Summary: in/and Criminal Petition No. 725 of 2023. (Against the judgment dated 17.05.2023 of the Lahore High Court, Bahawalpur Bench in Criminal Appeal No.452 of 2019). Criminal Miscellaneous Application No. 374 of 2024 in/and Criminal Petition No. 725 of 2023, decided on 26th June, 2024 Per Malik Shahzad Ahmad Khan, J.; Jamal Khan Mandokhail, J. agreeing; Ayesha A. Malik, J. dissenting. (a) Penal Code (XLV of 1860)--- ----Ss. 376, 449 & 496-B---Rape, trespassing and fornication---Re-appraisal of evidence---Converting of offence---Absence of resistance marks---Accused was convicted by Trial Court for commission of rape with complainant and was sentenced to imprisonment of ten years---High Court maintained conviction and sentence awarded by Trial Court---Validity---Accused was empty handed at the time of occurrence- --Female who was not a consenting party would offer very strong resistance in a case of attempt to commit rape with her by a male---No mark of violence was noted on the entire body of complainant by Medical Officer at the time of her medical examination---Allegation of forcibly removing clothes (shalwar) of complainant was not corroborated with recovery of any torn clothes of complainant, who was a consenting party---Ingredients of offence of rape punishable under section 376, P.P.C. were not attracted, rather it was a case of fornication (zina with consent) punishable under section 496-B, P.P.C.---On determining it to be a case of fornication punishable under section 496-B, P.P.C., the complainant was also liable to be proceeded against and punished as accused of the offence of illicit intercourse with consent but she was not challaned by police and no charge of fornication under section 496-B,P.P.C. was framed against her by Trial Court, therefore, she had no opportunity to defend herself---Supreme Court did not find it appropriate to punish the complainant without providing her opportunity of defence---Supreme Court set aside conviction and sentence awarded to accused under section 376, P.P.C. and convicted him under section 496-B, P.P.C., sentencing him to imprisonment for five years---Appeal was allowed accordingly. [Majority View] Per Ayesha A. Malik, J dissenting (b) Penal Code (XLV of 1860)--- ----Ss. 376, 449 & 496-B---Constitution of Pakistan, Arts. 9 & 14---Rape, trespassing and fornication---Re-appraisal of evidence---Right to life, dignity and privacy---Converting of offence---Absence of resistance marks---Accused was convicted by Trial Court for commission of rape with complainant and was sentenced to imprisonment of ten years---High Court maintained conviction and sentence awarded by Trial Court---Validity---Constitution specifically deals with preserving, protecting and promoting rights of women, which are clearly violated in gender-based violence cases---Provision of Article 9 of the Constitution protects right to life and Article 14 of the Constitution grants inviolable right to dignity as well as the right to privacy---In cases of rape, there is a gross violation of right to life, dignity and privacy---State is responsible for ensuring that essential and required steps are 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---Gender stereotyping should not undermine rule of law---Act of rape has serious consequences as it deprives a woman of her right to life and her right to dignity and privacy which includes the right to mental and physical integrity---Every woman is entitled to respect for her life, her integrity and security of her person---No woman should be stigmatized simply because she has availed her right to access to justice and reported a heinous crime against her person and body---Accused in his statement under section 342, Cr.P.C. denied prosecution's case and had specifically taken the plea that complainant wanted to marry him and on his refusal, she managed to register a fake case against him---Accused neither appeared as his own witness under section 340(2), Cr.P.C. nor produced any evidence in his defense---There was no consensual intercourse between accused and