The Anti-Rape Act aims to effectively deal with the rape and sexual abuse crimes mentioned in its Schedules (which are hereinafter referred to as the “Scheduled Offences”) committed against women and children.

 The Anti-Rape Act aims to effectively deal with the rape and sexual abuse crimes mentioned in its Schedules (which are hereinafter referred to as the “Scheduled Offences”) committed against women and children. It outlines a framework to check the said crimes by establishing (i) Anti-Rape Crisis Cell, (ii) Special Sexual Offences Investigation Units, (iii) Independent Support Advisors, (iv) Special Prosecutors, (v) Special Courts, (vi) a register of sex offences, and (vii) Fund to carry out the purposes of the Act. Each thread is meticulously braided; a break in any of them would render the statute ineffective. In light of the principles discussed above, the courts must interpret the Anti-Rape Act liberally and purposively. They must adopt the construction that advances rather than defeats the statute’s objectives.

Section 9 of the Anti-Rape Act provides a special procedure for investigating Scheduled Offences.

In exercise of the powers conferred by section 19(1) of the Anti-Rape Act, the Ministry of Law and Justice, on the recommendation of the Special Committee established under section 15, has framed AntiRape (Investigation) Rules 2022, which were notified in the Gazette of Pakistan on 20 February 2023.

Sections 10 and 22 of the Anti-Rape Act are also relevant to discourse. Section 10 empowers the SSOIUs to take cognizance of the offences not specified in the Schedules if they are committed in connection with the Scheduled Offences. Section 22(1) makes the false investigation a crime. It stipulates that if the investigator fails to carry out the investigation properly or diligently, or causes a fraudulent investigation to be conducted, or fails to pursue the case in any court of law, he will be punished with imprisonment of either description up to three years and a fine. It is important to point out that section 22(2) makes the filing of a false complaint regarding the commission of the Scheduled Offence(s) subject to a similar sanction.

As adumbrated, the Anti-Rape Act is a special legislation that would prevail over any regular law on the subjects it addresses. But are the provisions of section 9 mandatory. Parliament has used the word “shall” in every sub-section thereof. Generally speaking, this word connotes that the provision is obligatory. However, the final test is the legislature’s true intent, which the court must discern.

Police investigation is a key component of the criminal justice system. It consists of identifying, collecting, conserving, and presenting evidence in a court of law. The majority of criminal cases fail in courts due to defective investigations. Rape and other sexual violence crimes require a thorough investigation, like any other criminal case. If the victim is not sent for medical examination on time, or if the evidence submitted by the medical officer is not processed and transmitted to the appropriate labs by the police, the entire case may become weak and thus benefit the perpetrator.

Section 9 of the Anti-Rape Act has introduced the concept of trained special units, SSOIUs, to investigate sexual offences more effectively. Because of their special training, SSOIUs can reduce the delays during the investigation and considerably raise the likelihood of conviction in sexual violence cases, which currently has an abysmally low rate.

Every SSOIU is required to have one female police officer as a member. This helps the victim feel comparatively comfortable during the investigation. The importance of a female officer increases manifold in cases involving children.

The above discussion leads me to an ineluctable conclusion that section 9 of the Anti-Rape Act is mandatory. Section 9 confers special jurisdiction on SSOIUs in respect of Scheduled Offences. For this purpose, it mandates the Federal Government to establish SSIOUs for the Islamabad Capital Territory and the Provincial Governments in every district.

During the hearing of this case, it was mentioned that the Punjab Government had not established SSIUOs in several districts even two years after the enactment of the Anti-Rape Act. If that is the situation, it is directed to constitute the requisite SSOIUs immediately and to arrange necessary training for the police officers assigned to them as required by law.

Criminal Proceedings
75596/22
Sumaira . Vs THE STATE ETC .
Mr. Justice Tariq Saleem Sheikh 31-08-2023
2023 LHC 4535