P L D 2026 Supreme Court 187 (PLP)

MALIK SHAHZAD AHMAD KHAN, J.

The petitioner was tried by the learned Additional Sessions Judge, Kallur Kot pursuant to a case registered vide FIR No. 293 dated 06.10.2015 under Section 376 P.P.C. at Police Station Jandan Wala, District Bhakkar. The learned Trial Court vide its judgment dated 20.07.2017 convicted the petitioner under Section 376 P.P.C. and sentenced him to suffer rigorous imprisonment for a period of 20 years. He was also directed to pay an amount of Rs.500,000/- as compensation to the victim Mst. Farhat Bibi or in default thereof to further undergo simple imprisonment for six months. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioner. The learned High Court dismissed the appeal filed by the petitioner and upheld the judgment of the Trial Court.

2. Arguments heard. Record perused.

3. As per contents of the FIR, Mst. Farhat Bibi, complainant, alleged that about 07 months prior to the registration of FIR at 05:30 AM (morning), she went out of her house towards a nearby forest to answer the call of nature. The petitioner was already hiding in the afore-mentioned forest, who forcibly captured the complainant and committed rape with her at pistol point, hence, the FIR of this case.

4. After hearing the learned counsel for the petitioner and the learned Law Officer at some length, we have noted that according to the DNA test, the petitioner cannot be excluded being the biological father of the child, who was born due to the act of the petitioner but the moot point for determination before this Court is that as to whether it is a case of rape punishable under Section 376 P.P.C. or it is a case of zina with consent (fornication) punishable under Section 496-B P.P.C.

