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Assignment On
Reform procedural laws to deal Rape cases,
Dignity and privacy of victim and Recent laws of rape.
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Subject
Criminal Procedure-I

Submitted To
Raees Nouman Ahmad

Submitted By
Ahmad Zeeshan
Roll no. 27
Section-C (7th Semester)
2017-22
LLB.5 Year

Table of Contents
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1. Introduction of Rape…………………………………………………………..4
2. Reforms of Rape laws………………………………………………………….5
 Rape no longer falls under General Zia’s notorious Hudood Ordinances………………5
 Negligence of public servants refusing to register a rape case…………………………..5
 A formal judgment on a rape case must come within three months……………………..5
 Rape cases can no longer be settled through “compromise………………………………5
 The rape victim’s identity must not be disclosed………………………………………...6
 Right to legal representation and female supervision…………………………………….6
 DNA in rape cases………………………………………………………………………..6
 Previous sexual history no longer relevant……………………………………………….6

3. Anti-Rape Bill …………………………………………………………………7

 Amendment in Rape Laws………………………………………………………………7
 Disclosure of identity of victim rape…………………………………………………….8
 Media Examination of victim rape………………………………………………………8
 Punishment for Rape…………………………………………………………………….8
 Moving toward holistic systemic change……………………………………………….9
4. Shortcoming of Recent Rape laws
5. Conclusion …………………………………………………………………….9

Introduction of Rape
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Section 375, Define the Rape as,

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 the 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 the consent is
given because she believes that the man is another person to whom she is or believes herself
to be married; or

(v) With or without her consent when she is under sixteen years of age.

Punishment of Rape

Punishment for rape

(1) Whoever commits rape shall be punished with death or imprisonment of either
description for a term which shall not be less than ten rears or more, than twenty-five
years and shall also be liable to fine.

(2) When rape is committed by two or more persons in furtherance of common intention of
all, each of such persons shall be punished with death or imprisonment for life."

Reforms of Rape Laws

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Although sexual violence is endemic in a country like Pakistan, recently there has been some
good news on the legal front: laws have been fine-tuned, and in some cases, changed, in order to
help victims of rape with the legal process of reporting the crime and taking it to court.

This was the crux of a recent news article by Mahim Maher, who had gone to Hyderabad
for a WAR (War Against Rape, one of Pakistan’s most critical women’s organizations)
conference on rape and sexual assault. There, Sarah Zaman, who headed WAR for six years,
elaborated on these changes to the laws, which I will summarize here:

Rape no longer falls under General Zia’s notorious Hudood Ordinances: 

 Rape has been deemed a separate offence from adultery since 2006, when the Protection
of Women (Criminal Law Amendment) Act was passed.
 It now comes under the ambit of Section 375 in the Pakistan Penal Code.
 Ten years later, in 2016, the Criminal Law (Amendment) (Offense of Rape) Act 2016
meant that women in Pakistan no longer go to jail for reporting rape and being accused of
adultery.
 The significance of this change cannot be stressed enough: it means the culture of
refusing to report rape cases out of fear of going to jail has been recognized as an
obstacle to legal recourse for rape victims.

Negligence of public servants refusing to register a rape case can result in jail
time for the official:

 Neglecting to investigate a rape case can result in a three year jail term for any medico-
legal officer, police officer or any other government servant under Section 1661 of the
Pakistan Penal Code.

A formal judgment on a rape case must come within three months of the
case being filed, and an appeal has to be adjucated six months from the
original rape conviction.

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Sec-166. Whoever accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or
for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means,
any public servant to do or to forbear to do any official act, or in the exercise of the official functions of such public
servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to
any person with the Federal or any Provincial Government or Legislature, or with any public servant, as such, shall
be punished with imprisonment of either description for a term which may extend to three years, or with fine, or
with both.
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 Under the Code of Criminal Procedure  Section 344(A)2, if this does not happen, the case
is then sent to the Chief Justice of the High Court.

Rape cases can no longer be settled through “compromise,” jirga, or any

other extra-judicial, parallel legal system.
 This too was abolished in 2006 under the Protection of Women Act.

The rape victim’s identity must not be disclosed:

 The Code of Criminal Procedure  Section 3523 states that a rape trial must be conducted
“in camera”, that means in a judge’s chamber or private place.
 The victim’s identity can be concealed using screens or a video link for her testimony.
 Her identity is not to be broadcast anywhere without the court’s explicit permission.

Right to legal representation and female supervision:

 The victim must be informed of her right to legal representation, and an investigation
officer (IO) will register the case in the presence of a female police officer, or female
family member.
 The presence of another woman is a vital change: it is common knowledge that many
rape victims have gone to register their cases, been separated from their family members,
and assaulted again.
 This happens a lot to trans women who go to the police station as well. Sections 161A of
the Criminal Procedure Code cover these requirements.

