ISLAMABAD – The Supreme Court of Pakistan, in a significant ruling in a sexual assault case, set aside the conviction for rape and converted the case into one of consensual adultery.
The apex court reduced the accused’s sentence from 20 years’ imprisonment to five years of rigorous imprisonment, while the fine was reduced from Rs500,000 to Rs10,000. In case of non-payment of the fine, the convict will have to undergo an additional two months in jail.
According to the court’s approved written verdict issued for reporting, a six-page detailed judgment authored by Justice Malik Shehzad Khan has been released. However, Justice Salahuddin Panhwar dissented from the majority verdict.
The Supreme Court ruled that the case against the accused did not fall under rape but rather consensual adultery. The court observed that in cases of consensual adultery, the complainant could also be liable for punishment. However, since the complainant was neither challaned nor given an opportunity to defend herself before the trial court, she could not be punished at the appellate stage without being heard.
The court clarified that the accused could be convicted for a lesser offence (consensual adultery) instead of the graver charge of rape.
According to the verdict, the FIR stated that the complainant had gone to a forest at around 5:30am to relieve herself, where the accused allegedly raped her at gunpoint. The court, however, noted that the FIR was lodged nearly seven months after the incident, and the prosecution failed to explain how the accused knew the complainant would arrive at the forest at a specific time.
The Supreme Court observed that the complainant did not offer resistance at the time of the incident, no signs of violence or injuries were found in the medical report, her clothes were not produced as evidence, and it was not proven that the clothes were torn. Despite the incident allegedly occurring near a residential area, no alarm was raised nor was any help sought.
The court further noted that the complainant neither initiated legal proceedings nor informed her family about the incident for seven months.
While refraining from giving a final ruling on the DNA evidence, the Supreme Court said the authenticity of DNA testing would be determined in another case. The court observed that DNA samples were collected one and a half years after the incident, whereas medical research journals indicate that accurate results can be obtained within two weeks.
The apex court held that the statements of the complainant and medical evidence established that sexual intercourse had taken place, but the available evidence did not prove that it was forced.
Justice Salahuddin Panhwar, in his dissenting note, maintained that it was a rape case and that the accused’s conviction should have been upheld. He observed that many cases of rape and harassment in society go unreported due to social pressure, stigma, and threats faced by victims.
The dissenting judge noted that the complainant was unmarried, underage, and an orphan, and that evidence of threats was on record. Therefore, the delay in lodging the FIR could not be used against her. Referring to past Supreme Court judgments in the Irfan Ali Shir, Mehboob Ahmed, and Zahid cases, Justice Panhwar said that delay in reporting rape cases should not be considered fatal to the prosecution.
He further observed that a victim’s failure to resist when the accused is armed is a natural reaction, and the absence of physical injury marks in a medical examination conducted several months later is not unusual.
