P L D 2002 Lahore 587 (PLP)

ALI NAWAZ CHOWHAN, J.‑‑This judgment shall dispose of Criminal Appeal No. 1815 of 2001 as well as Murder Reference No. 61‑T of 2001.

2. The appellant/convict Muhammad Mehboob alias Booba was convicted under section 295‑C of the P.P.C. and was sentenced to death by the Special Judge, Anti‑Terrorist Court, Sargodha, vide his judgment dated 12‑11‑2001. He was also asked to pay a fine of Rs.50,000 or inn default whereof, to suffer further rigorous imprisonment for two years. The convict was further found guilty under section 295‑A of the P.P.C. and was awarded 10 years' R.I. He was given the benefit of section 382‑B, Cr.P.C. in relation to this sentence.

3. The matter pertains to case F.I.R. No.466 dated 26‑9‑1999, registered under sections 295‑A and 295‑C of the P.P.C., at Police Station Khushab, District Khushab.

4. Homoeopathic Dr. Muhammad Amin is the author of the F.I.R. and who supported its contents through his testimony before the trial Court as P.W.6, wherein he stated:‑‑ "Probably on 17/18‑9‑1999 accused Mehboob now present in the Court was pasting Ishtihars on the walls and on the gate of Jamia Masjid, Main Bazar, Khushab which were in his own handwriting. It was written in those Ishtihars that Hazrat Ibrahim had told a lie. It was also in those Ishtihars that there was Zikar of Hazrat Muhammad (p.b.u.h) with some lads and beautiful women and this amounts to Toheen‑e‑Risalat. I had been advising the accused to beg pardon and to convert to Islam for 3/4 days but accused did not agree. Therefore, I moved application Exh.PB to S.H.O., Police Station Khushab in which I incorporated all these facts and case was registered." The following excerpts from his cross‑examination are reproduced below: ‑‑ "P.Ws. Zaheer Ahmad, Hafiz Muhammad Akbar and myself offer prayers in that mosque besides that we have no company. Accused does not offer prayers in that mosque. I am registered Homoeopath Physician. I do not remember the institution which had issued me the degree but I have the degree. I am matriculate. It is written in my degree that I can write myself as Doctor. P.W. Hafiz Muhammad Akbar is Moazzan of that mosque and employee of Auqaf Department. P.Ws. Hafiz Muhammad Akbar, Zaheer and myself are Deobandis. Accused and myself do not reside in same Mohallah. The residence of accused is near the said mosque but not of mine.' "We have never indulged in religious debates with accused. I have not got education from any recognized Islamic Institution. I had shown those Ishtihars to Maulana Bashir Ahmad who was also of the view that the Ishtihars were contemptuous and was causing Tohheen‑e‑Risalat. I have also shown the Ishtihars to other people. I did not state in my application that I have shown the Ishtihars to Maulana Bashir Ahmad and people from general public." "I, according to my own knowledge, thought that accused had committed Toheen‑e‑Risalat through those Ishtihars. It is incorrect to suggest that accused had incorporated a Rewait about Hazrat Ibrahim Aleh‑I‑Salam in Ishtihars. Volunteers that was from Holy Qur' an. " "I am not translator or 'Mufassor' of Holy Qur'an."

5. His story was supported by Zaheer Ahmad (P.W.5). A relevant excerpt from his testimony says:‑‑ "We are followers of Muslim faith and similar ideology. There are many religious sects in Islam. I am follower of Deoband School of thought. Accused Mehboob also offers his prayer in that mosque. I have seen the accused pasting these Ishtihars and not writing. I have read these Ishtihars myself. I never debated with accused Mehboob on religious issues. I am matriculate whereafter I passed the examination and qualified the Diploma in Electrical Engineering. I am not a diploma holder about Qur'anic Education from any recognized institution. "

