P L D 2016 Lahore 655 (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Muhammad Aslam son of Ismail, caste Rajput, resident of Railway Road, Gojra, District Toba Tek Singh, appellant, was involved in case FIR No.286/2008, dated 05.07.2008, offence under Section 295-C, P.P.C., registered with Police Station City Gojra, Toba Tek Singh and was tried by learned Additional Sessions Judge, Gojra. The learned trial court seized with the matter in terms of judgment dated 11.11.2009 convicted and sentenced the appellant as under:

Under Section 295-C, P.P.C., sentenced to death with direction to pay Rs.1,00,000/- as fine and in case of default in payment thereof to undergo R.I. for two years.

2. Feeling aggrieved by the judgment of the learned trial court, the appellant has challenged his conviction and sentence through filing Criminal Appeal No.1887/2009 while the learned trial court forwarded Murder Reference No.468/2009 for confirmation or otherwise of sentence of death inflicted upon the convict in terms of Section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.

3. Prosecution story as portrayed in the FIR (Exh.PA/1) lodged on the written complaint (Exh.PA) of Umar Hayat son of Muhammad Ramzan, caste Malik (PW-1) is that he is resident of Street No.2, Mohallah Shah Abad Colony, Gojra. The complainant had established his business at Railway Road, Gojra, in front of Main Office of Market Committee, in the name and style of 'Umar Refrigeration Workshop'. On 30.06.2008 viz. Monday, at about 11:00 a.m. the complainant was sitting in his shop and reading the 'Pamphlet' of 'Mehfal-e-Naat' when Aslam son of Ismaeel, caste Rajput, who had established sweet shop in the neighbourhood of the complainant came there. He asked the complainant what he was reading on which the complainant replied that it was 'Pamphlet' of Mehfal-e-Pak Naat Khawani. On hearing it, the accused started using defiling words. The complainant directed the accused to leave immediately on which he went away. On the same day at about 6:30 p.m. Aslam accused again came at the shop of the complainant and sat at the bench; where he started using defiling remarks with reference to the Holy Prophet . The complainant asked him that he had also recited the Declaration (Kalma) of Faith then why was he using derogatory words upon which Aslam accused said that for what purpose 'the Holy Prophet' had come in the world and simultaneously (1 seek refuge with Allah) used derogatory language/ abusive words with reference to the Holy Prophet . The complainant averred that the words used by the accused were so grave that no Muslim could dare to hear it. On hearing defiling/derogatory words, the complainant himself started trembling with anger while other persons namely Muhammad Ahsan Sattar son of Abdul Sattar, caste Uppal Jatt, resident of Chak No.97/G.B, Tehseel Gojra and Muhammad Sohail son of Muhammad Anwar, caste Butt, shopkeeper/Motor Mechanic, Railway Road, present over there, who had also heard the derogatory words used by the appellant cursed him. However, the accused left the place. The complainant stated that he consulted 'Ulema-e-Karam' and thereafter, moved a written application before the police, on the basis of which formal FIR was chalked out.

4. After registration of the case the investigation was entrusted to Atta Muhammad, S.I. (PW-4), who on the same day arrested the appellant. During the course of interrogation the Investigating Officer found the appellant guilty to the extent of using words "you do not follow the Kumhar but the Bartan." After conducting the investigation the Investigating Officer prepared report under Section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. On 06.11.2006, the learned Additional Sessions Judge, Gojra, formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as four (4) prosecution witnesses.

