IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
Present: 
Mr. Justice Mian Shakirullah Jan 
Mr. Justice Nasir-ul-Mulk 
Mr. Justice Mian Saqib Nisar 
 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
 (On appeal from the judgment dated 3.3.2005, passed by Lahore High Court,  
Multan Bench in Cr.A. No.60, 61, 65, 66, 67, 60, 61, 62, 63, 60/2002  respectively) 
 
The State 
 
 
 
 
 
(in Crl.As.No.163 to166/05) 
Mukhtar Mai  
 
 
 
 
(in Crl.As.No.167 to170/05) 
Abdul Khaliq  
 
 
 
 
(in Crl.A.No.171/05) 
Mst. Mukhtar Mai  
 
 
 
(in S.M.Case No.5/2005) 
 
 
 
 
 
 
 
Appellant (s) 
Versus 
 
Abdul Khaliq and others  
 
 
(in Crl.As.No.163 to170/05) 
The State 
 
 
 
 
 
(in Crl.A.No.171/05) 
Respondent (s)  
*  *  * * * 
For the State (appellant): 
 
Ch. Zubair Ahmed Farooq, Addl.P.G. Pb. 
(in Cr.As.163 to 166/2005)  
 
Mr. Ahmed Raza Gillani, Addl. P.G. Pb. 
 
 
For the Respondent (s):  
Malik Muhammad Saleem, ASC. 
(in Cr.As.163 to 166/2005)  
 
Mr. Faiz-ur-Rehman, AOR  
 
For the Complainant (appellant): Mr. Aitzaz Ahsan, Sr. ASC 
(in Cr.As.167 to 170/2005) 
 
Mr. Gohar Ali Khan, ASC 
 
For the Respondent (s):  
Malik Muhammad Saleem, ASC  
(in Cr.As.167 to 170/2005)  
 
Mr. Faiz-ur-Rehman, AOR 
 
For the State: 
 
 
Ch. Zubair Ahmed Farooq, Addl.P.G. Pb. 
 (in Cr.As.167 to 170/2005) 
 
Mr. Ahmed Raza Gillani, Addl. P.G. Pb. 
 
For the Accused (Abdul Khaliq): 
Malik Muhammad Saleem, ASC 
(in Cr.A.171/2005) 
 
 
 Mr. Faiz-ur-Rehman, AOR  
 
For the State (respondent):  
Ch. Zubair Ahmed Farooq, Addl.P.G. Pb. 
(in Cr.A.171/2005) 
 
 
Mr. Ahmed Raza Gillani, Addl. P.G. Pb. 
 
 
 
 
For the Petitioner (Mukhtar Mai): 
In person 
(in S.M. Case 5/2005) 
 
 
 
  
Date of Hearing: 
30/11, 01/12, 02/12, 07 to 09/12, 14/12 of 
2010, 03 to 06/01, 10 to 12/01, 17/01 to 20/01 
& 25 to 27/01 of 2011.  
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
2 
J U D G M E N T   
 
 
 
 
 
Mian Saqib Nisar, J.- In all, these are ten matters arising out of 
the impugned judgment of the Lahore High Court dated 03.03.2005; eight are  
the appeals (four each) against the acquittal of the accused having been 
initiated by the complainant and the State; one appeal has been filed by the 
convict and the last is the suo moto action espoused by this Court. 
2. 
 
These matters have genesis in a criminal case, which has 
emanated from an FIR (Ex.P1) dated 30.6.2002, got registered by Mst. 
Mukhtar Mai, the complainant, with the Police Station Jatoi, District 
Muzzafargarh initially under Section 10(4) of Offence of Zina (Enforcement of 
Hadood) Ordinance, 1979 (the Ordinance) read with Section 109 PPC, but 
thereafter offences under Section 19 of the Ordinance, Sections 354-A, 217, 
119 & 342 PPC and Section 7 of  Anti Terrorism Act, 1997 were also added 
thereto. It was reported by the complainant that on 22.6.2002, due to  
suspicion that her brother, Abdul Shakoor, has illicit relations with Mst. 
Naseem alias Salma, the girl, of Mastoi Baradari (accused party); the boy 
was confined by them in their house; in order to resolve the issue an ‘Akhat’  
‘Panchayat’ was held the same day, in which Faiz Mastoi, Ramzan Pachar 
and Ghulam Fareed (all accused) acted as the Arbitrators (Salis) for the 
Mastois, while Maulvi Abdul Razzak (PW-11) and Manzoor Hussain (not 
produced) were the arbitrators (Salis) for the complainant, besides Altaf 
Hussain (PW-12) and Ghulam Nabi (not produced) were also present.  It was 
decided by the ‘Panchayat’ that by exchange marriages of the complainant 
with Abdul Khaliq, the accused (brother of Salma) and Abdul Shakoor with 
Salma the dispute be settled, but Ramzan Pachar and Ghulam Fareed did 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
3 
not agree to this arrangement, therefore, the arbitrators for the complainant 
left the Panchayat. However, subsequently on the promise of the accused 
party, that if Mst. Mukhtar Mai came to the ‘Panchayat’ and sought 
forgiveness for her brother, he shall be pardoned according to Baloch 
customs and the issue stand resolved, Mst. Mukhtar Mai went to the 
‘Panchayat’, ‘Akhat’ of the Mastois, which was outside the house of Abdul 
Khaliq (accused), but instead of upholding their word as promised, he caught 
hold of her when Faiz Mastoi said that Fareed (the father of complainant) be 
forgiven, but Abdul Khaliq, his brother Allah Ditta, Fayyaz, Ghulam Fareed 
S/o Mahmood, all dragged her into the room of Khaliq’s house, where zina-
bil-jabbar was committed with her by all of them. After one hour she was 
turned out of the room in a nude condition, with a torn shirt on her body, 
Fayyaz threw her shalwar and duppta towards her.  It is specifically 
mentioned that due to fear/threats of the accused party and moral onslaught 
and retribution of the public, the case could not be initiated earlier.  Mst. 
Mukhtar Mai at the time of the initiation of complaint was accompanied by her 
father Ghulam Fareed; Maulvi Abdul Razzak (PW-11), Altaf Hussain (PW-
12), Sabir Hussain (PW-13), her maternal uncle, and one Ghulam Nabi (not 
produced), all of them were said to have either seen the occurrence or 
participated  in the proceeding, or were present at the time of ‘Panchayat’. 
3. 
 
Before proceeding further, it may be pertinent to signify, that 
being a blatant, heinous and untoward incident it attracted the media, both 
electronic and the print, and on account of an atrocious, pernicious and 
shameful act, it generated both grief and rage in the public at large. The 
higher-ups of the Government including some Ministers at the Federal and 
Provincial levels condemned the deplorable act; they, as well as, the 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
4 
Governor of Punjab visited the complainant to pacify her with promises and 
avowing that justice shall be provided to her forthwith. The Governor also 
announced some fiscal compensation for the aggrieved victim. The incident 
also drew the attention of the Apex Court and accordingly, a suo moto action 
was initiated, in which the progress of the investigation was monitored and 
directions were given for the submission of challan within a specific period.  
The Anti Terrorism Court was also directed to decide the matter within a time 
frame, by even proceeding on day-to-day basis. 
4. 
 
On account of the investigation, in all 14 persons were indicted in 
the matter; they were arrested and challaned by the police and charged by 
the Anti Terrorism Court (the Court) with the offences under Sections 19 (4), 
11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 
read with Section 149 PPC and under Section 354-A read with Section 109 
PPC and under Sections 10 and 7 (c) of the Anti-Terrorism Act, 1997.  During 
the course of trial, the prosecution examined 17 witnesses out of which the 
rather important ones are: Maulvi Abdul Razzak (PW-11) who stated to be 
one of the arbitrators for the complainant party, but left the Panchayat when 
Ramzan and Fareed declined the proposal of exchange marriages; Altaf 
Hussain (PW-12) the  brother of PW-11, who states to be present during the 
‘Panchayat’ confabulations and is also the witness of the alleged occurrence; 
Sabir Hussain (PW-13) who has also deposed in similar vein; Abdul Shakoor 
(PW-10), in whose context the issue triggered off; he denied of having any 
illicit relations with Salma, rather claimed that, in fact, he was sodomized by 
Manzoor, Jamil and Punno (the later is the brother of Salma).  It is alleged 
that the said culprits after fulfilling their lust asked him not to disclose the 
incident to anyone, but on his refusal, he was locked up with Salma and with 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
5 
an object to cover up their misdeed, a false allegory of an illicit relationship 
was concocted. PW-2, Dr. Shahida Safdar examined Mst. Mukhtar Mai and 
proved a positive report of sexual intercourse with her as Ex.P-E. PW-7 is the 
Magistrate, who recorded the statements of the prosecution witnesses under 
Section 164 Cr.P.C. and proved those as, Ghulam Fareed (Ex.P-L), Ghulam 
Nabi (Ex.P-M), Abdul Razzak (Ex.P-N) and Sabir Hussain (Ex.P-O). Six 
persons including the councilors of the area were examined as the court 
witnesses; while the Defence also produced six witnesses to support its 
version. 
5. 
 
On  the conclusion of the trial vide judgment dated 31.8.2002 
eight out of the fourteen accused (originally) namely Aslam, Allah Ditta (S/o 
Jan Muhammad), Khalil Ahmed, Ghulam Hussain, Hazoor Bakhsh, Rasool 
Bakhsh, Qasim and Nazar Hussain were acquitted by the Court, while all 
others were found guilty of the following offences and sentenced as under:- 
“Taking into consideration all the aforesaid facts and the circumstances of 
the case, I find that Abdul Khaliq, Allah Ditta sons of Imam Bakhsh, 
Muhammad Fiaz, Ghulam Farid, Ramzan Pachar, Faiz Muhammad alias 
Faiza (accused of column No.3 of the challan) along with others, in 
prosecution of their common design, convened Panchayat, mostly of their 
Mastoi Baluch tribe of the area, on 22.6.2002 in Mauza Meerwala P.S. 
Jatoi and coerced, intimidated, overawed the complainant party, and the 
community; created a sense of fear and insecurity in society; and thereby 
committed the offences u/s 11, 10(4) of Ordinance VII of 1979 read with 
Section 149/109 PPC and 21-I ATA 1997, and Section 6(1) (a) & (b) and 
sub-section 2(b) ATA 1997, punishable u/s 7(c) read with 21-I ATA 1997 
and Section 149/109 PPC; and are, therefore, convicted under all the 
aforesaid provisions of the law. 
  
Actions of the aforesaid convicts were cruel which overawed and 
harassed the society at large and therefore, they are not entitled to any 
leniency. U/s 7(c) read with 21-I ATA 1997 and 149/109 PPC each of the 
six accused persons, namely Abdul Khaliq, Allah Ditta, Muhammad Fiaz, 
Ghulam Farid, Ramzan Pachar and Faiz Muhammad alias Faiza accused 
are sentenced to imprisonment for life, plus fine Rs.20,000/-, and in default 
to further undergo six months R.I. 
 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
6 
Under Section 11 Ordinance VII of 1979 read with 149 PPC, each 
of the four accused namely Abdul Khaliq, Allah Ditta, Ghulam Farid and 
Muhammad Fiaz convicts are sentenced to undergo imprisonment for life, 
plus thirty stripes each and fine Rs.20,000/- each, and in default to further 
undergo six months R.I each Under Section 10(4) Ord. VII 1979 (liable to 
Taazir) read with 149 PPC, each one of them is sentenced to death, 
subject to confirmation by the Hon’ble High Court. 
 
Under Section 11 Ordinance VII 1979 read with section 21-I and 
section 109/149 PPC, Ramzan Pachar and Faiz Muhammad alias Faiza 
(convicts) are sentenced to undergo imprisonment for life, plus thirty 
stripes, and fine Rs.20,000/- and in default to further undergo six months 
R.I. Under Section 10(4) Ordinance VII 1979 read with section 21-I ATA 
1997 and section 109/149 PPC, Muhammad Ramzan Pachar and Faiz 
Muhammad alias Faiza (both accused) are sentenced to death, (subject to 
confirmation by the Hon’ble Lahore High Court. 
 
However, all the accused were acquitted of the charge under Section 354-A  
P.P.C. 
6. 
 
Aggrieved, the complainant/State filed appeals against the 
acquittals, while the judgment was, accordingly,  challenged by the convicts, 
before the Lahore High Court.  On hearing, the acquittal appeals were 
dismissed and by accepting the appeals of all others in toto, they were 
exonerated from all the charges, except Abdul Khaliq, whose appeal was 
partly allowed, in that his conviction was converted from Section 10 (4) of the 
Ordinance to Section 10 (3) thereof and his capital punishment was reduced 
to imprisonment for life, while the fine imposed by the Trial Court was 
maintained. The benefit of Section 382-B Cr.P.C. was also extended to him. 
It seems significant to mention here, that while rendering its decision, the 
following (main) reasons/factors have prevailed with the Court: that the 
version of the prosecution is not proved beyond doubt, as its evidence is not 
confidence inspiring, thus, the benefit must go to the accused; delay in the 
lodging of the FIR has not been sufficiently and plausibly explained, the 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
7 
complainant party was reluctant to initiate the case, but influence in this 
behalf was exerted by Maulvi Abdul Razzak (PW-11), who is the mastermind 
thereof; the FIR was registered after due consultations and deliberations; 
sole testimony of the prosecutrix to prove the occurrence, no one else had 
seen it and hence is insufficient to establish the guilt of the accused; the DNA 
and SEMEN tests  were not conducted to prove the gang rape; there are 
contradictions and inconsistencies in the statements of the witnesses inter se 
and also with their previous statements; there are improvements in their 
statements made before the Court; the occurrence has not taken place in the 
manner as is stated by the PWs; there are no significant marks or injuries on 
the body of the prosecutrix, which is very unusual in such kind of a case; no 
duration of the heeled marks on the body of the victim has been given by 
PW-2, thus, it is not possible to ascertain, if those were sustained during the 
occurrence; adverse inferences have been drawn for the non-production of 
Ghulam Nabi and Ghulam Fareed in the witness box as they, in their 
statements under Section 164 Cr.P.C. recorded by the Magistrate, have not 
fully supported the version of the prosecution, the former’s stance that on the 
given date/day he was not in the village and thus not a witness to the incident 
and/or modus operandi of the offence. The learned High Court has also 
considered the prosecution evidence regarding each of the accused, the 
individual role imputed to them and has found that the prosecution has failed 
to prove its case to their extent, except Abdul Khaliq for which reasons have 
been duly assigned in the impugned judgment. 
7. 
 
This is how, the noted appeals have reached this Court, besides 
vide order dated 14.3.2005 this Court took suo moto cognizance of the 
matter, because soon after the impugned judgment, a learned Single 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
8 
Member of the Federal Shariat Court, while exercising the suo moto 
jurisdiction suspended the impugned judgment, thus it was inevitable for the 
Court to interfere in order to avoid a ludicrous situation from arising and to 
prevent a conflict between two constitutional institutions of the State. 
8. 
 
Anyhow, the leave, in these matters, was granted on 28.6.2005  
and the important points in this behalf are: the jurisdiction of the Anti- 
Terrorism Court to try the case; effect of delay in lodging the FIR; whether the 
sole testimony of the victim in rape case is sufficient for the purpose of 
conviction; whether the marks of injuries on the body of the victim are 
superfluous to secure conviction; whether the High Court has passed the 
judgment on surmises and conjectures in violation of/or ignoring the mandate 
of law; with reference to the above, some case law has also been cited in the 
LGO.  Simultaneously, this Court was also pleased to suspend the impugned 
judgment and non-bailable warrants of arrest were issued of all the accused 
who were acquitted, even those by the trial Court; since then they are all 
behind the bars (emphasis supplied). 
9. 
 
Ch. Aitzaz Ahsan, learned Sr. ASC, has opened arguments in 
these cases and has divided his submissions into two main heads:  THE 
LAW and THE EVIDENCE.  Under the first, he has dilated upon the point of 
jurisdiction and it is submitted that rape is a grievous bodily harm and 
injury to a person, thus the offence is duly covered by Section 6(1) (a & b) 
read with Sections 6 (2) (b) and 7 (c) of the Anti Terrorism Act, 1997 (the 
Act). To elucidate the above, the learned counsel has cited the dictums 
reported as Bhupinder Sharma vs. Himachal Pradesh (AIR 2003 SC 4684), 
Hyam vs. DPP, HL [1974] 2 All ER 73, R vs. Miller [1954] 2 All ER 529 and 
R vs. Robinson [1993] 1 WLR 168. He has also relied upon the judgment 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
9 
reported as Shakil and 5 others vs. The State (PLD 2010 SC 47) to argue, 
that in a gang rape case the conviction awarded by the Anti Terrorism Court 
was upheld by this Court, primarily on the reasoning that no prejudice was 
caused to either side and none (in that case) had objected to the jurisdiction 
at any stage of the proceeding. The case, according to the learned counsel, 
is apt for settling the jurisdictional question and should be followed in this 
matter. In order to show, that the incident (gang rape) created terror in the 
area, thus attracting the provision of the Act, on account of which the 
residents thereof even thought of migration, he has referred to the statements 
of the court witnesses. 
10. 
 
Malik Muhammad Saleem, the learned counsel for the defence 
has not joined issue with Ch. Aitzaz Ahsan, learned Sr. ASC on jurisdiction, 
rather has supported him by adding certain facts; that vide order dated 
24.7.2002, the trial Court before commencing the proceeding decided that it 
has the jurisdiction, none assailed it; the Supreme Court also, as mentioned 
above, in the first suo moto action required the challan to be submitted before 
the Anti-Terrorism Court, and set out a time frame for the decision of the case 
by that Court.  Be that as it may, during the hearing of the case, learned 
Attorney General was personally summoned and was put to notice on the 
issue, but the Deputy Attorney General who from time to time has been 
attending the proceeding(s), has not controverted the jurisdictional aspect.  
The State counsel has also not questioned it. 
11. 
 
