Abstract

Forensic evidence is holding an important position in criminal justice systems all over the world. It is not only relevant in a criminal investigation but also in prosecution. The role of forensic evidence in the criminal justice system in Pakistan has increased significantly due to the advancement in forensic science. The courts in Pakistan are relying heavily on forensic evidence in relevant matters. The main objective of this research is to discuss the role, importance, nature, and the evidentiary value of forensic evidence with respect to the criminal justice system in Pakistan. It is found that the role of forensic evidence in Pakistan is not at par with the modern world as it is not being properly used in Pakistan. There is a dire need to improve legislation, institutional structure and stakeholders' capacity dealing with forensic evidence in the light of the recommendations made in this study.

Key Words

Criminal, Evidence, Forensic, Investigation

Introduction

Forensic science and forensic evidence are holding key positions in the criminal justice system, particularly in criminal investigation, all over the world (Turvey & Petherick, 2010). The evidence holds a basic role in adversarial criminal jurisdictions. Like other criminal jurisdictions, it is the evidence and the principles of evidence which play a decisive role in determining a matter in the court of law in Pakistan. The forensic evidence is becoming essential day by day in criminal investigations and prosecutions as it fulfills different roles central for the processes involved in the criminal justice system (Fisher, 2004). Forensic evidence is important not in the investigation but also in the prosecution (Roman et al., 2008). 

The use of forensic evidence was found having clear advantages for the investigation and the prosecution in the cases where it has been used. However, forensic evidence is found to be more relevant in homicide and sexual assault cases. The type and amount of forensic evidence depends upon the type of crime committed. The forensic evidence must be relevant to establish its evidential value. Its probative value can only be judged to the extent how far it is helpful to establish the relevant fact (McEwen, 2010).  

The relevance of forensic evidence in the criminal justice system in Pakistan has been increased significantly like other countries in the world (Narejo & Avais, 2012). Forensic evidence is a kind of evidence that is arrived at by scientific or technical means. The word 'forensic' is derived from a Latin word called forensis which means ‘before forum’ (Weizman, 2014). Forensic evidence is usually obtained from the material collected from the crime scene (Farooq & Waheed, 2013). In the courts in Pakistan, it is the everyday practice to present and rely on forensic evidence. However, this reliance is not at par with the modern countries in the world, yet the reliance on forensic evidence in the courts is increasing. As far as medical evidence is concerned, which is a form of forensic evidence, the court in Pakistan has a long history of reliance on such evidence when relevant (Mateen, Tariq, & Rasool, 2018).

Forensic evidence is a key component in a criminal investigation. In a typical criminal case, there are different phases and decision points where the relevant stakeholders need to make different important decisions. The forensic evidence, along with other forms of evidence, help the stakeholders making informed decisions which are beneficial for their cause. Usually, the investigators collect forensic evidence to establish an association among people, places, and events for the purpose of confirmation and/or refutation (Kiely, 2001).

The scientific value of forensic evidence depends upon its methodological reliability, validity and standardization of its execution. The field of forensic science has also come under criticism due to some inherent defects and limitations. Further, the cases of misuse of forensic science in the past added fuel to fire (Murphy, 2015). However, despite these drawbacks, forensic evidence is a useful kind of evidnce for to meet the end of justice in any criminal justice system (McEwen & Regoeczi, 2015).   




What is Forensic Evidence?

Black’s Law Dictionary (1999) defines forensic evidence as evidence taken by scientific means such as medical evidence. The Article 164 of Qanoon-e- Shahadat Order 1984, which deals with the forensic evidence states such evidence as becoming available because of modern devices. Forensic evidence is such a kind of evidence which derived through the scientific method with the objective to prove some crime or to settle some dispute (Murphy, 2015). Forensic evidence refers to the evidence collected using scientific methods for use in legal proceedings (Quadara, Fileborn, & Parkinson, 2013). 

According to different forensic authorities, forensic evidence can be categorized as biological evidence, fingerprint evidence, drug evidence, impressions evidence, trace evidence, weapons evidence, natural and/or synthetic materials, electronic and/or printed data, and other items, which is a catchall category for forensic evidence (Fisher, 2004; Gardner, 2004; Lee, Palmbach, & Miller, 2004; Ragle, 2002). In Pakistan, the Punjab Forensic Science Agency discusses forensic evidence under different headings i.e. DNA & Serology, Toxicology, Crime & Death Scene Investigation, Firearm & Toolmarks Identification, Polygraph, Trace Chemistry , Latent Finger Prints, Computer Forensic, Forensic Photography, Narcotics, Audio Video Analysis, Pathology and Questioned Documents (PFSA, 2018). 




