Summary: (a) Penal Code (XLV of 1860) ----Ss. 376 & 496-B---Rape versus fornication (zina with consent)---Scope and distinction---Petitioner was convicted by Trial Court under S.376 PPC and sentenced to 20 years’ rigorous imprisonment with compensation---High Court upheld conviction---Supreme Court examined whether allegation constituted rape or consensual illicit intercourse---Delay of about seven months in lodging FIR without plausible explanation---Alleged occurrence near residential area but no hue and cry raised---No resistance offered by complainant---No marks of violence found on body---Clothes of complainant neither torn nor produced---Medical evidence did not corroborate allegation of forcible rape---Conduct of complainant in remaining silent for long period after alleged occurrence found unnatural---Held, prosecution failed to prove element of force or compulsion necessary to constitute offence of rape under S.376 PPC---Evidence, however, established commission of illicit sexual intercourse---Case held to be one of fornication (zina with consent) punishable under S.496-B PPC and not rape. (b) Penal Code (XLV of 1860) ----S. 496-B---Fornication---Proof---Evidence of complainant regarding sexual intercourse remained unshaken and confidence inspiring---Medical evidence supported prosecution to extent of sexual intercourse---Held, prosecution proved offence of fornication beyond reasonable doubt against accused. (c) Criminal Procedure Code (V of 1898) ----S. 238(2)---Conviction for minor offence---Charge framed for major offence of rape---Evidence disclosed commission of minor offence of fornication---Held, accused could be convicted for minor offence though not specifically charged for same---Principle affirmed that conviction for minor offence is permissible where facts establish such offence. (d) Criminal Procedure Code (V of 1898) ----S. 103---Recovery proceedings---Alleged recovery of pistol on pointation of accused from residential house---No independent witness of locality associated---Recovery held violative of mandatory provisions of S.103 Cr.P.C. and thus unreliable. (e) Criminal trial ----Delay in lodging FIR---Effect---Unexplained delay of seven months in reporting alleged rape---Held, such delay, in circumstances of case, seriously impaired credibility of prosecution version. (f) Zina (Enforcement of Hudood) Ordinance, 1979 and Protection of Women (Criminal Laws Amendment) Act, 2006 ----Substitution of offences---Offence of zina with consent under S.10(2) of Ordinance substituted by offence of fornication under S.496-B PPC---Principles laid down in earlier cases under Hudood laws held applicable. Cited Cases: • Muhammad Sharif v. The State 2006 SCMR 1170 • Ijaz Ahmed v. The State 2010 SCMR 141 • Amir Muhammad v. The State 2007 SCMR 452 • Muhammad Shabbir v. The State 1992 SCMR 2063 Disposition: By majority of 2:1, Criminal Petition was converted into appeal and partly allowed; conviction and sentence of petitioner under S.376 PPC were set aside and petitioner was acquitted of charge of rape; petitioner was instead convicted under S.496-B PPC and sentenced to five years’ rigorous imprisonment with fine of Rs.10,000/- or in default two months’ simple imprisonment. (Justice Salahuddin Panhwar dissenting; leave refused by dissent).

Summary: Acquittal granted ---- (a) Pakistan Penal Code (XLV of 1860) ---- Ss. 365-B, 376, 496-B ---- Abduction and rape ---- Essential ingredients ---- Whether the case was of forcible abduction and rape under Ss. 365-B & 376 PPC or zina with consent under S. 496-B PPC ---- Petitioners were convicted by the Trial Court under Ss. 365-B, 376, 109 PPC; High Court maintained their convictions under S. 365-B PPC but acquitted them under S. 376(ii) PPC ---- Supreme Court held that the prosecution failed to establish forcible abduction or rape beyond reasonable doubt ---- Alleged abductee did not raise alarm at the time of abduction despite the presence of family members; no weapons were used; abductee remained in Dar-ul-Aman for over a year without alleging abduction or rape before the Magistrate ---- No marks of violence found on the body of the abductee ---- Held, that the prosecution evidence was unreliable and suffered from material contradictions ---- Convictions under Ss. 365-B & 376 PPC were not sustainable. (b) DNA Evidence ---- Proof of biological paternity ---- Conviction under S. 496-B PPC ---- Prosecution presented DNA test report confirming that petitioner Asif Masih was the biological father of the child born to the abductee ---- Supreme Court held that while rape was not proved, the ingredients of zina with consent under S. 496-B PPC were satisfied ---- Conviction under S. 376(i) PPC was set aside, and Asif Masih was convicted under S. 496-B PPC ---- Sentenced to five years rigorous imprisonment and a fine of Rs.10,000/-, or in default, three months rigorous imprisonment ---- Benefit of S. 382-B Cr.P.C. extended to the petitioner. (c) Criminal Procedure Code (V of 1898) ---- S. 382-B ---- Benefit of pre-sentence detention ---- Accused entitled to the benefit of pre-sentence detention where conviction was altered from a graver offense to a lesser offense ---- Supreme Court extended the benefit of S. 382-B Cr.P.C. to Asif Masih, adjusting his sentence accordingly. (d) Acquittal ---- Failure to prove abduction beyond reasonable doubt ---- Qasim Iqbal and Sajid Majeed, convicted under S. 365-B PPC, acquitted ---- Prosecution failed to prove that the abductee was forcibly taken away ---- Supreme Court found that the abductee left her house of her own free will and was not coerced into abduction or sexual relations ---- Convictions under S. 365-B PPC set aside ---- Petition converted into an appeal and allowed to the extent of acquittal of Qasim Iqbal and Sajid Majeed. Disposition: Asif Masih: Conviction under S. 376(i) PPC set aside, convicted under S. 496-B PPC, sentenced to 5 years rigorous imprisonment and a fine of Rs.10,000/-. Qasim Iqbal & Sajid Majeed: Acquitted from all charges, released from custody unless required in another case.

