Samina Bibi Vs Fahad Shah etc

v" Judgment Sheet

(Judicial Department)

WP No.322-Bl2021

Samina Bibi Vs Fahad Shah etc.

JADGMENT

For petitioner: Mr. Basir Gulbaz Advocate

For respondent: Mr. Abid Anwar Khattak Advocate Date of hearing: 26.05.2025

MUHAMMAD TARIO AFRIDI. J.- Through the instant writ petition under Article 199 of the Constitution, the petitioner has prayed for the following relief:

It is, therefore, humbly prayed that on acceptanoe of instant writ petition, the judgment and ohder dated 16.05.2017 of Civil Judge-II i Judge, Family Court, may kindly be set aside and the suit for jactitation of marriage may kindly be decreed as mentioned in the heading of the plaint. Any further relief as deemed appropriate, not specifically asked for, may also be granted to the petitioner.

2.The brief, but relevant facts, as pleaded in the instant writ petition, are that the petitioner / plaintiff instituted a Family Suit (No.l0ffC of 2012) against the respondent / defbndant for jactitation of marriage. After a full-fledged trial, the suit was decreed by the l'rial Court vide judgment and decree dated 13.04.2013. lhis decision was appealed against by the respondent / defendant by filing a Family Appeal (No.1s/)ilIl

v of 2013), which was allowed by the Additional District Judge at Takht-e-Nasrati, District Karak, vide judgment and decree dated 23.09.2013, remanding the matter to the Trial Court with a direction to summon Medical Officers Dr. Dur-e-Shehwar and Dr. Tasleem Afridi as Court witnesses, who had conducted pregnancy tests and ultrasound of the present petitioner I plaintiff on 29.12.2011, and also to procure DNA tests of the present petitioner / plaintiff s child Sameer Ahmed as well as the parties, and thereafter to decide the suit in accordance with law. It is averred that prior to the institution of the above said 4 Family Suit, a criminal case vide FIR No.383 dated 05.12.2011 under Sections 496A I 4968 I 494 I 34 PPC at Police Station Kohat was registered against the present petitioner I plaintiff and her co-accused Asad Kamran son of Adil Badshah. In the said criminal case, the petitioner / plaintiff and co-accused faced trial and were acquitted by the Trial Court vide judgment dated 26.04.2013, against which the complainant Awal Shah filed Criminal Appeal (No.107-Bl20l3) before this Court, where the appeal was accepted and the matter was remanded to the Trial Court with a direction to conduct a DNA test of the minor Sameer Ahmed vide judgment dated 15.02.2016. As against this decision, the petitioner / plaintiff and her co- accused preferred Criminal Appeal No.469 of 2016 before the Supreme CourJ. By its judgment dated 02.05.2018, the Supreme

v Court allowed the appeal and set aside the judgment of this Court dated 15.02.2016, with the observations that if and when any decision favourable to the complainant party of the criminal case is rendered by the Family Court, then the said party may initiate fresh criminal proceedings in that regard. It is further averred that during the pendency of the Family Suit (No.l0/FC of 2012), which was remanded to the Trial Court by the Appellate Court, the minor Sameer Ahmed allegedly drowned in a water pond and died. Thereafter, the respondent / defendant moved an application to the Trial Court for disinterment of the f minor Sameer Ahmed for the purpose of DNA test, which application was allowed by the Trial Court vide order dated 16.05.2017. This decision was appealed against by the petitioner / plaintiff, but was upheld by the Additional District Judge vide judgment dated 27.02.2021, prompting the petitioner / plaintiff to petition this Court under Article 199 of the Constitution with the prayer as aforesaid.

3.Arguments heard. Record perused.

4.At the very outset of the hearing, counsel for the respondent / defendant raised a prelimit uty objection qua the maintainability of this writ petition. It was argued that the petitioner / plaintiff has already availed the remedy of appeal, despite the impugned order being interlocutory in nature.

Referring to sub-section (3) of section 14 of the West Pakistan

Family Courts Act, 7964, which bars any appeal or revision

V

against an interlocutory order of the Family Court, the learned counsel added that when the Legislature, in its wisdom, has deliberately withheld such a remedy, an interlocutory order cannot be challenged through constitutional jurisdiction under Article 199 of the Constitution. According to him, entertaining such petitions would defeat the legislative intent and frustrate the object of the special law.