In view of the above, we find that the issue of jurisdiction in these 
matters has lost efficacy; it emerged on account of the specific situation 
(indicated above) which has ceased; no one at the relevant time raised any 
objection 
thereto; 
all 
the 
concerned 
are 
in 
agreement 
that 
the   
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
10 
Anti-Terrorism Court had the jurisdiction; appeals before the learned High 
Court were, accordingly, filed by both the sides and decided without there 
being any such objection; more than eight years have elapsed since the 
incident took place and those who have been acquitted, obviously have 
acquired a right of defending their acquittal and the one who is convicted 
seeks his acquittal and the State and the complainant are pressing to set 
aside the acquittal(s) and  are urging to maintain the conviction of Khaliq. It is 
not established if any prejudice has been caused to the parties in any manner 
whatsoever and therefore now, if at this stage any interference on the basis 
of jurisdiction is made, justice, rather than being promoted shall stand 
defeated, and serious prejudice shall be caused to either side. Therefore, 
keeping in view the peculiar circumstances of the case and by following the 
ratio of the judgment reported as Shakil and 5 others (supra), we would not 
like to hold against the jurisdiction of the Anti-Terrorism Court and leave it an 
open question to be decided in some appropriate case, in which it is a live 
issue. 
12. 
 
Adverting to the other submissions of Ch. Aitzaz Ahsan, Sr. 
ASC/the learned counsel, under the first head (The Law), he has argued that 
the impugned judgment is against the law and it cannot sustain; in this 
respect, he urged that previous statements of the PWs have been invalidly 
and illegally used by the learned High Court for impeaching their credibility, in  
particular, when the PWs had denied the making of certain statements, in the 
fact finding inquiry, conducted by the SP Crimes Range as per orders of the 
Government. Thus, without proving the statements in accordance with law, 
those could not be used for the purpose of confronting PWs in their cross 
examination.  Besides, those were allegedly signed by the PWs, this is 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
11 
prohibited by Section 162 Cr.P.C and therefore these statements were illegal 
and could not be used in terms of Article 140 of the Qanun-e-Shahadat 
Order, 1984 (QSO, 1984). In this context, the learned counsel has also 
submitted that Section 161 Cr.P.C. and Article 140 of the QSO, 1984 are 
governed by Section 162 Cr.P.C which prohibits the signing of these 
statements.  Likewise, serious criticism has been made that the learned High 
Court has used and relied upon the statements under Section 164 Cr.P.C. of 
those persons, who were not produced by the prosecution in evidence; in this 
respect, it is stated that such statements are not substantive piece of 
evidence and have a limited use of confronting a PW, who appears in the 
Court and for no other purpose whatsoever, reliance is placed on 1969 
P.Cr.LJ 1580: Yaru alias Yar Muhammad vs. The State, 1995 MLD 515: 
Nasrullah vs. The State,1985 P.Cr.LJ 428: Amjad Ali alias Kaloo vs. The 
State , 1984 SCMR 979: Nadir Khan and another vs. The State, 1974 P.Cr.LJ 
224: Salehon vs. The State, AIR (33) 1946 PC 38: Brij Bhushan Singh vs. 
Emperor; it is stated that holding the sole testimony of the prosecutrix 
insufficient to award conviction is against the law laid down in judgments 
reported as NLR 1991 SD 458: Mst. Nasreen vs. Fayyaz Khan and State, 
PLD 2003 SC 863: Muhammad Abbas vs. The State, 2002 SCMR 303: Rana 
Shahbaz Ahmad vs. The State, 1992 P.Cr.LJ 1944: Muhammad Amir Khan 
vs. The State, 2001 P.Cr.LJ 503(FSC): Saleem Khan and others vs. The 
State and others, NLR 1994 SD 242 (FSC): Muhammad Boota vs. The State, 
1993 P.Cr. LJ 1839 (FSC): Muhammad Boota vs. The State.  He has further 
argued that the victim in rape cases does not require corroboration and has 
drawn support from PLD 1989 SC 742: Muhammad Akram vs. The State, 
2002 SCMR 1009: Shahzad alias Shaddu and others vs. The State, 1999 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
12 
SCMR 1102 Mehbood Ahmad vs. The State, 1975 SCMR 69: Haji Ahmad vs. 
The State, PLD 1984 SC 218 (SAB): Ghulam Sarwar vs. The State.  
Reference in the above context is also made to the cases from the Indian 
jurisdiction: (1995) 5 SCC 518: Karnel Singh vs. M.P, AIR 1996 SC 
1393:State of Punjab vs. Gurmit Singh ,  AIR 2003 SC 4684: Bhupinder 
Sharma vs. Himachel Pardesh, AIR 1988 SC 753: Bharwada Bhogiawal vs. 
Gujerat; the view of the Court that DNA etc. tests were not conducted due to 
any weakness of the prosecution case and the omission/lapse should effect 
the veracity of the prosecutrix is conjectural and is against the law declared 
by the superior Courts, even otherwise due to the lapse on part of the 
investigator, the prosecutrix should not suffer, besides, such omission is not 
fatal 
to 
the 
case 
of 
the 
prosecution, 
see 
2002 
SCMR 
1009:  
Shahzad vs. The State ; he submits along similar lines vis-à-vis the view of 
the Court qua the absence of marks of violence or the inquiries on the body 
of the victim; learned counsel has referred to cases 1999 SCMR 1102: 
Mehboob Ahmed vs. The State, 1975 SCMR 69: Haji Ahmed vs. The State, 
PLD 1984 SC 218 (SAB): Ghulam Sarwar vs. The State; the learned counsel 
has further pointed out that in this case while making statements under 
Section 342 Cr.P.C., the accused have not propounded their defence, rather 
in this behalf have solely relied upon their cross examination; however, in the 
cross examination vital suggestions  have been given through which the case 
of the prosecution in material aspect has been admitted. In this context, Ch. 
Aitzaz Ahsan, Sr. ASC has made reference to certain portions of the cross-
examination, such as about sodomy with Abdul Shakoor, he mentioned that 
PW-14 stated “Incorrect to suggest that Abdul Khaliq accused stated that as 
his brother Punno had been accused of committing Sodomy with Abdul 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
13 
Shakoor, therefore, he could not give Salma in marriage to Abdul 
Shakoor”…………. Like-wise PW-11 while replying a suggestion, “it is false to 
suggest that in BADLA of Mst. Mukhtar Mai, Salma was proposed to be 
taken and for sodomy another woman plus land was demanded by the 
complainant”…………. Again PW-14 responded “incorrect to suggest that 
upto 26.6.2002, Abdul Razzaq PW and my father tried to compound the 
matter in terms of their demands or for the same reasons the sodomy case 
was also not got registered”. On his contention that the incident of Zina with 
the prosecutrix and her nudity incident is also admitted, reference has been 
made by the learned counsel to the suggestions “I did not state to the 
Inspector/SP/RC on their query “whether after Zina-bil-jabr the accused 
persons turned me out in quite naked condition”? replied “no I had worn shirt 
and my private part was covered with duppta as the Azarband of my shalwar 
had been broked; shalwar was in my hand”……………… “incorrect that she 
was handed over the shalwar inside the room after the rape”…..……………. 
Further in response to a suggestion PW-13 stated “incorrect that as we went 
there, we saw Mst. Mukhtar Mai holding Shalwar in her hand”. Moreover in 
the cross-examination of Mst. Mukhtar Mai, the suggestions culminate into 
the following replies “I recorded in the complaint that I had come out of the 
room in nude condition”…………. “I stated to the police that after the accused 
person committed Zina, I came out in nude condition and called out my father 
Ghulam Fareed. I had not put on the shalwar as it was without string, nor I 
covered the same on my body, and my father had arrived just then”. 
According to the learned counsel, this is a confession of the fact that she did 
come out of the room without shalwar on her body. The suggestion is only 
that the accused, (who had thus admittedly taken the shalwar off her body in 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
14 
the first instance) were not responsible for her venturing out naked. But this is 
an admission that she did come out naked. It is also pointed out that 
responding to a suggestion in relation to Abdul Khaliq, PW-14 replied 
“incorrect to suggest that he performed conjugal duties as my husband in the 
said night”, furthermore; “incorrect to suggest that upto 28.6.2002, Maulvi 
Abdul  Razzak PW and my father tried to compound the matter in terms of 
their demands or for the same reason the sodomy case was, also not got 
registered”.  It is explained that the suggestions, in the cross-examination 
have the effect of a defence plea, is an implied admission, an indirect 
admission and to support his point of view, reliance has been placed on the 
cases reported as 2010 SCMR 1009: Muhammad Shah vs. The State, 2000 
YLR 1406: Khalid Pervaiz vs. The State, 2003 CLD 80:Mian Sajidur Rehman 
vs. Messrs Granulars (Private) limited through Manager Commercial Lahore, 
2005 P.Cr.L.J.729: Ibrar Hussain vs. The State, 2004 MLD 1062: Muhammad 
Inayat alias Inayatoo vs. The State , 2006 SCMR 577: Muhammad Tashfeen 
and others vs. The State. 
13. 
 
Under the caption of ‘THE EVIDENCE’  on the factual premise, it 
has been urged by the learned counsel that glaring and patent errors of 
misreading and non-reading of evidence have been committed by the learned 
High Court; erroneous conclusions of facts and law have been drawn; the 
findings of facts are based on conjectures and surmises; the view that the 
prosecutrix has not been corroborated, is incorrect, rather the PWs and the 
medical evidence has duly supported her version; the witnesses of the 
prosecution were credible and trustworthy, but to hold them otherwise is a 
serious factual error, which is apparently  against the record; in this regard, 
special reference has been made that even according to DW-1, the 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
15 
prosecutrix has declined the cash compensation given to her by the 
Governor, rather has used that money for an educational institution 
established by her after the incident and it is a publicly known fact that now 
hundreds of girls of humble background of a backward area are receiving 
education due to the noble efforts of the lady; moreover her credibility is also 
established from the fact that she has not implicated the sodomizers of 
Shakoor, who in case of a false claim were the obvious targets; the 
convening of the Panchayat with the ‘common intention’ to take BADLA and 
such a decision being made therein was duly proved on the record; the 
conclusion that the victim was not dragged, as there are no marks or injuries 
on her body, is a misconception, as it is not necessary that if such 
marks/injuries should always occur; besides; dragging has many shades 
which may not even sustain any injury at all; the  learned High Court has 
gravely and seriously erred in drawing an adverse conclusion against the 
prosecution for the non-examination of Ghulam Nabi and Ghulam Fareed. It 
is also argued that the view set out by the Court that there are discrepancies 
and inconsistencies in the statements of the prosecution witnesses about the 
nude condition of the prosecutrix, again are the result of mis-reading and 
non-reading because the statements in this behalf are consistent; the Court 
has erred to hold that PW-11, Maulvi Abdul Razzak is the mastermind and 
has influenced the complainant party for the registration of the case. The 
gentleman had no ulterior motives to falsely implicate the accused, rather as 
a conscientious person performed his moral duty to help the oppressed and 
aggrieved persons. It is also submitted that sufficient explanation was 
provided by the prosecution for the delay in lodging the FIR and even 
otherwise on account of social, religious and cultural restraints, people are 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
16 
hesitant to report such incidents and some time is taken to glean and gather 
the courage of going public. In this connection, he has referred to the 
judgments reported as: 1999 SCMR 1102: Mehboob Ahmed vs. The State, 
NLR 1994 SD 106: Maqsood Ahmad alias Mooda vs. The State, 1999 
P.Cr.LJ 699 (FSC): Muhammad Umar vs. The State, 2001 P.Cr.LJ 503: 
Saleem Khan vs. The State, PLD 2003 SC 863: Muhammad Abbas and 
others vs. The State, PLD 1991 SC 412: Mst. Nasreen vs. Fayyaz Khan and 
another; 
 
Moreover, 
in 
this 
case, 
the 
complainant 
side 
was 
overawed/threatened and was in the state of both shock and fear, thus it 
could not approach the police immediately. As regards the view of the 
learned High Court that Mst. Mukhtar Mai was not abducted because of the 
short distance of a few paces, it is argued that distance is absolutely 
inconsequential for such an act/offence and reference is made to the case 
reported as Nadeem Iqbal vs. The State (1994 MLD 1405).  On the question, 
as to what extent the acquittal judgment can be interfered with by this Court, 
it is argued that such is possible, where there is a misapplication of law  
Barkat Ali vs. Shaukat Ali (2004 SCMR 249); misreading and non-appraisal 
of evidence or is speculative, artificial and arbitrary Amal Shirin vs. State 
(PLD 2004 SC 371); non-reading and non-appraisal of evidence Barkat Ali 
vs. Shaukat Ali (2004 SCMR 249); Abdul Mateen vs. Sahib Khan (PLD 2006 
SC 538); the findings of acquittal recorded by the trial Court are not 
supported by the evidence on record and in fact are based on gross 
misreading and misconstruction of evidence Amal Shirin vs. State (PLD 2004 
SC 371); the decision turned upon inadmissible evidence: 2006 SCMR 1550: 
Sana-ur-Rehman vs. Nayyar; whether there is any piece of evidence which 
has not been considered or the evidence brought has been discarded for 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
17 
reasons which are not recognized under the law Barkat Ali vs. Shaukat Ali 
(2004 SCMR 249); there is an error apparent on the face of record Abdul 
Mateen vs. Sahib Khan (PLD 2006 SC 538); and to reappraise the evidence 
in its true perspective  Gul Sabdar vs. Malikuddin (2007 SCMR 714).  He has 
also made reference to the case of  Muhammad Ashraf vs. Tahir  (2005 
SCMR 383) in which, according to him, the Apex Court comprehensively 
reappraised the evidence and while taking into account the ocular 
testimonies, the medical evidence and other factors and also considering the 
explanation of the delay in lodging of FIR, the acquittal judgment was 
reversed. It is submitted that the instant case is squarely covered by this 
pronouncement.  
14. 
 
Towards the conclusion, Mr. Aitzaz Ahsan, Sr. ASC has argued 
that the prosecution has proved its case against the accused beyond 
reasonable doubt and upto the hilt and specific roles performed by each of 
the accused which are duly established on the record through credible 
evidence; it is a clear and square case of ‘common intention’. Anyhow, before 
leaving the rostrum, the learned counsel in very clear, unequivocal and 
unambiguous words stated that while accepting the appeals, instead of resort 
to the provisions of Section 10(4) of the Act, Section 10 (3) be invoked and all 
the accused must be sentenced thereunder. When specifically asked by the 
court for Abdul Khaliq, it is stated that he is not pressing for the enhancement 
of his sentence to death, but seeking to maintain the same.  He states that 
though it is a gang rape case, but life imprisonments are permissible and 
reliance in this regard has been placed upon Shakil and five others vs. The 
State (PLD 2010 SC 47).  
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
18 
15. 
 
Malik Muhammad Saleem, Advocate appearing for all the 
acquitted accused and also for the convict, Abdul Khaliq (appellant in 
Crl.A.No.171/2005), has forcefully submitted that the High Court was justified 
in relying upon the statements of the prosecution witnesses recorded in the 
fact finding enquiry by the S.P Range Crimes, as those for all intents and 
purposes are the previous statements of such witnesses and, therefore, 
could validly be used for confronting them in their cross-examinations in 
terms of Article 140 of QSO, 1984. It is further argued that such statements 
were also relevant under Article 153(3) for impeaching the credibility of the 
prosecution witnesses. He has submitted that these are not the statements 
under Section 161 Cr.P.C. to be read subject to Section 162 Cr.P.C. and, 
therefore, for the reason that these have been signed by the witnesses, 
should not be a bar for using them independently for the object of 
confrontation and for impeaching the credibility as aforesaid. Learned 
counsel for the respondents/accused has vehemently defended the judgment 
of the trial court regarding the acquittal of the eight accused, which decision 
has been affirmed by the High Court. While supporting the impugned 
judgment of the High Court regarding acquittal of the accused, he has argued 
that the conclusions of facts drawn by the Court are based upon proper 
reading and appraisal of the evidence and it is not a case of surmises and 
conjectures; the contradictions in the testimonies pointed out by the High 
Court have been reiterated by the learned counsel to assert that on account 
of such weaknesses in the ocular deposition of the PWs, their 
evidence/testimonies cannot be believed. He however has argued that on the 
basis of such quality of evidence produced and the conclusions drawn by the 
High Court, the case of Abdul Khaliq accused was at par with the others and 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
19 
thus he too was/is entitled to the acquittal. The learned counsel has forcefully 
argued that the parameters and the rules for interference in acquittal 
decisions are altogether different from those pertaining to appeals against 
conviction.  In this respect, the learned counsel has relied upon Syed Saeed 
Muhammad Shah and another vs. The State (1993 SCMR 550) and Ghulam  
Sikandar and another vs. Mamaraz Khan and others (PLD 1985 SC 11).  
16. 
 
We have heard this case at a considerable length stretching on 
quite a number of dates, and with the able assistance of the learned counsel 
for the parties, have thoroughly scanned every material piece of evidence 
available on the record; an exercise primarily necessitated with reference to 
the conviction appeal, and also to ascertain if the conclusions of the Courts 
below are against the evidence on the record and/or in violation of the law.    
In any event, before embarking upon scrutiny of the various pleas of law and 
fact raised from both the sides, it may be mentioned that both the learned 
counsel agreed that the criteria of interference in the judgment against 
acquittal is not the same, as against cases involving a conviction. In this 
behalf, it shall be relevant to mention that the following precedents provide a 
fair, settled and consistent view of the superior Court about the rules which 
should be followed in such cases; the dicta are:- 
Bashir Ahmad vs. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali 
Khan vs. Mir shah Jehan and another (2005 P Cr. L J 352), Imtiaz Asad vs. 
Zain-ul-Abidin and another (2005 P Cr. L J 393), Rashid Ahmed vs. 
Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali vs. Shaukat 
Ali and others (2004 SCMR 249) , Mulazim Hussain vs. the State and 
another (2010 P Cr. L J 926), Muhammad Tasweer vs. Hafiz Zulkarnain and 
2 others (PLJ 2009 SC 164), Farhat Azeem vs. Asmat ullah and 6 others 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
20 
(2008 SCMR 1285), Rehmat Shah and 2 others vs. Amir Gul and 3 others 
(1995 SCMR 139), The State vs. Muhammad Sharif and 3 others (1995 
SCMR 635), Ayaz Ahmed and another vs. Dr. Nazir Ahmed and another 
(2003 P Cr. L J 1935), Muhammad Aslam vs Muhammad Zafar and 2 others 
(PLD 1992 SC 1), Allah Bakhsh and another vs. Ghulam Rasool and 4 
others (1999 SCMR 223), Najaf Saleem vs Lady Dr. Tasneem and others 
(2004 YLR 407), Agha Wazir Abbas and others vs. The State and others 
(2005 SCMR 1175), Muhammad Zafar Iqbal vs. Assistant Chief Ordnance 
and others (1994 SCMR 2311), Rahimullah Jan vs. Kashif and another (PLD 
2008 SC 298), 2004 SCMR 249, Khan vs. Sajjad and 2 others (2004 SCMR 
215), Shafique Ahmad vs. Muhammad Ramzan and another (1995 SCMR 
855), The State vs. Abdul Ghaffar (1996 SCMR 678) & Mst. Saira Bibi vs. 
Muhammad Asif and others (2009 SCMR 946). 
 
