بغیر اجازت ڈی این اے کرانا بنیادی انسانی حقوق کی خلاف ورزی ہے: سپریم کورٹ سپریم کورٹ نے جائیداد کیلئے ولدیت کا تنازعہ حل کرنے کیلئے ڈی این اے کرانے کے مقدمے کا فیصلہ سنا دیا، ڈی این اے کرانے کی درخواست مسترد کر دی گئی۔

 PLD 2023 SC 461

جسٹس منصور علی شاہ نے فیصلے میں لکھا کہ پرائیویسی یا نجی زندگی کا تعلق انسان کے حقِ زندگی کے ساتھ جڑا ہوا ہے، مرضی کے بغیر ڈی این اے ٹیسٹ نجی زندگی میں مداخلت اور بنیادی حق کی خلاف ورزی ہے، صرف فوجداری قوانین کی بعض شقوں میں مرضی کے بغیر ڈی این اے ٹیسٹ کی اجازت ہے، سول قانون میں مرضی کے بغیر ڈی این اے کرانے کی کوئی اجازت نہیں۔

سپریم کورٹ کے فیصلے میں مزید کہا گیا ہے کہ ڈی این اے کسی شخص سے متعلق ایک وسیع تر معلومات کا خزانہ ہوتا ہے، اگر شخص کی ولدیت دستاویزات میں تسلسل کے ساتھ ثابت ہے تو ڈی این اے کی کوئی ضرورت نہیں، اگر باپ نے زندگی میں بچے کی ولدیت کو ماننے سے کبھی انکار نہیں کیا تو ڈی این اے ٹیسٹ کی کوئی ضرورت نہیں۔

جائیداد کے وارث کا تعین کرنے کیلئے لاہور کی سول عدالت میں مقدمہ دائر کیا گیا جس میں محمد حسین کے بھتیجوں نے موقف اپنایا کہ محمد نواز تاج دین اور زبیدہ بی بی کا بیٹا ہے، محمد حسین بے اولاد فوت ہوئے جائیداد کیلئے محمد نواز بیٹا بن گیا، درخواست میں استدعا کی گئی کہ محمد نواز کے والدین کے تعین کیلئے تاج دین اور زبیدہ بی بی کے ڈی این اے ٹیسٹ کے احکامات جاری کیے جائیں۔

Right to liberty and right to privacy under Articles 9 and 14 of the Constitution.

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 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 liberty, 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.

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.

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. 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.

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.

DNA test cannot be conducted without consent of the party in civil cases.

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 opponen. In the present case, neither the 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.

It is also important to note that Article 128 of the Qanun-eShahadat 1984 declares that the fact that any person was born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is the legitimate child of that man, unless the husband had refused, or refuses, to own the child. In the present case, the deceased Muhammad Hussain is not alleged to have refused to own the petitioner as his son during his lifetime. Therefore, if the petitioner proves that the deceased Muhammad Hussain’s wife, Rashidaan Bibi, was his mother and he was born during the continuance of a valid marriage between his mother and the deceased Muhammad Hussain, this fact shall conclusively prove that he is the son of the deceased Muhammad Hussain and no evidence, including the evidence of DNA test, can be accepted to negate the statutory declaration made by Article 128 of the Qanun-e-Shahadat 1984. Further, it is worth noting that the mutation under challenge is not that of the inheritance of the deceased Muhammad Hussain but rather of a gift allegedly made by the deceased Muhammad Hussain in favour of the petitioner. And as a valid gift can be made by a person of his property in favour of any person, whether the donee is his legal heir or not, the main issue in the present case is whether or not the deceased Muhammad Hussain made a valid gift in favour of the petitioner. The issue, whether the petitioner is the real or adopted son of the deceased Muhammad Hussain, would assume importance only when the petitioner fails to prove the validity of the challenged gift.