Ghulam Fareed vs State etc.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

JUDICIAL DEPARTMENT

Criminal Appeal No.200-J of 2021 Ghulam Fareed Versus The State

JUDGMENT

Date of hearing: 11.06.2026 Appellant by:- Malik Shafiq Ahmad Kalrou, Advocate. State by:- Rana Laeeq ur Rehman, Assistant District Public Prosecutor.

Complainant by:- Nemo.

MUHAMMAD AMJAD RAFIQ, J:- While traversing the record of this appeal, we found ourselves confronted with weighty propositions of law striking at the very foundation of the impugned decision. Foremost among them are: the evidentiary worth of DNA reports, the prohibition against transmuting charges from one sexual offence to another, and the effect of a decree of jactitation of marriage upon criminal adjudication where the consent of a rape survivor is in issue. These questions are not peripheral but central, for upon their resolution depends whether the judgment dated 05.03.2021, rendered by the learned Additional Sessions Judge, Kot Addu, may stand or must fall. By the said judgment, Ghulam Fareed, the accused-appellant, stood convicted under Sections 376(i) and 496A of the Pakistan Penal Code 1860 (“PPC”) in consequence of FIR No. 179 dated 17.04.2010 registered at Police Station Sarwar Shaheed, District Muzaffargarh, for the alleged abduction and rape of the complainant’s daughter. He was sentenced to rigorous imprisonment for seven years along with a fine of Rs. 400,000/- under Section 496A PPC, and to rigorous imprisonment for twenty-five years together with a fine of Rs. 400,000/- under Section 376 PPC. In default of payment of each fine, he was directed to undergo six months’ simple imprisonment. Both sentences were ordered to run

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concurrently, and the benefit of Section 382B of the Code of Criminal Procedure 1898 (“Cr.P.C”) was extended in his favour.

The solemn duty before us is to weigh these legal propositions with scrupulous care, for they pierce to the marrow of criminal justice and determine whether the conviction rests upon firm legal ground or upon infirmity.

2.A perusal of the application for registration of FIR (Ex.PA), tendered by Mulazim Hussain, complainant (PW-05), while nominating Ghulam Fareed s/o Ghulam Sarwar (appellant), Ghulam Akbar s/o Allah Dita and Sughran Mai w/o Ghulam Akbar unveils the prosecution’s case in the following manner:

“On the intervening night betwixt 6th and 7th March, 2010, the complainant, having returned from his shop, retired to repose within the precincts of his dwelling. At about 10:00 p.m., his slumber was interrupted by his wife, who apprised him that Mst. Sughran Mai, co-accused (since acquitted), had entered their abode and taken away their daughter, Mst. Surayyia Bibi, who thereafter failed to return. Alarmed by this disclosure, the complainant forthwith contacted Muhammad Javed Akhtar, husband of the missing lady and son-in-law of the complainant. Accompanied by Muhammad Javed Akhtar and Faiz Ullah, his son, the complainant hastened to the residence of Mst. Sughran Mai in quest of the abducted girl, but discovered that she had already departed, having locked her house.

It is further alleged that upon reaching Multan Road, they encountered witnesses Niamat Ali and Khalid Hussain, who informed them that they had espied the accused persons journeying towards Multan in a white double-cabin pickup. On the morrow, the complainant, together with the said witnesses, visited the house of Ghulam Akbar, co-accused (since acquitted), and inquired as to the whereabouts of Mst. Surayyia Bibi. The said accused allegedly confessed to having taken her away and assured that she would be restored within two days. However, despite the lapse of the promised period, the lady was not returned, whereupon the complainant entertained the suspicion that the accused persons had kidnapped her with the nefarious intent of subjecting her to zina. Hence, the present case was set in motion.

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3.Upon registration of FIR No. 179, investigation was completed and a report under Section 173 Cr.P.C. submitted. The accused were charge-sheeted, denied the allegations, and stood trial. The prosecution examined ten witnesses; thereafter, the accused were examined under Section 342 Cr.P.C., denied guilt, and produced defence evidence without entering the witness box under Section 340(2). The trial culminated in conviction and sentence of the appellant as earlier detailed, while Muhammad Akbar and Mst. Sughran Bibi were acquitted.

