2019 PLP 456 (YLR)

SARDAR ABDUL HAMEED KHAN, J.

In a case FIR No. 38 of 2011 dated 21.06.2011, registered at Police Station Chinari under sections 295-B, 109, APC, whereby, the convict-appellant along with other namely, Muhammad Saleem, co-accused (real brother of the convict-appellant) was tried by the District Court of Criminal Jurisdiction, Hattian Bala. The trial Court finding the appellant guilty of the charge convicted and awarded him sentence for life imprisonment under sections 295-B, APC, whereas, the co-accused was acquitted of the charge under section 295-B, 109, APC, however, was convicted under section 13 of the Arms Act, 1965 (who is not before the Court now) vide judgment/order dated 15.03.2012 against which the appeal of the convict-appellant filed before the Hon'ble High Court has been dismissed vide judgment dated 07.07.2017. The above titled appeal has been directed against this impugned judgment.

2. The facts necessary for disposal of titled appeal are that the complainant of the case Munir son of Qamar Din, who is neighbor of the convict-appellant lodged a report at Police Station, Hattian Bala on 22.06.2011 stating therein that in the evening of 21.06.2011, when he reached home, he came to know that Muhammad Naseem, convict, made a quarrel with his mother for the reason that why she lets her children to leave the house without any justification. On this, the mother of the convict-accused asked him that why he has taken the land of `Nambardar' on lease and since he has taken the land on lease, it is very hard for her to run the household expenditures because of low income and she also told that the convict-accused is an idle person who does not sufficiently work for earning his livelihood. The convict-accused exchanged harsh words with his mother and was outraged. On this, he went inside the house and brought some books along with script of the Holy Quran placed it in the open field in front of the house and set it ablaze. It was reported that Ifat, the sister of the convict-accused and other women of the vicinity, tried to forbid the convict-accused from doing such act. Meanwhile, Wajid and Abid Hussain, co-villagers reached the spot and tried to stop the convict-accused from burning the script of the Holy Quran but the convict-accused assaulted them and scuffled. In the meantime, Muhammad Saleem, the brother of the convict-accused also came on spot armed with a pistol and during the scuffling, the script of the Holy Quran was burnt to ash. On this report, an FIR in the offence under sections 295-B, 109, APC and section 13 of the Arms Act, 1965 was registered against the convict-accused and Muhammad Saleem, accused.

3. After conducting the necessary investigation, the challan was presented before the learned District Criminal Court, Haitian Bala by the police. Both the accused nominated in the FIR were sent for trial. The charge was framed against them on 23.07.2011 who pleaded not guilty, thus, the prosecution was directed to lead evidence in support of his version. The prosecution examined 11 witnesses out of 13 as mentioned in the calendar of witnesses in the Court and after completion of the trial, Muhammad Naseem, accused, was convicted and sentenced to life imprisonment (rigorous) under section 295-B, APC, whereas, the co-accused namely, Muhammad Saleem was acquitted of the charge while extending the benefit of doubt. However, he was sentenced to three months and 7 days imprisonment along with Rs. 5,000/- as fine in the offence under section 13 of the Arms Act, 1965 and in default of payment of fine, he was ordered to undergo a simple imprisonment of one month. Both the convicts were also declared entitled to the benefit of section 382-B, Cr.P.C. Feeling aggrieved, the convict-appellant, herein, filed an appeal against the sentence awarded by the District Criminal Court, Hattian Bala before the Hon'ble High Court of Azad Jammu and Kashmir. The Hon'ble High Court dismissed the appeal filed by the convict-appellant and upheld the sentence awarded by the District Criminal Court, Hattian Bala, hence, this appeal.

