"Indeed, the Judges in the courts of law are more likely to be exposed to conflicts and disputes where the utility of law is at its highest realm where interpretation takes the fore wheel. It is in the courts, that failure to implement the law repercussions come up in the form of disputes and conflicts and where the judges are expected to deliver their best within the precincts of the law"[1] ALI ZIA BAJWA, J. The titled bail petition has been filed on behalf of the petitioner seeking his post- arrest bail in case FIR No.1162/2021, dated 02.04.2021, offence under Sections 376, 506-B, PPC, registered with Police Station Shahdara, Lahore.
2. During the hearing of numbers of bail petitions pertaining to cases of sexual assault enlisted as schedule offences under Anti-Rape (investigation & Trial) Ordinance, 2020 (hereinafter ITO 2020), it came to the notice of this Court that provisions of aforementioned Ordinance, especially section 9 which pertains to investigation, were never implemented, despite of it being enforced approximately seven months ago. This Court cannot turn a blind eye to such blatant violation of law and is compelled to take cognizance of the factors which resulted in violation of statutory mandate contained in ITO 2020. Reports were called from Federal Government and police authorities.
3. According to statistic data provided by Central Police Office (CPO), Punjab, in 36 Districts of Punjab total registered criminal cases pertaining to scheduled offences under schedule I and II of ITO 2020 were 13307 and 20942 respectively, from 1st January 2021 to 31-07-2021. Astonishing rather shocking fact is that provisions of ITO 2020 could not be complied with in a single case, which means law was violated on thousands of occasions, till the cognizance of the matter was taken by this Court and even today report submitted by the CPO reveals, inability and incapacity of investigation agency to implement this ordinance, as infra: "It is submitted that Section 9 of the Anti-Rape (investigation and trial) Ordinance, 2020 provides that investigation of schedule-I cases is to be conducted by an officer not below the rank of BS-17 (DSP/ASP). ASPs/DSPs are supervisory officers, and are not available in enough number to act as IOs in each case."
4. Report suggests that there is need to establish Anti-Rape Investigation Units (ARIUs) and for that purpose required resources are not available. As per report police needs Rs. 4.9 billion initially, with Rs. 2.58 billion annually as recurring expenditures to implement this Ordinance, when inquired that what needful has been done so far, there was no satisfactory response. Crux of reply filed by CPO office is that due to lack of funds and resources this Ordinance could not be implemented.
5. Report was also called from the office of Attorney General and as per their report, this law was widely circulated after its promulgation and thereafter it was duty of provincial Police to implement it in respect of process of investigation provided therein. Report further transpires that Ordinance has been passed by the National Assembly and hopefully it shall be passed by the Senate before its repeal on 13 August 2021. Rules required to be framed under section 19 ITO 2020 are still to be notified.
6. Learned Amicus Curiae, Mr. Ahmad Pansota argued that the public functionaries are required to adhere to the principles of transparency in the performance of their duties and are bound to follow the law. That if an investigation officer doesn't carry out the investigation in accordance with law, he deserves to be punished for misconduct for not adhering to relevant provisions of the law. That Article 4 of the Constitution provides the right of individuals to be dealt in accordance with law.
That the right to be treated in accordance with the law is the inalienable right of every citizen. That if the investigation is not carried out in accordance with the laws this would also infringe the fundamental right guaranteed under the Constitution and will amount to a violation of Article 10-A of the Constitution i.e. Right to fair trial.
7. Arguments heard and record perused.
8. Rape and other forms of sexual assault are a life devastating and traumatic tragedies for any woman, equally burdensome is the process to bring the culprits of such incidents to book. Rape survivors immediately, after the misfortune, face an ill-disposed criminal justice system which encompasses rigors of medical examination, untrained investigation officers, less equipped prosecutorial system, scandalous/embarrassing cross-examinations, agony of prolonged trial, threats to life and a social stigma of being a 'rape victim'.
