DNA test case laws | DNA test case judgement | Kia DNA Test hu sakta hai | can civil court order for DNA without the consent of any person in civil suit

Supreme court held in the following case

That Court can't order DNA test without consent of any person.

petitioner nor the said Taj

Din and his wife Zubaida Bibi have given consent for their DNA test.

The petitioner has preferred to prove his relationship with the deceased

Muhammad Hussain on the basis of other evidence produced by him.

And while dismissing the application of the respondents for the DNA

test of the petitioner, the trial court has observed that “the matter can

easily be ascertained with the evidence available on record”. The

revisional court was thus not legally justified to order the DNA test of

the petitioner as well as of the said Taj Din and his wife Zubaida Bibi,

without their consent.

SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Bench - IV:

Mr. Justice Syed Mansoor Ali Shah

Mr. Justice Jamal Khan Mandokhail

Civil Petition No.2414-L of 2015.

(Against the judgment of the Lahore High Court, Lahore

dated 02.09.2015, passed in Writ Petition No.6669/2011)

Muhammad Nawaz

... Petitioner

Versus

Addl. District & Sessions Judge, etc.

... Respondents

For the petitioner:

Mian Abdul Quddus, ASC.

For the respondents:

Malik Mushtaq Ahmad, ASC.

Date of hearing:

05.04.2023

JUDGEMENT

Syed Mansoor Ali Shah, J.- The petitioner seeks leave to

appeal against an order of the Lahore High Court, dated 02.09.2015,

(“impugned order”) whereby the High Court has dismissed his writ

petition filed against an order of the revisional court, dated 02.06.2010.

By the said order, the revisional court had reversed the order of the trial

court, dated 03.02.2010, and allowed the application of the respondents

for DNA test of one Taj Din and his wife Zubaida Bibi as well as of the

petitioner to determine the parentage of the petitioner.

Briefly, the facts necessary to state for the decision of the

present petition are that the respondents asserting themselves to be the

legal heirs of the deceased Muhammad Hussain, being his nephews,

instituted a suit to challenge a gift mutation, purportedly got sanctioned

by Muhammad Hussain in favour of the petitioner, wherein the

petitioner was mentioned as the son of Muhammad Hussain. The

respondents asserted in the plaint that their uncle, Muhammad

Hussain, died issueless and the petitioner was not his son, and that the

petitioner had got sanctioned the gift mutation fraudulently.

The trial court framed issues for trial and recorded the

evidence of both parties. After the close of the petitioner’s evidence, the

respondents made an application alleging therein that the petitioner

was the son of one Taj Din and his wife Zubaida Bibi, and prayed for

C.P. 2414-L of 2015.

the DNA test of the petitioner and of the said Taj Din and Zubaida Bibi,

to rebut the evidence produced by the petitioner regarding his

parentage. The trial court dismissed the said application by its order

dated 03.02.2010 with the observation that “the matter can easily be

ascertained with the evidence available on record”. But the revisional

court, on a revision petition of the respondents, allowed the said

application by its order dated 02.06.2010, holding that the parentage of

the petitioner “can be determined through DNA test of Muhammad

Nawaz [petitioner], Taj Din as well as Zahida Begum”. The petitioner

challenged the order of the revisional court in the High Court by filing a

writ petition, which was dismissed by the impugned order. Hence, he

has filed the present petition for leave to appeal.

We have heard the learned counsel for the parties, read the

case law1 cited by them and examined the record of the case.

At the very outset, it is astonishing that the revisional court

ordered the DNA test of two persons, namely, Taj Din and his wife

Zubaida Bibi, who are not privy to the proceedings of the suit either as

a party or witness; who were not heard in the matter; and no law was

referred under which such an order could have been made, without

their consent. The High Court has maintained the order through the

impugned judgement, again without providing any opportunity of

hearing to them and without pointing out and relying upon any law

under which the DNA test of a person can be ordered, without his

consent, in a civil case. We find that both the revisional court and the

High Court have failed to consider that the conducting of the DNA test

of a person, without his consent, infringes his fundamental rights to

liberty and privacy guaranteed by Articles 9 and 14 of the Constitution

of the Islamic Republic of Pakistan (“Constitution”).2

The right to privacy involves the protection of individuals

from unwarranted intrusion into their personal lives. It safeguards an

individual's personal information, communications, family life, and

other aspects of their private sphere from unjustified interference by the

government, organizations, or other individuals. Privacy is crucial for

Salman Akram Raja v. Govt. of Punjab 2013 SCMR 203; Ghazala Tehsin v. Ghulam Dastagir PLD

2015 SC 327; Laila Qayyum v. Fawad Qayum PLD 2019 SC 449; Hamim Akhtar v. ADJ,

Gujranwala PLD 2015 Lah 500; Sardar Begum v. Azhar Masood PLD 2022 Sindh 565.