Institutional Framework Dealing with Forensic Evidence in Pakistan

In Pakistan forensic science is not as developed as that in other developed countries. However, there are some forensic institutions in Pakistan which are providing forensic services for the criminal justice system across the country. In Pakistan, the National Forensic Science Agency (NFSA) is one of the pioneer forensic science facilities which is currently offering services in crime scene investigation, forensic DNA, firearms and toolmarks, fingerprints, questioned document, and explosive. The aim of the National Forensic Science Agency was to help establish other forensic science facilities across the country for teaching and training purposes (NFSA, 2017). 

In Punjab, The Punjab Forensic Science Agency (PFSA) is the most advanced forensic lab in Pakistan. It has fourteen departments which includes DNA & Serology, Toxicology, Crime & Death Scene Investigation, Firearm & Toolmarks Identification, Polygraph, Trace Chemistry, Latent Finger Prints, Forensic Photography, Narcotics, Audio Video Analysis, Pathology, Questioned Documents and Computer Forensic departments. The Punjab Forensic Science Agency is also parting quality training to the relevant stakeholders in the criminal justice system in Pakistan. The Punjab Forensic Science Agency maintains a high-quality management system, ISO 17025:2005 and ASCLD-LAB International (PFSA, 2018).

In Sindh province, there is no independent forensic science agency. The Sindh Forensic Science Agency Act was passed in 2017, but no forensic facility was established. There are a few forensic labs as in the University of Karachi and Liaquat University of Medical and Health Sciences, Jamshoro along with some other forensic labs in the universities in the province of Sindh. As far as the province of Khyber Pakhtunkhwa is concerned, the police in this province established a forensic science laboratory in Peshawar. In the provinces of Baluchistan and Gilgit Baltistan, there is no independent and structured facility of forensic science (Mateen, Tariq, & Rasool, 2018).   




Statutory Provisions related to Forensic Evidence in Pakistan

Article 59 and 164 of QSO, 1984 are the relevant statutory provisions that deals with forensic evidence. Article 59 of QSO, 1984 specifically deals with expert opinion in the case when a court wants to form an opinion regarding some point of science/or art, or to identify the handwriting or fingerprints or foreign law etc., the opinions of experts on either of such a point would be a relevant fact and can be taken. However, Article 164 of QSO, 1982 deals with the admissibility of the forensic evidence and considered such evidence becoming available due to modern devices and the court can be allowed such evidence.  

Importance of Forensic Evidence in Criminal Matters

Forensic evidence is a kind of evidence which is considered and perceived as more objective than other kind of evidence. It is useful not only in cases of violent crimes but with the advancement in science forensic evidence is equally useful is investigating nonviolent white-collar crimes (Ling, Kaplan, & Berryessa, 2021). 

The importance of forensic evidence is evident from the fact that all over the world it is considered and perceived as the strongest, most reliable, and objective kind of evidence. This fact has been confirmed through several research. Forensic evidence is considered as an objective and strong form of evidence in the courtroom (Freeman & Punzo, 2001; Shermer, Rose, & Hoffman, 2011; Maeder, Ewanation, & Monnink, 2017; Pearson, et al., 2018; Schweitzer & Nuñez, 2018). DNA evidence, particularly, is considered as the most trusted and valued form of forensic evidence (Lieberman, et al., 2008; Hans, et al., 2011; Clancy & Bull, 2015).

In Pakistan, there are several superior courts judgments which imply the importance of forensic evidence. Forensic evidence is important evidence and depending upon the nature of the matter, sometimes forensic evidence is of utmost importance. This fact and the status of forensic evidence is endorsed by the various judgments of the superior courts in Pakistan (Intekhab Ahmad Abbasi v The State 2018 SCMR 495; Ismail Parvez Minhas v The State 2018 YLR Note 11 ; Omair Ali v The State 2018 PCrLJ 1224; Aslam Surhiani v The State 2017 PCrLJ 174; Muhammad Imran v The State 2017 YLR 2394; Muhammad Safeer v The State 2017 PCrLJ 1435; Riaz Ali v The State 2016 YLR 78; Sadduridin Alias Sadoro v State 2015 MLD 1259; The State v Shakeel Ahmad 2015 MLD 1374; Muhammad Khan v State 2013 YLR 491; The State v Muhammad Ramzan 2012 YLR 2191; Tanveer Alias Teroo v State 2010 YLR 1988; The State v Ahmad Zaman Khan 2002 PCrLJ 2041; Ghulam Rabbani v The State 2000 YLR 1580). 