  
From the ratio of all the above pronouncements and those cited by the 
learned counsel for the parties, it can be deduced that the scope of 
interference in appeal against acquittal is most narrow and limited, because 
in an acquittal the presumption of innocence is significantly added to the 
cardinal rule of criminal jurisprudence, that an accused shall be presumed to 
be innocent until proved guilty; in other words, the presumption of innocence 
is doubled. The courts shall be very slow in interfering with such an acquittal 
judgment, unless it is shown to be perverse, passed in gross violation of law, 
suffering from the errors of grave misreading or non-reading of the evidence; 
such judgments should not be lightly interfered and heavy burden lies on the 
prosecution to rebut the presumption of innocence which the accused has 
earned and attained on account of his acquittal. It has been categorically held 
in a plethora of judgments that interference in a judgment of acquittal is rare 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
21 
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; the acquittal judgment is perfunctory or wholly 
artificial or a shocking conclusion has been drawn. Moreover, in number of 
dictums of this Court, it has been categorically laid down that such judgment 
should not be interjected until the findings are perverse, arbitrary, foolish, 
artificial, speculative and ridiculous (emphasis supplied). The Court of 
appeal should not interfere simply for the reason that on the re-appraisal of 
the evidence a different conclusion could possibly be arrived at, the factual 
conclusions should not  be upset, except when palpably perverse, suffering 
from serious and material factual infirmities. It is averred in The State vs. 
Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad vs. Raja 
Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being 
the final forum would be chary and hesitant to interfere in the findings of the 
Courts below.  It is, therefore, expedient and imperative that the above 
criteria and the guidelines should be followed in deciding these appeals.  
17. 
 
Anyhow, before proceeding further with the matter, it may be 
observed with emphasis, that violating the sanctity and chastity of a woman is 
a sordid, despicable, squalid act, which is considered abhorrent in any 
civilized society; any language falls short of vocabulary to condemn such 
heinous act and cases of this taxonomy must be strictly construed and dealt 
with. However, at the same time under criminal jurisprudence for the safe 
administration of criminal justice, the courts are required to follow certain 
settled principles, such as the innocence of the accused must be presumed, 
till he is proved to be guilty; sifting “the grain out of the chaff”; the defence 
may take a number of pleas and even if all are shown to be false, yet it is the 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
22 
duty of the prosecution to prove its case to the hilt; “better that ten guilty 
persons escape than that one innocent suffer” (William Black Stone – English 
Jurist).  In this context it may be mentioned that the above principle is 
engraved and embedded in the American Constitution and Criminal 
Jurisprudence as has been put forth by Michael G. Trachtman in his Book 
The Supremes’ Greatest Hits in the following words:- 
“Our Founding Fathers were mindful of the penchant of monarchs to 
charge persons with false crimes as a means of political oppression 
and social control.  Consequently, they built copious protections for 
those accused of criminal offences into the foundations of the 
Constitution.  It was acknowledged that giving all benefits of the doubt 
to the accused would result in some guilty persons being set free, and 
yet they freely accepted this necessary evil as a price of freedom. 
  
The story is told of a Chinese law professor who was advised 
of our belief that it was better that a thousand guilty men go free than 
one innocent man be executed. 
  
The Chinese professor thought for a bit and asked, “Better for 
whom?” 
 
The Founding Fathers’ answer to that question was this: better 
for all, because as history has proven, if anyone can be unlawfully 
jailed, everyone can be unlawfully jailed”. 
 
 These are certain salutary principles of the criminal justice system which 
should be adhered to by the Courts, in letter and spirit and there is no 
exemption to these rules, even in gang rape cases for otherwise, due to 
departure therefrom, the innocent person may suffer. However, at the same 
time the Courts should keep in view that in such a class of cases, usually 
independent ocular evidence is not available, therefore due weight should be 
attributed to the statement of the victim buttressed by medical evidence, and 
strong attending circumstances, shall suffice to warrant the conviction. 
18. 
 
Having referred to certain principles, we would now proceed to 
consider the merits of the case; and following the sequence we would first 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
23 
deal with the (acquittal) appeals of the eight accused persons, who were 
acquitted by the trial court and the decision affirmed by the High Court as 
well.  The important features in this behalf are: their names do not appear in 
the FIR; in the statements under Sections 161 and 164 of Cr.P.C of the PWs 
(except PW-14) and even in the statements of the prosecution witnesses in 
the court (except PW-14); no particular role has been assigned to them in the 
commission of the alleged offence, except their presence only in the ‘Akath’ 
‘Panchayat’ which has been alleged by the prosecutrix alone. The accused, 
Khalil Ahmad is the one, who got married to Salma on 26th of June, 2002, 
where-after this case was ignited.  In this group of the accused, Ghulam 
Hussain is the real father of Khalil Ahmad (bridegroom of Salma), Qasim, 
Rasool and Hazoor are his real paternal uncles, and Nazar Hussain is his 
maternal uncle. According to the trial Court, they are placed in column No. 
two of the challan.  These facts have not been controverted by the 
complainant’s learned counsel.  It seems that they have been implicated in 
the matter, because the complainant side felt annoyed and unhappy on 
account of the above marriage, because till then there is a complete lull, but 
thereafter everything suddenly sparked visibly and there is an element of 
vengeance in their involvement, as all the close relatives of Khalil were 
booked in the case; it is not a mere incident or an honest implication. The 
decision of the trial Court as earlier stated has been affirmed by the appellate 
court, however, the learned counsel for the complainant by resorting to the 
rule of ‘common intention’ under Section 109 PPC has urged that their mere 
presence in the ‘Akhat’ ‘Panchayat’ where the decision for ‘Badla’ was taken 
and the object was achieved, is good enough to haul them up in the case. 
We are not impressed, if the rule of ‘common intention’ in this case can be 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
24 
stretched to an extent that any person who was present at the time of the 
alleged occurrence should be involved in the matter and convicted. In her 
statement, PW-14 states that there were about 200/250 persons present at 
the place of occurrence, can all of them be held responsible for the alleged 
incident on the basis of the said rule, when no specific role has been 
assigned or performed by them in furtherance of any alleged common 
intention; they are not implicated by any PW at any stage in any manner 
whatsoever. Moreover, there is absolutely no evidence that Mastois’ ‘Akhat’ 
as a whole decided to commit the offence, in fact there were two ‘Akhat’ of 
the Baradaris at distinct places and it is not established by any PW that he 
was present in the mastoi gathering where such an alleged decision was 
taken and shared by all those present. Besides, the village has no electricity, 
no PW has given the time of occurrence, but even if gathered by joining the 
scattered pieces of evidence, it was somewhere after midnight on 22.6.2002; 
the prosecutrix remained outside Khaliq’s house for a short while, so how 
could she in the darkness identify these eight persons by name and 
parentage. By now, they have acquired a triple presumption of innocence, 
which cannot be dispelled by the complainant’s counsel on any score 
whatsoever. In view of the foregoing, we do not find that a case has been 
made against them for interference, therefore, the appeals relating to these 
accused are liable to be dismissed.  While parting with their subject, it may be 
relevant to point out that in order to constitute and apply ‘common intention’ 
rule it is necessary to prove that the intention of each one of the accused was 
known to the rest of them and accordingly shared, see PLD 2007 SC 93: 
Shaukat Ali vs. The State;  however, this is not established from the evidence 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
25 
of the prosecution. Therefore, the said rule for the aforesaid accused or for 
any other (accused) in this case cannot be pressed into service. 
19. 
 
Before attending to the various pleas raised by Ch. Aitzaz 
Ahsan, learned Sr. ASC, we take up the prosecution’s case regarding the 
incident as put forth by it, and endeavour to ascertain its veracity on the rules 
of common sense, ordinary prudence and logic; the chronological order of the 
incident, for the above is quite important; and it may be mentioned that the 
incident dated 22.6.2002 erupted from some obscure happening in a sugar 
field regarding which there is no direct and accurate evidence on the record; 
any how:-  
a) 
Taking the prosecution version on its face value as 
correct, it does not appeal to reason that Salma’s brother, 
who alongwith two others when committed sodomy with 
Shakoor, was so naïve to understand that Shakoor would 
not disclose their misdeed to anyone, and on his 
unexpected refusal they took the extreme measure of 
confining him in his own house alongwith Salma; risking, 
endangering and putting at stake, the virtue, the sanctity 
and respect of a young unmarried sister. It is 
incomprehensible that his other family members including 
the mother, other brothers, sister would allow this 
nefarious design to be carried out and would all become a 
party with him to do away with sacredness of their 
innocent daughter. This is absolutely not done or 
conceivable in our rural society, where people are very 
sensitive about the chastity of their womenfolk, especially 
young and virgin. 
 
b) 
If the intention of the Mastois was to take BADLA, on 
learning about the confinement of Shakoor, Mst. Mukhtar 
Mai etc. had gone to the house of Khaliq, without the 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
26 
company and protection of their menfolk, this was a good 
opportunity for Khaliq or for that matter any other male of 
the family to settle the score, but no harm was caused to 
anyone.  
 
c) 
It is strange that when Maulvi Abdul Razzak (PW-11), 
Hazoor Bakhsh (brother of Shakoor) alongwith the police 
arrived and rescued the boy, he did not apprise them that 
he is not the culprit, rather is a victim of sodomy; the 
explanation of the prosecution that it was due to shame 
that he refrained from the disclosure, does not go with the 
earlier prosecution’s version, when he had refused not to 
declare being sodomised and was thus confined with 
Salma. It is unbelievable that the boy for ‘shame’ would 
not tell the true story, lose the chance of liberty and the 
sympathies when Maulvi Razzak alongwith the police had 
reached the spot for rescuing him, rather would go to the 
police station instead of securing his liberation and 
exoneration from the charge of rape. Strangely even in the 
police station did not reveal his sodomy to any one. 
 
d) 
Maulvi Abdul Razzak was a very important person to the 
complainant party, as he was the first one to be 
approached by them for rescuing Shakoor; he was the 
Salis for Gujjars (complainant) and had been to and fro for 
resolving the matter, he approached Faiz Mastoi the so-
called head of the Mastoi Baradari, and persuaded him  to 
agree to the proposal of exchange marriages, but on 
refusal of Ramzan Pachar and Ghulam Fareed Mastoi 
walked out of the ‘Akhat’, leaving behind the people who 
were depending upon him; trusted him the most at the 
mercy of the alleged mighty Mastois. It is improbable and 
unbelievable that he did not come to know of the 
subsequent event of ziadti (rape) with the complainant for 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
27 
five days and during this period himself made no effort to 
find out as to what happened to such a burning issue after  
his return. Rather he discovered about it on 28.6.2002 
from some individual whose name he does not remember, 
and that person too was not the witness of the incident 
himself, rather he learnt about the occurrence from the 
vagabonds of the Mastois in a hotel, that “BADLA” had 
been taken. It is strange and incomprehensible that being 
an Imam of the mosque, a mature, responsible, educated 
person, he would act in a way, that without even verifying 
the occurrence from any authentic source; not from the 
immediate relations of the complainant side as to whether 
the story is true or otherwise or they would like for it to be 
announced in the mosque or not, he disclosed it in his 
juma speech, without even the permission of the 
complainant side. It is afterward that he approached 
Ghulam Fareed (complainant’s father), who according to 
him would not acknowledge the incident at all; the reason 
given for this, that it was due to fear of Mastois, might 
have been possible in respect of approaching the police, 
but what fear did Ghulam Fareed harbour in revealing the 
incident to a man, who he always looked upon, who was a 
friend, a confidant and who already knew about the 
incident and to whom the disclosure would not have 
caused any embarrassment . 
 
e) 
There is another very important fact that PW-12 Altaf 
Hussain is the real brother of PW-11 and they admittedly 
live in the same house. PW-12 claims to be the witness of 
the ‘Akhat’ proceedings and also the incident, so how 
come can it be possible that till 30.6.2006, neither PW-11 
inquired as to what happened after he had left nor PW-11 
disclosed to his brother, for in his statement, PW-12 has 
categorically mentioned that the incident was not divulged 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
28 
by him to his brother even till 28.6.2002 or 30.6.2002. This 
is one of the most ridiculous aspect of the prosecution’s 
case which knock the bottom out of its version. 
 
f) 
Anyhow, having failed in his first attempt to know from 
Ghulam Fareed on 28.6.2002 about the incident of which 
earlier he was not eager or bothered to know, after leaving 
the Akhat; now he became proactive and in utter 
exuberance, he again approached Ghulam Fareed on 
29.6.2002, but this time with the power of media, as the 
‘pressmen’ were with him; even then, it is not spelt out 
from the prosecution evidence that any disclosure was 
made to them.  However, all of a sudden in the early hours 
of the day on 30.6.2002 the complainant, her father and 
Sabir (PW-13) approached PW-11 and thereafter he takes 
charge of the matter; he calls all the witnesses and usher 
them alongwith for reporting the matter to the police. Be 
that as it may, it is the categorical stance of the 
prosecution that the contact with the police for the first 
time with reference to the incident was made on 
30.6.2002, but it is quite important to note that in his 
statement under Section 164 Cr.P.C. Maulvi Abdul Razzak 
has mentioned that the report was made on 29.6.2002. 
This was confronted to him, but he failed to offer any 
explanation. This man is not the witness of the incident, 
rather very conveniently drops out of the scene on the 
pretext of the refusal of Watta Satta marriage, but leaving  
behind his brother PW-12 to make up his deficiency who 
throughout remains attached to the events to witness 
those, till the drop scene thereof, however as a silent 
spectator only. It may be pertinent to mention here that in 
the FIR there is no mention of Shakoor’s sodomy, 
surprisingly Maulvi Abdul Razzak says that he was not 
aware of it till reporting the matter, but PW-14 deposed  
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
29 
that the disclosure was made to the police officer, who 
advised that the matter shall be dealt with separately.  
However, this incident too perhaps later in the day was 
reported through the courtesy of Razzak; the man, who 
also collected the clothes of the prosecutrix for handing 
those over to the police. His role throughout remains 
conspicuous and of a vanguard.  
 
g) 
It is also noticeable that a serious incident, allegedly has 
occurred in the area, it was almost known to about 300 
people who were present in both the ‘Akhats’ and if their 
family members are added to whom they would ordinarily 
pass on or share the information, number of people who 
would be aware of the occurrence would be exponentially 
increased but neither the Lumberdar/Chowkidar of the 
village nor councilor of the area or any respectable got to 
know of it on the same/following day, or soon thereafter; 
the police from its own sources, which (sources) it has and 
is a publicly known fact, never got any clue about the 
occurrence till 30.6.2002 thus for the incident remained 
hidden from all and sundry. 
 
h) 
Furthermore, in the context of Maulvi Abdul Razzak (PW-
11)’s statement and his conduct, he has deposed in 
unequivocal terms that Faiz Mastoi agreed to the 
exchange marriages “Watta Satta” but Ramzan and 
Ghulam Fareed rejected the proposal and thus he and 
Manzoor left the ‘Akhat’; Faiz Mastoi allegedly was the 
head of Mastoi people, now if he had agreed, the rejection 
of the proposal by Ramzan, who was not even a member 
of  the accused family/tribe, rather was a friend of Hazoor 
Bakhsh, the brother of the complainant comes across as 
rather convoluted and a ridiculous excuse for the walkout.  
Likewise, Ghulam Fareed too is an unimportant character 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
30 
in the scenario, he is not a close relative of Abdul Khaliq 
and even is not shown to have any influence in the 
Baradari, but obviously is the son-in-law of Karam 
Hussain, with whom Maulvi Abdul Razzak was in litigation 
and had to give up some land; Razzak for reasons best 
known to him in his cross examination has tried to be 
evasive when asked about such relationship; but his 
brother PW-12 has admitted that Ghulam Fareed was so 
related to Karam Hussain.  Be that as it may, it is hard to 
believe and does not behove of a person who has been 
portrayed as a conscientious man; who was discharging 
his moral obligation by helping the oppressed against the 
Mastoi atrocity as argued throughout, on the alleged 
refusal of the two unconnected men would absquatulate 
and shed his above virtue at the hour of the need and 
would not yearn to learn from anyone of those present in 
the ‘Akhat’ (about 300 people of both sides) that when he 
came back what happened thereafter.  He is the imam of 
the mosque and runs a madrasa, but surprisingly never 
came across someone who could reveal the deplorable 
incident of the beleaguered Mukhtar Mai; what an apathy 
on his part. To us, as put by Shakespeare, in Hamlet, the 
role of Maulvi Abdul Razzak (PW-11) is “like Hamlet 
without the Prince” (Hamlet). 
 
i) 
It transpires from the record that the alleged recovery of 
the pistol from Abdul Khaliq was on the last date of his 
remand. According to the statement of PW-9, the I.O., 
throughout the remand period, Khaliq denied about the 
pistol, rather would not answer on the pretext that he does 
not remember, I.O. unequivocally stated that Khaliq was 
not tortured; it is indiscernible that why all of a sudden 
Khaliq would agree to get the pistol recovered from his 
house. Besides, in such a high profile case, no 
independent witness was associated with the recovery 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
31 
process; neither the Lumberdar nor Chowkidar of village or 
any other respectable such as Councilors etc. were taken 
alongwith. We are not persuaded that Hazoor Bakhsh and 
Ghulam Hussain recovery witnesses, who are close 
relatives of the complainant would pass the test of 
independent witness in this respect.  
 
j) 
PW-10 Shakoor stated, that when he reached home he 
discovered that Ziadati had been committed with his sister, 
it is then he disclosed the Ziadati was committed with him 
too. It is not plausible that neither at the police station, nor 
while coming alongwith PW-13, he mentioned about his 
Ziadati. PW-14 in her statement mentioned that PW-10 
revealed about his Ziadati in the presence of PW-13 at  
(Fareed’s) house when he returned from the police station, 
but from the statement of PW-13 it can be reasonably 
spelt out, that after leaving Shakoor (PW-10) at the house 
of Fareed, he immediately left, for his house and did not 
stay back.  From the above, it can be concluded that the 
version of the prosecutrix in this respect is not correct.  
 
k) 
According to the prosecution, Ramzan Pachar and Faiz 
Mastoi are responsible for the ziadati, it is unbelievable 
that after the incident, they still would accompany, Sabir 
Hussain (PW-13) for the release of Shakoor from the 
police station. 
 
l) 
It is against the human conduct if a daughter is being 
raped a father and maternal uncles would stand dormant 
and would not strive to get help from the Baradari or the 
police; at that time even Khaliq had left for the alleged 
rape; if they were earlier scared of his pistol, but when he 
was gone, no other person is alleged to be carrying any 
weapon; this was the opportunity to call for the help, the 
house of Khaliq and Ghulam Fareed is not at much 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
32 
distance, even Hazoor Bakhsh, a young man, also never 
turned up to safe the honour of his sister. There is no 
material evidence even of threats on the record, none of 
the Mastois after the alleged incident is stated to have 
ever came in contact with the complainant side to extend 
any threat which could preclude the complainant from 
taking recourse to a legal action.  The submission that 
threats were extended on the scene of occurrence to our 
understanding were nothing more than rhetoric and would 
not be the reason for their silence. 
 
