Summary: (a) Criminal Procedure Code, 1898 (Cr.P.C.) – Section 411-A – Appeal against acquittal – Competency of appeal against enhancement of sentence The Supreme Court held that only a convicted person has the right to appeal before a Division Bench of the High Court against a conviction and sentence passed by a Single Bench in its original criminal jurisdiction under Section 411-A(1) Cr.P.C., subject to specified conditions. The Provincial Government has the right to appeal against an acquittal under Section 411-A(2) Cr.P.C. However, no provision in the Cr.P.C. grants the State or the complainant the right to seek enhancement of a sentence passed by a Single Bench of the High Court. Furthermore, the Division Bench of the High Court does not have revisional or inherent jurisdiction to enhance a sentence passed by a Single Bench. The appropriate remedy for the State to seek enhancement of a sentence is by filing a petition for leave before the Supreme Court under Article 185(3) of the Constitution. (b) Pakistan Penal Code, 1860 (PPC) – Section 328-A – Cruelty to a child – Essential ingredients The Court reaffirmed that the offence of "cruelty to a child" under Section 328-A PPC requires proof of three essential elements: A wilful act of commission (assault/ill-treatment) or omission (neglect/abandonment). Such an act resulted in actual physical or psychological harm to the child or had the potential to do so. The mens rea of the offender must be assessed based on objective societal standards in cases of acts of commission, whereas for acts of omission, subjective knowledge of the consequences is required. Applying these principles, the Court found that Maheen Zafar and Raja Khurram Ali Khan wilfully neglected, ill-treated, and abandoned the minor victim Tayyaba Bibi, causing her physical and psychological harm while she was under their care. (c) Pakistan Penal Code, 1860 (PPC) – Section 201 – Causing disappearance of evidence to screen offender To establish liability under Section 201 PPC, the prosecution must prove: The accused knew or had reason to believe that an offence had been committed. The accused caused evidence of the offence to disappear or provided false information regarding the offence. Such actions were done with the intention of shielding the actual perpetrator from legal punishment. The Court held that Raja Khurram Ali Khan, being a judicial officer, used his position to suppress evidence and mislead authorities, thus justifying his conviction under Section 201 PPC. (d) Evidence Law – Child witness – Competency and evidential value The Court reaffirmed that a child is a competent witness under Articles 3 and 17 of the Qanun-e-Shahadat Order, 1984, provided that they understand the questions posed and can respond rationally. The "rationality test" must be applied throughout a child’s testimony, and undue pressure should be avoided. Additionally, the Court recommended that Pakistani courts adopt measures such as: Child witness aids, Closed courtrooms, Counselor assistance, Allowance for out-of-court statements in exceptional circumstances, in line with evolving international jurisprudence. In the present case, the trial court erred in disregarding Tayyaba Bibi’s testimony despite corroborative medical and independent witness evidence. The Supreme Court restored its evidentiary value, affirming the accused’s guilt. (e) Burden of Proof – Article 117 & 122 Qanun-e-Shahadat Order, 1984 The Court held that the burden of proof rests upon the prosecution to establish guilt beyond reasonable doubt (Article 117 QSO). However, when the prosecution has discharged its "legal burden," the "evidential burden" shifts to the accused (Article 122 QSO) to offer an explanation, especially in cases where the victim is vulnerable (e.g., a child under the care of the accused). The failure of the accused to produce any rebuttal evidence further strengthened the prosecution’s case. (f) Appeals Against Acquittal – Double presumption of innocence The Court reiterated that an accused who is acquitted benefits from double presumption of innocence, and interference by an appellate court should only occur when the trial court’s conclusion is perverse, arbitrary, or wholly unreasonable. The trial court had erroneously disregarded substantial prosecution evidence, warranting the appellate court’s reversal of the acquittal. (g) Supreme Court’s Power to Enhance Sentence – Article 187 Constitution of Pakistan Although the Division Bench of the High Court lacked jurisdiction to enhance the sentence, the Supreme Court, under Article 187 of the Constitution, has the authority to enhance a sentence suo motu in the interest of complete justice. Since the convicts had not been served a formal notice for enhancement, the Court directed that they be put on notice regarding a potential increase in their sentences. ------ DISPOSITION Criminal Appeal No. 120 of 2019 (Raja Khurram Ali Khan v. Tayyaba Bibi & another) Conviction under Section 201 PPC maintained. Conviction under Section 328-A PPC maintained, but sentence enhancement set aside. Criminal Appeal No. 121 of 2019 (The State v. Raja Khurram Ali Khan & another) Notice issued to the convicts for enhancement of sentence under Section 328-A PPC. Criminal Appeal No. 122 of 2019 (Maheen Zafar v. Tayyaba Bibi & another) Conviction under Sections 337-A(i), 337-F(i) PPC maintained. Conviction under Section 328-A PPC maintained, but sentence enhancement set aside. Notice issued for potential further enhancement of sentence.

