| Citation(s) |
|---|
| 2025 SLG 5316 2025 SLD 5316 = 2025 SCP 461 = 2026 PLD 187 = 2026 YLR 1764 |
CRIMINAL PETITION NO. 90-L OF 2019 (On appeal against the judgment dated 18.12.2018 of the Lahore High Court, Lahore in Cr. Appeal No. 71971/2017)
MR. JUSTICE MALIK SHAHZAD AHMAD KHAN MR. JUSTICE AQEEL AHMED ABBASI MR. JUSTICE SALAHUDDIN PANHWAR
Hassan Khan � Petitioner
VERSUS
The State �Respondent
Law: Pakistan Penal Code (PPC),1860
Section: 376,496-B
Law: Code of Criminal Procedure, 1898
Section: 382-B,103,238(2)
Summary
The Supreme Court of Pakistan, in a 2:1 majority decision, converted a petition against a rape conviction under Section 376 PPC into an appeal and partly allowed it. The petitioner, convicted by the trial court (upheld by the High Court) for allegedly raping Mst. Farhat Bibi at pistol point, was acquitted of rape due to lack of evidence of force—such as no resistance, no injuries, no torn clothes, no immediate outcry near a residential area, and a 7-month delay in FIR. DNA evidence confirmed paternity of the child born from the incident, proving sexual intercourse, but the court held it was consensual zina (fornication) under Section 496-B PPC. The petitioner was convicted and sentenced to 5 years RI and Rs.10,000 fine under Section 496-B PPC, invoking Section 238(2) Cr.P.C. to alter the charge from major to minor offense. The complainant was not prosecuted due to lack of prior charge or defense opportunity. Justice Salahuddin Panhwar dissented.
Core Points
- FIR alleged rape at pistol point in a forest near victim's home; victim silent for 7 months post-incident.
- No evidence of force: no resistance marks, no torn clothes, no outcry despite proximity to residence.
- Pistol recovery invalidated (no Section 103 Cr.P.C. witnesses).
- DNA confirmed petitioner as biological father, supporting intercourse but not rape.
- Complainant's testimony on intercourse credible, backed by medical evidence (easy finger admission in vagina).
- Court reclassified as consensual fornication (zina), not forcible rape.
- Applied Section 238(2) Cr.P.C. for conviction on minor offense despite rape charge.
- Victim not charged due to procedural fairness.
Relevant Laws and Sections
| Section | Description | Application in Case |
|---|---|---|
| 376 PPC | Rape (forcible sexual intercourse) | Original charge; conviction set aside due to lack of force evidence. |
| 496-B PPC | Fornication (zina with consent) | Substituted conviction; 5 years RI + Rs.10,000 fine imposed. Replaces old Section 10(2) Zina Ordinance post-2006 amendment. |
| 382-B Cr.P.C. | Probation of offenders | Benefit extended by trial court. |
| 103 Cr.P.C. | Witnessing recovery | Violated in pistol recovery; evidence discarded. |
| 238(2) Cr.P.C. | Conviction for minor offense on major charge | Enabled conviction under 496-B PPC despite no formal charge. |
ORDER