Our constitution obligates the preservation, protection and promoting of the rights of women. The right to dignity[1] mandates that every person should be entitled to live as a person, and nothing less. The right to dignity being the crown of fundamental rights which ensures human worth and humanness of a person, a far more fundamental right than others, and a right that is absolutely non-negotiable.[2] The act or fear of rape deprives women of the full enjoyment of the right to life. In addition, it violates their dignity, privacy, security of their person, and mental and physical integrity. It also restrains women from participation in the social life as a productive member of the society.
This article explores the standard of evidence required for securing a rape conviction in Pakistan. It delves into the jurisprudence developed by higher courts around rape, primarily focusing on Muhammad Imran Versus The State and Another case and the dissenting opinion of J. Ayesha A. Malik in the said case to ascertain the threshold for establishing guilt in cases of rape. Further, it evaluates that criteria/threshold against the foundational principlesof the criminal justice system.
No doubt, rape is a harrowing crime having adverse physical and psychological effects on both victims and the society. It is also severely underreported in Pakistan and has a very low conviction rate.[3] [4] But does the gruesome nature of rape warrant a lower standard of proof for conviction, which would flout the very bedrock principles of criminal justice system?
‘Muhammad Imran v. The State and another’ (PLD 2025 SC 662)
The case attracted considerable attention in Pakistan. The judgment by a two to one majority, which converted rape into fornication was thrashed by media, and the dissenting opinion of J. Ayesha A. Malik was viewed favourably, especially in feminist circles. Newspaper columns opined that “J. Ayesha had used her pen for a better tomorrow”.[5]
The brief facts of the case were that Mst. Mumtaz Bibi (the prosecutrix) was allegedly raped. The trial and High Court had found the accused guilty. He was sentenced to 10 years’ rigorous imprisonment for rape & 2 years’ rigorous imprisonment for house trespass. The said sentences were upheld by the High Court, and then the matter reached the Supreme Court of Pakistan.
The prosecutrix, Mumtaz Bibi, the sole eyewitness of the case had exonerated the accused, Muhammad Imran (hereinafter referred to as “The Petitioner”) from the charge, and stated that due to some misunderstanding she had named the petitioner in the case. She further added that now she was convinced that Mr. Imran (the accused, who is the petitioner before the Supreme Court) is innocent. A report stating the above was submitted to the District and Session judge, Bahawalnagar. However, this report had no effect whatsoever on the case because rape is a non-compoundable offence. Initially, the complainant had implicated the petitioner before the trial court.
The petitioner had changed his stance throughout the course of the proceedings from one judicial forum to another. At the Supreme Court, his counsel took the position that it was actually a case of fornication, and not rape.
Incriminating Factors: Assessment of facts
A DNA report by the Punjab Forensic Science Authority (PFSA) matched the DNA profile of M. Imran (the petitioner) with the semen detected on the genitals of Mst. Mumtaz Bibi, which positively proves that illicit intercourse did actually occur between the complainant and the petitioner. The DNA test report is considered as ‘the gold standard for establishing the identity of accused due to its scientific accuracy and conclusiveness, and is considered as a strong piece of corroborating evidence’.[6]
Now, absence of consent has to be proved for establishing rape. This is where the peculiarity arises.
As per the majority judgment there was a delay of two days in registering the FIR. The dissenting note provides that the FIR was promptly registered. This anomaly should not have occurred given the fact that FIR mentions the time and date of registration. Neither the majority judgement nor the dissenting opinion deliberate on this anomaly.
