TASSADUQ HUSSAIN JILANI, J.---On 6-9-1999, Ghulam Yasin father of Mst. Kalsoon aged 6/7 years lodged a complaint in Police Station Basti Malook (case F.I.R. No,404, dated 6-9-1999 under section 10 Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) to the effect that on 5-9-1999 at 6-30 p.m. He went out in search of the afore-referred daughter who had not returned from the house of his relatives, he heard a cry from the cotton field and when he reached the spot, he found his daughter unconscious. Blood was oozing out from her private parts. She had been raped. He saw a person whose identification marks were given in the complaint running from the spot. She was medically examined by a lady doctor who endorsed the factum of rape. The vaginal swabs sent to the chemical examiner were found to be stained with semen. The challan was put up before the Special Court constituted under the Anti-Terrorism Act, 1997 who vide the impugned order sent the case to the District and Sessions Judge, Multan for trial with the observation that:- "The offence against the accused under section 10(4), Offence of Zina (Enforcement of Hadood)
Ordinance, 1979 is not made out. As regards the offence under section 7, Anti-Terrorism Act, 1997, no such case against the accused is made out from the facts and circumstances of the case. As regards the contention of the learned D.D.A. About the allegation of 'child molestation' against the accused, the said offence is neither punishable in any section of Pakistan Penal Code nor any amendment has been made to make that offence punishable under Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and mere mentioning of that word (child molestation) in the Schedule of the Anti-Terrorism Act, 1979 does not make the case against the accused triable by this Court."
2. Learned Public Prosecutor has assailed the afore-referred order on the ground that the afore- referred observation of the learned Judge is not tenable; that the child molestation includes rape and therefore, the offence being scheduled offence should have been tried by the learned Special Court.
3. Since an important question of law was raised in this petition, we issued notices to Sahibzada Farooq Ali Khan, Sardar Muhammad Latif Khan Khosa and Chaudhary Pervez Aftab, Advocates to assist the Court.
4. Sahibzada Farooq Ali Khan, Advocate, submitted that although child molestation is not defined in codified law of the land yet the rape committed with a young girl would constitute child molestation therefore, the case being scheduled offence should be tried by the learned Special Court. Sardar Muhammad Latif Khan Khosa, Advocate while referring to Article 35 of the Constitution pointed out that the State is mandated to undertake legislation and take effective measures for the child protection and care; that the word child molestation having not been defined in the law, it could create problems in trial and this being a lapse, the Legislature be asked to take necessary steps for amending the law forthwith. He however, submitted that section 6(c) to the Anti-Terrorism Act, 1997 is a classifying clause which has made certain aggravated offences under the Penal Code triable by the Special Court. He added that child molestation is embedded rape therefore, the case should have been tried by the Special Court constituted under the said Act. Ch. Pervez Aftab, Advocate was of the view that as per dictionary meaning of the word child a boy or girl before he attains puberty could be classified as child and molestation would mean to bother some one with sexual motive. According to him, since child molestation is not an offence under the Pakistan Penal Code, the case cannot be tried by the Special Court. He refers to Anthony Storr's Book "Sexual deviation" to submit that respondent accused is a Paedophilia, that he did not commit any "terrorist act" and that he be tried by an ordinary Court of competent jurisdiction.
5. Learned Assistant Advocate-General, while referring to some material from American Jurisdiction brought through internet submitted that offence of child molestation is a serious offence in all civilized societies; that the expression is wide enough to include all the acts done by the accused preceding rape of a child and that the facts and circumstances of the instant case warranted that the case should be tried by the Special Court.
6. A notice was also issued to the accused who was in Jail but he has chosen not to be represented through a counsel. The impugned order was not passed on the application of the accused.
Therefore, it appears that he is not interested to raise issue over the forum of trial and in any case we have heard Senior Advocates as amicus curiae one of whom has supported the impugned order.
7. The moot points which have come up for consideration before this Court in the instant cases are as follows:--
(i) Whether the facts in the prosecution case disclose an offence which could be tried by a Court established under the Anti-Terrorism Act of 1997?
(ii) Whether the expression 'child molestation' occurring in section 6, clause (c) of the Anti- Terrorism Act, 1997 include rape with a child.
8. To better appreciate the questions raised it would be pertinent to refer to some of the provisions of the Anti-Terrorism Act, 1997. The preamble of the Act reads as under:- "An act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences.--Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto."
