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RUBINA KAUSAR versus ADDITIONAL SESSIONS JUDGE

ection Section 42 declaration suit for declaration declaration of plaint by DNA test - Appeal for plaintiff's plaintiff's DNA test was dismissed by the trial court but accepted by the appellate court - Accuracy - The plaintiff's contention was never disputed. Throughout his father's lifetime, the defendant had questioned the plaintiff's spouse when he claimed to be part of his deceased father's estate - DNA tests can only take place in rare and unusual circumstances. It was also inevitable - anyone received his / her blood test sample DNA test, the court had to consider the facts and circumstances of each case - if anyone was to take such a test. If it does not consent, it cannot be compelled to perform a test that would be subject to personal intervention. Freedom - The court had the authority to order DNA tests or any blood tests to find out the truth about the allegations, but such an order must be approved unanimously. Relevant parties and not routinely - Forcing a person to undergo DNA tests can have serious consequences - Court protects and protects the personal liberty of each citizen - Oral and documented by the Positive Issue Trial Court Can be proved by the evidence. Unplugged decision passed by appellant court was set aside for approval without legal authority DDNA test acquisition request was rejected - Constitutional application allowed accordingly [pp 606, 607 , 609] A, B, C & D

P L D 2017 Lahore 604 

Before Muhammad Ali, J Mst.

RUBINA KAUSAR—Petitioner

versus

ADDITIONAL SESSIONS JUDGE and others—Respondents

Writ Petition No. 12443 of 2015, heard on 18th January, 2017.

Specific Relief Act (I of 1877)—

—S. 42—Suit for declaration—Inheritance—Determination of paternity through DNA test—Scope—Application for DNA test of plaintiff was dismissed by the Trial Court but same was accepted by the Appellant Court—Validity—Paternity of plaintiff was never disputed during the lifetime of her deceased father—Defendant had questioned the paternity of plaintiff when she claimed share in the property of her deceased father—DNA test could only be conducted when same was inevitable in rare and exceptional circumstances—No one could be forced to have his/her blood test samples obtained for conducting of DNA test, court had to consider the facts and circumstances of each case—If a person did not give consent for such test then he/she could not be compelled for test which would amount to interference with personal liberty—Court had power to order for DNA test or any blood test in order to qgcertain the truth about allegations but such order should be passed with the consent of the concerned party and not in routine—Compelling a person to undergo a DNA test could have serious consequences—Court should safeguard and protect personal liberty of every citizen—Paternity issue could be proved by oral and documentary evidence recorded by the Trial Court—Impugned judgment passed by the Appellant Court was set aside having been passed without lawful authority—Application seeking DNA test was dismissed—Constitutional petition was allowed accordingly. [pp. 606, 607, 609] A, B, C & D

Salman Akram Raja and another v. Government of Punjab through ChieTf Secretary, Civil Secretariat, Lahore and others 2013 SCMR 203; Mst. Shamim Akhtar v. Additional District Judge,

Gujranwala and another PLD 2015 Lah. 500; Goutam Kundu v. The State of W.B. AIR 1993 SC 2295; Khizar Hayat v. Additional District Judge, Kabirwala and 2 others PLD 2010 Lah. 422 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

Waqar Ahmad Bhatti for Petitioner.

Iftikhar Ahmad Bhatti for Respondents Nos. 2 and 3.

Date of hearing: 18th January, 2017.

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