Monday, September 28, 2020

Rape and institutional responsibilities

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

Why do culprits of rape walk free?

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 of the culprits, can heal the wounds of men and women alike.

It was claimed by authorities and also reported in the media that the accused is previously a record-holder. This begs us to question: why do such culprits get away scot-free? Why do they get a second chance? Why do they get acquitted? Most importantly – whose fault it is?

Allegation of crime, however heinous the offence is one thing; its trial is another.

SOP for investigation of rape cases

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 institutions are collectively responsible.

Firstly, with regards to the investigation agency, many basic negligences can be removed. The Standard Operating Procedure (SOP) for Investigation of Rape Cases, 2013 must be followed by the police. It provides that the investigation must be conducted by a female police officer. The police must behave with utmost sympathy towards the victim, so that she may be able to explain the incident.

Read More: Death penalty for rape cases and the rule of law

Immediate access to a psychiatrist must be made available to the victim. 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 placed on her. Her statement must then be 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.

Read More: Motorway gang-rape: Victim refuses to identify accused Waqar Al-Hassan

Lawyers’ duty towards their clients 

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)”.

Read More: Op-ed: Punjab Police deserves commendation for solving motorway rape case

Trial court: A place of hope?

Thirdly, with regards to learned trial courts. A court is a place of hope. Where the miserable comes, with a hope to have justice. Justice is another name of feelings. A normal prudent mind can tell in particular circumstances whether justice has been delivered or not. Then expectations from a judge naturally would be high.

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.

Read More: Main suspect in motorway gang-rape case has previous criminal record: sources

Need for updated legislation

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 Pakistani laws. The nature, mode, and manner of crime have been changed, but the laws are still the same. The purpose, object, and effects of crime have been changed, but the laws remain at a standstill. 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 it happen, again and again, 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 institutions are collectively responsible. So my suggestions is to stop blaming each other. Start supporting each other to not let these sinners get away scot-free; those who bring shame onto all of us. The sooner the above responsibilities are fulfilled the better it is for the safety and lives of the citizens of this country.

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. The views expressed in this article are the authors own and do not necessarily reflect the editorial policy of Global Village Space.

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