4. Kh. Attaullah Chak and Ch. Amjad Ali, Advocates, the learned counsel for the convict-appellant, argued that judgment passed by the High Court is against law and the facts of the case. The convict-appellant is faithful Muslim having his full faith and respect to the Holy Quran along with other Divine ordains and he has never committed the alleged offence. They further argued that the prosecution failed to prove the alleged offence against the convict beyond the shadow of doubt. They contended that the prosecution has to stand on its own legs and every benefit of doubt will go to the accused. They contended that the allegation levelled against the convict under section 295-B, APC has not been proved by the prosecution, therefore, the judgments of both the Courts below are bad in law. They further contended that the prosecution evidence is hearsay evidence, which has no sanctity in the eye of law. The learned counsel argued that the conviction has been passed on the basis of surmises and conjecture which is against the principle of criminal justice. They further argued that the judgments of both the Courts below are based on misreading and non-reading of evidence and there is no direct evidence against the convict-appellant, moreover, the mens-rea is missing in the alleged incident. They further contended that there are material contradictions in the statements of the prosecution witnesses which have been overlooked by both the Courts below and the only star witness of the case Mst. Munawar Jan, has been declared hostile and has not supported the version of the prosecution and prayed for acquittal of the convict-appellant.

5. Ch. Amjad Ali, the learned counsel for the appellant separately argued that the appellant has repented upon his act and has Completed the Nazra-e-Quran in Jail and has been awarded the certificate to this effect as well as the jail Superintendent has issued the certificate of good character and reported that the appellant regularly prays five times. The copies of the same have been placed before the Court and prayed for summoning the accused before the Court and also prayed for remanding the case back to the trial Court by referring certain scripts from the book 'Kitabul-Fiqah and Islamic Penal Laws' by Abdul Qadir Oodha Shaheed.

6. On the other hand, Raja Muhammad Zubair, the learned Additional Advocate-General, appearing for the State, argued that the judgments passed by both the Courts below are in accordance with law, therefore, no interference is warranted by this Court. He argued that the prosecution proved the case through cogent evidence, therefore, the conviction awarded by the District Criminal Court, Hattian Bala and upheld by the Hon'ble High Court is in accordance with law. He further argued that it was a broad daylight occurrence which took place where many people of the vicinity were gathered. The convict-appellant committed a heinous offence of defiling of the copy of the Holy Quran which is also proved by the prosecution witnesses. The learned Additional Advocate-General lastly submitted that the Hon'ble High Court has rightly dismissed the appeal of the convict-appellant.

7. We have heard the arguments of the learned counsel for the convict-appellant and the learned Additional Advocate-General and perused the record with utmost care.

8. The main allegation levelled against the convict-appellant in the FIR is that the convict brought a copy of the Holy Quran in field at the front of his house and set the said copy at fire. The main argument advanced by the counsel for the convict-appellant is that the star witness of the occurrence is Mst. Manawar Jan, mother of the convict, who has been declared as hostile. The convict-appellant did not accept the version of the prosecution and contended that the prosecution failed to prove the alleged offence against the convict-appellant beyond the shadow of doubt and the standard of evidence to prove the offence under section 295-B, APC is not fulfilled in the instant case. The material contradictions are obvious in the statements of the prosecution witnesses and on such evidence, the conviction cannot be recorded. The convict has never committed the alleged offence.

9. Although, the re-appraisal of evidence is not the job of this Court, however, to meet the ends of justice, we have perused the file with utmost care. To prove the allegations, the prosecution has produced the direct evidence as well as the corroboratory evidence. Though, Mst. Manawar Jan, the prosecution witness, mother of the convict, was declared hostile, however, the perusal of the statement of this witness shows that she has not resiled from initial part of her statement recorded under section 161, Cr.P.C. Rather in the Court's statement, she affirmed the initial part of her deposition made under section 161, Cr.P.C. The relevant sentence of the Court's statement of the prosecution witness, Munawar Jan dated 29.09.2011 placed at page 23 of the file of the trial Court is reproduced herein below:-- This prosecution witness who was declared hostile has categorically affirmed that the convict brought a copy of the Holy Quran along with other books in the field and thereafter, she did not find the copy of the Holy Quran in the room. This part of the statement of Mst. Manawar Jan, mother of the convict, finds supports from the statement of the convict recorded under section 342, Cr.P.C., wherein, he deposed that:-- It may be mentioned here that during the course of trial before the trial Court, the convict-appellant on 28.08.2011, filed an application to the effect that:- The stance taken by the convict-appellant in the gist of the application reproduced hereinabove, strengthen the version of the prosecution that the convict-appellant committed the offence of defiling of the copy of the Holy Quran.

