In the Criminal Petition No. 90-L of 2019, Hassan Khan v. The State, the Supreme Court of Pakistan (SCP) modified the conviction and sentence of the accused under Section 376 (Rape) of the Pakistan Penal Code (PPC), 1860, and convicted him under Section 496-B PPC (Fornication).
Justice Salahuddin Panhwar dissented from the majority view and upheld the conviction, which conforms with international standards, specifically under the UN Economic and Social Council Resolution 2005/20: Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, and the UN General Assembly resolution 40/34: Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
Previously, the SCP modified the charge under Section 376 PPC to 496-B PPC in Muhammad Imran v. The State (PLD 2025 Supreme Court 662), but Justice Ayesha A. Malik dissented from the majority view.
The Sindh High Court in Najeeb Ahmed v. The State modified the conviction and sentences of the accused under Sections 376 and 506-B PPC, and set them aside and instead convicted him under Section 496-B PPC and sentenced him to the period already undergone.
It was also held that the victim 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 prosecuted nor charged for fornication under Section 496-B PPC by the learned Trial Court, thus, she had no opportunity to defend herself; therefore, it would not be appropriate to punish her without providing her an opportunity of defence. This view has left the victim unprotected from being prosecuted for committing Zina or fornication.
The SCP in Asif Masih v. The State (2025 SCMR 699) converted the charge under Section 376 PPC to 496-B PPC, while admitting the illegitimate child’s birth from rape. In the Mazar-i-Quaid gang rape case, a Sessions Court acquitted all the accused, ruling that a DNA test is not acceptable in cases of Zina punishable under the Hudood laws.
Marital rape is still not recognised as an offence in Pakistan. The Lahore High Court, in Writ Petition No. 39 of 2025 (Jameel Ahmed v. The State), quashed the FIR against the accused husband and held that a husband cannot be charged under Section 376 PPC for marital rape unless a divorce has legally taken effect under the Muslim Family Laws Ordinance, 1961. The accused had divorced his wife on 14.10.2024, and then raped her at gunpoint on 17.10.2024, and thereafter revoked the divorce before the completion of the statutory period of 90 days on 23.12.2024.
This verdict fails to uphold international and domestic standards for prosecuting gender-based violence and will discourage rape victims from coming forward, fearing being accused of fornication or Zina
However, Ashraf Hussain Khowaja, Additional District and Session Judge Karachi (South), found the husband guilty of forcing his wife to have unnatural sex with him and convicted him under Section 377 PPC (unnatural offences). Similarly, Additional District and Sessions Judge (South) Abdul Zahoor Chandio rejected the bail application of the accused husband on charges of disappearance of evidence in a case pertaining to alleged marital rape. The accused husband allegedly tortured and sexually assaulted his 19-year-old wife, who later died after remaining in a coma for over two weeks. Therefore, the jurisprudence regarding marital rape is still being developed.
In Mst. Safia Bibi v. The State (PLD 1985 FSC 120), the court treated rape as adultery, and convicted the victim, Safia Bibi, a visually impaired girl whose illegitimate child died in the hospital, while acquitting her rapist for not producing four male Muslim witnesses who abstain from Kabir (major sins) under the Hudood Laws. The Federal Shariat Court then acquitted the victim for lack of evidence.
Prosecuting gender-based violence is challenging due to victim blaming, the absence of eye-witnesses, and the delay in reporting the incident. In the Criminal Petition No. 90-L of 2019, there are many questions pertaining to the law of evidence. First, the majority view focuses on a seven-month delay in the registration of the FIR, without considering the internal factors (coming from the victim and family), and external factors (from other people and the ongoing legal process).
In State & others v. Abdul Khaliq and others (PLD 2011 SC 554), Mukhtaran Bibi was gang-raped for honour revenge. The SCP acquitted the accused and concluded that an unmarried virgin woman’s testimony has precedence over the divorced non-virgin woman’s testimony, for the delay in lodging FIR, even though virginity is not required to testify under Hudood laws, nor the Qanun-e-Shahadat Order, 1984. The SCP also held that delaying the matter to avoid Badnami (dishonour) was not relevant because the incident was known to a large number of people and there was no point in keeping it a secret.
Secondly, the majority view accepts the two-fingers test, which, though previously acceptable, is now illegal under Section 13 of the Anti-Rape (Investigation and Trial) Act, 2021.
Thirdly, the majority view raised the issue of the victim not resisting, which is absurd, as admittedly the accused forcibly raped the victim at pistol point. While the said pistol was also recovered, it was discarded for not being used, ignoring the fact that if the pistol had been used, the victim would have died or sustained grievous injury.
Fourthly, the majority view discards the DNA evidence as the buccal swabs disintegrate within two weeks. Justice Salahuddin Panhwar, however, appreciated the expert evidence, which is often ignored in gender-based violence cases, and writes that a common practice in the Punjab Forensic Science Agency is to promptly extract DNA from the collected buccal swab standards and preserve it in its DNA library, which can be safely relied upon for testing for a very long period.
Lastly, the majority view insists upon not producing the victim’s torn clothes during the trial, which is absurd, as admittedly the victim did not resist because she was raped at pistol point.
The verdict also touches criminal procedural law, as Section 203-C of the Code of Criminal Procedure, 1898, makes prosecuting fornication a complaint case instead of a state case in which an FIR is lodged, and bars entertaining a complaint of fornication against any person who is a complainant or a victim in a rape case.
A similar bar is provided under Section 5A of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which provides that the complaint of Zina, or allegation of rape, shall not be converted into a complaint of fornication. It further provides that no complaint of fornication shall be converted into Zina, or any offence of a similar nature under any other law for the time being in force.
This verdict also pertains to penal laws, as in a rape case, there is a victim and an accused rapist, but in the case of fornication or Zina, there is no victim, and both sides are treated as accused. This and other similar verdicts, therefore, expose rape victims to the charge of fornication or Zina.
This verdict fails to uphold international and domestic standards for prosecuting gender-based violence and will discourage rape victims from coming forward, fearing being accused of fornication or Zina. The verdict also highlights the dire need for legislation which prohibits the courts from modifying and converting the charge and conviction of rape into fornication or Zina.