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Challenges and Gaps in the implementation of Rape Laws in Pakistan
Rape is not a new phenomenon to investigate, it has been existing since humans started taking an interest in property or at least since the first woman voiced resistance to being seen as property [1]. This article is an analysis of the interpretations of the definition of rape by the courts and their implementation. Furthermore, it overviews the flaws present in the criminal justice system of Pakistan and its failure in providing justice to the victims of rape.
The data obtained from the Sustainable Social Development Organization shows that during the past six years a total of 29,747 incidents of sexual violence against women and underage girls were reported across the country, 7,010 cases were identified in 2023 and 94% of these cases were reported from Punjab. It is to be noted that the conviction rate for perpetrators was less than five percent [2]. The ratio of reported cases is less because many victims are falsely blamed for their own suffering and fear stigmatization at the hands of male police officers, so they are compelled to remain silent [3].
Rape is a violent behavior that has existed throughout human history to lower the dignity of the victim. Once a rape has ended, a second struggle begins for the survivor where she has to take back control of her body, her life and to build a stronger sense of identity as a result of what has happened. We live in a society where victims are blamed often and they become fearful of getting assaulted by law enforcement [4].
Rape in Pakistani Laws
In Pakistan, rape laws have undergone several changes since the independence. Initially, they were governed under British secular laws. The definition of rape was given in section 375 of PPC and its punishment in section 376. However, in 1979, they were removed from PPC and were inserted into the Offence of Zina in the Hudood Ordinance. This ordinance placed rape in the same category as adultery and fornication, making them a similar crime. [5].
The standard of evidence for Hadd punishment was also fixed according to the Quran and Sunnah which required the confession of committing the offense by the accused or the testimony of four pious adults, sane male witnesses. However, applying these to a zina bil-jabr case was too harsh. It shifted the burden of proof on the victim and did not accept any form of expert opinion, medical evidence, or documentary proof [6]. This law protected men against false accusations of rape, while female rape victims were vulnerable to accusations of sexual crime [7].
These limitations led to the adoption of the Protection of Women (Criminal Law Amendment) Act in 2006 which reclassified rape differently from fornication and adultery and inserted rape in section 375 of Pakistan’s Penal Code as a tazi’r offense [8]. The punishment of tazi’r crimes is left to the discretion of courts. The steps taken by this amendment were also very feeble and full of loopholes. It gave rights with one hand and took with another. But still, it improved the situations of women The steps taken by this amendment were also very feeble and full of loopholes. It gave rights with one hand and took with another. But still, it improved the situations of women.
The current definition of rape is given in Section 375 of the Pakistan Penal Code where it is stated that rape occurs when a man has sexual intercourse with a woman under any of the five following circumstances: –
- against her will,
- without the consent,
- with the consent when the consent has been obtained by putting her in fear of death or of hurt,
- with her consent, under the false belief that she is married to the preparator,
- with or without her consent when she is under sixteen years of age.
This section also explains that penetration is sufficient to constitute the sexual intercourse necessary for the offense of rape.
The punishment for the crime of rape is given in Section 376 in two categories. The offenders of rape will be punished with death penalty, fine or imprisonment for a term ranging from 10 to 25 years. While the offenders of gang rape will be punished with either the death penalty or life imprisonment [9].
The black’s Law dictionary defines rape as a sexual intercourse of a male who is with a female, not his wife if: (a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or (b) he has substantially impaired her power to appraise or control her conduct by administering drugs, intoxicants or other means without her knowledge to prevent resistance; or (c) the female is unconscious, or (d) the female is less than 10 years old.”
With regards to section 375(v), P.P.C. which provides that sexual intercourse of a man with a girl under the age of sixteen with or without her consent would amount to rape. The LHC has held that this section cannot be made applicable in cases where a girl is below the age of sixteen years but has attained puberty, proven through medical examination and if she explicitly admits to having entered into marriage. It means that in these cases the performance of conjugal rights by the spouses cannot be termed as “unlawful sexual intercourse”[10].
The PPC does not define the terms without consent and against the will rather these are left to the courts’ interpretation. In some landmark judgments courts have attempted to interpret these terms by stating that the term “against the will” encompasses the ability of a person to choose because of her circumstances which include fiduciary or supervisory control relationships, positions of command, sustenance, and protection such as a parent-child relationship and when a girl has been groomed for sex from a younger age, she is presumed to have lost her ability to make a choice [11]. Similarly, consent is an agreement to do an act freely. It also encompasses situations in which a person is unable to make an informed choice due to lack of capacity; for example, mental disease, intellectual ineptitude, and intoxication [12].
