Summary: Acquittal ----- (a) Penal Code (XLV of 1860)---- ----Ss. 302, 324, 363 & 34---Murder of four family members inside house---Matrimonial dispute---Ocular account by informant, injured witness and eyewitness---Petitioner Fayyaz Akhtar, husband of deceased Mst. Aqsa Bibi, allegedly came armed with co-accused to house of his in-laws after matrimonial discord, raised lalkara and fired upon family members, resulting in death of Muhammad Zahid, Mst. Musarrat Bibi, Mst. Aqsa Bibi and Bilal Ahmad, while Faizan Ahmad sustained firearm injuries---Supreme Court held that ocular account furnished by informant, injured witness and eyewitness was straightforward, confidence-inspiring and consistent on material particulars including date, time, place, manner of assault and specific role of firing attributed to Fayyaz Akhtar. (b) Criminal trial---- ----Injured witness---Stamped witness---Evidentiary value---Injured witness Faizan Ahmad was inmate of house and sustained firearm injuries during occurrence---Supreme Court held that his presence at place of occurrence could not be doubted and his testimony carried intrinsic worth and great evidentiary value---Medical evidence supported ocular account regarding injuries sustained by deceased persons and injured witness. (c) Criminal trial---- ----Related witnesses---Close relatives of deceased---Effect---Eyewitnesses were close relatives of deceased persons---Supreme Court reiterated that close relatives who witness brutal murder of near and dear ones are least likely to substitute real culprit and falsely implicate an innocent person, particularly where no previous enmity or motive for false implication is shown---No material was brought on record to suggest that witnesses had reason to falsely involve Fayyaz Akhtar while shielding actual offender. (d) Penal Code (XLV of 1860)---- ----S. 302(b)---Specific role, motive and medical corroboration---Conviction maintained---Petitioner Fayyaz Akhtar was specifically assigned active role of firing; he had direct motive arising from matrimonial dispute with deceased wife Mst. Aqsa Bibi; ocular account remained unshaken despite lengthy cross-examination and was supported by medical evidence---Supreme Court held that prosecution proved beyond reasonable doubt active participation and specific role of Fayyaz Akhtar in commission of offence---Conviction recorded by Courts below called for no interference. (e) Criminal trial---- ----Non-nominated accused---Subsequent nomination after three days---No source of identification disclosed---Benefit of doubt---Petitioner Ghulam Ghous was not nominated in FIR and was admittedly not known to informant at time of occurrence---He was nominated after three days by injured witness, who did not disclose source or basis of identification---Supreme Court held that if accused had been known, he would have been named in initial report---Subsequent nomination without proper basis rendered prosecution case against him doubtful. (f) Criminal trial---- ----Identification parade---Accused already named before parade---Reduced evidentiary value---Although identification parade of Ghulam Ghous was conducted, Supreme Court held that its evidentiary value was substantially diminished because he had already been named by injured witness before such parade. (g) Criminal trial---- ----General and omnibus allegation of firing---No specific injury attributed---No motive---Recovery disbelieved---Benefit of doubt---Ghulam Ghous was shown in site plan at outer/main gate whereas crime empties were recovered from courtyard; no specific injury on any deceased was attributed to him and allegation against him was general/omnibus firing along with co-accused---He had no motive against deceased persons and recovery of alleged weapon had already been disbelieved by High Court on sound reasoning---Supreme Court held that evidence against him was shaky, deficient and insufficient to sustain conviction. (h) Criminal trial---- ----Sifting grain from chaff---One accused convicted, another acquitted---Supreme Court observed that while appreciating evidence Court must sift grain from chaff---On reappraisal, prosecution evidence was reliable against Fayyaz Akhtar but insufficient against Ghulam Ghous---Conviction of Fayyaz Akhtar was maintained, while conviction and sentence of Ghulam Ghous were set aside. (i) Criminal Procedure Code (V of 1898)---- ----S. 382-B---Benefit of period already undergone---Discretionary relief---Extreme brutality---Supreme Court declined benefit of S.382-B, Cr.P.C. to Fayyaz Akhtar, observing that offence reflected extreme brutality and gruesome manner in which he dealt with four close family members, including his wife, inside dwelling house---Occurrence was not result of sudden provocation or spur-of-the-moment act but reflected calculated vengeance arising out of matrimonial discord and annihilation of a segment of wife’s family---Such heinousness and betrayal of familial sanctity took case outside category where benefit under S.382-B should be extended as matter