complainant---Accused did not specifically raise the defense that he was involved with her and had consensual intercourse---Offense under section 496-B, P.P.C. was not made out---Supreme Court declined to interfere in conviction and sentence awarded to accused by two Court below---Appeal was dismissed. [Minority View] Ali Haider v. Jameel Hussain PLD 2021 SC 362; Salman Akram Raja v. Government of Punjab 2013 SCMR 203;Megan Alderden et al., Prosecutor's Perspectives on Biological Evidence and Injury Evidence in Sexual Assault Cases, 31 JOURNAL OF INTERPERSONAL VIOLENCE 7-8 (2021). < >; Habibullah v. The State 2011 SCMR 1665; Shakeel v. The State PLD 2010 SC 47; Muhammad Aslam v. The State 2023 SCMR 397; The State of Punjab v. Gurmit Singh AIR 1996 SC 1393; Atif Zareef v. the State PLD 2021 SC 550; Zahid v. The State 2020 SCMR 590; Hamid Khan v. The State 1981 SCMR 448 and Muhammad Ashraf v. The State 1997 PCr.LJ 1351 rel. (c) Penal Code (XLV of 1860)--- ----S. 496-B---Constitution of Pakistan, Arts. 9 & 14---Fornication---Pre-conditions---Consent---Proof---Right to life, dignity and privacy---Essential ingredient of fornication is establishment by way of evidence of the fact that it was a willful intercourse between the parties---It is essential that for the purposes of fornication consent be established---Consent means an unequivocal voluntary agreement with the woman by words, gestures or any form of verbal or non-verbal communication, which communicates her willingness to participate in the sexual act---Consent goes to the very root of 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 dignity and right to privacy of a woman---Without any evidence on the fact of consent or willingness, offence of fornication cannot be made out---Consent has to be established and it cannot be assumed. Agha Nayyar Latif Awan, Advocate Supreme Court for Applicant/Petitioner. Irfan Zia, Addl. P.G. Punjab for the State. Date of hearing: 26th June, 2024.

Summary: Summary pending

Summary: Summary pending

Summary: Summary pending

Summary: Acquittal granted----(a) Criminal Law—Murder Case (S. 302, P.P.C.)—Acquittal Due to Lack of Evidence:----Conviction under S. 302(b), P.P.C.—Reversal due to insufficient evidence and misappreciation of factsThe appellant was convicted under Section 302(b), P.P.C. and sentenced to life imprisonment as Tazir, along with Rs. 100,000/- compensation to the legal heirs of the deceased, or in default, to suffer three months’ simple imprisonment. He was also convicted under Sections 458, 147, and 148, P.P.C. The High Court overturned the conviction, ruling that the prosecution failed to establish the appellant’s guilt beyond a reasonable doubt, particularly in proving a common intention to commit murder.----Cited Law:• Pakistan Penal Code, 1860 (P.P.C.), S. 302(b) (Punishment for murder)• Pakistan Penal Code, 1860 (P.P.C.), S. 147 (Punishment for rioting)• Pakistan Penal Code, 1860 (P.P.C.), S. 148 (Rioting with a deadly weapon)• Pakistan Penal Code, 1860 (P.P.C.), S. 458 (House trespass or lurking house-trespass by night)(b) Acquittal of Co-Accused in the First Trial—Same Evidence Used Against Appellant:----Conviction of appellant unjustified when co-accused were acquitted on identical evidenceThe appellant was an absconder at the time of the first trial, during which his co-accused Para Din and Pai Din were acquitted, while Gul Muhammad was convicted. The roles attributed to the appellant and the acquitted co-accused were identical, as they were all present at the scene but unarmed and did not participate in the murder. The High Court held that if the same evidence was disbelieved in favor of the co-accused, it could not be relied upon to convict the appellant.----Precedent Applied:• Tariq Pervaiz v. The State (1995 SCMR 1345)—If a set of evidence is disbelieved for some accused, it cannot be used to convict others facing the same trial.(c) Common Intention (S. 34, P.P.C.)