Rape prosecution: ‘CII observation on DNA test defies logic’

Published: June 1, 2013
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CII's observations on admissibility of DNA evidence shows that its members are either keen to protect rapists or are anti-women, says Asma Jahangir. PHOTO: EXPRESS

CII's observations on admissibility of DNA evidence shows that its members are either keen to protect rapists or are anti-women, says Asma Jahangir. PHOTO: EXPRESS

LAHORE: 

Former Supreme Court Bar Association president Asma Jahangir said on Friday the Council of Islamic Ideology’s (CII) observations on admissibility of DNA evidence went to show that its members were either keen to protect rapists or were anti-women.

Council members on Wednesday were reported to have said that DNA tests were not admissible as main evidence in rape cases. They had observed that the tests could, at best, serve as supplementary evidence.

Jahangir said the CII members’ logic was beyond comprehension. She said the council members were refusing to reach out for the truth in rape cases and had given such urgency and prominence to their recommendation as if acceptance of DNA testing was a great threat to Islam.

She said the members had defied logic in undermining forensic reports in cases of rape and paternity disputes.

She said governments should take appointments to the CII seriously and not fill them with “women haters.”

She said interpreting religion was a serious matter and should not be left in the hands of those who made a mockery of their positions.

Published in The Express Tribune, June 1st, 2013.

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Reader Comments (36)

  • ashar
    Jun 1, 2013 - 2:48PM

    Completely misunderstood issue. They have said that the DNA test cannot be taken as main evidence never refused to accept it as supplementary evidence.
    By the way there was no need to reiterate her hate of Islam by saying that the ulema think that DNA test is a threat to Islam, while actually she is a threat to Islam because of her hypocritical behavior under the guise of so called humanitarianism.

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  • CII
    Jun 1, 2013 - 5:40PM

    An idiotic decision by CII, but expected. What more can you expect when your religious leaders are those who have an IQ of 50 maybe even less.

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  • Umer
    Jun 1, 2013 - 5:55PM

    Mullahs will never allow our society into the 21st century.

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  • Umer
    Jun 1, 2013 - 6:00PM

    Former Supreme Court Bar Association president Asma Jahangir said on Friday the Council of Islamic Ideology’s (CII) observations on admissibility of DNA evidence went to show that its members were either keen to protect rapists or were anti-women.

    Nothing new there. The mullahs have resurrected the notorious Hudood ordinance through back door.

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  • Umer
    Jun 1, 2013 - 6:58PM

    Lahore: Pakistan’s top human rights watchdog on Friday expressed “alarm and disappointment” over a declaration by the Council of Islamic Ideology that DNA tests are not acceptable as primary evidence in determining rape cases.

    The Human Rights Commission of Pakistan described the Council’s decision as “regressive” and “unkind to rape victims”.

    In a statement, the Commission said: “HRCP wants to unequivocally state that the latest pronouncement of the CII is regressive, brings no credit to this body and certainly not to the country, but most important of all it is exceptionally insensitive and unkind to rape victims.”

    ‘New decree in Pak regressive, insensitive to rape victims’

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  • Mj
    Jun 1, 2013 - 7:25PM

    @ashar:

    Did you miss the point in the CII ruling where the primary evidence is supposed to be four male witnesses?

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  • FarmerDr
    Jun 1, 2013 - 8:25PM

    @ashar: There are no two ways about it. Asma is correct although typically forthright, something that mullahs who are used to treating women as their inferior cannot swallow without experiencing impotent fury.
    The four witness rule for rape conviction is unjust. It is wrong. It is not part of divine religion. The four eye witness rule was to guard against defamation. It was never intended to protect rapists and assaulters. It is a man made addition to sharia although this last controversy should be irrelevant.

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  • Shahryar
    Jun 1, 2013 - 9:05PM

    If Islam was working so well for Pakistan, we wouldnt have rapes.

    But clearly we have the issue and it isnt going anywhere.
    Cant we just concentrate on having more legit convictions, by whatever means it is?

