Rape is a non-compoundable offense in Pakistan. This means that an out-of-court settlement or compromise between the victim/survivor and the accused does not have the backing of the law (Section 376, Pakistan Penal Code). However, the percentage of rape cases where out-of-court settlements take place is as high as 22 percent, as per a gap analysis conducted by the Legal Aid Society (LAS).
The statistics speak for themselves. Although data revealed by the Human Rights Commission of Pakistan (HRCP) suggests that at least 11 rape cases are reported daily in Pakistan with over 22,000 such incidents reported to police in the last six years (2015-21), the conviction rate in rape cases remains below 3 percent.
Complainants are coerced into reconciling with their assailants after having abandoned all hope for justice. This can be blamed on the prevalent rape culture rooted in the patriarchal Pakistani society and a flawed Criminal Justice System (CJS). Women and children bear the blame for their assault rather than their attacker. Often a reconciliation reaches between the parties even before the first information report (FIR) is registered with the police on the directions of the jirga (tribal elders). This coupled with the insensitive treatment by the CJS actors pressurize the victims/complainants to enter into a compromise.
Although the government of Pakistan enacted the Anti-Rape (Investigation and Trial) Act 2021 and the Criminal Laws (Amendment) Act 2021 in the backdrop of the Lahore motorway rape case, the Acts remain largely unimplemented.
The Anti-Rape Act introduced numerous survivor-centric mechanisms in the CJS to ensure expeditious redressal of rape and sexual abuse crimes. These include: Anti-Rape Crisis Cells (ARCC), Special Prosecutors, Special Sexual Offences Investigation Units (SSOIU), a register of sex offenders, etc. However, the ARCCs are yet to be notified across all provinces and the register of sex offenders has not yet been established. Nevertheless, the federal government has recently re-notified the Anti-Rape Committee showing some interest in implementing the Act.
The 2021 amendment redefined the definition of rape stipulated in section 375 of the Pakistan Penal Code 1860 (PPC). The new definition of rape encompasses gender-neutral language and increases the scope and the ambit of the complex crime of rape. The new definition covers all facets of rape and penetration of a sexual nature i.e. through the penis, objects, or a part of the body other than the penis, etc.
Some complainants/victims are forced to enter into a compromise through the use of certain tactics and techniques including, intimidating them into giving inconsistent and hostile statements during the evidence-in-chief or at the cross-examination stage of the trial. This creates several intended discrepancies in the statements of the witnesses to weaken the case.
Further, the complainants are often intimidated into claiming that they had wrongly identified the accused and that the person present in court was not the tormentor. Moreover, it is often alleged that the police had wrongfully inserted the name of the accused in the FIR. These tactics substantially weaken the prosecution case and the under-trial is then acquitted by the court, citing these reasons for the acquittal. Therefore, the undertrials are able to circumvent the due process of law, making a mockery of the justice system, which remains unchecked by the state due to the absence of survivor-centric mechanisms.
To prevent out-of-court settlements, it is important that the 161 CrPC statement of the victim/complainant is recorded at the earliest. Further, section 164 CrPC of the survivor and prosecution witnesses should be recorded before the magistrate at the earliest. If the victim/complainant is untraceable or turns hostile, their statements may be used for continued prosecution of the case. Case law by the high courts of Pakistan has placed great emphasis on the solitary statement of the victim (2021 Y L R 380 – Sindh High Court). It has also been held that a conviction is possible based on the strong solidarity statement of the victim/survivor (2022 SCMR 50 - Supreme Court of Pakistan), (PLD 2021 Supreme Court 550).
Once the lawyer realises that a compromise is taking place, s/he should immediately bring this fact to the knowledge of the court. The judges and prosecutors must be proactive and should extend survivor-centric mechanisms to the survivor at their initiative. Further, consistent capacity building of all CJS actors should be regularly conducted.
The federal and provincial governments must implement the Anti-Rape and Criminal Law (Amendment) Acts of 2021. Lastly, the undertrial and complainant/survivor should be given an equal opportunity to argue their cases to uphold the due process of the law.