9. Numerous attempts were made by the legislature and by the apex Courts of this country to safeguard the rights of women victims of sexual assault and to protect them against such violence but the state of affairs could not be changed much, as neither the laws could be implemented nor the directions issued by the apex court were complied with in true letter and spirit. In the wake of outrageous and horrifying cases like Zainab's Murder case and Motorway gang Rape Case, Federal Government took the initiative by introducing two new Ordinances, namely, Criminal Law (Amendment) Ordinance 2020 and Anti Rape (Investigation and Trial) Ordinance, 2020. Apparently, Government crafted ITO 2020 keeping in view the dictum laid down in various Judgments of august Supreme Court of Pakistan[2] in order to implement judicial guidelines provided therein. These two Ordinances were significantly appreciated by the masses as need of the hour. ITO 2020 was promulgated on 18 December, 2020 and 12 January, 2021 was appointed as the day to bring it in force by the Federal Government. Under Article 89 of the Constitution, it was further extended for 120 days on 13-04-2021.th th th
10. Investigation of cases pertaining to sexual assault always remained focal point for the reformers of criminal justice system, as investigation of a criminal case is bedrock for carrying out successful prosecution of a criminal case, therefore flawed investigation often results in miscarriage of justice.
To quote Hine and Murphy[3] 'Police officers are the "gatekeepers" of the criminal justice system and are usually the first to come into contact with crime victims. As such, they exert major influence on both the victim and the case'. Under section 9 ITO 2020, special procedure for the investigation of cases pertaining to sexual assault has been provided to ensure a fair and impartial investigation through competent and senior police officers. According to section 9, investigation of a case included in Schedule-I shall be carried out by a police officer not below the grade of BPS-17, who preferably shall be a female police officer while investigation in respect of offences mentioned in Schedule-II shall be carried out by a special Joint Investigation Team (JIT) comprising of District Police Officer as head, one Superintendent of Police (investigation), one Deputy Superintendent of police and one station House Police Officer (SHO). Out of these investigators, one shall preferably be a woman police officer. Schedule-I and Schedule-II are provided hereinafter for better understanding.
SCHEDULE-I
1. Offences under sections 34, 292A, 292B, 292C, 354, 365, 365A, 368, 369, 369A, 498B, 498C, 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860)
2. Offences mentioned in Chapters V and V-A of the Pakistan Penal Code, 1860 (Act XLV of 1860)
3. Offences under sections 21 and 22 of the Prevention of Electronic Crimes Act, 2016 (Act XL of 2016)
4. Offences under the Anti-Terrorism Act, 1997 (Act XXVII of 1997) which are committed along with the offences in this Schedule Explanation:- It is clarified that offences under sections 34, 365, 365A, 368, 369, 369A, 498A, 498C and 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and offences mentioned in items nos. 2 and 4, above, shall only be cognizable and triable as offences falling under this Schedule, if they are connected with offences under sections 292A, 292B, 292C and 354 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and offences mentioned in item no.3 above.
SCHEDULE-II
1. Offences under sections 34, 336A, 336B, 354A, 364, 364A, 365B, 366A, 366B, 367A, 371A, 371B, 375, 375A, 376, 376B, 377, 377A, 377B, 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860)
2. Offences mentioned in Chapters V, V-A and XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860)
3. Offences under the Anti-Terrorism Act, 1997 (Act XXVII of 1997) which are committed along with the offences in this Schedule
11. To protect the women in the country against sexual assault, strict implementation of the current law is the first and foremost requirement rather than promulgation the new laws, because non- implementation of laws already enacted is the actual fault line and major hindrance in realizing the purpose of law. Lack of implementation of legislative measures and non compliance of judicial prescriptions provided for investigation and trial of rape cases is major hindrance in providing justice to rape victims. It was held by the Indian Supreme Court in Noise Pollution case[4] that "Laws have been enacted and the Rules have been framed by the Executive for carrying on the purposes of the legislation. The real issue is with the implementation of the laws. What is needed is the will to implement the laws."
12. In some of the cases which got hype due to wide circulation through common usage of social media and coverage on electronic media, investigation agencies performed well to trace the culprits as Government provided full resources to do the needful and their performance was monitored by many quarters. Employing best resources and investigative skills, singling out a case and bringing the culprits to book sounds good, but that selective justice itself is biggest injustice for those victims who faced the same traumatic incidents, however could not be provided same level of relief. Equality clause enshrined in Article 25 of the Constitution of Pakistan, 1973 (hereinafter 'Constitution') provides that all citizens are equal before the law and are entitled to the equal protection of law.
