LAHORE: The federal government has added three sections to the Pakistan Penal Code of 1860 and one section to the Offence of Zina (Enforcement of Hudood) Ordinance of 1979 to make the offences of gang-rape, rape and adultery punishable under ‘tazeer’ (punishment) and bring about necessary legislation in consonance with the Protection of Women (Criminal Laws Amendment) Bill of 2006 as adopted by the National Assembly on Nov 15. Necessary amendments to the Criminal Procedure Code of 1898 too have been made to hold the offences of ‘lewdness’ and ‘false accusation of lewdness’ as non-cognizable by taking away the police powers to take the custody of a person under these offences without a warrant. The amendments authorise courts to judicially examine complaints of lewdness and false accusation of lewdness and permit or prevent the police to register a case under the new sections of the PPC.
Legal experts understand that the Hudood Ordinance will, for all practical purposes, become redundant as a statute once the Senate approves the law as an enactment and necessary additions to the PPC and the CrPC are made. The bill has repealed the provisions of the offences of gang-rape under section 10(4), rape under section 10(3) and adultery under section 10(2) of the ordinance. Only the offence of ‘Zina liable to Hadd’ (Section 5 read with Section 17) would remain on the ordinance which stipulates that the convict is liable to be stoned to death. This offence provides that the convict will be stoned to death and if he or she does not die in the course of stoning, the convict will be shot dead. However, once the main offences of gang-rape, rape and adultery are made part of the PPC, the section on stoning to death will become irrelevant and a non-statute, according to legal experts. Besides, the ordinance will retain offences of kidnapping or inducing a woman for marriage (Section 11), kidnapping a person for unnatural lust (Section 12), buying and selling of persons for prostitution (Sections 13 and 14), attempting to commit rape (Section 18) and certain other provisions, say experts.
RAPE: As for the provision of rape, also made part of the offences punishable with death and imprisonment, the bill has restored old sections 375 and 376 of PPC which were repealed when the Hudood Ordinance was enacted in 1979. Section 375 of PPC provides five categories of rape: (1) sexual intercourse with a woman against her will; (2) sexual intercourse without the consent of the woman; (3) sexual intercourse with woman’s consent obtained by way of placing the woman under the fear of death or hurt; (4) sexual intercourse with the woman’s consent when the man knows that he is not her husband and that her consent is given because she believes herself to be lawfully married; and (5) sexual intercourse with or without the woman’s consent if she is under 14 years of age.
Explanation given in the provision is that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. The provision also provides exception to the man who subjects his wife to sexual intercourse if the wife is above 14 years of age. In this situation, the act will not be considered a rape. New section 376 of PPC provides for death as penalty for rape as the maximum punishment and an imprisonment not less than 10 years and not more than 25 years in prison. As for the gang-rape which has defined the offence committed by two or more persons, the law provides for capital punishment or imprisonment for life. Gang-rape was earlier also part of the Anti-Terrorism Act, but the act has now so been amended as to be triable by a court of ordinary jurisdiction like a sessions court.
In other offences trial has been provided by the sessions court. These offences have been made non-bailable and non-compoundable and the police are empowered to register cases and take the custody of the offender without a warrant for arrest. The bill also adds new sections on lewdness (section 496-B and 496-C PPC) and false accusation of lewdness which relate to adultery and are bailable offences which are not compoundable and in which the police have been prevented to make arrest without a warrant. The related provision (in section 203-C PPC) stipulates that the police shall approach a magistrate on receipt of such a complaint and not register a criminal case till the permission of the court is obtained.
Sub-sections 2, 3, 4, 5 and 6 of section 203-C of PPC provide that a magistrate shall summon a person (both man and woman) accused of adultery and record his or her statement. If the court is satisfied that a case is prima facie established, he shall order the police to investigate after registering a case. However, the provision says no complaint against a woman, victim of rape, shall be entertained if a case against her is pending with a court or the case has been dismissed or she has been acquitted. The bill also amends the Hudood Ordinance by adding section 5-A to it to provide that no complaint of rape shall be converted into lewdness or any other offence of the same nature at any stage and, similarly, no complaint of lewdness shall at any stage be converted into the offence of rape or adultery. For this the relevant section of the CrPC has also been amended.