The Sindh High Court on Monday ruled that all such cases in which the consent to sex is obtained from a woman through manipulation such as promising her marriage will be defined as rape with her.
Dismissing the appeal of a convict in a rape case, a high court division bench, headed by Justice Mohammad Iqbal Kalhoro, however reminded that consent in sexual matters is a result of manipulation will have to be proved by the prosecution. It said a mere bald statement of the alleged victim will not suffice unless it is borne out by supporting evidence, circumstantial or otherwise.
Appellant Abdullah was sentenced to 10 years in prison for committing rape and sodomizing a girl by confining her at a house in the Chakirawa area on a false promise of marriage on July 22, 2023.
According to the prosecution, the appellant had formed a friendship with the girl, residing in Dera Ghazi Khan, and later called her to come to Karachi for marrying him. The prosecution alleged that the appellant kept the girl at a house in the Chakirawa area for 12 days and raped her.
The appellant’s counsel submitted that this is a case of fornication at the most and the conviction under sections 377 and 376 the PPC is not maintainable. He submitted that the complainant has given a different story in the FIR to the one disclosed by her in her 164 CrPC statement; besides, medical evidence proved that there was no mark of violence on the person of complainant, and since the case at the best is of consent, the sentence of the appellant be reduced accordingly.
The deputy prosecutor general supported the impugned judgment, citing direct evidence of the victim supported by medical evidence and a DNA report.
The high court, after hearing the arguments of the counsel, observed that in the present case, the victim from the very inception, in the FIR, has been insisting on the appellant’s proposal for marriage with her which, according to her, she had conveyed to her relatives but her mother did not agree.
The court observed that the appellant still kept contract with her and she then on his assurance of marriage travelled to Karachi and started residing with him in a house.
The SHC further observed that the victim asked the appellant to marry her and arrange household articles and he promised her to do that in due course, and under that impression, not only he raped her but used her anally for 12 days continuously.
It said the victim was alone in the house, and as per evidence, the appellant would keep her there under a lock and this fact alone which is not rebutted constitutes enough circumstance establishing a forced act.
The court observed that the question arises why the appellant would keep the complainant locked if she herself was a willing party to his nefarious designs and why a girl for 12 days would stay under that condition quietly if it was not for a looming marriage with the said person.
The high court observed that this scenario indicates that the act was done by either force or through manipulation, and both are different forms of rape.
The bench observed consent in sexual matters would imply that there is no element of consideration between the parties, the act is done out of free choice and is not lumbered by any condition. It said that if a girl willingly enters into sexual relations with a man, it means she has no consideration in mind but if she does so with a consideration such as promise of marriage, she would react fiercely and freak out when the man refuses to fulfil his obligation.
The court also observed that the reaction of the complainant at the time when she was informed of refusal of marriage by the appellant – the only consideration in this case -- is self-explanatory and leans heavily in favour of her claim that the appellant had used her sexually under the promise of marriage.
It further stated that this case is not confined to allegations of rape with the victim but using her anally by force that is not only established from oral evidence of the girl but by the findings of a female medico-legal officer suggesting violent a sodomy act upon her.
The court observed that unnatural offence, that is, carnal intercourse is a different species of offence than rape and is defined in section 377 of the PPC. It said that in the cases of rape, the plea of consent may be available to an accused to take in certain circumstances, but in the cases of carnal intercourse, he cannot stress on such a plea and say that he did it with consent of the victim. Intercourse against the order of nature either with man, woman or animal is an independent offence, and is free of any contingency exposing consent of the victim or otherwise.
The SHC also observed that even if it is proved to have been done with consensus of the victim, it will still be held an offence and accordingly punished. It said that the appellant is not only accused of rape but of committing carnal intercourse with the complainant forcibly and both the counts have been proved by the prosecution against him beyond a reasonable doubt.
The court observed that it sees no reason to upset the findings of the trial court, recorded after a thorough appraisal of evidence, and to acquit the appellant. The court dismissed the appeal and maintained the conviction and sentence of the appellant awarded by the trial court.
