Rape, Zina and Fornication

RAPE, ZINA AND FORNICATION RAPE, ZINA AND FORNICATION (Latest view of the Supreme Court of Pakistan) By Syed Nasir Ali Shah Advocate High Court (Former District and Sessions Judge) The Indian Penal Code enacted in the year 1860, was adopted by us after independence. However, its nomenclature was changed from IPC (Indian Penal Code) to P.P.C. (Pakistan Penal Code). The offence of rape was in the Code since its enactment and its definition was simple i.e. sexual intercourse by a man with a woman without her consent or against her will. The situation remained unchanged till February, 1979 when the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was promulgated. The offence of rape was omitted from the P.P.C. and instead offences of Zina and Zina-bil-jabar were mentioned in the Ordinance ibid and different sentences were provided for the offences of Zina-liable to Hadd, Zina-liable to Tazir and Zina-bil-jabbar. This legal position continued till the enactment of "The Protection of Women (Criminal Laws Amendment) Act, 2006". This enactment inter alia brought in its wake major changes in the Ordinance 1979 ibid. Through the Act of 2006 the offence of rape was revived in the P.P.C., however, its definition remained almost the same as it was before 1979. This Act also created a new offence i.e "fornication" under section 496-B P.P.C. which deals with consensual sexual intercourse between a man and a woman. However, a separate mechanism was provided in the Code of Criminal Procedure (Cr.P.C) for the assumption of jurisdiction by the Court regarding the offences which are still intact in the Ordinance, 1979 ibid. At present legal position since 2006 (after the enactment of the Protection of Women) (Criminal Laws Amendment Act) is as under:- a) Offence of Zina as mentioned in the Ordinance 1979 ibid and fornication as mentioned in P.P.C. ceased to be cognizable by police and the court can assume jurisdiction only if a complaint is made before it under sections 203-A and 203-C (Cr.P.C), respectively. b) The definition of rape as (mentioned in section 375 P.P.C.) was drastically changed by Criminal Law (Amendment) Act, 2021 and many situations were provided wherein the offence of rape was made applicable. The most significant part of the definition is its explanation 3 whereby person son has been defined to mean a male, female or a transgender. More over the word "person" has been used both for the accused of rape and the victim. Reading of Clause (d) of Section 375 P.P.C. makes it clear that a woman or even a transgender can also be prosecuted for rape. c) For the offence of fornication (under section 496-B P.P.C.) which deals with consensual sexual intercourse there must be two accused (male and female) who shall be indicted, tried, convicted or acquitted, as the case may be, but together d) The offence of fornication is akin to the offence of criminal conspiracy (Section 120-A P.P.C.) which is always between two or more persons. A single person cannot be indicted, convicted or sentenced for the offence of criminal conspiracy. Similarly a single person/accused cannot be tried or held guilty for the offence of fornication. e) The offence of fornication is not cognizable by police and as such FIR for the said offence cannot be lodged or registered. The Court can only assume jurisdiction for the offence of fornication if a complaint is filed before it under section 203-C, Cr.P.C. The accused of the offence of fornication, under the law, are not required to seek and obtain bail under section 497/498 Cr.P.C. They are simply required to furnish bonds for their appearance under section 91 Cr.P.C. f) Under section 5-A of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, after amendments made in the years 2006 the allegation of zina or rape cannot at a later stage be converted into the offence of fornication (under section 496-B P.P.C.). Recently the Hounorable Supreme Court of Pakistan has decided three cases namely Muhammad Imran v. The State, Criminal Petition No. 725/2023, Asif Masih and 2 others v. The State (2025 SCMR 699) and Hassan Khan v. The State Criminal Petition No. 90-L of 2019. In all these cases the accused were indicted, convicted and sentenced for commission of rape ( section 376 P.P.C.). Their appeals against their convictions and sentences before the High Court failed. However, their petitions for leave to appeal were accepted by the Honourable Supreme Court of Pakistan to the extent that the offence of rape under section 376 P.P.C. was not made out. However, it was held by the Hounarable Supreme Court of Pakistan that offence of fornication under section 496-B P.P.C. was made out. Thus the accused were acquitted under section 376 P.P.C. (Commission of Rape) but were convicted and sentenced under section 496-B P.P.C. (fornication). The consideration which weighed with the Honourable Supreme Court in not convicting female accused under section 496-B P.P.C. was that they were not challaned by the police; no charge of fornication was framed against them and they had no opportunity to defend themselves. In such a backdrop following legal points to ponder emerge:- a) Can a male accused only be indicted, convicted and sentenced for the offence of fornication (Section 496-B P.P.C.) in view of the definition of this offence which is as under:- "A man and woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one and other" b) Can an accused be convicted and sentenced for the offence of fornication (under section 496-B P.P.C.) against whom no complaint as required under section 203-C Cr.P.C was filed, as court cannot assume jurisdiction without such a complaint. c) Can accused for the offence of fornication (under section 496-B P.P.C.) be challaned by the police when there is a specific bar under section 203-C Cr.P.C that police has no jurisdiction in the matter. d) Can an allegation of rape made in a case, be converted into an allegation of fornication when there is a clear bar on such conversion under section 5-A Offence of Zina (Enforcement of Hadood) Ordinance, 1979. It appears that these very important and relevant legal points have escaped the notice of the Honourable Supreme Court of Pakistan while rendering the aforesaid judgments perhaps no proper assistance was rendered by the respective learned counsel for the parties. The circumstances necessitate an authoritative judgment by the Honourable Supreme Court of Pakistan to make the legal position clear.