In a scathing dissenting note, Justice Ayesha Malik has disagreed with the
reasons and conclusions of the majority opinion in Muhammad Imran versus the State and Another, Criminal Petition No 725/2023.
The main judgement was delivered by Justice Malik Shahzad Ahmad Khan on June 26, 2024, that converted a rape charge into a fornication charge based on stereotypical beliefs about an ideal victim and their response to sexual violence, past record of victim and factors like a two-day delay in filing of the FIR, lack of resistance marks, etc., without taking into consideration the violation of fundamental rights and dignity of the victim, her testimony and DNA evidence that corroborates her charge; thereby exposing the victim to multiple levels of problems.
In her dissenting note, Honourable Mrs. Justice Ayesha A. Malik re-centred the victim’s perspective and gave reasons for her dissent, which was rooted in notions and principles of fundamental rights and upholding the rule of law. She warned against making assumptions of consent and reminded that consent must be established and cannot be imputed or assumed simply due to a lack of resistance marks.
In Para 8 of her note, she states:
“The offense of rape is made on the body of the victim and her response to this offensive act cannot be standardised as per expected responses. As per expert psychiatrists, the reflexive reaction of fear or threat in a victim may automatically lead to fight, flight or freeze responses. Especially in sexual violence, the victim may not be able to make decisions to protect themselves as they might freeze or get stuck in response to the traumatic experience. The use of force or intimidation, the act itself, its trauma and the response will vary from victim to victim and is, therefore, totally subjective. Hence, I totally disagree with the findings given in the opinion of the majority that, since the petitioner was unarmed, having no weapon at the time of occurrence, a female who is not a consenting party would offer very strong resistance in a case of rape, and consequently, there would be marks of resistance on her body. There is no uniform or predictable response of a victim in a case of rape, and at the same time, there is no standardised response of behaviour after the rape that would culminate into evidence against the victim.”
Furthermore, she reiterated:
“Gender-based violence is often viewed in the framework of morality, public decency and honour, rather than viewed as violence against women’s integrity. This is so notwithstanding the fact that the law on the subject of rape has evolved over the years where this Court has held that the best evidence in a rape case is a DNA test and that her previous character or reputation is irrelevant. In the same way, her sexual history has become irrelevant and most importantly, in cases of rape, this Court has repeatedly recognised that the statement of the victim is sufficient if it is confidence inspiring.”
The complainant’s affidavit, where she said she had no objection if the petitioner is acquitted from this case, was irrelevant given that the offence of rape was non-compoundable and that the state was responsible for ensuring that essential and required steps were taken to protect women from such crimes
On the issue of delays, she reminded that:
“Notwithstanding the clear set of facts in this case, with reference to delay, this Court has held that delay is of no consequence as such cases involve the victim and her family’s reputation and honour, hence, some delay in reporting a crime of sexual offense is immaterial. In the Hamid Khan case, a three-day delay in reporting the crime to the police was deemed as insignificant. Hence, there is no rule of thumb that a delay in reporting the crime suggests that victim has lied or registered a fake case.”
The dissent is also crucial as it dives deep into what consent is and states that:
“Consent goes to the very root of the right to dignity under Article 9 of the Constitution because in a case of rape where she states that there is no consent then to impute consent, that too without evidence of the same, undermines the dignity and the right to privacy of a woman.”
Consequently, without any evidence of the fact of consent or willingness, the offence of fornication cannot be made out because consent has to be established, and it cannot be assumed. The Federal Shariat Court in the Ashraf case (1997 P Cr. L J 1351) described the word ‘consent’ to be of the same mind; to agree to give assent; to yield to comply. The said judgment further stated that consent necessarily implies agreement as a free agent with the presence of the free mind and free will. Recently, the Indian Criminal Law (Amendment) Act, 2013 introduced Section 114-A in the Indian Evidence Act, 1872, which states where sexual intercourse is proved, and the woman did not consent to it, then the law mandates that the court shall presume that she did not consent.
Even so, Honourable Mrs Justice Ayesha A. Malik had the clarity to see that it was not the petitioner’s case that he was involved with the complainant, nor did he, by way of defence, raise the plea of consent or willingness, rather it was that she had lodged a fake case against him as she wanted to marry him therefore, the majority’s decision, turning rape into fornication meant the denial of due process and fair trial as well as imputation of consent, which cannot be assumed simply due to lack of marks of resistance and any past dealings, convictions or behaviour.
Justice Malik also reminded that the complainant’s affidavit, where she said she had no objection if the petitioner is acquitted from this case, was irrelevant given that the offence of rape was non-compoundable and that the state was responsible for ensuring that essential and required steps were taken to protect women from such crimes, and also to protect them from gender stereotyping which undermines a woman’s ability to enjoy her basic fundamental rights. Eloquently, she added, “It goes without saying that gender stereotyping should not undermine the rule of law.”
This dissenting note highlights what the gender perspective does in a case and why we need more of this on the bench; while the judgement sticks to gender stereotyping, the dissent calls out on doing so and instead upholds the rule of law.