DNA test is always conducted with the consent of the person concerned

8. As far as DNA test is concerned, it has been observed in the case reported as “Mst. Shamim Akhtar v. Additional District Judge, Gujranwala and another”(PLD 2015 Lahore 500) that DNA test is always conducted with the consent of the person concerned and no such consent is available and once consent has not been given, DNA test could not be conducted. It has also been held in the case reported as “Khizar Hayat vs. Additional District Judge, Kabirwala and 2 others”(PLD 2010 Lahore 422) that direction could not be issued for conducting the DNA Test as a matter of routine in cases where father refuses to acknowledge his child born during lawful wedlock because under Article 128 of the Qanun-e-Shahadat Order, 1984, a child born during continuance of a valid marriage or within two years of its dissolution, if mother remained unmarried during that period, was conclusive proof that he was legitimate child of that man, unless the man denied the same. Birth of the minor one year before divorce indicated that he was born during subsistence of marriage, presumption could safely be drawn that he was legitimate child of the defendant. Learned counsel for petitioner has placed reliance on “Mst. Shamshad Bibi v. Bushra Bibi and 3 others”(PLD 2009 Islamabad 11), “Naseer Ahmed v. Mst. Azrah and another”(PLD 2010 Karachi 61). However, the facts and circumstances of the said cases are distinguishable as in the earlier case consent of the parties was given for DNA test and on their consent matter was directed to be referred to the institute concerned for conducting of DNA test. No illegality has been found in the impugned orders passed by learned Judge Family Court, Multan.

Part Of Judgment
Lahore High Court
Writ Petition-Family-Miscellaneous
9730-15
2017 LHC 238

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