 
20. 
 
Afore-noted are the foundational facts of the case which have a 
serious reflection on the version of the prosecution, which put together, make 
the prosecution version implausible, flimsy and un-canny as set forth, and if, 
on account of, inter alia, the above, the learned High Court has drawn certain 
conclusion such as, that the complainant side was reluctant to report the 
matter and was influenced  by Maulvi Abdul Razzak or that he is the 
mastermind of the entire episode, or the prosecution evidence is not 
confidence inspiring and the delay in lodging the FIR has not been plausibly 
explained.  Such a conclusion, in our view, cannot be said to be unjustified.  
21. 
 
PW-12, Altaf Hussain, as stated earlier, is the real brother of 
Maulvi Abdul Razzak. His statement has not been given much credence by 
the learned High Court, inter alia, for the obvious reasons of the 
inconsistencies and improvements in his statement in the Court, when 
compared with his previous statements under Section 161 Cr.P.C. (leaving 
apart those allegedly compared with the fact finding inquiry). Besides, it 
emanates from the prosecution evidence that the case has been orchestrated 
by Maulvi Abdul Razzak, and he being his brother, has to support the 
prosecution version. As far as PW-13 is concerned, the learned High Court 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
33 
has duly and extensively analyzed his evidence; he is the maternal uncle of 
the prosecutrix; the court has drawn certain factual conclusions from the 
reading of his statement.  Our own reading thereof does not take us to form a 
view different from that of the High Court; this witness has tried to improve 
the version of the prosecution and also the statement admittedly made by 
him before the police under Section 161 Cr.P.C and that under Section 164 
Cr.P.C. and such contradictions have been duly highlighted in the cross 
examination; particularly his statement before the Magistrate under Section 
164 Cr.P.C. to the effect  “I stated to the Magistrate that the decision of the 
panchayat re: Watta Satta was not agreed to by Faiz Mastoi, Ramzan Pachar 
and Ghulam Fareed accused (confronted with Ex-PO where not so 
recorded).  Moreover, PW-13 stated that Faiz Mastoi at the time when the 
victim came before the panchayat commanded that ziadati be committed with 
her, but this is not so stated in his previous statements, recorded under 
Sections 161 & 164 Cr.P.C; even this portion of his statement, which is quite 
important, is against the contents of the FIR,  where it is recorded that 
Ghulam Fareed (the complainant’s father be forgiven). PW-14 in her 
statement has also not supported PW-13 in this context when she deposed  
that Faiz did assert for the pardon, but was it siasi dunyavi, besides he has 
stated that when Mst. Mukhtar Mai was pushed in the Panchayat she fell 
down on the ground and was dragged, this has not been so stated by PW-12 
or even the prosecutrix herself; there are some more contradictions in his 
previous statement under Section 164 Cr.P.C. and that made before the 
Court, such as, who declined the “Watta Satta” proposal etc. In the previous 
statement, he stated the man was Khair Muhammad Mastoi, but in Court he 
named Faiz.  As regards nudity incident, this PW has been confronted with 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
34 
his statement before the Magistrate and his replies are that “I stated to the 
Magistrate that Fayyaz accused had thrown the clothes to Mst. Muthkar Mai 
as she came out of Kotha (confronted with PO where not so recorded) I 
stated to the Magistrate that clothes of Mst. Mukhtar Mai were torn as she 
came out. I stated to the Magistrate that shirt of Mukhtar Mai was torn from 
the front and sides (confronted with PO where not so recorded). I stated to 
the Magistrate that coming out Mukhtar Mai called out her father and the 
latter picked up those clothes and put on her (confronted with PO where not 
so recorded)”, therefore, if on the basis of appreciation of his statement the 
learned High Court has disbelieved him, it cannot be said to be the result of 
any improper reading of the evidence.  
22. 
 
As far as PW-14, the prosecutrix herself is concerned, though 
she has stated about the facts pertaining to the holding of the ‘panchayat’, 
but she being not a witness to these proceedings herself therefore, all such 
evidence is hearsay thus, inadmissible.  However, when she came to the 
‘Panchayat’, it is categorically stated by her that, Faiz Mastoi stated that the 
girl be forgiven, but according to her it was “politically and wordily”.  It is only 
an impression of the witness which has not been shared by any other PW; 
besides, this is not her version in the FIR or the statements given under 
Sections 161 & 164 Cr.P.C.  In this regard, the relevant confronted portions 
of her statement are,  “I stated to the Thanedar at Chowk Jhuggiwala that 
accused Faiz Mastoi proclaimed dunyavi (siasi) and to show to the people 
that girl has reached and  be forgiven (confronted with Ex.P1 where not so 
recorded) except that Ghulam Fareed be forgiven .  . . . . .  “Further I did not 
state to the Thanedar that Faiz Bakhsh Mastoi stated that Ghulam Fareed be 
forgiven (confronted with Ex-P1 where so recorded). . . . . . . . .   “I stated to 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
35 
the Magistrate that Faiz Mastoi stated dunyavi (siasi) that Ghulam Fareed be 
forgiven” (confronted with Ex.PK where words dunyavi (siasi) are not 
recorded), this clearly depict improvements and inconsistencies. There is 
another vital contradiction in her statement made before the Magistrate from 
that in the Court “I did not said to the Magistrate when we went back home, 
Ghulam Nabi and Altaf were present there (confronted with Ex.PK/6-7 where 
so recorded). She in her statement further admitted Allah Ditta accused lived 
in the house alongwith Abdul Khaliq, his wife and children, mother, six sisters 
and five brothers; in the situation it is improbable if such a despicable act was 
to be committed by the accused there, particularly by the two real brothers 
together, that too in the presence of the entire family living in the same 
house. If therefore, factual conclusions on that account have been drawn by 
the learned High Court, those cannot be held to be against the evidence on 
the record or perverse etc.  About her nudity and clothes in reply to a 
question PW-14 stated, “I do not remember to have stated to the Thanedar 
that as I came out of room my shirt was torn from the front and the sides and 
Fayyaz threw clothes at her (confronted with Ex-P1 where not so recorded).  I 
had come out of the room in nude condition I stated that Fayyaz had thrown 
duppta and shalwar at me (confronted with Ex.PK where not so recorded), 
but duppta and shalwar were in the hands of Fayyaz”.  About the nudity 
aspect and the clothes and how allegedly those were thrown, the learned 
High Court has pointed out the inconsistencies in the statements of the 
witnesses and has again arrived at a factual conclusion, which to our mind 
does not suffer from any factual or legal vice. The learned High Court on 
account of extensive reading of the evidence has given its findings, which are 
covered by the rules (about appeal against acquittal) laid down in the 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
36 
aforementioned judgments and we are not convinced, that if any error of 
reading of the evidence or any misapplication or violation of law has been 
committed by the Court while delivering the impugned judgment.  Only for the 
reason that on account of the re-appraisal of evidence a different conclusion 
can be arrived at by the court of appeal, in an acquittal case is not 
permissible under the law and this standard should not be resorted to at all.  
In view of the foregoing, we do not find it to be a fit case for interference. 
Before parting with this aspect of the case, it may be mentioned that prior to 
their examination in the Court, all the witnesses were taken by the police to a 
house in Muzzafargarh, there they were together for some good time, on 
account of which the learned High court has drawn the inference of tutoring 
the witnesses; however, the complainant’s counsel states, it was for their 
safety; but we are not impressed because almost all the concerned were 
behind the bar, then from whom the witnesses had a threat, is a question 
mark.  
23. 
 
Now attending to certain legal and factual pleas raised by the 
learned counsel for the complainant which according to him also have nexus 
to the law, such as, the inferences drawn against the prosecution regarding 
delay in lodging the FIR is against the settled law, because in cases 
pertaining to the present nature it is understandable that the victim or her 
family is/are hesitant to report the matter and in certain cases delay of even 
upto a month has not been considered fatal to the prosecution.  In our view, 
the above is not an absolute or universal rule and the delay in each case 
has to be explained in a plausible manner and should be assessed by the 
Court on its own merits; in a case of an unmarried virgin victim of a young 
age, whose future may get stigmatized, if such a disclosure is made, if some 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
37 
time is taken by the family to ponder over the matter that situation cannot be 
held at  par with a grownup lady, who is a divorcee for the last many years; 
the element of delaying the matter to avoid Badnami may also be not relevant 
in this case because the incident according to the prosecution’s own stance 
was known to a large number of people and there was no point in keeping it a 
secret from everyone.  We are also not convinced if any threats were flung to 
the complainant side as has been alleged and to us it seems to be an 
abortive attempt to cover up the delay, otherwise there is no substantial 
cogent proof that after the incident, in between the 8 days anyone from the 
accused side threatened and/or harassed the complainant or her family; 
likewise the reason of fear is also self-assumed.  It seems to be a case 
where, the delay is not on account of the facts mentioned by the prosecution, 
but for some other reasons, which may be those as has been propounded by 
the defence version i.e. the marriage of Salma and Khalil, because the 
marriage took place on 26.6.2002 soon thereafter the case was registered 
and it is not a mere co-incident, rather conspicuously strange, that whole 
family of Khalil has been roped into the matter.  It seems that on account of 
this marriage the possibility of (Watta Satta) marriage extinguished and the 
complainant felt betrayed and deceived. The view of the learned High Court 
that the FIR was registered after due care and deliberation and all the 
witnesses of the prosecution were called and then under the leadership of 
Maulvi Abdul Razzak they all approached the police, therefore, the delay in 
the registration of the case is a factor which tilts against the prosecution, 
suffers from no vice and looks to be a proper perception and conclusion 
drawn by the Court from the record of the case.  
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
38 
 24. 
 
As far as the argument that the alleged previous statements of 
the witnesses  before the fact finding were illegally allowed to be used by the 
defence, for the purpose of confronting the prosecution witnesses, we hold 
that such statements should have been proved by the defence as those were 
denied by the PWs, when put to them; the SP Range Crime, DW-6 has 
categorically stated  not to have recorded the statements and, therefore, it 
was expedient for the defence to have been proved by either examining the 
inspector or his reader, in whose handwriting  these are alleged to be; though 
the defence made an application for summoning the inspector, but that was 
turned down by the trial Court, however no challenge was thrown to this order 
at the appropriate stage. In this context, it may be held that the prosecution 
while confronting a PW under Article 140 of QSO, 1984 with his previous 
statement may use any of his previous statement not necessarily those 
recorded under Sections 161 & 164 Cr.P.C. without the proof of those at that 
time.  If the witnesses admits of having made such statement there is no 
need for the proof, but if it is denied, then though the process of confronting 
him and recording the inconsistency may be completed by the court, whereas 
such material cannot be used against the prosecution, until and unless the 
confronted statement is subsequently proved by the defence, as any disputed 
instrument.  However, in this case even excluding the confronted portion of 
the PWs with such statements (fact finding inquiry), we are of the view that 
the factual conclusion arrived at by the learned High Court, does not suffer in 
any material aspect and can sustain independently.    
25. 
 
About the argument that statements under Section 161 Cr.P.C. 
should be strictly construed in consonance with section 162 Cr.P.C. and if 
those are signed by the witnesses, such is an incurable defect and an 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
39 
illegality which vitiates the statement and it shall not be that previous 
statement which is contemplated by the above provision, available for 
confrontation in terms of Article 140 of the Qanun-e-Shahadat Order, 1984 
(QSO, 1984).  To this extent, we agree with the learned counsel, however, 
we cannot subscribe to the submissions, that Article 140 of the QSO, 1984 in 
a criminal matter is totally and conclusively governed and regulated by the 
provisions of Section 162 Cr.P.C.  It may be so, when the statement to be 
confronted has been recorded under Section 161 Cr.P.C. that the rider of 
Section 162 Cr.P.C  shall apply, but Article 140 of QSO, 1984 being a part of 
general law of evidence, has its  own independent legal efficacy and 
application and any  previous statement of the witness, which may have been 
made by him in some other judicial, qusai judicial, administrative, executive 
proceedings or inquiries or before such of the forums or even privately made 
through some instrument i.e. agreement or an affidavit, can be confronted to 
him, if relevant, in any criminal case, however, subject to its proof as stated 
earlier.  Such statements can always be used by the defence for impeaching 
the credibility of a witness under Article 153 (3) of the QSO, 1984 as well.   
26.  
 
As regards the other submission of Ch. Aitzaz Ahsan, learned 
Sr. ASC, that the statement under Section 164 Cr.P.C. of those witnesses 
who have not been examined by the prosecution is not a substantive piece of 
evidence and cannot be used for any purpose in the case, including to 
support the plea of the defence, suffice it to say that admittedly in this case 
the Magistrate before whom the statements were recorded has appeared as 
a witness and has produced in evidence, inter alia, the statements of Ghulam 
Fareed, father of the complainant and Ghulam Nabi which were duly 
exhibited.  In an answer to a question by the defence counsel, the Magistrate 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
40 
in unequivocal terms stated that Ghulam Nabi appeared before him and 
stated that on the day of occurrence he was  not in the village, rather had 
gone to meet the relatives at Dera Ismail Khan and returned after two days 
when he learnt about the incident; these statements have been produced by 
the prosecution in the evidence itself as aforestated, the contents are also 
proved by the Magistrate, who recorded it; though ordinarily the opposite side 
can use such a document to its advantage which has been produced by the 
other side and the party producing it in evidence is bound by the fall out 
thereof; however, when the statement is under Section 164 Cr.P.C. of a 
person, who is not produced, it cannot be considered as a substantive piece 
of evidence, but at the same time the criminal court in order to administer 
safe justice, in consonance and in letter and spirit of Section 172(2) Cr.P.C, 
may use such statement not as evidence, but to aid it; the said statement 
thus can be looked into, for drawing the presumption under Article 129 (g) of 
QSO, 1984, because Ghulam Nabi  was the star witness of the prosecution, 
who throughout remained in touch with the alleged events; he was allegedly 
present at the time of Panchayat, the occurrence and even went alongwith 
the prosecutrix to register the case in which he is specifically named, as a 
witness, but was given up by the prosecution, not being won over, but as 
unnecessary.  The Court, thus, for the purpose (s) of drawing a presumption 
for withholding the best evidence under the said Article could examine the 
statement and make up its mind in this context.  Had Ghulam Nabi been 
examined by the prosecution, the defence would have validly confronted him 
with his statement to create a vital dent in the prosecution version; and it 
seems that in order to avoid the repercussions and consequences thereof, he 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
41 
was given up.  Adverse presumption of withholding the father of the 
prosecutrix could likewise be validly drawn. 
27. 
 
As far as the question about the sole testimony of the prosecutrix 
and believing her without any corroboration is concerned, suffice it to say that   
this too, is not an absolute (emphasis supplied) rule.  It depends upon the 
facts and circumstances of each case and has to be assessed  by the Court 
on the basis of the entire evidence on the record  whether the sole testimony  
of the victim should be believed or not, particularly in the light of her cross 
examination, and the other evidence produced by the prosecution; if on 
account of totality of facts the Court is of the view that such a statement 
should not be believed and for that good reasons are assigned it cannot be 
said that any illegality has been committed by the Court in this behalf.  Thus, 
rule pressed into service by the learned counsel shall not apply to each and 
every case of rape, as a matter of routine and course, because it is not the 
command of any law/statute, that in deviation of the general principles of 
jurisprudence mentioned above, the accused must be put to the test of strict 
liability and should be asked to prove his innocence because the 
prosecutrix’s version under all circumstances should be taken as correct; the 
sole testimony view, should be applied with due care and caution in the 
cases where there is  backdrop of grudge, rift and tiff between the parties, as 
has emerged in instant case.  The possibility in this matter cannot be ruled 
out that the complainant side was trapped by Khaliq; Mst. Mukhtar Mai 
deceptively in the garb of exchange marriage was subjected to sexual 
intercourse by him, who in this manner took revenge for Shakoor’s act and, 
thereafter, Salma was secretly married to Khalil, which embittered and 
betrayed the complainant and provoked her to initiate the present case.  Be 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
42 
that as it may, if not the ocular evidence, the prosecutrix in the case should 
have been corroborated by medical evidence, which in the required quality is 
missing.  What is the basis of the lady doctor’s opinion that she was raped, 
yes-she was subjected to sexual intercourse, but the question is whether by 
one person or forcibly four as the prosecution has set out.   
28. 
 