6. The next important witness in this case is Zulfiqar Ahmad, Assistant Sub‑Inspector of Police Lines, Sargodha who was then posted at the Police Station Khushab, and he had received the complaint (Exh.P.D), on the basis of which he sought opinion from the D. S. P. and then registered the case and investigated it. He went on the spot and drew visual site plan (Exh.P.I). He recorded the statements of the P.Ws. at the spot and removed the posters said to have been pasted on the main gate and walls of the Jamia Mosque, Main Bazar, Khushab, and which he took into possession vide memo. Exh.P.H, attested by Zaheer Ahmad and Hafiz Muhammad Akbar (P.Ws.). He arrested the appellant/convict Mehboob on 27‑9‑1999 and interrogated him for about six days. The convict was also produced before a Magistrate and samples of his writing were taken. The P. W. went on to say:‑‑-- "On 3‑10‑1999 accused disclosed during interrogation that he would produce his writings when his sister would come with meal for him. On 3‑10‑1999 accused produced the writings Exh.PJ, Exh.PK, Exh. PM, Exh. PN and Exh. PO which were written with markers of green colour, blue colour and black colour and I seized those vide memo. Exh.PA." In his cross‑examination he stated:‑‑ "Nobody appeared before me during investigation from public except P. Ws. complainant Muhammad Amin, Zaheer and Hafiz Muhammad Akbar. I did not record the statement of anybody else from the public during the investigation of this case regarding Toheen‑e‑Risalat committed by the accused by pasting these Ishtihars. " "I have not received any Islamic education particularly. I did not obtain any opinion from any 'Ulama' about this case. It is correct that except the P.Ws. none else from the locality came to me and said anything about the fact that the pasting of the, Ishtihars by the accused had outraged his feelings."

7. Amongst the formal witnesses are Muhammad Saeed (P.W.1), who had taken the samples of the writing of the convict to the Forensic Science Laboratory, Lahore.

8. Adalat Khan (P.W.2) in his testimony stated:‑‑ "On 3‑10‑1999 accused Mehboob was on physical remand with Zulfiqar Ahmad, S.‑I., Khushab who interrogated the accused. Somebody produced pencils five in number which were comprising of three markers of blue colour, green colour and black colour alongwith two ball‑points one of blue colour and other of green colour. Although the pencils were produced by somebody else at the police station but those were presented to Investigating; Officer by the accused The Investigating Officer took these pencils and markers into possession vide memo. Exh.PA attested by me." And admitted that these pencils could easily be purchased from the market.

9. Walayat‑ul‑Hassan, A.S.‑I., got the F.I.R. registered. Akhtar Hussain, A.S.‑I., (P.W.8) transmitted the writing to the Forensic Science Expert on 19‑5‑2000 through Saeed, Constable, after removing the objections. He went on to say:‑‑ "On 13‑6‑2000 I recorded supplementary statements of P.Ws. Zaheer and Hafiz Muhammad Akbar about taking the Ishtihars into possession on 26‑9‑1999 by P.W. Zulfiqar S.‑I. who had not recorded their statements in that respect. On the pointation of learned Public Prosecutor for the State, and on repeated interruptions about the endorsement by learned Magistrate. P.W. further states that 3/4 papers were got written from accused by learned Magistrate, in slow, medium and fast pace of writing. The learned P.P. had shown these papers to P.W. who states that these are the same papers which were marked by that Court as Exh.P.A., Exh.P.B., Exh.P.C., Exh.P.R., Exh.P.S. Now these are exhibited as Exh.P.V., Exh.P.W., Exh.P.X.,' Exh.P.Y., Exh.P.Z. and Exh. P. AA: " During his cross‑examination, he stated:‑‑ "The learned Magistrate has attested the writing of the accused am sample papers. I had taken the police file from the Court before getting the samples of handwriting of the accused. I had not gone through the file as I was to only get the sample of handwritings of the accused. No sample paper of handwriting of accused was on police file previously. I did not get the judicial file from the Court. I did not get photostat copies of those writings of accused. Those sample papers of writings of accused remained with me from 17‑5‑2000 to 19‑5‑2000 as I was to get the docket issued from S.S.P, Office, Khushab. The learned Magistrate has sealed those sample papers of writings of accused in an envelope . "

10. Hafiz Muhammad Akbar (P.W.), an important witness, was not produced by the prosecution as he was given up.

11. In his statement under section 341, Cr.P.C., the convict professed his innocence. Some of the answers to the questions put to him are reproduced below:‑‑ "It is false and fake recovery and falsely planted against me during custody of police." "Since my previous writings were secured by the police under pressure while I was in custody, as stated above, therefore, the report of Forensic Science Laboratory might be positive." "Due to personal enmity and religious conflict on Fiqah‑I‑Mesial, the P. Ws. have deposed against me." He did not appear as his own witness nor produced any evidence in defence.

