Out of all cases of sexual assault filed in Khuber Pakhtunkhwa, merely 15 percent result in a sentence being delivered. The other 85% gets buried under a complex web of societal values, forced compromises, weak prosecution, lost evidence and even marraiges with abusers.

On top of that, it needs to be remembered that there is always the chance of cases being underreported.

So what are the laws, customs and hurdles in the way of getting justice in rape cases in Khyber Pakhtunkhwa.

Delays and compromises

Shabnam*, a 16-year-old student of class 7 from Abbottabad, was allegedly sexually assaulted by her 31-year-old teacher in 2016. However, the court acquitted the accused after three years because the first information report (FIR) was lodged six days after the incident. Resultantly, the medical examination was delayed as well which possibly led to the loss of evidence as the possibility of detecting semen from a vaginal swab sample is very low after delay.

In another case, 30-year-old Shagufta* from Buner district was raped in 2020. However, in May 2022, the Additional District and Sessions Judge sentenced the accused, Khan Zeb,* to life imprisonment and a fine of Rs 100,000. In December of the same year, the Peshawar High Court accepted the appeal of convict after the parties submitted a compromise and marriage certificate to the court through the Jirga.

“Without going into the controversy regarding the fact that the offence is non-compoundable, as the parties entered into a compromise when marriage of victim has been solemnized with the appellant, besides compromise appears to be in the larger interest of the parties, on acceptance of the compromise the appeal stands allowed,” ruled a two-member bench consisting of Justice Mohammad Naeem Anwar and Justice Mohammad Ijaz Khan.

The Government of Khyber Pakhtunkhwa, through advocate general, has filed a review petition against the judgment of a PHC Mingora Bench. In the petition, the advocate general has pointed out 14 legal issues, claiming that the bench’s decision was based on a legal theory that was alien to the judicial system.

“The jirga was given authority for the decision and according to the decision, not only was the victim married to the appellant, but the victim and the complainant were also compensated, so the matter should end now,” the families say.

Number of reported rape cases in KP

According to the information obtained from various sources including police and the interior ministry, 259 rape cases were reported in 2019, 299 in 2020, 125 in 2021, 365 in 2022 and 74 rape cases in 2023 so far, making the total number 1,122 of rape cases in Khyber Pakhtunkhwa during the last five years (from 2019 till now).

Conviction and acquittal in rape cases

According to the documents obtained from the Home Department of Khyber Pakhtunkhwa through an application filed under Khyber Pakhtunkhwa Right to Information Act 2013, 581 accused have been prosecuted in the courts since 2019. Out of 581 accused, 494 were acquitted while only 87 were sentenced by the courts.

According to the document, 153 accused involved in rape cases of children were acquitted while 64 criminals were punished. Similarly, 341 accused involved in sexual abuse of women could not be found guilty while only 23 criminals were awarded punishment.

The document reveals that the rate of conviction for rapists is 14.97%, with the 6.31% conviction rate in women rape cases and 29.49% in children rape cases.

According to the interior ministry document, 14 criminals involved in child rape cases were sentenced in 2019, 12 in 2020, 22 in 2021, 11 in 2022 and five in 2023. Similarly, three criminals were convicted for sexual assault of women in 2019, six in 2020, seven in 2021 and seven in 2022. In 2023, no accused has been convicted yet whereas the cases against more than 300 are still pending before courts.

Number of unreported rape cases

Imran Takkar, a social activist who works for children and women’s rights, disagreed with the data of the interior department and the police, saying that the real number of rape cases in Khyber Pakhtunkhwa is 10 times more than reported, but due attitude of people around honour in the society, cases are not reported while many victims also lack awareness about reporting rape cases.

“People report cases to get justice, but getting justice is very expensive and complicated in Pakistan, due to which rape cases are not reported,” Takkar added.

Saima Munir of Aurat Foundation supported Takkar’s version.

“The actual number of rape cases is very high but people think that if they report rape, they would lose their standing in the society, dignity will be lost while the rate of punishment for the accused in rape cases is also less resulting in people hide the rape”.

Statistics of rape cases in the world

According to 2023 data about rape obtained from the World Population Review and WiseVoter website, among the list of 144 countries, the highest number of rape cases occurred in the South African country of Botswana, where 96 people were raped per 100,000. Meanwhile Bermuda and Oman reported no rape cases.

In the list, Pakistan is at the 91st position where 3 out of every 100,000 people are sexually assaulted, while Bangladesh is at the 62nd position with 8 cases and India is at the 94th position with more than 2 cases.

How rape affects the survivors and their families?

“It has become impossible for us to meet people in the area, so we don’t go out. We have even stopped going to mosque,” said a 50-year-old Ghani-ur-Rehman* from Peshawar, whose 11-year-old child was raped 22 days ago.

Rehman said that he had not let his family members know about the child being raped, instead he talked to them a made-up story about fight with neighbors. Now he plans to leave the area.

Sajjad Ahmed Mehsud, practicing lawyer at PHC told another story about shame among victims of abuse and their families. He narrated the story of a client, an 8-year-old child was sexually assaulted in Kohat in 2018, whose family not only had to give up business for some time, but had to leave the area within a month due to taunts from people.

“There is a strong possibility that some people might lose their lives after being raped through suicide or through the hands of their family,” he said.

What is rape?

According to Section 375 of the Pakistan Penal Code 1860, “A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,(1)against her will, (2) without her consent, (3) with her consent, when the consent has been obtained by putting her in fear of death or of hurt, (4) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or (5) With or without her consent when she is under sixteen years of age”.

Penalties for rapists

According to Section 376 of the Pakistan Penal Code 1860, “Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine while When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life”.

