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) Penal Code (XLV of 1860) ----S. 324 read with S. 337-F(iii)---Attempt to commit Qatl-i-Amd—Firearm injury—Improper framing of charge—Conviction for lesser offence—Scope—Appellant was charged under S. 324, P.P.C. for allegedly causing a firearm injury to prosecution witness, but the charge omitted reference to any specific provision regarding the nature of the injury—Medical evidence declared injury as ghayr-jaifah-mutalahimah, falling under S. 337-F(iii), P.P.C.—Court observed that while the charge under S. 324, P.P.C. was not established, evidence sufficiently proved the causing of injury punishable under S. 337-F(iii), P.P.C.—Trial court’s failure to frame charge under the correct section held not to have prejudiced the accused, since he was aware of the evidence and afforded full opportunity of defence—Conviction altered from S. 324, P.P.C. to S. 337-F(iii), P.P.C. with sentence of period already undergone. (b) Criminal Procedure Code (V of 1898) ----S. 238—Minor offence—Conviction without specific charge—Legal permissibility—Where the evidence proves a lesser cognate offence than the one charged, the accused can be convicted of such minor offence despite absence of specific charge—Court emphasized that technical defects in framing of charge should not override the delivery of substantive justice—Conviction under S. 337-F(iii), P.P.C. upheld even though only S. 324, P.P.C. was charged, as no prejudice was caused to the accused. (c) Criminal trial—Appreciation of evidence ----Contradictions and credibility—One marginal witness was declared hostile but affirmed recovery of weapon from accused during cross-examination—Prosecution evidence including statements of complainant, injured witness, medical officer, and investigating officer found consistent on material aspects—Ballistic confirmation not conducted, but ocular and medical evidence sufficient to establish act of causing injury—Court held that isolated inconsistencies did not undermine the overall credibility of prosecution’s case regarding injury. (d) Criminal trial—Approach of Court ----Purpose of criminal justice—Court held that rigid technicalities should not defeat ends of justice—Emphasis placed on determining truth based on material evidence rather than hyper-technical lapses—Broader principles of fairness, due opportunity, and public interest in adjudication stressed. Cited Case: • Abdul Qudoos and 3 others v. The State 2014 YLR 1473 Disposition: Appeal partly allowed—Conviction under S. 324, P.P.C. set aside—Appellant convicted under S. 337-F(iii), P.P.C. and sentenced to period already undergone.

Summary: (a) Constitution of Pakistan, 1973: ----Art. 203DD---Jurisdiction of Federal Shariat Court---Maintainability of appeal---Accused convicted under S. 377, PPC only---Charge under S. 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, not framed---Appeal against conviction under PPC not maintainable before Federal Shariat Court---Appellant was charged and convicted under S. 377, PPC, while the FIR also included S. 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Trial Court, however, did not frame a charge under the Hudood Ordinance, and the accused was neither tried nor convicted under it---Held, that where an accused was not charged or convicted under the Hudood Ordinance, an appeal against such conviction under PPC could not be entertained by the Federal Shariat Court under Art. 203DD of the Constitution---Appeal was therefore not maintainable before this Court and was returned for filing before the proper forum. (b) Criminal Procedure Code (V of 1898): ----Ss. 233, 237 & 238---Framing of charge---Trial Court's omission to frame charge under S. 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Revisional jurisdiction of Federal Shariat Court---Trial Court had rejected an application to amend the charge to include S. 12 of the Hudood Ordinance, holding that no case of kidnapping or abduction was made out and that the accused’s intention was only to commit sodomy---Since the accused was not charged under the Hudood Ordinance, the Federal Shariat Court lacked jurisdiction to interfere at this stage in revision---Once the Trial Court had pronounced judgment, it became functus officio, and the alteration of charge could not be directed in revision unless the judgment itself was set aside by a competent appellate forum---Revisional jurisdiction could not be exercised to frame a charge for an offence for which the accused was not originally tried after the conclusion of trial. ----Disposition: Appeal returned for filing before the proper forum; revision dismissed.