    DNA or witnesses or whatever sort of evidence. What really matters is providing the justice.

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  • ashar
    Jun 1, 2013 - 9:31PM

    @Mj:

    I have not advocated the CII since its integrity is itself questionable. It mainly constitutes upon politically backed scholars who themselves carry no authentic knowledge of the Law.

    The requirement of four witnesses is for adultery. It can be seen a bit similar to theft and harabah (armed robbery), the conditions for the implementation of hudood are different for both since Harabah is a crime involving life threat while theft is a lessor crime in comparison, so amputation of hands in case of theft is difficult since it needs many conditions to meet while for armed robbery the hudood can be implemented quickly since the greed and audacity to commit a crime both are needed to be discouraged.

    When hudood is not applicable then it is ta’zeer that is implemented.

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  • goggi
    Jun 1, 2013 - 9:41PM

    The strength of Islam lies in its illogicalness designed accordingly for a certain audience.

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  • Fudge
    Jun 1, 2013 - 10:54PM

    @ashar:
    Islam is not so weak to feel threatened by an individual! No need to be so defensive. Her point is totally valid. Its is not for the Mullahs to decide what counts as primary or secondary evidence, it is for the courts to decide, every case is different. Mullahs really need to stay out of this, not everything is anti-Islam and in this case DNA tests are certainly not a threat to Islam!

    Without going into this hadood or Ta’zeer technicalities, please explain if a woman is raped by unidentified men, how will she ever have her rapists convicted? if DNA tests don’t count as primary evidence? Surely, there must be something in the Sharia for this.

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  • Amused
    Jun 1, 2013 - 11:11PM

    @ashar: arcane knowledge of irrelevancy is mildly diverting. We are talking of a just penal system not archaic philosophical concepts. The spirit of a law should be to protect the vulnerable from exploitation by the strong. I am pretty sure that with some semantic rigmarole a just law could be regularized as “Islamic”

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  • Fudge
    Jun 2, 2013 - 12:25AM

    @ashar:
    Supplementary evidence is supplementary, the court cannot give it the same importance as primary evidence. This decision completely defies logic. If a solid evidence in the form of DNA test is available to compliment the other circumstantial evidence (if available at all) then why not?! Why would you still need four witnesses when there might be (and more likely) none.
    As @amused rightly pointed out the spirit of the law should be protect the vulnerable, playing with technicalities/religious rhetoric is pointless and doesn’t help the victim at all.

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  • ashfaq
    Jun 2, 2013 - 1:44AM

    Everyone pls refer to some Islamic Scholars before commenting on this Highly Controversial & Immensely Technical Situation.
    Of course rape is a heinous crime – should be punished accordingly once proved, but sympathy with the victim/s should not drive one away from the justice.
    Details can be found here:
    http://islam-qa.com/en/ref/158282

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  • Umer
    Jun 2, 2013 - 4:05AM

    @ashfaq:

    pls refer to some Islamic Scholars

    Isn’t that where the problem is? We are referring the issues of science and law to the mullahs who cannot even agree on the definition of a Muslim let alone agree on anything substantial?

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  • Baber Khan
    Jun 2, 2013 - 8:22AM

    I have a simple question based on a hypothetical (but conceivable) situation that needs a simple answer:
    What if the act is consensual (not a rape), but later on the female partner starts howling (perhaps to blackmail her partner) that she has been raped. How, in the absence of other witnesses and circumstantial evidence, will just the DNA tests establish truth?
    Asma Jahangir appears to claim ‘DNA is good enough. No need of further evidence!”

