2 Dec 2022
By Xari Jalil
LAHORE: Data gathered by various legal sources have revealed that the rape conviction rates in Pakistan are extremely low – only about two to three percent. However with the new Anti-Rape Act 2021, special gender based violence (GBV) courts have been established and since then, convictions have risen to around 16 percent however only limited to the GBV courts. Despite the increase, it is still a very low conviction rate.
In this webinar, Voicepk along with a panel of experts examines why the conviction rate is so slow and why rape trials are delayed.
The panel included Habibullah Amir who served as the district and sessions judge in Pakpattan, Chiniot, Gujranwala and Lahore, and as a chairperson of the Appellate Tribunal PRA Lahore. He was elevated as a High Court judge and since 2015, remains a resource person at the Punjab judicial academy.
Representing the police especially across Punjab, was Amna Baig from Islamabad. Baig is the first person from Hunza to join the police service in officers’ rank. She has served as the Superintendent of Police (HQ and training) and Additional Superintendent of Police (Operations) in the capital and is currently working with the Human Trafficking unit of FIA. Most relevantly, Amna Baig has also served as a member to the rules and implementing committee for the Anti-Rape Ordinance 2020.
As part of civil society, Voicepk welcomed Nadeem Fazil a CSO Lawyer having previously worked with the Human Rights Commission of Pakistan (HRCP) for six years. He is currently the legal representative and adviser for the organization WAR Against Rape (WAR).
Answering why there was trials were so prolonged and why justice wasn’t dispensed as much, Habibullah Amir said that there were many reasons to this.
“A criminal case can be finished in two to three months,” he said. “Yet when an additional session judge examines the challan file some of the required documents and/or evidence is missing. The statement under Section 342, CrPC can also be concluded in one or two days but it is delayed as well.”
(Amir explained that under Section 342, CrPC a duty is cast upon the trial Judge to put questions to the accused persons over incriminating facts which have come in the evidence enabling the accused persons to explain circumstances appearing on the evidence against them.)
He stated that previously, it was the Hudood laws that dealt with rape (zina) or sodomy as unlawful intercourse.
“On tehsil visits I used to receive about 150 Hudood cases where 95 percent of the survivors used to deny that the accused was the perpetrator,” he pointed out. “The situation before 1979 still impacts the judicial process today.”
Amir said that registering an FIR was the first step and hurdle for a rape survivor.
“Even in the Jharna Bhasak case of 1979, a prominent film actress of the time who was raped could not have her FIR registered in time,” he said. “Police should launch FIR immediately but FIRs for rape are difficult to register. Investigation is another hurdle in convicting rapists.”
The former judge said that the police’s role to collect evidence including witness statements & medical examination was vital.
Amir added that the new rape law had changed the code of procedures and women’s protection procedure. GBV courts dealt with only GBV cases which could be different from rape cases. He highlighted that, today, the solitary statement of a rape survivor was sufficient for conviction.
“The immediate 24-34 hours are vital for semen collection but FIRs are lodged after a long gap of 10 days thereby losing medical evidence, he said.
Last but not the least, there are too many cases and the number of judges is too less. “Cases in the GBV courts are being tried faster since the implementation of the Anti–Rape (Investigation and Trial) Act 2021,” he said. “Taking trial to culmination is strenuous as courts are overburdened. Meanwhile, parallel legislation also causes delays,” he said. “
He said that these laws were applied in the 2018 in the Kasur ‘Zainab case’ and the 2021 motorway case non-consensus on which legislation is to be applied as an obstacle for faster conviction.
“The Anti-Rape legislation must involve recommendations of stakeholders for greater efficiency,” he said. “In the 1982 Safia Bibi case, the 18-year-old rape survivor became pregnant: she couldn’t prove rape so the courts punished her for adultery. It is indeed a dire situation as rape survivors may be punished when they can’t prove rape,” he said. “There must be capacity building of different stakeholders for swifter justice. After the anti-rape legislation all cases on women have come to sessions courts including those reviewed by magistrates.”
Amir said that sexual offenses were taboo and survivors were often ostracized their entire lives. “In some rapes cases delay is because the female survivor is not the complainant herself,” he said. “In India, a recent amendment requires rape FIRs to be filed by a female police officer for the comfort of the rape survivor. This must be done in Pakistan too. Harsh questioning by the police makes the survivor’s wary of trial. The Police do have limited resources but should at least properly follow up on cases.”
He said that often under duress rape survivors refused to identify the suspect or allege that the suspect was someone else.
