NEARLY two decades since its rollback, our law appears to be reverting to the flawed dispensation of justice under the Zina Ordinance, 1979, that took years of activism and lobbying to challenge and correct. The Hudood Ordinances, and in particular the Zina Ordinance, brought much notoriety to Pakistan’s legal system as enabling grave miscarriage of justice and serving as an instrument of oppression of women. The Zina Ordinance introduced the offences of zina (adultery and fornication) and zina-bil-jabr (removing the offence of rape from the Pakistan Penal Code [PPC], 1860), which if proved through confession or the eyewitness testimony of four adult male Muslim witnesses would be subject to the penalty of stoning to death. Women, particularly those who defied norms and familial authority, became the primary target of often false accusations of adultery. Following the law’s promulgation, each year over 1,500 cases of zina were registered against women. Given the non-bailable nature of the offence, women accused falsely of zina would languish in jails for years, till their convictions were mostly overturned by appellate courts. Under the Zina Ordinance, female victims of rape also found themselves in a pernicious legal bind. An allegation of rape, unsupported by the testimony of four male eyewitnesses, would be treated under the law as an admission of illicit intercourse, and therefore of the commission of zina. The pregnancy of a rape victim, in the absence of requisite proof, would also be tantamount to an admission of illicit sex. A rape victim who knocked on the doors of justice would, in such circumstances, be treated as a criminal and find herself behind bars. The repeal of the Zina Ordinance became a rallying cry for the feminist movement in Pakistan, as women’s collectives and NGOs campaigned against the law through the 1980s and 1990s. It took years of campaigning before the National Assembly passed the Protection of Women (Criminal Law Amendment) Act, 2006, with a view to correct — at least in part — the injustices meted out under the provisions of the Zina Ordinance. The statement of objects and purposes of the 2006 Act admitted that “[t]he Zina Ordinance has been abused to prosecute women, to settle vendettas and to deny basic human rights and fundamental freedoms”. The 2006 Act re-legislated rape into the PPC, undoing the evidential requirement of (male) eyewitness testimony to prove the offence. While retaining the offence of zina in the Zina Ordinance, the 2006 Act introduced a separate offence of fornication in Section 496B, PPC, subject to a penalty of five years’ imprisonment and fine. Recent judicial decisions appear to be resurrecting the relics of an oppressive law. In order to stem the menace of false complaints, the 2006 Act introduced Sections 203A and 203C to the Code of Criminal Procedure, 1898, to mandate that complaints of zina or fornication may only be registered before a court. Most importantly, the 2006 Act amended the Zina Ordinance to specifically provide, in Section 5A, that under no circumstances could a complaint of rape be converted into a complaint of fornication under Section 496B, PPC. With the horrors orchestrated under the Zina Ordinance not yet forgotten, and the feminist struggle against the law still fresh in our memories, we now find ourselves confronted with recent judicial decisions that appear to be resurrecting the relics of this oppressive law. Last year, the Supreme Court of Pakistan, while hearing an appeal against the conviction of rape in ‘Muhammad Imran vs the State’, set aside the judgements of the lower courts on grounds of lack of evidence of absence of consent, and instead, convicted the accused of fornication, “zina with consent”, under section 496B, PPC — an offence that was neither pleaded by the victim nor charged against the accused. As pointed out in the dissenting note to this judgement, the distinction between rape and fornication rests on the presence of consent, defined in the PPC as an “unequivocal voluntary agreement, gestures of any form of verbal or nonverbal communication, and communicates willingness to participate in the specific sexual act”. Where evidence is insufficient to convince a court of law regarding the absence of consent to sexual intercourse (or other sexual acts), can the court reasonably presume — based on the absence of marks of violence or raising of a hue and cry — the existence of unequivocal and meaningful consent to convert an act of grave violence to one of consensual sex? Surely, convictions or reversal thereof cannot be based on mere presumptions of existence or absence of fundamental ingredients of an offence. Yet in ‘Hassan Khan vs the State’ — the judgement was released earlier this month — the Sup­reme Court converted a rape conviction to one of fornication, once again grounding its decision on presumptions regarding the existence of the complainant’s consent to sex, after her evidence failed to convince the judges. Interestingly, the court relied on jurisprudence developed under the Zina Ordinance, to justify such conversion. Given the clear prohibition in the 2006 Act, this court-led rape-to-fornication conversion is unsustainable. It sidesteps the procedural protections under the 2006 Act for registration of a complaint of fornication, allowing the court to itself step into the shoes of the complainant/ victim. As admitted by the Supreme Court in both judgements, such conversion creates the possibility that the “complainant … [may] also [be] liable to be proceeded against and punished as an accused of the offence of illicit intercourse with consent”. Not only is the complainant left hanging in the lurch of a possible fornication conviction, she is also stamped with a judicially approved label of an adulteress. These judgements appear to be turning back the clock on years of hard-won progress, and contradict the very objectives and aims of the remedial 2006 Act, providing room for revival of the injustices that ensued under the Zina Ordinance. The writer is a lawyer. Published in Dawn, December 20th, 2025