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  • Mj
    Jun 2, 2013 - 8:59AM

    @ashfaq:

    From your link:

    “A woman’s claim to have been forced into zina can only be accepted on the basis of proof or strong circumstantial evidence. If there is no such evidence, then the hadd punishment is to be carried out on her as it is carried out on the zaani (the man who committed fornication or adultery). “

    How heinous. Punish the victim if she is unable to ‘prove’ that rape took place, and of course the evidence has be to in the form of male witnesses, since acceptability of DNA evidence has been relegated to secondary status. Imagine being a rape victim (yes, men can get raped too) and rotting in jail and receiving lashes if you’re unable to convince the judge the merit of your accusation.

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  • Amused
    Jun 2, 2013 - 11:07AM

    @ashfaq:
    The paramount command to Muslims from our Rab is “do justice”.
    Controversies and technicalities created by so called experts are unnecessary. Misguided fools who have spent their lifetimes following a path that moves farther and farther away from the spirit of our Prophet’s (ASW) teaching are turning their followers into enemies of Din.

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  • Aleem
    Jun 2, 2013 - 11:15AM

    What can you expect from these Mullahs. First ameer of jamaat islami said that rape cases should not be reported at all and now, DNA is not admissible as primary evidence. These mullah’s just want to protect thier religious empires and thats all.

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  • ashar
    Jun 2, 2013 - 12:23PM

    @Fudge:
    Well, its not a debate over a Law, its again demeaning the mullahs session, following the footsteps of Asma Jahagir who has made her prime objective.

    How about DNA evidence is used against you for black mail my dear. who will believe you that it was done amicably.

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  • Amused
    Jun 2, 2013 - 2:31PM

    @ashar: personal attacks and muddying up a debate while intending to twist and turn from acting justly are par for the course from religious folk I guess. What possible excuse are the objections you raised to brazenly and completely denying justice to rape victims?
    Any law may be misused. It is undeniable that the blasphemy law and the qisas and diyat ordinance are mostly used to pervert justice. If you follow your own argument to its logical conclusion these laws should be looked at too. Or will you unjustly deny the undeniable that they are misused against the weak?
    Misuse of any law should be guarded against. Strong penalties for perjury must be regularly imposed. What did happen to the Mullah who committed perjury against Rimsha or is that another matter to be denied?

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  • Baber Khan
    Jun 2, 2013 - 2:55PM

    @ Mj Punishment is carried out ONLY once a crime is proved. You don’t start punishing an accused just because someone claimed that he/she is a
    criminal. To me it’s equally heinous that you label someone “criminal” based on your sympathy with the one who APPEARS to be a victim!

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  • Imran
    Jun 2, 2013 - 4:49PM

    Logically DNA test is the second source in evidence and should be acceptable. In any case / reason with Islamic point of view or any other. Any one who denies it must be criminal or corrupt.Recommend

  • Razia Sheikh
    Jun 2, 2013 - 4:57PM

    I think Mullah should not interfere and whatever is logically proved culprits should be punished, if this does not happen due to any interference, crime will increase. Culprits should be hanged in front of public.Recommend

  • ashar
    Jun 2, 2013 - 5:20PM

    @Amused:
    No hard feelings please. I agree with you that the Laws can be misused. But quoting only one sided examples shows the bias. There has been examples of the other side as well.

    As for the writer I respect her intellect and qualifications, however stating that Mullahs consider DNA a threat to Islam are no good remarks, should have been checked so did I.

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  • Rex Minor
    Jun 2, 2013 - 6:53PM

    It is a greal shame that you have an individual, familiar with law, but not justice or having a knowledge of sience. DNA is a circumstantial evidence, to exclude wrong convictions on account of cosensual sex with husbands or lovers.

    Rex Minor

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  • Baber Khan
    Jun 2, 2013 - 7:21PM

    @Rex minor: Pls enlighten me; how does DNA specify that the act was consensual?