5. It is noteworthy that the occurrence in this case took place 07 months prior to the registration of FIR. The complainant alleged that on the day of occurrence, at about 05:30 AM (morning), she went to the forest situated near her house to answer the call of nature where the petitioner was already hiding, who forcibly committed rape with her at pistol point. It is not understandable that as to how the petitioner knew that the complainant would come in the aforementioned forest on the day of occurrence at 05:30 AM. The prosecution case in this respect is completely silent. Moreover, no resistance was offered by the complainant at the time of occurrence. The medical officer did not note any healed mark of violence on the entire body of the alleged victim. Even the clothes of the alleged victim were not produced before the Police or before the learned Trial Court to show that the same were torn at the time of occurrence. It shows that the alleged victim did not offer any resistance. The prosecution evidence shows that the occurrence took place near the house of the complainant i.e. near a residential area but no hue and cry was raised by the complainant at the time of occurrence to attract the people of the area to save her. It is also noteworthy that after the occurrence, the alleged victim came back to her house where her brother and other family members were admittedly living but she remained mum for almost 07 months. The long silence of the complainant for a period of 07 months speaks volumes against her conduct, therefore, the story narrated by the complainant with the delay of 07 months regarding forcible rape cannot be relied upon blindly. It is true that a pistol was allegedly recovered on the pointing out of the petitioner but the said pistol was not used during the occurrence. The pistol was recovered from a residential house and no witness of the locality was associated during the recovery proceedings, which is violative of the provisions of Section 103 Cr.P.C., hence, the said recovery cannot be relied upon. Learned counsel for the petitioner has vehemently argued that the DNA test report of this case is not reliable. He submits that the occurrence in this case allegedly took place about 07 months prior to the registration of FIR and buccal swabs of the petitioner and the minor child were taken on 30.11.2015 and 22.12.2015, respectively, but according to the DNA test report, the said swabs were analyzed and examined in the Forensic Science Laboratory on 19.05.2017 i.e. after about 1 and years from the date of taking of the swabs of the petitioner and the minor child. He has referred to a research paper published by the International Journal of Pharmaceutical Sciences. The perusal of the said research paper shows that the buccal swabs disintegrates within a period of two weeks, therefore, a serious question has arisen regarding the authenticity of the afore-mentioned DNA test report. However, we would not like to comment upon the merits and demerits of the afore-mentioned arguments and authenticity of the DNA test report as the above-referred issue shall be decided in some other case. We are of the view that even otherwise, the allegation of sexual intercourse with the complainant has been proved through the evidence of the complainant, duly supported by the medical evidence of Dr. Ruqia Asim (PW-6). However, all the abovementioned facts show that it was not a case of forcible rape. As mentioned earlier, the evidence of the complainant to the extent of commission of illicit intercourse with her by the petitioner is established in this case. The evidence of the complainant to the said extent remained unshaken during cross-examination and the same is confidence inspiring. The prosecution case to the extent of allegation of sexual intercourse with the complainant has also been supported by the medical evidence brought on the record through Dr. Ruqia Asim (PW-6), who stated that vagina of the complainant admitted two fingers easily. We are, therefore, of the view that the prosecution has proved its case to the extent of offence of zina with consent (fornication) punishable under Section 496, P.P.C. against the petitioner beyond the shadow of any doubt. After examining the entire prosecution case, we have come to this irresistible conclusion that it is not a case of rape as envisaged under Section 376, P.P.C., rather it is a case of fornication i.e. zina with consent punishable under Section 496-B, P.P.C. We are aware of the fact that once we hold that it is a case of fornication punishable under Section 496-B P.P.C. then Mst. Farhat Bibi, complainant is also liable to be proceeded against and punished as an accused of the offence of illicit intercourse with consent but as she was not challaned by the Police and no charge of fornication under Section 496-B, P.P.C. was framed against her by the learned Trial Court, thus, she had no opportunity to defend herself, therefore, it will not be appropriate to punish her at this stage without providing her opportunity of defence. It is true that the petitioner was not charged under Section 496-B, P.P.C. but it is by now well settled that if the charge for major offence is framed against an accused but from the evidence it is established that a minor offence has been made out then the accused can be convicted and sentenced for the minor offence as envisaged under Section 238(2) Cr.P.C. We may refer here the case of Muhammad Sharif v. The State (2006 SCMR 1170) where the charge under Section 10(3) of the Zina (Enforcement of Hudood) Ordinance, 1979 was framed against the accused but from the evidence of said case it was established that it was a case of zina with consent punishable under Section 10(2) of the Ordinance ibid, therefore, the accused was accordingly convicted and sentenced under Section 10(2) of the Zina (Enforcement of Hudood) Ordinance, 1979 i.e. zina with consent. It is pertinent to mention here that the offence of zina with consent Section 10(2) of Zina (Enforcement of Hudood) Ordinance, 1979 has been substituted with the offence of fornication punishable under Section 496-B, P.P.C., pursuant to amendment brought under the Protection of Women (Criminal Laws Amendment) Act, 2006. Similarly, in the cases of Ijaz Ahmed v. The State (2010 SCMR 141), Amir Muhammad v. The State (2007 SCMR 452) and Muhammad Shabbir v. The State (1992 SCMR 2063), the accused of the said cases were convicted and sentenced for offence of zina with consent punishable under Section 10(2) of Zina (Enforcement of Hudood) Ordinance, 1979 instead of the offence of rape punishable under Section 10(3) of Zina (Enforcement of Hudood) Ordinance, 1979.

6. For what has been discussed above, by a majority of 2:1 (Justice Salahuddin Panhwar, dissenting), this petition is converted into an appeal and the same is partly allowed. The impugned judgment is modified to the extent that conviction and sentence of the petitioner/appellant under Section 376, P.P.C. is set aside and he is acquitted from the said charge and instead the petitioner/appellant is convicted under Section 496-B, P.P.C. and is sentenced to 05 years rigorous imprisonment with a fine of Rs.10,000/- or in default whereof to further undergo 02 months simple imprisonment.

7. Per Justice Salahuddin Panhwar, for reasons to be recorded later, this petition is dismissed and leave is refused. Sd/- Sd/- Sd/- I have appended my separate judgment, whereby leave is refused. SALAHUDDIN PANHWAR, J.

