saiyan0321
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Rape Law Needs to be Understood and Amended Properly
Author: Saiyan0321
The horrific motorway rape case has jolted the nation to its very core with many protesting and asking questions of government policy on citizen security and on the competence of the police in protecting the citizens of this country. There has been talks of public hangings and death penalty for rapists. As the social media burns itself in anger, one is left to wonder if anybody truly has read the law that concerns a rape crime. The government, making sure that it looks to be doing something, immediately announced support for death penalty for rapists where one minister went as far as to declare that he will introduce bill to bring death penalty for rapists and public hanging whereas the other declared that the ruling party will bring forth death penalty bill and chemical castration if death penalty fails to be passed. At this point one cannot help but feel disappointed at the response by the government and their lack of legal knowledge. From layman, this is to be expected however from a government which is based on laws and passes laws, it is very disappointing.
Let us first understand what Rape law is in Pakistan and how it legally evolved.
Pakistan has been a site of great infamy when it comes to litigation on rape and sexual assault.
Much of it stems from General Zia-ul-Haq’s infamous Hudood Ordinance 1979 which saw “Zina-bil-jabar” become part of the “offence of Zina” section 6 and 7. This, in accordance to section 19 of the Hudood Ordinance, repealed several sections including section 375 and 376 which related to rape from Pakistan Penal Code 1860 and made Zina either a Hadd offence as mentioned in section 6 and 7 of the ordinance or a tazir offence as mentioned in section 10 of the ordinance. With this the courts were revamped to follow this law which came with its own conditions such as the punishment of hadd requiring four witnesses (no female allowed) and two witness male in case of tazir. This provided much leeway for the accused to escape punishment as in both cases the victim could not be a witness. Moreover if the victim could not prove that rape had happened then she had committed Zina as defined in section 5 of the ordinance, since her very coming forward is seen as prima facie for a confession of Zina and it is up to her to prove whether that zina (fornication) was based on jabar (force) or not.
This, of course, made Pakistan infamous when it came to rape cases and many women, fearing social stigma and lack of legal evidence turning the case on themselves, simply avoided any reporting. However, Pakistan of 2019 and Pakistan of 1979 is very different. In 2006, it was a dictator’s government that corrected this wrong by passing the women protection act of 2006 which amended the ordinance removing the section 6 and 7 and 10 thus removing zina bil jabar and although this was met with great opposition in an already patriarchal society, the law still passed. The amendment saw to it that the victim would be punished in accordance to section 375 and 376 of Pakistan penal code and it removed the restrictions of hadd when it came to evidences. With that the Act also provided for the death penalty to be awarded in the offence which before Zia was not awarded.
The progression of litigation on rape is very slow but the country is making progress. The amendment saw to it that a women that files a rape charge shall never have to bring forth 4 witnesses. And with later amendments under the “the criminal law amendment act 2016″, any women bringing forth such a charge shall not be convicted under adultery – and no longer can the accused bring forth the victim’s sexual history as a defense.
Pakistan is often blamed for forcing its rape victims to bring forth 4 witnesses which is rightly so since in the period of 1979-2006 that’s exactly what we did, however to blame Pakistan now of that barbarity would be unfair since the legal setup has changed entirely.
Importance of DNA and Evidence
Courts have been forced to stretch the law in Rape cases but alot of time, people get acquitted based on the legal loophole that are not amended and the most important one is the lack of value DNA evidence is given. The court has went the extra mile to convict rapists as was seen in Salman Akram Raja v Government of Punjab, the Supreme Court of Pakistan made an attempt to remedy the lack of a specialized legal framework for utilization of DNA evidence. The Court directed that DNA tests be conducted in all sexual offences, and that DNA samples be preserved as well. This case was public interest litigation initiated by the Court suo moto in response to an attempted suicide by a minor victim of rape on her failure to get her complaint registered against influential offenders. Concerning DNA, the Court observed that it provided;
"A means of identifying perpetrators with a high degree of confidence… and by using DNA technology the courts would be in a better position to reach at a conclusion whereby the real culprit would be convicted, potential suspects would be excluded and wrongfully involved accused would be exonerated."
Another example of the court forced to stretching the law to empower DNA evidence can be witnessed In Zulfiqar Ali v The State, an unmarried girl was sexually assaulted twice by her own father before marriage, but she was reluctant to report it due to family pressure and the adverse effects it would have on her marriage prospects. However, after being assaulted for the third time, she decided to report it to police by registering a First Information Report (‘FIR’). The version of the victim’s story was fully supported by her mother, who was aware of the abuse. Their statements were found to be convincing and were corroborated by the reports of the chemical examiner and a DNA test. The only adverse factor in the narrative presented by the prosecution was of the delay in the registration of the FIR, which was plausibly explained. In these circumstances, the Court convicted the accused of rape.