The relevance and the conducive attitude of the superior courts in Pakistan regarding the forensic evidence is further reinforced by various judgements of the courts in which the courts imply that the relevant evidence must be sent for the forensic analysis, so it can be used to settle the relevant matters (Atta ur Rehman v State 2018 PCrLJ 276; Bilal Mehmood v The State 2018 MLD 1559; Manzoor Ahmad Alias Mavia Alias Usama Alias Habibullah v The State 2018 MLD 1512; Muhammad Fayyaz v The State 2018 YLR 1377; Sikander Alias Sani v The State 2018 MLD 1220; Khuram Jalali v The State 2017 PCrLJ Note 19; Shah Izzat Alias Shahzad v Adnan Constable no. 5355 2017 PCrLJ 25; Taj Muhammad Alias Tajo Rind v The State 2017 YLR Note 443; Abdul Ghafar Ansari v State 2016 MLD 546; Inayatullah Alias Zahid Alias Farho Chandio v State 2016 PCrLJ Note 10; Syed Fida ur Rehman Shah v State 2016 PCrLJ 1167; The State v Iftekhar Hussain 2016 GBLR 315; Wazir v State 2016 GBLR 131 Suprem Appellate Court; Dilawar Mehmood Alias Dulli v The State 2015 YLR 805; Tallat Alias Arshad v State 2015 PCrLJ 511; Muhammad Amin v State PLD 2006 SC 219; Muhammad Qaiser v State 2006 YLR 3158; Zahid Hussain v State 2005 PCrLJ 1683; Shamshad Ahmad v State PLD 2004 Lah 368; Muttiullah Khan v State 2002 YLR 3808 609). 

The Courts in Pakistan further held that the forensic evidence must be presented in the relevant matters. In these judgements the courts noted that no medical and/or forensic record was presented where there must be forensic evidence to support the respective argument, which further imply the importance the courts in Pakistan attach to the forensic evidence (Adil Mansoor v The State 2017 MLD 1046; Saddam Hussain Shambozai v The State 2017 YLR 1667; Muhammad Asad v The State 2016 PCrLJ Note 108; The State v Iftekhar Hussain 2016 GBLR 315; Irfan Butt Alias Arif Butt v The State 2015 YLR 2225; Muhammad Sharif v Sagheer Ahmad 2015 PCrLJ 611; Azhar Hussain Rizvi v State PLD 2014 Sindh 547; Muhammad Siddique v State 2012 YLR 1191; Muhammad Ramzan v State 2011 YLR 2379; Dr Muhammad Abrar Younus v State 2010 YLR 1674; Muhammad Zubair v State 2010 PCrLJ 1892; Sajid Mumtaz v Basharat 2006 SCMR 231; Mukhtar Mai/ The State v Abdul Khalaq 2005 SCMR 1936; Ali Imran v State 2004 PCrLJ 1561; Tariq v State 2004 MLD 1967 ; Ali Gul v State 2003 SCMR 201).




Forensic Evidence is Corroborative rather Conclusive Evidence 

The status of forensic evidence is corroborative. It is not conclusive evidence. The conviction cannot solely be based on this type of evidence. The superior courts in Pakistan consider the corroborative nature of forensic evidence and interpreted forensic evidence not as overriding witness testimony. It is obvious form several judgements of the courts in Pakistan. The medical and the forensic evidence is corroborative evidence rather than conclusive evidence and the conviction of an accused cannot be solely based on forensic evidence (Mukhtar Alias Mokhi v The State 2018 YLR 1302; Muhammad Hayat v State 2016 PCrLJ Note 121; Khalid Rasheed v State 2012 MLD 1274; Zeeshan Alias Shani v State 2012 SCMR 428; Sardar Ali v Special Judge 1996 MLD 460).    

