In societies governed by law, courts are entrusted not merely with the resolution of disputes, but with the preservation of dignity, legality and justice, particularly for those who approach the judicial system in conditions of profound vulnerability.
Yet, judicial authority itself has become a site of harm for women. The recent spate of judicial overreach, as manifested in three decisions of Pakistan’s apex court, overturned rape convictions and effectively recast the complainants as perpetrators of moral transgression by framing the acts as consensual conduct. There is no doubt that sexual violence is widely acknowledged as among the most difficult offences to investigate and prosecute, given its private nature, evidentiary constraints and the persistent social stigma faced by complainants.
The draconian Hudood Ordinances were widely criticised for their severe and discriminatory impact on women’s rights, subjecting women to disproportionate and unjust punishments where allegations of rape failed to meet the law’s onerous evidentiary thresholds.
Two cases that starkly illustrate the oppressive application of the law: Zafran Bibi alleged that Akmal Khan had subjected her to non-consensual sexual activity. Despite her complaint and accompanying medical examination, which revealed a pregnancy inconsistent with the timing of the alleged assault, the courts acquitted Akmal Khan while convicting and sentencing her, effectively transforming the complainant into the accused and exemplifying the gendered application of the ordinance.
In another case, Safia Bibi, a 20-year-old woman reportedly blind due to acute myopia, was convicted on July 24, 1983 under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to three years’ rigorous imprisonment, fifteen lashes and a fine. Her co-accused, Maqsood Ahmad, was acquitted for lack of evidence, exposing a stark case of judicial violence in which a vulnerable, disabled woman was punished while the alleged male perpetrator escaped accountability.
It was precisely in response to these challenges that significant legislative reforms were introduced. Most notably through the Protection of Women (Criminal Laws Amendment) Act 2006, which sought to remove rape from the moralised framework of the Hudood laws, restoring it to the Pakistan Penal Code and also creating a procedurally distinct complaint mechanism for fornication, aimed at preventing the misapplication of law against women.
After four decades, the courts have begun replicating Hudood-era patterns of conviction, perpetuating injustice despite the progressive Anti-Rape Legislation 2021. The Supreme Court’s recent judgment in Hassan Khan v The State (Criminal Petition No 90-L of 2019) starkly demonstrates the persistence of gender-blind reasoning and systemic judicial insensitivity in cases of sexual violence. In this case, the majority of the court dismissed the rape charges brought by the complainant under Section 376 of the PPC and instead convicted the accused for fornication under Section 496-B of the PPC.
While the two-finger test had not been prohibited at the time of the offence, its reference at the appellate stage, despite its proscription by the Anti-Rape Law, thus effectively meant transforming her bodily integrity into a tool of judicial scrutiny. The reasoning discredited women’s testimony through moralised assessments of conduct, despite the law’s clear position that a complainant’s character or prior history is legally irrelevant to the trial. The sole mitigating feature of this judicial failure was the gender-sensitive dissent authored by Justice Panhwar, which emphasised that the absence of proof of rape does not constitute automatic consent.
A second case, Muhammad Imran v The State (PLD 2025 SC 662), incidentally authored by the same judge, reproduces the same pattern of misrecognition of the survivor’s lived experience. The Supreme Court controversially converted a rape into a conviction for consensual fornication. The majority reasoned that the absence of visible marks of resistance and certain procedural gaps indicated consent, despite a positive DNA test linking the accused to the complainant. It reinforced patterns of gendered victimisation by treating the complainant as morally suspect.
Justice Ayesha Malik’s dissent, however, robustly challenged this reasoning. She emphasised that rape is a violation of a woman’s right to life, dignity and privacy under the constitution and cannot be reduced to a question of physical marks or stereotypical expectations of resistance. The dissent criticised the majority for imputing consent to the complainant in the absence of evidence, noting that consent must be explicit and voluntary and cannot be assumed.
A third case, Asif Masih & Others v The State, 2025 SCMR 699: the Supreme Court acquitted the co-accused of abduction and set aside the rape conviction of Asif Masih, retaining only a conviction for zina with consent. The court’s reasoning reflected a lack of gender responsiveness, premising it on the survivor’s failure to resist or immediately report, which indicates consent; disregarding societal realities and trauma that shape delayed complaints.
Empirical analysis indicates that, while courts routinely extend the benefit of doubt to male accused persons, they impose evidentiary standards on complainants that are deeply inflected by gender bias. Judicial reasoning that overlooks these statutory protections recalls the pre-reform landscape under the Hudood Ordinances, where women reporting sexual violence face criminal liability instead of legal protection.
There is a recurring pattern of persistent misapplication of the law. Under Section 203C of the Code of Criminal Procedure, no court shall take cognizance of an offence under Section 496B (fornication) of the PPC except upon a complaint filed before a court of competent jurisdiction. In the three cases at issue, this mandatory procedural requirement was ignored. Persuasive high court jurisprudence confirms that Section 203C operates as a compulsory procedural safeguard; accordingly, a rape allegation cannot lawfully be recharacterised as a charge of fornication without adhering to the prescribed complaint mechanism.
In another recent judgment, Jameel Ahmad v The State (2025), the Lahore High Court quashed a woman’s FIR alleging rape by her husband after he had purportedly divorced her. The judgment focused extensively on the formal validity of the marriage and divorce, disregarding the woman’s claim of non-consent and the coercive circumstances of the alleged sexual act. By treating the marital bond as automatically precluding criminal liability, the court effectively denied recognition of marital rape, ignoring statutory definitions of consent.
The recent remarks of a Supreme Court Justice, falsely characterising Noor Muqaddam’s situation as a 'live-in' relationship despite evidence of her forcible confinement, reflect a judicial mindset that holds women responsible for their own victimisation. By mischaracterising the factual context and implicitly moralising the victim, the judgment diverts culpability from the alleged perpetrator to the woman, in violation of foundational principles of consent and personal liberty.
Cumulatively, this jurisprudential trend reflects a persistent judicial failure to respect women’s sexual autonomy and normalising impunity for perpetrators. Most importantly, these now operate as a binding authority in a common law jurisdiction. The judgments not only denied justice in the cases before the court but also entrenched a dangerous jurisprudential template for future rape adjudication.
It is time to sit back and take stock: such judicial reasoning reproduces gendered hierarchies; collapses evidentiary standards; and converts the complainant’s pursuit of justice into a source of legal punishment.
The writer is the executive director of the AGHS Legal Aid Cell.