Summary: (a) Illegal Dispossession Act (XI of 2005)----Ss. 3, 5 & 7---Criminal Procedure Code (V of 1898), Ss. 265-H & 417(2A)---Appeal against acquittal--- Appreciation of evidence--- Illegal dispossession---Declaration to title---Proof---Appellant was complainant and was aggrieved of dispossession from subject property by accused persons---Trial Court under S. 265-H(i), Cr.P.C. acquitted accused persons---Validity---Law of land and even Shia Personal Law did not authorize Momineen of any locality to request anyone amongst themselves to unlawfully control or occupy immovable property of an orphanage owned by some registered private institution with intention to dispossess, grab, control or occupy said property and dispossess otherwise lawful occupiers of such property---Accused persons, despite backing of so-called religious scholars and their goodwill in community were conscious of fact that they had no moral authority or legal defense to justify taking over possession of subject property and grab and control of resources of private institution---Accused persons never filed any civil suit to seek declaration of their title in respect of subject property as they knew that their so-called working committee was not even fraudulently registered---High Court set aside judgment of acquittal passed by Trial Court and convicted accused persons under S. 3(2) of Illegal Dispossession Act, 2005 along with fine---Appeal was allowed accordingly. 2010 YLR 2139; Muhammad Akram and 9 others v. Muhammad Yousuf and another 2009 SCMR 1066; PLD 1989 SC 283; PLD 1971 SC 550; 2012 CLC 793; Shahabuddin v. The State PLD 2010 SC 725; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254; Shaikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931 and Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769 ref.(b) Illegal Dispossession Act (X1 of 2005)-------S. 3---Illegal dispossession---Abandoned property---Principle---Even abandoned property is supposed to be in constructive possession of its lawful owner---If at all there is any defect in status of owner to hold, occupy and control subject property of private institution, accused are not supposed to contravene S. 3(1) of Illegal Dispossession Act, 2005. (c) Illegal Dispossession Act (X1 of 2005)-------Ss. 3 & 5---Civil Procedure Code (V of 1908), S. 92---Illegal dispossession---Criminal and civil liabilities---Determination---Accused persons cannot contend that complainant has no lawful authority to file legal proceedings in view of S. 92, C.P.C. when raised before a court seized of a criminal case---Proceedings under Criminal Procedure Code, 1898 cannot be regulated by Civil Procedure Code, 1908. Zafar Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 and Bashir Ahmed v. Additional Sessions Judge PLD 2010 SC 661 ref

Summary: (a) Penal Code (XLV of 1860)-------S. 182---False information with intent to cause public servant to use his lawful power to the injury of another person---Appeal against acquittal---"Aggrieved person"---Scope---Station House Officer (SHO) requested the trial court for prosecution of respondent under S. 182, P.P.C. on the ground that he had furnished false information for lodgment of first information report (FIR) under Ss. 506 and 34, P.P.C. read with S. 25 of Telegraph Act, 1885---Trial court acquitted the respondent of the charge---Validity---Appellant, nominated accused in earlier FIR, could not be aggrieved by the decision of the Magistrate on the complaint under S. 182, P.P.C. filed by public servant---Section 182, P.P.C. did not refer to any private person and it related "to cause public servant to use his power" and in case such information was found false then such public servant could initiate proceedings---Appellant was not a public servant nor the alleged false information was given to him---Right of appeal on the orders passed by Magistrate did not lie with the nominated accused for the reason that an appeal was continuity of original proceedings and admittedly the proceedings were not initiated by the appellant---Appeal against acquittal was dismissed. Khuwaja Muhammad Waseem v. Syed Jalees Anjum and others 2018 PCr.LJ 1230 rel.(b) Penal Code (XLV of 1860)------S. 182---False information with intent to cause public servant to use his lawful power to the injury of another person---Scope--- Proceedings under S. 182, P.P.C. are not a remedy of any humiliation or insult suffered by the accused nominated in the false information given by the complainant to the Incharge Police Station.

