Author: Pooja Sahoo, 1st year student at National Law University, Odisha
Introduction: This case deals with the re-victimization of female victims of sexual violence under the criminal justice system of Pakistan via the virginity and hymen test, also know as the Two Finger Test (TFT). It is also a landmark judgement by the Supreme Court of Pakistan.
Citation: 2021 SCC Online Pak SC 1
Case Number: Criminal Appeal No.251/2020, Criminal Petition No.667/2020
Petitioner: Atif Zareef
Respondent: The Islamic Republic of Pakistan
Petitioner’s Lawyer: Sardar Abdul Raziq Khan, ASC (Advocate Supreme Court).
Respondent’s Lawyer: Mirza Abid Majeed, DPG (Directorate Public Grievances).
Statutes and Provisions: Article 14, Constitution of Pakistan; Article 4(2) (a), Constitution of Pakistan; Criminal Law (Amendment) (Offences Relating ot Rape) Act, 2016.
Bench: Justice Manzoor Ahmad Malik, Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah.
Date of Judgement: 04.01.2021
Present Status: Dismissed
Facts of the Case:
The petitioner had been accused, along with four other people, namely, (1)Sajjad Hussain (2) Sher Baz Khan (3)Nafees Ahmed and (4) Waqas Hameed , of raping a woman named Saadia Rani, and had been found guilty of the same, under section 376(2) of the Pakistan Penal Code,1860 (PPC).
The victim had provided enough details to successfully convict the accused individuals which was backed up by the medico-legal officer and chemical examiner’s reports, which gave further DNA evidence.
Doctor Shehla Waqar, the medical officer who examined the victim had mentioned in her report that there was no TFT conducted to check the virginity of the victim.
The appellants, Atif Zareef, Nafees Ahmed and Sher Baz Khan challenged this conviction in the High Court, where their sentence was reduced, as it was changed to life imprisonment instead of the original death sentence.
Whether the TFT or virginity test used to record the sexual history of the victim has any scientific justification or relevance to prove the occurrence of rape?
Whether the sexual history/character of a rape survivor can be used to portray her as promiscuous and prove that she may have consented to the act?
If the testimonies of women referred to as unchaste or impure would not be afforded credibility?
Arguments of Petitioner:
The defense tried to build a case on the fact that the petitioners had seen the victim and Hameed Abbasi in a compromising position and tried to discredit the claims and to undermine her character of the victim by alleging that she had an illicit relationship with the other witness, Hameed Abbasi.
They also used the lack of TFT being conducted and the lack of a virginity test being done and claimed that the victim was unchaste and that her nature was promiscuous.
The character of the victim was also constantly questioned by the defense in order to undermine that value of her statement.
Arguments of Respondents:
The prosecution provided DNA evidence which confirmed the accusation put forth by the victim.
The statement given by Hameed Abbasi also corroborated the story of the victim, which proved that the victim had been forcefully taken away by the perpetrators for the commission of rape.
The potency test done on the appellants came out to be positive as well, and since medical evidence is treated as the gold standard in proving the identity of the accused, the prosecution was able to fully establish a case against the appellants.
The Supreme Court of Pakistan upheld the previous decision of the High Court and maintained the sentence given to the petitioners, Atif Zareef and Sher Baz Khan , and further dismissed the appeal.
It revoked the statement issued to Nafees Ahmad, by giving him the benefit of doubt, due to lack of evidence against him and ordered for his release.
The Court also declared TFT (also known as the virginity test) as illegal and unconstitutional.
The Supreme Court was absolutely correct in its judgement, regarding both the sentencing of the criminals and declaring TFT to be unconstitutional. It has no scientific value, is based on a misogynistic assumption, undermines the dignity of the victim and discredits her independence, identity, autonomy and free choice. The virginity test not only records the sexual history of the victim, but it also has been previously used in cases to defend the accused as an “unchaste” or “impure” woman testifying does not hold the same value as that of a “pure” woman. This is an attack on the rights of women as it openly discriminated against them, based on their allegedly promiscuous nature. There has been a plethora of phrases used against women who are sexually active before the inciden tlike “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, to decrease her credibility and depict her character as immoral. The use of such language promotes the misogynistic viewpoint from which women are viewed and affect their dignity. This must be stopped, if women are to lead a truly dignified life in the society, despite their erroneously awarded titles and character certificates.