P L D 2014 Peshawar 122 (PLP)

MUHAMMAD DAUD KHAN, J.

Convict-appellant, namely, Hazrat Ali Shah was tried by learned Additional Sessions Judge/Izafi Zilla Qazi, Chitral, for using filthy language in respect of Almighty, Holy Prophet (Peace Be Upon Him) and the Holy Qur'an. The learned Trial Court, vide the impugned judgment, dated 14-11-2012, convicted the appellant under Section 295-C, P.P.C. and sentenced to death with fine of Rs:100,000/- or in default thereof to suffer one year's S.I. Benefit of Section 382-B, Cr.P.C. has been extended to the appellant. This judgment shall also dispose of Murder Reference No.10 of 2012 sent by the trial Court for confirmation of death sentence.

2. The case of the prosecution is that on 10-3-2011, Rehmat Salahuddin S.H.O. P.W.7, was on patrol when at about 18-15 hours; complainant Muhammad Hayat P.W.8 made report to him to the effect that on the day of occurrence at about 16-00 hours, he was present in the house of his maternal uncle Karimullah; on hearing noise, he came out of the house and noticed appellant/convict, who was using blasphemous remarks in respect of Almighty, Holy Prophet (Peace Be Upon Him) and the Holy Qur'an. The occurrence is stated to have been witnessed by Rehmat Saifullah son of Mir Gulab Shah, resident of Brans, besides other co-villagers. On this report P.W.7 drafted Murasila Exh.PA/1 and sent the same to Police Station for registration of the case and, as such, case F.I.R. No. 36 dated 10-3-2011, under sections 295-A/295-B/295-C, P.P.C. was registered at Police Station Koghzai, District Chitral.

3. After completion of investigation, complete challan was submitted in the trial Court. The learned trial Court after compliance of legal formalities, charge-sheeted the accused, who denied the occurrence and opted to face the trial. The prosecution to prove guilt of the appellant produced nine P.Ws. The appellant was also examined under section 342, Cr.P.C, who denied the prosecution allegation and opted to give statement under section 340(2), Cr.P.C, wherein he took the stance that at the time of occurrence he was not in senses because of some disease and he could not think of such like act. On conclusion of trial, the learned trial Court convicted the appellant vide impugned judgment and order dated 14-11-2012, as mentioned above. Hence, the present appeal.

4. Learned counsel for the appellant/convict, at the outset, argued that the entire proceedings before the learned Sessions Judge were 'coram non judice' and nullity in the eye of law, as mandatory provision envisaged by section 196, Cr.P.C. had not been complied with by the learned trial Court and non-compliance thereof vitiated the whole trial. He further contended that the impugned conviction and sentence is contrary to law, facts and material available on record; that the convict is suffering from a disease and some time became abnormal; that the occurrence has not taken place in the manner as alleged by the prosecution; that the prosecution has miserably failed to prove the guilt of appellant; that the learned trial Court ignored the contradictions and improvement surfacing on the record; that the trial Court has wrongly assessed the evidence on record, therefore, the impugned conviction is liable to be set aside and the appellant be acquitted of the charge.

5. Learned counsel for the complainant, namely, Malak Ahmad Jan advocate is not in attendance. On 11-9-2013, case was adjourned due to absence of counsel for the complainant, so, keeping in view the nature of case, we deem it proper to hear learned A.A.-G. Learned A.A.-G. appearing on behalf of the State, on the other hand, did not controvert the legal proposition, however, on merits he halfheartedly argued the case.

6. We have carefully perused the record, in the light of above submissions and relevant law.

7. Ordinarily, there is no embargo upon the Court to take cognizance of offence, but the legislature in its wisdom, enacted a special provision of section 196, Cr.P.C. creating an exception to the general Rule. For convenience, Section 196, Cr.P.C. is reproduced herein below:- "

196. Prosecution for offences against the State.--No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (except section 127), or punishable under section 108 A, or section 153-A or section 294-A, or section 295-A or section 505 of the same Code, unless upon complaint made by order of or under authority from, the Central Government or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments".