In Imran alias Manoo v The State, a woman was kidnapped and raped. An FIR was lodged after an unexplained delay of eight days. The medical examiner found the hymen of the victim to have been torn earlier than the alleged incident. The statement of the victim did not inspire confidence, and was insufficient in establishing the accused’s guilt. In these circumstances, the Lahore High Court maintained the conviction after reducing the imprisonment awarded by the trial court on the basis of the evidence of a doctor who examined the victim and a positive DNA report.
In these cases, DNA evidence was utilized as corroboratory evidence but was given greater importance to convict the accused and this was stretching the law because the law clearly states that secondary evidence cannot be utilized in a manner which can detail the conviction. It cannot be the central focal point in a case.
However the courts cannot leave the ambit of prescribed law thus the court was also forced to state that DNA evidence is not infallible and should not be taken as a conclusive proof. It should always be acted upon after corroboration from other pieces of evidence. The court held that caution is appropriate and timely as sometimes people indulge in exaggerating DNA’s accuracy. DNA evidence is ‘largely rooted in probabilities, even a confirmed “match” does not supply concrete proof of guilt’.
In Shakeel Nawaz v The State, the Court refused to rely on a DNA report and acquitted the accused because the test was not conducted by a laboratory notified by the government. In government labs you have huge waiting time, absolute breakdown of system and non-cooperative staff. It was this action that prompted the Women protection bill of 2016 that amended the process quite a bit to make DNA tests easier and that amendment went through hell to be passed. You had clerics and interest driven groups demanding that such an amendment will ruin the system but it did not. It made things easier, it made it easier to get evidence because it is the job of the prosecution to get that evidence into court, to get that expert opinion and expert into court.
The Supreme Court has looked to pass judgments based on statements from the victim and used DNA evidences to point to the accused along with the medical report. The courts have made DNA kit and test mandatory within 72 hours and immediately with no compromise based on Jirga as valid. In the landmark judgment 2013 SCMR 2003, it was stated that the DNA test must be done as quickly as possible and all available aid to the victim must be given along with their presence in court done through secure channels, statement recorded ideally through female magistrates and female police staff and through camera if they wish and protection of identity of witness, victim and her family from the accused. On top of it all, the court called for the involvement of civil society and NGOs in all such cases. The case looked to answer DNA testing as a significant piece of evidence in the eyes of court which could help the court determine the perpetrators and exonerate any wrongful accused. The court also pointed out that if the victim does not want to continue the litigation, then the state must intervene and continue the litigation as well as the courts. The courts have looked to state that the society penalizes such a victim that comes forward and thus any attempt to come forward must be supported and be taken into consideration.
Along with this, the courts have repeatedly allowed the victim to become witness to the offence as well as the investigating officer and the medico-officer. In the case “Muhammad Siddique vs State” the victim was first witness and was called the most important one. And in the case “Dad Muhammad vs the state”, the ASI and the medical officer were witnesses number 5 and 6 respectively. In many cases the first discoverer of the victim is also counted as a major witness. The concept of 4 male witnesses is no longer valid in Pakistan, nor is it required.
The Pakistan legal system has also kept in mind the inadequacies of the law enforcement agencies and thus made proper amendments such as the “Criminal law amendment act 2016” which saw addition of section 166A deals with the law enforcement agent i.e. police officer which disobeys any direction in accordance to section 336B, 354, 354A, 376, 376A, 376B, 376C and 509, disobeys knowingly in prejudice to any person, disobeys any direction in regards to the medical examination of the victim, or fails to record any information provided then he shall be given a minimum 6 month rigorous imprisonment extending to 2 years and a fine.
Now the act added 166B as well, which stipulated that if medical officers of any hospital, whether private or public, contravene section 545 then they shall be given a fine of Rs. 25,000. And the act inserted 545A which stated that all medical officers and practitioners, be they in a private or public hospital, shall provide medical aid, free of cost to the victim. This means that whichever hospital the victim goes to, irrespective of its nature, must provide all medical aid free of cost.
The act also empowers with Section 129 in Qanun-e-shahadat order to add in that if the victim provides statement that there was no consent, then it will be deemed that there was no consent.