—Not Established by Prosecution:----Mere presence at the crime scene does not constitute common intentionThe prosecution failed to establish any overt act or instigation by the appellant, which is necessary for invoking Section 34, P.P.C.. The trial court convicted the appellant based on the assumption that he "provoked and instigated" others against the deceased, but no direct evidence or corroborating testimony supported this claim. The High Court ruled that common intention must be inferred from proven facts, not mere conjecture.----Cited Law:• Pakistan Penal Code, 1860 (P.P.C.), S. 34 (Common intention)----Precedent Applied:• Muhammad Nawaz v. The State (2016 SCMR 267)—Vicarious liability under S. 34, P.P.C. cannot be imposed without clear evidence of a shared intention to commit the crime.(d) Defective Recording of Accused’s Statement Under S. 342, Cr.P.C:----Failure to put incriminating evidence to accused—Impact on convictionThe trial court relied on evidence that was never put to the appellant during his examination under Section 342, Cr.P.C., violating the principle that an accused must be given the opportunity to explain all circumstances against him. The High Court held that such an omission rendered the conviction legally unsustainable.----Cited Law:• Criminal Procedure Code, 1898 (Cr.P.C.), S. 342 (Examination of accused)----Precedent Applied:• Muhammad Shah v. The State (2010 SCMR 1009)—If any piece of evidence is not put to the accused under S. 342, Cr.P.C., it cannot be used for conviction.• Qaddan v. The State (2017 SCMR 148)—Failure to question the accused about incriminating circumstances violates fair trial rights.(e) Failure of Prosecution to Prove Guilt Beyond Reasonable Doubt:----Prosecution evidence relied on conjectures rather than conclusive proofThe motive presented by the prosecution (deceased’s visits to his fiancée’s house) was inconsistent with witness testimonies, and no direct evidence linked the appellant to planning or committing the murder. The trial court convicted the appellant based on assumptions, not legal evidence, violating the fundamental principle that guilt must be proved beyond reasonable doubt.----Cited Law:• Qanun-e-Shahadat Order, 1984, Art. 129(g) (Adverse inference for failure to produce best evidence)----Precedent Applied:• Muhammad Asif v. The State (2017 SCMR 486)—Conviction cannot be based on "high probabilities" or mere suspicions.• Tariq Pervaiz v. The State (1995 SCMR 1345)—An accused must be acquitted if a single reasonable doubt exists regarding their guilt.(f) Final Judgment—Acquittal of Accused:----Conviction set aside—Benefit of doubt extended to appellantThe High Court allowed the appeal, set aside the conviction, and ordered the immediate release of the appellant, stating that the trial court’s findings were based on speculation rather than credible evidence.----Disposition:Appeal allowed—Conviction set aside—Accused acquitted—Immediate release ordered if not required in any other case.

Summary: Background: The appellant filed an intra-court appeal (ICA) under section 3 of the Law Reforms Ordinance, 1972, challenging the judgment dated December 22, 2022, passed by a learned Judge-in-Chamber. The appeal, along with other related appeals, concerns the constitutionality and application of section 8(2)(b) of the Finance Act, 2022. The appeals were heard by a Division Bench of the Lahore High Court, which reached different conclusions on certain issues, leading to the referral of specific questions for resolution. ----Issues: 1- Can the power under Order XLI, Rule 33 CPC be exercised without notice to the parties and without an opportunity of hearing, and whether the judgment of the learned Single Judge could be upset by exercising these powers? 2- Can the power under Order XLI, Rule 33 CPC be exercised unilaterally by one member of a Division Bench hearing the appeal? 3- If the answer to the above is in the affirmative, can the constitutionality of section 8(2)(b) of the Finance Act, 2022, be upheld by invoking Article 141 of the Constitution in ignorance of entry 50 of the Fourth Schedule to the Constitution? 