4.We have given our anxious consideration to the arguments of learned counsel for the appellant, learned Assistant District Public Prosecutor and examined the entire record.

5.Admittedly, the occurrence is alleged to have transpired on the night intervening 6th and 7th March, 2010, yet the First Information Report came to be lodged only on 17th April, 2010, after a considerable lapse of time. The complainant endeavoured to justify this delay by asserting that he had approached the police earlier; nevertheless, the undeniable reality remains that the machinery of criminal law was not set into motion with promptitude, despite the complainant’s professed knowledge, from the very inception, of the persons whom he suspected to be involved. Such procrastination in lodging the FIR cannot be brushed aside as a mere procedural irregularity. It assumes grave significance in the peculiar facts of the case, where allegations of abduction, rape, and fraudulent marriage were levelled against individuals admittedly known to the complainant and his family. The law, in its wisdom, has always regarded prompt reporting as a safeguard against embellishment, concoction, and afterthought. Delay, when unexplained or inadequately explained, casts a long shadow upon the veracity of the prosecution’s narrative, for it affords opportunity to fabricate, to deliberate, and to mould accusations in a manner calculated to ensnare adversaries of choice. In the present matter, the hiatus of more than a month between the alleged occurrence and the registration of the FIR renders the prosecution’s case inherently suspect. The complainant’s assertion of prior approach to the police, unsubstantiated by any

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contemporaneous record, fails to dispel the cloud of doubt. Where the allegations are of so grave a nature, touching upon the honour, liberty, and chastity of a woman, the absence of immediate recourse to the law is not merely a procedural lapse but a substantive infirmity, striking at the root of the prosecution’s edifice.

6.The prosecution’s narrative further falters when it seeks to stage the recovery of the complainant’s daughter in the immediate presence of the accused/appellant at Sinawan Morr, a thickly populated public place situated on Multan Road, on the very day the FIR was registered, i.e., 17.04.2010. The astonishing feature of this account lies in the paradox that, for more than a month, the complainant professed inability to trace his daughter, yet the moment the FIR was lodged, the police purportedly lifted the veil and presented her at Sinawan Morr, allegedly in company of the appellant. Such a tale, in its very essence, bears the hallmarks of contrivance; it requires no elaborate rebuttal, for it collapses under the weight of its own improbability. It is manifest that the purpose of this theatrical recovery was to fabricate evidence against the appellant. The evidence of recovery is riddled with contradictions that fatally undermine the prosecution’s case. Curiously, despite the so-called spy information, the accused/appellant is said to have escaped from the clutches of the police, a circumstance that itself strains credulity. More significantly, Muhammad Akram SI (PW-3) candidly admitted that no independent witness was associated with the recovery proceedings, notwithstanding the presence of numerous persons at the site. He further conceded that no rapat was recorded regarding the alleged spy information or the police preparation for recovery, nor was the Station House Officer apprised of the matter. He claimed the police party pursued the appellant for nearly one kilometer after his escape, whereas the complainant Mulazim Hussain (PW-5) categorically stated that no chase was undertaken. PW-3 further insisted that the recovery was effected at Sinawan Morr, yet PW-5, under cross-examination, failed to support this assertion. These omissions are not trivial; they strike at the very root of the prosecution’s case. In criminal jurisprudence, when the foundational link itself collapses under contradiction, the edifice of the

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prosecution cannot stand. The principles of criminal jurisprudence demand that recoveries, particularly those forming the substratum of grave allegations, must be conducted with scrupulous fairness, transparency, and adherence to procedure. The absence of independent corroboration, the failure to record contemporaneous entries, and the non-involvement of the SHO collectively cast a serious shadow upon the authenticity of the recovery proceedings. In law, such lapses are not mere irregularities but substantive infirmities, for they erode the credibility of the evidence and offend against the settled principle that justice must not only be done but must manifestly appear to be done.

