Q. What is rape under the laws of Pakistan?
A. Rape is defined in Section 375 of the Pakistan Penal Code, 1860 (the “PPC”) as follows:
Rape. A man is said to commit “rape” who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
(i) against her will,
(ii) without her consent,
(iii) with her consent, when her consent has been obtained by putting her in fear of death, or of hurt,
(iv) with her consent, when the man knows that he is not married to her and that her consent is given because she believes that the man is another person to whom she is or believes herself to be lawfully married; or
(v) with or without her consent when she is under sixteen (16) years of age.
Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Q. What is the penalty for rape?
A. The maximum penalty for rape is death and/or imprisonment for twenty five (25) years and/or fine.
Q. Is marital rape provided for under the laws of Pakistan?
A. Although marital rape is not expressly criminalised in the PPC or other laws in Pakistan, the legal position of the law remains debatable. The previous law on rape, the repealed Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (the “Zina Ordinance”), provided in Section 6(1), the definition of “zina bil jabr” as “a person is said to commit zina-bil-jabr if he or she has sexual inter-course with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely…” (emphasis added)
The Protection of Women (Criminal Laws Amendment) Act, 2006 omitted this Section and moved the offence of rape under the PPC. The definition of rape under Section 375 of the PPC, supra, did not include the words “to whom he or she is not validly married”. In light of this amendment, it is argued that the legislature intended that “validly married” should be removed as a defence for rape. There are, however, no reported judgements of the superior courts that clarify the position of the law.
Q. What is the procedure of reporting rape cases?
A. The victim is required to report the case to the police station and issue a statement. Firstly, the police reviews the contents of the statement of the victim to evaluate whether a cognizable offence has been committed. A magistrate oversees the workings of the police stations within the jurisdiction. However, a police office may investigate the offence if he sees sufficient grounds. If a court takes cognizance of an offence, it may initiate judicial proceedings against the accused with respect to the offence. The court considers, inter alia, as follows:
(i) whether the offence falling within its jurisdiction is made out or not;
(ii) whether the offence is committed in its territorial jurisdiction;
(iii) who are the persons responsible for the commission of the offence; and
(iv) whether in the Court’s opinion sufficient grounds exist for the commission of the offence.
The Criminal Procedure Code, 1989 (the “CPC”) does not award any discretion to the police to delay or refuse the lodging of an FIR by a complainant (see, Shehnaz vs. the State, 2010 PCrLJ 231 Federal Shariah Court).
Q. Is character or sexual history of the victim important to the decision in rape cases?
A. Case law provides that usually a statement by the victim if corroborated by medical evidence is sufficient to prove the allegation of rape punishable under Section 376, however, if the victims own character appears to be “doubtful” then her solitary statement cannot be deemed sufficient to prove the allegation (see, generally, Ghulam Mohay-ud-din vs. The State, 2012 PCrLJ 1903, Section 151 (4) and 21 (j) of the Law of Evidence).
A purview of the case law suggests that it is essential that the statement of the victim be trustworthy.
In Shakeel vs.The State, PLD 2010 Supreme Court 47, it was held that when various questions could not extract anything beneficial to the accused, then there was no reason to disbelieve the prosecutrix and conviction could be awarded on her solitary statement, where it was considered trustworthy. In such an event no corroboration would be needed. Even if it was admitted that prosecutrix was a girl of “easy virtue” no blanket authority could be given to rape her.
Moreover, if a girl who has otherwise attained puberty and is under sixteen (16) years of age admits to having entered into a marriage in explicit terms, then it is a valid marriage and intercourse is not unlawful (see, generally, Allah Nawaz vs. Station House Office, Police Station, Muzaffargarh, PLD 2013 Lahore 243).
Q. What are the components of proving a case of rape and who has the burden of proof?
Proof of rape is dependant on the independent facts of every case and, inter alia, includes the following:
(1) Medical evidence and examination (see, Abdul Waheed vs. Dai, 2012 YLR 2701 (Karachi));
(2) Timing of the first information report (the “FIR”) with the Police (see, Abdul Waheed vs. Dai, (supra));
(3) Eye-witness account and the trustworthiness thereto (see, Muhammad Arshad vs. The State, 2012 YLR 886 Federal Shariah Court);
(4) Statement of the complainant (see, Mazhar vs. The State, 2012 YLR 652 (Federal Shariah Court), and Zakirullah vs. Safia Bibi, 2014 PCrLJ 1542 (Federal Shariah Court)).
Burden of proof is on the complainant/prosecution to prove “beyond shadow of doubt” (see, Muhammad Arshad vs. The State, 2012 YLR 886 Federal Shariah Court)
Q. What are the aggravating factors in respect of rape cases?
A. The aggravating factors are:
1. Gravity of the crime (see, Mazhar vs. The State, (supra), and Hakim Jan vs. The State, 2014 PCrLJ 1355 (Peshawar))
2. Conduct of the accused (see, Khadim Hussain vs. The State, 2011 PCrLJ 1442 (Federal Shariah Court), and Ali Hassan vs. The State, 2013 YLR 937 (Karachi))
3. Prior planning and intention (see, Hakim Jan vs. The State, 2014 PCrLJ 1355 (Peshawar), and Zahida Parveen vs. Muhammad Afzal, 2014 PCrLJ 819 (Peshawar))
4.Married status of offender. If offender was unmarried, the quantum of punishment was somewhat less than that of a married one (see, Zulfiqar Ali vs. The State, 2012 YLR 847 Federal Shariah Court).
5. Relationship with the accused.
Q. Are there any procedural rules to protect the victim in cases argued at court?
A. With the case of Salman Akram Raja vs. Government of Punjab, 2013 SCMR 203, the petitioner, Mr. Raja submitted that:
1. Trials for rape cases should be conducted in camera, by female judges, where possible, and after regular court hours, to allow the victim to make her statements free from psychological distress and trauma. He referred to the provisions of the Indian Code of Criminal Procedure which provides that in-camera trials should be conducted by a woman judge or magistrate;
2. A screen or some other arrangement should be made so that the victims and vulnerable witnesses do not have to face the accused;
3. Questions put in cross-examination on behalf of the accused should be given in writing to the Presiding Officer of the Court who should put them to the victim or the witnesses in a clear and non-degrading manner; and
4. Evidence of rape victims should be recorded through video conferencing so that the victims need not be present in court.
Furthermore, the court considered guidelines to police, hospitals/doctors, child welfare committees, sessions courts, magistrate courts, prosecutors and other concerned authority, prepared by the Delhi Commission of Women in the case Delhi Commission of Women vs. Delhi Police (W.P. No. 696/2008). Although such recommendations were submitted, they are still under consideration of the concerned authorities and are yet to be incorporated in the legislation. The Supreme Court of Pakistan considered the prayer of the petitioner, Mr. Raja and disposed the petition in light of such recommendations/prayers.
Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.
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