12. At the time of hearing before this Court, the learned counsel for the appellant/convict prayed for submission of an affidavit of the appellant/convict in support of his case that he has committed no 4fence under the provisions of section 295‑A or 295‑C of the Pakistan Penal Code. The affidavit was submitted. This is duly attested by the Superintendent, District Jail, Shahpur. In the said affidavit, the appellant/convict has said:‑‑

13. Section 295‑A of the Pakistan Penal Code reads as follows:

"Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Whoever, with deliberate and malicious intention of outraging the religious feelings, of any class of the citizens of Pakistan, by words, either spoken or written or by visible representations insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both." ' While section 295‑C of the Pakistan Penal Code reads as follows:‑‑ "Use of derogatory remark etc., in respect of the Holy Prophet.‑ Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peach be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine."

14. Blasphemy, according to book "Words and Phrases" legally defined by Butterworths, Volume 1, is defined as under:‑‑ "Blasphemy is a, misdemeanour at common law punishable by fine and imprisonment. It consists in (1) scoffingly or irreverently ridiculing or impugning the doctrines of the Christian faith; or (2) in uttering or publishing contumelious reproaches of Jesus Christ; or (3) in profane scoffing at the Holy Scriptures or exposing any part thereof to contempt or ridicule. It is not blasphemy with due gravity and propriety to contend that the Christian religion or any part of its doctrine, or the whole or any part of the Holy Scriptures, is untrue. The offence of avowing blasphemous and impious opinions contrary to the doctrines and principles of the Christian religion on the part of a person who has been educated in or has at any time made profession of the Christian religion consists in law of asserting or maintaining that there are more gods than one or denying the Christian religion to be true or the Holy Scriptures to be of divine authority, by writing, printing, teaching or advised speaking."

15. Historically speaking the Blasphemy Law was enacted by the British to protect the religious sentiments of the Muslim minorities in the Sub -Continent before partition against the Hindu majority. After the creation of the Pakistan, the Muslims themselves were in majority. Section 295‑A of the Pakistan Penal Code was enacted in 1927. In 1980, section 295‑A was added to the P.P.C. In 1982, section 295‑B was introduced. While in 1986, section 295‑C was legislated. Initially life imprisonment was the sentence prescribed. However, in 1991 this was replaced with mandatory death penalty.

16. It appears that ever since the law became more stringent, there has been an increase in the number of registration of the blasphemy cases. A report from the Daily Dawn of 18th July, 2002, says that between 1948 and 1979, 11 cases of blasphemy were registered. Three cases were reported between the period 1979 and 1986. Forty four cases were registered between 1987 and 1999. In 2000. fifty two cases were registered and strangely, 43 cases had been registered against the Muslims while 9 cases were registered against the non‑Muslims, The report further states that this shows that the law was being abused more blatantly by the Muslims against the Muslims to settle their scores. Because the police would readily register such a case and without checking the veracity of the facts and without taking proper guidance from any well‑known and unbiased religious scholar, would proceed to arrest an accused. That an Assistant Sub‑Inspector or a Moharrir was academically not competent to adjudge whether or not the circumstances constitute act of blasphemy.

17. The subject blasphemy is under a lot of focus and people are expressing their opinions on the subject particularly with respect to the accusations which can readily be made and the sentence which is prescribed in the offence. In another of its Article published in wily "Dawn" of 26th July, 2002, on the subject of blasphemy, the following are the remarks of the correspondent and which are relevant and are being reproduced below in extenso:‑‑ . "The trouble is that over the years bigotry and intolerance have made such deep inroads into our society that all three parties in the blasphemy cycle complainant, police officer, Judge think that they are doing the right thing and also earning divine favour into the bargain, when they are pressing charges under this law. This is zeal sanctioned by law and clothed in self‑righteousness. While further commenting on blasphemy, the correspondent said:‑‑ . "But coming back to blasphmey, to seek it in acts of obvious insanity is to devalue both Islam and the notion of blasphemy." Giving further meaning to blasphemy, his views were as follows:‑‑ "The greatest blasphemy of all is a child going hungry, a child condemned to the slow death of stravation. The miscarriage of justice is blasphemy. Misgovernment is blasphemy. An unconscionable gap between rich and poor is blasphemy. Denial of treatment to the sick, denial of education to the child, are alike examples of blasphemy."