The majority opinion did clarify that a delay in lodging FIR in cases of rape is not always fatal. Reason being that it would be unfair to expect the registration of a prompt FIR given the cultural context of the country and the emotional, physical and psychological trauma and stigma involved for the victim and her family. However, the majority judgment held that in the particular context of the case the delay may be relevant, and that the sanctity of truth cannot be attached to the FIR.[7]
The judgment also deliberates upon the previous history of the complainant, particularly about the registration of an FIR against her in which the petitioner was also nominated. Both of them were arrested by the police under section (294) of the Pakistan Penal Code (PPC) which criminalizes obscene acts and songs in public. This suggests that the petitioner and the complainant had known each other. As per the established jurisprudence, this discussion is irrelevant in cases of rape, and is symptomatic of the moral purity lens and victim blaming attitudes through which rape cases are viewed in Pakistan. The underlying assumption behind introducing a women’s history in cases of rape is to somehow show that since the woman was involved in some indecent or immoral activities, therefore it is highly probable that she may have consented to the sexual intercourse. The assumption is violative of the right to dignity and equal protection of law, and must never be relied upon by any court.
Thus, registration of FIR under section (294) of PPC does not in any way or form prove that the complainant and the petitioner were sexually involved with each other, and may have had a consensual coital engagement, which the complainant later falsely characterized as rape.
The Supreme Court has held that “A woman, whatever her sexual character or reputation may be, is entitled to equal protection of law. No one has the license to invade her person or violate her privacy on the ground of her alleged immoral character.” The bench further pronounced that, “Even if the victim of rape is accustomed to sexual intercourse, it is not determinative in a rape case; the real fact-in-issue is whether or not the accused committed rape on her. If the victim had lost her virginity earlier, it does not give to anyone the right to rape her.”[8]
The implicit reliance of the majority judgment on the previous FIR for obscene acts, without expressly concluding that she (the complainant) possessed bad or immoral character is still antithetical to the established jurisprudence. Furthermore, the judgment should have also explicitly stated that divorce of the complainant prior to the alleged rape incident had no bearing on the case.
These mistakes in the judgment attracted valid criticism.
The facts further state that the complainant alleged that she was forcibly dragged by the petitioner into a room, and her clothes were forcibly removed. No marks or evidence of dragging have been found in the site plan for the place of occurrence, and similarly there were no bruises, contusions or any kind of marks on the body of the victim which suggested that she had been forced and dragged into a room. Furthermore, there were no pieces of torn clothes which corroborated the allegation that the clothes of the victim were forcibly removed.
The petitioner was unarmed at the time of occurrence of alleged rape. Despite which no physical resistance was offered by the prosecutrix. Since the petitioner had no weapon or was not even armed with a knife, stick or anything else, then any female who was not a consenting party would have offered strong resistance. But, in the present case, no such resistance was offered. There were no marks of violence or resistance on the body of the complainant, at the time of her medical examination as confirmed by the medical report. This is one of the principal arguments in the majority judgment.
In light of the above-mentioned facts the majority concluded that it was a case of fornication (zina with consent) and not rape. Consent was assumed on behalf of the complainant. Therape sentence was quashed, and the petitioner was accordingly convicted for the crime of fornication under section (496-B) of PPC. Interestingly, the complainant was not penalized. The reason for that is a legal/procedural technicality; that she (the complainant) was not implicated in the FIR. Neither did the police mention her in the challan. Therefore, the court considered, that it was not appropriate to punish her without affording her an opportunity to defend herself.
In my opinion, the majority made the right decision for the wrong reasons.
Justice Ayesha Malik’s Dissent
J. Ayesha rebukes the argument of the majority opinion centered around the absence of resistance, and its probative value in rape cases. She holds that physical resistance is not a sine qua non for establishing rape, terming it as a stereotypical presumption that the victim must resist physically in a particular form to prove the offence of rape. All women cannot be expected to react similarly to trauma.[9] The dissent quotes expert psychiatrist to conclude that “reflexive reaction of threat or fear in a victim may automatically lead to fight, flight, or freeze responses.”[10] The responses triggered by distressful events vary subjectively from victim to victim.
Accordingly, the inference of consent based on lack of resistance offered by the complainant despite the fact that the petitioner was unarmed is frivolous. I completely agree with J. Ayesha A. Malik on this point. The UN Committee on the elimination of discrimination against women held that ‘stereotypical standards reinforce a typical myth that sexual assault must be resisted physically, which denies women the right to fair trial’.