9. Section 6 as amended from time to time by Ordinance IX of 1998 Ordinance IV of 1999 and Ordinance XIII of 1999, defines terrorist act as under:-- A person is said to commit a terrorist act if he--
(a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing by using bombs, dynamite or other explosive or other inflammable substances, or such fire-arms or other lethal weapons as may be notified or poisons or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, or damage to, or destruction of, property on a large scale, or a wide-spread disruption of supply of services essential to the life of the community, or threats with the use of force public servants in order to prevent them from discharging their lawful duties; or
(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmony among different sections of the people; or
(c) commits an act of gang-rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or
(d) commits an act of civil commotion as specified in section 7-A."
10. Section 7 of the Act as amended by Ordinances IX of 1998 and IV of 1999 reads as under:-- "5. Amendment of section 7, Act XXVII of 1997.--In the said Act, for section 7, the following shall be substituted namely:--
7. Punishment for terrorist act.--Whoever commits a terrorist not,-
(i) referred to in paragraph (a) of section 6, shall,--
(a) if such act has resulted in the death of any person be punished with death; and
(b) in any other case, be punishable with imprisonment for a term which shall not be less than seven years but may exceed to life imprisonment and shall also be liable to fine; and
(ii) referred to in paragraphs (b) and (c) of section 6 be liable to the punishment prescribed under the relevant."
11. Coming to the first moot point as mentioned in para.7. A bare reading of the afore-referred provisions would indicate that the Anti-Terrorism Act, 1997 was enacted, "for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for natters connected therewith and incidental thereto". A heinous offence is an offence which is wicked, atrocious, cruel and offensive. The offence of raping a girl aged 6/7 years is an act which by all standards is cruel, wicked and offensive and therefore, would fall within the ambit of the expression "heinous offence" used in the preamble of the Anti-Terrorism Act, 1997 calling for an extraordinary remedy in law. The offence complained of in the instant case is not only heinous but would also constitute a "terrorist act". As defined in section 6(b) of the Act a person is said to commit a terrorist act if,-- (a).................................................................................
(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmony among different sections of the people."
The expression "people" in the afore-referred provision encompasses all classes including parents and young children--a member of whose class was subjected to rape. The rape of a minor girl of seven years would ordinarily lead to a "sense of fear and insecurity" as stipulated in section 6(b) above and thus the offence alleged would fall within the ambit of Anti Terrorism Act.
12. Coming to the second point i,e, whether child molestation includes rape of a child, we note that the expression "child molestation" has not been defined in any law in Pakistan. The Concise Oxford Dictionary, 8th Edition, defines the word molest as under:--
(i) annoy or pester(a person) in a hostile or injurious way;
(ii) attach or interfere with (a person) specifically sexually. The term "child molestation" is sometimes used as synonymous to child abuse. However, they do not always refer to the same transaction. Child abuse could take more than one forms as under:--
(i) physical beatings to a child or subjecting him to severe beatings, burns, strangulation, or human bites.
(ii) Neglecting a child by not providing the basic necessities of life including refusal or delay in providing food, clothing, shelter, medical care, and education, as well as abandonment and inadequate supervision.
(iii) Emotional abuse is a kind of behaviour that attacks a child's emotional development and sense of self-esteem. Examples include constant criticizing, belittling, insulting, rejecting, and providing no love, support, or guidance.
(iv) Sexual molestation is the sexual exploitation of a child, including rape, incest, fondling of the genitals, pornography, or exhibitionism.
Thus child molestation would certainly be a child abuse but all acts of child abuse would not necessarily be child molestation. Sexual molestation of child could be of various types. It could be fondling of the genital organs of the child, or it could be showing him nude photographs to arouse his sexual emotions or it could be in form of physical nudity with the object of sexually provoking or exploiting a child. Most of the foregoing acts have not been specifically made offences in our criminal law nor the rape of a child has been separately catered to. The rape of a child or "Zina-bil- Jabr" is an aggravated form of child molestation and a person who is proved to have committed the offence would be punished in terms of the punishment provided in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The effect of Anti Terrorism Act, 1997 is that this alleged offence of child rape would be tried by a Special Court under the afore-referred Act. The offence substantially remains the same, only forum of trial has changed.