7.The testimony of the prosecutrix, too, demands the most cautious scrutiny. The FIR, registered on 17.04.2010, the very day the alleged recovery was staged, merely recounted that Mst. Sughran Mai had taken the prosecutrix from the complainant’s house and that she had not returned. However, after her recovery prosecutrix remained at the police station throughout the night and before the recording of her statement under section 164 Cr.P.C. Both PW-3 and the prosecutrix admitted that during this period her parents and relatives had access to her and her mother remained with her. Consequently, the statement under section 164 Cr.P.C. cannot be viewed entirely detached from these surrounding circumstances. Furthermore, the learned Magistrate (PW-10) admitted that no photograph or CNIC of the prosecutrix was attached with the statement and that the factum of her identification by the Investigating Officer was not recorded in the order sheet. Yet, when her statement under Section 164, Cr.P.C. (Ex.PJ/1-5) was recorded on 03.05.2010, she implicated all three accused along with two unknown in abduction and illegal confinement at different places, but significantly refrained from levelling any allegation of rape against any of them, including the appellant. However, in her deposition before the trial court, she introduced for the first time a substantially improved version: that her mouth was forcibly tied, she was taken at gunpoint in a white Hilux vehicle, confined at various places, subjected to rape by the appellant Ghulam Fareed and co-accused Akbar, photographed, and coerced into signing blank papers. These assertions are not mere elaborations but

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material improvements, new and weighty allegations absent from her earlier accounts. It is a well-settled principle of criminal jurisprudence that when a witness introduces substantial facts at trial which do not find mention in the initial version, such improvements gravely impair credibility. Courts have consistently held that material contradictions and afterthoughts erode the sanctity of testimony, for truth requires consistency, and embellishment is the hallmark of fabrication. In the present case, the prosecutrix’s shifting narrative strikes at the very foundation of the prosecution’s edifice, rendering her testimony unsafe for reliance without independent corroboration.

8.The conduct attributed to the prosecutrix during her alleged confinement also warrants serious consideration. By her own account, she remained at different places for over a month, first in a village house surrounded by other dwellings, then near Gurmani, and thereafter in the appellant’s residence where his parents resided. Ultimately, she was found at Sinawan Morr, a bustling locality with shops, petrol pumps, and textile mills, where she lingered for more than an hour before police arrival. Yet, the prosecution produced no independent witness from any of these places, nor did it establish that the prosecutrix made any attempt to seek assistance from those around her. Though it is true that victims may react differently under duress, these circumstances form part of the evidentiary mosaic which the Court cannot disregard. The absence of corroboration and the prosecutrix’s passive conduct in populated surroundings gravely diminish the reliability of the prosecution’s case.

9.The medical evidence, too, fails to furnish the degree of corroboration that the gravity of the allegations demands. The prosecutrix was subjected to medical examination only on 18.04.2010, after the lapse of more than a month from the alleged occurrence. The lady doctor categorically found no mark of violence upon any part of her body, nor any injury upon her private parts. Most significantly, she refrained from opining that rape had occurred. Thus, the medical evidence does not independently advance the prosecution’s case; it merely establishes that samples were obtained for forensic purposes. In criminal jurisprudence, medical testimony is expected to lend assurance

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to the ocular account, yet here it stands silent on the central allegation. The absence of injuries, coupled with the doctor’s non-committal opinion, renders the medical evidence neutral at best and incapable of corroborating the prosecutrix’s improved version. It is well settled that where medical evidence does not support the charge, it weakens the substratum of the prosecution’s case and casts serious doubt upon its veracity.

10.The prosecution has placed heavy reliance upon the DNA report which says that the appellant "cannot be excluded as being the source of partial but minor DNA contributor in the sperm fraction." Learned counsel for the petitioner contends that DNA evidence is merely corroboratory in nature and cannot, by itself, sustain a conviction. Once the substantive evidence collapses, the prosecution case cannot be salvaged through corroboratory material. In support of this contention, reliance has been placed upon case reported as “Muhammad Hassan v. The State and others” (2024 SCMR 1427) and “Salamat Mansha Masih v. The State and another” (PLD 2022 SC 751). The pivotal question in the present matter is whether the exception applies where the entire trial rests solely upon forensic evidence in the form of a DNA matching report. It is trite law that DNA evidence is not substantive but corroborative, and conviction cannot be founded merely upon corroborative material. In this regard, reference may be made to cases reported as “Riaz Ahmed v. The State” (2010 SCMR 846), “Muhammad Hassan v. The State and others” (2024 SCMR 1427), and “Salamat Mansha Masih v. The State and another” (PLD 2022 Supreme Court 751). Judicial pronouncements have consistently held that conviction based solely on DNA evidence would be unsafe. Reliance is placed upon cases reported as “”Atta ul Mutafa v. The State and another” (2023 SCMR 1698), “State of Gujarat v. Jayantibhai Somabhai Khant” (2015 Crl.L.J 3209), and “Nagappa v. The State of Karnataka” (2019 SCC Online Kar 3880). In certain cases, even where DNA established biological paternity, courts rejected such evidence upon resiling of the complainant/victim and acquitted the accused. Illustrative references include “Premjibhai Bachubhai Khasiya v. State of Gujarat and

