Summary: Acquittal granted----Background: On July 4, 1998, Sub-Inspector M.H. received a wireless message about a dead body in Orangi Town, Karachi. The body was identified as Z.A.N., a prominent political and social figure. An FIR was registered by N.A., brother of the deceased, against unknown persons. The investigation led to the arrests of M.D.K., A.A., and M.J., who were tried and convicted by an Anti-Terrorism Court for the murder and awarded death sentences. ----Issues: 1- Whether the evidence recorded by the Military Court and later used by the Anti-Terrorism Court was reliable. 2- Whether the identification of the accused by witnesses five months after the incident was credible. 3- Whether the judicial confessions of the accused were voluntary and corroborated by other evidence. 4- Whether the trial procedures followed by the Anti-Terrorism Court met the requirements of a fair trial. ----Holding/Reasoning/Outcome: The court noted numerous lacunas in the evidence recorded by the Military Court, highlighting that the trial was not conducted properly. The court found that the identification of the accused by the witnesses, who remained silent for five months due to fear of terrorists, was highly doubtful and lacked credibility. The judicial confessions of the accused were retracted and not corroborated by independent evidence. The court emphasized that retracted confessions alone could not form the basis for a conviction, especially when no other reliable evidence was presented. The court observed that the trial before the Anti-Terrorism Court failed to adhere to proper procedures, including the lack of proper cross-examination of witnesses and the presence of the Investigating Officer during the identification test, which compromised its impartiality. The court concluded that the prosecution failed to prove the guilt of the accused beyond a reasonable doubt. The convictions and sentences were set aside, and the appellants were acquitted. ----Citations/Precedents: Section 302/149 PPC Section 7(a) Anti-Terrorism Act, 1997 Section 544-A, Cr.P.C. Section 374, Cr.P.C. Liaquat Hussain v. Federation of Pakistan, 1999 SCMR 569 Section 176, P.P.C. Section 44, Cr.P.C. Nawab v. Crown, AIR 1923 Lahore 391 Emperor v. Kallu, AIR 1937 Oudh 259 Anna and others v. Hyderabad Fiuts, AIR 1956 Hyderabad 99 Noor Khan v. Haq Nawaz, PLD 1982 FSC 265 Badaiulsanai Fi Tartibisharai by Kasani, Vol. VII, pages 46 & 47 Tabyinul Haqaiq, Vol. III, page 187 Al Jarima by Abu Zahra, pages 79 to 90

Summary: PLJ 2004 Lahore 1136 [Rawalpindi Bench Rawalpindi] Present MAULVI ANWAR - UL - HAQ J EX - PA 29871 Captain SYED JAMIL ALI SHAH - Petitioner versus FEDERAL GOVERNMENT MINISTRY OF DEFENCE RAWALPINDI through THE CHIEF OF ARMY STAFF GENERAL HEAD QUARTER RAWALPINDI - Respondent WP No 913 of 2002 decided on 14112003 (i) Constitution of Pakistan 1973 - Art 199 Pakistan Army Act 1952 S 59 - Constitutional Jurisdiction - Ouster clause when not to take effect - Ouster clause pertaining to jurisdiction of superior Courts would not take effect where an act or proceedings was without jurisdiction coram - non - judice or malafide - Petitioner being Subject to Pakistan Army Act 1952 was lawfully tried by Field General Court Martial Convening whereof was not stated to be suffering from any invalidity - No malafides having been pleaded cucn to jurisdiction was not warranted [P 1138] A iii Constitution of Pakistan 1973 - - Art 199 - - Pakistan Army Act 1952 S 59 - - Conviction and sentence awarded to petitioner by Field General Court Martial assailed - - No malafide was alleged or proved - Record indicated that proceedings were conducted in a fair manner inasmuch as petitioner was informed of the charge on which he was to be triedpetitioner had service of defence counsel who cross - examined material witnesses produced by prosecution and there was no complaint of any hindrance in exercise of such right by petitioner - Procedure adopted by Martial Law could and trial conducted by that Court against petitioner cannot be described as arbitrary perverse or lacking in fairness in any manner so as to justify interference with same [P 1139] B (iii) Constitution of Pakistan 1973 - - - Art 199 - Pakitan Army Act 1952 S 59 - Conviction and sentence recorded by Court Martial - Legality - Unless case against petitioner was based on no evidence or gross - mis - reading of evidence so as to render judgment or verdict in question to be perverse and consequently coram - non - judice no interference would be warranted in conviction and sentence recorded by Court Martial [P 1139] C (iv) Pakistan Army Act 1952 - - S 59 - Constitution of Pakistan (1973) Art 199 - Non - recovery of weapon or - remaining empties - Effect - Non - recovery of weapon or remaining empties were to be looked into and considered in overall circumstances reflected in evidence - However verdict and proceedings and ultimate conviction and sentence were neither without jurisdiction or coram - non - judice nor do they suffer from any mala fide either in fact or in law - High Court being not a Court of appeal merely that a different view would be possible would not warrant interference in exercise of Constitutional jurisdiction [P 1141] D PLD 1989 SC 26 PLD 1996 SC 632 PLD 1996 SC 632 PLD 1999 SC 57 AIR 1994 SC 1918 and PLD 2001 SC 549 ref Col Muhammad Akram Advocate for Petitioner Ch Sultan Mansoor DAG Lt Col Iqbal Hashmi AJAG for RespondentsJudgement Result:Petition dismissed.

