Daily Times

Despite the heat, a chill ran down my spine. My heart, gripped in a vice, sank. As I watched them, barely three feet tall, laughing and jostling each other, school bags, flasks and lunch boxes hanging from their tiny shoulders, their gleeful shrieks filling the air, as they hugged and kissed their parents and equally tiny friends at the end of a regular school day. They were five-year-old little girls…delicate, beautiful and vulnerable.

She is five years old too, delicate, beautiful, vulnerable, a living testament to the brutality and pure evil that some men are capable of. And, she is not the only one and she will not be the last. I have three daughters. Most of you reading this must have a daughter or a granddaughter or a sister or a niece. As loathsome as the act was, I feel compelled to write, to pour my pain onto paper, to express my outrage, to seek forgiveness from the little angel and thousands like her whom we have failed — as individuals and as a society — to protect. A five-year-old child, brutally gang-raped, and mercifully, thrown on a greenbelt at a local hospital in Lahore. Why do I say ‘mercifully’? Because they could have killed her, like countless children before her have been. So, yes, mercifully.

The police are looking for the man who brought her to the hospital. Images from the closed circuit cameras have been released. There are reports of the child possibly having been raped by drug addicts who were told off by her father and asked not to loiter in the vicinity of their home. It is definitely possible. But why would a drug addict bring her to a hospital? The footage that I saw shows a man in control of his physical movements, not one under the influence of some substance. So, is it possible that the man who brought her may have found her lying somewhere and left her at the hospital to avoid involvement with the police? Why would the rapists or any of their accomplices take such a huge risk? I guess we may find out if the Punjab police get their act together and actually apprehend the real offenders instead of possible scapegoats.

There is news of the police trying to get the child’s statement. Seriously? A five-year-old child was brutally raped and is severely traumatised. She has undergone surgery and requires more. What kind of a statement is she capable of making? What is next? Taking her to an identification parade? Or maybe, getting her to narrate the entire story? Or perhaps, asking her to provide eyewitnesses? Talking about eyewitnesses, not that long ago the illustrious Council of Islamic Ideology (CII) declared that DNA was secondary evidence in rape cases and the proof would be the testimony of tazkiyah-al-shuhood, at least four, adult, male Muslim witnesses who satisfy the court that they are truthful persons, abstain from major (kabir) sins and give evidence as eyewitnesses of the actual act of penetration. Outraged then, I had questioned, “Is it possible to believe that a religion that offers such protection would require a woman who has been the victim of a heinous offence like ‘rape’ to produce at least four adult pious Muslim male witnesses in support of her innocence? How about little girls, infants and babies, who are molested, brutalised and raped? Are they too, supposed to fulfil the tazkiyah-al-shuhood in support of their innocence? Would not the DNA evidence be concrete evidence in such cases or do the CII require them to testify and identify their perpetrators? The Qanoon-e-Shahadat Order, which is the primary law of evidence in Pakistan, allows production of any evidence that becomes available because of modern devices or techniques. While medical evidence can be tendered with the testimony of the expert who collected it and serves as corroborating evidence — the reports of a chemical examiner, serologist, etc, do not require expert testimony — so why then can DNA evidence, if obtained through credible means, not serve as the main or ‘primary’ evidence which convicts an accused in a rape case?”

My question to the CII now is how is the little girl lying in that hospital bed supposed to identify her perpetrators? Where are those four pious Muslims who watched her being mutilated and chose to do nothing? Rape is not zina (fornication), it does not require the proof of hudood, but why let the public know that? Why not let women and children suffer, thinking they have to produce tazkiyah-al-shuhood, forcing them to abstain from seeking justice? As I write, news has come in that the CII has amended its stance. Perhaps it had something to do with a programme I recorded on Tuesday with Maulana Ashrafi? If yes, thank you, Maulana Sahib.

Despite being a signatory to the United Nations Treaty on the Rights of Children (CRC), Pakistan has done little to protect its children from all forms of sexual exploitation and sexual abuse. After the promulgation of the Anti-Terrorist Act in 1997, cases of child rape and child molestation were being tried in this special court, vide an amendment in 1999. However, there were problems, as ‘child molestation’ was not defined. A double bench of the Lahore High Court directed the federal government to examine the lacunae and take some positive action. In 2001, child molestation was omitted by other provisions not related to children. All cases of rape are now tried under section 376 PPC; however, there is no specific provision for other forms of sexual abuse, which includes pornography, cyber crime against children, genital mutilation, oral sexual abuse, etc. No cases of child molestation or abuse have been tried by the Special Court since the past few years, as they are deemed to be covered by 376 PPC. In 2002, the Law and Justice Commission of Pakistan recommended an amendment in the Pakistan Penal Court by including a section 354-B, which would cover all cases of abuse and acts of molestation with a sexual motive. It was never implemented.

Pakistan has done well to put the offence of rape back into the Penal Code but it still needs to expand its purview and definition. The offence of rape under our law carries a mandatory minimum sentence of 10 years and a maximum of the death penalty. Gang rape is punishable by death or life imprisonment. There are no laws still that address child molestation and abuse and there are none that provide for special rules of evidence like video evidence, special screens, in camera proceedings, etc, for vulnerable victims: children, the elderly and the disabled. Legislation is direly needed that makes DNA evidence the primary evidence in rape of vulnerable victims, those who are unable to testify on account of their age or infirmity. Police and doctors need to be trained in collection of forensic evidence and our forensic laboratories need to be strictly monitored and run by professional, highly trained staff with impeccable integrity.

Why is all this still not our priority? Why are our priorities building a tunnel through the Margalla Hills for ‘New Islamabad’, where the elite can buy land and live in peace while our children fall prey to depraved individuals and a faulty, ruthless system? Is it possible that only our children are vulnerable while theirs live a highly protected and secure life? In a depraved society, no one is safe and to believe otherwise is a fallacy. It is said all that is needed for the forces of evil to triumph is for enough good men to do nothing. I am wondering if we have enough good men within our ranks who can rise up and do something to protect our daughters, and their own too.

The writer is an advocate of the High Court