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another” (2009 Crl. L J 2888), “Suresh Devidas Malche v. The State of Maharashtra” (Appeal No. 306 of 2016), and “Nazim v. The State” (Criminal Appeal No. S-98 of 2021, decided on 15.12.2023 by the High Court of Sindh, Circuit Court, Hyderabad). Furthermore, in case reported as “Kaneez Fatima and another v. Senior Civil Judge (Family Division) and 2 others” (PLD 2024 Lahore 715), this Court held that for determination of paternity, physiognomy must be preferred over DNA evidence. Physiognomy, being a form of circumstantial evidence, examines resemblance in bodily and physical features of the child with the claimants. The rationale for treating DNA evidence as unsafe when relied upon exclusively has been cogently explained in case reported as “Nagappa v. The State of Karnataka” (2019 SCC Online Kar 3880), wherein the Court observed that DNA, though a powerful scientific tool, cannot substitute substantive evidence and its sole reliance may lead to miscarriage of justice, which is as under;

“..........because entire process of procuring the DNA evidence is controlled by human agencies i.e., Investigating Officers and forensic scientist, there is ample chance of manipulation, tempering of such evidence by corrupt officers or scientist which needless to say highly prejudices the accused persons. Even preservative methods adopted are not properly brought on record. “......that it is highly unsafe to rely upon the sole DNA test to convict the person on the basis of said test. There must be a unique balance between scientific evidence and human evidence. Therefore, existing value based criminal justice system cannot be done away with and as such, a susceptible balance has to be struck between modern system based on scientific and technological knowledge and our existing value based system”.

It has further been observed that the constitutional guarantee against self-incrimination, enshrined in Article 13 of the Constitution of the Islamic Republic of Pakistan 1973, operates as a safeguard against the unqualified reliance upon DNA evidence. Article 13 categorically provides that no person shall be compelled to be a witness against himself. While statutory law, through Section 53A of the Code of Criminal Procedure, permits the collection of DNA samples from an accused charged with rape, such evidence is admissible only as an ancillary aid. It cannot, in isolation, furnish the foundation for conviction. To hold otherwise would be to render a conviction

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unconstitutional, for DNA evidence, by its very nature, is corroborative and must be read in conjunction with other substantive evidence before it can support a finding of guilt.

11.Most significantly, the prosecutrix imputed the offence of rape to co-accused Muhammad Akbar. The learned trial Court, however, acquitted Muhammad Akbar as well as Mst. Sughran Bibi of the charge, and the prosecution has not preferred any appeal against their acquittal. The allegation of rape against Muhammad Akbar, therefore, stands judicially disbelieved and has attained finality. Once a substantial and inseparable portion of the prosecutrix’s testimony has been rejected, the residue of her account cannot be accepted mechanically. The maxim falsus in uno, falsus in omnibus, false in one thing, false in everything, though applied with caution, becomes particularly relevant in circumstances where a witness attributes participation to multiple accused, yet the prosecution fails to sustain the charge against some of them. In such a situation, the Court is enjoined to exercise heightened scrutiny, for selective acceptance of testimony is impermissible when the witness has been found unreliable in material particulars. The rule of cautious appraisal thus assumes paramount importance, and without independent and convincing corroboration, the remaining part of the prosecutrix’s evidence cannot safely be made the foundation of conviction.