8. The afore-quoted provision of law is couched in the negative language, which, unless the context otherwise requires, it is to be considered to be mandatory in nature. The oral complaint for the offence against convict/appellant was filed by complainant, who is private person of aged about 21/22 years, without obtaining any permission or order by either of the two Governments i.e. the Federal or the Provincial, or any officer empowered in this behalf. It is now well settled that if a mandatory provision of law for exercise of jurisdiction is not fulfilled, then the entire proceeding become 'coram non judice', illegal and without jurisdiction. The allegation against the appellant is that he used derogatory remarks in respect of Almighty, Holy Prophet (Peace Be Upon Him) and the Holy Holy Quran. Admittedly, in the case in hand, report was lodged by Muhammad Hayat PW-8, but the learned trial Court did not adhere to above-quoted provision of law for the reason that omission to observe the provisions of section 196, Cr.P.C. is an illegality not curable under section 537, Cr.P.C. and non-compliance thereof would render the entire proceedings nullity in the eye of law. Wisdom can be drawn from the dicta reported in PLD 2005 [Lahore] 631 'Abdul Razzaq v. The State' and 2007 PCr.LJ-342 [Lahore] 'Mst. Sardaran Bibi v. The State'.

9. In the instant case, the prosecution produced eight private witnesses to prove its case, but their testimony is contradictory to one another not appealable to a prudent mind. P.W.1 Mst. Mohsina shown to be eye-witness in the site plan but in her Court statement, she disclosed her presence in her home inasmuch as she was unable to tell the distance between her house from the house of convict. She is also ignorant about other witnesses of the occurrence. Similarly, P.W.2 Ayatullah son of Haji Amanullah also denied presence of the witness on the spot while P.W.3 Rehmat Saifullah stated in his cross-examination that there were so many women on the spot. PW-4 Habib-ur-Rahman also stated that no one was present on the spot.

10. The statement of Mst. Fatima Jahan produced by the prosecution as P.W.5 is worth mentioning which is reproduced herein below:-- The other witness Mst. Shakeela Naz as PW-6, also stated as under:--

11. The statement of complainant Muhammad Hayat as PW-8 is also contradictory for the reason that according to his statement, the female witnesses were in their houses. He is also ignorant about the presence of women witnesses.

12. After completion of the prosecution evidence, the statement of accused under Section 342, Cr.P.C. was recorded, wherein he denied all the allegations regarding commission of offence. In his statement on oath under Section 340(2), Cr.P.C, he clearly stated that he was ignorant of the charge. He deposed in the following. manner:--

13. In the present case, the convict has taken the plea of fits and mental disorder and unsound mind in the above-quoted statement, but the learned trial Court did not referred the accused to Civil Surgeon of the District to checkup his mental condition. Reliance can be placed on case law reported in 2003 PCr.LJ 206 [Lahorel 'Dilshad Hussain v. The State'. The trial Court also did not adopt the procedure prescribed under Section 465, Cr.P.C. For convenience Section 465, Cr.P.C. is reproduced herein below:

465. Procedure in case of person [sent for trial] before Court of Session or, High Court being lunatic.--(1) If any person before Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case. (2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court."

14. Under the circumstances, convicting Muslim on the charge under section 295-C, P.P.C. to imprisonment for death when he clearly denies the charge and claims that he is true Muslim and cannot even think of such an act; moreso, when the prosecution evidence available on record is of such a nature that majority of witnesses denied presence of one another on the spot at the time of occurrence, then he could not be convicted. Moreover, there is no mention of ages of P.Ws. to ascertain their veracity.

15. Judged from all legal and factual angles, in our view, the evidence produced by the prosecution is incredible and not worthy of reliance for conviction on a capital charge. In consequence of what has been discussed above, the appeal is accepted, impugned judgment/order of conviction dated 14-11-2012, passed by the trial Court is set aside, and the appellant is acquitted of the charge. He is in custody and be set-free if not required in any other case. The Murder Reference No.10 of 2012 is answered in negative. Above are reasons of our short order of the event date. MH/87/P Appeal allowed.