Judicial Implementation of Laws
The court in the implementation of laws drew a fine distinction between an act done ‘against the will’ and ‘an act done without consent’. The court held that every act done ‘against the will’ is obviously ‘without the consent.’ But every act ‘without the consent’ is not ‘against the will.’ The court also emphasized that clause (1) of section 375 implies that when a woman is in her senses, she is capable of consenting. According to the explanation given by the courts the expression ‘against her will’ means that the man has had intercourse with a woman despite her resistance and opposition [13]. For a rape case to be established a woman has to present evidence showing that the offense of rape was done against her will and courts demand her to show marks of physical violence to confirm that the woman has not consented to the act, otherwise the preparators are often acquitted based on lack of evidence or in many cases the offense of rape is converted into fornication [14].
This evidentiary burden creates a dilemma: what if the woman has not consented to the act but also does not bear any marks of physical violence? Different people react differently when confronted with trauma [15]. Trauma deeply affects how people think and act by triggering the brain’s survival instincts, like fight, flight, or freeze, which can take over and push logical reasoning aside [16]. Considering this, the Supreme Court in the case of Habibullah v. the State has also ruled that if rape has been proved by concrete evidence including medical evidence, then the marks of violence are not essential to establish rape [17].
Despite the above stated, statutory gap remains evident as in a recent case of Muhammad Imran V. The State and another, the SC acquitted Muhammad Imran of rape charges, despite forensic evidence that linked him to the crime by confirming that his DNA matched semen found on the complainant, Mumtaz Bibi. The court held that the intercourse was consensual and overturned the previous convictions of rape by the trial court and Lahore High Court, sentencing Imran to five years in prison for ‘fornication’ (Section 496-B) [18].
This judgment was highly criticized as it sets a dangerous precedent and jeopardizes hard-earned women’s rights achieved through years of struggle, it takes us back to hudood laws of Zia’s era, where rape cases were converted into fornication if the rape survivor couldn’t prove their allegations. It seems that we are taking one step forward and two steps back [19].
The testimony of victims in rape cases is given vital significance, and courts can rely solely on the victim’s testimony to convict the accused [20]. Still, due to the requirement of corroborating the testimony with oral and evidentiary documents, the focus often shifts to the complainant’s past sexual history. Initially, Article 151 of Qanoon Shahadat which states that “when a man is prosecuted for rape or an attempt to ravish, it may be shown that the victim was generally immoral to impeach her credibility.” allowed the courts to treat the prosecutrix as the consenting party to the act of Zina. But this provision has been omitted by the Criminal Law Amendment (Offences Relating to Rape) Act, 2016 [21]. This act also made improvements in addressing issues such as child abuse, harassment, and the improper medical examination of victims. It also introduced modern forensic technology to improve the procedure of collecting evidence [22].
However, this act also remained ineffective in providing the required justice to women, and still, a huge number of acquittals were made. The practice of two-finger testing was very common in Pakistan though it was not mentioned explicitly in any law but it was done as a measure of virtue and whether a woman is trustworthy [23]. It is a physical examination of a woman’s genitals for determining the laxity of the vagina and her past sexual activity [24].
Finally, this practice was made unconstitutional in the case of Atif Zareef v. The state, where the court held that “a woman whatever her sexual character or reputation may be, is entitled to equal protection of the law. No one has a right to invade her privacy on the ground of her alleged immoral character” dragging sexual history of the rape survivor into the case by making observations about her body like “the vagina admits two fingers easily” or “old ruptured hymen” is an affront to the reputation and honor of the rape survivor and violates Article 4(2)(a) of the Constitution, which mandates that no action detrimental to the body and reputation of the person shall be taken except following the law. Similarly, Article 14 of our Constitution mandates that dignity shall be inviolable, therefore, reporting the sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy, and free choice” [25]].
A recent incident where a woman was gang raped at Lahore-Sialkot motorway in front of her children, further exposed the inefficient and delayed response by the Criminal Justice System (CJS) stakeholders and the lack of protective measures provided to victims or survivors of sexual violence [26]. The precedent set by the above-mentioned case and this incident led to the enactment of the Anti-Rape Act, 2021 which introduced several changes in the law including the implementation of the death penalty or a 10-to-25-year prison sentence for rape, over 1,000 special courts for rape cases across the nation were established. The significant feature of this act is that it prohibited the two-finger virginity testing for medico-legal examination of the survivor [27].