12.The defence plea that the prosecutrix had contracted marriage with the appellant cannot be dismissed out of hand. It stands admitted on record, even through the complainant himself, that the appellant had instituted proceedings for restitution of conjugal rights. Suggestions regarding execution of an affidavit, initiation of proceedings before the ex-officio Justice of the Peace, and the alleged marriage between the prosecutrix and the appellant were consistently put to the prosecution witnesses. Though the prosecutrix denied these assertions, the contemporaneous plea of marriage constitutes a circumstance necessitating cautious appraisal of the prosecution evidence. In contrast, the prosecution, relying upon the decree of jactitation of marriage, has advanced the contention that by virtue of such decree the consent of the

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prosecutrix stands extinguished, and the offence of rape stands ipso facto established, for the appellant has not denied sexual intercourse with the prosecutrix but sought to justify it under the cloak of a valid marriage. It was further urged that the decree of the Family Court operates with binding force upon the criminal court, thereby precluding this Court from embarking upon any inquiry into the question of consent.

13.The core issue before the court is to the effect that as to whether a decree of jactitation of marriage precludes the criminal court from appreciating the existence of free consent between the parties for sexual intercourse at a particular occasion of time. The Family Courts Act, 1964 provides the remedy of jactitation of marriage, declaring a claimed marriage null and void. However, criminal jurisdiction under Section 375 PPC is concerned with the voluntariness of sexual intercourse at a specific point in time. The absence of marriage does not exhaust the inquiry into consent. The offence of rape hinges on lack of consent, not marital status. Even if marriage is declared void, the criminal court must independently assess whether the survivor voluntarily consented to sexual intercourse on the occasion in question. The Supreme Court in a case reported as “Mst. NASEER BEGUM versus SAIN AND 6 OTHERS” (1972 SCMR 584) has held as under

Learned counsel appearing in support of this petition reiterates the contention that the judgment of the civil Court should have been taken into account, before arriving at a decision in the criminal case. We are unable to agree, because, as pointed out by the Privy Council in the case of Kumar Gopika Raman Roy v. Atal Singh (AIR 1929PC99) "the Evidence Act does not make of a fact arrived at on the evidence before the Court in one case evidence of that fact in another case." Thus, a judgment in a civil Court, as pointed out by M. Munir in his Law of Evidence, "is not admissible in a criminal proceeding to establish the truth of the facts upon which it is rendered. In a criminal trial it is for the Court to determine the question of the guilt of the accused and it must do so upon the evidence before It".

Civil decrees do not conclusively bind criminal proceedings, as standards of proof differ. Criminal law requires proof beyond reasonable doubt, whereas civil decrees rest on preponderance of evidence. Thus, a decree of jactitation cannot oust the criminal court’s duty to evaluate consent. Treating jactitation decrees as conclusive in criminal trials

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would enable misuse of civil remedies, shielding offenders from scrutiny of consent. Criminal courts must guard against such manipulation by independently appreciating evidence. Under the Qanun-e-Shahadat Order, 1984, all relevant facts must be considered. A decree of jactitation is one fact, but not determinative. Harmonious construction requires the criminal court to weigh it alongside survivor testimony and surrounding circumstances. In a case reported as “NADEEM Versus THE STATE and another” (2012 P Cr. L J 1629), the Federal Shariat Court observed as under;

The suit for jactitation of marriage was decreed in favour of Mst. Amna victim, therefore, the factum of Nikah between the appellant and the victim is not established yet the fact remains that the victim of her own left her house and went away with the appellant with her free consent and it was thereafter when she along with the accused was arrested, she got recorded statement against the appellant and also filed suit for jactitation of marriage. This part of the occurrence is established from the facts and circumstances of the case. However, the element of force is not proved from the evidence available on the record even the medical evidence does not show any mark of violence on the body of the victim. In this situation the ingredients of offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance are not established and at the most this case would tend to fall under section 10(2) of the Ordinance, in the circumstances.

This Court holds that a decree of jactitation of marriage does not preclude the criminal court from appreciating the existence of free consent between the parties for sexual intercourse at a particular occasion of time. The criminal court must independently assess the evidence on record, as consent remains a distinct and indispensable element in determining liability under Section 375 PPC.