5.The orders passed by the lower Court, which are under challenge are interlocutory in nature and such orders, as per ,0 Section l4(3) of the West Pakistan Family Courts Act, 1964, are not appealable. It is also a settled law that when a statute excludes appeal or revision against an interlocutory order, such an order cannot be challenged through a writ petition under Anicle 199 of the Constitution of the Islamic Republic of Pakistan, 1973, but the High Court can still exercise its constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, if it finds that the lower courts' orders lack jurisdiction or legal basis (not backed by law), it cannot turn a blind eye to such legal infirmity and the High Court can declare such orders illegal and without jurisdiction.

6.The legality of the lower courts' orders for disinterment to conduct DNA tests for paternity determination hinges on an

exarnination of the laws governing exhumation. Section 176 of v the Code of Criminal Procedure, 1898 pertains to the disinterment of corpses and is reproduced below for reference:

176.Inquiry by Magistrate into cause of death. (1) When any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall, and, in any other case mentioned in section 174, clauses (a), (b) and (c) of sub-section (1), any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police-officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case.

(2)Power to disinter corpses. Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may, cause the body to be disinterred and examined.

7.From the provision of Section 176 ibid, it is crystal clear that, it empowers the magistrates to hold inquest / inquiries into the cause of death and if necessary, order the disinterment of a dead body for examination. However, neither the Code of Criminal Procedure, 1898, the Code of Civil Procedure, 1908, nor the West Pakistan Family Courts Act, 1964, read with the West Pakistan Family Courts Rules, 1965 grant the magistrates or Judges of the District Judiciary, the authority to order disinterment of dead bodies for DNA testing to determine paternity. In these circumstances, the preliminary objection

V raised by learned counsel for the respondent / defendant is found to be without merit and is accordingly repelled.

8.Adverting to the merits, I find that there is now a judicial consensus that a DNA test cannot be conducted without the consent of a party unless expressly authorized by law, as compelling parties for such a test, particularly in the case of a woman, would violate her fundamental rights to liberty, dignity, privacy and bodily autonomy. Reliance is placed on Muhammad Nawaz v. Additional District and Sessions Judse and others (PtD 2023 Supreme Court 461), wherein it was ruled:

9.DNA testing has raised significant concerns regarding 4 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 tcsting 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.

I 1. These fundamental rights, are subject to law and can only be interfered with if so regulated by law made by the legislature. Iiurther, as per the constitutional command of Article 4 of the Constitution, no action detrimental to the

v 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 bc backed by some law. A court order for the DNA test of two persons as a means of identiffing their genetic relationships interferes with their right to privacy and liberty. This test can be ordered only either with the consent of the pcrsons concerned or without their conscnt if permissible under a law. We are aware of certain provisions of criminal law 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.

9.Similarly, in the case of Mst. Laila Oavvum v. Fawad Oavum and others (PLD 2019 Supreme Court 449), the Supreme Court held:

13.In the case of Ghazala Tehsin Zohra, the putative father was not allowed to challenge the paternity of the child after the period mentioned in Article 128 had expired. This Court reiterated that a child born within the period mentioned in Article 128, "shall constitute conclusive proof of his legitimacy". The learned Judge observed, and we agree, that:

It is for the honour of and dignity of women and innocent children as also the value placed on the institution of the family, that women and blameless children have been granted legal protection and a defence against scurrilous stigmatization.

Jawwad S. Khawaja, J further explained that Article 128, "is couched in language which is protective of societal cohesion and the values of the community"

14.Learned Mr. Awan is also right in referring to the case of Salman Akram Raja wherein it rvas held that a free lady cannot be compelled to give a sample for DNA testing as it would violate her liberty. If a sample is forcibly taken from Laila to determine her paternity it would violate her liberty,

\/ dignity and privacy which Article 14 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") guarantees to a free person.

10.In view of the above settled principles, I am inclined to hold that the Courts below erred in directing the conduct of the DNA test without the consent of the petitioner / plaintiff.

Therefore, the impugned judgments and orders are manifestly contrary to law and cannot be sustained. Consequently, this petition is allowed, ffid the impugned judgments and orders are set aside. The parties are, however, at liberty to independently establish their respective claims by adducing such evidence as they may consider appropriate and admissible under the law before the Trial Court. The Trial Court shall decide the matter strictly on its merits and in accordance with law, ensuring that the proceedings are concluded as expeditiously as possible, because the parties have been litigating since 2011.

Announced

(Ghafoor Zaman'1

J D E

l.

(S.8.) Hon'ble Mr. Justice Muhammad Tariq Afridi