LAHORE: The Lahore High Court has shown serious concern over non-implementation of the Anti-Rape (Investigation & Trial) Ordinance 2020 by the police while dealing with the cases of sexual assault and ordered the provincial police officer of Punjab to take immediate steps for the enforcement of the law.

Justice Ali Zia Bajwa had taken notice of the non-implementation of the ordinance while hearing a post-arrest bail matter of an accused in a rape case.

“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, it came to the notice of this court that provisions of aforementioned ordinance, especially section 9, which pertains to investigation, were never implemented, despite it being enforced approximately seven months ago,” the judge writes in his verdict.

Shows dissatisfaction over police’s ‘lack of resources’ excuse

He observes that the court cannot turn a blind eye to such blatant violation of the law and is compelled to take cognizance of the factors which resulted in violation of statutory mandate contained in the ordinance.

A report filed by the police revealed that there was a need to establish Anti-Rape Investigation Units (ARIUs) and for that purpose required resources were not available. It said the police needed Rs4.9 billion initially, with Rs2.58 billion annually as recurring expenditures to implement the ordinance.

The judge notes that the provincial police had no satisfactory response when asked about the needful done so far. The crux of the reply filed by the central police office was that due to lack of funds and resources the ordinance could not be implemented.

A report filed by the office of attorney general said the law was widely circulated after its promulgation and thereafter it was the duty of provincial police to implement it. It further said the ordinance had been passed by the National Assembly and hopefully it shall be passed by the Senate before its repeal on Aug 13, 2021.

In this case, Justice Bajwa appointed Advocate Ahmad Pansota as amicus curiae, who argued that the public functionaries were required to adhere to the principles of transparency in the performance of their duties and were bound to follow the law.

He said if an investigation officer doesn’t carry out the investigation in accordance with law, he deserves to be punished for misconduct and for not adhering to the relevant provisions of the law.

The judge observes that rape and other forms of sexual assault are a devastating and traumatic tragedies for any woman for life, equally burdensome is the process to bring the culprits of such incidents to the 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’,” remarks the judge.

He maintains that the 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.

He remarks that strict implementation of the current law is the first and foremost requirement to protect the women in the country against sexual assault, rather than promulgation of new laws, because non-implementation of laws already enacted is the actual fault line and a major hindrance in realising the purpose of law.

Lack of implementation of legislative measures and noncompliance of judicial prescriptions provided for investigation and trial of rape cases is a major hindrance in providing justice to rape victims, the judge adds.

Justice Bajwa holds that it is a sheer negligence on the part of investigation agency to violate the provision of the ordinance at such a larger scale. He says the police authorities should have coordinated with the concerned quarters regarding the inadequacy of resources forthwith, but the same was not done.

Rejecting the account by the police for not implementing the law, the judge also asked the government to consider the state resources and capacity before promulgation of a law to implement the same after taking all the stakeholders on board.

“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 honourable Supreme Court, without further fail,” the judge concludes in the verdict, which also dismissed the bail of the accused namely Yasir in the FIR registered with Shahdara police.

Published in Dawn, August 12th, 2021