salam
http://www.central-mosque.com/fiqh/DNA.htmBy Sheikh Nizâr al-Shu`aybî, presiding judge at the Shaqîq City Courthouse
In order to properly discuss the question of using DNA as evidence in an Islamic court of law, we must first understand that there are two types of punishments in Islamic Law: prescribed punishments and discretionary punishments.
First there are prescribed punishments, such as stoning the married adulterer, flogging and exiling the unmarried adulterer, flogging the imbiber of liquor, and the punishment for highway robbery. These punishments are explicitly stated in the sacred texts. The judge cannot modify these punishments, reduce them, or increase them. Whenever a person is found guilty of a crime that has a prescribed punishment in Islamic Law, the prescribed punishment must be carried out to the letter.
This kind of punishment can only be carried out on the basis of a confession or the testimony of reliable witnesses. These punishments cannot be applied on the basis of DNA analysis or other forms of evidence. These punishments are Allah's right on the people, and Allah's rights are based in forgiveness. This is why we have the legal principle which states: "Prescribed punishments must be waived when there are doubts surrounding the case".
With DNA testing, there is always a chance for a mistake in the analysis or in the collection of the sample. Furthermore, Islam seeks to conceal people's mistakes. Therefore, it is better to rely on reliable witnesses than on DNA analysis. It is worth noting that even when a person clearly confesses to committing a crime then retracts his confession, his retraction will be accepted. He will not be subjected to the prescribed punishment for the crime he had originally confessed to committing. Since the prescribed punishment cannot be applied to him, his punishment must either be modified to a lesser one at the judge's discretion or he may be released without punishment.
This brings us to discretionary punishments. These are the punishments for legal violations where the method of punishment and its specification are not prescribed by Islamic law. It is up to the judge to decide on the punishment at his discretion, taking many factors into consideration. He will look towards the prescribed punishment as a standard of comparison for these undetermined punishments. The judge, in such cases, is free to use modern, technological means of producing evidences against the criminal.
In a case where someone is accused of a crime for which there is a prescribed punishment and is not convicted by the proper number of reliable witnesses or by a confession but is found guilty by way of a DNA test, the judge will not be able to carry out the prescribed punishment upon him. However, depending on the strength of the DNA evidence, the judge may apply a lesser discretionary punishment. The same can be said for other forms of evidence.
It is worth saying that it is preferable to avoid investigations of this type unless the crime in question affects public security.
The Islamic Law Complex of the Islamic World League has decreed that: "…there is no legal objection to using DNA analysis in criminal investigations and in considering it as evidence in the crimes that do not obligate the court to carry out a prescribed punishment. This can be gleaned from the hadîth "Avoid prescribed punishments when there are doubts". This would offer justice and security for society and help to ensure that the criminal is punished and the innocent released, which is an important objective of Islamic Law."
There are many possible uses for DNA evidence. The following have been approved by the Islamic World League:
[Source: seventh decree of the Sixteenth Session of the Islamic World League]
1. To resolve disputes over kinship for any reason such as overturning evidence or in cases of mistaken marriage between siblings.
2. To resolve disputes over the parentage of newborn babies born in hospitals and of test-tube babies.
3. To identify missing babies after disasters and wars, unknown corpses, and prisoners of war.
And Allah knows best
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