The absence of injures and marks on the body of a prosecutrix 
should not be the only factor to disbelieve her version in an ordinary rape 
case, but where a woman has been forcibly raped for full one hour, by four 
young individuals on the bare floor, it is not expected that she would not 
struggle and in the course would sustain no marks or injury.  This, of course, 
is not a conclusive proof or disproof of rape and the learned High Court  has 
rightly held it to be unusual; we have no reasons to differ with it.  The 
omission of DNA and group semen test, which would have been strong 
supporting evidence to the testimony of the victim, has not been done. To the 
argument  of the learned counsel for the complainant, that on account of the 
lapse of investigating authorities, the prosecutrix should not suffer; suffice it 
to say that it should also be true for the defence, rather with more vigour and 
force.  The semen in the vagina were available till the date of her examination 
and we are at a loss to see what prevented the prosecution to seek the 
chemical examiner’s opinion to confirm, whether the sexual intercourse was 
by one individual or more. It is especially required in gang rape cases, as it is 
a matter of life and death of a person and the life of an accused, who might 
be innocent in a such case and should not be put to danger, only because 
the prosecutrix has said so, and in any case he should not suffer for the 
omissions of the prosecution. If the view of the sole testimony of the 
prosecutrix as sufficient evidence, is accepted,  as absolute without any 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
43 
exception thereto, what shall be the outcome of a case, where a lady claims 
being raped or gang raped, but the medical evidence negates it, what/who 
should be believed then, the point is, that it is not in every gang  rape case, 
that the sole testimony should be accepted and relied upon, but each case as 
earlier stated should be assessed and adjudged on its own facts.    The DNA 
and/or group semen test in this case was of immense importance  which 
could have scientifically determined as to whether the  intercourse with the 
prosecutrix was committed only by Khaliq or by a group of person.  
Therefore, in our considered view, the benefit of this omission should go to 
the accused, rather the prosecution.    
29. 
  
Responding to the argument about the credibility and 
trustworthiness of PW-14, it may be held that only for the reason, she 
declined the money awarded to her by the Governor and has established the 
school would not mean that whatever she stated should be accepted as true; 
in our view nothing much turns on it and the case of such a nature cannot be 
decided on these trivial factors, rather on the basis of tenable evidence, 
about the proof of the crime. 
 
 For, the non-involvement of Shakoor’s sodomizers is concerned, in 
our view this is by design and quite a deliberate and clever move on part of 
the prosecution, these two incidents were kept aloof with an obvious object 
and we are told that convictions of the accused in that case have been 
achieved, the purpose seems to have been served.  
30. 
 
Regarding the argument that the version of the prosecution has 
been  admitted and proved through the suggestions put forth by the defence 
counsel to the prosecution witnesses, during the course of cross 
examination, particularly in view of the fact that the accused in their 
statements under Section 342 Cr.P.C. has relied for their defence on the 
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44 
cross examination;  it may be pointed out that the purpose and object of 
cross-examination is two fold; one to extract truth i.e. to unfold the truth, 
second to challenge the veracity of a witness. During the course of cross 
examination to achieve the aforesaid objectives or any one of the two, the 
defence counsel at time put questions to the witness in form of suggestions - 
suggestions not necessarily are always the defence plea or the admission. 
They can be so taken or assumed if through suggestion, any statutory plea is 
set up. Like for example, if a witness is suggested that the act or commission 
by an accused person had to be done in exercise of right of self defence by 
suggestion in a cross examination, the attempt is to take the case to fall 
within the mischief of Section 302 (e) instead of 302 (a) or (b)or where 
suggestion is made regarding plea of the accused as to his “alibi”. Other 
suggestions are intended to dislodge the witness statement made by him 
during his examination-in-chief, like in the instant case the complainant-lady 
was suggested to which she replied  “incorrect to suggest after commission 
of zina, the shalwar was given to me in the room”. The suggestion that the 
Shalwar was not thrown upon her, rather was with her in the room does not 
mean that defence is accepting the occurrence of rape or accepting  what the 
witness has stated in the examination-in-chief, but it is a challenge to a 
statement of fact as alleged. Secondly, it may be in the mind of the cross-
examiner that he has already or at a later stage to come from some other 
witness has to extract that the Shalwar was not thrown outside the room, 
rather all this happened inside.  For the suggestions to be construed as the 
admissions  in any form (implied or otherwise) those should be unambiguous, 
clear, incapable of any other inference and where no two interpretations are 
possible.  But from those to which reference has been made by the learned 
counsel, we do not find that these are adequate enough to be interpreted as 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
45 
the admission of the alleged occurrence; these may at the most be said to be 
the result of an inarticulate, or inapt art of cross examination, which is not of 
much importance in this hotly contested case and cannot be given that much 
importance especially, when the case of the prosecution from its own 
evidence is not proved to the hilt, as it was put forth.  
  
It may, however, be observed that in the case of Abdul Khaliq the 
suggestion of his intercourse with the prosecutrix obviously is very clear, 
definite and qualifies the test of being an admission as described by the 
learned counsel for the complainant, however, his case shall be discussed 
separately.  
31. 
 
Now considering the cases of each accused who has been 
acquitted, but before that, it is expedient to mention even at the cost of 
repetition that there was not one Panchayat as the impression sometimes 
emerge from the prosecution evidence; in fact there were two ‘Akhats’ 
‘Panchayats’ of the two Baradaris, the Gujjar gathered in the Mosque of 
Meeranwala (presumably in which Maulvi Abdul Razzak is the Imam) and 
that of the Mastois, was outside the house of Abdul Khaliq. It is not the case 
of the prosecution if any collective decision of all those who were present in 
such a ‘Akhats’ was ever made, however, the so-called Salis (the arbitrator) 
of one side have been commuting to the other. It is not spelt out through any 
independent evidence that the Mastois’ ‘Akhat’ collectively took the decision 
of taking BADLA from Mst. Mukhtar Mai.  
a) 
Be that as it may, firstly the role of Faiz Mastoi should be 
examined. In the FIR it is mentioned that Shakoor was 
liberated by Abdul Khaliq etc. on his intervention; he 
according to PW.11 proposed the exchange marriages, 
however, when again approached by (PW.11) he affirmed 
the proposal in this behalf. In the FIR the complainant 
stated that Faiz avowed that Fareed (father of the 
complainant) be forgiven. PW.11 while appearing has not 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
46 
stated that Faiz had ever declared to take BADLA. This is 
not even the statement of PW-12. Only PW-13 (Sabir 
Hussain) at two occasions has imputed and insinuated 
that Faiz disagreed with the marriage proposal and also 
when Mst. Mukhtar Mai was brought to the ‘Panchayat’ he 
asked for committing Ziadati with her. But this is directly in 
contradiction with the statement of Mst. Mukhtar Mai when 
she appeared as PW.14 and stated, that Faiz said the girl 
has come and should be forgiven, however, she further 
stated that it was “politically” or “wordily”  which may be 
only her perception, as what has been stated, is not 
reflected on account of his conduct or words that he was 
party to any decision or act of Zina; no other witnesses 
have said anything about Faiz Mastoi having played any 
part which could be held to be pursuant to any ‘common 
intention’. He according to PW-13 also accompanied him 
to the police station for the release of Shakoor at about 3 
a.m. on 23.6.2002. 
 
b) 
As far as Ramzan Pachar is concerned, he admittedly is 
the friend of Hazoor Bakhsh, the brother of the 
complainant, he is not a Mastoi by caste, it transpires from 
the record that he accompanied Sabir (PW-13) for the 
release of Shakoor, but demanded some money for further 
payment to the police. Though it is alleged that he 
declined the proposal of exchange marriages, but it seems 
strange that why would a person who does not belong to 
Mastoi tribe and has relations only with the brother of the 
complainant would become hostile and would insist raping 
his friend’s sister, even by overruling Faiz Muhammad 
Mastoi, who is projected by the prosecution as a ‘Sarbrah’ 
of Mastoi Baradari, and who had agreed to the proposal. 
To our mind, his status and capacity at the best was not 
more than a messenger.  
  
 
c) 
About Ghulam Fareed, it is apparent from the record that 
his parentage was wrongly mentioned in the FIR. The FIR 
was duly read over to the lady, she signed it in token of its 
correctness and she at that time was accompanied by all 
the male witnesses, who knew well all the people in the 
area, her father as well as Mamoon were also present, but 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
47 
no one pointed if the name of Fareed’s father was wrong. 
The complainant does not mention in any of her statement 
under section 161 and 164 Cr.P.C. about this error, rather 
for the correction a supplementary statement was 
recorded, however, there are no police proceedings, in the 
context of the supplementary statement, as has been held 
by the learned High Court. He too is neither a stalwart of 
the Mastoi Baradari nor is a close relative of Salma and 
his role has been inflated in the matter because he is the 
son-in-law of Karam Hussain Mastoi with whom PW-11  as 
mentioned earlier had litigation and as a result whereof he 
lost some land. 
 
d) 
As far as Fayyaz accused is concerned, he is not the 
resident of Meeranwala as was alleged by the prosecution, 
he has produced evidence to that effect; besides he was 
taken into custody from jail, because actual Fayyaz who 
was the first cousin of Khaliq and Salma, could not be 
apprehended, therefore, his name was put in the matter, 
because the investigators as stated earlier where under 
immense pressure to complete investigation and submit 
the challan. Moreover, he has produced DW-2 Nadeem 
Saeed correspondent “DAWN” who has stated that Hazoor 
Bakhsh the brother of the complainant told him that he is 
not the real culprit, in this regard the news item has also 
been brought on the record.  He is an independent witness 
and no effective cross examination to his testimony to 
shatter the same has been conducted; the argument of the 
learned counsel for the complainant that he was duly 
identified by the witnesses, particularly by PW-14 in the 
Court; it may be held that such was unavoidable at that 
stage in order to safe the disastrous damage to the 
prosecution’s case. The High Court in the impugned 
judgment has made comprehensive discussion about him 
and we do not find that any of the factual conclusions 
drawn by the said Court in this behalf being erroneous for 
any reason whatsoever. 
 
e) 
Allah Ditta is the brother of Abdul Khaliq, he is married, 
living in the same house where the alleged incident took 
place, with his whole family including wife, mother, six 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
48 
sisters and five brothers and his children. It is improbable 
that he in the presence of all particularly his wife and 
children and young sisters would commit Zina alongwith 
his real brother. The High Court, in his case, too has given 
valid reasons, which calls for no interference on any 
account. 
 
32. 
 
However the High Court has distinguished the case of Abdul 
Khaliq primarily for the reasons that he has remotely admitted the intercourse 
with the prosecutrix; he took up the defence of Nikkah, but has failed to prove 
it. It is argued by his counsel that it is available to the defence to take as 
many pleas as it wants, and even if all such pleas are found to be incorrect 
yet the prosecution is not absolved of its primary duty to prove its case and, 
therefore, when on account of the reasons given by the High Court it is found 
that the case as set out by the prosecution is not true, he should have also 
been exonerated by giving benefit of doubt alongwith other accused. We are 
afraid that his case is not at par with the other accused for additional reasons 
that the version of the complainant of sexual intercourse with her has been 
duly corroborated by the medical evidence, notwithstanding the omission of 
DNA/SEMEN test, which may in our view would have been relevant for gang 
rape, to determine if the act is by one person or more, but in the instant case 
the suggestion given by his counsel to the prosecutrix is very clear, 
unambiguous and leads to no other interpretation. When in reply thereto  
PW-14 stated as under:- 
“It is incorrect to suggest that pursuant to the decision of my 
family members my Shari Nikkah was performed in the house of 
Abdul Khaliq in the presence of Ramzan Pachar, my father and 
Sabir PWs. It is incorrect to suggest that compromise was 
reached and thereafter my maternal uncle Sabir Hussain PW, 
Ramzan Pachar and Abdul Khaliq accused went to the police 
station and brought Abdul Shakoor back with whom Nikkah of 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
49 
Salma was to be performed. Incorrect to suggest that at 3/4 a.m. 
Abdul Khaliq came to room where I was present as his bride. In 
correct to suggest that he performed conjugal duties as my 
husband in the said night.” 
 
In the light of the above, it was incumbent for the defence to prove the Nikkah 
and being conscience of this requirement, that some DWs were also 
examined by the defence, however through such evidence the Nikkah could 
not be proved, the obvious result, would be that he committed sexual 
intercourse with  the prosecutrix, but without a valid NiKkah.  
33. 
 
While concluding we share the view of the Courts that no case 
for abduction was made out by the prosecution, notwithstanding the distance; 
we are not convinced that prosecutrix was taken to the room as has been 
alleged by her.   
34. 
 
In the light of the above, we do not find any merits in these 
appeals, which are hereby dismissed.  The suo moto action, initiated by this 
Court in the matter is also discharged.   
  Sd/- 
Judge 
 
  Sd/ 
I have added my own note. 
 
 
Judge 
 
  Sd/- 
Judge 
Announced in open Court 
on                       at  
 
APPROVED FOR REPORTNG 
Ghulam Raza/* 
 
 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
50 
 
 
I have had the benefit of reading the lucid judgment authored by 
my Lord Mr. Justice Mian Saqib Nisar and concurred by my Lord Mr. Justice 
Mian Shakirullah Jan, upholding the final conclusions drawn by the High Court 
in the impugned judgment and its findings on various questions raised before 
it. While agreeing with some of the findings in the proposed judgment, with 
humility and utmost respect, I have formed a different opinion on other aspects 
of the case.  
2. 
 
The prosecution case in a nutshell is that the complainant, 
Mukhtar Mai, was subjected to gang rape by four persons of Mastoi Tribe, 
including Abdul Khaliq and Allah Ditta, brothers of Mst. Salma, with the 
sanction of the Panchayat of the Tribe, as retaliation and in order to vindicate 
the honour of the Tribe and the family of Mst. Salma, who is alleged to have 
indulged in an affair with Abdul Shakoor, brother of the complaint. 
3. 
 
The accused charged and tried for the crime can be conveniently 
divided into two groups. The four accused of rape are, Abdul Khaliq, Allah 
Ditta, Ghulam Fareed and Muhammad Fayyaz. The remaining eight were 
members of the Panchayat sanctioning the rape. Out of these, Faiz Muhammad 
(Faiza Mastoi) and Muhammad Ramzan (Ramzan Pachar) as well as Ghulam 
Fareed were stated to have represented the Panchayat and taking active part in 
its proceedings, while the rest were simply its members. 
4. 
 
The Anti Terrorism Court, Dera Ghazi Khan trying the accused 
convicted and sentenced six of the accused, namely, Abdul Khaliq, Allah Ditta, 
Muhammad Fayyaz, Ghulam Fareed, Muhammad Ramzan Pachar and Faiz 
Muhammad alias Faiza Mastoi, awarding them various sentences under 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
51 
Sections 10(4) and 11 of the Offence of Zina (Enforcement of Hadood) 
Ordinance, 1979 and 7(c) of the Anti Terrorism Act, 1997, including sentence 
of death. As details of the convictions and sentences of the convicts have been 
stated in Para 5 of the majority judgment, to avoid repetition, the same are not 
reproduced. The convicts were, however, acquitted on the charge under Section 
354-A PPC. The remaining eight accused were acquitted of all the charges for 
lack of evidence. The High Court in its judgment dated 3.3.2005 acquitted all 
the convicts except Abdul Khaliq, whose conviction was recorded under 
Section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, 
as the charge of gang rape under Section 10(4) of the Ordinance could not be 
maintained in view of the acquittal of other the three accused of rape.     
5. 
 