Instead of arguing that the evidentiary standards for securing a rape conviction have not been satisfied, and therefore conviction cannot be sustained in light of the fundamental principles of criminal justice system. The majority opinion went on to assume how a woman should physically react when she is being raped. This is the biggest blunder in the majority opinion. It also highlights why rape must never be viewed from a masculinist lens.
J. Ayesha further enunciates upon the fallacy in the rape law, which assumes that a single, objective state of affairs exists in rape cases, deviation from which vitiates the case, and concludes that rape did not occur. In sum, absence of resistance marks, by itself, does not constitute consent.
The dissent also records the ocular evidence of two men who saw the petitioner fleeing from the house of complainant at the time of occurrence. It also takes into cognizance the prompt registration of FIR and medical examination while simultaneously acknowledging that a delay of a few days is immaterial in such cases, and does not adversely impact the case.
Further, J. Ayesha A. Malik relied on section 114A of the Indian Evidence Act, 1872.[11] The said law mandates that the courts shall presume that the woman did not consent, if she says so. However, this presumption of absence of consent applies in particular aggravated rape prosecutions under Section 376(2) of Indian Penal Code (IPC), where sexual intercourse is proved and the woman states in evidence that she did not consent, the court shall presume she did not consent. But its application is narrow, applying only to specified aggravated categories (custodial rape, gang rape, rape of a pregnant woman, etc.). Therefore, reliance on the said section by J. Ayesha A. Malik is misplaced because of the narrow set of circumstances in which section 114A applies. The case under discussion (Muhammad Imran v. The State and another) clearly does not fall in the statutory requirements stipulated in section 114A of the Indian Evidence Act and section 376(2) of IPC.
Furthermore, the Delhi High Court has observed that “the statutory presumption under Section 114A of the Evidence Act cannot be held to be a substitute for the requirement of the prosecution to prove its case beyond a reasonable doubt.” The judgment reaffirms the principle that when the facts are shrouded in doubt, the court shall acquit the accused.[12]
The Evidentiary Standard for Rape Conviction
The formula for establishing rape as per J. Ayesha A Malik’s dissent is as follows: Sexual Intercourse/activities (corroborated by medical evidence which matches the DNA) + word of the complainant alleging rape. That’s it. Nothing more is required to constitute rape. The Supreme Court has held in another case as well that the solitary statement of a victim suffices for conviction of rape if that statement is trustworthy, sufficient and reliable.[13] The same formula has been endorsed by the Supreme Court of India.[14]
This is a dangerous formula especially in light of the facts of Muhammad Imran case. Treating medico-legal reports as a freestanding proof of guilt threshold rather than one evidentiary factor among several is dangerous. In the case of Muhammad Imran, the primary evidence was sole testimony of prosecutrix and the forensic report proving sexual intercourse. These two factors alone do not prove guilt beyond the shadow of reasonable doubt. The case, when considered holistically contains doubts. When doubts persist, the accused must be acquitted. That is the overarching operative standard for securing guilt in the regime of criminal law.
Therefore, I cannot, in my good conscience and in view of the fundamental principles of criminal justice system, agree with the ultimate conclusion that J. Ayesha A Malik reached in her dissent. In light of the peculiar facts of the case, and from a legal point of view, rape is not established.
The facts such as delay in the FIR, absence of resistance marks on body of the complainant, no torn clothes, no evidence or marks on the site plan suggesting forcible dragging, and absence of ocular evidence do not establish innocence of the accused independently. Neither do they prove that fornication occurred. But they do cast doubts on the prosecution’s case. The benefit of which directly goes to the accused.
This lower standard for proving rape may produce a few good results by convicting actual rapists and securing justice. But on the other side, it creates another very significant problem. Which is, that any woman who has entered into a sexual relationship with a man can claim that she has been raped. And the courts would have to convict the accused given the newly devised formula which only requires medical proof of sexual intercourse and the testimony of prosecutrix which should be cogent, reliable and confidence inspiring.
