July 12, 2024
By Ahmed Saeed
LAHORE
The Supreme Court of Pakistan acquitted an accused in a rape case, ruling that the complainant had consensual intercourse with the alleged rapist.
However, the court sentenced the accused to five years in prison under Section 496-B (Fornication) of the Pakistan Penal Code (PPC) and an additional year under Section 448 (Trespassing).
The three-member bench delivered the verdict by a 2-1 majority, with Justices Jamal Mandokhel and Shahzad Malik in favour, while Ayesha Malik dissented.
The case dates back to 2016 when Mumtaz Bibi filed an FIR accusing Muhammad Imran of raping her while she was alone in her brother’s house. The trial court had sentenced Imran to 10 years in jail under Section 376 of the PPC, a verdict upheld by the Lahore High Court (LHC). Both courts based their decisions on a forensic report from the Punjab Forensic Science Agency (PFSA), which confirmed that Imran’s DNA matched semen found on the complainant.
However, the SC ruled that the intercourse was consensual, thereby acquitting Imran of rape charges.
Delay in FIR
The court noted that there had been a two-day delay in filing the FIR, with no justification provided for the delay.
“Under the circumstances, the sanctity of truth cannot be attached to the FIR, as there was every possibility that the FIR was lodged after deliberations while narrating an exaggerated story to make the offense graver. Although mere delay in such cases is not always fatal to the prosecution’s case, it may be relevant when considering other specific facts,” the order stated.
The court also pointed out that prior to filing the rape FIR, the police arrested the accused and the complainant under Section 294 (Obscene Acts and Songs).
Absence of evidence of resistance
The court observed that the complainant claimed she was forcibly dragged to a room where she was raped after her shalwar was forcibly removed. However, the site plan of the incident mentioned no signs of dragging.
“Similarly, no marks of dragging or any lacerations, bruises or contusions were noted on the complainant’s body by the Medical Officer,” the order read.
The court further stated, “A female who is not a consenting party would offer very strong resistance in an attempted rape case. However, in this case, no marks of violence were noted on Mumtaz Bibi’s body.”
The court concluded, “We believe the ingredients of the offense of rape punishable under Section 376 PPC are not present in this case; instead, it is a case of fornication (zina with consent) punishable under Section 496-B PPC.”
The order acknowledged that under Section 496-B, both consenting parties involved in fornication must be punished. However, since Mumtaz Bibi was not charged under this section, she did not have the opportunity to defend herself, and it would be inappropriate to punish her without such an opportunity.
Dissenting note
Justice Ayesha Malik disagreed with the majority, upholding the trial court and LHC’s decisions. She emphasised that DNA evidence is the most definitive and conclusive evidence in a rape case.
“In the Ali Haider case, this court held that DNA evidence is the gold standard for establishing an accused’s identity due to its accuracy and conclusiveness,” the dissenting note read.
Victim’s character is immaterial
Justice Malik underscored that a victim’s character or reputation is immaterial in rape cases. The SC has ruled that the solitary statement of the victim is sufficient to award a conviction in a rape case if that statement is trustworthy, consistent and reliable.
“In this context, it is important to note that the victim’s character or reputation is also immaterial by way of evidence, there being no nexus between her reputation, character and the offense of rape”, read Justice Malik’s note.
Physical resistance not necessary
Justice Malik argued that physical resistance is not required to prove rape, as trauma affects individuals differently. Marks of violence are not essential to establish rape, and the absence of such marks does not imply the rape claim is meritless, especially when medical evidence confirms sexual intercourse.
“The offense of rape is made on the body of the victim and her response to this offensive act cannot be standardized as per expected responses. As per expert psychiatrists, the reflexive reaction of fear or threat in a victim may automatically lead to fight, flight or freeze responses,” the note read.
Consent must be unequivocal
On the issue of sentencing the accused under fornication charges, Justice Malik emphasised that the key element of fornication is proving that the intercourse was consensual. For fornication, consent must be clearly established.
“Consent means an unequivocal voluntary agreement by the woman, communicated through words, gestures, or any form of verbal or non-verbal communication, indicating her willingness to participate in the sexual act,” the dissenting note stated.
Justice Malik added that the court denied the complainant’s right to a fair trial by finding fornication against her. “This is significant given that it is not the petitioner’s case that he was involved with the complainant, nor did he claim to be at the complainant’s house at that time, nor did he raise the defense of consent or willingness.”
Reminiscent of Zia’s Hudood Ordinance judgments
Women’s rights activists and lawyers decried the majority judgment, warning it could have severe repercussions if not overturned in a review petition.
“This judgment must be challenged by the state as it infringes on women’s rights, particularly in cases of rape and sexual violence,” stated Nida Aly, Executive Director of the Asma Jahangir Legal Aid Cell. “It sets a dangerous precedent and jeopardises hard-earned women’s rights achieved through years of struggle.”
Aly compared the judgment to verdicts from Zia’s era under Hudood laws, where rape cases were converted into fornication if the rape survivor couldn’t prove their allegations.
“We seem to be taking one step forward and two steps back,” Aly remarked.
“While we celebrate the appointment of the first female chief justice in the LHC, such judgments push women back into dark days where the courts punish them even for filing rape cases.”
Legal experts have pointed out legal gaps arising from this judgment that need addressing through a review petition.
“Under Section 203-C of the Code of Criminal Procedure, no court can take cognizance of an offense under Section 496-B of the PPC except on a complaint lodged in a court of competent jurisdiction. At least two eyewitnesses are essential to prove the case of fornication,” said senior lawyer Shabbir Hussain.
However, in the current case there had been no eyewitnesses. If the current judgment is not overturned, anyone can file compliant against Mumtaz Bibi for fornication based on the apex court’s order.
Irfan Zia, Deputy Prosecutor General of Punjab, acknowledged the judgment’s potential negative impact on women’s rights and said the Prosecutor General’s office is considering filing a review petition in the Supreme Court to overturn the decision.