Death Penalty and Rape
It is sad that actual problems in rape convictions are ignored and focus is placed on something that the law already takes into account. In the ‘Women Protection bill 2006’ Death Penalty was added to the offence of rape as held below
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Where the accused was given Death Penalty under 376 as Tazir and the same was upheld in the Supreme Court. As if the method that the Death penalty must be affirmed by the High Court and the High Court affirmed the Death sentence on all offences.
This was again seen in the case No. 80/2008 where the accused was sentenced to death by the Session Court
So Death penalty is already part of our Rape law then where is the government going to bring in the amendment? Why do they speak of death penalty when it is already part of law? The only place where death penalty can be added is in child pornography racket which is governed as such since Right now the punishment for child sexuality and pornography is governed by section 292 whose 292A states punishment for seducing a child is minimum one year and maximum 7 years and 292C for child pornography where punishment is 14 years to 20 years. If examples are to be set, then the legislators can easily pass legislations allowing for death sentence for anybody that looks to commit heinous acts under section 292A and 292B and such legislation would also effectively create a deterrent against child marriages as well since section 292A deals with seduction of a child for intention of sexual activity. Thus Death penalty can be added here but the government is not talking about child pornography but rape.
Public Hanging
Once again, the voices have voiced unanimously that rapists should be hanged publicly to create examples and believe that such displays would deter the rapists. While the deterrence theory of punishment does exactly that however the problem is that this public display which has been declared as illegal by the Supreme Court of Pakistan in 1994 SCMR 1028 where the court stated that such was in contravention to Article 14 of the Constitution of Pakistan 1973 and to the “Universal Declaration of Human Rights in Islam” (A charter produced by Muslim scholars of the world in 1980). The usage of public hanging is merely to appease the anger of the people in regards to ‘taking action’ when in reality, the laws themselves need to be amended if proper action is to be taken to curb rapists.
Procedural changes that could help
The limitations placed in the law itself must be removed and the first step towards doing that is to empower the evidence against the accused. That could be done by making DNA evidence the primary evidence. Currently the value of DNA evidence in a penal case is secondary or corroborative and in the Qanun-e-Shahadat, its value is equivalent to an expert opinion. The ignorance of the religious clergy in this matter and governments inability to bring forth such a legislation has allowed for this central and important piece of evidence to not be used at its full potential. While people blame the courts and fairly as such, we cannot forget that courts are products of the law of the land which is to be passed by the parliament. The parliament is the one that is empowered to strengthen rape law and it is time they do exactly that.
Infact the absence of DNA as a crucial evidence has also impeded the importance of forensic findings within Pakistan law since that is also considered expert opinion and is placed as corroboration to eye witnesses. The ruling party must no longer shirk from its legal obligation and bring forth a proper legislation that will amend the Qanun-e-Shahadat.
The government can also expedite the legal process by creating more special courts for rape cases which will see them under the scrutiny of experienced judges and will allow for quicker justice to be dispensed ( in 2019 reports of over a 1000 special courts being established all over Pakistan). These courts can function freely from the burden of criminal litigation and offer quicker justice to the victims of such barbarity. It must also be stated that special courts, due to their entire purpose and focus on one single aspect of law, allow for quicker evolution of law and currently the rape law needs to be evolved into a more just law.
Only proper application and amendment of law can reduce crimes and vote bank legislation will only help curb the protest of the people for a short while. Pakistan has made considerable legal growth in tightening rape laws however more is to be done and Pakistan still has a long way to go in providing proper litigation options to its rape survivors. But the progress that the country has made from 2006 must be appreciated. Awareness of this progress must be spread far and wide so that all the survivors of this heinous crime are educated on what remedies they have. They must know that they can demand free legal assistance, medical aid and testing as well as counter any lecherous behavior from the law enforcement agencies. They must be given to understand that they do not require a crowd as witnesses to bring the criminal to justice – that their statement, the medical report and the investigation are legally enough to bring forth justice and cases are now placed under a time limit of six months. They must be assured that they can avail all the remedies available.
Laws can only progress when they are effectively implemented. And although implementation is indeed decided by the state, the laws will not be implemented if the people themselves don’t come forward to report incidents pertaining to such laws. Courts will only be able to implement and interpret laws if cases are brought forward to them. It is we, as society, who must protect and support each victim that takes the courageous step of speaking up for themselves rather than attacking and blaming them.
Hopefully this will help your understanding of the Rape laws in Pakistan and would have you demand proper reforms in the law rather than the eyewash the government will plan to do
@WAJsal @jaibi @Slav Defence @SQ8 @Joe Shearer @niaz @PakSword @waz @Arsalan @Jungibaaz @Moonlight
