There are moments when a legal system changes – not through amendment, legislation, or constitutional rupture, but through a single act of reasoning that quietly shifts what the law is willing to believe.
Such moments rarely announce themselves. They arrive disguised as caution, restraint or balance. The Supreme Court’s judgment in Hassan Khan v The State is one such moment. It does not merely decide how a case should end. It decides how criminal law is permitted to move from doubt to guilt, from silence to meaning, and from absence to conclusion.
Hassan Khan was convicted by the trial court for raping a young, unmarried woman and was sentenced to twenty years of rigorous imprisonment. The Lahore High Court affirmed both the conviction and the sentence. On appeal, a three-member bench of the Supreme Court heard his case. By a majority, the court set aside the rape conviction and substituted it with a conviction for fornication, reducing the sentence to five years. Justice Salahuddin Panhwar dissented and would have dismissed the appeal. The majority relied on two considerations. The complainant registered the FIR approximately seven months after the alleged incident, and the medical examination disclosed no healed marks of violence on her body. These facts are uncontested. What is contested is the kind of legal knowledge they are allowed to generate.
Criminal law does not operate through instinct or impression. It operates through rules that determine what counts as a legally relevant fact and what does not. In jurisprudential terms, criminal liability is rule constituted, not intuition constituted. An offence exists only when its constitutive elements are affirmatively proven. Rape and fornication are therefore not neighbouring offences separated by punishment. They are mutually exclusive legal categories separated by logic.
Rape exists only where sexual intercourse occurs without consent. Fornication exists only where sexual intercourse occurs with consent. Consent is not a mitigating factor. It is the element that determines which offence exists at all. Any judicial conversion from rape to fornication, therefore, requires an affirmative finding of consent at the time of the act. This is not a moral expectation but a structural requirement of criminal adjudication.
The majority judgment does not supply such a finding. It does not identify evidence of agreement, willingness or voluntary participation by the complainant. Instead, it permits two post-event phenomena to perform constitutive work. Delay in reporting and absence of bodily injury are treated not merely as credibility-related facts, but as facts capable of negating non-consent and affirming consent. This is the first and most consequential error. It collapses the distinction between credibility assessment and element proof.
Delay in reporting sexual violence has always belonged to the domain of credibility. Justice Salahuddin Panhwar’s dissent recognises this with doctrinal clarity. He notes that sexual offences in Pakistan frequently go unreported due to fear, threats, dependency and social stigma, particularly where the complainant is young and socially vulnerable. He further observes that the record reflected evidence of threats made to the complainant, rendering delayed disclosure legally intelligible rather than probative of consent. This reasoning applies settled legal understanding. Fear explains silence. Silence does not create agreement.
The second error arises from the majority’s reliance on the absence of healed marks of violence. Modern rape jurisprudence rejected the requirement of physical resistance because resistance measures capacity, not consent. A person may submit because resistance would escalate harm. A person may remain passive because survival requires calculation. None of this restores consent.
In Hassan Khan, the medical examination occurred months after the alleged assault. The absence of visible injury at that stage is legally neutral. Expecting forensic confirmation after such a lapse is not judicial caution. It is an evidentiary impossibility. Justice Salahuddin Panhwar observed that the accused was armed and that resistance under threat cannot be presumed. Threat vitiates the expectation of resistance. The absence of injury in such circumstances proves nothing. By treating bodily preservation as indicative of consent, the majority judgment reintroduces a doctrine the law has already rejected. It returns the body to the centre of proof and makes violation dependent on physical legibility, which is a regression to a discarded evidentiary imagination.
The most serious error, however, lies in what the court does after doubt is introduced. If the prosecution had failed to prove rape beyond reasonable doubt, the orthodox outcome would have been acquittal. The Supreme Court did not acquit Hassan Khan. It convicted him of a different offence. That step requires more than doubt. It requires proof of consent. The judgment supplies none. It substitutes uncertainty about non-consent for certainty of consent.
Criminal law does not permit courts to move from an unproven absence of consent to a proven presence of consent without an independent evidentiary foundation. Doubt weakens proof. It does not generate alternative guilt. Where proof fails, the accused is entitled to acquittal, not reclassification into an offence whose constitutive elements were never established.
Legal commentators and women’s rights advocates have also noted that fornication under Section 496-B occupies a distinct procedural position under criminal law, raising questions under Section 203(c) of the Code of Criminal Procedure regarding cognisance and initiation of proceedings. While the Supreme Court declined to proceed against the complainant on procedural grounds, the structural problem remains. Appellate courts correct convictions. They do not construct new offences absent proof of their elements.
Both the trial court and the Lahore High Court convicted Hassan Khan of rape. The Supreme Court did not identify the perversity of appreciation or the misdirection of law by those courts. It applied a different evaluative standard, one that treats delay and injury as dispositive rather than contextual. This is not a correction but a recalibration of the threshold of criminal proof.
At a deeper level, the judgment reflects a failure of legal reasoning itself. Criminal law, as a rule-based system, requires that liability be generated by the satisfaction of elements, not by intuitive inference from absence. When courts allow silence to do the work of consent, and doubt to do the work of proof, they abandon rule-governed adjudication in favour of impressionistic reasoning. That shift is not confined to rape law. It destabilises criminal liability across the board.
Justice Panhwar’s dissent preserves the integrity of criminal reasoning. It keeps consent where it belongs, as a constitutive element that must be proven. It keeps delay where it belongs, as context rather than conversion. It keeps the body where it belongs, as evidence rather than a test. That is why the dissent reads as orthodox – because it is.
The concern raised in Hassan Khan v The State is therefore neither political nor emotional but jurisprudential. It concerns whether criminal law remains a system of rules or becomes a system of impressions. Criminal law can survive error, but cannot survive incoherence. Consent must be shown. Where it is not shown, the law may acquit. What it cannot do is redefine. That is the legal moment this judgment represents.
The writer is the director of the Centre for Law, Justice & Policy (CLJP) at Denning Law School. He holds an LLM in Negotiation and Dispute Resolution from Washington University.
