The Supreme Court of Pakistan while deciding a Criminal Appeal in its observation expounds that the two-finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus has no bearing on a case of sexual violence and Dragging sexual history of the rape survivor into the case by making observations about her body including observations like “the vagina admits two fingers easily” or “old ruptured hymen” is an affront to the reputation and honour of the rape survivor.

Factual Background of the case

A 20 year old complainant while travelling to Rawalpindi from Kotli Sattian with one Hameed Abbasi (PW-2), was intercepted on the roadway by the appellants and others, taken off-road and raped. After the gruesome act, the complainant, straight from the place of alleged occurrence, went to the police station and reported the matter.

Her statement under Section 164 of the Code of Criminal Procedure, 1898 (“Cr.P.C”) was also recorded by a learned Magistrate on 29.08.2012, wherein she reiterated her version of having been raped by the aforesaid five persons.

Trial Court

Appellants were sent up for trial and found guilty of having committed rape on the complainant. They were convicted under Section 376(2) of the Pakistan Penal Code, 1860 (“PPC”) and sentenced to death with the direction to pay Rs.500,000/- as compensation to the complainant or in default thereof to undergo simple imprisonment for six months by the trial court. The trial court also sent the Capital Sentence Reference (CSR) to the High Court for confirmation of the death sentence or otherwise.

High Court

The appellants challenged their conviction and sentence in appeal before the High Court, and the trial court also sent the Capital Sentence Reference (CSR) to the High Court for confirmation of the death sentence or otherwise. The appeal and the CSR were heard together by the High Court. Vide the impugned judgment, the High Court maintained the conviction of the appellants, however, reduced their sentence to that of imprisonment for life and extended them benefit of Section 382-B, Cr.P.C. also.

Question for Consideration

  1. Whether recording sexual history of the victim by carrying out “two-finger test” (TFT) or the “virginity test” has any scientific justification or evidentiary relevance to determine the commission of the sexual assault of rape ?
  2. Whether the myth that “unchaste”, “impure” or “immoral” women are more likely to consent to sexual intercourse and are not worthy of reliance have any legal basis ?
  3. Whether “sexual history”, “sexual character” or the very “sexuality” of a rape survivor can be used to paint her as sexually active and unchaste and use this to discredit her credibility?
  4. Whether her promiscuous background can be made basis to assume that she must have consented to the act. These important questions require to be examined in the light of our Constitution, the law and modern forensic science as it stands today.

Pakistan Supreme Court- Findings and Observations

The Pakistan Supreme Court considering the issues stated that,

“Modern forensic science thus shows that the two finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus has no bearing on a case of sexual violence. The status of hymen is also irrelevant because hymen can be torn due to several reasons such as cycling, riding among other things. An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse. Hymen must therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those findings that are relevant to the episode of sexual assault, i.e., findings such as fresh tears, bleeding, oedema, etc., are to be documented.”

“The World Health Organization (WHO), the Office of the High Commissioner of the United Nations and the United Nations Entity for Gender Equality and the Empowerment of Women in “Eliminating Virginity Testing: An Interagency Statement” proclaim, “the practice is a violation of the victim’s human rights and is associated with both immediate and longterm consequences that are detrimental to her physical, psychological and social well-being.” In view of this firm and reliable Interagency Statement, examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity.”

“Dragging sexual history of the rape survivor into the case by making observations about her body including observations like “the vagina admits two fingers easily” or “old ruptured hymen” is an affront to the reputation and honour 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 person shall be taken except in accordance with law.”

If the victim had lost her virginity earlier, it does not give to anyone the right to rape her.14 In a criminal trial relating to rape, it is the accused who is on trial and not the victim.

Lastly, the Supreme Court of Pakistan Dismissed the criminal Appeal

Case Details

Court: Supreme Court of Pakistan

Case Title: Atif Zareef versus The State

Case No. Criminal Appeal No.251/2020 & Criminal Petition No.667/2020

Pronounced on: 04-01-2021

Coram: Mr. Justice Manzoor Ahmad Malik, Mr. Justice Mazhar Alam Khan Miankhel & Mr. Justice Syed Mansoor Ali Shah

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