DNA profiling and databasing: An analysis of issues and challenges in the criminal justice system of Pakistan

Introduction

No crime scene is completely free of evidence because criminals invariably bring something into the scene and leave something behind. An inability to find and collect physical evidence does not mean that it is a perfect crime, and reliable physical evidence can always be found. ¹ Technological developments have revolutionised forensic sciences, particularly forensic genetics/DNA profiling, paving the way for the establishment of national databases to help in criminal investigations. ²

Generally, the terms ‘database’ and ‘databank’ are used interchangeably. Notwithstanding, they are two dissimilar types of storehouses for DNA profile data, not only in their subjects but also in techniques, procedures and usage. Databanks are employed in investigating criminal offences and in the detection and apprehension of offenders, whereas databases are used to allow assessments to determine how exclusive a specific DNA profile might be in larger populations. ³

Since its use in the Pitchfork case in the mid-1980s, ⁴ technological, political and policing changes, particularly in the West and the USA, have meant that DNA profiling has become a fundamental component of criminal investigations. Since its original application, DNA profiling has become the solid foundation for DNA databanks, aiming to expedite criminal investigations. The first national DNA database was launched in the UK in 1995, followed by New Zealand, several European countries, the USA and Canada. ⁵ The increasing records of databases worldwide, which are fed by millions of short tandem repeat (STR) profiles generated from suspects, convicts and unsolved crimes, have led policymakers to consider the establishment of a pan-European repository of DNA profiles as a valuable investigative tool to examine trans-border offenders and repeat/career criminals. ⁶

An analysis of European and American national databases

The UK National DNA Database maintains nationwide profiles received from law-enforcement agencies. This DNA database includes approximately 10% of the UK population in the sentenced offenders’ list index, and produces a 60% success or hit rate. New Zealand, the USA and France followed suit in founding their own national databbase. The similar project in the USA is CODIS (an acronym of COmbined DNA Index System), and it is maintained, operated and modernised by the Federal Bureau of Investigation. It claims to be the world’s leading DNA database, including approximately 14 million offender and four million arrestee profiles as of April 2020.

Despite its revolutionary potential, DNA testing has been criticised for invading individual privacy and civil rights, potential discrimination issues (e.g. racial and medical), causing public distrust in government (e.g. fraudulent use of DNA in criminal investigations) and facilitating the sharing of information with third parties and genetic surveillance.^7,8 Other critics have also raised concerns regarding the potential violation of human rights and the invasion of individuals’ privacy arising from either an absence or laxity of safeguards or regulatory mechanisms. International practices have demonstrated that the use of forensic DNA databases also involve further issues such as individual liberty, violation of human rights, convictions and exonerations of individuals. ⁹ The situation therefore requires a balancing strategy and a legal framework to guarantee effectiveness and to minimise the intrusiveness of a national DNA database.^7,10

DNA analysis/database and legal framework in Pakistan

In Pakistan, no specific laws are in place regarding the admissibility of DNA profiling or the establishment, maintenance and regulation of DNA databases, apart from the Qanun-e-Shahadat Order 1984. Its article 59 reduces DNA evidence to an expert opinion – that is, a piece of corroborative secondary evidence – while its article 164 allows the admissibility of all modes of evidence made available due to advancements in science and technology. ¹¹

Pakistani courts have recorded conflicting views regarding the admissibility of DNA evidence in deciding the paternity/legitimacy of children and in cases of sexual abuse. The conclusive presumptions of paternity and legitimacy of the child, as laid down in article of 128 of the Qanun-e-Shahadat Order 1984, foreclose any prospect of DNA profiling as conclusive evidence in this regard. ¹¹ However, in cases of sexual offences, the Federal Shariat Court has recorded divergent views regarding the admissibility of DNA evidence as an expert opinion. In Khadim Hussein v. State, the Federal Shariat Court upheld the conviction, despite a negative DNA match. Whereas in Zohra Bibi v. State, the court stressed the necessity of a DNA match for the conviction of the accused.