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Summary: (a) Offence of Zina (Enforcement of Hudood) Ordinance, 1979— ----S. 10(3)---Zina-bil-jabr (rape)---Prosecution case based on the allegations that the accused, being a family doctor, committed zina-bil-jabr with the complainant while she was unwell and alone in her room---Delay of 47 days in lodging F.I.R. with no plausible explanation---Complainant claimed she refrained from filing the report due to an expectation of marriage with the accused, which eventually did not materialize---Prosecution failed to furnish independent corroborative evidence to support the claim of sexual assault---Medical examination revealed that the complainant was accustomed to sexual intercourse, further weakening the prosecution’s case---Absence of semen detection on complainant’s clothes and absence of external injuries raised serious doubts about the occurrence of forced sexual intercourse---Trial Court convicted the accused and sentenced him to five years of rigorous imprisonment along with a fine of Rs.5000/-, payable to the complainant as compensation, with an additional one-year imprisonment in case of non-payment of fine. (b) Criminal Procedure Code (V of 1898)--- ----S. 342---Statement of accused---Accused, while denying the prosecution’s allegations, stated that the complainant falsely implicated him due to his refusal to marry her after his marriage to someone else---Accused produced documentary evidence of his marriage, establishing an alternate motive behind the accusation. (c) Administration of Justice--- ----Investigation Officer’s opinion---Investigating Officer concluded that the complainant had falsely implicated the accused due to her personal grudge---Trial Court, instead of objectively evaluating the evidence, unjustifiably passed adverse remarks against the Investigating Officer and initiated proceedings against him under S. 193, P.P.C. (Perjury)---Such strictures against the Investigating Officer were held to be uncalled for and were struck down by the Federal Shariat Court. (d) Criminal Trial---Burden of proof--- ----Onus always lies on the prosecution to prove its case beyond a reasonable doubt---Prosecution failed to establish the occurrence of zina-bil-jabr beyond reasonable doubt, as no corroborative evidence was presented apart from the complainant’s statement---Serious doubts were created due to the delayed F.I.R., absence of supporting forensic evidence, and lack of physical resistance from the complainant despite the alleged circumstances---High Court held that the prosecution had miserably failed to establish guilt and granted the accused the benefit of doubt. (e) Disposition--- ----Federal Shariat Court, in exercise of appellate jurisdiction, accepted the appeal of the accused, set aside the conviction and sentence awarded by the Trial Court, and ordered his release from jail---Criminal Revision for enhancement of sentence filed by the complainant was dismissed, and suo moto notice issued for sentence enhancement was recalled.

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Summary: Summary pending.