This rule that treats the complainant’s allegation, coupled with proof of intercourse, as effectively determinative of absence of consent risks collapsing the distinction between proving sexual intercourse and proving non consensual sexual intercourse. The Supreme Court has itself warned against lowering the standard of proof required for guilt, and articulated the following in the context of a murder case, which is reproduced verbatim below:
“An accused person cannot be deprived of his constitutional right to be dealt with in accordance with law, merely because he is alleged to have committed a gruesome and heinous offence. The zeal to punish an offender even in derogation or violation of the law would blur the distinction between arbitrary decisions and lawful judgments. No doubt, duty of the courts is to administer justice; but this duty is to be performed in accordance with the law and not otherwise. The mandatory requirements of law cannot be ignored by labelling them as technicalities in pursuit of the subjective administration of justice. One guilty person should not be taken to task at the sacrifice of the very basis of a democratic and civilised society, i.e., the rule of law.”
The Supreme Court further pronounces the following which captures the essence of this article: “Tolerating acquittal of some guilty whose guilt is not proved under the law is the price which the society is to pay for the protection of their invaluable constitutional right to be treated in accordance with the law. Otherwise, every person will have to bear peril of being dealt with under the personal whims of the persons sitting in executive or judicial offices, which they in their own wisdom and subjective assessment consider good for the society.”[15]
Therefore, courts must reject stereotypical reasoning in rape adjudication without simultaneously lowering the prosecution’s burden of proving the constituent elements of rape beyond reasonable doubt.
Unique Nature of Rape Cases
Rape cases due to their peculiar nature and design are difficult to prove. It is a private crime and it is not always possible to provide ocular evidence other than that of the complainant. The rapists can with very little planning get away with rape. The Supreme Court of Pakistan has held that “Rape is a crime that is usually committed in private, and there is hardly any witness to provide direct evidence of having seen the commission of crime by the accused person.” The courts, therefore, may not always insist upon providing direct evidence for securing conviction if the testimony of the prosecutrix is confidence inspiring and trustworthy in the overall particular facts of the case and is backed by medical and forensic evidence.[16]
However, the absence of a legal requirement for corroboration is not equivalent to the absence of a requirement for proof beyond reasonable doubt. Medical evidence and a confidence inspiring testimony of the prosecutrix may suffice in one set of circumstances but not in the other. Thus, the formula should be applied subjectively to the particular facts of the case. It must not function as an objective legal standard for constituting rape.
Why would a girl lie?
It is a difficult question. The Supreme Court of Pakistan opined that an educated woman had no reason to falsely implicate the accused, and that too with such an accusation (i.e rape) that would tarnish her honour and dignity, and create some serious problems for the remainder of her life.[17] Why would a woman lie about something like rape which will destroy her social life, future relationships and social standing in the context of the Pakistani culture?
In the Kainat Soomro case, Kainat, a thirteen year old girl, was allegedly gang raped by four men. There is no reason as to why a thirteen year old girl will lie about being gang raped. She got ridiculed and faced character assassination, had to flee from her home town, encounter economic hardships, continuously protest, and face threats from the alleged perpetrators. She had to give up on her normal private life after she accused the four men of gang raping her.
The trial court, however, dismissed allegations of rape, and accepted that a lawful marriage had existed between Kainat and one of the alleged rapists.[18] All four accused spent nearly three years in prison pending trial before getting acquitted. Kainat was repeatedly termed as a girl of ‘indecent and loose character’ by the alleged perpetrators. Fast forward 2025, after more than a decade of legal proceedings, Kainat decided to stop pursuing the case.[19]
Do I have an answer to this fundamental and recurring question in rape cases, that why would a girl lie about being raped despite knowing the consequences of such accusation? The answer is simple: I don’t. But legally speaking, such questions may not be central to establishing or dismissing rape.
This also begs the question that how can one prove rape in courts? Given the broken criminal justice system where there is lack of access to quality legal counseling, non-cooperation and corruption in police, and a systemic lack of forensic evidence. Victims are often of meagre financial means, and generally belong to weak segments of the society.