5. Umar Hayat (PW-1) is the complainant of the case while Muhammad Ahsan Sattar (PW-3) is eye-witness of the occurrence. Shoukat Ali 351/C (PW-2) had chalked out formal FIR while investigation in this case was conducted by Atta Muhammad, S.I. (PW-4)

6. The appellant was also examined under Section 342, Cr.P.C, wherein he opted neither to produce defence evidence, nor he opted to appear as his own witness in terms of Section 340(2), Cr.P.C. in disproof of the allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition:- "By the grace of God, I am Sunni Muslim and disciple of Peer Syed Hafeez Shah S/O Abdul Ghafoor Shah Chishty Sabri R/O 259 (Garusak) Tehsil and District Faisalabad. I have not obtained any education from any school or religious Maddrisa. I can only read Urdu and can sign in Urdu. I considered myself servant of servants of Rasool-e-Pak (PBUH). I cannot even think of defiling Rasool-e-Pak (PBUH) or any other holy personage. Till today, I have never defiled Rasool-e-Pak (PBUH) or any other holy personage and have never uttered any defiling words from my tongue. I do not have such persuasion or faith and cannot think of doing so in future. The complainant became tool of some so called Molvies and got registered this false and baseless case against me. I am absolutely innocent."

7. Learned trial court after evaluating the evidence available on record found the version of the prosecution proved beyond shadow of reasonable doubt against the appellant resulting into his conviction in the afore stated terms.

8. Learned counsel for the appellant while addressing the Court argued that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts of the case and law on the subject. Learned counsel vehemently argued that there is delay of five days in lodging the crime report for which no plausible explanation has been rendered by the prosecution. It was vigorously contended on behalf of the appellant that during the course of investigation the 'pamphlet', which actually had instigated the appellant to make an attempt to use derogatory words with reference to the Holy Prophet was not taken into possession. Learned counsel contended that the complainant himself admitted that he is neither author of the complaint nor the same was chalked out on his dictation rather same was prepared on the advice of 'Ulema-e-Karam', however, their names were not disclosed. Similarly, during the course of cross-examination the complainant could not disclose the name of the person who scribed it, therefore, the whole prosecution story is without any foundation. Learned counsel forcefully argued that the prosecution witnesses of occular account are partial and biased, therefore, their statements are not trustworthy. Further submitted that although the complainant had stated that earlier at about 11:00 a.m. the appellant had used derogatory words with reference to the Holy Prophet , however, he did not take any action rather he allowed the appellant again to continue his business at his shop, which smashes the credence of the prosecution version. It was argued that the prosecution has not produced the witnesses of the surrounding shops rather the only witness, who deposed during the course of trial, has admitted that he was one of the workers at the workshop of the complainant. Learned counsel vigorously argued that the appellant belongs to 'Fiqa-Hanfi', and he cannot even think to utter blasphemous words with reference to the Holy Prophet as claimed by the complainant. Moreover, it was first plea of the appellant, which was also verified by the Investigating Officer also verified his stance. Similarly while making his statement under Section 342, Cr.P.C. the appellant again rebutted the prosecution accusations. Lastly it was argued that in absence of any credible and convincing material available on record, the learned trial court was not justified in recording conviction against the appellant, which is liable to be set at naught.

9. On the other hand learned DDPP assisted by learned counsel for the complainant supported the conviction and sentence recorded by the learned trial court. Learned counsel for the complainant submitted that there is tangible evidence in the shape of statements of Umar Hayat (PW-1) and Muhammad Ahsan Sattar (PW-3), who while appearing in the witness box fully substantiated the prosecution case. It was further argued that the complainant instead of taking law into his own hands, opted to consult `Ulema-e-Karaam'. hence the delay in lodging the crime report becomes immaterial. Learned counsel vigorously argued that it was very unfortunate that the appellant has used blasphemous words with reference to the Holy Prophet which a Muslim would not dare to utter in all eventualities. Learned counsel contended that the act of the appellant tantamounts to an attempt to lower the dignity/respect of Holy Prophet , hence in view of evidence brought forth on record in the shape of occular account, the same squarely attracts the provisions of Section 295-C, P.P.C. Further submitted that in view of evidence brought forth on record, the learned trial court was fully justified in recording conviction/sentence against the appellant, therefore, the appeal preferred by the appellant is liable to be dismissed.

10. We have heard the arguments advanced by learned counsel for the parties and gone through the record available on file with their able assistance.