DNA profiling/evidence is rarely presented in cases of crime against property or homicide because of resource constraints and technical impoverishment on the part of investigation officers. The want of legislation regarding the technical, legal and moral modalities of DNA profiling further aggravates the situation. Considerations include how to be subjected to DNA testing, what the inclusion and exclusion criteria are and how the database will be set up and maintained. Other questions need to be legislated for, such as how and when such information is shared with national and international databases, how and when database profiled should be destroyed and what the monitoring and regulatory mechanisms should be to ensure the security and safety of the information stored therein.

The criminal justice system in Pakistan is heavily skewed towards oral testimony rather than material evidence. Prof. Locards, while emphasising the significance of material evidence, claimed that it cannot lie, whereas a human can. ¹ Hence, the Chief Justice of Pakistan declared his resolve to fight against the menace of fake witnesses and false testimonies. ¹² The situation clearly merits a shift from oral to material evidence, given the improvements in forensic facilities.

The legal system, however, does not have a hard and fast stance on the admissibility of DNA evidence in family cases. The reason for this is that Pakistan does not have specific laws that outline the worth of DNA tests as evidence. Without a specific ruling on admissibility, much is left to the judges’ discretion. At present, DNA evidence is evaluated against the backdrop of articles 59 and 164 of the Qanun-e-Shahadat Order 1984. This jurisprudence brands DNA as secondary evidence, despite its high accuracy. It is a form of expert evidence, which is regarded as corroboratory evidence, and this implies that no case can be decided on the basis of expert evidence exclusively without any primary piece of evidence, such as oral evidence from eye witnesses.

The culture of treating DNA reports is largely mishandled and outdated in the 1984 law. An analysis of rape cases in Pakistan reflects its minimal use in the existing legal set-up, limiting the evidence that a female rape victim may offer for prosecution in cases of Zina Ordinance (unlawful sexual intercourse), which is difficult to prove under Islamic law, as it requires four adult male witnesses to the event. Besides the dictates of Shariat, the courts in Pakistan avoid declaring a child ‘illegitimate’ on the basis of DNA testing, as they deem it will be confusing to society.

Legal quibbles concerning sampling for DNA profiling

The nature and type of sample collection, whether intimate or non-intimate, issues of consent and compellability and time lapses in sample collection in rape cases invariably influence the legal standing and admissibility of the DNA profiling procedure in Pakistan (Police and Criminal Evidence Act 1984). According to the European Convention on Human Rights, sampling from individuals’ bodies without consent is an inhumane action. By contrast, in Pakistan, no precise procedures or rules are available as regards the collection of intimate or non-intimate samples, with or without permission, as are guaranteed in the UK under the Criminal Evidence Act 1984, ss. 62–63. The Supreme Court of Pakistan, during the hearing of a review petition (Syed Mohammad Ghous v. Noorunnisa Begam Case), deliberated on the concern as to whether the court can order the defendant to submit himself for DNA sampling. It was held that the court cannot coerce a person to give blood samples for such resolutions. Nevertheless, if that person declines without any lawful objection, the court will be at liberty to conclude that the person is guilty.

Article 13 of the Constitution of the Islamic Republic of Pakistan 1973 is concerned with the safeguards against dual punishment and self-incrimination. Subsection (b) of the article affords that ‘no person shall, when accused of an offence, be compelled to be a witness against himself’. By contrast, article 20(3) of the Constitution of India states no objection to compel someone from being a witness against oneself. Justice K.A. Mohammed Shafi held in Sajeera v. P.K. Saleem, ‘It is true that without the consent of the person a blood test cannot be conducted, and there is no law in India enabling the court to compel any person to undergo the blood test as available in England’. The Indian Penal Code 1860, s. 53, states that a check-up of a suspect by the medical officer upon the demand of a police officer validates the component of compellability or use of force in the collection of samples from both detainees and suspects. It was decided in Sharda v. Dhrampal that the court could order the medical examination of litigants concerning a matrimonial issue. Such directions would not infringe one’s right to privacy.

The UK Police and Criminal Evidence Act 1984, s. 62, empowers police regarding the collection of both intimate and non-intimate samples using appropriate consent and mechanisms, albeit not without consent. Likewise, s. 20(3) of the Constitution of India safeguards the immunity of the accused, whereby he/she cannot be forced to be a witness against him/herself. Similarly, in several countries, forcible sample collection is declared an inhumane action with regard to article 3 of the European Convention on Human Rights.