Summary: (a) Penal Code (XLV of 1860)-------Ss. 302, 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 265-K---Qanun-eShahadat (10 of 1984), Art.22---Qatl-i-amd, rioting, armed with deadly weapon, commonobject---Power of court to acquit accused at any stage---Appreciation of evidence---Appealagainst acquittal---Benefit of doubt---Delayed FIR---Prosecution case against accusedpersons was that they waylaid the complainant party when they were travelling in theirvehicle and killed the brother of complainant---First Information Report was lodged with adelay of 7 hours without plausible explanation---Complainant had not explained as to why inthe presence of vehicle he proceeded to police station by foot for lodging the FIR---Eyewitness had not recognized the accused persons before the Trial Court---Deceased wasbrought to the hospital by the police, which indicated that the complainant was not present atthe spot---Witnesses were close relatives of the deceased---Prosecution had not conductedidentification parade of accused persons---Empties and blood stained earth were securedfrom the place of occurrence after 14 days of the occurrence without any plausible reason---Trial Court had passed a reasonable order, which in the absence of misreading and nonreading of evidence did not warrant interference---Trial Court had rightly exercisedjurisdiction under S. 265-K, Cr.P.C.---Appeal against acquittal was dismissed.Mehmood Ahmed and 3 others v. The State 1995 SCMR 127; 2017 SCMR 2002 andMuhammad Arif v. The State 2019 PCr.LJ 337 rel.(b) Appeal against acquittal-------Every accused is innocent unless proven guilty and upon acquittal by a court ofcompetent jurisdiction such presumption attains double presumption of innocence---Strongand cogent reasons are required to dislodge such presumption.

Summary: (a) Penal Code (XLV of 1860)-------Ss. 320 & 279---Qatl-i-Khata, rash driving on public way---Appreciation of evidence---Appeal against acquittal---Prosecution case was that accused-respondent, driver of oil tanker,had collided with Frontier Constabulary Post, resultantly, five persons died at the spot, theofficial vehicle and official weapons were damaged and driver and conductor fled away fromthe scene---Prosecution, in order to establish the charge had produced nine witnesses, whichwere not consistent and confidence-inspiring---Complainant of the case mostly reiterated thecontents of his fard-e-bayan---Evidence of said witness was not helpful to the case ofprosecution for the reasons that he himself had not witnessed the crime rather at the time ofalleged occurrence he was 80 kms. away from the place of occurrence and receivedinformation through wireless set---Entire statement of said witness was silent to the effect asto who had told him the story of the incident in such a sequence---Admittedly, the statementof said witness was hearsay and the same was only to the extent of setting criminalmachinery into motion---Statements of both the alleged eye-witnesses were contradictorywith each other on certain counts---Both the witnesses had unanimously brought on recordthat they witnessed the crime directly---Both the said witnesses had admitted in their crossexamination that their statements under S. 161, Cr.P.C. were recorded after delay of 13-daysof the incident, though they were very much present in the area---Admission of both theprosecution witnesses depicted the complete failure of the Investigating Officer to record thestatements of both the said witnesses immediately---No explanation was available on therecord as to why such statements were delayed for 13-days and till that the accused-appellanthad voluntarily surrendered him before the police---No solid or concrete evidence wasavailable against the accused/respondent connecting him with the commission of allegedoffence---Trial Court after proper appreciation of evidence in its true perspective had rightlyacquitted the accused-respondent of the charge---Appeal was dismissed accordingly.(b) Criminal Procedure Code (V of 1898)-------S. 161---Delay in recording the statement of witnesses under S. 161, Cr.P.C.---Effect---Such evidence could not be given that sanctity as was generally given to the evidence of awitness whose statement had been recorded promptly soon after the occurrence---Statements of prosecution witnesses under S. 161, Cr.P.C. recorded after the arrest of the accusedcreated reasonable doubt in the case of prosecution---Witnesses appeared to have beenplanted by the prosecution subsequently after the arrest of the accused/respondent.(c) Penal Code (XLV of 1860)-------Ss. 320 & 279---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-Khata, rash driving onpublic way---Appreciation of evidence---Identification parade---Scope---Identification of theaccused/respondent in the Trial Court was doubtful---According to the case of prosecution,soon after the occurrence the culprits decamped from the place of occurrence---InvestigatingOfficer arrested five persons on the basis of suspicious, who were subsequently dischargedfrom the case under the provisions of S. 169, Cr.P.C.---Circumstances suggested that theInvestigating Officer as well as the alleged eye-witnesses were not sure about the culprit---First Information Report was silent with regard to physique and personal appearance of theescaped accused persons---Investigating Officer after the arrest of the accused/respondentwas supposed to have conducted the identification parade of the accused/respondent whichwas not done---Material dent caused to the case of prosecution due to failure to holdidentification parade during the course of investigation, which was not curable.Khawar v. The State 2014 YLR 2120 rel.(d) Criminal trial-------Benefit of doubt---Principle---Single circumstance if creating reasonable doubt in aprudent mind was sufficient for acquittal of accused not as a matter of grace, but as a matterof right.Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 rel.(e) Criminal Procedure Code (V of 1898)-------S. 417--- Appeal against acquittal--- Presumption--- Double presumption of innocencewas attached to the order of acquittal---Interference in acquittal was unwarranted unless thesame was arbitrary, capricious, fanciful or against the record.