I have gone through the order authored by my learned brother, Mr. Justice Malik Shahzad Ahmad Khan, however, I humbly disagree with the views expressed by my brother in bench, therefore, I hereby choose to express my own views for dismissing this petition.

2. Briefly, the matter concerns a rape of a girl who is of approximately 24 years of age, resultantly a child was born as a result of such occurrence which is established through DNA report of Punjab Forensic Science Agency, that the accused and the complainant are biological parents of such new born child. The crime report of the said incident was lodged after a delay of approximately seven months. The view by my learned brother in para 5 of the main order is reproduced as under: "It is noteworthy that after the occurrence, the alleged victim came back to her house where her brother and other family members were admittedly living but she remained mum for almost 07 months. The long silence of the complainant for a period of 07 months speaks volumes against her conduct, therefore, the story narrated by the complainant with the delay of 07 months regarding forcible rape cannot be relied upon blindly." There is no cavil on the fact that cases of rape, as well as cases of sexual harassment go unreported in our society, the victims are fearful of the consequences of reporting, a victim of rape or sexual harassment often has to justify his own family members in regards to his own character at the time when he / she reports about the particular occurrence. In the case in hand, the victim is of young age, unmarried, her parents have passed away, she has an elder brother and record also shows evidence of threats forwarded to the victim, it clearly makes sense as to how reluctant a girl would be in these circumstances to share such an unfortunate occurrence with her own brother. It appeals to us as in common course of natural events1 that her reluctance to report would have continued till she would have known about her pregnancy. It was observed by this court that the delay in reporting sexual assault to the Police is therefore not very material as held in Irfan Case2 and that delay in such cases is not fatal to the case of prosecution keeping in mind the dilemma of our society, this court has held in Mehboob Ahmad Case3 that: "As to the apparent delay in lodging of the FIR, we cannot be unmindful of the prevailing taboos in our society. Even in modern day advanced societies, for and on account of the prevalent predilections, cases of rape go unreported. A victim of rape should not be penalized on account of ostensible delay in reporting what she has undergone. On the contrary, kindness, encouragement and understanding are the requirements to approbate a victim's difficult decision to purge the society of perpetrators of such heinous offences." Additionally it was observed by this court in Zahid Case4 that: "Delay in reporting the crime to the police in respect of an offence involving a person's honour and reputation and which society may view unsympathetically could prey on the minds of a victim and her family and deter them to go to the police"

3. As far as the contention is concerned that there were no marks of violence on body of victim and such shall favor the accused, I am of a different view, as the accused was carrying a weapon, and any victim would be reluctant to resist such a perpetrator with a weapon in hand, as observed in the Mehboob Ahmad Case referred above that a deadly weapon in hands of a perpetrator is factor for lack of marks of violence on body of victim due to the fear of harm. Even otherwise, the medical examination could have not effectively capture the physical resistance by victim after a time span of approximately seven months.

4. In regards to the DNA report of Punjab Forensic Science Agency, record shows that buccal swab standards of Complainant Farhat Bibi were taken on November 05, 2015, buccal swab standards of Hassan Khan were taken on November 30, 2015 and buccal swab standards of new born baby were taken on December 22, 2015, whereas the analysis was conducted on 19 April, 2017. As far as the views of my learned brother in para 5 of the main order which reads as under: "He has referred to a research paper published by International Journal of Pharmaceutical Sciences. The perusal of the said research paper shows that the buccal swabs disintegrates within a period of two weeks, therefore, a serious question has arisen regarding the authenticity of the afore-mentioned DNA test report." It has come to my notice that a common practice in PFSA in regards to DNA is that, when buccal swab standards are collected, the PFSA promptly extracts DNA from buccal swab standards and preserves it into its DNA library, such preserved DNA can be safely relied for purposes of testing for a very long period. Even otherwise, modern day science has evolved a lot and preservation methods such as drying the swabs are effective in preserving such evidence for a longer duration, as DNA is best preserved in an air-dried, water-free environment. Water can cause instability and breakage in strands that bind DNA, which would degrade the ability to properly test.5 It will be a fallacy to only focus on the preservation period of the buccal swab standards alone, to examine its authenticity, rather it is the DNA extracted from the Buccal swab standards which can stay for years. Therefore, a period of approximately 1.5 years after the collection of swabs does not seem as a period which can discredit the evidentiary value of such DNA in given circumstances.