Salman Akram Raja v. Govt. of Punjab 2013 SCMR 203; Laila Qayyum v. Fawad Qayum PLD 2019

SC 449

C.P. 2414-L of 2015.

maintaining personal autonomy, as it allows individuals to make

choices and engage in activities without fear of surveillance, judgment,

or unauthorized disclosure of their personal information. Though the

right to privacy is an integral part of the right to life and liberty3, it has

been elevated to a separate and independent fundamental right by

Article 14 of our Constitution. Privacy, which is the ultimate expression

of the sanctity of a person, represents the core of the human

personality. It recognises the ability of each person to make choices and

to take decisions on matters intimate and personal to him, and thus

protects for him a zone of choice and self-determination. We may also

underline that the expression, “privacy of home”, used in Article 14 is

not restricted to the physical house of a person but covers the entire

treasure of his personal life, as the privacy attaches to the person, not

to the place where it is associated.4

The unauthorized collection of someone's DNA can be

considered a violation of their privacy, autonomy and freedom because

it involves the collection of sensitive personal information without their

knowledge or consent. This intrusion can lead to potential misuse or

unauthorized disclosure of the individual's genetic information, which

may have significant implications for their personal and professional

lives.

The right to liberty guaranteed by Article 9 of the

Constitution does not mean merely freedom from physical constraint

but assures freedom to do what a person wants to or does not want to,

unless a law enacted by the legislature in public interest provides for

otherwise. The right to liberty thus includes freedom from all arbitrary

or purposeless encroachments and restraints sought to be made by the

State or its instrumentalities, on individual autonomy. The right to

liberty is a fundamental human right that protects the freedom of

individuals to live their lives without unreasonable or unjust

restrictions from governments or other authorities. It is a core principle

of democratic societies and is enshrined in various international human

rights instruments, such as the Universal Declaration of Human Rights

(UDHR) and the International Covenant on Civil and Political Rights

(ICCPR). The right to liberty also protects individuals' privacy, including

Ibid.

Justice Qazi Faez Isa v. President of Pakistan PLD 2021 SC 1 per Justice Syed Mansoor Ali Shah;

Benazir Bhutto v. President of Pakistan PLD 1998 SC 388.

C.P. 2414-L of 2015.

their personal information, communications, and family life, from

unjustified intrusion or surveillance.

DNA testing has raised significant concerns regarding the

right to liberty and privacy. As DNA contains a wealth of personal

information about an individual, such as their genetic predispositions,

familial relationships, and ethnicity, its collection, storage, and use

have implications for privacy rights. DNA testing is sometimes used to

establish paternity or other family relationships. While this can provide

important information for legal and personal reasons, it can also raise

privacy concerns when individuals are tested without their knowledge

or consent.

10.

Bodily autonomy is protected by both the fundamental

rights; right to liberty and right to privacy. Individuals have the right to

control their own bodies, make decisions about their healthcare, and

refuse unwanted medical interventions. Unauthorized DNA collection

could be seen as violating this principle, as it involves taking a sample

of an individual's biological material without their permission.

11.

These fundamental rights, are subject to law and can only

be interfered with if so regulated by law made by the legislature.

Further, as per the constitutional command of Article 4 of the

Constitution, no action detrimental to the liberty, body or reputation of

a person can be taken except in accordance with the law, nor can a

person be compelled to do that which the law does not require him to

do. This being the constitutional mandate, any executive or judicial act

taken in respect of the rights to liberty, privacy, body or reputation of a

person must be backed by some law. A court order for the DNA test of

two persons as a means of identifying their genetic relationships

interferes with their right to privacy and liberty. This test can be

ordered only either with the consent of the persons concerned or

without their consent if permissible under a law. We are aware of

certain provisions of criminal law5 which permit the DNA test of an

accused person without his consent, but no civil law has been brought

to our notice which allows this test in civil cases without the consent of

the person concerned.

Section 164A and 164B of the Code of Criminal Procedure 1898, inserted in the Code by the Criminal

Law (Amendment) (Offences Relating to Rape) Act. 2016.

C.P. 2414-L of 2015.

12.

It may be pertinent to mention here that in a civil case, if

the person upon whom the onus to prove his genetic relationship with

another person lies, does not give consent for his DNA test, and thus

withholds such evidence, the court may draw an adverse presumption

against the claim of such person and presume that such evidence, if

produced, would be unfavourable to him, as per Article 129(g) of the

Qanun-e-Shahadat 1984. But the court cannot draw such an adverse

presumption if a person, who is not a party to the proceedings before it,

does not give his consent and present himself for his DNA test. Further,

the presumption under Article 129(g) of the Qanun-e-Shahadat 1984

being permissive, not obligatory, in nature, the court may or may not

draw such presumption in the peculiar facts and circumstances of a

case.6 In this regard, we may observe that the court should ordinarily

draw

and act upon such presumption only

where

the evidence produced by both parties is so evenly balanced that it

cannot come to a conclusion on the basis thereof or where the party

upon whom the onus lies has not produced any evidence. But where

the evidence on record is sufficient to decide the matter either way on

the standard of preponderance of probability applicable in civil cases,

the court should generally prefer to decide the matter on the basis of

that evidence rather than merely relying on presumption. It must also

be remembered that civil proceedings are primarily adversarial and in

such proceedings, it is for the party concerned to prove his assertion by

adducing sufficient evidence of his choice. The court should not compel

a party in a civil case to prove his assertion in the manner suggested by

his opponent.7

13.

In the present case, neither the petitioner nor the said Taj