10. The prosecution witness and the complainant in the case has narrated in his statement that he came home in the evening and saw that the people of the locality gathered in front of the convict's house and he was told that the convict and his brother have defiled the Holy Quran. It is stated by him that he found the brunt papers of the Holy Quran from the spot. He further deposed that the convict confessed before the police that he has committed the offence. Although, the complainant is not an eye-witness of the occurrence, however, the offence of defiling a copy of the Holy Quran stands proved from the statements as mentioned hereinabove. All the prosecution witnesses especially Mst. Manawar Jan, prosecution witnesses, stated that the convict brought the Holy Quran outside of the house along with other books. Moreover, the burnt pages of the Holy Quran have been recovered from the spot and the recovery memo was prepared and the contents of the recovery memos were verified by Wajid Hussain and Ghulam Ahmed, prosecution witnesses. Abid Hussain, one of the prosecution witnesses, deposed that on the day of occurrence, on hearing the hue and cry, he went to the place of occurrence along with Majid, Wajid and Mazhar, who saw that the convict was burning the copy of the Holy Quran. He and his companions forbid him not to do but he resisted and the co-accused rushed towards the house and came back with pistol and warned them otherwise he will fire upon them with pistol. The statement recorded by the prosecution witness, Abid Hussain, was further corroborated by Wajid Hussain, prosecution witness. It was alleged in the FIR that on forbidding the convict not to defile the copy of the Holy Quran, he scuffled with them and the co-accused threatened to fire upon them with the pistol. The act of scuffling and fetching the pistol from the house by the co-accused is also not denied by the defense. The co-accused, Muhammad Saleem, brother of the convict, who is not before the Court, while recording his statement under section 342, Cr.P.C. in reply to the question put to him deposed that:-- Meaning thereby that the accused admits the scuffling of the prosecution witnesses and the convict in defense failed to bring on record that why the convict and the prosecution witnesses were scuffling each other. Thus, the prosecution succeeded to prove that the convict has defiled the Holy Quran by burning the copy in to ashes.

11. While going through the above mentioned statements and other pieces of evidence/record, we are of the unanimous view that the prosecution has brought sufficient material on record regarding the facts in issue as well as other relevant facts forming part of this incident, which is fully covered under Articles 18 and 19 of the Qanun-e-Shahadat Order, 1984. We felt advised to reproduce here section 295-B, APC, along with Articles 18 and 19 of the Qanun-e-Shahadat Order, 1984. Sec-tion 295-B, A.P.C. is reproduced as under:- "295-B. Defiling, etc. of copy of Holy Qur'an.

Whoever wilfully defiles, damages or desecrates a copy of the Holy Qur'an or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life." Whereas, Articles 18 and 19 of the Qanun-e-Shahadat Order, 1984 are reproduced herein for convenience and elucidation:- "Article 18: Evidence may be given of facts in issue and relevant facts: Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. Explanation:--This Article shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure. Illustrations (a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A's trial the following facts are in issue (i) A's beating B with the club; (ii) A's causing B's death by such beating; (iii) A's intention to cause B's death. (b) A suitor does not bring with him and have in readiness for production at the first hearing of the case, a bond on which he relies. This Article does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings otherwise than in accordance with the conditions prescribed by the Law for the time being in force relating to Civil Procedure." Article 19: Relevancy of facts forming part of same transaction: Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration (i) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. (ii) A is accused of waging war against Pakistan by taking part in an armed insurrection, in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, through A may not have been present at all of them. (iii) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself. (iv) The question is whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact." The perusal of provisions of above reproduced articles read with the above discussed pieces of evidence regarding prior and post occurrence facts/ circumstances, it can safely be concluded that the evidence in this case is fully protected by Article 19 supra and the principle of 'res gestae', which is admissible in evidence because some of the facts are hearsay but relevant to the facts in issue. Thus, the appraisal of evidence of the instant case in the light of the principle of 'res-gestae', the prosecution has proved the case, which has rightly been believed by the Court below. Our view finds support from the case reported as Suhail and 3 others v. The State [2001 PCr.LJ 1086 (FSC)), wherein it has been observed as under:-- "In order to crystallize the proposition it would be advantageous to also reproduce herein below illustration (a) to the above Article which reads as under:- (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by standers at the beating, or, so shortly before or after it as to form part of the transaction, a relevant fact. A bare perusal of the above provision as well as the illustration tagged thereto would lead to the inference that hearsay testimony would be admissible if it is proved that the object of the maker of the statement was to elucidate and explain the circumstances connected with the same transaction provided the possibility of concoction or distortion, to the advantage of the maker or to disadvantage of the accused, is ruled out. Since rest of the statement of P.W.D.4 is also based on personal knowledge of the witnesses, therefore, we do not find any force in this contention of the learned counsel for the appellants, as well." Similarly, in a case reported as Abdullah alias Malli v. The State (2000 PCr.LJ (Lahore) 769], in which it has been observed as under:-- "

