Women and the Criminal Justice Sector

The rights to equal access to justice and protection under the law are fundamental elements of the rule of law. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations General Assembly in December 1979 and Pakistan ratified the Convention in 1996. Among all the international human rights treaties, CEDAW is the most significant in terms of eradicating discrimination against women. The Convention includes articles pertaining to civil, political, social, cultural, legal as well as reproductive rights of women.

The essence of Pakistan’s international legal obligations within the Criminal Justice System as laid down by CEDAW is then two-fold; establishing laws for the protection of women, and amending or repealing existing laws which continue to discriminate against women.

Domestic law

Domestic Violence (Prevention and Protection) Act 2012

Each province with the exception of Khyber Pakhtunkhwa have enacted domestic violence laws. The Domestic Violence (Prevention and Protection) Act 2012 (the domestic violence law enacted in Sindh and Balochistan have similar content with slight variations) defines domestic violence broadly and includes all intentional acts of gender-based or other physical or psychological abuse committed by the accused against women, children or other vulnerable persons, with whom the accused person is or has been in a domestic relationship. The Act allows the Court to pass interim orders, protection orders, and residence orders for the protection of victims of domestic violence.

Punjab has also enacted the Punjab Protection of Women Against Violence Act 2016. It establishes Protective Centres and shelter homes for victims of domestic violence and includes provisions about GPS tracking of the offenders to ensure protection of women. The Punjab Women Protection Authority Act 2017 further facilitates the implementation of institutional measures stipulated under the Punjab Protection of Women Against Violence Act 2016 including, establishment of district women protection committees, violence against women centers and women protection officers.

Criminal Law (Amendment) (Offences in the name or pretext of Honour) Act 2016

The Act amends certain sections of the PPC and Cr.P.C to deter and prevent offences committed in the name of honour. It amends Sec. 229 of the PPC 1860 to add a new clause relating to the concept of ‘Fasad-fil-arz’ which is used to decide the severity of punishment awarded by observing factors such as the offender’s past convictions, nature of the offence, whether the offender is a danger to the community and whether the offender has committed any offences in the name of honour – which means that commission of honour crimes will now lead to harsher punishment for the offender.

A significant effect of the Act is the amendment to Sec. 311 of the PPC 1860 which now states that murder committed in the name of honour is punishable with death or imprisonment for life and even where the accused is pardoned by the Wali (guardian) or other family members of the victim the Court will still punish the accused with imprisonment for life.

Acts of Vioence under the Pakistan Penal Code

The Pakistan Penaal Code has criminalised the following acts of violence targeted towards women:

PAKISTAN PENAL CODE 1860
Sec. 354	Assault or criminal force to woman with intent to outrage her modesty (punishable with imprisonment of either description for a term which may extend to two years or with fine, or with both).
Sec. 354-A	Assault or use of criminal force to woman and stripping her of her clothes (punishable with death or with imprisonment for life, and shall also be liable to fine).
Sec. 365-B	Kidnapping, abducting or inducing woman to compel for marriage or to force, or to seduce to illicit intercourse (punishable with imprisonment of life, and shall be also liable for fine).
Sec. 366-A	Inducement of any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, forced or seduced to illicit intercourse with another person (punishable with imprisonment which may extend to ten years and shall also be liable to fine).
Sec. 366-B	Importation of any girl under the age of twenty-one years with intent that she may be, forced or seduced to illicit intercourse with another person (punishable with imprisonment which may extend to ten years and shall also be liable to fine).
Sec. 371-A	Selling a person for purposes of prostitution, etc. (punishable with imprisonment which may extend to twenty-five years, and shall also be liable to fine).
Sec. 375 & 376	Offence of rape (punishable with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine. Additionally, when rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life).
Sec. 493-A	Cohabitation with any woman deceitfully inducing a belief of lawful marriage (punishable with rigorous imprisonment for a term which may extend to twenty-five years and shall also be liable to fine).
Sec. 496-A	Taking or enticing away any woman with intent that she may have illicit intercourse with any person, or concealing or detaining with that intent any woman (punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine).
Sec. 496-C	Falsely accusing someone of fornication (punishable with imprisonment      for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees).
Sec. 498-A	Depriving any woman from inheriting property at the time of opening of succession (punishable with imprisonment for either description for a term which may extend to ten years but not be less than five years or with a fine of one million rupees or both).
Sec. 498-B	Coercing or compelling a woman to enter into marriage (punishable with imprisonment of either description for a term, which may extend to seven years or for a term which shall not be less than three years and shall also be liable to fine of five hundred thousand rupees).
Sec. 498-C	Compelling, arranging or facilitating the marriage of a woman with the Holy Quran (punishable with imprisonment of either description which may extend to seven years which shall not be less than three years and shall be liable to fine of five hundred thousand rupees).
Sec. 509	Insulting modesty or causing sexual harassment (punishable with imprisonment which may extend to three years or with fine up to five hundred thousand rupees or with both).

Amendments Introduced by the Criminal Law (Amendment)(Offence of Rape) Act 2016

The Parliament enacted the Criminal Law (Amendment) (Offence of Rape) Act 2016. The Act introduced the following amendments to the Pakistan Penal Code 1860 and Code of Criminal Procedure 1989.

Pakistan Penal Code 1860

Sec. 55 of the Pakistan Penal Code 1860 was amended to ensure that life sentence given to an offender accused of assault, use of force or rape of women cannot be reduced to anything less severe. Sec. 166(2) of the PPC was also amended to prescribe a sentence of up to three years for a public official who fails to investigate rape cases diligently. Sec. 186 of the PPC supplements this and states that any individual accused of obstructing an official from carrying out an investigation will also face a sentence of a period of three months to a year along with a fine of up to fifty-thousand rupees.