On issues of compellability, the Indian Code of Criminal Procedure 1973, s. 53, elucidates the examination of the accused by medical practitioners at the request of a police officer:

‘When a person is arrested on the charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it would be lawful for a registered medical practitioners, acting at the request of a police officer, not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose’. ¹³

In Ashe v. Garrison, the defendant, who was sentenced for committing burglary, demanded that the forcible collection of DNA sample was an infringement of his constitutional rights afforded by the Fourth Amendment in the Constitution of the United States. The court upheld the precedent and maintained that the interests of the government in protecting the long-term identification data of sentenced felons for solving past and future crimes offsets the negligible intrusion in the form of a collection of blood samples. The court also mentioned the ruling recorded in Jones v. Murray that people who have been legally arrested on credible cause and imprisoned lose a right of privacy from usual searches of their body orifices and of their cells. A similar ruling was held in Hudson v. Palmer. Even probationers have to forego the protective shield of the Fourth Amendment concerning their right to privacy against all sorts of searches in pursuance of a recognised programme guaranteeing rehabilitation and safety (Griffin v. Wisconsin).

DNA analysis as a tool to check miscarriage of justice

Can DNA profiling and analysis provide a check against the shortcomings existing regarding the wrongful convictions or acquittals in the criminal justice systems? The answer can be found in the efforts of the Innocent Project. This consists of a group of American lawyers who have been working on testing and retesting DNA evidence since 1992. The organisation works with prosecutors, courts and DNA testing facilities to conduct tests on pieces of evidence connected with particular offences. It deals with the exoneration of innocent people through DNA testing, and focuses on reforming the justice system. It has overturned 212 cases, 15 of which involved the death sentence. ¹⁵ In 82% of cases, retesting consent came from prosecutors, while in the rest, it was granted by the court. The analysis of 365 cases identified the reasons of wrongful exonerations/convictions as eyewitness misidentifications, extorted confessions, motivated admissions, informants, polluted forensic scenes, contaminated samples, government misconduct and inadequate defences as the main causes of these miscarriages of justice.

The criminal justice system in Pakistan is not an exception to such shortfalls. Consequently, similar projects could be replicated, as the Code of Criminal Procedure 1898, s. 428, ‘empowers any appellate court to take further evidence or direct to be taken’. The prosecution department should develop criteria comprising the reasons for justifying the retesting of DNA analysis, such as its absence led to a miscarriage of justice or the requested DNA testing was unavailable at the time of trial or, if available, it was not tested, and the outcome of such testing or retesting could indicate a strong probability of innocence of the convicted person. ¹⁶ Such requests for testing or retesting should be sent to their respective district justice coordination committees headed by the district and session judge for the analysis and recommendations and so on. If the committee recommends testing or retesting, then the prosecution department should take up the matter before the concerned appealed court.

Crime scene and evidence collection

In Pakistan, DNA evidence is usually collected in high-profile cases, and instead of investigation officers, the crime-scene management unit (CSU) bags and tags the traces of evidence for dissemination to the forensic lab. The DNA samples usually follow a strict protocol for profiling, and the results are reported to the courts by a qualified DNA expert. Generally, for these processes, actual turnaround times are six months, and result in delayed trials at court. However, cases of violent sexual abuse, resulting in panic in society, are afforded a different priority.

