February 12th, 2021
Text by Shahrazad Agha
Video by Asim Ahmad Khan
“They took him in a small room, raped him, and burnt him. He came home and told me, ‘Ami mere saath zyadati hui hay, jala bhi deeya gaya hay….’ (Mummy, I was raped and burnt). The next day he died. We want justice from the government….all we want now is justice.”
She cannot even begin to put her pain in words.
For six-year-old Amir Hamza’s mother, life will never be the same again, and her son’s last words will always come back to haunt her.
Farzana Bibi* had been pressured into reconciliation with the accused, by the police and the local jirga of Khuzdar, Balochistan. But her conscience would not allow her to live her life this way. She is now seeking justice for her son, who she says was raped and burnt by being pushed into a fire, causing multiple injuries on his body. The incident happened in January this year. Tragically, Hamza succumbed to his injuries and passed away the next day.
At the time, Farzana had wanted to file a case for rape and murder right after the little boy had confided in her. Instead, the police at first refrained from filing an FIR, after which the family members protested. The next day when the FIR was filed, it was filed under Section 377 of Pakistan Penal Code (PPC) quoting unnatural offense.
According to Section 377, “Whoever voluntarily has carnal intercourse, against the order of nature with any man, woman, and animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years or more than 10 years, and shall also be liable to fine.”
While the section takes into notice that the offense is serious, it does not regard the rape of a male; the police have also not filed any FIR for murder charges.
Regardless of the FIR, the grieving mother says that she ended up reconciling with the accused, after which the police released them. She says it was all done under pressure from the police, and the influence of the local jirga.
To make matters more complicated, the medicolegal officer on duty at the time, commented that the boy had not been raped.
“They brought him to the hospital saying that he had been raped,” said Dr Javed Zehri at the time the boy was brought in to the hospital. “I examined him completely as a police surgeon. There were no signs, or scratches, showing that he had been sexually abused. I also have children, and there would be no reason in which I would be dishonest about this matter.”
He had emphasized that there was no semen found, no lacerations. “Perhaps he was accidentally burnt, but we have taken a swab sample in any case, and we will send to the forensic lab, but I would stress that there are no signs of sexual abuse.”
But sources say that the MLO had in a matter of minutes declared that there were no signs of sexual violence, while at the same time, the police were also declaring the same.
In fact, the police were also present at the jirga meeting, as well as during the reconciliation. It was a suspicious situation.
A DAMAGING PARALEGAL SYSTEM
However, a worse situation developed after the case was decided by the local jirga, which has no expertise at all in the issue. It is not the first time, in which a serious matter has been decided out of court in a jirga.
Child rights activist, Zia Baloch, says there is no place in the law for a jirga because the situation is that there is no implementation of laws pertaining to rape and sexual assault. Otherwise, families are put under the pressure of influential persons of the community, and the decision of their cases is made by the jirga.
“Who has given the jirga this authority that they can go ahead and make these decisions and pass judgments?” he asks angrily. “This is the 21st century. In this day and age, you can pressure a family to withdraw their case only because the accused has threatened to do the same thing that they have done to the other children in the family? This is despite the fact that a small child has been raped and burnt, causing him to die?”
Baloch asks whether the law is being implemented at all.
Noor Jan Buledi, a criminal lawyer, says that although the FIR says that an ‘unnatural offense’ had taken place against the boy, the new second clause of Section 377 suggested that the punishment was death or a life sentence. But the police seemed to have purposely chosen to file the FIR under Section 377 which gives punishment only between two to 10 years. He says, however, that the prosecution and the court, both had the mandate that either before or after the framing of the charge, they could still alter the charge – according to the offense. Hopefully, he says, this would be the case.
“Such cases are made weaker by the prosecution so there is enough space for the accused to bribe the police, and eventually get acquitted,” he says. “In this case also there is no DNA report as yet, there is no challan presented to the court, yet the accused have been released on bail. This means the prosecution is deliberately weakening the case.”
There is also a delay in the investigation of rape cases, according to Balochistan High Court lawyer, Ali Ahmad Kakar who says that the reason again lies in slow investigations and weak prosecution, which has led to an increase in the number of rape cases pending in court.
“The prosecution does not produce evidence and witnesses on time for court,” he says. “There may be many reasons for this as well. Sometimes there is no evidence; sometimes the evidence is there but is difficult to procure. But this is the main reason why rape cases are piling up in the pipeline. There is no proper check and balance.”
Dr. Ayesha Faiz, a medicolegal surgeon at the Civil Hospital, Quetta, says that the lack of DNA labs has led to delays in uncovering facts in rape cases. Samples are sent to Islamabad, Karachi, or Lahore, from where it can take up to six months to an entire year for the results to be cleared.
“We have several cases waiting for results – some of them are reported some are not,” she says. “In tribal areas, for instance, girls do not even reveal or confide in an adult that something has happened to them. And sometimes girls come to us independently and tell us but they make it clear that no one from their family must know what happened.”
They are scared by their families – hoping that they won’t get killed by them.
“Samples are usually sent to Lahore for forensics because there is a lab in Lahore and samples from the whole country are sent there. Balochistan is always last on the list for that – Punjab’s cases are given priority, then Sindh’s, Peshawar’s, and then Balochistan. The results can come out after sick to eight months or a year.”
A NEW LAW?
Advisor to the Chief Minister of Balochistan, and Member Balochistan Assembly, Bushra Rind, says that legislation will be enacted in the Provincial Assembly to tighten the punishment related to rape cases.
“This issue is close to my heart,” she says. “I have raised it at the floor of the assembly before as well. “I encourage that the matter is raised again because this is the worst criminal act.” She said. “All those who are involved with the rape of a child must be given nothing less than a death sentence.”
The law already declares this. According to Section 376, “whoever commits the rape of a minor, or a person with a mental or physical disability, shall be punished with death or imprisonment with life, and fine.”
Rind believes that doing this must, in turn, realize that people start to take things seriously and no one else dares to even try and rape children or women again.
Like Amir Hamza’s parents, many others are so frustrated with the system that they either do not report the rape case at all or withdraw the case soon. According to a report, 59 percent of rape cases in Pakistan are not reported to the police due to various reasons.
In Balochistan, 132 cases of sexual abuse have been reported in the last six years. However, due to weak prosecution, most of the cases are still pending in the courts.