Sec. 376(3) and Sec. 376(4) of the PPC have also been amended to the effect that more serious categories of rape will now be subjected to the death penalty or life imprisonment. Whereas, Sec. 376-A was added to protect the identity of rape victims. It states that any person publishing the name or any other material which has the effect of revealing the identity of the victim will be sentenced to imprisonment for up to three years and will be liable under a fine.

Code of Criminal Procedure 1898

The Cr.P.C has been amended to provide safeguard to the victims of sexual violence. Sec. 53-A establishes a requirement for medical examination by a registered medical practitioner of the accused whereas, Sec. 164-A provides for the examination of the victim. Additionally, Sec. 164-B provides for the collection of DNA samples from the victim with their consent or the consent of a natural or legal guardian. The law provides that such samples are to be sent to a forensic laboratory at the earliest to ensure proper examination and preservation and these can be matched with DNA samples of the accused to determine criminal liability.

In addition to this, the Cr.P.C 1898 provides that information of the rape and the statement of the victim must be recorded in the presence of a female officer or in the presence of a person nominated by the victim. It also provides that information related to the crime may be recorded at the residence of the complainant, or at any other place of the complainant’s choice if they are in a state of distress.

Under Sec. 161-A of the Cr.P.C provision for free legal aid for victims of sexual violence has also been introduced, and Sec. 352 allows for trials to be conducted in-camera and for the provision of screens to protect the identity and dignity of the victim or the witnesses to the crime. Sec. 344-A is of significance as well as it requires proceedings to be fast-tracked with the time for concluding the trial set at three months, whereas time for appeal has been limited to six months under Sec. 417 of the Cr.P.C. Additionally, provincial governments have been prohibited under Sec. 402 Cr.P.C from intervening to change or reduce sentences of rape.

Preventing Discriminatory Practices Against Women

The Prevention of Anti-Women Practices Act 2011 was passed to criminalise oppressive and discriminatory customs practiced in the country. The Act amended the Pakistan Penal Code 1860 to criminalise the following:

• Depriving women from inheriting their property by deceitful or illegal means
• Forced marriages,
• Marriage with the Holy Quran
• Giving a female in marriage or otherwise in badla-e-sulh, wanni or swara

Apart from this, many other laws have been promulgated to protect the integrity of women including the Khyber Pakhtunkhwa Elimination of Custom of Ghag Act 2013 which abolished the tradition of Ghag in different cultures. The Prevention of Trafficking in Persons Act 2018 also imposes harsher penalties against who traffic women or children. Furthermore, Sec. 290, 302, 310, 311 and 338E of the Pakistan Penal Code 1860 and Sec. 345 of the Code of Criminal Procedure 1898 were also amended to make the punishments in relation to honour killings harsher. The Acid Control and Acid Crime Prevention Act 2011 (Criminal Law Second Amendment Act 2011) also made amendments to the PPC and the Cr.P.C to punish perpetrators of acid crimes by clearly including acid crimes in the definition of hurt.

Protection of Women during Arrest and Detention

The following sections apply for the protection of women during arrest and detention:

Cr.P.C
Sec. 52	Mode of searching women – “whenever it is necessary to cause a woman to be searched, the search shall be made by another woman, with strict regard to decency.”
Sec. 167	A Magistrate is barred from authorizing the detention of a female in police custody. In such case the police officer making an investigation shall interrogate the woman accused in the prison in the presence of an officer of jail and a female police officer. However, physical remand may be given in cases where a female is involved in qatl or dacoity.
Police Rules 1934
Rule 25.22	A medical examination if required to be conducted on a woman shall only be performed with her consent and upon a written order by a Magistrate. This order shall be addressed to a Medical Officer who shall be directed to conduct the necessary medical examination. Where a woman refuses to be examined by a male doctor, she may be examined by a female assistant or sub-assistant surgeon in the service of the government.
Rule 26.3	Where women arrested and not released on bail need to be searched, it shall be conducted by a female with due regard to decency. Moreover, when prisoners are first admitted to police custody and every time when they are readmitted to a lockup, shall be searched. In case of women, the search is to be conducted by female police officers.
Rule 26.18-A	The arrest of women, whether without warrant or with a bailable or non-bailable warrant shall be affected by a police officer of a rank of Assistant Sub-Inspector (ASI) or above. If a police officer of this rank is not available, then a woman may be arrested by the Head Constable in the ‘presence of responsible male relatives and village or town officials.’ Where the arrested woman is not sent to judicial custody or released on bail immediately, the Superintendent of Police shall forward a copy of the above-mentioned special report to the Deputy Inspector General of Police (DIG). In cases where bail is admissible, women must not be detained for a period longer than that which is absolutely necessary for the production of bonds or sureties. An application for physical remand of a woman accused shall only be made by the special order of a gazetted officer. Sub-Rule 2 explicitly enunciates that a woman shall not be lodged in police lockups even for a night ‘except in unavoidable circumstances.’ Instead they shall be immediately produced in front of a Magistrate to obtain judicial remand and thereby handed over. However, where physical remand is unavoidable the application shall be made by the order of a gazetted officer only. Moreover, this gazetted officer shall be responsible for the decent custody of the accused prisoner. Women when admitted to judicial remand shall immediately be transferred to police headquarters or other ‘properly equipped sub-divisional female judicial lock-ups’; and the order of remand  thereby reported to the District Magistrate. An ASI shall escort women prisoners for the purposes of investigation. Where an ASI is not posted at a police station, then a Head Constable may lead the escort.