7. This is a case which fully attracts the rule of res gestae. The res gestae rule is that where a remark is made spontaneously and concurrently. It is defined as a matter incidental to main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of transaction and without a knowledge of which main fact might not be properly understood. They are events themselves speaking through instinctive words and acts of participants; circumstances, facts and declarations which grow out of main fact are contemporaneous with it and serve to illustrate its character. Res gestae includes everything that may be fairly considered as an incident of event under consideration. It carries with it inherently a degree of credibility and will be admissible because of its spontaneous nature. 'Res gestae' means literally thing or things happened and; therefore, to be admissible as exception to hearsay rule, words spoken, though expressed and gestures made must all be so closely connected to occurrence or event in both time and substance as to be a part of the happening. It is a spontaneous declaration made by a person immediately after an event and before the mind has an opportunity to conjure a false story. It represents an exception to the hearsay rule.

8. Res gestae is a concept which as a matter of principle is employed in the English system of administration of criminal justice under the name of `res gestae'. In our system of administration of justice, Article 19 of Qanun-e-Shahadat (P.O. No.10 of 1984) corresponding to section 6 of the Evidence Act of 1872, is an enacted provision of law under which statement made immediately after the occurrence under the influence of occurrence in order to characterize is and connecting therewith would be admissible under this article as 'res gestae' evidence."

12. It may also be stated here that after recording of the evidence by the prosecution witnesses and examining the convict under section 342, Cr.P.C., the convict declined to produce the evidence in defense, however, opted to get his statement recorded under section 340(2), Cr.P.C., however, later on, the convict filed an application before the trial Court on 25.01.2012 that he does not want to record his statement under section 340(2), Cr.P.C. All these acts on behalf of the convict also strengthen the version of the prosecution.

13. So far as the contention of the learned counsel for the convict-appellant that there are discrepancies in the statements of prosecution witnesses, thus, the conviction cannot be recorded on such evidence is concerned, it may be observed that the minor discrepancies in the prosecution evidence does not thresh out the whole case of the prosecution as the minor discrepancies can be ignored lightly. However, as stated hereinabove that all the prosecution witnesses remained consistent on the material part of the prosecution version, thus, the convict-appellant failed to point out any major contradiction in the prosecution evidence.