Evidentiary Problems in Rape Cases
Rape is a heinous offense, often proving a denigration for the victim and her family. Many families do not report it as they do not believe that the system could provide justice to them since there are many procedural and evidentiary requirements linked with the system and DNA in cases of sexual offenses is considered corroborative evidence [28]. DNA is evaluated under Articles 59 and 164 of the Qanun-e-Shahadat Order 1984 and it is considered significant in deciding the cases involving sexual violence as it provides a means of identifying perpetrators with a high degree of confidence, thereby helping to convict the real culprits, exclude potential suspects, and exonerate wrongfully involved accused [29].
However, many factors affect the admissibility of DNA evidence, including delays in the medical examination of victims and improper collection and packaging of evidentiary material, which compromise the probative biological evidence [30].
An FIR is the main instrument for initiating a criminal investigation, and it is a written document prepared by the police [31]. Police are the gatekeepers of justice, as they ensure that complaints are registered and investigated impartially. However, in Pakistan, the police are one of the most widely feared, complained against, and least trusted government institutions. They lack a clear system of accountability and are handicapped due to a lack of resources and capacity [32].
Delayed reporting works against survivors and their intentions often viewed as ‘mala fide’, or negative, and taken to point towards concoction and conspiracy to falsely implicate the accused [33]. The police refer cases directly to medico-legal officers (MLO’s) who establish the physical evidence of rape, and their report is essential for the prosecution of rape cases. Collecting timely evidence is very important for delivering justice to the victim. However, the collection is disturbed due to many factors. In Pakistan, few hospitals offer the facility of medico-legal examinations and the condition is even worse, especially in rural areas. According to forensic experts, the medico-legal examination must be carried out within 72 hours of the incident but the non -non-availability of female doctors often delays the investigation process because the victims feel reluctant to be checked by male doctors [34].
Many accused rapists are acquitted because of inexperienced medical persons as they do not properly collect evidence or do the examination process. The debate on what comes first- medical examination or lodging of the Police complaint continues to baffle practitioners as both Police and MLOs are not trained in handling trauma victims. What happens is a run-around between the two parties, where MLOs need a Police report to start their examinations, and when there is no medical evidence the Police often refuse to register cases [35].
According to a survey conducted by the organization “War against rape”, some police officers said that a substantial burden of proof rests almost completely on the shoulders of the alleged victims of rape. Factors that work in her favor include: arriving promptly at the police station “in a wretched state”, “confused and not normal”, being accompanied by someone, and having bruises and signs of physical violence on her. Factors that will make the police to disbelieve her include: the lack of bruises on the victim’s body and her dress. If the woman has any previous history of a criminal case, that may work against her as well [36].
In July 2024, a woman was coerced and gang-raped by robbers at gunpoint in the Hafizabad district, Punjab in front of her husband and three-year-old daughter. It was reported that instead of assisting the victim’s family, the police officials of the Hafizabad and Nankana Sahib districts reportedly clashed over the ‘dispute of jurisdiction’, completely disregarding the Standard Operating Procedures (SOPs) which were issued in the wake of the Lahore-Sialkot motorway gang-rape incident (2020) to respond to the sexual assault attacks on women [37].
In Pakistan, rape cases have surpassed murder cases [38]. It is evident that despite the presence of a comprehensive legal framework nothing much has changed because the problem lies in the enforcement of these laws. Also, Pakistan was ranked 145th out of 146 countries in the 2024 World Economic Forum’s Global Gender Gap Index [39], indicating that gender equality has become a distant dream in Pakistan.
By ratifying the U.N. Convention on Elimination of Discrimination Against Women, Pakistan is under the international obligation to protect women from sexual and other forms of gender-based. The state must ensure that the police, prosecutors, and judges are fully trained and prepared to interpret and utilize medical evidence to advance the prosecution of violence against women without being biased toward the accused [40].
Conclusion
The chronic issue of rape in Pakistan reflects deep-rooted societal stigmas, inefficiency, and inadequacy of the criminal justice system of Pakistan. Despite the legal initiatives including Women Protection Act and various amendments to the Pakistan Penal Code, the survivors of rape often find it difficult to get justice. The judiciary plays a mixed role in this regard where many judgments have upheld women’s rights, on the other hand, some judgments have set dangerous precedents that jeopardized the hard-earned women’s rights. The laws should be implemented with urgency and seriousness. Offenders must be held accountable through swift justice so that they become a deterrent for others. And the responsibility does not lie solely on courts it starts from back to the police and medico-legal departments who initiate and build a rape case. To ensure this, they should be given proper training, adequate resources, and an understanding to the trauma, the survivors face. A society should be created where accountability prevails, offenders are punished, survivors are heard and no one has to live in fear of being denied the justice they deserve.