18. In this case we have observed that the investigation of this case which involves a death sentence and where the allegations were of blasphemy, was entrusted to an official of the rank of an Assistant Sub -Inspector who has himself admitted about his own level of education in his statement; the portions of which have been reproduced above. The D.S.P. (Legal)‑was never produced to state who guided him in proposing that a case of blasphemy was made out against the appellant. The most preposterous fact of the case, is brought on the file by the statement of Adalat Khan (P. W.2), according to which pencils and markers, ordinarily obtainable from the market and purchased by someone other than the appellant, and secured through memo. Exh.P.A., were used as an incriminating evidence against the appellant/convict.

19. A Muslim cannot be attributed blasphemy because if he commits an offence under section 295‑C of the Pakistan Penal Code, it will amount to apostasy and he becomes a Murtid (a person who repudiates Islam after embracing it).

20. We have analyzed the testimony of Zaheer Ahmad (P.W.5) and Dr. Muhammad Arvin (P.W.6) and do not consider these providing a standard of proof nor having such a quality to be believed. As has even been acknowledged by them, they hardly have sufficient knowledge about the tenets of Islam.

21. Homoeopathic Dr. Muhammad Amin, who is just a matriculate; had stated that the appellant/convict did not offer prayers in the mosque of Hafiz Muhammad Akbar. Whereas, according to Zaheer Ahmad (P.W.5), the appellant/convict offered his ' prayers in that mosque. Who was then telling the truth? The person from whom Dr. Muhammad Arvin (P. W.6) sought advice whether the appellant/convict had committed the offence aforementioned, was given up as unnecessary. The Investigating Officer Zulfiqar Ali, A.S.‑I., admitted that no one from the public other than the two prosecution witnesses and the said Hafiz Muhammad Akbar appeared to record their statements.

22. In his statement under section 342, Cr.P.C. the appellant had stated that his previous writings were secured by the police under pressure while he was in custody and this statement finds, support from the testimony of Akhtar Hussain, A.S.‑I. (P.W.8). The Magistrate who is said to have taken the samples of his writing was not produced. But it appears that he had attested the samples of the writing of the appellant which were produced by Akhtar Hussain, A.S.‑I., who took away the file and introduced the same there. Can we rely on this quality of evidence in a case as serious as the one in hand?, The answer is in the big negative. But what does all this reflect? Of course, inefficiency, inaptitude, apathy and perfunctory working on the part of our police officials and the way they collect evidence.

23. Needless to say that when the case of the prosecution was per se infirm going into a debate pertaining to Fiqah at the end of the trial Court was totally unnecessary, particularly when the learned trial Court had taker no help from any jurisconsult or any Islamic Scholar having known credentials. The nature of the accusations overwhelmed the trial Court to such an extent that it became oblivious of the fact that the standard of proof for establishing such an accusation and as required, was missing. Mere accusation should not create a prejudice or a bias and the duty of the Judge and as has also been ordained by our Holy Prophet (s.a.w.), is to ascertain the facts and the circumstances and look for the truth with all the perseverance at his command.

24. Our Holy Prophet (s.a.w.) had said:‑‑ "Remit punishment on account of doubt as long as you have ability. " "Try to avoid Hudood wherever possible. Wherever there is even a mild chance, release him, for releasing by an error on the part of an Imam is better than punishing anyone by error."

25. The Holy Prophet (s.a.w.) took all care personally while giving his judgments. When Maiz confessed his guilt of Zina, the Holy Prophet (s.a.w.) made an inquiry into his mental state as well as his knowledge about the ingredients of the offence to which he was confessing. The same was done in the case of Ghamadiyyah. Hazrat Ali (may Allah be pleased with him) in a case of accusation against Shurahah slid not order her to be punished for Zina without investigating into the voluntary nature of the genuineness of her confession.