In every criminal case, upon the registration of First Information Report, the station house officer assigns the investigation to a subordinate investigation officer. In most cases, the subordinate officer has no proper training or technical experience, nor is he/she assisted by any well-equipped crime-scene technician. ¹⁷ Since forensic science is not considered a part of crime-scene analysis, in Pakistan, crime-scene investigations have invariably been neglected and have been played down for decades. Police are improperly trained, poorly financed and insufficiently equipped with the materials necessary for the comprehensive proper bagging and tagging of trace evidence, as a result of a lack of many crime-solving technologies. Since investigation methodologies have been revolutionised from primitive evidentiary material such as confession, admissions and eye-witness evidence, insufficient to convict the offenders, police are yet to respond to the innovations taking place in the field of crime. ¹⁸ Crime-scene processing in Pakistan is poor. ¹⁹ It is evident that an efficient and functioning police service is required to solve many serious crimes. ²⁰ Capacity is severely diminished by the lack of forensic services, inadequate training and equipment. There is also a dire need for a shift among investigating agencies in their attitudes towards the collection of DNA evidence in sexual offences. Even in rape cases, the police do not take DNA reports seriously, as samples are not collected, stored or packaged properly and evidence is often lost. We hardly ever find crime scenes that have not been polluted or that are not surrounded by inquisitive bystanders, rescue workers, volunteers or the press. This situation is further aggravated by the paucity of investigation funds. The negligible budgetary allocations preclude the possibility of investigation, even when the samples are bagged, tagged and conserved within the prescribed time frame. Besides, the en-route pilferage and absence of suitable transportation to labs is another significant problem. In a developing country such as Pakistan, testing should be funded by the state for the victims. The approximate cost is Rs.20,000, and this is invariably financed by the victims’ families.

To tackle these problems, in 2001, Pakistan decided to revolutionise the existing forensic science infrastructure, and then in 2002, the Executive Committee of the National Economic Council permitted the National Forensic Science Agency (NFSA) to function as an autonomous body. Since 2006, it has been teaching, training and creating additional forensic labs all over the country. The Punjab Forensic Science Agency (PFSA) in Lahore is equipped with state-of-the-art technology that is being used throughout the developed world. Despite being a provincial agency, it also accommodates cases from other provinces. The NFSA also has its own CSU covering Islamabad and nearby districts.

In the Sindh province of Pakistan, CSUs are unavailable, and crime-scene analysis is done by local police officers. The Sindh government has announced the establishment of serology and DNA forensic labs at Karachi University. Presently, the province is outsourcing its investigations to the PFSA.

The Forensic Science Laboratory (FSL) Peshawar, although functional, does not meet the standards of a forensic laboratory. FSL has well-established CSUs but with limited coverage in Khyber Pakhtunkhwa province. The province is also outsourcing DNA samples to the lab in Punjab. Balochistan and Azad Kashmir have no modern forensic facilities, and they also outsource their cases to Islamabad or Lahore. Normally, this outsourcing process results in prolonged trials. The practice of outsourcing evidence affects the already overworked PFSA, lengthening the turnaround time.

Currently, Pakistan does not have a national DNA database. The creation of a database is always fraught with ethical and legal concerns such as the lukewarm response of courts concerning admissibility, contamination of samples, procedural protocols and legal and moral controversies regarding the inclusion and exclusion criteria of profiles in databases at the national level. ²¹ No database should be established without legislation and without ensuring legal and ethical protections. As an example, the maintenance of DNA profile/data in the UK is governed by the Police and Criminal Act 1984. These issues should be mindfully tackled by policymakers in Pakistan, taking into account human rights and legal considerations.

According to the best international practices, three types of DNA databases have been identified. Taking into consideration the socio-economic conditions and existing legal framework of Pakistan, these three types are discussed below.

Database comprising DNA profiles of a wider population

Such databases have the potential to provide a greater level of investigation efficiency and ensure equal inclusion criteria. Forced subjection of all individuals, including those not involved in criminal activities, is in fact an infringement of individuals’ freedom and privacy which are guaranteed constitutionally. Besides, such an ambitious project is not cost-effective. It would involve creating a database that comprises the DNA profiles of the entire population, including those under investigation, under trial and convicted prisoners. If attempted, this would be highly cost prohibitive, as Pakistan has a population of 18.7 million. The mean expenditure for a DNA test is roughly Rs.12,000. Even putting a quarter of the population on the test list, along with infrastructural expenditure, would be very ambitious and financially infeasible. The benefits might not be worth the cost.

Database comprising samples taken for a specific list of crimes

This links a passive subject with an offence under investigation. Individuals are sampled on the basis of suspicion for their alleged connection with a specific offence. This system guarantees proportionality between freedom and security of the individuals, but prerequisites a detailed legal framework.