13. Section 9 ITO 2020 is mandatory provision of law because intention to promulgate this law is to provide special procedure for the investigation of cases of sexual assaults and this intention is clearly discernable from the preamble of ITO 2020, which provides as under: "to ensure expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and special Courts providing for efficacious procedures, speedy trial, evidence and matters connected therewith or incidental thereto;"
14. Legislative intention and object to make a law is main determinative factor to treat the provision of such law as mandatory or directory as was held by august Supreme Court in Javed Iqbal case[5] that: "3. ...The ultimate test is the intent of the legislature and not the language in which the intent is clothed. The object and purpose of enacting the provision provide a strong and clear indicator for ascertaining such intent of the legislature. The intention of the legislature must govern and this is to be ascertained not only from the phraseology of the provision but also by considering its nature, its object, and the consequences which would follow from construing it one way or the other..."
15. ITO, 2020 was promulgated to cater the shortcomings and failings of investigation procedure and of trials in cases of sexual assaults. So, there is an emerging need to implement this law but this is unfortunate that needful was not done so far. However, I am of the view that it would be in the larger public interest to promulgate viable laws, keeping in view the state resources, after consulting all the stake holders, as few laws seem too good to be implemented and non- implementation of a law, how good so ever, defeats the very purpose for which it was promulgated/enacted. State functionaries at times become handicap due to lack of resources and capacity to implement some very innovative and victim-oriented laws like ITO 2020, which results in frustration and sense of injustice among the masses. ITO 2020 was much needed to curb the malevolent offences pertaining to sexual assault but true challenge faced by the government is to implement it in its true letter and spirit, which unfortunately could not be done till today. Non- implementation of laws is a challenge faced by every developing country around the globe.
According to World Bank's Report 'everyday experience makes clear, however, the mere existence of formal laws by no means leads to their intended effects. In many developing countries, the laws on the books are just that; they remain unimplemented, or they are selectively implemented, or sometimes they are impossible to implement'.[6] 16. If ITO 2020 requires investigation to be carried out in accordance with section 9, it has to be conducted accordingly, or it shall amount to non-compliance of law and would carry penal consequences as provided in S. 22 of ITO 2020 and under the provisions of Police Order 2002.
Section 22 ITO 2020 clearly provides that a police officer entrusted with investigation of scheduled offences can be punished with imprisonment of either description which may extend to three years and with fine, if he does not carry out the investigation properly or diligently and it goes without saying that any investigation in violation of law cannot be termed as proper and diligent.
17. In sequel to above discussion this court holds: Under Article 89 of the Constitution ITO 2020 is as good law as an Act of Parliament, therefore, its implementation is mandatory duty of concerned state functionaries and any departure therefrom shall be violative of Articles 4, 9 & 10-A of the Constitution.
Anti-Rape (Investigation & Trial) Ordinance, 2020, a much-required law, could not be implemented, at all, in last 7 months, as neither any Joint investigation teams were constituted nor gazetted officers were appointed as investigation officers. Be that as it may, it is sheer negligence on the part of investigation agency to violate the provision of aforementioned Ordinance at such larger scale. Police authorities should have coordinated with the concerned quarters qua the inadequacy of resources forthwith but same was not done. Account rendered by the investigation agency for not implementing ITO 2020 is not acceptable at all, however at the same time Government, before promulgation of a law, should also consider the state resources and capacity to implement the same, after taking all the stake holders on board because a good law should be viable, clear, publicized and most essentially implemented. After promulgation of any law or even before that, it should be extensively circulated at grassroot- level and concerned public functionaries should coordinate with each other for its effective implementation, which unfortunately is missing in the present case. This judgment shall be sent to the Provincial Police Officer forthwith, who shall take immediate steps to ensure the implementation of ITO 2020 and judicial prescriptions laid down by the Honorable Supreme Court, without further fail.
18. As far as the bail petition in hand is concerned, learned counsel for the petitioner after arguing it at full length, seeks permission for its withdrawal. Order accordingly. Dismissed as withdrawn.
1. Henrietta Newton Martin, General Laws and Interpretation-Sultanate of Oman-Part I Perspicuous PRINT Edition - 2014 [2]Salman Akram Raja's Case - 2013 SCMR 203, Irfan Ali Sher's Case - PLD 2020 SC 295 & Babar's Case - 2020 SCMR 761.
[3]Hine, B., and Murphy, A. (2019). The influence of 'High' vs. 'Low' rape myth acceptance on police officers' judgments of victim and perpetrator responsibility, and rape authenticity. J. Crim. Justice 60, 100-107
4. AIR 2005 SC 3136
5. 2021 SCMR 328
6. World Bank. 2017. World Development Report 2017: Governance and the Law. Washington, DC: World Bank, Pg. 83, doi:10.1596/978-1-4648-0950-7.