14. We are very well aware of the importance and significance of the offence of defiling of the Holy Quran which is not confined to a limited meaning to the extent of spiritual aspect but also the physical show of respect which is a proper declaration to the honour and greatness to its teachings and thoughts and that this Holy Book must be given full honour and high place both in body and mind, because the physical respect of the Holy Quran and spiritual feelings with its teachings cannot be separated from each other. For strengthening our above findings, we will like to reproduce here some reports of the case law from Hon'ble Lahore High Court reported as Sayed Ijaz Hussain, alias Tahir Pir v. The State [1994 MLD 15], wherein it has been held as under:-- "The word 'defiles' as defined in Black's Law Dictionary means to corrupt purity or perfection; to debase; to make ceremonially unclean; to pollute' to dishonour' to debauch, deflower. The word 'defile' is of general import not confined to a limited meaning to the extent of spiritual aspect and honour but also the physical show of respect which actually is a declaration to the honour and greatness to its teachings and thoughts. The Holy Quran being a sacred book necessarily is to be given full honour and high place both in body and mind ." In the verses of Holy Qur'an itself the Almighty Allah has directed to show respect and its teachings. If somebody does not show respect to the Holy Quran in its physical context, he cannot have honour for its teachings and similarly someone has no respect to its teachings, he does not have much respect in physical context, therefore, the physical respect and spiritual feelings with its teachings cannot be separated from each other.

14. Keeping copy of the Holy Quran in a bag with a pair of shoes and that too in the feet is a sign of showing dishonor and disrespect to the Holy Quran. The arguments that no the physical but the spiritual respect is the intent of section 295B, P.P.C. do not carry weight for the reason that spiritual respect is a matter of understanding of an individual with reference to his knowledge and wisdom which is not common, but to show physical respect and hounor to the Holy Quran is a legal, religions and moral duty of a person. The spiritual respect and honour is a matter an individual relating to his thinking whereas the physical honour and respect is matter of his action visible .' The defiling, damaging or desecrating of a copy of Holy Qur'an or of an extract therefrom if wilfully must constitute an offence under section 295-B, P.P.C. The act of defiling or desecrating if done consciously and deliberately with or without the intention to damage and destroy the honour, respect and greatness in the eye of public in general or with the purpose to satisfy one's own feelings shall be a wilful act bringing the case within the purview of section 295-B, P.P.C. A person who has to force himself upon the attention of others addressing them as an involuntarily hearer, using of insulting and derogatory language against the Holy Book, would definitely be defiling the Holy Book by his conduct and acts in a willful and deliberate manner." In another case Abdul Rehman v. The State [2001 MLD (Lahore) 1203], it has been held as under:-- "

7. After going through the evidence recorded by the learned trial Court, submissions made by the learned counsel for the parties and other relevant material available on record, I am of the considered opinion that the prosecution has proved its case against the appellant against any shadow of doubt. All the P.Ws have no relationship with each other, they are not inimical towards the appellant, they are not even biased against the appellant, there is no reason on their part to depose against the appellant on oath, so conviction and sentence awarded to the appellant by the learned trial Court is maintained and the appeal filed by the appellant is dismissed."

15. Apostasy is called irtidad which literally means relapse or regress or ridda in Islamic literature; an apostate is called murtadd, which means 'one who turns back' from Islam. According to some, someone born to a Muslim parent or one who has previously converted to Islam becomes a murtadd if he or she verbally denies any principle of belief prescribed by Qur'an or a Hadith, deviates from approved Islamic tenets (ilhad), or if he or she commits a blasphemy such as treating a copy of the Qur'an with disrespect. A person born to a Muslim parent who later rejects Islam is called a murtad fitri, and a person who converted to Islam and later rejects the religion is called a murtad milli. However, according to legal historian Sadakat Kadri, while apostasy was traditionally punished by death, executions were rare because "it was widely believed" that any accused apostate "who repented by articulating the shahada" (LA ILAHA ILLALLAH "There is no God but God") "had to be forgiven" and their punishment delayed until after Judgement Day. This principle was upheld "even in extreme situations", such as when an offender adopts Islam "only for fear of death", based on the hadith that Muhammad (PBUH) had upbraided a follower for killing a raider who had uttered the shahada. The legal opinion on apostasy by the Fatwa committee at Al-Azhar University in Cairo, concerning the case of a man who converted to Christianity: "Since he left Islam, he will be invited to express his regret. If he does not regret, he will be killed according to rights and obligations of the Islamic law. The Fatwa also mentions that the same applies to his children if they entered Islam and left it after they reach maturity.