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  • Muhammad Usman
    Jun 3, 2013 - 12:55AM

    There is a fault in our laws. If instead of 4 only 1 person witnesses the rape, then hadd is not applicable but there should be another supplementary law to punish the perpetrator. It is the fault of our parliment that in case hadd is not applicable, another law should be there to punish. Hadood is a severe punishment and should be applied if the crime is 100% proved beyond any doubt.Recommend

  • Rex Minor
    Jun 3, 2013 - 1:06AM

    @Baber Khan:

    I can not enlighten you nor the lady, but I can expand my comment; a consensual sex between a man and a women could also leave traces of the male DNA. This does not automaticaly mean that ‘Rape’ took place. For conviction there must be the evidence of violence. Otherwise it is merely a statement of one against the statement of the other,

    Rex Minor

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  • durrani
    Jun 12, 2013 - 7:50PM

    Only disillusionment is being created on a straightforward issue. CII is very much right. You can take DNA as evidence as a tip leading you to the possible criminal. However we are very prejudiced towards the issue, infact we have pre-declared victim and criminal….. please check this article and rest assured it has not been posted by a Mullah….
    http://www.llrx.com/features/dnareliability.htm

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  • durrani
    Jun 12, 2013 - 7:53PM

    please check this article on DNA as primary evidence; rest assured its not written by a Mullah…
    http://www.llrx.com/features/dnareliability.htm

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  • FarmerDr
    Jun 13, 2013 - 9:59AM

    @durrani: Nothing is perfect, DNA evidence can be wrong and to rely solely on one test would be insanity.
    Have you come across any studies on the reliability and coherence of eye witness testimony? I posit that it is even less reliable and the possibility of gathering four eye witnesses of good repute let alone good Muslims and male is staggeringly low – almost impossible. Statistically compare the probabilities of getting correct convictions with the two methods if you are entering the debate claiming scientific support for your position.
    Are you seriously trying to tell us that rapists are more likely to be convicted under the rule of four witnesses who have intimately witnessed the act each of the four also fulfilling stringent requirements for his testimony to be eligible and without this other evidence including DNA being eligible to be introduced until the primary condition is fulfilled?
    Try to be dispassionate and just.

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  • durrani
    Jun 13, 2013 - 10:14PM

    @FarmerDr I am sure you have studied the article that I posted in detail. In fact the availability of four witnesses is a very tough task and I understand that. What I want to convene is that DNA can be used to support and ascertain the claim, though it can be as wrong as 100 %. Being the student of genetics, I can have a better insight in to the realm of DNA fingerprint technology. I hope I am not passionate, though I feel sorry for the comments given by some people, targeting the religious people. Point is simple, if someone closes his eyes to the facts; you can never make him see the realities. I will have a detailed insight in to the four witnesses point in rape cases and would definitely share my views on that. but to be fair enough we are trying to turn day in to night, with very weak grounds….

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  • G.Farid
    Jun 14, 2013 - 3:33AM

    While considering punishment based on DNA test, one should keep threshold of suspision low that how innocents can be punished by misusing it even there is no rape actually.
    Some one can get samples for DNA test from somebody,(he want him to be punished) and put in desired place to use these as evidence for rape, so although samples can be collected from desired place but ther is no rape so it can be misused.
    If child is born after zina his DNA can be used to reach his parents, but also to keep in mind surrogate mothers being used in India/other countries that is hired for conception and birth of baby which is not her baby. Forensic expert can tell better.
    So it should be used as supplementary evidence and not sole evidence for punishment as Islam explained four persons witness to punish somebody.
    If that zani could not get punishment in this world, he shall get lasting punishment in life hereafter.Recommend

  • G.Farid
    Jun 14, 2013 - 3:39AM

    What about video evidence of fornification collected can replace four witnesses or not?
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  • Amused
    Jun 14, 2013 - 11:29AM

    “If that zani could not get punishment in this world, he shall get lasting punishment in life hereafter.”

    The Russians czars used their peasants and serfs cruelly. The hungry masses were placated with a promise that the Moon was actually a large pie which they would receive one day to eat their fill. It is a centuries old trick to fool the weak when denying them justice in this world to promise them pie in the sky.

    Zana is not being dscussed, it is rape we are talking about. The first one is a sin, the second is a crime.

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