Some mandatory provisions of law introduced by successive governments in offences related to sexual abuse, adultery and fornication have not been followed by the investigating agencies despite judgments by the superior courts.

Over a decade ago the parliament had passed the Protection of Law (Criminal Laws Amendment) Act, 2006, known as Women Protection Act, which was aimed at providing relief and protection to women against misuse of law related to adultery, fornication, sexual abuse, etc. The said Act was published in the official Gazette on Dec 2, 2006.

Subsequently, the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016, was enacted in 2016. Through that Act amendments were made in Pakistan Penal Code and Code of Criminal Procedure with the aim to address lacunas in existing laws to increase conviction rates of culprits in cases of sexual assault and abuse.

In the former enactment several provisions were included to stop misuse of existing laws, including the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and Pakistan Penal Code by the law enforcing agencies.

Through those amendments section 203 B was included in CrPC so as to make the offence of fornication non-cognizable. The said section provides that no court should take cognizance of an offence of fornication under section 496B of PPC except on a complaint lodged in a court of competent jurisdiction.

It provides that the presiding officer of a court taking cognizance of an offence shall at once examine on oath the complainant and at least two eyewitnesses to the act of fornication. If in the opinion of the court there is sufficient ground for proceedings the court shall issue summon for the personal attendance of the accused.

Moreover, through the amendments in 2016 it was made mandatory to conduct DNA tests on both the suspected offender and victims in cases of sexual abuse.

Last month, a single bench of the high court comprising Justice Roohul Amin Khan Chamkani, while hearing bail petition of a person accused of fornication, ruled that section 203 C of CrPC was mandatory provision of law which was binding on the investigating agency.

The bench was hearing a bail petition on Nov 12, 2018 of an accused named Bakhtiar. The case was registered at Police Station Saddar, Mardan, on Sep 26, 2018, under section 496- A (enticing away a woman) and section 496-B (fornication) of PPC.

The complainant Ziarat Khan had alleged that his wife had developed illicit relations with his nephew Bakhtiar in 2010-11 and had eloped with him. He had alleged that due to disgrace he remained silent at that time and now he was satisfied that his wife had gone with the petitioner. An inquiry was conducted in which the police claimed that as result of illicit relations between the petitioner and the woman two children were also born.

The bench granted bail to Bakhtiar on condition of furnishing two sureties of Rs200,000 each with the observation that section 203-C CrPC provided a proper procedure and mechanism for taking cognizance of an offence under section 496-B PPC.

The bench elaborated the provisions of section 203-C CrPC stating that the mandatory provisions of this section had not been complied with, nullifying all the proceedings to the extent of section 496-B PPC. The bench ordered to delete section 496-B PPC from the FIR as the mandatory provision had not been followed in this regard.

The bench also took exception to the placement of the picture of the woman and the said two children on case file with certain objectionable comments stating that it showed the highhandedness of the investigation officer who had pre-decided the fate of legitimacy of the two minor innocent children.

The bench observed: “When there was no DNA test of the kids with the petitioner or any other concrete proof in this regard, on mere allegations the Investigation Officer should not have passed such uncivilised verdict, particularly playing with the future and lives of the kids.”

The bench directed that this order should be placed before the Khyber Pakhtunkhwa IG and superintendent of police, Mardan, who should ensure the removal of the said pictures from the case file and to take legal action against the responsible IO and other officials.

In Dec 2017, the same bench had ruled that under Section 164-B of the Code of Criminal Procedure (CrPC), which was inserted in the law through the Criminal Law (Amendment) (Offences Related to Rape) Act, 2016, samples of DNA of the alleged rape victim and the suspected rapist should be collected and sent for examination at the earliest.

The bench had given the ruling in a bail petition filed by Umar Taj, who was charged with the abduction of a woman and sexually abusing her.

In the detailed judgment, Justice Roohul Amin Khan had discussed provisions of the said two laws, Protection of Women (Criminal law Amendment) Act, 2006, and the Criminal Law (Amendment) (Offences Related to Rape) Act, 2016.

The bench ruled that Section 164-B CrPC related to conducing of DNA tests shall be applicable to offences under Section 376 (Punishment for Rape) of the Pakistan Penal Code. The bench had observed that section 164-B CrPC. provides that where an offence under sections 376 or 377 or 377-B of the PPC is committed or attempted to have been committed or is alleged to have been committed, the Investigating Officer shall proceed for collecting DNA samples, where practicable, from the victim with his or her consent or with the consent of his or her natural or legal guardian and the accused during the medical examinations conducted under section 164-A within optimal time period of receiving information relating to commission of such offence.

“I have appeared in several such cases wherein the mandatory provisions of section 203-C and 164-B (related to DNA) of the CrPC have not been followed,” said Shabir Hussain Gigyani, an advocate of the high court appearing in criminal cases. He said that these provisions had very rarely been followed by the investigation officers.

He pointed out that over a decade had passed since enactment of the Women Protection Act, but the police officials were still least aware of its provisions. He proposed that the KP Judicial Academy and the Police Training College, Hangu, should impart proper training to the investigating officers in this regard.

Published in Dawn, December 3rd, 2018