16. The term "Quran desecration" is defined as insulting the Quran which Muslims believe to be the literal words of God, in its original Arabic form by defiling or defacing copies. Intentionally insulting the Quran is regarded by Muslims as blasphemous. Most traditional schools of Islamic law require wudu (ritual hand washing) before a Muslim may touch the Quran. Muslims must always treat the printed book with reverence, which may even extend to excerpts of text. Disposal of worn copies is also of concern to Muslims. Because the Quran contains no specifics on how to dispose of a worn or defective text, different and conflicting methods of disposal have been adopted in different regions by different sects. According to Islamic historian Michael Cook the Quran should be wrapped in cloth and buried on holy ground where it is unlikely to be trampled on or "safely" placed where it is unlikely to come into contact with impurity. According to Arab News, Muslims are forbidden to recycle, pulp, or shred worn-out copies of the text; instead, burning or burying the worn-out copies in a respectful manner is required. Respect for the written text of the Quran is an important element of religious faith in Islam. Intentionally desecrating a copy of the Quran is punishable by imprisonment in some countries (up to life imprisonment in Pakistan, according to section 295-B of the Penal Code) and could lead to death in Afghanistan, Saudi Arabia, Somalia etc.

17. The convict shows that he administered (Towba/repentance) openly which pertain to spiritual aspect of the case. It is pertinent to add that this application has been filed before this Court, whereas, the same has not been filed before both the Courts below. It is obvious that the act of the appellant has two aspects. One pertains to the physical respect of the Holy Quran and the other to spiritual respect of the Holy Quran. In this view of the matter, for proper consideration/appreciation of the point raised in the application, it will be appropriate to reproduce the findings/observations pertaining to the fact of apostasy recorded by the learned trial Court as well as by the Hon'ble High Court. The District Criminal Court while awarding the sentence to the convict has recorded its findings as under:-- Whereas, the learned High Court in the impugned judgment has recorded the findings as under:-- "...It hardly needs to mention here that giving utmost respect to the Holy Quran is fundamental obligation of a Muslim and defiling of copy of the Holy Quran by a non-Muslim also constitutes offence under section 295B, APC. Holy Quran is a revelation by Allah Almighty to the Holy Prophet (PBUH) and a muslim is presumed to understand the sanctity of this Holy Book. It would not be out of place to mention here that Muslims give respect to all the revealed books, what to talk of Holy Quran because its refusal and desecrating throws a person outside the spheres of Islam."

18. Before dilating upon the application submitted on behalf of the convict, we may observe here that apostasy is called 'irtidad' which literally means relapse or regress or 'ridda' in Islamic literature; an apostate is called 'murtadd' which means 'one who turns back' from Islam. The Holy Quran discusses apostasy in many versus including some versus of Surah Al-E-Emran, Surah Al-Nisa and Surah Al-Tawba.