Summary: (a) Constitution of Pakistan ----Art. 199 Protection against police harassment—Marriage contracted by free will—Petitioners, a legally married couple, alleged harassment by private respondents in connivance with local police due to familial opposition—Held, protection under constitutional jurisdiction is available against unlawful interference in personal liberty and harassment—Police officials directed not to harass petitioners—Court reaffirmed that such matrimonial issues fall outside the scope of writ jurisdiction and should be resolved before competent forums if disputed. (b) Police Order, 2002 / General Law ----Police functions—Obligation to act fairly—Power to arrest without warrant—Held, police is under constitutional duty to protect citizens’ rights and ensure fair investigation—Use of police powers must be in accordance with law and cannot be employed to harass individuals in private matrimonial matters—Court deprecated misuse of authority and emphasized that police are required to protect, not abduct. (c) Pakistan Penal Code, 1860 ----S. 496-A Second marriage without dissolution of first marriage—Allegation by private respondent of “marriage over marriage”—FIR lodged during pendency of court’s restraining order—Held, lodging of FIR during operation of interim order amounted to violation of court’s directions—Court barred further action on FIR No.1109/2024 pending fact-finding inquiry—Directed DIG East to examine alleged police highhandedness if approached. (d) Civil / Matrimonial Disputes Private disputes—Jurisdiction—Held, questions relating to subsistence or legality of first marriage and civil consequences thereof are to be resolved by appropriate legal forums—High Court declined to interfere in disputed questions of fact regarding subsistence of earlier marriage or validity of subsequent marriage. Disposition: Petition disposed of in terms of SHO and private respondents’ statements—Court restrained further harassment—FIR proceedings stayed pending inquiry—Private respondents furnished bonds—DIG East directed to conduct inquiry upon complaint.

Summary: Bail granted---(a) Pre-Arrest Bail – Offenses Not Exceeding the Prohibitory Clause: Under Section 496-A and 34 P.P.C., the offense carries a maximum punishment of seven years, which does not exceed the prohibitory clause of Section 497(1) Cr.P.C. The case against the accused was found to require further inquiry due to ambiguities in evidence, enabling the grant of pre-arrest bail under Section 497(2) Cr.P.C. (b) Matrimonial Relationship and Prior Marital Status: The complainant's daughter, alleged to be abducted, was previously married to the applicant and later remarried him after obtaining Khula from a Family Court. The existing Nikkah was not dissolved, undermining the prosecution's claims of abduction. The documentation, including the Nikahnama and prior affidavits, supported the applicant’s position, making the allegations suspect. (c) Delay in FIR Registration: The delay of one day in lodging the FIR without a plausible explanation casts doubt on the prosecution's case and indicates potential malafide intent to implicate the accused. (d) Contradictory Statements by the Alleged Victim: The alleged victim provided conflicting statements—first supporting the Nikkah and later alleging coercion under Section 164 Cr.P.C. The trial court is to determine the authenticity and voluntariness of these statements, as the prosecution has yet to establish the abduction claim. (e) Prosecution's Malafide Intent: The court identified signs of malice and potential misuse of the legal process due to prior matrimonial disputes between the parties, satisfying the requirement of malafide intent necessary for granting anticipatory bail as per the precedent set in Rana Muhammad Arshad v. Muhammad Rafique (PLD 2009 SC 427). (f) Grant of Anticipatory Bail: Following the principles laid down in Ghulam Abbas Abro v. The State (2018 PCr.LJ Note 168) and Muhammad Tanveer v. The State (PLD 2017 SC 733), the anticipatory bail was granted. The court emphasized the presumption of innocence and the need for a fair trial. (g) Conditions for Bail: The applicant was directed to ensure regular attendance at trial and refrain from tampering with evidence. Non-compliance would result in revocation of bail under Section 514 Cr.P.C. ----Disposition The court allowed the bail application, confirming the interim bail previously granted on 22.02.2024, and directed the trial court to monitor compliance.