of course. (j) Sentencing---- ----Death sentence commuted by High Court to imprisonment for life---Complainant’s petition for enhancement---Refusal---High Court had commuted death sentence of Fayyaz Akhtar on four counts to imprisonment for life on four counts---Supreme Court held that findings of High Court were based on proper and judicious appraisal of attending circumstances and consistent with settled principles governing discretion in capital punishment cases---No misreading or non-reading of evidence was shown; petition seeking enhancement was dismissed. (k) Limitation---- ----Jail petition barred by 15 days---Condonation---Life imprisonment on four counts---Supreme Court condoned delay in filing jail petition in interest of justice, considering grounds urged and fact that petitioners had been awarded life imprisonment on four counts. Disposition: Jail Petition No.520 of 2018 was converted into appeal and partly allowed; conviction and sentence of Ghulam Ghous were set aside and he was acquitted, with direction for release if not required in any other case; petition to extent of Fayyaz Akhtar was dismissed and leave refused; his substantive sentences were directed to run concurrently and benefit of S.382-B, Cr.P.C. was declined. Criminal Petition No.832-L of 2018 seeking enhancement of sentence of Fayyaz Akhtar was dismissed and leave refused; to extent of Ghulam Ghous, it was dismissed as infructuous.

Summary: Conviction upheld----Background: This case involves an appeal by the appellant challenging the judgment dated April 19, 2021, by the trial court, which convicted him under Sections 376 and 363 of the Pakistan Penal Code (P.P.C.) for committing zina (rape) and kidnapping a minor. The appellant was sentenced to life imprisonment for the zina charge and five years of rigorous imprisonment for the kidnapping charge, along with fines. The incident occurred on March 22, 2019, when two minor girls, Bibi Hafia (4 years old) and her cousin Bibi Saima (5 years old), were allegedly taken by the appellant to his house, where he committed zina with Saima. The appellant was arrested, and after the trial, he was convicted. -----Issues: 1- Whether the prosecution successfully established the appellant's guilt for the offenses of zina and kidnapping. -----2- Whether the testimony of the minor victim alone was sufficient to convict the appellant. -----3- Whether the medical and forensic evidence corroborated the victim's account of the incident. -----4- Whether the trial court's judgment was legally sound and based on reliable evidence. -----Holding/Reasoning/Outcome: The court found that the prosecution had proven the appellant's guilt beyond a reasonable doubt. The key witness, the victim Bibi Saima (PW-5), despite being a minor, provided a coherent and consistent account of the incident. The court noted that the victim's testimony was reliable, as her mental capacity had been assessed and found adequate. She identified the appellant and described how he lured her and her cousin with ice cream and committed zina with her. The court placed significant weight on her testimony, stating that in cases of sexual assault, the victim's testimony alone can be sufficient to convict, provided it is credible. Medical evidence provided by Dr. Ayesha Faiz (PW-2) confirmed the sexual assault, with physical signs corroborating the victim’s account. The medical examination revealed the victim’s hymen was not intact and indicated both fresh and old signs of sexual assault. The forensic evidence also supported the prosecution, as seminal material was found on the victim’s clothing. The defense’s arguments, including the claim that the victim’s statement was unreliable due to her young age, were dismissed. The court emphasized that the victim’s age did not undermine her testimony, especially since the court had found her mentally fit to testify. Additionally, the appellant’s mere denial of the charges and his failure to provide any defense or explanation weakened his case. The court rejected the defense’s argument that the victim's testimony alone was insufficient for conviction, referencing multiple precedents where the courts upheld convictions in sexual assault cases based solely on the victim's credible testimony. The prompt filing of the FIR, along with the absence of any indication of prior enmity or false implication, further supported the conviction. The appeal was dismissed, and the appellant’s conviction and sentence were upheld. -----Citations/Precedents: Muzammil Shah v. State, 1991 MLD 1944 (regarding the reliability of a minor’s testimony in sexual assault cases). Fayyaz alias Fayyazi and another v. The State, 2006 SCMR 1042 (solitary testimony of a victim in sexual assault cases can be sufficient for conviction if credible). Mushtaq Ahmed and another v. The State, 2007 SCMR 473 (corroboration of the victim's testimony by medical evidence in rape cases). Kamran alias Kami v. The State, 2012 PCr.LJ 1200 (regarding the reliability of a victim's testimony in family honor matters).