REFERENCES
[1] Hilkje Charlotte Hänel, ‘What is rape’ https://www.transcriptverlag.de/shopMedia/openaccess/pdf/oa9783839444344.pdf
[2] Sustainable Social Development Organization, ‘In the shadows of injustice: rape culture & protests’ https://tribune.com.pk/story/2504017/in-the-shadows-of-injustice-rape-culture-protests
[4] Resilience, ‘Sexual Assault Stereotypes & Stigmas’ https://resiliencemi.org/stereotypes/#:~:text=Written%20by%20Cynthia%20A.&text=Survivors%20face%20a%20number%20of,was%20responsible%20for%20the%20assault
[5] Ali Shekhani, ‘shaping justice, tracing the evolution of rape laws in Pakistan’ https://www.dawn.com/news/1777460
[6] Ruba Saboor, ‘Rape Laws in Pakistan: Will We Learn from our Mistakes?’ https://iiu.edu.pk/wp-content/uploads/downloads/journals/ilr/volume1/num-1/Article_4_Vol1_1_010817.pdf
[7] R Mehdi, ‘Offence of Rape in the Islamic Law of Pakistan’ https://www.ojp.gov/ncjrs/virtual-library/abstracts/offence-rape-islamic-law-pakistan
[8] Chr. Michelsons Institute, “The Criminalization of Rape in Pakistan” https://www.cmi.no/publications/6323-the-criminalisation-of-rape-in-pakistan
[9] ARY News: 10 Crimes and their legal Punishments in Pakistan <https://arynews.tv/common-crimes-legal-punishments/>
[10] Allah Nawaz v Station House Officer, Police Station Mahmood Kot District, Muzaffargarh (2013) PLD 243 Lahore High Court
[11] Govt of Punjab, ‘Charging Standards in Rape Cases’
[12] Nawab vs. State (1959) PLD 38 WP Lahore High Court
[13] Imran v. The State (1888) PCrLJ 2016
[14] PPC Sec 496, “B: – A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another”.
[15] M Imran v. The State (2024) SCP 226
[16] Dr. Lori Haskell, C. Psych. Dr. Melanie Randall, “The Impact of Trauma on Adult Sexual Assault Victims” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3417763
[17] Habibullah v. The State (2011) SCMR 1665
[18] Muhammad Imran v. The State (2024) SCP 226
[19] Nida Aly, Executive Director of the Asma Jahangir Legal Aid Cell
[20] Atta-ul-Mustafa v. The State (2023) SCMR 1698
[21] Atif Zareef v. The State (2021) PLD 550 SC
[22] Ali Shekhani, “Shaping Justice, Tracing the evolution of rape laws in Pakistan”
[23] Emily Schmall and Zia-Ur-Rehman, “Court in Pakistan Bans ‘Virginity Tests’ in Sexual Violence Cases”
[24] Mohd Ayan Sadik, ‘Supreme Court of Pakistan declares “two-finger test” unconstitutional’ https://ohrh.law.ox.ac.uk/supreme-court-of-pakistan-declares-two-finger-test-unconstitutional
[25] Atif Zareef v. the State (2021) PLD 550 SC
[26] Rida Tahir, ‘Anti-rape crises cells: rules and beyond’https://www.thenews.com.pk/print/1054328-anti-rape-crises-cells-rules-and-beyond
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[28] Hafiz Muhammad Nadeem, ‘Pakistan today: DNA in Rape cases’ https://www.pakistantoday.com.pk/2021/02/22/dna-in-rape-cases/
[29] Qanun-E-Shahadat Order, 1984
[30] Nouman and Muzamal Rasool, ‘DNA evidence in sexual assault cases https://pubmed.ncbi.nlm.nih.gov/32576088/
[31] Centre for Peace Development Initiatives Pakistan (CPDI-Pakistan)
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[37] Pakistan faces a Rape Epidemic: Has Pakistan failed its women? https://thefridaytimes.com/23-Sep-2024/pakistan-faces-a-rape-epidemic-how-pakistan-has-failed-its-women
[38] Business Recorder (2025), ‘CJ LHC concerned over non-enforcement of anti-Rape Act 2021’ https://www.brecorder.com/news/40342576
[39] World Economic Forum Report on Global Gender Gap Index (2024)
[40] HRW Report (1999), ‘Pakistan’s obligations under international law’ https://www.hrw.org/reports/1999/pakistan/Pakhtml-04.htm
The opinions expressed in this article are the author's own and do not reflect the views of LEAP Pakistan or Pakistan College of Law.