Summary: Facts:The complainant, Khawar Farid Maneka, filed a private complaint against Imran Khan Niazi and Mst. Bushra Bibi alleging the commission of offenses under sections 496 & 496(B)/34 of the Pakistan Penal Code (PPC). The complaint centered around the accusation that Niazi and Bibi went through a marriage ceremony on January 1, 2018, during Bibi's 'Iddah' period following her divorce from Maneka on November 14, 2017. The complainant asserted that this act was fraudulent, unlawful, and done with dishonest intentions, causing him wrongful loss by depriving him of the opportunity to reconcile with Bibi during her 'Iddah' period.---Issue:The primary legal issue was whether the respondents had gone through a marriage ceremony fraudulently and dishonestly, knowing that they were not lawfully married, especially considering the 'Iddah' period of Mst. Bushra Bibi following her divorce from the complainant.---Holding:The court found both respondents, Imran Khan Niazi and Mst. Bushra Bibi, guilty under section 496 PPC for going through an unlawful marriage ceremony with fraudulent and dishonest intentions during the 'Iddah' period of Mst. Bushra Bibi.---Rationale:The court established that the respondents acted dishonestly and fraudulently by entering into a marriage during Bibi's 'Iddah' period, which deprived the complainant of his right to 'Rujuh' (reconciliation). The court also noted that the second marriage ceremony in February 2018 indicated the respondents' acknowledgment of the first marriage's impropriety during the 'Iddah' period. The court referenced Islamic principles, Pakistani law, and precedents to support the decision, emphasizing the sanctity of the 'Iddah' period and the illegality of marrying during this time without completing it.---Sentence:Both Imran Khan Niazi and Mst. Bushra Bibi were sentenced to seven years of simple imprisonment and fined Rs. 5,00,000 each. In default of payment, they would undergo an additional four months of simple imprisonment.

Summary: ''Sections 371A/371B PPC shall not be attracted against copulation in a brothel house.'' --- The main argument for seeking bail was that Sections 371A and 371B PPC do not apply to individuals found in objectionable conditions in a brothel house, and running a brothel itself is not an offense under these sections. It was also questioned whether the police had the authority to enter such premises without a warrant.The Deputy Prosecutors General argued that prostitution is a societal menace, and the police are authorized to enter suspected places without a warrant under the Police Order, 2002, to take legal action against those engaged in immoral activities. They also pointed out that Section 294 PPC, which prohibits obscene acts in public places, could be applicable.The court analyzed the relevant legal provisions, including Sections 371A, 371B PPC, and the Punjab Suppression of Prostitution Ordinance, 1961. It concluded that these sections do not apply when consensual sexual intercourse takes place in a brothel house. Instead, the appropriate law to prohibit such activities is the Punjab Suppression of Prostitution Ordinance, 1961, which specifically prohibits the operation of brothels.The court also discussed the authority of the police to enter premises without a warrant and cited Article 4 (I) of the Police Order, 2002, which allows them to enter places of disorderly character without a warrant. Additionally, Section 294 PPC was mentioned as a provision to deal with obscene acts in public places.Based on the analysis, the court ruled that the petitioners could not be charged under Sections 371A and 371B PPC. Instead, if they were engaged in sexual intercourse, it would be considered fornication under Section 496B PPC. Prosecution for fornication can only be initiated through a complaint under Section 203C of Cr.P.C.The court concluded that since there was no medico-legal report or other forensic evidence supporting recent intercourse, and no evidence linking Khalida to prostitution or Dildar Abass's house as a brothel, the petitioners' criminal liability would be determined by the trial court. As a result, bail was granted, citing previous cases and emphasizing the importance of preserving an individual's liberty unless exceptional grounds exist to curtail it.In summary, the Lahore High Court allowed the petitioners to be admitted to bail under Section 497 Cr.P.C, subject to certain conditions, and the case would proceed to trial for further inquiry.