Summary: (a) Criminal Law – Quashment of FIR: The petitioner, Mst. Rabia, stated under oath and through affidavit that she willingly married Sanaullah, and no abduction had occurred. Continuing criminal proceedings under Sections 363, 365-B, 109, and 34 PPC based on the FIR would constitute an abuse of the court’s process. Held: FIR No. 29/2017 and all related proceedings were quashed. (b) Statements Under Section 164 CrPC – Validity: The petitioner's statement under Section 164 CrPC, recorded before the Magistrate, affirmed her free will in contracting the marriage. Such statements, corroborated by an affidavit, hold significant evidentiary value and override claims of coercion or abduction in the absence of contrary evidence. Held: A statement affirming free will in marriage suffices to nullify allegations of abduction if no contrary evidence exists. (c) Abuse of Court Process: When the facts of a case demonstrate that criminal proceedings lack merit or are based on misrepresentations, continuing such proceedings is an unnecessary burden on judicial resources. Held: Criminal proceedings initiated without substantive evidence are liable to be quashed. ----Cited Law: Pakistan Penal Code (Sections 363, 365-B, 109, and 34) – Related to kidnapping, abduction, and common intention. Code of Criminal Procedure, 1898 (Section 561-A) – Inherent powers of the court to quash proceedings to prevent abuse of process. ----Disposition: The appeal was allowed. The impugned order of the Chief Court was set aside, and FIR No. 29/2017 along with related proceedings were quashed.

Summary: (a) Guardians and Wards Act (VII of 1890)- -Ss. 12 & 25-Penal Code (XLV of 1860), Ss. 363 & 34-Criminal Procedure Code (V of 1898), S. 154-Constitution of Pakistan, Art. 199-Constitutional petition-Custody of minor girl-Kidnapping, offence of-Scope-Natural guardian of minor not liable for kidnapping-Quashing of FIR lodged against mother for kidnapping her minor child-Father and mother of minor girl were divorced from each other-Father filed application before the Family Court for custody of the minor girl-During pendency of said application mother left the country to pursue further studies and took the minor girl along, who was 2- years old-Family Court decided in favour of the mother and allowed her to retain custody of the minor girl-Father lodged an FIR against the mother for abducting the minor girl-Plea of father was that the mother denied him access to his daughter when the Family Court had allowed him visitation rights; that he had also filed an application to restrain the mother from taking their daughter abroad and for deposit of their passports in the Family Court; that the mother kidnapped the minor girl and took her to a foreign country; that intervention of the International Criminal Police Organization (INTERPOL) was required both for producing the accused mother before the Trial Court and for retrieving the custody of the minor-Validity-Family Court did not disturb the custody with the mother which order was upheld by the Appellate Court as well as by the High Court-Mother contended that she got admission in a foreign university for post-graduation studies with financial assistance, so under the force of circumstances, she left for the foreign country along with her 2-1/2 years daughter who could not be looked after properly in Pakistan in the absence of her real mother-Element of mens rea for kidnapping was thus missing in the circumstances of the present case-When the Family Court decided the father's application it was aware that the mother had proceeded to a foreign country along with her daughter, even then the Family Judge was of the view that there was no cogent reason to disturb the current setup of the minor hence the restoration of custody to the father was declined, however the father was allowed visitation rights-Admittedly the minor girl was in the custody of her mother since birth and there was no allegation that the mother snatched the custody from father-When the FIR was lodged the age of minor girl was 2-1/2 years-Mother and father both were natural guardians and one natural guardian could not lodge an FIR of kidnapping against the other natural guardian-Mother who was enjoying custody of minor since birth and whose right of Hizanat or custody had