11. There is no denying this proposition that the matter in hand might be the most unfortunate aspect of the judicial scrutiny before a court of law in the given circumstances. It has been noticed that there is an increase in the number of incidents with the allegation of blasphemy and element of mischief involved therein. To evaluate and curb this tendency, which has been observed by this Court, a rational-cum-stern action is the demand of the day. The reasons of such issues could be religious, sectarian and blackmailing for monetary gains, and it can also be turned into a potential instigation of some terrorist activities in the society. It has been notice by us that there is definitely a factor in the society, which uses the issue of blasphemy as a tool to satisfy their ulterior motives and extraneous considerations, whereas, another set of society, out of love and affection while being overwhelmed by the sentiments, deems upholding the honour of the Holy Prophet the most sacred duty, which it is undeniably, and reacts vigorously, however, the issue remains that a sacred and highly revered entity of this Universe has become subject to discussion, which in all eventualities cannot be afforded, being above all and beyond the scope of comprehension of a human being. It is absolute faith of the Court that none in this world can lower or undermine the respect, honour, sanctity, inviolability and piety of Holy Prophet Muhammad as the same has been guaranteed by Allah (Almighty) Himself. Whosoever made any attempt to segregate the honour or even has any doubt regarding the supremacy of last Prophet as has defiled/disregarded the basic postulates of the Muslim faith. Undeniably, Allah (almighty) and His Angels are continuously glorifying the Holy Prophet Muhammad and sending down upon him their Blessings and Salutations as they did before the world came into existence and as they will when the world is no more. Believing in the aforementioned is a necessary part of the Declaration of Muslim faith and disregarding the honor of the Holy Prophet Muhammad brings a person to somewhere in the list of non-believers. His virtues and dominance over the whole Universe bestowed upon him by Allah (Almighty) and esteemed protocol as being has been mentioned in Surah Al-Ahzab, Verse No.56, in the following words: - "

56. Surely, Allah send down His Blessings on the Prophet and His Angles pray for him. O the people who have attained to faith! Send your blessings on him and salute him fully with best salutation." Furthermore, Allah (Almighty) has provided guidelines to establish the stature of the Prophet and also, the sort of conduct to be followed around and about the Holy Prophet for which is said in Al-Quran in Sura Al-Hujurat (49) Verse 2 & 3:-- thequranrecitation.com. "O you who have believed, do not raise your voices above the voice of the Prophet or be loud to him in speech like the loudness of some of you to others, lest your deeds become worthless while you perceive not." "Indeed, those who lower their voices before the Messenger of Allah - they are the ones whose hearts Allah has tested for righteousness. For them is forgiveness and great reward. Even the manner of getting access to meeting the Holy Prophet has been ordained by Allah (Almighty) with a special protocol, as reflected from Sura Al-Mujadla, Verse No.12, which reads as under:- "

12. O you who have attained to faith! When you consult the Messenger in private, then spend something in charity before your private consultation. That will be better and purer for you. But if you do not find (anything to give) then surely, Allah is Oft-Forgiving, Most Merciful." Allah (Almighty) has control and authority over the whole world. This dominance is over all creatures of the Universe irrespective of their kind, faith and religion. It has been certified by none else but Allah (Almighty) whilst addressing Himself as . The same domain has been extended and shared by the Holy Prophet Muhammad when he was bestowed with magnanimity and love, the title of , however, of course the difference of being the Creator and the Creation is there. Sheikh Saadi, one of the greatest mystic scholars has ascertained the position of Holy Prophet in the following words. The Holy Prophet was regarded by Mirza Ghalib, one of the most celebrated poets of Urdu language, in the following words: - Similar reverence was paid by Poet of the East, Allama Muhammad Iqbal, while addressing the Holy Prophet Muhammad in the following words:-