Limitations of Law?
From a strict legal perspective a mere occurrence of something does not suffice. The same has to be proved. And that too beyond reasonable doubt.
Here I present my trade off theory. There exists a dilemma in the criminal justice system. It has to be either slightly tilted towards the accused or the complainant. The benefit of doubt has to be extended to one party. Either organically or by design, and in the interest of justice in the long run, the criminal justice system has clearly taken a position on the above. It is and has been visibly tilted towards the accused. Principles like “Presumption of Innocence (Innocent until proven guilty)”, “accused is the favourite child of the law”, “guilt beyond the shadow of reasonable doubt” etc. are firmly entrenched in the law, highlighting the conspicuous tilt of criminal justice system towards the accused.
Ideally, laws shouldn’t count on the goodwill or virtue of the complainant. They should provide objective legal standards, inclusive of special needs of each segment of society but based on the strict principles of law. Statistical prevalence cannot substitute for individualized proof.
In cases like rape, it is the judge, the laws, and the entire legal system that is on trial. Judges cannot rely on their individual subjective opinions or on mere probabilities. Even if they believe that rape has occurred, their judgment has to be based upon the evidence produced. Their job is to apply their legal mind to the facts and evidence presented before the court. This, prima facie, seems inhumane and extremely difficult. But a deeper legal and philosophical analysis reveals that such system is beneficial for the society in the long term.
Way Forward
Does the scheme of the law require a shift? Especially in light of disproportionately high number of cases of rape being reported? When should law submit before data/statistics? Law, as it is, does recognize the more vulnerable segments of society but does it need to take in the numerical numbers and statistics more seriously by providing it ascendancy over its core principles? Twenty first century, modern society may need to reinterpret and rethink the fundamental principles of justice that it decided centuries ago, especially for grotesque crimes like rape.
But for J. Ayesha A. Malik’s interpretation of the law to be upheld, the whole legal foundation has to be readjusted, and the foundational principles of criminal law have to be rewritten.
As the criminal law exists and functions today, there is little to no latitude for J. Ayesha A. Malik’s proposed evidentiary standard for proving rape to be legally tenable. She may or may not be right. But her legal discernment is inconsistent with the very principles upon which the Modern Criminal Justice System rests. Unfair, it may be, but at the moment we don’t have a better alternative. And, the incumbent legal framework does yield positive outcomes for the greater number of people in the long term.
The august Supreme Court has held that when there ‘remains reasonable doubt the benefit of that doubt is to be given to the accused person as of right, not as of concession.’ The court termed it as a rule of caution and prudence which is entrenched in our jurisprudence for safe administration of criminal justice.[20]
The aforesaid principle of criminal justice system is true under both common and Islamic law. In common law, it is based on the maxim, “It is better that ten guilty persons be acquitted rather than one innocent person be convicted”. While in Islamic criminal law, the Holy Prophet of Islam (peace be upon him) said: “Avert punishments [hudood] when there are doubts”;[21] and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader’s mistake in pardon is better than his mistake in punishment“.[22] The Supreme Court in another case has quoted saying of the Holy Prophet (peace be upon him): “Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”.[23]
Conclusion
The solution to underreporting and low conviction rates lies principally in improving investigation, forensic capacity, prosecutorial effectiveness, victim protection and evidentiary appreciation, rather than lowering the legal burden of proof. Co-education, grassroots feminist movements which trigger awakening of the feminist consciousness, rule of law, meritocracy, and effective implementation of the laws related to rape such as Anti Rape (investigation and Trial) Act, 2021 will also produce positive results.
Lowering the standard of proof for rape is symptom of a reactive mindset. It will solve one problem while simultaneously creating a whole barrage of new ones. Rejecting rape myths and requiring courts to take the complainant’s testimony seriously is compatible with the presumption of innocence and proof beyond reasonable doubt. The two principles are not mutually exclusive. The real judicial task is to eliminate impermissible stereotypes while still asking whether the admissible evidence proves absence of consent beyond reasonable doubt.