been affirmed by the Family Court, First Appellate Court and the High Court could not be held accused of kidnapping her own daughter-Consent of 2- years old minor for leaving abroad with her real mother was immaterial in the present case for the reason that since birth, daughter was in custody of mother and the age of the minor ward showed that neither she could be asked to offer any consent nor she could show any disagreement or displeasure on moving with her real mother-Main allegation in the FIR against the mother was travelling abroad with the minor girl without permission of father which ultimately culminated into the charge of kidnapping-Circumstances of the present case showed that no offence of kidnapping was made out under S.363, P.P.C.-Letter of law articulated that provision of S.363, P.P.C. was meant to protect and espouse the rights of parents and not to exploit it against each other as a tool of victimization, persecution and oppression after their divorce-Being a natural guardian, father was also entitled for the access and visitation rights to his daughter which right had been affirmed by the Family Court, First Appellate Court and the High Court-Admittedly the order for visitation rights in favour of father was not implemented, thus, the appropriate remedy for the father was to approach the Family Court for the implementation of its orders, which had not been done in the present case-High Court, in the present case, had already directed the Immigration Authorities that as and when the minor reached Pakistan they may take her passport at the airport in their custody for safe deposit of the same with the Nazir of the High Court so that minor would not leave Pakistan in future-High Court accordingly quashed the FIR lodged against the mother under Ss.363 & 34, P.P.C. with all consequential proceedings, and directed that the intervention of INTERPOL could not be ordered for ensuring attendance in the quashed FIR, and that the father may first approach the Family Court for the implementation of visitations rights order and in the event of non-compliance, he may apply to the Family Court for directions to issue INTERPOL red and yellow notice forms for ensuring attendance of the mother in court-Constitutional petition was disposed of accordingly. Muhammad Shafi alias Papan v. State 2011 PCr.LJ 1424 ref. (b) Islamic law- -"Hizanat"-Concept of-Hanafi sect-Status of mother in Islam-Mother was entitled to the custody of female child till the age of puberty while in the case of a son, the period of Hizanat was 7 years of age-Mother was entitled in preference to the father to the custody during Hizanat and she did not lose the guardianship because she was no longer wife of her former husband-All the juristic schools gave first preference to a mother's claim to physical custody of her young child provided that she satisfied all the requirements-Father should have access to his children and he remained financially responsible for their maintenance and education even though they may be under the care of their divorced mother-Prophet Muhammad (Peace Be Upon Him) continoually used to remind his followers of the status of the mother and the obligation of being good to one's parents-Honour which the religion of Islam had given to mothers was beyond that found in any other religion, ideology or culture-All the verses of Quran and hadiths on mothers amply demonstrated the importance of the figure of a mother in Islam. Al-Adab al-Mufrad Bukhari 1/62 and Surah al-Ahqaf, (Al-Quran), Chapter 46, Verse 15 ref. (c) Constitution of Pakistan- -Art. 199-Criminal Procedure Code (V of 1898), Ss.154, 249-A, 265-K & 561-A-Constitutional jurisdiction of the High Court - Quashing of FIR-High Court while exercising jurisdiction under Art.199 of the Constitution and S.561-A, Cr.P.C. could quash an FIR and proceedings in extenuating circumstances-Purpose of quashing an FIR under the constitutional jurisdiction was to save a person from the rigors of an unjustified investigation and proceedings and to prevent the abuse of process of law or court-No absolute bar existed on the powers of the High Court to quash an FIR and it was not always necessary to direct the petitioner-accused to first expend or exhaust the remedy available under Ss.249-A or 265-K, Cr.P.C.