Summary: Background: Two Shariat petitions were filed challenging Sections 496-B and 496-C of the Pakistan Penal Code, 1860, as being un-Islamic. The petitions were filed by Dr. Mohammad Aslam Khaki, Advocate, and Irum Malik. The petitioners argued that these sections, which pertain to rape and fornication, are repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah. ----Issues: 1- Whether Sections 496-B and 496-C of the Pakistan Penal Code, 1860, are repugnant to the injunctions of Islam. 2- Whether the provisions introduced by the Protection of Women (Criminal Law Amendment) Act, 2006, are in line with Islamic teachings. ----Holding/Reasoning/Outcome: The Federal Shariat Court dismissed the petitions for the following reasons: --Previous Judgments: The court referred to previous judgments, particularly PLD 2011 FSC 1 and PLD 2017 FSC 63, which had already dealt with similar issues. These judgments had declared that the provisions of the Protection of Women (Criminal Law Amendment) Act, 2006, were not repugnant to the injunctions of Islam. --Definition of Hudood: The court reiterated that the term "Hudood" covers various categories of offenses, including zina (adultery, fornication, and rape), and that the provisions introduced by the Protection of Women Act fall within this scope. --Distinct Nature of Offenses: The court emphasized that the offenses of zina and rape are distinct, with different standards of proof and punishments. Zina requires a higher standard of proof as prescribed by Hudood laws, while rape can be proven with ordinary standards of proof, such as beyond a reasonable doubt. --Jurisdiction and Authority: The court highlighted that the Islamic State of Pakistan has the authority to legislate laws to protect life, property, and dignity. The state can introduce penal provisions to address offenses where the stringent requirements of Hudood cannot be met but where guilt is established beyond reasonable doubt. --Council of Islamic Ideology: The court acknowledged the recommendations of the Council of Islamic Ideology, which had declared the Protection of Women (Criminal Law Amendment) Act, 2006, contrary to the injunctions of Islam, but maintained that the court's earlier decisions still stand. Both Shariat Petitions No. 12/I of 2020 and 17/I of 2022 were dismissed as not maintainable. The court concluded that the issues raised had already been thoroughly discussed and adjudicated in earlier judgments, and the appeal against these decisions is pending before the Shariat Appellate Bench of the Supreme Court. ----Citations/Precedents: PLD 2011 FSC 1 (Mian Abdur Razzaq Aamir and others vs. Federal Government of Islamic Republic of Pakistan and others) PLD 2017 FSC 63 (Shahid Orakzai vs. Pakistan through Secretary Ministry of Law, Islamabad)

Summary: Acquittal granted --- Consensual intercourse does not fall within the definition of rape rather it is a case of fornication in terms of offence under section 496-B, PPC. Moreover, in case of fornication cognizance can only be taken upon the complaint in the light of section 203-C, Cr.P.C. and not otherwise. It is held that police report cannot be termed as a complaint. Conviction awarded by learned trial court under section 376, PPC is set aside while declaring the proceedings as coram non judice. ---- Muhammad Saleem was convicted and sentenced for an offense under section 376 of the Pakistan Penal Code (PPC) related to rape. The complainant, Mst. Ishrat Bibi, alleged that Saleem raped her under the promise of marriage. The trial court convicted Saleem based on her testimony, medical evidence, and a DNA test showing he could be the biological father of the complainant's child. Saleem appealed, arguing that the offense was fornication, not rape.The appellate court examined the evidence and legal definitions. It noted that the complainant, not a minor, was aware of the consequences of her actions. The court highlighted previous legal decisions stating that consensual sex based on a promise of marriage does not constitute rape. It concluded that the case was a matter of fornication, not rape, and acquitted Saleem of the charges. The court further directed Saleem to deposit Defense Saving Certificates worth Rs.10,00,000/- in the name of the complainant's child for her welfare.