The statistics speak for themselves. Although data revealed by the Human Rights Commission of Pakistan (HRCP) suggests that at least 11 rape cases are reported daily in Pakistan with over 22,000 such incidents reported to police in the last six years (2015-21), the conviction rate in rape cases remains below 3 percent.
Complainants are coerced into reconciling with their assailants after having abandoned all hope for justice. This can be blamed on the prevalent rape culture rooted in the patriarchal Pakistani society and a flawed Criminal Justice System (CJS). Women and children bear the blame for their assault rather than their attacker. Often a reconciliation reaches between the parties even before the first information report (FIR) is registered with the police on the directions of the jirga (tribal elders). This coupled with the insensitive treatment by the CJS actors pressurize the victims/complainants to enter into a compromise.
Although the government of Pakistan enacted the Anti-Rape (Investigation and Trial) Act 2021 and the Criminal Laws (Amendment) Act 2021 in the backdrop of the Lahore motorway rape case, the Acts remain largely unimplemented.
Although the government of Pakistan enacted the Anti-Rape (Investigation and Trial) Act 2021 and the Criminal Laws (Amendment) Act 2021 in the backdrop of the Lahore motorway rape case, the Acts remain largely unimplemented.
The Anti-Rape Act introduced numerous survivor-centric mechanisms in the CJS to ensure expeditious redressal of rape and sexual abuse crimes. These include: Anti-Rape Crisis Cells (ARCC), Special Prosecutors, Special Sexual Offences Investigation Units (SSOIU), a register of sex offenders, etc. However, the ARCCs are yet to be notified across all provinces and the register of sex offenders has not yet been established. Nevertheless, the federal government has recently re-notified the Anti-Rape Committee showing some interest in implementing the Act.
The 2021 amendment redefined the definition of rape stipulated in section 375 of the Pakistan Penal Code 1860 (PPC). The new definition of rape encompasses gender-neutral language and increases the scope and the ambit of the complex crime of rape. The new definition covers all facets of rape and penetration of a sexual nature i.e. through the penis, objects, or a part of the body other than the penis, etc.
Some complainants/victims are forced to enter into a compromise through the use of certain tactics and techniques including, intimidating them into giving inconsistent and hostile statements during the evidence-in-chief or at the cross-examination stage of the trial. This creates several intended discrepancies in the statements of the witnesses to weaken the case.
Further, the complainants are often intimidated into claiming that they had wrongly identified the accused and that the person present in court was not the tormentor. Moreover, it is often alleged that the police had wrongfully inserted the name of the accused in the FIR. These tactics substantially weaken the prosecution case and the under-trial is then acquitted by the court, citing these reasons for the acquittal. Therefore, the undertrials are able to circumvent the due process of law, making a mockery of the justice system, which remains unchecked by the state due to the absence of survivor-centric mechanisms.
Once the lawyer realises that a compromise is taking place, s/he should immediately bring this fact to the knowledge of the court. The judges and prosecutors must be proactive and should extend survivor-centric mechanisms to the survivor at their initiative.
To prevent out-of-court settlements, it is important that the 161 CrPC statement of the victim/complainant is recorded at the earliest. Further, section 164 CrPC of the survivor and prosecution witnesses should be recorded before the magistrate at the earliest. If the victim/complainant is untraceable or turns hostile, their statements may be used for continued prosecution of the case. Case law by the high courts of Pakistan has placed great emphasis on the solitary statement of the victim (2021 Y L R 380 – Sindh High Court). It has also been held that a conviction is possible based on the strong solidarity statement of the victim/survivor (2022 SCMR 50 - Supreme Court of Pakistan), (PLD 2021 Supreme Court 550).
Once the lawyer realises that a compromise is taking place, s/he should immediately bring this fact to the knowledge of the court. The judges and prosecutors must be proactive and should extend survivor-centric mechanisms to the survivor at their initiative. Further, consistent capacity building of all CJS actors should be regularly conducted.
The federal and provincial governments must implement the Anti-Rape and Criminal Law (Amendment) Acts of 2021. Lastly, the undertrial and complainant/survivor should be given an equal opportunity to argue their cases to uphold the due process of the law.