19. It transpires from the Holy versus of certain Suras of the Holy Quran including the Suras referred to hereinabove that the severe punishment for apostasy is justified. These versus have been interpreted through Ahadith as well as the practice of ( ) and Fatwas issued by prominent Islamic scholars. In Sahih Al-Bukhari, the most important book in Sunni Islam after the Quran, and Sahih Muslim, the punish-ments for apostasy are described as follows:-- "The Holy Prophet (PBUH) said, The blood of a Muslim who confesses that none has the right to be worshipped but Allah and that I am His Prophet, cannot be shed except in three cases: In Qisas for murder, a married person who commits illegal sexual intercourse and the one who reverts from Islam (apostate) and leaves the Muslims." "A man embraced Islam and then reverted back to Judaism. Mu'adh bin Jabal came and saw the man with Abu Musa. Mu'adh asked, "What is wrong with this (man)?" Abu Musa replied, "He embraced Islam and then reverted back to Judaism." Mu'adh said, "I will not sit down unless you kill him (as it is) the verdict of Allah and His Apostle." "A man from among the Ansaar accepted Islam, then he apostatized and went back to Shirk. Then he regretted that, and sent word to his people (saying): 'Ask the Messenger of Allah [SAW], is there any repentance for me?' His people came to the Messenger of Allah [SAW] and said: 'So and so regrets (what he did), and he has told us to ask you if there is any repentance for him?' Then the Verses: 'How shall Allah guide a people who disbelieved after their Belief up to His saying: Verily, Allah is Oft-Forgiving, Most Merciful' was revealed. So he sent word to him, and he accepted Islam." This is also sometimes cited as an example of open apostasy that was left unpunished and in the Muwatta of Imam Malik one finds:-- "Malik related to me from Abd ar-Rahman ibn Muhammad ibn Abdullah ibn Abd al-Qari that his father said, "A man came to Umar ibn al-Khattab from Abu Musa al-Ashari. Umar asked after various people, and he informed him. Then Umar inquired, 'Do you have any recent news?' He said, 'Yes. A man has become a kafir after his Islam.' Umar asked, 'What have you done with him?' He said, 'We let him approach and struck off his head.' Umar said, 'Didn't you imprison him for three days and feed him a loaf of bread every day and call on him to tawba that he might turn in tawba and return to the command of Allah?' Then Umar said, 'O Allah! I was not present and I did not order it and I am not pleased since it has come to me!" In Sunan Abu Dawood, Hadith No. 947, at page 333, translated by Molana Abdul Hakeem Khan Akhtar Shajahanpuri, it has been elaborated as under:-- In Hadith No.950, at page 335, it has been observed as under:-- In 'Sunan Nasai' Hadith No.4064, at page 145, translated by Molana Khurshid Hassan Qasmi, it has been elaborated as under:-- In 'Muwatta of Imam Muhammad translated by Al-Haj Al-hafiz Nazar Ahmed in Hadith No.390 has been translated as under:-- In 'Fatawa Baniyat' issued by 'Dar-ul-Ifta, Jamia Aloom Islamia, Banori Town, Karachi, the terms 'Kafir', 'Murtad' and 'Zindeeq' have been elaborated by Allama Muhammad Yousif Ludhianvi in the terms of questions and answers which reads as under:-- Whereas, 'Fatwa' issued by Maulana Mufti Lafzada, 'Dar-ul-Ifta' Dar-ul-Aloom Pallandri dated 17th February, 2018 reads as under:-- In 'Kitab-ul Fiqa-alal-Mazahib-ul-Arba, Volume V 'Sharaee Hadood' written by Abdul Rehman Alharari, translated by Professor Manzoor Ahsan Abbasi, 'Taqdeem' Professor Manzoor-ur-Rehman Naemi issued by Ulama Academy, Shuba Matbuaat, Department of Auqaf, Punjab, Lahore, at page 804, it has been observed as under:-- It was further elaborated at page 805 which reads as under:-- At page 806, it has been held that:-- At page 812, it has been held that:-- It was further elaborated at page 834 which reads as under:-- In the book at page 834 written by Abdul Qadir Oodha Shaheed, it was stated that:--

20. In the light of the evidence, it is proved that the convict-appellant brought a copy of the Holy Quran from the house and set the same at fire and the prosecution witness, Mst. Munawar Jan, the mother of the convict, corroborated the act of brining the copy of the Holy Quran from the house along with other books. It also stands established by the prosecution that the convict scuffled with the prosecution witnesses who tried to protect the defiling of the Holy Quran and the act of the scuffling with prosecution witnesses by the convict at the spot is also established from the statement of the co-accused recorded under section 342, Cr.P.C. The burnt pieces of the copy of the Holy Quran recovered from the spot and the verification of the recovery by the prosecution witnesses and the statements of the bystander proved the guilt of the convict without any shadow of doubt. It is pertinent to observe that the offence under section 295-B, A.P.C. pertains to physical show of respect, which is proper declaration to the honour and greatness to its teachings and thought, whereas, the act of the convict-appellant is against the religious obligation of physical respect to the Holy Quran, and the offence of defiling the Holy Quran which is amply proved. Thus, the convict-appellant failed to make out a case for interference by this Court. The trial Court while evaluating the evidence led by the prosecution has rightly convicted and awarded the legal sentence to the convict and the learned High Court maintained the same in a legal fashion.