DNA in rape cases:

 Although men have fought hard against this change, it is now a requirement that DNA be
collected in a rape case within 72 hours, to prove that sexual intercourse took place.

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Sec-344-Power to postpone or adjourn proceedings: If, from the absence of a witness, or
any other reasonable cause, it becomes necessary-or advisable to postpone the
commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in
writing, stating the reasons therefore, from time to time, postpone or adjourn the same on
such terms as it thinks-fit, for such time as it considers reasonable and may by a warrant
remand the accused if in custody :
Remand: Provided no Magistrate shall remand an accused person to custody under this
section for a term exceeding fifteen days at a time.
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352. Courts to be open: The place in which any Criminal Court is held for the purpose of
inquiring into or trying any offence shall be deemed an open Court, to which the public
generally may have access, so far as the same can conveniently contain them:
Provided that the Presiding Judge or Magistrate may, if he thinks tit, order at any stage of
any inquiry into or trial of, any particular case, that the public generally, or any particular
person, shall not have access to, or be or remain in, the room or building used by the
Court.
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 A medico-legal examination can prove that the said intercourse happened by force.
(Maher’s article elaborates on the difficulties of collecting DNA in rape cases
in Pakistan).
 This is covered by Section 164B4 of the Criminal Procedure Code.

Previous sexual history no longer relevant:

 You cannot bring up a woman’s past sexual history in a rape trial in order to destroy her
credibility as a victim, after the deletion of the Section 151(4) Qanun-e-Shahadat (Law of
Evidence) 1984.
 It has always been the thinking that if a woman was not a virgin, she could not claim
rape. This law is meant to counter that chauvinistic assertion.
 Neither can a woman’s past history be used to assert that she is immoral, and somehow
invited the alleged perpetrator to rape her.
 We have a long way to go in Pakistan (and indeed the world) in terms of how well rape
cases are prosecuted and how frequently rapists are convicted. Around the world,
conviction rates for rape are shockingly low, because men have created the legal systems.
But thanks to the untiring efforts of women activists in Pakistan, these absolutely vital
changes have been adopted in Pakistani law. Procedural implementation is another story,
but all stories have to start somewhere.
 We need to work now on eliminating the humiliating two-finger test in the medico-legal
procedure of medical examination after rape, which is meant to prove that a girl or
woman is not a virgin. I remember looking at a friend’s medico-legal textbook and seeing
images of a woman’s vagina with and without a hymen. The absolute barbarity and
inhumanity of such a qualifier of a woman’s purity has no place in the desperate and
delicate hours and days after a woman or girl has been raped. It is, in the words of the
Times of India, “unscientific, illogical and illegal” (it was outlawed in India). It is
also another type of assault on a woman’s body, and can lead to bleeding, the
transmission of disease, and psychological trauma.
 I urge Pakistan’s lawmakers to eliminate this from the medico-legal textbooks and
procedures. We must restore the dignity of those girls and women who have been raped
or otherwise sexually assaulted, and an invasive, unnecessary test that reinforces our
medieval thinking about women and purity has no place in our lawbooks and medical
schools in the 21st century.
 What improvements we have may seem so little to those with Western eyes. But every
change to our laws, every improvement, is a chip knocked out of rape culture in Pakistan,
and a triumph for women’s rights, which are so desperately needed in our country. Let

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Sec-164b-It is not necessary that the Magistrate receiving and recording a confession
or statement should be a Magistrate having Jurisdiction in the case
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me make it perfectly clear once more: Islam may give women their rights, but men have
taken them away.
 We need feminist action to pressure lawmakers into creating mechanisms that protect the
rights of girls and women. Just like these improvements in the laws, and the mechanisms
that make it easier for women and girls to report rape and to bring the rapists to justice,
they will come about through women’s work, not the empty mouthings of religious men,
who have traditionally tried to block all pro-women laws in Pakistan and still oppose a
domestic violence law and a law raising the age of marriage for girls from 16 to 18.

Anti-Rape Bill
One bill passed by the Standing Committee and currently pending before the National Assembly
seeks amendments to the Pakistan Penal Code (1860), Code of Criminal Procedure (1898) and
the Qanoon-i-Shahadat (1984) to improve upon rape prosecution.

However, a rigorous review of rape laws shows that wider consultations and more
comprehensive reforms than those proposed by the bill are required; abhorrent and archaic
statutory rules and judicial statements should be struck out.

Amendment in Rape laws

A few of the amendments moved by PPP Senator, Sughra Imam, include:

 Resolution of rape cases within six months

 Protection of the identity of rape victims

 Penalties for disclosures of personal information of rape victims

 Mandatory medical test and extraction of DNA within twenty-four of hours of receipt of
information of such an offence.