-Main considerations to be kept in mind by the court would be whether the continuance of proceedings would be a futile exercise and abuse of process of court-Where the admitted facts and patent on record showed that no offence was made out then it would amount to abuse of process of law to allow the prosecution to continue the trial-To find an"abuse", it would be necessary to see in the proceedings, a perversion of the purpose of law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice was engaged in an operation from which no result in furtherance of justice could accrue and similar perverse resulted. M.S. Khowaja v. State PLD 1965 SC 287 ref. (d) Guardians and Wards Act (VII of 1890)- -Ss. 7 & 12-Minor of divorced parents-Custody of minor with mother-Guardianship of father-Scope-Even where the custody of the minor was with the mother, the guardianship of the father did not extinguish and he should have access to his children and he remained financially responsible for their maintenance and education even though they may be under the care of their (divorced) mother. Ashfaq Rafiq Janjua, Standing Counsel. Sharfuddin Mangi for the State.

Summary: Background: This case concerns a custody dispute between divorced parents over two minor daughters. The mother filed a petition to quash a criminal FIR filed by the father under Sections 363/34 of the Pakistan Penal Code (PPC), accusing her of unlawfully withholding the children after a family visit. The father alleged that the mother refused to return the children and thus filed a complaint with the police, resulting in a criminal case. The mother argued that, as the natural guardian, she could not be criminally charged for keeping custody of her children, and further alleged that the father, a Supreme Court employee, used his influence to register the FIR. -----Issues: 1- Whether an FIR can be filed against a natural guardian (mother) for retaining custody of her own children under Sections 363/34 of PPC. -----2- Whether habeas corpus under Section 491 Cr.P.C. is applicable in custody disputes when children are with a natural guardian. -----3- Whether the mention of the father's employment with the Supreme Court in the FIR impacted the fairness of the trial. -----Holding/Reasoning/Outcome: The court ruled that the FIR was inappropriate and that the matter of custody should have been pursued through a Guardian Court, not through criminal proceedings. Since the mother, as a natural guardian, was lawfully entitled to custody, her refusal to hand over the children did not constitute kidnapping or an offense under Section 363 PPC. The court quashed the FIR, as the criminal charge was found baseless. Additionally, the father’s habeas corpus petition was dismissed, as Section 491 Cr.P.C. is not applicable for custody disputes when the minors are with a natural guardian. The court also expressed concerns about the mention of the father’s Supreme Court position in the FIR, suggesting it may have influenced the registration process. It directed that any future mention of a court in an FIR must first receive approval from the Registrar to avoid potential biases. -----Citations/Precedents: Kausar Parveen vs. The State [PLD 2008 Lahore 533] Director General, Anti-Corruption Establishment, Lahore vs. Muhammad Akram Khan [PLD 2013 SC 401] Rehmat Ali vs. Ahmad Din [1991 SCMR 185] Miraj Khan vs. Gul Ahmed [2000 SCMR 122] Muhammad Mansha vs. Station House Officer [PLD 2006 SC 598] Col. Shah Sadiq vs. Muhammad Ashiq [2006 SCMR 276] Emperor v. Kh. Nazir Ahmad [AIR 1945 PC 18] Shahnaz Begum vs. The Judges of High Court of Sind and Baluchistan [PLD 1971 SC 677] Mst Nadia Parveen vs. Mst Almas Noreen [PLD 2012 SC 758]

Summary: (a) Penal Code (XLV of 1860)- -S.364-A-Kidnapping-Not an iota of evidence was on record in support of alleged intention of kidnapping the little boy-Broad generalisation could not be accepted unless supported by proper evidence which was lacking-Offence under S.364-A, P.P.C., held, was not proved. (b) Penal Code (XLV of 1860)- -S.363-Kidnapping-Accused was apprehended when he had picked up the little child and was taking him towards the forest in his arms-Accused had gone more than two furlongs from spot from which he had picked him up-Offence under S.363, P.P.C., held was fully established against the accused.