Under Section 24 of the Anti-Rape Act, 2021, the National Database and Registration Authority (NADRA) was tasked with preparing a registery of sex offenders. In this regard, NADRA launched a new National Sex Offenders Registry (NSOR) in May this year. A facility was introduced whereby citizens can verify the identity of a convicted sex offender by sending a 13-digit ID card to 7000, but the system is currently inactive due to legal objections by the law ministry.

The law ministry is of the view that under the Act, the responsibility of NSOR has been assigned to the Ministry of Law and Justice with the help of a special committee, but NADRA has unilaterally used the register without proper legal approval.

Reasons of acquittal in rape cases

Abdul Wahab Tarkalani, a lawyer of PHC, told Aaj News that in rape cases the FIR is itself beset with multiple problems. Along with late filing of FIRs, real facts of the incident are not stated due to the attitude of the society. Additionally, secondary accuse are also nominated in the case along with the primary accused in the FIR, which weaken the case and the possibility of acquittal of the accused increases.

“The PHC decision of acquittal on compromise is controversial as compromise is not acceptable in rape cases. However, in 85% of the cases, the statements are changed in the cross-examination after the parties reach a compromise outside court which makes the acquittal mandatory, and in such situations, compensation is often received whereas sometimes marriage takes place between accused and victim,” he further clarified.

Advocate Nazish Ali believes that strong evidence is very important to convict the accused, but when the incident is reported, but the victim has already taken a bath or washed the clothes. This means there is a maximum chance of losing the evidence medically as well as scientifically.

“There are no witnesses in a rape case, and when evidence is also lost, and then relying only on the victim’s statement weakens the case,” she further elaborates.

Senior lawyer Shabbir Hussain Gigyani says that police investigation, evidence and modern forensic lab play an important role in convicting the accused in rape cases, but in KP, it is not possible to punish the accused due to the poor investigation of the police and the lack of a modern forensic lab. “The misuse of rape laws is also one of the reasons of less conviction as false cases are filed to take revenge from each other,” laments Gigyani.

“The agony I have gone through in the past one month was unimaginable,” narrated Noor Khan who is a cleric at mosque and teacher at seminary in Peshawar.

Noor Khan was arrested last month on charges of rape, however, after spending 20 days physical remand and jail, he was released on bail by the court because the medical report was negative, and no other evidence was provided which could help in denying him a bail.

Khan claimed that he had an argument with the complainant a few days ago where the latter threatened to ‘destroy his reputation’. Noor Khan said that he teaches Quran to the children free of cost in the seminary, due to which no child attends his opponent’s seminary, so the opponent resorted to a false case to defame him.

Lack of prosecutors in KP

Shah Saud, deputy public prosecutor Peshawar, said that there is a very high number of cases in the courts whereas the number of prosecutors is low, which not only burdens the cases on prosecutors, but it also affects the quality prosecution in rape cases.

According to the information obtained from the Directorate of Prosecution Khyber Pakhtunkhwa under the Khyber Pakhtunkhwa Right to Information Act 2013, KP is facing a shortage of 172 prosecutors because the number of sanctioned posts of prosecutors for the entire province is 507 but currently 335 prosecutors are appointed.

The Directorate of Prosecution of Khyber Pakhtunkhwa comments said that the recruitment of more than 70 prosecutors on vacant posts will be completed soon, while the process of appointing prosecutors on the remaining posts will also begin soon after.

How to increase the rate of punishment?

Nouman Muhib Kakakhel, practicing lawyer at PHC, believes that there is a dire need to raise awareness among citizens about rape laws and incidents so that the affected person can report the incident immediately and the victim should not be looked down upon in the society as rape is not done by will.

Kakakhil demanded that a state-of-the-art forensic lab should be established soon so that even if the evidence is found with delay, the crime can still be proved whereas women in particular should be made aware of how they can preserve evidence after rape.

Deputy Public Prosecutor Shah Saud said that in rape cases, instead of modern scientific and medical investigation, investigations are conducted according to 90-year-old and ‘rotten’ police rules, which are not sufficient and effective for a strong case in the present era, so the rules must be reviewed.

“Even today, distance is measured in steps at the crime scene, though, videography can be the best method,” he said.

Saud suggested that the investigation team must be highly educated with high level professional trainings so that they do not lose evidence. “There is no designated place for the affected women anywhere in the province where they can tell the real facts openly with the prosecutor without any fear or danger, so the establishment of such offices or cells is also inevitable,” points out Shah Saud.

Peshawar High Court lawyer Uzma Sattar also stressed the importance of training of the investigation team and improvement in forensic science, saying that there are no witnesses in rape cases, so high training of the investigation team is very important to collect evidence from the scene.

“If the evidence is analyzed effectively from the lab, the chances of acquittal of the accused can be reduced,” she believes.

How Police sees the issue?

Dr Ishtiaq Ahmed Marwat, Khyber Pakhtunkhwa Additional Inspector General Investigation, believes that ‘every criminal leaves a mark’ and evidence is what helps the police to reach the suspect and make arrests.

However, a state-of-the-art forensic lab is urgently needed in the province as physical evidence collected from the crime scene or from a person during investigation is analyzed in the laboratory. “Sessions are conducted from time to time to improve investigative skills of investigating officers through professional training while evidence through forensic science can help investigating officers in investigating cases and later this evidence can be presented as evidence in courts which will improve the disposal of cases,” added Dr Ishtiaq.

Approval for the establishment of state of the art forensic lab

KP Caretaker Health Advisor Dr Riaz Anwar said that after the approval of the caretaker cabinet, the first state of the art forensic lab of its kind in the province is going to be built in Hayatabad area of Peshawar at a cost of Rs10 billion.

“The lab will have post-mortem, DNA testing for identification and fingerprint analysis facilities which help in investigating crimes and identifying criminals,” said Dr. Anwar.

*Names changed to protect privacy.