12. As a consequence of the afore-stated discussion we have observed with regret that such a sacred/revered personality of the world has been subject to discussion while placing nexus with the facts and circumstances of the instant case coupled with description of the person who himself admitted that he is un-educated and even not conversant with the religious teachings. Otherwise it has been observed by us that he is a petty shopkeeper in a village belonging to a lower middle class, who might not be in a position even to know the meanings of the alleged blasphemous words, which need not to be mentioned as it has already been stated above. While taking into consideration the above facts and circumstances, it seems to us nothing but a mimic/ridiculous attempt to entangle both aspects, which otherwise are poles apart and cannot be countenanced by any stretch of imagination. While touching upon the merits of the case it has been noticed that the very initiation of the instant occurrence, as displayed by the prosecution, is that the complainant was reading a pamphlet; wherein invitation was made to attend a program of 'Naat' Khawani', whereas, the appellant used some derogatory words, which was overlooked by the appellant and as such it created a distaste between them. However, the situation was aggravated in second phase at about 6:30 p.m. on the same day when the occurrence as stated above had taken place.

13. The veracity of the contents of the complaint (Exh.PA) on the basis of which formal FIR (Exh.PA/1) was chalked out is also open to certain exceptions as according to prosecution version soon after the second episode, which took place in the evening, the complainant preferred to consult few 'Ulema' with reference to consequence of utterance of the words by the appellant. Subsequent to that an application was drafted, which was signed by the complainant and the same was handed over to the local police for initiation of proceedings for using/uttering the blasphemous words, with a delay of more than five days for which no plausible explanation has been rendered. This Court has observed that during the course of proceedings the complainant has failed to point out the name of the person, who scribed the application. Even he has not shown his willingness to disclose names of the Ulema', who sanctioned the lodging of the instant crime report with the local police. Relevant extract out of statement of the complainant is reproduced as under:- Ex.PA is not in my hand writing, however, I put my signatures thereon after going through the same. I was present when the application was being written. I do not remember and cannot tell the name of that person who jotted down it. From the facts and circumstances floating on the record, this Court is not in a position to observe about the social and religious status of said `Ulema' who gave authority to the complainant to initiate (proceedings and were instrumental in writing the application, which resulted into registration of the case. So much so during the course of investigation, as well as, during the course of trial, the prosecution failed to adduce any witness from the nearby shops to support the prosecution version except Muhammad Ahsan Sattar (PW-3), who during the course of cross-examination admitted that he was employed at the workshop of the complainant and he made his statement before the police after 5/6 days of the occurrence. Relevant portion of his statement is reproduced as under:- "I made statement before the I.O. after 5/6 days of the incident. The complainant of the case also hails from Chak No.97/JB. At that time I used to work at workshop of the complainant. When I made statement before the Police I was working at shop of the complainant." Another important aspect of the case is that the pamphlet of 'Naat Khawani', which the complainant was reading on the fateful day when the appellant allegedly had uttered blasphemous words, was not taken into possession by the Investigation Officer. Even the same was not brought on record during the course of trial, which itself creates suspicion about the initiation of proceedings by the prosecution.

14. Moreover, at the time of his arrest, the appellant took the plea that he had not uttered the blasphemous words as contained in the crime report. Subsequently while making his statement under Section 342, Cr.P.C, the appellant while replying to a specific question denied the allegation and had stated that he is Sunni Muslim by faith and cannot even think to utter blasphemous words or defiling the Holy Personality of the Universe. He while explaining his faith stated that he deems himself to be servant of servants of Holy Prophet . Relevant portion of his statement is reproduced as under:- "By the grace of God, I am Sunni Muslim and disciple of Peer Syed Hafeez Shah S/O Abdul Ghafoor Shah Chishty Sabri RIO 259 (Garusak) Tehsil and District Faisalabad. I have not obtained any education from any school or religious Maddrisa. I can only read Urdu and can sign in Urdu. I considered myself servant of servants of Rasool-e-Pak (PBUH). I cannot even think of defiling Rasool-e-Pak (PBUH) or any other holy personage. Till today, I have never defiled Rasool-e-Pak (PBUH) or any other holy personage and have never uttered any defiling words from my tongue. I do not have such persuasion or faith and cannot think of doing so in future. Moreover, during the course of investigation, the Investigating Officer opined that the words used by the appellant were only that: "You do not follow the Kumhar but the Bartan". If for the sake of arguments this allegation is elaborated that squarely relates to a mindset, which is being propagated while the same is stigmatizing people of low trodden areas due to economic facts i.e. lack of breed and knowledge, hence while evaluating the same this Court has arrived at the conclusion that if the whole prosecution case is scrutinized with care and caution and the same is evaluated with the most sacred creation of this World, it brings nothing but ignorance, lack of adequate knowledge, a victim of propaganda, as well as, sheer prey of exploitation with no mental faculty of realization, which in other words is the real essence of respect, honour, dignity, piety and status of:

15. All these facts when scrutinized on judicial parlance with regard to credibility of the contents of the crime report particularly when it is an admitted fact that the complainant is neither author nor scribe of the complaint, the fact that neither names of Ulema, who authenticated the complainant to initiate proceedings were disclosed nor the name of person who scribed the application was brought on record coupled with the fact that no independent person from the surrounding shops was made witness, as well as, the fact that during the course of investigation, the Investigating Officer opined that the appellant had only used idiom 'You do not follow the Kumhar but Bartan' while scrutinizing on the touchstone of observations made above by this Court with regard to a mindset of our society, and while taking guidance of the principles set by Holy Prophet , who was extended the title of by Allah Almighty, this Court is of the considered view that in these circumstances to maintain conviction/sentence as inflicted by the learned trial court would be against the canons of safe administration of criminal justice especially when none amongst the complainant and the prosecution witnesses, was having adequate Islamic knowledge to be tested upon the touchstone of Tazkia-tul-Shahood. In the case of Ayub Masih v. The State (PLD 2002 Supreme Court 1048), it was held as under:- "

S. 295-C

Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)

Burden of proof

Defiling words highlighted in the F.I.R. certainly constituted the offence under S.295-C, P.P.C. but the prosecution had failed to prove its case against the accused beyond any reasonable doubt

Prosecution being obliged to prove its case against the accused beyond any reasonable doubt and if it failed to do so the accused was entitled to benefit of doubt as of right

Rule of benefit of doubt was essentially a rule of prudence which could not be ignored while dispensing justice in accordance with law."

16. Being a believer, it is bounden duty to decide the case by minutely going through the evidence brought forth on record within the parameters of prevailing law. In this respect guidance is sought from the saying of Hazrat Imam Ali (A.S) described in NAHJAL-BALAGHA: Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Therefore, Crl. Appeal No.1887/2009 filed by the appellant is ACCEPTED IN TOTO. Conviction and sentence recorded in the judgment of the learned trial court passed on 11.11.2009 is set at naught. The appellant is ordered to be acquitted of the charge in case FIR No.286/2008, dated 05.07.2008, offence under Section 295-C, P.P.C., registered with Police Station City Gojra, Toba Tek Singh, and he is directed to be released forthwith, if not required in any other case.

17. Murder Reference No.468 of 2009 forwarded by the learned trial court for confirmation of sentence of death inflicted upon Muhammad Aslam/convict fails, which is answered in negative. Death sentence is not confirmed.

18. Before parting with the judgment we have observed that such like incidents are at rise; whereas in the present era the nation cannot afford to face such like mischief as it might damage the unity, harmony and strength of the nation, as a whole. Therefore, we have been persuaded to direct the Inspector General of Police, Punjab, to ensure that whenever such a case is reported, it should be evaluated in the spirit of the judgment while assigning the investigation of the case to a Joint Investigation Team to be associated with a religious scholar of immense repute for guidance, ensuring a fair, transparent and unbiased investigation, which otherwise is constitutional right guaranteed under the Constitution while remaining within the four corners of law. Copy of the judgment shall be transmitted to the Chief Secretary, Government of the Punjab, Secretary Home, Government of the Punjab, all District and Sessions Judges working in Punjab, Regional Police Officers and District Coordination Officers within the Punjab, for necessary action and compliance. SL/M-78/L Appeal accepted.