya Gounder v. Bhoopala Subramanian (AIR 1959 Mad 396), Venkateswa rulu v. Subbayya (AIR 1951 Mad. 910), Goutam Kundu v. State of West Bengal (AIR 1993 SC 2295), Ms. X v. Mr. Z and another -(96 (2002) DLT 354), Syed Mohd. Ghouse v. Noorunnisa Begum (2001 Cr.LJ 2028) and Haribhai Chanabhai Vora v. Keshubhai Haribhai Vora (AIR 2005 Guj. 157). In Syed Mohd. Ghouse's case (supra), the Andhra Pradesh High Court relying upon the case of Gautam Kandu (supra), quashed and set aside the order for conduction DNA test by observing that before ordering the blood test, either for DNA or other test, the court has to consider the facts and circumstances of the given case and the ramifications of such an order. But the Court cannot compel a person to give the sample of blood. In Haribhai Chanabhai Vora's case (supra) the Gujarat High Court has held that when the petitioner (therein) had not given consent, he could not be compelled to submit himself for DNA test as it would be interfering with the personal liberty, and at the most, adverse inference can be drawn at the final conclusion. Thus, it is held that the Court has power to order for DNA or any blood test in order to ascertain the truthfulness of the allegation levelled by the victim but such order must be with the consent of victim. However, this benefit cannot be extended to the accused. Reference in this behalf may be made to Solaimuthu's case (ibid), wherein the Madras High Court held that DNA test did not offend Article 20(3) of the Indian Constitution.
(Emphasis provided)
7. In above cited judgment it has been held that nobody could be forced to have her blood test samples obtained for conducting of DNA Test. The Court has to consider the facts and circumstances of each case. If a person does not give consent for such test, he/she cannot be compelled for the test. It amounts to interference with personal liberty of a person. It was finally concluded that the Court has power to order for DNA Test or any blood test in order to ascertain the truthfulness of allegations but such order must be passed with the consent of a party, the order cannot be made in routine. Compelling a person to undergo a DNA Test can have serious consequences. It is the duty of a court to safeguard and protect personal liberty of every citizen.
Suffice it to say that the petitioner was required to prove his case through production of independent evidence as DNA test is not the sole mode to adjudge and determine legitimacy of the children in Civil matters of inheritance as a matter of routine, the paternity issue could be proved by oral and documentary evidence.
8. In view of above, this constitutional petition is allowed and the impugned orders passed by both the courts below are declared to be illegal and unlawful, therefore, same are set aside. Resultantly, application of respondents seeking DNA test is dismissed. No order as to cost.