January 24th, 2022
By Rehan Piracha
The Islamabad High Court has suggested guidelines to protect child victims of pornography and sexual abuse, directing the federal government to implement the Optional Protocol to the Convention on the Rights of the Child on Sale of Children, Child Prostitution and Child Pornography.
“State Parties shall adopt appropriate measures to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process,” Justice Mohsin Akhtar Kayani wrote in a 24-page order while dismissing appeal of a convict in a child pornography case on January 14, 2022.
The convict was accused of assaulting and filming inappropriate videos of a child in 2019. The trial court had sentenced him to 14 years in prison under three sections of the Pakistan Penal Code on September 2, 2020.
Enhancement of child pornography sentence under PECA
The court pointed out that the offence of child pornography under Section22 of the Prevention of Electronic Crimes Act, 2016 carried a lesser punishment of seven years with a maximum fine of Rs 5 million than the imprisonment of 14 years, extendable up to 20 years, given for the same offence under Section 292C of Pakistan Penal Code.
According to Justice Kayani, such disharmony amongst the two laws extends certain extraordinary benefit to the accused person. The court directed that the federal government should amend Section 22 of the PECA for enhancement of the sentence of child pornography from seven years to 14 years as listed under Section 292-C PPC.
Child victims not to be exposed to accused
The IHC order directed that trial courts had to protect the rights of child victims by following the standards settled in the international jurisdiction.
The child victim should not be exposed to the accused person or the courts of law and their testimony should be recorded through video link facility or through protective shield where they should not be in a direct contact with the accused in a trial, the order said.
“The testimony of the child victim may also be recorded through a special measure through video conferencing, while the child shall remain in a conducive and protective environment, like home or any other separate facility, if maintained by the Government, as the case may be,” reads the order.
No need for court appearance
The IHC directed that there was no need to call the victim of child pornographic offence or victim of sexual offences in the court if the evidence was based upon video, IT data, mobile data, and information system which was confirmed by the Forensic Science Agency through their reports. The child victims could be called to court in exceptional circumstances only.
Case to be based on videos, images
Similarly, the IHC said it was not necessary for the prosecuting agency to produce the victim(s) in every case but it should establish its case on the basis of technical evidence of the information technology being covered under the modern devices admissible under the Qanun-e-Shahadat Order, 1984.
The State should only ensure that a fair chance should be given to the accused persons by confronting all the incriminating material, including the sexually exploited videos and images without any other direct witness.
No court screening of pornographic material
The IHC order barred screening of pornographic material in trial courts, stating that the reports submitted by the Forensic Science Laboratory or cybercrime expert should be considered conclusive for the purpose of conviction if the report were specific to the extent of role of accused person.
IO to define role of accused in line with forensic reports
The high court also directed that an investigating officer of child pornography case had to specify the role the role of an accused person which could be corroborated with the Forensic Science Laboratory report or technical evidence recovered during the course of investigation, including the mobile phone data or computer information system.
Elimination of child pornography data
The IHC judgment directed that a trial court should also pass an order for elimination of all child pornographic data, images or videos at accessible to anyone from all sources. The trial court should issue directions to the Federal Investigation Agency as well as to the Pakistan Telecommunications Authority to ensure that such data shall not be accessible in any information system in order to save dignity of victim and families.
Use of consecutive sentences to deter child pornography
The IHC order emphasised upon the trial courts that the cases of child pornography and sexual exploitation should be considered heinous in nature.
“In such scenario, the Court can consider that the sentences be run consecutively with other offences, if charged, in terms of deterrent theory of punishment, in order to protect the society at large from this heinous crime,” reads the IHC order.
In camera trial
The IHC instructed trial courts to hold in-camera proceedings in cases relating to child pornography. Therefore, all outsiders having no relevancy to the case or extra staff of the court should be removed from the courtroom while recording the testimony of a child victim. The child victim is to testify in a separate compartment or area of the court in order to save him from humiliation and embarrassment.
The high court also instructed trial courts to conduct proceedings of minor offences against an accused with the main case instead of a separate trial. The courts should pass an order to transfer minor offences to be tried together with the main case at the same time to reduce burden of unnecessary trials, the IHC said.
‘Most detailed verdict on child pornography’
Speaking to Voicepk.net, Maliha Zia, associate director of Legal Aid Society, said the IHC order was among a few of judgments that looks into international conventions that Pakistan was a signatory to including the Convention on the Rights of the Child.
“Justice Kayani has recognised that Pakistan was obligated to implement the Optional Protocol even though it had not signed the protocol,” she said. The court set a good precedent in linking international law with national laws, she added.
The court also took note of the contradiction in sentences relating to child pornography under the PPP and PECA. “Justice Kayani explained the contradictions and similarities between both these laws relating to offence of child pornography and the how to overcome them.”
According to Zia, the IHC order makes a person culpable of child pornography even for possession of pornography material. “The law has recognized that a person should be held guilty of child pornography not only by transmitting or filming a video but even on possession of a video,” she explained.
She said the IHC judgment had gone into great detail on child pornography and it was imperative that every criminal justice actor has had clarity on its meanings.