26. In this case, the appellant/convict is not confessing. He is stating that he has not committed any offence and through his affidavit, he has expressed his profound respect for our Holy Prophet (s.a.w.) in his own words, reproduced above. Should he then be punished?

27. With regard to the status of a person who commits blasphemy and denies the charge during the trial, or repents for his act, the position of Islamic Law, regarding such a case, is as under: (a) Imam Ibn Taymiyah on his celebrated work al‑Sarim al‑Maslul has quoted view‑point of Hadrat Abdullah Ibn Abbas that to abuse Holy Prophet (s.a.w.) is a kind of apostasy, and the apostate may be exempted from punishment if he repents. If he does not repent, then he will be sentenced to death. (Al‑Sarim Al‑Maslul, p.326, Urdu translation by Ghulam Ahmad Hariri, p.587). (b) Ibn Abbas narrates that Holy Prophet (s.a.w.) had forgiven Hiber Ibn Al‑Aswad Ibn ' Abd al‑Muttalib who used to abuse and insult him. Holy Prophet (s.a.w.) accepted his apology and withdrew his order of sentencing such man to death. (Rasa il Ibn Abdin, Vol. 1, p.346). (c) Walid Ibn Muslim narrates from Imam Malik and Aowzai that the one who swears at the Holy Prophet (s.a.w.), will be asked to make repentance, if he repents, then he may be flogged but will not be slained. (Ahkam al‑Qur'an by Abu Bakr Jassas, Vol.3, p.85). (d) If a person denies the charge of committing blasphemy, or the words which he has used are open to different interpretations, such person cannot be awarded Hadd punishment on account of Shubbah (doubt) which has arisen in this case. This Shubbah is sufficient ground to avert Hadd punishment.

28. From our infancies, we have heard the story of the woman in Makkah who would throw refuse upon the Prophet (s.a.w.), as he walked past her house. The Prophet never remonstrated with her. Not changing his path, in silence and with bowed head he continued to suffer this indignity until one day the woman, astounded by this forbearance, beseeched the Prophet's forgiveness and embraced Islam.

29. Faithfully following the traditions of our Holy Prophet (s.a.w.) and his directions and ordinances, some of which have been referred to above, and while keeping in view the standard of proof brought on the file and the statement of the appellant/convict both made under section 342, Cr.P.C. before the trial Court and, through his affidavit before this Court,, we feel that this was a case ridden with doubts. We, therefore, acquit the appellant of the charge and order that he be released forthwith if not required in any other case. While we beseech for Allah's merecy on him so that he is pardoned of any sin which he may have committed. May he also now see the righteous path and tread on it and the best roadmap for him is the Sunnah of our Holy Prophet (s.a.w.) We further pray that in view of his statement, our Holy Prophet (s. a. w.) may also be‑pleased with him and forgive him of any wrong committed deliberately or otherwise. We further pray for the two witnesses whose statements we did not believe and which were infirm perise. We pray. that God give them wisdom to understand and. appreciate what is ordained and to take care in future by consulting religious scholars and holy persons before making such‑like accusations. Otherwise, mischief will always overwhelm and Satan will take us astray and whom we have to defeat through knowledge and by following the traditions of our Holy Prophet (s.a.w.).

30. As we have seen in the recent past cases of such‑like nature are on the increase and we have also observed element of mischief involved. This calls for extra care at the end of the Investigating Officers. Whereas, we have seen the failure inefficiency and incompetence of the Investigating Officer in handling the present case with all its consequences. Therefore, we direct the Inspector‑General of Police, Punjab, Lahore, to ensure that whenever such a case is registered, it be entrusted for purposes of investigation to a team of at least two gazetted Investigating Officers preferably those conversant with the Islamic Jurisprudence and in case they themselves are not conversant with Islamic Law, a scholar of known reputation and integrity may be added to the team and this team should then investigate whether an offence is committed or not and if it comes to the conclusion that 'the offence is committed, the police may only then proceed further in the matter.

31. In view of the sensitivities involved and the rise in the accusations of this type which can be easily made besides what is proposed on the investigational side, we further propose that the trial in such‑like case be held by a Court presided over by a Judicial Officer who himself is not less than the rank of a District and Sessions Judge. M.B.A./M‑1417/L Order accordingly.