Top court lays stress on rape probe by female investigation officers

Says delay in reporting of sexual assault cases due to victims’ trauma and shame


Hasnaat Mailk May 01, 2020
An AFP file image of the Supreme Court of Pakistan.

ISLAMABAD:

The Supreme Court has laid stress on the standard operating procedure (SOP) of assigning investigation into rape cases to female investigation officers (IOs) while upholding conviction of a teacher who raped his 15-year-old female student in 2014.

A trial court convicted the teacher, Irfan Ali Sher, and sentenced him to 14 years’ rigorous imprisonment for sexually assaulting the girl on September 15, 2014 in Kasur. The court had also ordered him to pay a fine of Rs25,000, failing to pay which would entail an additional punishment of six months.

Sher moved the Lahore High Court (LHC) against the verdict. The LHC upheld his conviction but reduced the petitioner’s sentence of rigorous imprisonment from fourteen years to ten years.

The convict later filed an appeal in the Supreme Court whose division bench, headed by Justice Qazi Faez Isa, heard the petition. Ayesha Tasnim advocate was appointed to represent the petitioner at state’s expense as Sher was unrepresented.

The counsel submitted that the FIR was lodged on September 16, a day after the rape. She said the DNA report was not sought and the clothes which the victim was wearing at the time of the stated crime were not provided to the investigation officer.

The delayed medical examination of the victim took place on September 17, 2014 – two days after the incident. The counsel also argued that the victim and her parents had earlier resorted to filing such type of cases for alleged blackmailing.

Justice Isa while authoring judgment noted that in rape cases victims and their families may be reluctant to come forward to promptly report the crime because of trauma and they may have a perception of shame or dishonour in having the victim invasively examined by a doctor.

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"The delay in reporting a sexual assault to the police is therefore not very material as held by this court. As regards the semen not being sent for the DNA forensic determination with a view to link it with the perpetrator is not a requirement of law".

The court noted that in any event when the victim in this case was medically examined, which was two days after the crime was committed, semen was not detected. Therefore, it could not have been taken and sent for a forensic analysis.

The lady doctor who had examined the victim and prepared the medico legal certificate (MLC), recorded that “hyperemia [is] present and [there is] evidence of fresh bleeding” and that the victim’s “hymen is ruptured & fresh” and that “bleeding [is] present”.

The said lady doctor confirmed the accuracy of the MLC, was cross-examined and stood by the MLC prepared by her. The prosecution also examined the victim who testified that she was raped by the petitioner, who was her teacher.

"The victim was extensively cross-examined yet nothing favourable to the accused emerged. There was no reason for the victim to falsely nominate her own teacher for the heinous crime nor was any question put to her in this regard."

The court said the victim was also not confronted with any purported lodging of similar FIRs in the past.

The prosecution also examined her mother and she too was not confronted with lodging of such type of FIRs in the past. The investigation of the case was conducted by Muhammad Muzaffar who too was not put any question with regard to the victim or her family lodging such cases in the past, it said.

“Therefore, there was no evidence that the victim and/or her mother would lodge such false cases to blackmail for financial gain. It is also unbelievable that a student would falsely implicate her teacher" said the judgment.

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The verdict noted that investigation in this case was conducted not by a lady police officer but by a policeman, which was inappropriate. "This probably also accounts for the clothes of the victim not being handed over to him by the victim or her mother being shy and/or suffering from shame and/or trauma.”

It said it was the duty of the investigation officer to obtain the clothes from the victim. The victim cannot be made to suffer further on account of negligence by the investigation officer.

The judgment said the SOP of rape cases dated August 29, 2013 issued by the Investigation Branch of the Punjab Police to all the police officers of the province provides that in respect of female rape cases investigation should be conducted by lady police officers.

“The trial court had shown leniency in sentencing the petitioner to only fourteen years and the LHC reduced his sentence to ten years, which was the minimum prescribed by law.

“However, since neither the state nor the victim or complainant have sought enhancement of sentence, we need not comment upon the same except to state that the high court has already shown maximum indulgence to the petitioner. Therefore, the court dismissed the petition,” the order said.