Database based only on the specific analysis of each case

This system encompasses the compulsory subjection of the individual for DNA sampling when there is clear proof of his/her involvement in the commission of the crime. In countries such as Pakistan, where projects of DNA databasing are in embryonic form, devoid of a legal framework and regulatory mechanism, such a system can afford solid and reasoned grounds for each sample collected involuntarily. Notwithstanding, such databases are usually unproductive when investigating a crime with an unknown offender and may not be useful in closing cold cases.

Paucity of labs and heavy turnarounds

Owing to the paucity of labs in Pakistan, the number of samples that need to be processed always exceeds capacity. This backlog is a serious issue to law enforcers, since unanalysed samples cannot be used to solve cold cases. Such backlogs include both casework awaiting completion and profiles of arrested or convicted offenders waiting to be uploaded to databases. Heavy backlogs and turnarounds (usually six months in routine cases), a rise in crime and a paucity of judicial officers have badly affected the criminal justice system in Pakistan. In 2019, there was a backlog of 1.9 million cases pending in both trial and appellate courts in Pakistan. ²² Besides, in 2018, a total of 703,481 criminal cases were registered, thereby meaning that more than 0.7 million cases are being pumped into the criminal justice system annually. Given the present capacity of the existing labs, DNA turnaround times are high. Traces can become irrelevant for the investigative phase because, in the meantime, unknown suspects can be caught by other means. ²³ Hence, investigating officers are compelled to resort to oral evidence, and the cumulative effect is a dismal conviction rate.

Recommendations

DNA success rates, turnaround times and the collection of DNA samples and contamination issues can be undertaken more comprehensively by using ‘rapid’ DNA analysis kits. In future, a robust, mobile, all-in-one platform will be available for on-site real-time DNA (STR) profiling. ²⁴ These kits will curtail natural delays ensuing from bagging and tagging procedures and subsequent transportation to central labs, although the cost–benefit ratio must be considered. Issues of reliability and validity of such in-house on-site analyses can be tackled by ensuring the necessary calibration of procedures and quality-control mechanism, although to date, this methodology has not proven to be reliable for use at the crime scene. ²⁵

Thus, the government of Pakistan should establish a commission for drafting legislation about the establishment and regulation of the subject database. The commission should be mandated to recommend the law vis-à-vis the admissibility of the DNA evidence in courtrooms. The commission should primarily create a pilot project aiming at designing software, guaranteeing the sharing of the information stockpiled at different labs. It should also propose information-sharing protocols with international organisations.

The feeder DNA labs, while contributing to the national database, must toe the line of latest international quality standards. Such values and parameters should encompass the organisation, lab technicians, testing facilities, sample-control procedures, validation criteria, analytical procedures, equipment calibration and maintenance, corrective arrangements, performance audits, safety protocols and outsourcing criteria.

The feeding parameters should clearly specify which category of data would be demanded from feeder labs for storage purposes, what the minimum loci prerequisite for STR DNA data tendering should be and what the standard of severity and flexibility should be about the right of entry or access to the national database.

There should be uniformity of rules and regulation at provincial levels concerning admission to the database. The commission should determine the requirements for provinces’ contributions to the national database. Security and privacy concerns vis-à-vis the upkeep and functioning of the database must be supported by an act of parliament similar to the US DNA Identification Act 1994 (FBI Factsheet).

Conclusions

Advances in technology will continue to bring more science to criminal investigations, and it is never too late to adopt them by making them fit for our criminal justice system. DNA profiling is the best available scientific mechanism for unearthing the truth, but its limited admissibly in our criminal justice system has diminished its ‘boon’ and reducing it to more to a mere waste of resources. The progressive and proactive judiciary can accord it the stature of primary evidence through judicial endorsements. Judiciary can bring about a shift from oral to material evidence, in particular DNA evidence, revolutionising the stalemate in the criminal justice system of Pakistan. Besides, the establishment of any forensic DNA database requires legislative authorisation, fiscal support and judicial sanction. Its existence and sustained operation are always dependent upon regular considerations and negotiated arrangements between the stakeholders. Consequently, the existing technology exploiting the genetic properties of persons could be utilised successfully only after the sustained and deliberate reforms at legislative, judicial, operational and infrastructural levels.