December 17, 2025
By Ahmed Saeed
Additional reporting by Xari Jalil
ISLAMABAD
The Supreme Court of Pakistan has converted a rape conviction of 20 years rigorous imprisonment (RI) under Section 376 (Rape) of the Pakistan Penal Code into five years RI under Section 496-B (fornication – or zina with consent), citing a delay in the registration of the FIR and the absence of marks of violence on the survivor’s body.
The judgment was delivered by a three-member bench comprising Justice Malik Shahzad Ahmad, Justice Aqeel Abbasi, and Justice Salahuddin Panhwar, with a 2-1 majority. Justice Panhwar dissented from the majority view.
The judgement came amid a furious reaction by women rights activists and lawyers, who have condemned the court’s main order, calling it a “gross miscarriage of justice” and a “travesty of justice.”
Case background
The case was registered in October 2015, when the rape survivor alleged that the accused, Hassan Khan, had raped her seven months ago, as she had gone out of her house and had reached a forest located nearby. The assault resulted in the survivor becoming pregnant, and later delivering a child. A DNA test subsequently confirmed that the accused was the biological father of the child
In 2017, the trial court convicted the accused under Section 376 and sentenced him to 20 years RI along with Rs. 500,000 as compensation to the survivor. The Lahore High Court (LHC) upheld the trial court’s verdict.
However, now the Supreme Court verdict, authored by Justice Malik Shahzad Ahmad, has stated that the incident “was not a case of forcible rape,” citing the delay in filing the complaint.
“It is also noteworthy that after the occurrence, the alleged victim came back to her house where her brother and other family members were admittedly living, but she remained mum for almost seven months. The long silence of the complainant for a period of seven months speaks volumes against her conduct, therefore, the story narrated by the complainant with the delay of 07 months regarding forcible rape cannot be relied upon blindly,” the order said. The court further noted that “no resistance was offered by the complainant at the time of occurrence.”
“The medical officer did not note any healed mark of violence on the entire body of the alleged victim. Even the clothes of the alleged victim were not produced before the Police or before the learned trial court to show that the same were torn at the time of occurrence. It shows that the alleged victim did not offer any resistance,” the judgment said.
“We are, therefore, of the view that the prosecution has proved its case to the extent of offence of zina with consent (fornication) punishable under Section 496 PPC against the petitioner beyond the shadow of any doubt,” the order stated, adding that “After examining the entire prosecution case, we have come to this irresistible conclusion that it is not a case of rape as envisaged under Section 376 PPC, rather it is a case of fornication i.e. zina with consent punishable under Section 496-B PPC.”
Section 496-B of the Pakistan Penal Code states that a man and woman not married to each other are said to commit fornication if they willfully have sexual intercourse. “Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees,” the law reads.
Meanwhile the court noted that “we are aware of the fact that once we hold that it is a case of fornication punishable under Section 496-B PPC then the complainant [name withheld by Voicepk] is also liable to be proceeded against and punished as an accused of the offence of illicit intercourse with consent but as she was not challaned by the police and no charge of fornication under Section 496-B PPC was framed against her by the learned Trial Court, thus, she had no opportunity to defend herself, therefore, it will not be appropriate to punish her at this stage without providing her opportunity of defence.”
Dissenting note
In his dissenting note, Justice Salahuddin Panhwar, said that cases of rape and sexual harassment often go unreported as victims fear the consequences of reporting.
“In the case at hand, the victim is of a young age, unmarried, her parents have passed away, she has an elder brother and record also shows evidence of threats forwarded to the victim, it clearly makes sense as to how reluctant a girl would be in these circumstances to share such an unfortunate occurrence with her own brother,” his dissenting note said.
The note emphasized that delays in reporting sexual assault are not fatal to prosecution, given societal pressures. Justice Panhwar also disagreed with the argument that absence of marks on the victim’s body favored the accused.
“I am of a different view, as the accused was carrying a weapon, and any victim would be reluctant to resist such a perpetrator with a weapon in hand.”
Referring to the Mehboob Ahmad case, he noted that a weapon in the hands of a perpetrator often explains the absence of injury marks.
“Even otherwise, the medical examination could have not effectively captured the physical resistance by the victim after a time span of approximately seven months,” he added.
He stressed that Sections 376 (rape) and 496-B (fornication) are distinct offenses and that a conviction cannot be altered merely to reduce the sentence.
‘Call for a review petition’
Meanwhile Nida Ali, the Executive Director of the Asma Jahangir Legal Aid Cell (AGHS) and member of the Anti-Rape Act Implementation Committee, said she was shocked at how such a judgment could be delivered in this day and age.
“This is not the first such judgment by Justice Shahzad Ahmad Khan,” she said. “In fact this is the third time the judge has converted rape charges into fornication on the grounds of the absence of resistance marks.” She also highlighted that under Section 203(c) of the CrPC, no court can take cognizance of fornication except on a complaint lodged before a competent court.
“This means that rape charges cannot be converted into fornication, as a complaint of fornication must be filed by an individual before a Sessions Court,” she added.
Urging the government to intervene, she called for a review petition, warning that the ruling could set a dangerous precedent and seriously harm women’s rights in Pakistan. She also welcomed the “gender sensitive dissenting note” of Justice Panhwar, which emphasized that sexual violence is highly sensitive and that delays in filing firs should be condoned.
