2026 PLP 947 (SCMR)

MUHAMMAD ALI MAZHAR, J.

This Criminal Petition for leave to appeal is directed against the Order dated 12.02.2020 passed by the Lahore High Court, Rawalpindi Bench, in Criminal Appeal No.35/2020, whereby the appeal filed against the acquittal of the respondent No.1 was dismissed.

2. The record reflects that aforesaid criminal petition for leave to appeal, was originally fixed at principal seat of this Court at Islamabad on 03.03.2025 but due to absence of the petitioner, it was dismissed for non-prosecution. However, the petitioner filed Crl. M.A. No. 506 of 2025 for restoration of the criminal petition which was again fixed at principal seat of this Court at Islamabad and vide order dated 18.09.2025, the learned bench which seized of the matter restored the criminal petition to its original position and also issued directions to fix the aforesaid petition for leave to appeal at Karachi Registry before the first available Bench, therefore, the matter is fixed today before us for hearing. Although the notice with actual date of hearing was issued by the office to the Prosecutor General Punjab through Deputy Registrar, Lahore Registry of this Court but non appeared on his behalf.

3. According to the narrative of the petitioner, she lodged FIR No. 198/2018 on 24.10.2018 at Police Station Saddar, Attock under Section 420 of Pakistan Penal Code, 1860 (P.P.C.) against the respondent No.1 (Altaf Ahmed Khan-Ex-husband of the petitioner) on the allegations that he prepared a fake Nikahnama and submitted to his employer i.e. Pakistan Aeronautical Complex, Kamra (PAC). A Report under Section 173 of Criminal Procedure Code, 1898 (Cr.P.C) was submitted in the trial Court and after framing of the charge the prosecution produced their witnesses. The statement of respondent No.1 was also recorded under Section 342 Cr.P.C. However, vide judgment dated 22.01.2020, the respondent No.1 was acquitted by the learned Senior Civil Judge (Criminal Division) Attock. Being aggrieved, the petitioner filed Acquittal Appeal under Section 417 (2-A) of Cr.P.C in the Lahore High Court, Rawalpindi Bench which was dismissed vide impugned order.

4. The petitioner in person argued that her name is Shaista Qaisar who entered into matrimonial relationship with respondent No.1 by virtue of a Nikahnama dated 18.11.1992. She averred that respondent No.1 was serving in PAC where he submitted a fake Nikahnama dated 09.5.1989 to show that his marriage is solemnized with one Qaiser Khanam. She further argued that the prosecution witnesses corroborated the case on all material points with confidence inspiring testimony but both the Courts below ignored it. It was further averred that the respondent No.1 divorced her on 05.04.2011 but he was receiving benefits from the concerned department through fake Nikahnama. Though the departmental inquiry report was submitted to prove the guilt but it was also not considered by the Courts below. It was further averred that the respondent No. 1 handed over the Nikahnama to the petitioner with the pretext that on the Nikahnama her name is Qaisar Khanum and not Shaista Qaisar . She also complained that Investigating Officer (I.O) inadvertently mentioned the name as Shaista instead of Qaiser Khanum in the recovery memo/Fard Maqboozgi. She concluded that the impugned judgments are result of misreading and non-reading of the evidence hence both are liable to be set aside.

5. Heard the arguments. The record reflects that the Nikahnama (Ex.PD) was recovered by the police vide recovery memo (Ex.PE) from the Office of Assistant Director, PAC, along with the inquiry report (Ex.PC). Neither the petitioner nor the prosecution produced any witness from PAC to authenticate such documents. When the whole edifice of the prosecution was built on the Nikahnama submitted to PAC for obtaining some unlawful gains or benefits then it was obligatory to produce the Inquiry Officer and Record Keeper of PAC. Even at the time of making alleged recovery of aforesaid documents, nothing was shown as to whether any witness was associated from the Office of Assistant Director, PAC, rather only police officials were the witnesses. Quite surprisingly, the original Nikahnama dated 09.5.1989 was produced by none other than the petitioner herself before the trial Court during the hearing of an application moved under Section 249-A Cr.P.C. which demonstrates that everything was perfectly well within her knowledge from the beginning. Furthermore, the Nikahnama in question was never sent for forensic test or to handwriting expert for verifying its genuineness. In our view too, the star witness in this case could have been the custodian of PAC record to depose and testify the actual position along with the details of benefits if any availed, on account of alleged fake Nikahnama but neither any witness was produced nor called upon through summon of the Court as prosecution witness to verify the genuineness of official record.