21. Now we advert to the application filed by the convict-appellant under Order XLIII Rule 5 of the Azad Jammu and Kashmir Supreme Court Rules, 1978. Along with this application, the convict has appended a certificate issued by the Trust Jamiat-ul-Quran duly signed by (1) Honorary General Secretary, Trust Taleem-ul-Quran, (2) Inspector Trust Jamiat, Taleem-ul-Quran, (3) District 'Khateeb' Department of Auqaf and (4) the representative of the Education Department and Superintendent of Jail, Muzaffarabad, wherein, it has been testified that the convict Muhammad Naseem, has recited the complete Holy Quran at the central Jail, Muzaffarabad and in the examination held in December, 2013, he has secured 50 marks in 'Nazira'. Moreover, another certificate issued by the Superintendent Jail, Muzaffarabad is appended with the application, wherein, it has been certified that the convict during lodgment in the central jail has recited the Holy Quran under the supervision of Jamiat Taleem-ul-Quran, Lahore. He recites the versus of the Holy Quran and offers his prayer regularly. A statement duly attested/ furnished by the convict is also attached with this application. The convict has admitted his guilt, however, it is stated by him that the desecration of the Holy Quran has not been committed by him intentionally. Moreover, he has shown repentance to Allah Almighty and administered (Towba/repentance) openly and in writing which is reproduced as under:-- Meaning thereby that the convict admits his guilt, however, he has stated that he has not committed the offence of defiling the Holy Quran intentionally.

22. For our own satisfaction, a notice was issued on 14.02.2018 to the Jail Superintendent to produce the convict before this Court for confirmation of the repentance shown by the convict in the said application. In compliance of the notice dated 14.02.2018 issued by this Court, the convict-appellant was produced before the Court on 15.02.2018. The convict-appellant confirmed/ admitted the same as correct, true and verified his signatures affixed on the above referred statement and stated that no Muslim can even think of such an act. He recited (kalima Tayyaba) before the Court while affirming his belief in oneness of Almighty Allah, in the Last prophet-hood of Hazrat Mohammad (peace be upon him) and the sanctity of Holy-Quran.

23. In view of the above discussion, it may safely be concluded that the alleged incident and the act attributed to the convict-appellant bears two aspects as discussed in paragraphs supra. The physical respect and honour to the Holy Quran is a legal, religious and moral duty of a Muslim. The offence of defiling and desecration of the copy of Holy Quran is penal offence under the statutory law of State, which has been amply proved by the prosecution and the learned trial Court very rightly passed the order of conviction for the offence under section 295-B, A.P.C. by awarding the legal punishment of life imprisonment to the convict-appellant in a legal fashion which has rightly been concurred by the Hon'ble High Court.

24. So far as the findings recorded by the lowers Courts, whereby, the convict-appellant has been declared as apostate, are concerned, it may be observed that in the light of the above deliberation and after considering the declaration of repentance (Touba) made by the convict while appearing before the Court by articulating the 'Shahada' (Kalima Tayyaba) as mentioned in paragraph 22 (supra), justifies to recall t hese findings. On showing/declaring repentance (Touba) and reciting the Kalima Tayyaba by the convict, it is evident that the convict-appellant has re-embraced the Islam (Faith), the matter is left now as being the matter between Allah Almighty and the convict, hence, the finding recorded by the Courts below regarding apostasy (irtidad) of convict-appellant merit recall in these circumstances. In view of the above stated reasons/ discussions, we are of the unanimous view to uphold the order of conviction dated 15.03.2012 passed by the trial Court and concurred by the Hon'ble High Court vide impugned order dated 07.07.2017, whereby, the punishment of imprisonment for life has been awarded to the convict-appellant under section 295-B, APC. Resultantly, the appeal filed by the convict-appellant is hereby dismissed. Whereas, the findings/ observations recorded by the Courts below regarding apostasy (irtidad) of the convict-appellant in the impugned orders stand recalled and the appeal of the convict-appellant is disposed off accordingly. JK/32/SC(AJ&K) Appeal dismissed.