A sharp dissent by Justice Salahuddin Panhwar of the Supreme Court has reignited debate over how rape cases are assessed, particularly when courts rely on delays in reporting and absence of injuries to reclassify offences.

In a five-page dissenting note, Justice Panhwar categorically held that rape cannot be converted into zina or consensual adultery. He rejected the accused’s appeal and said he did not agree with the majority decision that commuted the sentence.

The judge stressed that a seven-month delay in registering an FIR could not be used to question the character of the affected woman.

SC majority verdict explained

On December 20, the Supreme Court converted a rape conviction into a case of consensual adultery, reducing the accused’s sentence from 20 years’ imprisonment to five years’ rigorous imprisonment. The fine was also reduced from Rs500,000 to Rs10,000, with an additional two months’ imprisonment in case of non-payment.

The six-page detailed judgement was authored by Justice Malik Shahzad Khan and approved for reporting by the bench majority.

The majority held that evidence on record did not prove rape but established consensual sexual relations. The court noted the FIR was lodged nearly seven months after the alleged incident.

It further observed that the prosecution failed to explain how the accused knew the complainant would be present at the location at a specific time.

Medical, evidentiary gaps

According to the judgement, the complainant did not resist during the incident and no marks of violence or injuries were found in the medical report. The court also noted that the complainant’s clothes were neither produced as evidence nor shown to be torn.

Based on these factors, the bench set aside the conviction under Section 376 of the Pakistan Penal Code and instead convicted the accused under Section 496-B PPC for fornication.

The Supreme Court was hearing an appeal filed by Hassan Khan against a December 18, 2018 judgement of the Lahore High Court, which had dismissed his plea. The top court subsequently commuted the sentence earlier this month.

The majority verdict was delivered by Justices Malik Shahzad Khan and Justice Aqeel Ahmed Abbasi.

Dissent: Delay does not make rape cases doubtful

Justice Panhwar, the third member of the bench, dissented and voted to dismiss the petition by refusing leave to appeal. He observed that rape and sexual harassment cases often go unreported in society due to fear, pressure, and the risk of defamation.

“The victim often has to justify to her own family members about her character at the time when she reports such an incident,” the dissenting note stated.

The dissent emphasized that the affected woman was young and unmarried, her parents had passed away, and only her elder brother was present in her life. The record, Justice Panhwar noted, also showed that threats were made to the victim.

He said it was natural for a girl in such circumstances to remain silent and reluctant to disclose the incident even to her own brother.

Pregnancy, reporting delay

Justice Panhwar observed that the victim could not have reported the incident before she became aware of her pregnancy. He stressed that delay in rape cases, by itself, does not make the prosecution story suspicious.

Incidents of rape and sexual violence, he said, are generally not reported promptly due to fear, pressure, and social stigma.

Responding to the majority’s reliance on the absence of healed marks of violence, the dissent noted that the accused was carrying a weapon. “Any victim would be reluctant to resist such a perpetrator with a weapon in hand,” Justice Panhwar wrote.

He warned that a rape victim should not be penalized for an “ostensible delay” in reporting the crime.

Justice Panhwar concluded that kindness, encouragement, and understanding were essential to support victims who decide to come forward. Such an approach, he said, helps society purge itself of perpetrators of heinous offences.