Summary: Penal Code (XLV of 1860)- -S. 364-A-Evidence, appreciation of-Minor girl aged about 4 years, recovered from accused while concealed in gunny bag-Witnesses not knowing accused previously nor having any animosity against her-Witnesses found wholly independent and disinterested-Testimony of witnesses not shattered despite lengthy cross-examination-No possibility of false implication due to malice or enmity existed-Accused apprehended red-handed with child and produced before Police immediately thereafter-Accused, held, had abducted minor girl for purposes of slavery or subjecting her to lust of any person and was therefore punishable under S. 364-A and not under S. 363, P.P.C.-Death sentence confirmed in circumstances.

Summary: Acquittal granted ----(a) Penal Code (XLV of 1860), S. 363––Kidnapping––Benefit of doubt––Unexplained delay in lodging FIR––Effect––Delay held to be deliberate and after due consultation. Occurrence allegedly took place on 04.05.2010, yet FIR was lodged on 07.05.2010, with a three-day unexplained delay despite the police station being only 3 km away––Held, delay in reporting was not reasonably explained and appears to be result of deliberation––Reliance placed on Muhammad Jahangir v. The State (2024 SCMR 1741)––Such delay casts serious doubt on prosecution’s version––Conviction based on doubtful evidence held unsustainable. (b) Criminal trial––False implication––Implicating large number of accused without assigning specific role––Adverse inference––Evidentiary value. Complainant implicated sixteen accused, but no specific role was assigned to any of them––Only Zahid Hussain was convicted while rest were acquitted or discharged––Complainant himself admitted during cross-examination that he could not name the person who abducted his son––Such sweeping allegations without particulars held to be inherently unreliable––Conviction cannot be sustained where involvement of accused is vague and uncorroborated. (c) Criminal trial––Investigation––Non-production of key witness––Effect of withholding best available evidence––Presumption under Art. 129(g), QSO 1984. Prosecution relied on alleged statement of Mst. Bushra Bibi implicating the appellant but failed to produce her as a witness or record her statement under S. 161 Cr.P.C––Held, non-production of best available witness raises presumption that her testimony would have been unfavourable to prosecution––Drawing of adverse inference under Art. 129(g) of Qanun-e-Shahadat Order, 1984, justified––Reliance placed on Muhammad Rafique v. The State PLJ 2011 SC 191. (d) Criminal trial––Extra-judicial confession––Nature––Evidentiary value––Requirement of corroboration. Alleged extra-judicial confession made by the appellant was uncorroborated––Held, extra-judicial confessions are inherently weak type of evidence and ordinarily fabricated where independent evidence is lacking––No conviction can be safely based solely on such weak evidence––Failure to establish chain of circumstantial evidence renders prosecution case doubtful. (e) Criminal Procedure Code (V of 1898), S. 382-B––Benefit of doubt––Missing child––Emotional factor––Court to decide on evidence not sentiment. While Court noted the emotional impact of the minor’s continued disappearance, it reiterated that judicial verdicts must rest on legally admissible evidence, not on emotion or sympathy––Benefit of doubt must be given where prosecution evidence is riddled with inconsistencies and lacks credible corroboration––Appellant acquitted. ---- Disposition: Criminal Appeal No. 43770 of 2019 allowed; conviction and sentence of Zahid Hussain set aside; appellant acquitted. Criminal Appeal No. 53561 of 2019 (against acquittal of co-accused) dismissed as infructuous.