[1] The Constitution of the Islamic Republic of Pakistan, Art. 14
[2] Atif Zareef v. The State (PLD 2021 SC 550), para. 11
[3] European Union Agency for Asylum (EUAA), Pakistan: Country Focus (20 May 2026): reports that 70% of gender based violence incidents went unreported in 2024; 5,339 rape cases were reported, with a national rape conviction rate of 0.5%.
https://www.ecoi.net/en/file/local/2140372/2026_05_EUAA_COI_Report_Pakistan_Country_Focus.pdf
[4] National Commission for Human Rights Pakistan, Report on ICCPR 2024: reports that 11 rape cases were reported daily, representing only 41% of actual incidents; only 18% of reported cases proceeded to prosecution, with a conviction rate of 0.3%.
[5] Rida Hosain, ‘Supreme injustice’ Dawn (15 July 2024) https://www.dawn.com/news/1845887/supreme-injustice.
[6] Atif Zareef v. The State (PLD 2021 SC 550), para. 5
[7] Muhammad Imran v. The State and another (PLD 2025 SC 662), para. 6
[8] Atif Zareef v. The State (PLD 2021 SC 550), para. 12
[9] “The New York Times magazine did a story, speaking to rape victims about the ‘freezing’ response. Some victims said they wanted to yell and push and resist, but their body simply would not respond. Others blanked out or were too shocked to react, and went into a state of involuntary paralysis.”
Rida Hosain, ‘Supreme injustice’ Dawn (15 July 2024) https://www.dawn.com/news/1845887/supreme-injustice.
[10] Muhammad Imran v. The State and another (PLD 2025 SC 662), J. Ayesha A. Mailk’s Dissenting note, para. 8
[11] Muhammad Imran v. The State and another (PLD 2025 SC 662), J. Ayesha A. Mailk’s Dissenting note, para. 15
[12] Pradeep Kumar v. State NCT of Delhi (CRL.A. 665/2017), para. 16
Statutory Presumption U/S 114A Of Evidence Act Doesn’t Substitute Proof Beyond Reasonable Doubt: Delhi High Court Acquits Rape Accused
[13] Habibullah v. The State (2011 SCMR 1665); Shakeel v. The State (PLD 2010 SC 47); Muhammad Aslam v. The State (2023 SCMR 397), Muhammad Imran v. The State and another (PLD 2025 SC 662), J. Ayesha A. Malik, Dissenting Note, para. 7
[14] The State of Punjab v. Gurmit Singh (AIR 1996 SC 1393)
[15] Naveed Asghar and 2 others v. The State (PLD 2021 SC 600), para. 35
[16] Atif Zareef v. The State (PLD 2021 SC 550), para. 5
[17] Ibid., para. 4
[18] There were some photographs of a wedding like ceremony between kainat and one of the alleged rapists. The veracity of photographs was not challenged. However, kainat argued that she was drugged and therefore, did not remember how and when exactly those photographs were taken. This dented the prosecution case, and consequently established doubts, which were not cleared beyond the shadow of reasonable doubt.
[19] Habiba Nosheen and Hilke Schellmann (dirs), Outlawed in Pakistan (FRONTLINE, 2013)
https://youtu.be/nVizUPNlq1k?si=Jveu7lQV66w5iQ-I
https://www.pbs.org/wgbh/frontline/documentary/outlawed-in-pakistan/.
[20] Naveed Asghar and 2 others v. The State (PLD 2021 SC 600), para. 33
[21] Musnad Abi Huthayfa, Hadith No.4. Kitab ul Hadood, p. 32., relied upon by the Federal Shariat Court in Kazim Hussain v. State 2008 PCr.LJ 971
[22] Mishkatul Masabili (English Translation by Fazlul Karim) Vol. II, p. 544, relied upon by the Federal Shariat Court in State v. Tariq Mahmood 1987 PCr.LJ 2173 and Sunnan Tarimzi, Hadith No. 1344, Kitab ul Hadood
[23] PLD 2002 SC 1048