13. We have noticed with deep concern that off late there has been an increase in offences against the children. Every second day we read some minor boy or girl being abused or raped. There is no official agency which prepares a data of this crime. We would not like to comment about the case pending trial in which a person has allegedly confessed having first abused and then killed more than one hundred children. However, we would like to quote the survey report of an N.G.O. From Islamabad, published in Daily Dawn dated 13th of February, 2000 which has not been controverted by the Government. As per the said report about one thousand children were abused in the year, 1999. The afore-referred report is being reproduced below:-- "945. Children abused last year. Report by our Official Correspondent. Islamabad, February 12, A spokesperson for Sahil, an NGO working against child abuse, told a press conference here on Friday that during 1999 as many as 945 children were sexually abused by 1,629 men. Sahil put out these figures by monitoring media for cases of child sexual abuse. The N.G.O.
Monitors 11 Urdu and English Newspapers regularly. The Spokesperson for the Sahil said that out of the 945 reported cases, 56 per cent. Pertained to girls and 44 per cent. To boys. He said that these 945 cases were just the tip of the iceberg. Sahil maintains that the majority of the cases go unreported due to social tendencies of denial and silence. According to the statistics of the Sahil, out 'of 1,629 abusers, 1219 were acquaintances. About murder after sexual assault, the N.G.O. Said 15 girls were gang-raped and 120 boys were murdered.
It said that 169 girls were gang-raped and 117 male children were sodomised. Sahil's data shows that 21 cases of incest were reported during January-December, 1999.
This is a confirmation for those who deny that incest occurs in Pakistan. According to Sahil's figures, during this period, the abusers have targeted a majority of boys between the ages of 5--10 years and 10--15 years." The foregoing report further highlights the gravity of the issue.
14. We must realize that children are a special class of people. They on account of their age and innocence are not the best judges of what they need for a healthy and harmonious growth; they are subjected to violence and injustice and the irony is that they cannot bring their causes to the Courts. At times they do not know how badly they have been wronged. It is precisely for these reasons that there is a global concern for their rights and causes. Every civilized society is doing its bit to evolve an environment in which a child may breath and grow in an air of security i,e, a society where their rights are protected. In the Universal Declaration of Human Rights, the United Nations proclaimed that a child is entitled to special care and assistance. The International Convention on the rights of child (held on December, 12 1989) to which Pakistan is a signatory is the culmination of the endeavour at the international level, to establish a society whereby a child is ensured a quality living i,e, a living which promotes his physical and intellectual growth, protects him from abuse and molestation and assists him in the making of a healthy citizen. Article 19 of the said Convention mandates as under:--
1. "States Parties shall take all appropriative, legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support or the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow up of instances of child maltreatment describe heretofore, and as appropriate, for judicial involvement." Similarly Article 34 enjoins the member States as follows:-- "State parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.
For these purposes, States parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:--
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other unlawful practices. The exploitative use of children in pornographic performances and materials."
15. There are special provisions in our Constitution which lay down the responsibilities of the. State with regard to the family and the child. Article 35 of the Constitution of the Islamic Republic of Pakistan, mandates the State as under:-- "The State shall pane& the marriage, the family, the mother and the child."
16. As proponents of Islamic faith which lays special stress on the welfare of family and child, as a Member of the United Nations and in accord with the afore-referred mandate, it is our religious, moral and Constitutional duty to bring the required legislative and structural changes to honour our commitments to the rights of the child and the family. There is need to suitably amend the penal law with a view to make certain acts/wrongs against the children punishable. There is need to create socioeconomic institutions to fully realize the objectives of the International C Convention.
There is a need to give a new and a fair deal to the child. We hold that clause (c) of section 6 of the Anti-Terrorism Act, 1997 appears to have been drafted in haste and the expression "child molestation" in its various connotations have not been defined and no punishments have been prescribed for other forms of child molestation. We, therefore, direct that a copy of this judgment shall be sent to the Secretary Law, Government of Pakistan, Islamabad to examine the desirability of some affirmative action in the light of the observations made in paras. 11 to 16 above.
17. This judgment and the reasons given above shall be read along with the short order dated 3-2- 2000 vide which this Criminal Revision was allowed, the order, passed by the Special Court-II, Multan constituted under the Anti-Terrorism Act, 1997 was set aside and the case registered vide F.I.R. No,404 dated 6-9-1999 under section 10, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 Police Station Basti Malook, Multan was directed to be tried by the Special Court.