The judgment of the High Court was impugned before this Court 
by the complainant, Mukhtar Mai, the State as well as Abdul Khaliq, the latter 
challenging his conviction and sentence. Simultaneously, this Court also took 
suo motu notice of the case when an Hon’ble Judge of the Federal Shariat 
Court took suo motu of the judgment of the High Court and suspended the 
same. Leave to appeals was granted in all the matters on 28.6.2005 in the 
following terms:-         
“Listed petitions for leave to appeal have been filed against the 
judgment of Lahore High Court Multan Bench, Multan, dated 
3.3.2005 passed in Criminal appeals Nos. 60 to 63, 65 and 66 of 
2002. 
2. 
Precisely stating facts of the case are that an occurrence 
took place on 22nd June 2002 in the area of Mauza Meerwala 
District Muzaffargarh, situated at a distance of 13 kilometers 
from the Police Station Jatoi towards South. Matter was reported 
to the SHO Police Station Jatoi on 30th June 2002 at 7.30 a.m. He 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
52 
recorded statement of Mst. Mukhtar Mai on the basis of which 
formal FIR was recorded. Prosecution story as narrated by 
petitioner Mst. Mukhtar Mai in the complaint (Exb.P1) is that on 
22nd June 2002 her brother Abdul Shakoor was suspected of 
having illicit liaison with Mst. Naseem daughter of Imam Bakhsh 
resident of the same village. To resolve the dispute a Panchayat 
(meeting) was convened on that very day. Muhammad Ramzan 
son of Karim Bakhsh, Ghulam farid son of Mahmood, faiz 
Bakhsh Khan son of Sher Muhammad were appointed as 
arbitrators on behalf of Abdul Khaliq (accused) whereas Maulvi 
Abdul Razzaq son of Bahadur, Manzoor Hussain son of Noor 
Muhammad were appointed as arbitrator on behalf of Ghulam 
Farid-father of complainant. The arbitrators of both the sides 
proposed that Mst. Naseem should be wedded to Abdul Shakoor 
son of Ghulam Farid and likewise Mukhtar Mai be married to the 
son of Imam Bakhsh. But Abdul Khaliq, Muhammad Ramzan 
and Ghulam Farid opposed the proposal and allegedly demanded 
that they would commit Zina with Mukhtar Mai with a view to 
equalize the incident and then they would compromise the matter. 
The demand was opposed by the members of the Panchayat. On 
this some of the respectable persons namely Maulvi Abdul 
Razzaq and Manzoor Hussain left the Punchayat. Thereafter on 
coercion and pressure of accused party complainant-Mukhtar Mai 
was brought to the Punchayat by her maternal uncle Sabir 
Hussain to pray for forgiveness according to the customs of 
Baloch. Later on she was caught hold by Abdul Khaliq from her 
right hand which she got released by force. Faiz Bakhsh also 
sought forgiveness for Ghulam Farid, but she was taken into a 
nearby Kotha forcibly by the accused persons namely Abdul 
Khaliq, being armed with 30 bore pistol, Allah Ditta (both sons 
of Imam Bakhsh), Fayyaz Hussain son of Karim Bakhsh and 
Ghulam Farid son of Mahmood and was subjected to Zina-bil-
Jabr by all the four persons turn by turn during course of which 
complainant-Mukhtar Mai remained crying. Later on she came 
out of the said Kotha in a nude condition and called her father 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
53 
Ghulam Farid. Statedly the incident was witnessed by Ghulam 
Nabi son of Bahar Khan and Altaf Hussain son of Bahadur Ali as 
well as her father. After recording of statement of complainant-
Mukhtar Mai FIR was recorded at 8.00 a.m. on 30th June 2002 at 
Police Station Jatoi. On completion of investigations accused 
were arrested and sent up to face trial. As they did not plead 
guilty to the charge, thus, prosecution led evidence to substantiate 
accusation by producing as many as 17 PWs. On completion of 
trial learned Judge, Anti Terrorism Court, Dera Ghazi Khan 
convicted/sentenced them as follows:- 
U/s 7© read with 
Sec.21(1) ATA 1997 
and 149/109 PPC 
Abdul Khaliq, Allah 
Ditta, 
Muhammad 
Fiaz, Ghulam Farid, 
Ramzan Pachar and 
Faiz Muhammad 
Life 
Imprisonment 
with 
fine 
of 
Rs.20,000/- each and 
in default whereof to 
further undergo six 
months R.I. each. 
Us 11 of Offence of 
Zina (Enforcement of 
Hudood) Ordinance, 
1979 
read 
with 
Sec.149 PPC  
Abdul Khaliq, Allah 
Ditta, ghulam Farid 
and Muhammad Fiaz 
Life 
imprisonment 
plus 30 stripes each 
with 
fine 
of 
Rs.20,000/- each and 
in default whereof to 
further undergo six 
months R.I. each. 
U/s 10(4) of Zina 
(Enforcement 
of 
Hudood) Ordinance, 
1979 
read 
with 
Sec.149 PPC 
Abdul Khaliq, Allah 
Ditta, Ghulam Farid 
and Muhammad Fiaz 
Sentence of death 
U/s 
11 
of 
Zina 
(Enforcement 
of 
Hudood) Ordinance, 
1979 read with Sec. 
21(1) of ATA and Ss. 
109/149 PPC 
Ramzan Pachar and 
Faiz 
Muhammad 
Muhammad ramzan 
Pachar 
and 
Faiz 
Muhammad.  
Life 
imprisonment 
plus 30 stripes each 
with 
fine 
of 
Rs. 
20,000/- each and in 
default whereof to 
further undergo six 
months R.I. each 
U/s 10(4) of Zina 
(Enforcement 
of 
Hudood) Ordinance, 
1979 
read 
with 
Section 
21(1) 
of 
ATA and Ss.109/149 
PPC 
Muhammad Ramzan 
Pachar 
and 
Faiz 
Muhammad 
Sentence of death. 
     
Above convicts, however, were acquitted from the charge under 
Section 354-A Cr. P. C., whereas, remaining accused namely 
Muhammad Aslam, Allah Ditta son of Jan Muhammad, Khalil 
Ahmed, Ghulam Hussain, Hazoor Bakhsh, Rasool Bakhsh, 
Qasim and Nazar Hussain were found not guilty for all the 
charges.  
3. 
Learned High Court in appeal, vide impugned judgment 
dated 3rd March 2005 concluded as under:- 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
54 
i) 
Sentence of Abdul Khaliq appellant is covered by Section 
10(3) of the Offence of Zina (Enforcement of Hadood) 
Ordinance, 1979 {herein after referred to “Ordinance, 
1979}, as gang rap is not proved under Section 10(4) of 
the Ordinance 1979. He is sentenced to 25 years R.I. The 
sentence of fine awarded by the learned Trial Court is 
maintained. Benefit of Section 382-B Cr. P.C. was also 
extended to him. However, he was acquitted of the charge 
under Section 11 of the Ordinance 1979 and 7(c) read with 
Section 21(1) of the Anti Terrorism Act, 1997 and 
149/109 PPC. 
ii) 
All other convicts were acquitted on setting aside the 
sentences awarded to them by the Trial Court. 
iii) 
Appeal filed by the complainant and the State to challenge 
the acquittal of some of the accused mentioned above was 
also dismissed.  
4. 
Learned Attorney General who was asked to assist the 
Court, during hearing of the petitions, particularly in view of 
question, which has arisen relating to jurisdiction of the High 
Court, and Federal Shariat Court, as appeals have arisen out of 
the judgment passed by the Anti Terrorism Court under Section 
10(4) of the Ordinance, 1979. 
It may be noted that State as well as complainant in memo 
of their respective petitions for leave to appeal had also 
highlighted the jurisdictional question of the learned High Court 
as well as learned Shariat Court.  
5. 
Learned Attorney General categorically contended that as 
the original judgment was passed by the Anti Terrorism Court, 
therefore, appeal under Section 27-A of the Anti Terrorism Act, 
1997 was competent before the High Court.  
6. 
From the arguments so raised by him, following questions 
emerge for consideration:- 
i) 
Was the case competently brought before the Anti 
Terrorism Court? 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
55 
ii) 
Could Anti Terrorism Court try offences other than the 
scheduled offences, which may otherwise fall exclusively 
in the domain of other Courts? 
iii) 
Were the appeals of the convicts before the High Court 
competent? 
iv) 
Could the Federal Shariat Court under Article 203 (dd) of 
the Constitution interfere in the appellate order of the High 
Court? 
7. 
When called upon to address arguments on merits he 
stated that impugned judgment is indefensible for the following 
reasons:- 
(i) 
Delay in lodging FIR constitute no ground for 
acquittal of accused particularly in the cases 
pertaining to rape/gang rape, in view of the social 
conditions of society. [Harpal Singh v. State of 
Himachal Pradesh (AIR 1981 SC 361), Mst. 
Nasreen v. Payyaz Khan (PLD 1991 SC 412), 
Muhammad Abbas v. State (PLD 2003 SC 863)] 
(ii) 
Sole testimony of a victim in rape/gang rape cases 
is sufficient for the purposes of conviction. [Mst. 
Nasreen (ibid), Shahzad @ Shaddu v. State (2002 
SCMR 1009), Muhammad Abbas (ibid) 
(iii) 
Marks of injuries on the person of prosecutrix are 
not necessary to secure conviction of an accused, 
where there is allegation of gang rape. [Shahzad @ 
Shaddu (ibid)]. 
(iv) 
Expert evidence is of confirmatory nature, 
therefore, non obtaining report of expert, to 
ascertain as to whether clothes of the victim were 
stained with semen, is not fatal to the prosecution’s 
case. [Muhammad Abbas (ibid)].  
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
56 
(v) 
Impugned judgment has proceeded mainly on 
conjectural consideration as is evident from perusal 
of the impugned judgment.  
8. 
He also pointed out that there are so many other questions, 
which are required to be examined in depth if leave is granted to 
the State. It was also prayed by him that in presence of 
overwhelming, direct and indirect incriminating evidence, the 
respondents have been acquitted of the charge, therefore, he 
prayed for suspension of their acquittal, in exercise of powers 
under Order XXXIII Rule 9 of the Supreme Court Rules, 1980.  
9. 
Learned 
Advocate 
General 
(Punjab) 
adopted 
the 
arguments advanced by the Attorney General for Pakistan. 
However, he added that considerations prevailed upon the 
learned High Court are not sufficient to sustain the judgment. 
10. 
Ch. Mushtaq Ahmed Khan, learned Sr. ASC also appeared 
on behalf of the State and contended that:-     
i) 
Learned High Court had no jurisdiction to accept 
the appeal filed by respondents under Section 27-A 
of the Anti Terrorism Act, 1997, in view of the 
provisions of Article 203 DD of the Constitution 
read with Section 20 of the Ordinance, 1979. 
ii) 
The evidence produced by the prosecution has not 
been appraised by the learned High Court, at the 
touchstone of the principles pronounced by this 
Court, from time to time, for the safe administration 
of justice in criminal cases, as the evidence of 
prosecutrix 
and 
other 
witnesses 
has 
been 
disbelieved on the basis of technicalities, rendering 
the impugned judgment not tenable in the ye of 
law.  
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
57 
11. 
Ch. Aitezaz Ahsan, learned Sr. ASC appearing for the 
complainant argued that:- 
i) 
The evidence produced by the prosecution to 
establish guilt had not been appreciated by the 
learned High Court in its real perspective, due to 
which serious injustice has been caused to the 
compliant, who not only gang raped by four 
persons but she was also forced to parade without 
clothes in presence of her close relatives i.e. father, 
uncles and the members of the Punchayat.     
On the role of Punchayat, he stated that they had also facilitated 
the commission of the offence.  
ii) 
The conclusion drawn by the learned High Court is 
not tenable, thus cannot sustain in the eye of law.  
iii) 
The 
prosecution 
had 
proved 
the 
act 
of 
terrorism/gang rape by the respondents i.e. Abdul 
Khaliq, etc. with the assistance of others, therefore, 
following observation from the judgment goes to 
show that the appeal has not been disposed of 
according to facts on record:- 
“Hence we are satisfied that the allegation of committing sexual 
intercourse with the complainant (PW-14) is only proved against 
Abdul Khaliq appellant, which is covered by Section 10(3) 
Offence of Zina (Enforcement of Hudood) Ordinance, 1979. 
Since the allegation of gang rape is not proved, his conviction 
under Section 10(4) is converted to 10(3) of the Offence of Zina 
(Enforcement of Hudood) Ordinance, 1979 and he is sentenced to 
25 years R.I. However, the sentence of fine awarded by the 
learned trial Court is maintained and he shall be given the benefit 
to Section 382-B Cr. P. C. So far as his conviction under Sections 
11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 
1979 and 7(c) read with section 21(1), ATA 1997 and 149/109 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
58 
PPC is concerned, it is admitted fact that there was no purpose of 
the said appellant to abduct the complainant, who according to 
the allegation itself, was taken to a few paces and then returned 
immediately after commission of sexual intercourse. Moreover, 
the act of Abdul Khaliq appellant was not to intimidate and 
overawe the community and to create a sense of fear and 
insecurity in society as in spite of commission of the said 
occurrence none had reported the matter to the police for about 
nine days. Therefore, Abdul Khaliq appellant is acquitted of the 
charges under sections 11 of the Offence of Zina (Enforcement of 
Hudood) Ordinance, 1979 and 7(c) read with Section 21(1), 
ATA, 1997 and 149/109 PPC. Cr. Appeal No. 60/2002 to his 
extent stands disposed of and impugned judgment of conviction 
and sentence is set aside.” 
12. 
Learned counsel appearing for accused contended that:- 
i) 
Learned High Court had jurisdiction to dispose of 
appeal as the respondents were allegedly charged 
for the gang rape as well as for the offence under 
Section 7(c) read with 21(1) of the Anti Terrorism 
Act, 1997 and the Federal Shariat Court had no 
jurisdiction to entertain the appeals filed by the 
convicts.  
ii) 
The petitioner Abdul Khaliq has been convicted 
contrary to evidence available on record. Story put 
forward by the prosecutrix Mst. Kukhtar Mai is full 
of improbabilities, therefore, he was entitled for the 
acquittal from the charge under Section 10(3) of the 
Ordinance, 1979 as well.  
iii) 
Learned High Court had not believed the same set 
of evidence against the remaining accused persons 
but without seeking any corroboration, it has been 
believed against the petitioner, contrary to the 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
59 
principles of consistency. Similarly, against the 
remaining respondents, no evidence is available, 
therefore, High Court on having evaluated the same 
rightly acquitted them of the charge.  
iv) 
As now there is double presumption of innocence 
in their favour, as such acquittal order may not be 
interfered with, unless the case is made out in view 
of the principle laid down in Ghulam Sikandar v. 
Mamaraz Khan (PLD 1985 SC 11). 
13. 
We have heard learned counsel for the parties and have 
also gone through the relevant record carefully. Leave to appeal 
is granted in all the petitions, inter alia, to examine contentions of 
parties’ counsel noted above. Keeping in view the facts and 
circumstances of the case, operation of the impugned judgment of 
Lahore High Court, Multan Bench dated 3rd March 2005 is 
suspended. Non-bailable warrants of arrest of the respondents in 
Criminal Petition No. 96 to 99, 114 to 116 & 161 of 2005, except 
Abdul Khaliq, who is already in custody, be issued. Inspector 
General Police, Punjab is directed to cause their arrest and keep 
them in judicial custody pending final disposal of the appeals. 
They shall be treated as under trial prisoners.”       
6. 
 
One of the points formulated for determination in the leave 
granting order related to the assumption and exercise of jurisdiction by the Anti 
Terrorism Court. In the majority judgment, this question has been examined 
and without proceeding to determine whether or not the incident created terror 
justifying trial by the Judge Anti Terrorism Court, it has been considered 
appropriate not to undertake the exercise in the light of the concurrence of all 
the counsel before us not to reopen the issue at this stage, more so when the 
objection by the defence to the jurisdiction of the Court was given up during 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
60 
the trial. I agree that it is too late in the day to reopen the question. I also find 
myself in agreement with the findings regarding the eight accused who 
allegedly were members of the Panchayat but were neither attributed any 
active role in its proceedings nor nominated in the First Information Report. 
They were acquitted by the Trial Court and that acquittal was upheld by the 
High Court. For the reasons mentioned in Para 18 of the majority judgment I 
agree that their acquittal is to be maintained.  
7. 
 
Adverting to the impugned judgment, the High Court has 
disbelieved the prosecution version of the incident except to the extent of 
Abdul Khaliq, whose culpability was found of a far lesser degree than that 
alleged by the prosecution. The Court found a host of weaknesses in the 
prosecution case. It held that the delay of 8 days in reporting the incident to the 
police was inordinate and not sufficiently explained; that it was due to the 
persuasion and undue influence of Maulvi Abdul Razzaq (P.W.11) that the 
unwilling complainant and her father were made to make the report; that 
Maulvi Abdul Razzaq was the instigator and the mastermind of the entire plan; 
that the accused were nominated after deliberation and consultation with him. 
On merits of the prosecution evidence, the Court found contradictions in the 
statements of the witnesses. It found hard to believe that the complainant’s 
father and maternal uncle present at the Panchayat of the Mastoies would make 
no effort to intervene while the complainant was being raped in the nearby 
house. The Court was doubtful if the complainant was at all raped as it found 
no supportive evidence of her testimony, holding that the healed bruises on her 
buttocks and back did not furnish any corroboration. On the defence plea that 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
61 
on the evening of the incident nikah, followed by sexual intercourse, was 
performed between Abdul Khaliq and Mukhtar Mai, the learned Judges of the 
High Court, neither held the nikah proved, nor gave clear finding on the 
culpability of the said accused, though, convicted him under Section 10(3) of 
the Offence of Zina (Enforcement of Hadood) Ordinance, 1979. 
8. 
 
Taking up first the question of delay in lodging the report. 
Admittedly, it was made after eight days of the incident. There are no hard and 
fast rules for assessing the effect on the prosecution case of delay in reporting 
the crime to the police. Every case is to be examined on its own facts and the 
nature of the crime committed. The Courts are generally inclined not to attach 
much importance to delay in reporting rape, considering that the victim and her 
family would take time to recover from shock and to be in a position to decide 
whether or not report the crime, in view of the social taboos and the stigma it 
attaches not only to the victim but the entire family. Mr. Aitzaz Ahsan, learned 
counsel for the complainant, provided us with a long list of case law from our 
own as well as Indian jurisdiction where delay in reporting rape was not 
considered fatal to the prosecution case. Reference may be made to some of 
them. In Mehboob Ahmad v The State (1999 SCMR 1102), the Court 
observed, “We cannot be unmindful of the prevailing taboos in our society. 
Even in modern day advanced societies, for and on account of the prevalent 
predilections, many cases of rape go unreported. A victim of rape should not 
be penalized on account of ostensible delay in reporting what she has 
undergone. On the contrary, kindness, encouragement and understanding are 
the requirements to approbate a victim’s difficult decision to purge the society 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
62 
of perpetrators of such heinous offences.” Brushing aside the defence 
argument of the delay in lodging the F.I.R. two months after the rape, the 
Federal Shariat Court in Muhammad Umar v The State (1999 P Cr. L.J. 699) 
declared that “delay in reporting occurrence of such nature to police was not 
uncommon, particularly in tribal society where people were normally hesitant 
to report to police matters concerning womenfolk and involving their honour.”  
In Nasreen v Fayyaz Khan and the State (PLD 1991 SC 412) this Court 
accepted the explanation furnished by the prosecutrix, victim of the rape, of 
delay of several months in lodging the F.I.R. In Azhar Iqbal v The State 
(1997 P.Cr.L.J. 1500), the Federal Shariat Court dealing with the delay in 
registration of a rape case observed that it was the natural result of the socio-
ethnic situations coupled with painful mental condition of the victim and her 
close relatives; that such delay in rape cases is a universal phenomenon and can 
be brushed aside unless the very commission of offence itself is clearly 
dubious. 
9. 
 
It follows that it is quite normal that crimes of rape are not 
reported promptly. The devastating effects of rape on the victim and her family 
itself furnish explanation for delay in its reporting. Delay per se would not cast 
any reflection on the truthfulness of the allegations made in the report. There is 
another compelling reason that discourages a rape victim to prosecute the 
accused. She is deterred by the embarrassment and humiliation she would have 
to suffer in narrating the incident to strangers, more so, to the police recording 
the F.I.R., followed by probes during investigation into matters personal to her. 
She would further have to bear the agony of narrating the story in the open 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
63 
court in the presence of men and face searching and harassing questions from 
the cross-examiner. It is said that a rape victim relives the trauma every time 
she narrates the incident. 
10. 
 