4- Has the levy under section 8(2)(b) been imposed on a resident individual or a foreign asset? ----Holding/Reasoning/Outcome: --Order XLI, Rule 33 CPC Powers: The court held that the power under Order XLI, Rule 33 CPC, which allows an appellate court to pass any decree or make any order that ought to have been passed, can be exercised without prior notice to the parties if it is necessary to do complete justice. This power is broad and permits the appellate court to act even if the appeal is only against a part of the decree and can be exercised in favor of any of the parties, regardless of whether they filed an appeal or objection. --Unilateral Exercise of Powers: The court found that the power under Order XLI, Rule 33 CPC, can be exercised by one member of a Division Bench as long as the issue has been discussed and documented during the hearing. The defense set up by the respondents, including the arguments on the constitutionality of section 8(2)(b), was considered adequately. --Constitutionality of Section 8(2)(b): The court upheld the constitutionality of section 8(2)(b) of the Finance Act, 2022, by invoking Article 141 of the Constitution, which permits the Parliament to make laws having extra-territorial operation. The court rejected the argument that entry 50 of the Fourth Schedule limits this power, emphasizing that the body of the Constitution itself provides the necessary legislative authority. --Levy on Resident Individuals or Foreign Assets: The court clarified that the tax under section 8(2)(b) of the Finance Act, 2022, is imposed on resident individuals for their foreign assets exceeding PKR 100 million. The court found that the appellant's interpretation, which sought to exclude these assets from taxation, was incorrect. ----Citations/Precedents: Civil Procedure (Amendment) Act, 1922 PLD 1965 Supreme Court 15 Ranjana Prakash and Ors Versus The Divisional Manager And Anr, 2012 AIR SCW 848 Mst. Bibi Fatima Versus Muhammad Sarwar, 2022 SCMR 870 Province of Sindh through Chief Secretary and Others Versus M.Q.M. through Deputy Convener and Others, PLD 2014 SC 531 Messrs Sui Southern Gas Company Ltd. and Others Versus Federation of Pakistan and Others, 2018 SCMR 802 Government of Sindh through Secretary Health Department and Others Versus Dr. Nadeem Rizvi and Others, 2020 SCMR 1 Muslim Commercial Bank Limited Versus Muhammad Anwar Mandokhel and Others, 2024 SCMR 298 M/s Ellahi Cotton Mills LTD and Others Versus Federation of Pakistan through Secretary M/o Finance, Islamabad and 06 Others, PLD 1997 Supreme Court 582 The court dismissed the intra-court appeal along with connected matters, upholding the constitutionality of the Finance Act, 2022, and rejecting the appellant's arguments. The case was referred back to the Division Bench for the announcement of the final decision.

Summary: Background: Faysal Bank Limited (FBL) filed a suit (No. 78/2012) before the Banking Court No.II, Karachi under the Financial Institutions (Recovery of Finances) Ordinance, 2001 (FIO, 2001) for recovery of finances extended to the appellants. The Banking Court granted unconditional leave and framed five issues, eventually passing a judgment on 06.09.2023 followed by a decree on 26.09.2023. ----Issues: 1- Whether the appeal against the judgment of the Banking Court is barred by time. 2- Whether the appeal should be filed against the judgment alone without waiting for the decree. 3- Whether the appeal filed against both the judgment and decree is within the limitation period. ----Holding/Reasoning/Outcome: The primary objection by the respondent's counsel was that the appeal is barred by time, as it was filed after the judgment and not immediately upon the issuance of the judgment. The respondent's counsel relied on the case of First Pakistan Security Limited, arguing that the appeal should have been filed within 30 days of the judgment. The court examined the Financial Institutions (Recovery of Finances) Ordinance, 2001, and the interpretation of Section 22(1) regarding the timing of filing an appeal. The court found that the scheme of the 2001 Ordinance requires the decree to be part of the appeal process in civil