Summary: Acquittal ---- A male person cannot be convicted alone for an offence under section 376(ii), PPC ---- Rashid Ahmed (the appellant) was convicted and sentenced to five years of rigorous imprisonment under Section 496-B of the Pakistan Penal Code (PPC) for fornication, along with a fine, stemming from a private complaint filed by Rabia Bibi (the complainant/prosecutrix). The complaint arose from an incident where Rabia Bibi alleged she was abducted and raped by Rashid Ahmed and his co-accused, Muhammad Rafique. FIR No. 69/2011 had initially been filed under Section 376(ii) PPC (rape), but Rabia Bibi later filed a private complaint, claiming that the police investigation was biased and inaccurate. Rashid Ahmed appealed against his conviction and sentence, while Rabia Bibi filed a criminal revision seeking enhancement of Rashid Ahmed’s sentence under Section 376(ii) PPC (rape). -----Issues: 1) Whether Rashid Ahmed’s conviction under Section 496-B PPC (fornication) was legally valid in the absence of a formal complaint under Section 203-C Cr.P.C. ---2) Whether Rabia Bibi’s criminal revision seeking enhancement of the sentence for rape under Section 376(ii) PPC was maintainable. ---3) Whether the prosecution’s evidence was sufficient to support the conviction of Rashid Ahmed. -----Holding/Reasoning/Outcome: Conviction under Section 496-B PPC (Fornication) Invalid: The court found that the trial court had exceeded its jurisdiction in convicting Rashid Ahmed under Section 496-B PPC, as no formal complaint was filed under Section 203-C Cr.P.C., which is a mandatory requirement for such convictions. Moreover, a male alone cannot be convicted under Section 496-B without implicating the consenting female. The court also noted that Rabia Bibi’s conduct during the incident suggested her consent. ----Criminal Revision for Enhancement Dismissed: The court dismissed Rabia Bibi’s revision petition, noting that she did not file an appeal against Rashid Ahmed’s acquittal under Section 376(ii) PPC, which precluded the court from entertaining her revision petition for enhancement under Section 439(5) Cr.P.C. Moreover, the trial court’s finding that the offense did not fall under Section 376(ii) PPC was deemed an acquittal, and no appeal was filed against this finding. ----Doubt in Prosecution’s Case: The court found several inconsistencies and contradictions in the prosecution’s case, including Rabia Bibi’s change in stance between the FIR and the private complaint, and her failure to mention the alleged police misconduct during her statement under Section 164 Cr.P.C. The court also noted that the medical evidence and DNA results were inconclusive and did not sufficiently support the allegations of rape. The prosecution failed to prove its case beyond a reasonable doubt, and the benefit of doubt was extended to Rashid Ahmed. ----Outcome: The court accepted Rashid Ahmed’s appeal, set aside his conviction and sentence, and acquitted him of all charges. Rabia Bibi’s criminal revision for enhancement of the sentence was dismissed. -----Citations/Precedents: Muhammad Azad v. Ahmad Ali and two others (PLD 2003 SC 14) Mst. Shamim and two others v. The State and another (2003 SCMR 1466) Tajamal Hussain Shah v. The State and another (2022 SCMR 1567) Kashif Ali alias Kalu v. The State and another (2022 SCMR 1515) Jami at-Tirmidhi 1424 (Prophetic saying on legal penalties and doubt)

Summary: (a) Constitution of Pakistan----Arts. 4, 9 & 14---Right to life, liberty, dignity, and protection from unlawful harassment---Marriage contracted by free will---Police harassment at the behest of private respondents---Scope and interference by Court---Petitioners contracted marriage of their own free will---Allegations of harassment by private respondents in connivance with police officials---Court, vide interim order, restrained police from harassing petitioners and directed concerned SHO and SSP to ensure protection---Court reiterated that police action in matrimonial matters, unless criminality is prima facie established, is impermissible and amounts to abuse of authority---Right to life and liberty under the Constitution must be protected, and harassment based on private disputes undermines such rights.(b) Pakistan Penal Code, 1860----S. 496-A---FIR for contracting “marriage over marriage”---Scope---FIR lodged by private respondent (alleged previous husband) post-marriage of petitioner No.1---Court held that subject matter of second marriage or its validity is not for police investigation under harassment claims and must be resolved by competent family or civil forum---Filing of FIR during pendency of Court’s protective order was found to be in violation of judicial restraint previously issued---Court ordered no further action on FIR unless permitted by competent authority.(c) Police Order, 2002----Police powers and obligations---Harassment by police officials---Duty to protect and not abuse authority---Court expressed concern over continued highhandedness and excesses by police officers in matrimonial or civil matters---Directed DIG East Karachi to conduct fact-finding inquiry if petitioners file complaint and to take appropriate action under law.(d) Interpretation of the term "harassment"----Definition and legal context---Court elaborated that harassment entails more than mere annoyance; it involves undue mental distress, intimidation, or aggressive pressure causing significant discomfort or fear---Distinction drawn between injury in legal sense and harassment as mental molestation.Disposition:Petition disposed of in terms of statements made by SHO and private respondents before the Court---Private respondents submitted personal bonds assuring non-harassment---Police directed to conduct investigation fairly without causing undue distress---Parties advised to seek redress of civil/family disputes before competent forums.