Disclosure of identity of victim of rape

Sec-228a
Protecting the identity of rape victims may reinforce the notion of “shame” associated with rape
and violate fundamental freedom of speech but in Pakistan, a victim’s right to privacy trumps all
─ especially in light of how victims of sexual offences are stigmatized and criminalized.
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Medical examination of victim rape

Sec-164a
 Mandatory DNA sample testing by registered medical professionals could prove
beneficial to prosecution. Although DNA tests need not be conclusive evidence of guilt,
the amendment is a necessary antidote to Council of Islamic Ideology’s regressive
proclamation last year seeking to undermine the probative value of DNA tests as primary
evidence.
 Every effort should be made to maintain dignity and minimize humiliation in rape
investigations. Thus, the ‘two-finger test’ (a practice in which doctors attempt to
determine if a rape victim is sexually active), for example, should be banned. In 2013, the
Verma Committee suggested its abolition.
 This test is used for two purposes in India and Pakistan ─ to police morality and to assess
whether the hymen was ruptured as a result of rape. Such assessments have no place in a
modern judicial system and have little to no evidential value. High Court judges should
abstain from using such tests to dismiss a victim’s virtue and morality, and hence
undermine her credibility.

Punishment of Rape
Sec-376

 The bill also requires a three year sentence and/or fine for a public servant who fails to
“properly and diligently” carry out an investigation. Police officers and public servants
who take advantage of their position to rape women in their custody will be given a
mandatory life imprisonment or the death penalty (DP).
 Under current law, sentences for rape are the death penalty or a sentence of between ten
and twenty-five years; for gang rape these are death penalty or life imprisonment
 While the egregious nature of a rape by a public official ─ whose job is to safeguard
rights ─ must be underscored, a common misplaced view seems to be that recommending
anything but death undermines the seriousness of rape and its traumatic effects on
victims.

Moving Towards holistic systemic change

 Research shows that harsh penalties such as the DP are not a deterrent, and to advocate
against the DP is not to understate its heinousness of this crime. Clearly, harsh sentences
already exist for rape and have not led to high rates of successful prosecution.
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 In order to end sexual violence we need to devise holistic solutions that address women’s
lack of power in society and operationalise thousands of state run help lines, shelters,
victim support services, and legal aid clinics for women all over the country.
 These would be practical measures to ensure we see an increase in rape convictions.
Instead of relying on boutique private efforts to address theses gaps, the government must
mainstream such provisions.

Shortcomings of Recent Rape Laws

 A series of recent high-profile rape and child sexual abuse cases in Pakistan has spurred a
debate over how to curb the incidence of violent crimes that mostly target women and
children.
 As part of a government effort to punish and deter such crimes, Pakistan’s Prime Minister
Imran Khan last week called for the chemical castration and public hanging of rapists and
child sexual abusers.
 But human and child rights campaigners who oppose the death penalty are instead urging
reforms in the police and judiciary and an increase in awareness campaigns for parents,
children, and communities as the best approach to fighting and preventing sexual abuse.
 Major countrywide protests followed the alleged gang rape of a woman in front of her
children on one of the country’s major highways earlier this month. The incident
rekindled the debate over how to handle the thousands of reported cases of rape and child
sexual abuse in the Muslim country of 220 million -- and the countless cases that go
unreported.
 On September 16, Khan announced that his administration is preparing a three-tier draft
bill that will include the registration of sex offenders, policing, and exemplary
punishment. “[This is] to instill fear, so that when people try to ruin someone’s life, they
should be aware of the consequences,” he told lawmakers.
 “Convicting a sex offender is not an easy job due to the complicated process of
presenting evidence and witnesses,” Khan said. “The legislation will contain guarantees
to protect witnesses.” Khan’s comments were apparently aimed at placating the public
outrage over recent incidents as scores of rape and sexual abuse cases have been reported
in the media across Pakistan this month.
 “We hanged a convicted rapist and murderer in Kasur [in eastern Punjab Province] two
years ago, but nothing changed,” Sahil Executive Director Manizeh Bano told Radio
Mashaal. “Instead of such punishments, groups involved in pedophilia need to be
identified and the process of implementing the law needs to be effective.”
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Conclusion
 The situation in Pakistan presents itself as the age-old struggle between duty and
faith.
 The competing values of the Pakistani government, in attempting to adhere to their
obligations under both international conventions and culturally-engrained Islamic
ideals, have created a circumstance in which rape victims consistently lose.
 Pakistan’s feigned attempts at satisfying their international obligations and creating a
more secular legal system are embodied by the PWA—a law that has consistently
fallen short of carrying out its principal purpose of defending women’s rights.
 The implications of these shortcomings, while technically violations of Pakistan’s
obligations under the ICCPR, have resulted in virtually no backlash from the
international community. Unless
 Pakistan signs the First Optional Protocol of the ICCPR, there is little the
international community can do to provide redress to victims short of working with
Pakistan to implement a transitional justice system or condemning Pakistan for failing
to abide by its obligations under the ICCPR.
 While a transitional justice system could be implemented in Pakistan, because of the
Islamic ideals that govern the country in combination with Pakistani women’s lack of
access to the governmental processes, it would have little chance for success.