matters, and waiting for the decree does not render the appeal time-barred. The court, assisted by the amicus curiae, concluded that an appeal must be filed against both the judgment and the decree. The time consumed in obtaining the decree should be excluded from the limitation period, ensuring the appeal is within the permissible timeframe. On the merits of the case, the court addressed the issues framed by the Banking Court: The appellants failed to prove that they did not utilize the Term Finance Facility. The statement of accounts fulfilled the requirements of the Bankers’ Books Evidence Act, 1891. The appellants had admitted to availing of two financial facilities, and the partial denial was immaterial. The evidence supported that the appellants had availed and utilized the finance facilities as claimed by Faysal Bank. The appeal was found to be filed within the limitation period and was maintainable. However, on the merits, the appeal was dismissed. The court upheld the Banking Court's judgment and decree, confirming the recovery of finances extended to the appellants by Faysal Bank. ----Citations/Precedents: First Pakistan Security Limited v. Bank Alfalah Limited (2020 CLD 269) Directorate of Small Industries, Govt. of Baluchistan v. Civil Aviation Authority (1993 MLD 1836) Multiline Associates v. Ardeshir Cowasjee and others (1995 SCMR 362) Chaudhary Pervez Elahi v. Deputy Speaker, Provincial Assembly of Punjab, Lahore and others (PLD 2023 SC 539) Yousaf Garments v. Grindlays Bank (1988 CLC 1214) Bank of America v. Alam & Bros and 6 others (1984 CLC 3393) Sevak Jeranchod Bhogilal and others v. The Dakore Temple Committee and others (AIR 1925 Privy Council 155) H. H. S Feldman v. Province of East Bengal (PLD 1970 Karachi 295) Pakistan Television Corporation Limited v. Commissioner Inland Revenue (Legal), LTU Islamabad and others (2017 PTD 1372) Micro Innovations and Technologies (Pvt.) Ltd. v. Federation of Pakistan and 4 others (2023 PTD 742) Messrs Master Foam (Pvt.) Ltd. and 7 others v. Government of Pakistan through Secretary, Ministry of Finance and others (PLD 2005 SC 373) Cooperative Insurance Society of Pakistan Limited, Karachi and others v. State Life Insurance Corporation of Pakistan, Karachi and 12 others (1999 SCMR 2799)

Summary: Background: This case involves the utilization of Social Welfare Funds by Orient Petroleum Pty Limited (Respondent Company) in the vicinity of their operations. Issues arose regarding the non-functionality of ARSENIC Removal Units (Water Filtration Plants) and the alleged misuse of health clinics built for social welfare purposes. ----Issues: 1- Non-functionality of ARSENIC Removal Units. 2- Encroachment and misuse of health clinics constructed by the respondent company. 3- Proper utilization and oversight of Social Welfare Funds as per guidelines. ----Holding/Reasoning/Outcome: ---Non-functionality of ARSENIC Removal Units: The court found the explanation by the respondent company unsatisfactory and ordered an inspection by Mehran University of Engineering & Technology (MUET) Jamshoro. The cost of this survey will be borne by the respondent company. ---Encroachment and Misuse of Health Clinics: The Deputy Commissioner undertook to remove the encroachment from the health clinics and restore them to their original state. ---Utilization and Oversight of Social Welfare Funds: The court reviewed the Guidelines for the utilization of Social Welfare Funds dated 31.03.2021, which stipulate that the Social Welfare Committee should include notable members of the community but not necessarily Members of the National or Provincial Assembly. The court directed that the funds should be used for uplifting the designated area and should be managed by the Deputy Commissioner, with the exclusion of political influence. The court emphasized the need for the revised guidelines to exclude Members of National Assembly (MNA) and Members of Provincial Assembly (MPA) from being Chairpersons of the Social Welfare Committee to avoid political influence and ensure the sustainability of welfare projects.