6. At this juncture, Article 129 of the Qanun-e-Shahadat, 1984 (QSO) is somewhat relevant which vociferously accentuates that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Predominantly, Illustration (g) of this article demonstrates that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it.". The substratum of the aforesaid illustration is structured on the notion that if any party withholds the best piece of evidence, then it can fairly be presumed that the party had some sinister motive behind it and if any such witness would have been examined, his evidence would have been unfavorable to the prosecution. Much dismay was shown by the petitioner that her name is Shaista Qaiser and not Qaiser Khanum but the record reflects that she was issued CNIC No.42201-0529826-6 on 14.03.2002 in the name of Qaiser Khanum . However, it appears that after divorce on 05.04.2011, she was issued another CNIC No.44204-2231651-2 on 28.02.2012 in the name of Shaista Qaiser . By the way, the etymology of honorifics Khanum or Hanam in effect demonstrates a title and descriptive name from Persia and T rkiye for a Lady, Noblewoman, Princess or Madam. In the present case, it is evident that during the period of matrimonial ties, both the CNIC as well as Medical treatment card issued by PAC were in the name of Qaiser Khanum and according to the evidence recorded, she also purchased the property in the same name and maintained complete silence without any protest but after culminating the matrimonial ties on 05.04.2011, she set the law into motion almost after seven years without explaining or justifying inordinate delay.

7. The learned trial Court proficiently considered every nook and cranny of the prosecution case. The composite effect is emerging inter alia from paragraphs 16 to 19 of the learned trial Court judgment such as Nikah of petitioner complainant was solemnized with the respondent No.1 on 18.11.1992 but no such Nikahnama was produced by the prosecution in the evidence nor any other witness of the marriage; IO deposed that he did not investigate which of the Nikahnama was genuine; original of the alleged fake Nikahnama was in the custody of petitioner which was produced by her in Court but could not explain how said document came in her possession; it was also admitted in the cross-examination by the petitioner that she was in the knowledge of factum of alleged fake Nikahnama from its inception; she further admitted that her medical card was issued by the PAC with the name of Qaiser Khanum and she was using that card for her treatment during the conjugal bond; she also admitted to have purchased 03-Marlas of land in the name of Qaiser Khanum during nuptial.

8. As a matter of fact, the petitioner lodged the FIR under Section 420 of P.P.C., which offense is in fact germane to the cheating and dishonestly inducing delivery of property and under the command of this section, whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment, of either description for a term which may extend to seven years, and shall also be liable to fine. What is the yardstick or acid test of proving this offence? To prove the guilt, the prosecution has to substantiate that the accused has deceived the victim and misrepresented the facts, made false promises, and or deliberately concealed the truth from the very beginning of the transaction; the intention to cheat or gain unlawfully should be established from the outset; the victim must have been motivated and inundated or swayed by the disingenuous representation to act; delivery of property or worthfull security; the straight upshot of the inducement must be altering or obliterating a valuable security or document and the act must have actuated harm/injury or impairment to the victim. If the respondent No.1 had submitted fake Nikahnama to his employer (PAC) then at best, the actual cause of action to set the law into motion for the alleged fraud or deception would have accrued to employer to lodge the criminal proceedings for indictment but no such action was taken and the matter was dropped by them on censure. On the contrary, the evidence is evocative of the fact all such events were in the knowledge of petitioner from inception who was maintaining complete silence till divorce. Neither she raised any demur nor any plausible explanation was offered to overcome the inordinate delay in lodging the FIR. In the peculiar facts and circumstances, the exactitudes as well as the constituents of Section 420 P.P.C. for the offence of cheating and dishonestly inducing delivery of property, or deceiving to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security are not attracted to indict the respondent No.1.

9. In sync, it is also reminiscent to expound the doctrine of mens rea which is derived from a Latin word, conveying the meaning as guilty mind . Without a doubt, it is the foundation stone of indictments under the criminal law. In unison, a legal maxim, "actus non facit reum nisi mens sit rea" is also pertinent which decrypts "an act does not make a person guilty unless the mind is also guilty". Most of the crimes require corroboration both physical (actus reus) and the guilty mind (mens rea). The element of mens rea is the state of mind which by and large is also necessary to prove the culpability in a criminal trial. However in the strict liability crime, it is sufficient to prove that the accused committed the offence, regardless of his mental state, therefore, a guilty state of mind is immaterial or neither here nor there to a strict liability offenses. This doctrine is focused upon the discernment that one must possess a guilty state of mind and be aware of his or her misconduct; however, a defendant need not know that their conduct is illegal to be guilty of a crime. Rather, the defendant must be conscious of the facts that make his conduct fit the definition of the offense. Ref: Staples v. United States, 511 US 600 (1994) . Justice Oliver Wendell Holmes exceptionally exemplified the concept of intent when he said even a dog knows the difference between being stumbled over and being kicked.