The Specific Rules of Evidence Apply on Forensic Evidence

Courts in Pakistan considers the application of general and specific rules of evidence on forensic evidence too. There are several cases in which the admissible forensic evidence became inadmissible due to different factors, the most important of which was the mishandling of forensic evidence. It was held by the courts in Pakistan that the delay in initiating and processing and the mishandling of medical and forensic evidence make these evidence defective and inadmissible (Adnan Hussain v The State 2018 YLR 1412; Mohammad Hayat v The State 2018 PCrLJ Note 61; Mukhtar Alias Mokhi v The State 2018 YLR 1302; Raees Khan v State 2018 MLD 835; Muhammad Ayyaz v The State 2017 PCrLJ Note 29; Muhammad Umair v The State 2017 YLR 1097; Pirzada Alias Peer v The State 2017 PCrLJ 605; Samandar Alias Qurban v The State 2017 MLD 539 ; Waris Ali v State 2017 SCMR 1572; Ahmad Sher v State 2016 YLR 2476; Assadullah v State 2016 PCrLJ 1698; Habib Khyzer v The State 2016 YLR 393; Javed Iqbal v State 2016 SCMR 787; Muhammad Irfan v The State 2016 PCrLJ 1178; Muhammad Rizwan v The State 2016 YLR Note 102; The State v Sadam 2016 PCrLJ 1815; Nasir Mehmood v State 2015 SCMR 423; Amjad Wali v State 2014 YLR 1503; Jalal v State 2013 YLR 961; Muhammad Ayoob v State 2012 PCrLJ 1438; Ehsanullah v State 2010 PCrLJ 1415; Sardar Sher Muhammad v State 2007 MLD 252; Khuda Bakhsh v State 2002 YLR 2160).




Forensic Expert’s Testimony and Forensic Report as the Pre-requisites for Forensic Evidence to be Admissible. 

It is the general rule of evidence that evidence should be based on facts. A witness can give testimony based on facts what he/she observed. The opinion of the witness in testimony is irrelevant and inadmissible (Ali & Woodroffe, 1907). The opinion of the witness, other than the stated facts, is a mere bias (Powell, 1868). The formation of an opinion for the purpose of verdict is the function of the trier of the fact and not of witness or other stakeholders. And as a matter of fact, the trier of the fact cannot be an expert of everything, thus the law allows taking the expert opinion of an expert witness if necessary for the making of an opinion by the trier of the fact. It makes the opinion of an expert witness as expert opinion in the form of forensic evidence relevant and admissible (Grover & Murphy, 2013).  

The testimony and the forensic report of an expert in the form of forensic evidence cannot be admissible ipso facto, rather it shall be subject to the cross-examination of the expert to test the veracity of it with the exceptions for serology, fingerprint, and fire-arm reports. Furthermore, the qualification of such an expert and the reliability of the forensic report must be tested. The superior courts’ judgements implied that there must be qualified forensic expert and forensic report to make the forensic evidence admissible. Forensic evidence must meet this basic criterion to be admissible (Kashif Nawaz v The State 2018 YLR 1084; Rizwan Ahmad Qureshi v State PLD 2017 Sindh 653; Shaukat Ali Alias Baba v State 2016 PCrLJ Note 33; Niaz Alias Niazzo v State 2015 YLR 2255; Arif ud Din v State 2013 PCrLJ 1129).

Recommendations

To improve the quality of forensic evidence and to bring it into more functional harmony with the criminal justice system in Pakistan there need to address a few lacunas in the system. First, the accreditation of forensic labs across Pakistan be made more meaningful and up to the international standard for forensic labs. Secondly, there must be the capacity building of the personals working in the forensic labs. Thirdly, there must be proper legislation and legal reforms at par with the modern developments in forensic science to accommodate the forensic evidence in criminal justice system. Fourthly, the governance structures of forensic facilities in Pakistan can be improved to enhance the integrity of forensic evidence. As the process of forensic evidence starts from the crime scene and all the way through ends in the courtroom. There must be judicial oversight in the administration of the forensic science facilities in Pakistan. Fifthly, as in the number of judgements cited in this paper it was held by the superior courts that the delay and mishandling of forensic evidence made the relevant and otherwise admissible evidence as inadmissible. This speaks volume about the lack of training of investigative agencies to handle the forensic evidence. They need to be properly trained in dealing with forensic evidence. Moreover, there must be the proper training and education of the lawyers and the lower courts judges to deal with the intricacies of forensic evidence.  

Conclusion

Forensic evidence is holding key position in criminal justice system (Turvey & Petherick, 2010). It is not only relevant in investigation but also in prosecution. Now a days, with the development in science the trend of forensic evidence is increasing in the courts in Pakistan. Although it is everyday practice in the courts in Pakistan to present and relied upon forensic evidence in relevant matters but the criminal justice system in Pakistan is yet developing regarding the forensic evidence as there is under-utilization of forensic evidence. As far as the forensic institutional structure in Pakistan is concerned, the situation is bleak except in Punjab. There is a dire need to develop proper forensic institutions across the country. There must be more involvement of forensic evidence in criminal justice system in Pakistan through the capacity building of relevant stakeholders.  

References