Summary: Dissenting Note by Justice Ayesha A. Malik ---- Justice Ayesha A. Malik expressed her dissent from the majority opinion authored by Justice Malik Shahzad Ahmad Khan and concurred by Justice Jamal Khan Mandokhail. The majority opinion modified the conviction of Muhammad Imran from rape under Section 376 of the Pakistan Penal Code (PPC) to fornication under Section 496-B of the PPC and altered the associated sentences accordingly. Key Points of Dissent: ----Evidence and Credibility: The Complainant's testimony was consistent and corroborated by medical evidence, including a positive DNA test. The DNA evidence, considered the gold standard for establishing identity in rape cases, conclusively proved sexual intercourse between the Petitioner and the Complainant. The majority's reasoning that the lack of resistance marks indicates consent is flawed. Victims of sexual violence may not always show physical resistance due to various psychological and physiological responses. -----Legal Standards and Presumptions: The law does not require physical resistance as evidence of non-consent in rape cases. Different victims react differently to trauma, and their lack of resistance should not undermine their credibility. The assumption that absence of injury equates to consent perpetuates harmful stereotypes and denies justice to victims. ----Judicial Precedents and Jurisprudence: Justice Malik highlighted several precedents where the Supreme Court of Pakistan and other courts recognized the sufficiency of a victim's testimony and the significance of DNA evidence in rape cases. The jurisprudence rejects the necessity of corroborative evidence for a victim's testimony if it is trustworthy, consistent, and reliable. Impact on Victims and Gender Stereotyping: The dissent emphasizes the importance of not subjecting rape victims to higher burdens of proof based on misconceptions about their character or behavior. Gender-based violence should be viewed in the framework of protecting the victim's integrity, dignity, and right to a fair trial, rather than through stereotypes that undermine these rights. ----Constitutional and International Obligations: Pakistan's Constitution and international commitments, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), mandate the protection and promotion of women's rights. Gender stereotyping should not influence legal proceedings, as it violates the principles of equality and non-discrimination. -----Majority's Conclusion on Fornication: The majority's decision to convict the Petitioner for fornication under Section 496-B of the PPC without evidence of consent is problematic. Consent must be unequivocally established and cannot be assumed. The Petitioner did not raise a defense of consensual intercourse during the trial, further undermining the majority's conclusion. ----Conclusion: Justice Ayesha A. Malik concluded that the Complainant successfully established a case of rape against the Petitioner based on the evidence presented. The judgments of the trial court and the High Court should not be interfered with, as they correctly upheld the charge of rape. The dissenting opinion underscores the need to respect the victim's rights, adhere to established legal standards, and reject harmful stereotypes in the judicial process.

Summary: Conviction upheld ----Issues: 1)Whether the prosecution proved its case beyond a reasonable doubt. ---2)Whether the conviction and sentence of life imprisonment awarded to the appellant were justified. ---3)Whether the criminal revision for enhancement of the sentence to the death penalty had merit. ----Holding/Reasoning/Outcome: Prosecution Case: The prosecution alleged that on October 28, 2017, Abdullah, armed with a deadly weapon, fired at Haider Khan, resulting in his death on the spot. The motive was related to a family dispute over the appellant's divorce from the deceased's daughter. Trial and Evidence: The appellant was charged and tried, with the prosecution presenting eight witnesses. The complainant, Raheem Khan, and an eyewitness provided accounts of the incident. The investigation included collecting blood-stained earth and .30 bore empties from the scene, which were confirmed by a firearms expert to have been fired from one weapon. Defense and Absence of Contradiction: The appellant denied guilt but did not present evidence in his defense. The court found the prosecution witnesses credible, noting the absence of contradictions in their statements and the support from medical evidence aligning with the ocular account. Motive and Relationship: The court recognized the established relationship and motive due to the family dispute. The appellant's abscondance following the incident was considered supportive of the prosecution's case. Judicial Reasoning: The trial court's judgment was based on a thorough evaluation of the evidence, which was found to be free of irregularities or defects warranting interference. ----Citations/Precedents: Abdul Latif vs. Noor Taman and another (2021 SCMR 1428): Highlighted the reliability of related witnesses. Ghafar Ali vs. The State and another (2021 SCMR 354): Addressed prompt reporting of the incident. Muhammad Ijaz vs. The State (2023 SCMR 1375): Emphasized the credibility of related witnesses unless malice is shown. Imran Mehmood vs. The State and another (2023 SCMR 795): Discussed the rarity of false implication in cases involving single accused. ----Conclusion: Criminal Appeal: The court dismissed the criminal appeal, affirming the life imprisonment sentence. The prosecution's evidence was deemed credible, and the trial court's judgment was upheld. Criminal Revision: The court also dismissed the criminal revision for enhancing the sentence to the death penalty, citing the unclear motive and circumstances leading to the killing. The trial court's decision to award life imprisonment was considered justified. Outcome: Both the criminal appeal and the criminal revision were dismissed, and the trial court's judgment was upheld without any changes.