10. It is a well-settled exposition of law that an acquittal is called a "double presumption of innocence" which is structured on the philosophy innocent until proven guilty . It is not compulsory that there should be several circumstances creating doubts in order to justify the extension of this benefit to the accused; on the contrary, even a single circumstance creating reasonable doubt vis- -vis the guilt of the accused is sufficient to entitle him to such benefit. In quintessence, an acquittal is not merely a verdict of not guilty, rather it is a ratification and endorsement that the state failed to discharge burden of proof to the guilt hence such confirmation of declaring an accused not guilty maintains exalted reverence. The Courts conventionally get in the way of acquittal in the rare and peculiar set of circumstances where on the face of it, the acquittal seems to be perverse, arbitrary, fanciful, or a gross miscarriage of justice or a gross misreading or non-reading of material evidence or based on glaring errors or misapplication of law.

11. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice and the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. We are mindful of the phrase that the accused is the favourite child of law ; however, it is somewhat enlightening to understand why this axiom was not coined contrariwise to say the victim is the favourite child of the law . The substratum of this concept is based on the farsightedness and prudence, let a hundred guilty be acquitted but one innocent should not be convicted ; or that it is better to run the risk of sparing the guilty than to condemn the innocent. The raison d tre is to assess and scrutinize whether the police and prosecution have performed their tasks accurately and diligently in order to apprehend and expose the actual culprits, or whether they dragged innocent persons in the crime report on account of a defective or botched-up investigation which became a serious cause of concern for the victim who was deprived of justice.

12. The philosophy of the turn of phrase the accused is the favourite child of law does not imply that the Court should grant any unwarranted favour, indulgence or preferential treatment to the accused, rather it was coined to maintain a fair-minded and unbiased sense of justice in all circumstances, as a safety gauge or safety contrivance to ensure an evenhanded right of defence, with a fair trial for compliance with the due process of law, which is an integral limb of the safe administration of criminal justice, crucial in order to avoid erroneous verdicts, and to advocate for the reinforcement of the renowned doctrine innocent until proven guilty . This principle is meant to safeguard impartiality and evenhandedness to nourish the egalitarianism in the criminal administration of justice. Certain legal maxims are quite germane at this juncture such as Ei incumbit probatio qui dicit, non qui negat (burden of proof lies upon him who affirms, not he who denies); Actori incumbit probation (burden of proof lies on the plaintiff or prosecution); Affirmanti non neganti incumbit probation; (The burden of proof lies upon him who asserts and not upon him who denies); Dubio secundum reum potius quam secundum actorem litom Dori opertet (where the case is doubtful, the decision should be passed in favor of the defendant and not the plaintiff); Omnis indemnatus pro innoxio legibus habetur (Everyone who has not been found guilty is deemed innocent by the laws). Last but not least, the legal maxim on the principle of benefit of doubt is also keystone of our administration of criminal justice system i.e. In dubio pro reo (when in doubt, the judge must rule in favor of the accused).

13. In the case of Muhammad Riaz v. Khurram Shehzad (2023 SCP 373 = 2024 SCMR 51 =2024 SCLR 9), one of us, while speaking for the bench held that in all indictments, it is the arduous duty of the prosecution to prove the guilt of the accused beyond any reasonable doubt as where such doubt exists, the Court may extend the benefit thereof to the accused and exonerate him from the charge. The probative worth and value of evidence hinges, by and large, on the facts of each case. The term beyond reasonable doubt is a legal fiction whereby a hefty burden of proof is required to be discharged to award or maintain a sentence or verdict of guilt in a criminal case. Indubitably, the standard of proof required in a criminal trial is considerably greater than the benchmark adopted in the trial of civil cases i.e. on a balance of probabilities. It is a well settled principle in the criminal justice system that if two sensible and judicious conclusions can be drawn keeping in mind the substance of the evidence, then the view which espouses and provides backing towards acquittal must be subscribed and assented to. The doctrine of presumption of innocence is structured on the fundamental principle that every person is presumed to be innocent unless proven guilty and, in the event of an acquittal, the presumption of innocence is reinvigorated, fortified and strengthened. It is a well-settled exposition of law that in an appeal against acquittal, the Court would not ordinarily interfere and would instead give due weight and consideration to the findings of the Court acquitting the accused which carries a double presumption of innocence, i.e. the initial presumption that an accused is innocent until found guilty, which is then fortified by a second presumption once the Court below confirms the assumption of innocence, which cannot be displaced lightly.

14. As a result of above discussion, we do not find any illegality, irregularity or perversity in the impugned order dated 12.02.2020 rendered by the learned High Court and the judgment passed by the learned trial Court on 22.01.2020. Consequently, this Criminal Petition is dismissed. MH/S-1/SC Petition dismissed.