LAHORE: The Lahore High Court (LHC) has declared Section 377-A of the Pakistan Penal Code (PPC) a bad piece of legislation as it is open to exploitation very easily.

The court said section 377-A PPC being definition clause of offence of ‘sexual abuse’ contains more than one situation, but limit of sentence is same for all sort of acts mentioned therein.

The legislator has not defined the words ‘fondling, stroking, caressing, exhibitionism, voyeurism’ used in section 377-A PPC and hence interpretation can produce inconsistent approaches to reach out for proof of such offence.

The ideal would be that all bills introduced and all statutes passed should be adapted perfectly to the common sense of right. The court expected from the legislators that a composite language used for defining offence of ‘sexual abuse’ and its form of omnibus sentencing shall be reconsidered for a better way out.

The court passed these directions in a petition of Muhammad Sajid challenging the decision of a juvenile court convicting him in a case registered against him under sections 377/377-B PPC at police station Chishtian City.

The court set aside the sentence u/s 377-B PPC and upheld the conviction u/s 377 PPC due to credible evidence of prosecution including positive report of PFSA.

The court said the offence was primarily punishable with sentence of seven years imprisonment but later amended in a more stringent form with sentence of imprisonment up to 20 years, not less than 14 years with fine of rupees one million.

The court said it was the demand of international community to legislate for children in order to prevent them from sexual abuse and other related exploitations as mentioned in “The United Nations Convention on the Rights of the Child 1989” which Pakistan ratified in 1990.

However, proposing such sort of sentence was not the demand of international community or a compulsion under a ratified United Nations Convention, rather a wish of our legislative body which showed lack of proper study and care; otherwise, some countries under such covenant have proposed different types of offences with various forms of sentences, the court added.

The court said, the language, legislator applied to draft the offence of ‘sexual abuse’ contains each and every thing in a boat for its omnibus sailing on all sorts of acts and that too without the definition of terms used for explaining such offences in one section of law which not only makes its applicability difficult but creates problems for investigators/ prosecutors and the courts to propose particular charge or to find out standards to evaluate the charge for appropriate sentences.

The court observed the words used in section 377-A PPC for describing different types of offences require different sentencing zones to meet principles and purposes of sentencing, but legislator has not taken care of such requirement which is causing serious prejudice, damage and injustice to oppressed people who are easy prey for false implication as scapegoat.

In section 377-A PPC that any other obscene act shall also be included in the definition of sexual abuse which clearly reflects that they cannot be offences of same gravity but all of them entail minimum sentence of 14 years; therefore, do not cater to the requirement of sentencing for an offence in true sense, the court added.

The court said, the appellant convicted under section 377-B PPC was also charged for an offence under section 377 PPC and sentence provided there under has also been imposed upon the appellant.

The court held there was no legal mandate available to the trial court to convict the accused under section 377-B PPC for a lesser offence which is contrary to the provision of section 71 PPC because under the doctrine of merger the graver offence would engulf the minor.

The court observed that the appellant Muhammad Sajid is juvenile, he is first offender, the sentence recorded under section 377 PPC is reduced to simple imprisonment for a period of two years with fine of Rs 10,000, in case of default in payment of fine, appellant would further undergo two months’ simple imprisonment, the court concluded.

Copyright Business Recorder, 2023