5. There is no cavil of proposition that, if an act carries two punishments listed under two or more offences under penalizing statute (s), the lesser can be awarded in view of mitigating circumstances. However, this applies to the situation where the act squarely falls within both of the said offences and the scenario would completely change if the required ingredients of the offence to which it will be altered are not fulfilled. The standard of proof in criminal cases is that the prosecution shall establish the guilt beyond reasonable doubt, unlike the preponderance of evidence in civil matters

6. To alter the conviction under one provision to another will mandatorily require that the basic ingredients of the provision to which it will be altered must be fulfilled beyond reasonable doubt. The instant case in concerns two provisions of the Pakistan Penal Code (P.P.C.); Section 376 and Section 496-B, both offenses are two distinct offenses carrying two different punishments. It is pertinent to mention that both have separate ingredients required for the conviction under this provision. Section 496-B which deals with fornication means that both parties involved were involved in the act with an equal consent; full and free consent as the concerned text of 496-B, P.P.C. reads as: "A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another." It is distinct from Section 376, P.P.C., which means that this concerns with the act which is not consensual and such is against the will of the person who is the victim of such offense. This modification is not justified, unless the element of consent is established through independent and cogent evidence, and not merely on the basis of assumptions or surmises.

6. The petitioner was not initially charged with section 496-B of the Pakistan Penal Code and was charged under Section 376 of the Pakistan Penal Code, it would not be appropriate merely for the purposes of reducing the sentence to modify a conviction under section 376 of the Pakistan Penal Code to a conviction under Section 496-B of the Pakistan Penal Code which would be against the basic principles of law which states that to convict a person under a particular offense all the ingredients of that offense must be proved beyond reasonable doubt. Lastly another view which I humbly disagree is stated in Para 5 of the main order that: "After examining the entire prosecution case, we have come to this irresistible conclusion that it is not a case of rape as envisaged under Section 376 P.P.C., rather it is a case of fornication i.e. zina with consent punishable under Section 496-B, P.P.C. I am of the opinion that, it is not appropriate to modify the conviction under Section 376, P.P.C. while questioning the authenticity of DNA report and at the same time rely on same report for a conviction under Section, 496-B. If it appears to the court that such evidence furnished to prove a charge is not credible enough, such evidence cannot be relied to prove a different charge. The court cannot convict a person on the basis of preponderance of evidence or on mere assumptions that if one particular act is not proved, meaning thereby in cases where a victim fails to prove the offence of rape, it will not automatically establish the consent of the victim. It is for the very reason that this particular modification is sensitive matter, concerning dignity and honor, for which Quran has expressively stated that: "Indeed, We have dignified the children of Adam, carried them on land and sea, granted them good and lawful provisions, and privileged them far above many of Our creatures." (17:70) (Al-Isra).

7. Before departing with this dissenting note, I would appreciate the assistance rendered by Dr. Javed Iqbal, who is Professor of Biotechnology and Chair of Genomics and DNA Fingerprinting Research Group and Dean Faculty of Life Sciences, University of Central Punjab, on the DNA procedure.

8. Therefore, in the light of the above, the petition for leave to appeal is refused and the petition stands dismissed, the conviction of the petitioner is maintained. MH/H-9/SC Petition dismissed. 1 Article 129 of Qanun-e-Shahadat Order, 1984. 2 Irfan All Sher v. The State (PLD 2020 SC 295). 3 Mehboob Ahmad v. The State (1999 SCMR 1102). 4 Zahid and another v. The State (2020 SCMR590). 5 Guidelines for Evidence Collection, Preservation and Transportation-PFSA. 6 Sher Afzal v. The State (2025 SCMR 894).