14.During the course of arguments, when the tenor of the contentions and the complexion of the evidence pointed towards the existence of consensual acts between the prosecutrix and the appellant, the learned Assistant District Public Prosecutor advanced the submission that, even if the matter be treated not as one of rape but of fornication, the appellant would nonetheless remain liable under the law. The contention is devoid of force. The appellant was tried and convicted under sections 376(i) and 496-A PPC. We are not convinced with such submissions because when prosecution is initiated on a specific allegation such as zina, rape,

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fornication, enticement of a woman or abduction, the case must be tried strictly within the statutory framework governing that offence. The law prohibits conversion of one form of prosecution into another for the purpose of conviction. This principle is expressly embodied in Section 5A of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which forbids conversion between complaints of zina and fornication, or their substitution with offences of similar nature under any other law, and of course by implied interpretation of this principle, the prohibition conversely extends to substitution of offence of rape with fornication and it is legally justified in terms that mode of taking cognizance in such offences differs to each other. Allowing conversion between offences would collapse these procedural safeguards, undermining legislative intent. This prohibition reflects the legislature’s recognition that evidentiary thresholds and punishments differ fundamentally between these offences. Though Sections 237 and 238 Cr.P.C. permit substitution of charges where evidence supports conviction for a different offence. However, this general flexibility is curtailed in sexual offences, where the legislature has carved out an exception.

The statutory scheme establishes a non-convertibility principle for sexual offences: once cognizance is taken under a specific provision, the prosecution cannot be shifted to another offence, even if the evidence might suggest otherwise. This ensures fidelity to legislative design, preserves procedural safeguards, and prevents courts from exercising discretion in a manner inconsistent with the statutory framework. The Court cannot sustain a conviction merely on the hypothesis that the parties may have engaged in consensual sexual relations. Fornication and rape rest upon fundamentally different factual foundations. Once the prosecution fails to establish absence of consent and fails to prove the allegations in the manner set up in the charge, conviction cannot be maintained by substituting an altogether different factual premise.

15.The cumulative effect of the aforesaid circumstances, namely the delayed initiation of proceedings, doubtful recovery, absence of independent corroboration, material improvements in the testimony of

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the prosecutrix, weaknesses in the medical evidence, in consequential nature of the DNA opinion, admitted access of family members to the prosecutrix before her statement under section 164 Cr.P.C., the defence plea of marriage and the acquittal of co-accused Muhammad Akbar against whom an identical allegation of rape was levelled, creates multiple circumstances giving rise to reasonable doubt in the prosecution case. It is by now well settled that a single circumstance creating reasonable doubt is sufficient to entitle an accused to acquittal as a matter of right and not of grace or concession.

16.In criminal jurisprudence, it is a cardinal principle that the prosecution must prove its case beyond reasonable doubt, and any doubt, if reasonable, must be resolved in favour of the accused. In the present case, the prosecution has failed to meet this standard. The contradictions in ocular testimony, lack of medical corroboration & doubtful circumstances collectively render the case highly uncertain.

17.It is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. In attending circumstances, prosecution has failed to prove the charge against the accused/appellant beyond shadow of doubt and numerous doubts crept into the evidence, therefore, benefit of which is extended to the appellant not as a matter of grace but as a matter of right. Reliance is on cases reported as “MAQSOOD ALAM and another Versus The STATE and others” (2024 SCMR 156), “ABDUL QADEER Versus The STATE” (2024 SCMR 1146), “MUHAMMAD IMTIAZ BAIG and another Versus The STATE through Prosecutor General, Punjab, Lahore and another” (2024 SCMR 1191), “MUHAMMAD HASSAN and another Versus The STATE and others” (2024 SCMR 1427), “KHIAL MUHAMMAD Versus The STATE” (2024 SCMR 1490) & “MUHAMMAD IJAZ alias BILLA and another Versus The STATE and others” (2024 SCMR 1507).

18.For the foregoing reasons, instant criminal appeal is allowed, conviction and sentence of the appellant (Ghulam Fareed) awarded by the learned trial Court through impugned judgment is hereby set-aside. He is acquitted of the charge and directed to be released forthwith, if not

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required to be detained in any other case. The case property, if any, be disposed of in accordance with law and record of the learned trial Court be sent back immediately.

( (SADIQ MAHMUD KHURRAM) (MUHAMMAD AMJAD RAFIQ)

JUDGE JUDGE

Approved For Reporting:

JUDGE JUDGE

Signed on 19.06.2026 M. Azhar *