Meanwhile, lawyer and civil society activist Nadeem Fazil, who has worked with WAR Against Rape said that the systematic delay of cases was the biggest hurdle to rape conviction. He said that the judicial system worked in such a way that it actively goes against rape survivors – most delays being caused by the police and the prosecutors.
“A prolonged trial not only delays justice, it also detrimentally affects survivors and their families leading them to a compromise with the accused,” he said. “This cannot be done however since rape is not a compoundable offence but still judges turn a blind eye to compromises.”
The extent of ‘forgiveness’ was such that in the case of a seven year old girl being raped in school, two years down the trial, she ‘forgave’ her rapist.
“Actually the problem is that the State has withdrawn itself from rape cases,” he said. “Under the law, in murder cases there may be room for compromise through qisas but not in rape. Yet all this happens under their noses. Some defence lawyers and even judges play against the survivor. A judge once told me that even if he convicted the accused, the survivor would not be able to live comfortably in her old locality because of stigma.”
Fazil said that WAR’s slogan has originally been to “Break the Silence!” which meant they wanted to encourage the survivors to speak out against this crime.
“Yet it must be considered how much pressure the rape survivor can actually take and whether she has the will to proceed or not,” he said. “We must be careful not to re-traumatize the victims. This is a big reason why our organization WAR does not use public protest tactics. Also we cannot force the survivors to trial – it must be their own decision.”
He said that relocating survivors made it easier to fight the case but even that could have a personal toll. Often, families, societies, and the accused put pressure to prevent the registration of a criminal case, giving the impression that a trial is a waste of time and so the survivor should take monetary compensation.
“Delay tactics are the best defense for lawyers to make survivors withdraw rape cases,” he said. “In Pakistan, it is families who are the deciding factor over whether to proceed with the case. In other countries, rape survivors are themselves a strong entity. Here the rights of women & girls are controlled by their families.”
Fazil highlighted that in Islamabad there was a 10 to 20 percent conviction rate for rape but in the Punjab province jurisdiction, it was much lower.
Meanwhile, Amna Baig, said that the most police stations now have a woman constable to specifically handle women’s issues. “The biggest hesitancy on part of the survivors is to deal with a male police officer,” she said. “There are also cultural reasons which prevent women from reporting rape. But within the police force, we are under-resourced and under staffed. A single investigation officer handles 20 to 40 cases.”
Baig said that Investigation Officers (IO) do not have the sensitivity training to speak with survivors. Baig said that reporting rape was indeed the first step of the criminal justice system, and that it starts at the police station.
“We must focus on the induction of more women police officers,” she said. “The Anti-Rape Ordinance has a clause requiring every district anti-rape cell to have a woman police officer. Yet they make up less than two percent of the force.” Legislating, she said, was easy but implementation was difficult.
She said that in sexual offense cases, IOs have to spend around Rs 50 to 60,000 for the investigation. On top of this, the only forensic sample collection center for Punjab is in Lahore, so survivors and suspects both must travel here to give samples.
“On average the police investigation takes 1.5 months however court trial takes 9 to 12 months,” she said. Long trial impacts only end up making the survivor more frustrated and depressed.
Do police need sensitivity training in rape cases?
Amna Baig agreed that in the motorway gang rape case, CCPO Umar Sheikh publicly victim-blamed the survivor, and often police pressurized women to compromise. However she said that changing mindset regarding sexual offenses took time.
“The newer generation of police is more sensitive to sexual offenses,” she said. “Still regular gender-sensitivity training is required.”
A recent workshop held by the AGHS to train prosecutors and police resulted in the discovery that often police officers reacted with doubt when a rape survivor came in to register a report.
Nadeem Fazil said that in most cases judges do not write that the rape survivor has forgiven the accused but write something else. “An assessment is needed of reasons why judges acquit rape suspects,” he said. “One of the biggest deterrent for case reporting and a conclusive trial is that under the new law there is a death sentence for rape. This means that it impedes conviction as more effort is made by the defense team for acquittal.
“Benefit of doubt remains paramount in the justice system and impacts low conviction,” he said.
Habibullah Amir said that “Prosecution is the responsibility of the State in all criminal cases and if the case is filed by the State, prosecutors should facilitate the rape case. There is also a communication gap between police and prosecution. Rape is so taboo that it can lead to honour killing. A compromise between a rape survivor and rapist is no grounds for a legal acquittal.”
This webinar is part of Voicepk.net’s series on 16 Days of Activism Against Gender-Based Violence and was conducted in partnership with the German Embassy.
