AN important aspect of procedural law pertaining to the crime of rape, and one that most certainly serves the cause of justice, was recently reiterated in a sessions court in Karachi.
In a case where a school teacher was sexually assaulted in Karachi in March 2017, the court found the accused guilty and rejected a compromise between him and the victim’s father as a basis of acquittal.
Holding that an out-of-court settlement has no legal value in rape cases, the judge sentenced the defendant to 10 years behind bars. Her approach adhered to the law: the crime of rape is not included among the compoundable offences listed under Section 345 of the Criminal Procedure Code, which expressly says “No offence shall be compounded except as provided by this section”.
Nevertheless, courts still make appalling errors of judgement. In 2012, a trial court acquitted men accused of gang rape after they came to an out-of-court settlement with the father of the victim.
Fortunately, the Supreme Court struck down the lower court’s ruling. But similar travesties of justice continue to take place. For example, in December 2022, the Peshawar High Court set aside the sentence of life imprisonment awarded to a man for sexual assault because he married the victim as a result of a compromise.
Cultural filters and biases can often lead to faulty applications of the law. In a deeply inequitable society, the compounding of offences can lead to outcomes completely at odds with the principles of justice.
This is perhaps most starkly seen in cases of ‘honour killing’ where, unlike other types of murder, the families of the victims and the perpetrators are the same. This has allowed murderers to go free when the victims’ next of kin have ‘pardoned’ them — a grotesque iteration of ‘keeping it in the family’.
After the public outrage at the murder of social media celebrity Qandeel Baloch at the hands of her brother, legislators brought an amendment to the relevant law. Fundamentally, this amendment changed nothing. Honour killing remains compoundable; the court continues, as before, to have discretionary power to award punishment to perpetrators even if they are pardoned by the family of the victim.
Only the minimum punishment that may be awarded has been enhanced — from 10 years’ imprisonment to imprisonment for life.
The acquittal of Qandeel’s brother on appeal by the Lahore High Court is further evidence that the law needs revision, but it also offers an insight into society’s misogynistic bent.
However, in most cases of murder, even willful murder, the deciding factor in whether justice is done is the social standing of the victim’s family. If they can be browbeaten into a ‘compromise’, then killers walk free. Surely those who commit this most terrible of crimes should not get away with it.
Published in Dawn, February 7th, 2023