Furthermore, in our society rape victims, particularly, from rural 
areas, are not free agents. To bring the rapist to justice, they invariably require 
permission and approval of their men-folk. This is amply demonstrated by the 
facts of this case. P. W. Maulvi Abdul Razzaq claims that when he learnt about 
the incident, he approached the father of the complainant, Ghulam Fareed. It 
was only after he managed to persuade the father that the complainant was 
taken to lodge the report.  
11. 
 
The record of the present case however reveals that there were a 
number of other factors that prevented the complainant party to make the report 
to the police. The complainant party was under a continuous threat from the 
accused not to disclose the incident. The threat was real in view of the social 
disparity between the two parties, as will be discussed latter. Without the moral 
support of P.W. Maulvi Abdul Razzaq and the publicity given to the incident, 
perhaps, it may never have seen light of the day. 
12. 
 
 Despite such odds, the complainant, an illiterate woman of rural 
humble background, mustered tremendous courage to stand up against 
powerful influential culprits to bring them to justice. Thus, in my view, the 
delay of eight days in reporting the incident to the police by the complainant in 
the afore-mentioned circumstances will not be fatal to the prosecution case. 
13. 
 
The High Court, it appears, has placed the entire blame on P.W. 
Maulvi Abdul Razzaq for planning to prosecute the accused and in the words 
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64 
of the High Court he was “the mastermind who got this case registered. He 
appears to have involved them by influencing and pressurizing the complainant 
and her father Ghulam Fareed who were playing in his hands, according to his 
own statement.” Maulvi Abdul Razzaq was Imam of a local mosque, who was 
one of the two arbitrators (salis) selected by the Panchayat of the Gujjars 
(complainant party) to negotiate with the representatives of the Panchayat of 
the Mastoi Tribe for a settlement of the dispute arising out of the affair between 
Abdul Shakoor and Mst. Salma. According to him, when the proposal of the 
Gujjars, that Abdul Shakoor be married to Salma and a girl from the Gujjars to 
a man from Mastoies, was not accepted by the latter, who insisted upon 
revenge (badla), he withdrew from the negotiations. That when he learnt about 
the rape, he made it public in the congregation of the Juma prayer and that is 
how the incident received wide publicity in the national and international 
media. Maulvi Abdul Razzaq, being an ‘Imam’ had some social standing and 
influence in the society and it was on account of his intervention and moral 
support that encouraged the complainant’s father to take the accused to task. 
The witness is not, in any way, related to the complainant party. It is hard to 
believe that the complainant, or her father would, in order to please Maulvi 
Abdul Razzaq, make out a false case of rape against the accused and face and 
endure its serious repercussions. The High Court had misconstrued the role of 
this witness, which in my opinion was positive and well intentioned, rather 
than mala-fide. His civil litigation with Karam Hussain, father-in-law of the 
accused Ghulam Fareed would not render him un-credible. Had he been ill 
motivated on that account he would have implicated Karam Hussain, or 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
65 
member of his immediate family, rather than son-in-law. No ill will of this 
witness against the other accused has been shown by the defence.      
14. 
 
In order to examine and appreciate the prosecution evidence in its 
proper perspective one has to keep in mind the disparity in the levels of the 
social status of the complainant and the accused party and the influence of the 
latter. The accused belonged to influential Mastoi Tribe and the complainant to 
a humble family of Gujjars. The influence of the Mastoi Tribe was vividly 
portrayed in a news report published in the Daily Dawn by a journalist, 
Nadeem Saeed, who was produced by the defence as D. W. 2 in support of the 
report (Ex.DK), to prove that the complainant had implicated the wrong 
Fayyaz as accused. Whether his reference to the statement of P.W. Abdul 
Shakoor about the error is admissible evidence is another issue, his personal 
observations reported in the news item titled “POLICE, FEUDALS TRYING 
TO SAVE CHIEF JUROR”, demonstrating the influence of Faiz Mastoi is 
admissible. The Correspondent visited the police station where the accused 
were detained. He observed that Faiz Mastoi was being treated by the officer in 
charge of the police station as a special guest and was trying to help out the 
accused by giving a different twist to the incident. The record further shows 
that due to influence of the Mastoi Tribe, without the intervention of its head 
(sarbara) Faiz Mastoi, the police did not dare release of Abdul Shakoor when 
he was detained by Abdul Khaliq in his house. It was on account of this clout 
that the police had refused to register the case of sodomy committed upon 
Abdul Shakoor. The very act of bringing the complainant to the Panchayat of 
the Mastoies to seek forgiveness for her brother but instead subjected to rape 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
66 
while her near and dear ones stood by helpless, demonstrates the power of 
Mastoies as against the complainant. For further evidence of the Mastoies 
arrogance, aggression and highhandedness, one may refer to the statement of 
some of the witnesses. Altaf Hussain (P.W.12), who was one of the persons 
present at the Panchayat of the Mastoies, disclosed that after the complainant 
was raped the accused threatened the complainant party to teach them a lesson 
in case the matter was disclosed (Hashar Kar dengey). Sabir Hussain, P.W., 
the maternal uncle of the complainant, who had taken her to the Panchayat to 
seek forgiveness, when questioned in cross-examination about his failure to 
intervene to save the complainant from being raped, responded “I saved my life 
not respect” Mukhtar Mai, responding to a question volunteered, “after the 
rape we were not in our senses and everybody was weeping”. Sabir Hussain 
and Mukhtar Mai, during their testimonies had referred to the threats held out 
to the complainant party after the incident to prevent them from reporting to 
the police. The accused party not only raped the complainant but sodomized 
her brother, who out of fear and shame desisted from reporting both the 
incidents. 
15. 
 
The episode culminating into the complainant’s rape began with 
the detention of Abdul Shakoor by Abdul Khaliq, brother of Mst. Salma, in his 
house on the allegation that he was having an affair with his sister. The 
members of Abdul Shakoor’s family made abortive efforts to get him released. 
Even the police initially failed and it was only when Faiz Mastoi gave 
clearance, Abdul Shakoor was handed over to the police, who took him to the 
police station. Abdul Shakoor’s family realizing that he would not be freed by 
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the police without the approval of the Mastoies, started making efforts to have 
the matter settled through compromise. On the other hand, the Mastoies were 
reluctant to any term of compromise without vindicating the honour of Mst. 
Salma’s family and for that matter, the Mastoi Tribe as a whole. To resolve the 
issue two separate Panchayats/Akaths were held, one by the Mastoies, 
comprising 200/250 members and the other by the Gujjars, each proposing its 
own terms of settlement. These were not the customary Panchayats convened 
to resolve disputes between two parties; each Panchayat was convened to 
decide its own terms for settlement. For the Gujjars, Maulvi Abdul Razzaq and 
one, Mansoor Jatoi, neither of them Gujjars, were nominated to negotiate with 
the Mastoies, who were represented by Faiz Mastoi, Ramzan Pachar and 
Ghulam Fareed. The Gujjars proposed that the hand of Mst. Salma be given to 
Abdul Shakoor and in return the complainant be wedded to Abdul Khaliq. The 
Mastoies rejected this proposal and demanded that a compromise could not be 
reached without badla (revenge), demanding that a woman of the 
complainant’s family be allowed to be subjected to zina. This demand was not 
acceptable to the Gujjars and as the negotiations failed they dispersed and their 
salis withdrew. Later on, Ramzan Pachar and Ghulam Fareed came with a 
fresh proposal from Faiz Mastoi that the complainant family would be forgiven 
and the matter compromised if Mukhtar Mai would seek pardon from the 
Mastoies. It was in these circumstances that Sabir Hussain P.W.13, maternal 
uncle of the complainant, accompanied by Haji Altaf P.W., Ghulam Nabi and 
Ghulam Fareed, father of the complainant took Mukhtar Mai to the Mastoi 
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Panchayat. However, according to the prosecution, instead of being forgiven, 
she was subjected to multiple rape. 
16. 
 
There are two phases of the proceedings of the Panchayats and the 
negotiations between them through their representatives. The first is up to the 
stage of failure of negotiations and the second is the happenings thereafter. To 
prove the first, the prosecution has produced P. W. Maulvi Abdul Razzaq and 
P. W. Sabir Hussain; the former being one of the salis and the latter maternal 
uncle of the complainant, was part of the Gujjars akath assembled in the 
mosque. Besides the complainant, Sabir Hussain and Haji Altaf Hussain are 
witnesses of the second phase. The prosecution did not produce Ghulam 
Fareed, father of the complainant and Ghulam Nabi, who were also stated to be 
present when Mukhtar Mai was taken to the Panchayat. The prosecution is not 
obliged to produce all its witnesses, so long as it can bring on record sufficient 
credible evidence to sustain conviction of the accused on trial. In any event non 
appearance of the complainant’s father in the witness box is understandable. 
He was a timid and broken man who was neither able to prevent the rape of his 
daughter nor had the courage and nerves to go to the police. Perhaps, he was in 
no position to further endure the pain and embarrassment that he would suffer 
narrating the episode in open Court. The High Court, while disbelieving the 
prosecution case as a whole, found weaknesses in the testimony of these 
witnesses. However, due weight was not given to the testimony of the 
complainant, the victim of the crime and mainstay of the prosecution case. Her 
testimony provided foundation, while, the testimony of other witnesses 
furnished corroboration.  
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69 
17. 
 
Both the Courts, the Trial as well as the High Court found that the 
Panchayats were held. Though, the High Court was suspicious of Maulvi 
Abdul Razzaq’s role in getting the case registered, his role in the negotiations 
between the two tribes was not seriously doubted. According to his testimony, 
he was associated by the Gujjars from the stage Abdul Shakoor was taken to 
the police station. Being Imam of the local mosque, his involvement by the 
Gujjars was quite natural. The Gujjars were of a lower social status and at the 
receiving end. They needed the intervention and support of men of some 
influence as they were not in a position to have the issue settled on their own. 
P. W. Sabir Hussain, being maternal uncle of Abdul Shakoor, no exception can 
be taken to his presence in the Gujjars’ akath and, thus, was well aware of all 
the negotiations that were going on. In fact, he is the witness of both the 
phases. Even the defence in their confirmatory suggestions to the prosecution 
witnesses, conceded the holding of Panchayats. For example, P.W. Maulvi 
Abdul Razzaq, in cross examination, admitted correct that Haji Altaf Hussain 
and Ghulam Nabi were present in the akath. It was argued by the defence 
counsel, Malik Muhammad Saleem, that suggestion by the defence to a 
prosecution witness in cross examination, does not amount to admission on 
behalf of the accused. Mr. Aitzaz Ahsan, however, referred to a number of 
judgments including two of this Court “Shehzad v The State (2002 SCMR 
1009) and Muhammad Tashfeen v the State (2006 SCMR 577)” in support 
of his contention that such suggestion can be considered by the Courts. In the 
present case, suggestions by the defence to the witnesses have assumed greater 
importance as all the accused in their statements recorded under Section 342 
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Cr. P. C., instead of taking any specific defence plea, stated “their defence is 
the same as taken in the cross-examination by the counsel”. Thus it stands 
proved that each camp held its own Panchayat/Akath, and entered into 
negotiations for a settlement, that eventually failed. 
18. 
 
About the second phase of which the complainant was a witness, 
she had alleged that when she was taken to the Mastoies Panchayat, she was 
handed over to Abdul Khaliq accused. That inspite her hue and cry for help, no 
one came forward to her rescue. Abdul Khaliq armed with a pistol caught her 
by the arm, Fayyaz, Ghulam Fareed and Allah Ditta pushed and dragged her 
into the room of the house of Abdul Khaliq where the four subjected her to 
rape.  
19. 
 
The roles of Faiza Mastoi, Ramzan Pachar and allegations made 
against each of the four accused of rape will be discussed later. The primary 
question is whether the complainant was subjected to rape. The fundamental 
and crucial testimony in any rape case is always that of the victim. Being 
victim of the crime she is the most informed and credible witness of the 
incident. The High Court found that the testimony of the complainant lacked 
corroboration. On the question as to whether in the absence of corroboration, 
conviction on a charge of rape can be based on the sole testimony of the victim, 
Mr. Aitzaz Ahsan cited a number of judgments where the Courts in Pakistan as 
well as in India have held that no corroboration was required. Reference may 
be made to “Muhammad Abbas v The State (PLD 2003 SC 863), Rana Shahbaz 
Ahmad v the State (2002 SCMR 303, 306), Shahzad v The State (2002 SCMR 1009), 
Mehboob Ahmad v The State (1999 SCMR 1102, 1103), Haji ahmad v The State (1975 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
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SCMR 69), In the last two cases it was held that absence of marks of violation on 
the body of the prosecutrix does not imply non-commission of rape.  Ghulam 
Sarwar v The state (PLD 1984 SC 218 [SAB]) and Bhupinder Sharma v Himachal 
Pradesh (AIR 2003 SC 4684)”. In Bhupinder Sharma’s (ibid) case it was 
observed “when Indian woman in tradition bound society makes a complaint of 
rape there is an inbuilt assurance that the charge is genuine. To insist on 
corroboration is to add insult to injury.”  
20. 
 
In most of the reported cases where conviction was based on the 
sole testimony of the victim, there was absence of corroboration. That is not so 
in the present case. When medically examined eight days after the incident, the 
doctor found healed bruises on the complainant’s buttocks and back. The locale 
of the bruises indicates physical struggle by the complainant and there healed 
condition coincide roughly with the timing of the incident. Unlike most other 
cases of reported rape, the present one was not committed in complete privacy 
and not for the satisfaction of the lust of the rapist. In the presence and within 
the view of the members of Panchayat and the witnesses the complainant was 
forcibly taken away by the accused to the house of Abdul Khaliq and freed 
with clothes in her hand and body half naked. 
21. 
 
The complainant’s allegation of rape receives some support from 
the defence plea, admitting sexual intercourse between Abdul Khaliq and the 
complainant, albeit after performance of nikah. The defence in this respect 
made positive suggestion to P. W. Maulvi Abdul Razzaq and the complainant 
that nikah between the two was performed by the former. The suggestion was 
rejected by both the witnesses. The defence also produced Ghulam Hussain 
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72 
(D.W.5) in support of the plea. This witness is father of one of the accused, 
Jamil. His testimony was not believed by either of the Courts. No other witness 
was produced to prove nikah. Maulvi Abdul Razzaq was conveniently 
introduced by the defence as nikah khawn in order to preempt any objection by 
the prosecution for not producing nikah khawn in support of the nikah. Had the 
nikah been performed between the two and Abdul Khaliq and the complainant 
pronounced husband and wife it does not stand to reason that the complainant 
would straightway leave the husband’s house for her own, for it is nobody’s 
case that they ever lived together. Whereas the Trial Court did not accept the 
plea of nikah, the High Court neither held the same proved, nor ruled out the 
possibility of its truth. With respect, the burden was on the accused to prove the 
nikah, though a lighter one. Once the burden was not discharged the plea had to 
be excluded from consideration for all purposes. Perhaps it was on account of 
some confusion in the mind of the learned Judges on the issue that led them to 
give inconsistent findings on the plea as the following passage of the impugned 
judgment would show.  
“The possibility cannot be ruled out that since Abdul 
Shakoor brother of the complainant was in police custody on 
the allegation of committing ziyadti with Salma sister of 
Abdul Khaliq to save him from the legal action she had 
agreed to perform marriage with Abdul Khaliq and was sent 
with him immediately as was suggested to the PWS during 
cross-examination, who performed sexual intercourse with 
her and at about 2.00 a.m. the same night Abdul Shakoor 
was taken back from the Police Station. But the intention of 
Abdul Khaliq is borne out from the record that he only 
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73 
wanted to take revenge of ziyadti committed with his sister 
Salma and, therefore, on 27.6.2002 the marriage of Salma 
sister of Abdul Khaliq appellant was performed with Khalil 
co-accused thereby backing out from their commitment of 
marrying Salma with Abdul Shakoor. The complainant was 
also taken back to the house of her parents but no case was 
got registered till 30.6.2002. An inference can be drawn that 
if marriage of Salma was performed with Abdul Shakoor, 
then this case might have not been got registered in such 
circumstances, Abdul Khaliq in so many words has admitted 
the commission of sexual intercourse with the complainant 
and even otherwise to the extent of Abdul Khaliq there is 
consistent stand of the PWs that he was active to take 
revenge for the disrespect of his sister Salma.”   
22. 
 
If the plea of nikah is accepted, the complainant would still be the 
lawful wedded wife of Abdul Khaliq, as it is not the case of the defence that 
the complainant was divorced. One wonders why  would she bring a charge of 
rape against her husband even if the accused party had backed out of their 
commitment of marrying Mst. Salma with Abdul Shakoor. 
23. 
 
Mr. Malik Muhammad Saleem, learned counsel for the defence 
referred to a number of aspects of the prosecution case in order to persuade us 
that the entire story set up was concocted. The learned counsel argued that it is 
unbelievable that PW Sabir Hussain, maternal uncle of the complainant would 
take her to the Mastoies Panchayat who had already vowed to take badla 
(revenge). This argument fails to take note that when the Mastoies rejected the 
Gujjars’ proposal for settlement, the negotiations failed and the Gujjars aktah 
dispersed. It was thereafter that Muhammad Ramzan Pachar and Ghulam 
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74 
Fareed approached the complainant’s family with a new proposal from the 
Mastoies that led the complainant party to seek pardon from the Mastoies. The 
complainant’s family, hard pressed for the release of Abdul Shakoor from the 
police custody, took their chance and presented the complainant to the 
Panchayat. Reference may be made to the statements of P.Ws. Altaf Hussain, 
Sabir Hussain and the complainant. They were unaware of the actual decision 
and design of the Panchayat. The dispersal of the Gujjars’ Akath also furnishes 
answer to the defence argument as to why the Gujjars did not intervene to save 
the complainant. Additionally the Gujjars’ Akath, even otherwise was weak, 
comprised of 15/20 members as against the 200/250 members of the powerful 
Mastoi Tribe. The learned defence counsel had further argued that it was not 
possible that rape would be committed in the house of Abdul Khaliq when the 
complainant admitted that the accused Allah Ditta lived in that house along 
with his wife and children. This argument fails in the absence of any evidence, 
or even suggestion by the defence, that Allah Ditta’s family was present in the 
house at the time of the occurrence. The learned defence counsel next 
contended that had the complainant been subjected to rape, members of her 
family would never have accompanied Faiza Mastoi and Ramzan Pachar to the 
police station to obtain the release of Abdul Shakoor. This argument loses sight 
of the fact that the negotiations between the two parties were held with the 
object of the Gujjars to get Abdul Shakoor’s release. The Mastoies forced their 
own terms on the Gujjars. The Mastoies were thereafter no more desirous of 
Abdul Shakoor’s detention. For the release, the Gujjars were compelled to take 
Faiza Mastoie to the police station, without whose permission, as noted above, 
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the police would not release Abdul Shakoor. It made sense for the 
complainant’s family to get Abdul shakoor released even with the help of their 
tormentors when they had already suffered in the process.  
24. 
 