Summary: Section 417(2-A) Cr.PC . Appeal against acquittal. Prosecution case was held to be unwitnessed in view of the contradictions and discrepancies in the statement of the prosecution witness. The alleged witness were not present on the spot at the time of occurrence, thus, the Learned Trial Court had rightly extended the benefit of the doubt appellant/ Accused and acquitted him. After acquittal accused earns double presumption of innocence and very strong and cogent are required to dislodge such presumptions. Appeal dismissed.

Summary: Background:The State, represented by the Director, Directorate-General of Intelligence & Investigation (Customs & Excise), Karachi, appealed against this acquittal. However, the High Court of Sindh dismissed the appeal, leading to the State's appeal to the Supreme Court of Pakistan.---Issues:Whether the High Court erred in dismissing the State's appeal against the acquittal.Whether the High Court's consideration of provisions from the Customs Act and the Code of Criminal Procedure was relevant to the appeal's maintainability.Whether the right of appeal in a case involving the recovery of narcotics is governed by the provisions of the Control of Narcotic Substances Act, 1997.---Holding/Reasoning/Outcome:The Supreme Court found that the High Court's dismissal of the State's appeal was based on an erroneous understanding of the relevant legal provisions.The High Court's consideration of provisions from the Customs Act and the Code of Criminal Procedure was deemed unnecessary since the appeal's maintainability is governed solely by the Control of Narcotic Substances Act, 1997.Section 48 of the Control of Narcotic Substances Act, 1997, does not restrict the State or the complainant from filing an appeal against an acquittal. Previous judgments, including The State through Mehmood Ahmad Butt, Deputy Director, Regional Directorate, Anti-Narcotics Force, Lahore v. Mst. Fazeelat Bibi (PLD 2013 SC 361) and State through Director General, Anti-Narcotics Force v. Abdul Jabar alias Jubbara (2017 SCMR 1213), were cited to support this interpretation.The Supreme Court allowed the appeal, set aside the High Court's judgment, and remanded the matter to the High Court for reconsideration on its merits. The bail bonds and sureties of the respondents were discharged by the Supreme Court.---Citations/Precedents:The State through Mehmood Ahmad Butt, Deputy Director, Regional Directorate, Anti-Narcotics Force, Lahore v. Mst. Fazeelat Bibi (PLD 2013 SC 361)State through Director General, Anti-Narcotics Force v. Abdul Jabar alias Jubbara (2017 SCMR 1213)

Summary: Appeal against acquittal....For seeking condonation of delay each day has to be explained. The state cannot be treated differently than ordinary litigants and is not entitled to preferential treatment.

Summary: Appeal against acquittal principles and scope.Reversal of finding of acquittal of an accused was resorted exceptionally by an appellate Court unless such an order was found to be perverse, shocking or request of misreading or non-reading of evidence on record.

Summary: (a) Penal Code (XLV of 1860)-------Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd,attempt to commit qatl-i-amd, common intention---Appeal against acquittal---Reappraisal ofevidence---Complainant, during cross-examination, could not stand on his legs with regard toocular evidence and defence had succeeded in shaking his testimony---Prosecution witnesses,who claimed to be eye-witnesses of the occurrence, had contradicted each other as well as thecomplainant---Statement of one eye-witness, had also been contradicted by the medicalevidence---Said witnesses had narrated a different story with regard to commission of crimeand had exonerated one of accused persons from commission of crime or firing upon thedeceased---None of the prosecution witnesses had attributed any overt act to accused persons---Entire prosecution evidence was suggestive of the fact that absconding accused wasresponsible for the murder of the deceased---Entire prosecution evidence, had established,that though accused persons were present at the relevant time along with main accused(absconded), but no overt act was attributed to them by the prosecution, rather accusedpersons had played the role of idle or audience at the relevant time---Prosecution had failed toestablish through incriminating evidence with regard to common intention of or commonobject of accused persons to commit murder of the deceased---Accused persons, were rightlyacquitted by the Trial Court---Order of acquittal passed by the Trial Court, was neitherarbitrary, capricious, fanciful nor contrary to the evidence brought on record, warrantinginterference by the High Court.