Rape

 

Rape and responsibilities

            Reprehensible, deplorable, despicable, extremely repugnant, and totally unforgivable, indefensible, outrageous, and non-compoundable is the offence rape. However, how much detestable it is, it is still an offence and requires a trial.

            These days, due to the horrifying and appalling motorway-incident of rape, the whole country’s moral conscious is under anguish and pain. No compensation except the punishment could heal the wounds. And as it was claimed in media by authorities, the accused is previously a record-holder. Then the whole country’s question is: why such culprits get scot-free? Why they have a second chance? Why they get acquitted? Whose fault it is?

            Allegation of crime, how much heinous is the offence, is one thing; it trial is another. Many blame the investigating agency; the investigating agency blames the lawyers; lawyers blame the investigating agency and legislators; legislators blame the courts; courts again blame the investigating agency for poor collection of evidence. Awfully no one is ready to accept the blame. Nevertheless, all are collectively responsible.

            Firstly, with regards to the investigation agency, many basic negligences can be removed. Whenever the information is registered under section 154 CrPC of the offence of rape. The Standard Operating Procedure (SOP) for Investigation of Rape Cases, 2013 must be followed by the police. It provides that its investigation must be conducted by a female police officer. The police must behave with utmost sympathy with the victim, so that she may be able to explain the incident. Immediate access of a psychiatrist must be made available to her. The foremost important task is to send the victim for medico-legal-examination forthwith. She must be medically examined with her consent only. No compulsion should be there. Her statement must be got recorded before the magistrate.

Moreover, her clothes should be taken into custody. She must be treated with empathy to get herself ready for cooperation with Medical Officers and Police. Her parents and guardian must not delay in registering and reporting the matter to the police because after three days the possibility of semen detection might not be possible. However, thanks to the honorable Supreme Court of Pakistan that has held, in many cases of rape, that lack of DNA-test-report alone is not sufficient if the case is otherwise proved beyond the shadow of doubt. The male accused should also be passed through a potency test. And lastly, the outdated, medieval, disgraceful, immoral, Two-Finger-Test must be replaced with medically equipped modern scientific procedures and methods.

Secondly, with regards to learned professional trial lawyers. Advocacy is one of the sacred professions. “Wakeel” is one of the beautiful names of God. It means the trustee, the disposer of affairs. What trust is it? If truth be told, it is a two-way trust: primarily, one towards God who gives us the knowledge to do justice, as it is written in Surah Al-Baqara, verse No. 32 “they said, Exalted are You; we have no knowledge except what You have taught us; indeed, it is You who is the Knowing, the Wise”; thereafter towards his client, to prepare, to present, and to assist the court in humble, gentle and in diligent manners. Lastly, if the lawyer knows that the accused did the crime as alleged and he is the real offender, he must refuse to take his case. Because as it opined by God in Surah Al-Imran, verse No. 110 “You are the best nation produced (as an example) for mankind. You enjoin what is right and forbid what is wrong and believe in Allah (SWT)”.

Thirdly, with regards to learned trial courts. A court is a place of hope. Where miserable comes, with a hope to have justice. Justice is another name of feelings. It cannot be seen, rather it must seem to be done. A normal prudent mind can tell in particular circumstances whether justice has been done or not. Then expectations from a judge naturally would be high as compared to him. A judge must have all laws on the sleeves of his robes. His primary duty is to get acquaint himself with updated knowledge of the law. Failure of a counsel to properly assist the court should not be an excuse for him. Then his second duty is to apply the proper application of the law. He must not be swayed away from surmises, presumptions, feelings, rather he must follow the law and law alone. In rape cases, he must understand the facts, the victim, and must have a check and balance on the police officers during investigation, on lawyers during examination and cross-examination, and others during court-proceedings from making harassment and undue annoyance to the victim. He must be neutral and must be conscious all the time. As he is the guardian not only of the victim’s rights but also of the accused person.

Fourthly, with regards to the legislators. The legislation is the duty of legislators. They are being voted and paid to do legislation primarily. But here it is deeply sorrowful and regretful that Pakistan Penal Code was originally prepared by Lord Macaulay in 1860 as the Indian Penal Code and after independence, we adopted it with the same definitions, objects, and offences mentioned therein. The same is with the case of procedural law: Pakistan Criminal Procedure Code 1898. It is 2020. The whole world has changed, except the laws. The nature, mode, and manner of crime have been changed, except the laws. The purpose, object, and effects of crime have been changed, except the laws. Regretful, is it not?

To conclude, Rape being an offence is really a reprehensible, deplorable, despicable, extremely repugnant, and totally unforgivable, indefensible, and outrageous act. And after seeing, again and again, horrible incidents in this country, it has become a norm to blame each other: the investigating agency blames the lawyers; the lawyers blame the investigating agency and legislators; the legislators blame the courts, and courts again blame the investigating agency for poor collection of evidence. Be that as it may, all of them are collectively responsible. So, stop blaming each other. Start supporting each other to not let scot-free these sinners who brought shame for all of us. The sooner the above terse responsibilities acceded by each, the better it is for the safety and lives of the citizens of this country.  

                

 

Hafiz Muhammad Azeem.

The writer is an advocate of the high court and writes on various topics. He can be reached at Khokhar.azeem@yahoo.com. His articles can be accessed on hmazeem.blospot.com. He holds an LL.M. from the Punjab University and teaches law.