There is another aspect of the case. Upon receipt of certain 
complaints regarding negligence and corruption by the police during 
investigation of the case, the Deputy Inspector General of Police, Dera Ghazi 
Khan Range ordered a fact finding inquiry to be conducted by Mr. Mirza 
Muhammad Abbas, Superintendent of Police, Crimes Range. During this 
inquiry certain statements were recorded, apparently also of all the prosecution 
witnesses. After the prosecution closed its evidence the defence examined the 
said Mirza Muhammad Abbas as D.W.6 and on the basis of his statement the 
prosecution witnesses, Mukhtar Mai and others were recalled and subjected to 
another round of cross-examination in order to confront them with their 
statements recorded in the said inquiry. For the purpose of highlighting the 
contradictions in the prosecution evidence, the High Court had extensively 
referred to these statements. Mr. Ch. Aitzaz Ehsan, objected to reference to 
such statements, as according to him they carried the signatures of the 
witnesses and thus could not be treated as statements under Section 161 and 
therefore, the witnesses could not have been confronted with them under 
Section 162 Cr. P. C. It was argued that admittedly these statements were not 
part of the investigation but recorded during the fact finding inquiry into the 
allegation of corruption and negligence of the local police investigating the 
case. On the factual aspect, the learned counsel submitted that the statements of 
the main prosecution witnesses were not even proved, in that Mirza 
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Muhammad Abbas (D.W.6) admitted that the statements of Mukhtar Mai, 
Maulvi Abdul Razzaq and Ghulam Fareed were not recorded by Inspector Riaz 
in his presence; that Inspector Riaz was not produced to prove the statements. 
Responding to this contention Malik Muhammad Saleem, learned ASC, argued 
that the witness gave concessions to the prosecution due to pressures of the 
Government and the Media on those involved with the investigation and that is 
why the Court declared the witness hostile. That in any case, photo copies of 
the statements recorded by him were brought on record. He pointed out that the 
witness admitted that the statement of P. W. Sabir Hussain was recorded in his 
presence.  
25. 
 
Leaving aside the controversy about the status of the statements 
recorded during the fact finding inquiry, those of Mukhtar Mai, Maulvi Abdul 
Razzaq and Ghulam Fareed do not stand proved. They had denied making 
them. Inspector Riaz, who is alleged to have recorded the statements, was not 
produced to prove the same. As for the statement of P.W. Sabir Hussain 
(Ex.DR/2), D. W. 6, admits that it was recorded in his presence. Even if the 
same could be legally used for confronting the witness I found that the 
statement supports the prosecution case on all material aspects and that the 
cross-examiner confronting him with such statement was unable to elicit any 
material contradiction with his previous statement in Court or the prosecution 
case as a whole. The High Court had even taken into account the statement of 
Ghulam Fareed, father of the complainant, made during the said fact finding 
inquiry, even though he was not produced as a prosecution witness. The 
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previous statement made by a person can only be referred to when he testifies 
in court.  
26. 
 
There is some controversy between prosecution and the defence 
about the cause of detention of Abdul Shakoor by Abdul Khaliq in his house 
leading to the holding of the two Panchayats. The prosecution alleges that 
Abdul Shakoor was sodomised by Punoo, another brother of Mst. Salma, and 
his two accomplices, in the sugarcane field of the village and to save 
themselves from criminal prosecution, locked up him on the false allegation of 
intimacy with Mst. Salma. The defence version, on the other hand, as gathered 
from the trend of cross examination and the statement of their witness, Ghulam 
Hussain D. W. 5, is that Abdul Shakoor was detained after he was caught with 
Mst. Salma in the sugarcane field. There is no direct evidence of any sexual 
intercourse between the two except for the verbal assertion by D.W.5. Whether 
or not such intimacy did exist is not material here so long as the accused party 
believed in it, which they did. The sodomy on Abdul Shakoor has been denied 
by the defence but the same stands proved not only by the statement of Dr. 
Fazal Hussain, P. W. 17, who upon his medical examination on 13.7.2002, 
confirmed that he was subjected to sodomy, but the matter has now been 
judicially determined as all the three accused were convicted under Section 377 
PPC and their appeal was dismissed by the Federal Shariat Court. Copy of the 
judgment of the Shariat Court was produced by the learned counsel for the 
complainant. 
27. 
 
The prosecution version does not appeal to reason. In any society, 
much less rural or tribal, would brothers falsely scandalize their unmarried 
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78 
sister to save their own skin from a criminal charge of sodomy. The facts of the 
present case show that the accused party did not need any protection as 
according to the testimony of Abdul Shakoor, because of fear and shame he 
had refrained from reporting the sodomy to the police. Considering the 
complainant being a weaker party the accused did not had to worry about any 
criminal charge of sodomy. As stated earlier, they almost managed to keep the 
complainant family silent about the rape.  
28. 
 
Though the sodomy on Abdul Shakoor stands proved but the 
reason advanced by the prosecution for his detention by Abdul Khaliq is found 
preposterous. Though it may sound speculative, it seems that Abdul Shakoor 
and Mst. Salma were found together in the sugarcane field; taking this as an 
insult, her brother, Punoo, and his two accomplices first sodomized Abdul 
Shakoor and thereafter locked him up, leading to the present incident. Having 
said that, the incident of sodomy only provides a background to the present 
occurrence but does not have any substantial bearing on the merits of the case.  
29. 
 
The second phase of the episode, in the Mastoies Panchayat, is 
proved by the testimony of the complainant, P.W. Sabir Hussain and Haji Altaf 
Hussain. The complainant had successfully withstood the test long cross 
examination, twice, spreading over sixteen pages. At one point, she broke 
down, which was noted by the Trial Court. Her testimony supported by the 
healed bruises on her body was sufficient to prove the charge of rape. 
Nevertheless her testimony receives further corroboration from the statement 
of her maternal uncle P.W. Sabir Hussain, whose presence in both the 
panchayats cannot be doubted. As earlier observed, the defence had failed to 
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make any dent in his testimony. The High Court, with respect, was not right in 
discarding his testimony on the ground that he was not witness to the actual 
rape. He had taken the complainant to the Mastoies Panchayat and had 
witnessed her being dragged to the house and then saw her half naked after the 
rape. It is a rare phenomena to find a eyewitness of the very act of rape. As far 
as the presence of P.W. Altaf Hussain is concerned, the High Court has 
disbelieved his testimony on the ground that he being the brother of Maulvi 
Abdul Razzaq, labeled as ‘mastermind’ of the case, was interested in the 
prosecution of the accused. I have already disagreed with the High Court’s 
observations regarding P.W. Maulvi Abdul Razzaq, but even if the testimony 
of Altaf Hussain is excluded, the testimonies of the complainant and P.W. 
Sabir Hussain, together with the circumstances of the case, sufficiently prove 
the prosecution case. The contradictions of the prosecution case mentioned in 
the impugned judgment and also highlighted by the learned defence counsel 
are not so significant as to render the entire prosecution case false. Some of the 
contradictions between statements of the prosecution witnesses about minute 
details of the various stages of the episode, from the detention of Abdul 
Shakoor right up to the commission of rape, spreading over several hours can 
be attributed to the hectic activities and tension between the two groups, 
particularly in the complainant’s camp. Even otherwise the contradictions 
taken into consideration by the High Court were mainly with reference to the 
statements made by the witnesses to the fact finding enquiry, which were never 
proved.      
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
80 
30. 
 
In the light of the foregoing appraisal of the prosecution evidence, 
it stands established that Abdul Shakoor was detained by Abdul Khaliq, 
accused, on the accusation that he had developed an illicit liaison with his sister 
and that eventually he was taken into custody by the police; that two 
Panchayats, one of the Mastoies and the other of the Gujjars, were separately 
held; that when the negotiations between them failed for the release of Abdul 
Shakoor, Mukhtar Mai was taken to the Mastoies’ Panchayat for seeking 
pardon but was instead subjected to zina-bil-jabr. To this extent, the 
prosecution has succeeded in proving its case.  
31. 
 
The next question to be determined is whether the rape was 
committed with sanction of the Mastoies Panchayat. The High Court had 
answered this question in negative on the ground that there was no direct 
evidence that the Panchayat had taken decision to take revenge by zina for 
zina. No one from the Panchayat would have been ready to come forward and 
testify for the prosecution. Its stand can only be gathered from the 
circumstances. The two prosecution witnesses, Maulvi Abdul Razzaq and Sabir 
Hussain, testified that the Gujjars’ proposal of swap marriages between 
members of the two groups was not accepted by the Mastoies Panchayat, who 
insisted upon revenge. This assertion is corroborated by the Panchayat’s 
conduct when the complainant was brought before it. Its sanction was evident 
when its 200/250 members remained unmoved when the complainant begged 
for help while she was being dragged by Abdul Khaliq and others to the house. 
The presence of such a large number of members of Panchayat also scared the 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
81 
persons accompanying the complainant from making any attempt to save her. 
The Panchayat thus approved and facilitated the commission of zina-bil-jabr.  
32. 
 
I have already agreed with the majority view that eight accused 
members of the Panchayat, not named in the F.I.R., were entitled to acquittal. 
The role of Faiz Mastoi, Ramzan Pachar and Ghulam Fareed, however, stands 
on a different footing. They were nominated in the F.I.R. and also by the 
witnesses in their testimony as representative of the Mastoies and taking active 
part in the negotiations. The complainant had stated that when she was brought 
to the Panchayat, Faiz Mastoi addressed Abdul Khaliq, accused, that as the 
complainant had been brought her family be forgiven. She however added that 
this was said in a Siasi/Dunyavi (politically/worldly) manner. The learned 
defence counsel, taking advantage of the statement, contended that the same 
shall be taken on its face value that Faiz Mastoi did not approve of the revenge 
and was rather inclined to forgive the complainant party. The statement has to 
be seen in its context. Faiz Mastoi was the sarbrah (head) of the Mastoie Tribe. 
In that capacity he headed the Panchayat deciding the terms of settlement. His 
statement of forgiveness may have been his personal view but he felt bound by 
the decision of the Panchayat and allowed its implementation when despite 
being in a position of influence did not intervene when Abdul Khaliq took the 
complainant to his house. The other two, Ramzan Pachar and Ghulam Fareed, 
actively participated in the Panchayat’s proceedings and represented it. 
According to Maulvi Abdul Razzaq and Sabir Hussain these two had out 
rightly rejected the Gujjars terms for settlement and insisted upon zina for zina. 
Ghulam Fareed is additionally charged for participating in gang rape. His that 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
82 
role would be discussed later. Faiz Mastoi, Ramzan Pachar and Ghulam 
Fareed, thus facilitated, aided and abetted the commission of zina-bil-jabr. 
33. 
 
The complainant had charged four accused for gang rape; Abdul 
Khaliq, his brother, Allah Ditta, Faiz Muhammad and Ghulam Fareed. All the 
four were convicted by the Trial Court under Section 10(4) of Offence of Zina 
(Enforcement of Hadood) Ordinance, 1979 and each of them sentenced to 
death. For the reasons afore-stated, rape by Abdul Khaliq stands proved 
beyond shadow of doubt. He was the main figure in the entire episode, playing 
the lead role from locking up of Abdul Shakoor to dragging the complainant to 
his house. As regards Fayyaz accused, undisputedly a resident of Rampur, and 
not a mastoi, the defence case has been that he was mistaken for another 
Muhammad Fayyaz, resident of Mirwali, a mastoi and cousin of Abdul Khaliq. 
To prove the error, the defence produced Nadeem Saeed, D.W.2 of the Daily 
Dawn, whose testimony has been discussed earlier in a different context. He 
had quoted Hazoor Baksh, brother of the complainant, that the police got hold 
of the wrong Fayyaz. This may amount to hearsay evidence but similar 
complaints about the error were made to the Governor as well as other police 
officer. The question of identity of Muhammad Fayyaz has been discussed in 
the majority judgment and on a charge of serious offence of gang rape, I would 
agree with the findings that he would be entitled to the benefit of doubt on the 
ground of mistaken identity. This leaves us with Allah Ditta and Ghulam 
Fareed. The complainant was subjected to rape in a room in the house of Abdul 
Khaliq at around mid night. The prosecution evidence is completely silent 
about the source of light in the room. The site plan carries a note by the 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
83 
investigating officer that he was informed that it was a moon lit night, thereby 
tacitly confirming the absence of electric light in the room. The complainant 
had charged four accused for the rape. The only sentence for gang rape under 
Section 10(4) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 is 
death. The complainant’s allegation of being gang raped may not be false but 
in such a situation where one of the accused, Fayyaz, is being given benefit of 
doubt and acquitted of the charge of rape, and there was no light in the room 
where the incident took place, it may be unsafe to convict the other two 
accused of offence under Section 10(4) of Offence of Zina (Enforcement of 
Hadood) Ordinance, 1979. Having said that, Ghulam Fareed and Allah Ditta 
were the ones who had physically helped Abdul Khaliq in forcibly taking the 
complainant to the room. Ghulam Fareed had already been found guilty for 
facilitating and abetting the commission of rape. Allah Ditta is held similarly 
guilty.  
34. 
 
The learned defence counsel opposed the appeals against acquittal 
on the legal plane that a verdict of acquittal is not liable to be converted into 
that of conviction unless the appellants (complainant and the State) could show 
that the judgment of acquittal suffers from some material irregularities or has 
resulted in grave miscarriage of justice. He contended that all the points now 
being taken up by the prosecution were examined and adjudicated upon by the 
High Court. That though the High Court had drawn correct conclusions from 
the evidence, but such findings cannot be reversed even if this Court comes to 
different conclusions on the same evidence. He placed relied upon Relied 
upon, Ghulam Sikandar v Mamaraz Khan (PLD 1985 SC 11), Ch. Aitzaz 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
84 
Ahsan, on the other hand, referred to certain aspects of the case and the 
impugned judgment, which according to him, warrants interference by this 
Court. With the help of case law, he argued that the judgment of acquittal 
based on misapplication of law, conclusion drawn by taking into consideration 
inadmissible evidence the reversal of the findings of acquittal. In support, he 
cited “Barkat Ali  v Shaukat Ali (2004 SCMR 249), Amal Shirin v The 
State (PLD 2004 SC 371) and Mohammad Ashraf v Tahir (2005 SCMR 
383)”. In the latter case, a full bench of this Court convicted the accused whose 
acquittal by the Trial Court was upheld by the High Court, after the entire 
evidence was comprehensively reappraised. 
35. 
 
The following errors pointed out by the learned counsel for the 
complainant, in my view, call for interference with the impugned judgment. 
The High Court, as observed above, erred in holding that the delay in lodging 
of F.I.R. is fatal to the prosecution case; that the testimony of a rape victim 
requires corroboration. The Court had overlooked that there was corroboration 
of the complainant’s testimony. The Court failed to give due attention and 
weight to the testimony of the victim of the rape and its findings were 
considerably influenced by its erroneous view about the role of P.W. Maulvi 
Abdul Razzaq. The High Court was not entitled to use, and that too 
extensively, for the purpose of highlighting inconsistencies in the prosecution 
case, the statements recorded by Mirza Muhammad Abbas (P.W.6), during the 
facts finding inquiry, more so, treating such a statement of Ghulam Fareed, 
father of the complainant, as substantive evidence without his appearance in 
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85 
the witness box. The High Court had failed to give any clear finding on the 
culpability of Abdul Khaliq.  
36. 
 
For the foregoing reasons Criminal Appeal No. 171 of 2005, filed 
by Abdul Khaliq, is dismissed, Criminal Appeal Nos. 163 to 166 of 2005, filed 
by the State and 167 to 170 of 2005, filed by Mst. Mukhtar Mai are partially 
allowed. The impugned judgment to the extent of acquittal of Allah Ditta, 
Ghulam Fareed, Faiz Mastoi and Muhammad Ramzan Pachar, is set aside and 
they are convicted under Section 10(3) of Offence of Zina (Enforcement of 
Hadood) Ordinance, 1979 read with Section 19 of the Ordinance and Section 
109 PPC for abetment of zina-bil-jabr and under Section 7(c) of the Anti 
Terrorism Act, 1997 and on each count sentenced to imprisonment for ten 
years. The sentences shall run concurrently.   
 
 
 
 
 
 
 
 
 
 
Sd/- 
NASIR-UL-MULK 
JUDGE 
      19.4.2011 
Criminal Appeals No.163 to 171 and S.M. Case No.5/2005  
  
 
86 
Order of the Court 
 
  
 
In view of the majority decision, all the noted appeals are hereby 
dismissed.  The suo moto action initiated by this Court vide order dated 
14.3.2005 in the matter is also discharged.  Therefore, all those who were 
arrested pursuant to the order of this Court dated 28.6.2005  if not required in 
any other case be released forthwith. Abdul Khaliq, however shall be 
released after serving his sentence as awarded to him by the learned High 
Court, the benefit of Section 382 Criminal Procedure Code extended to him 
by that Court is also maintained. 
 
  Sd/- 
Judge 
 
  Sd/ 
 
 
 
 
 
 
 
Judge 
 
  Sd/- 
Judge 
 
Announced in open Court 
on 21.4.2011 at Islamabad  
  
APPROVED FOR REPORTNG