The Lahore High Court (LHC), while allowing post-arrest bail to one Muhammad Azhar, has observed that DNA test is not acceptable in a case falling under the penal provisions of Zina punishable under the Hadood laws. The court further observed that the utility and evidentiary value of DNA test is acceptable and may be an important piece of evidence for a husband to establish an allegation of Zina against his wife and may help in establishing the legitimacy of a child for several other purposes.
The court observed that 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 suggested that raising such a 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.
The court passed these observations in a bail application in which the question of DNA test arose after complainant Syed Imtiaz Ali submitted DNA test report before the court which shows that the alleged father Syed Imtiaz Ali is excluded from paternity and he cannot be the biological father of the child.
The court also observed that this appeared to be a non-consensual test report or the motherless test report because DNA of the mother is missing. The court also held that although, motherless DNA tests are taking place in the west and may be useful for answering the question as to who is the biological father.
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