‘A dangerous precedent’
Co-Chairperson of the Human Rights Commission of Pakistan Munizae Jahangir said that the judgment should be reversed as it sets a very dangerous precedent for women
“After such nonsensical and anti-women ruling, other women will now be extremely fearful of reporting rape,” said Jahangir. “This is very concerning as the rape conviction rate is only 5 percent in Pakistan and judgments like this will further erode women’s trust in the criminal justice system,” she said.
‘Institutional patriarchy’
One of the organizer’s of Aurat March Islamabad, Huda Bhurgri, called the entire decision a throwback to General Zia Ul Haq’s era.
“This is actually institutionalized patriarchy,” she said angrily while speaking to Voicepk. “It has happened because a woman, a rape survivor, did not act like a ‘perfect victim’.”
Bhurgri who has been vocal concerning various patriarchal trends in today’s society, says that the judgement reminds strongly of living under General Zia’s time where the burden of evidence was meant to be on the victim.
“It is the victim’s responsibility to provide evidence – when in reality no other crime expects this from the victim,” she said. “Judge’s remarks like “the survivor was silent for 7 months” shows the extent of ‘gender blindness’, an insensitivity. Because they think that when something like this happens to a woman, she should just start making some kind of noise, and become the perfect victim and until she becomes the ‘perfect victim’ she is not worthy of any kind of justice.”
They don’t seem to understand that women who go through this, usually freeze or go silent – they suffer severe consequences, and fear how others may react after knowing about what has happened. After all, our judges are also part of the same society where only a rumour can affect the dignity of a woman.”
Bhurgri said this was not just a miscarriage of justice – it is what patriarchy – institutional patriarchy – looks like. “Men in power don’t have to go through this, or be affected by this.” She condemned the instinct of such men to protect other men in such cases.
“All the social, psychological, economic costs are shouldered by the woman,” she stressed. “She went through that pregnancy through the rape, but because she was not the perfect victim, none of these things were enough for her to get justice. They did the same thing to Mukhtaran Mai – she was also not the perfect victim for them and the men who raped her were acquitted in front of her eyes after years of court appearances. Why don’t they just let us know once and for all what is even the definition of the perfect victim, which would make the rape survivor get justice?”
What about the earlier judgements?
Veteran rights activist and foremer Chairperson of the National Commission of the Status of Women, Khawar Mumtaz also commented on the decision, applauding Justice Panhwar for his position, and mentioning an earlier judgment by Justice Ayesha Malik on not needing proof of struggle for rape.
“I find the logic behind the judgment troubling,” she said, “Visible signs of struggle and resistance are not necessary to prove there has been rape. The nature of threat used by the rapist, isolated location and fear combine to silence a victim. That she did not complain to the family immediately after the event is how our society tends to blame a female victim. It is the same mindset reflected in this judgment which I find insensitive to the pressure and mental anguish/trauma a violated woman experiences.”
‘Hackneyed arguments’
Women rights activist based in Islamabad Tahira Abdullah also spoke to Voicepk regarding the decision.
“I have just learned, with horror, of this majority judgement passed by a 3-member SCP Bench – converting an earlier rape conviction to “fornication”,” she said. “Two SCP judges have pronounced the rape survivor guilty of a punishable offence under the law, i.e. engaging in consensual sexual relations outside of marriage. This is outrageous and horrific. It is an atrocious, deliberate, mala fide overturning of the trial court’s conviction and the LHC’s subsequently upholding that verdict. It amounts to victim-blaming, naming, shaming. The so-called “rationale” comprises tired old clichés and hackneyed arguments, which have been legally debunked many decades ago, both in Pakistan and globally.”
Registering her condemnation and protest, Abdullah said, “These two SCP judges, in accusing the rape-survivor of fornication, have perpetrated a terrible miscarriage of justice, which will result in further huge physical, psychological, emotional trauma, stigmatization and societal shame for the survivor. In fact, it might even have very serious unintended consequences, such as a future ‘dishonour killing’ by her brother to “save his family’s honour” (_sic_) or as revenge by the convicted rapist as soon as he is released from prison.”
She also strongly commended and appreciated Justice Salahuddin Panhwar’s dissenting Note, which cites exactly the same arguments as those of women’s rights activists and groups over the decades.
“We request the CJP to use his suo moto authority to urgently undertake an impartial, transparent review of this SCP majority verdict, in order to rectify a huge miscarriage of justice,” she said.
A bad precedent
This is an absolutely shocking judgement by the Supreme Court of Pakistan,” said another senior women rights activist Farzana Bari while speaking to Voicepk. “It has taken women rights activists decades to try and ensure there is realization and sensitization to points like when there is no mark on the body, it does not mean there has been no resistance, and that it was not a sexual act by consent. Similarly often women take a long time when it comes to reporting such cases, but unfortunately the two judges in this case have used the same arguments to turn rape into fornication, which is absolutely unacceptable and sends a very very wrong signal.”
Bari said that the Anti Rape Act had covered all these issues and had acknowledged that a delay in the reporting should not be used against the woman/complainant.
“There is a culture of impunity that badly exists in our society and if this is reflected in our judges’ mindset it serves against women’s access to justice,” she said. “They should definitely go into a review petition and this judgement must be reversed otherwise it will set a very bad precedent for more than half our population.”