2005 PLP 985 (YLR)

IJAZ AHMAD CHAUDHRY, J.

This judgment will dispose of Murder Reference No.45 of 2003 sent for confirmation of death sentence awarded to Bashir Ahmad appellant and Criminal Appeal No.247 of 2003 filed by him as both arise out of judgment, dated 6-8-2003 passed by learned Additional Sessions Judge, Bahawalnagar whereby the appellant was convicted under section 295-C, P.P.C. and sentenced to death with fine of Rs.1,00,000 in default of payment whereof to further undergo R.I. for 6 months. However, the appellant was discharged of the charge under section 295-A, P.P.C.

2. On the writen, complaint Exh.PB of Maulana Muhammad Qasim Shujaabadi (P.W.3), Muhammad Abdul Rashid Inspector/SHO Police Station, City Bahawalnagar, (P.W.2) lodged formal F.I.R. No. 577 Exh. PB/1 under sections 295-A and 295-C, P.P.C. on 30-10-2001 at about 2.15 p.m. against the appellant.

3. The prosecution story narrated by the complainant Maulana Muhammad Qasim Shujaabadi while appearing as (P.W.3) is that one week prior to 30-10-2001, he was present at Station Sawaiwala when somebody told him that Bashir Ahmad resident of Basti Jurana was making sacrilegious/derogatory remarks against the Holy Prophet (p.b.u.h) as well as basic Teachings of Islam, Companions of Holy Prophet Muhammad (peace be upon him). He was also making derogatory remarks particularly against Holy Prophet Hazrat Muhammad (peace be upon him) and he himself had heard the said utterances from Bashir Ahmad appellant:-- (i) He had also come-across Meraj; (ii) Holy Prophet firstly fell in love with a handsome boy and then Hazrat Ayesha Siddiqua; (iii) God-Almighty in a garb of Jibraeel Aley Islam made intercourse with Hazrat Marriyam; (iv) Kaba is a greatest idol; (v) There was no need to offer prayer as it will amount to show anas to God Almighty; (vi) All the people reciting Kalma are infidels; (vii) Hazrat Umar was like a stout Ox; (viii) The prophets are nothing while Qalandars enjoyed lofty status as compared to the Prophets; (ix) The Prohpets are not sacred, who are like ordinary men and having no horns; (x) He claimed himself to be Imam-Mehdi; According to P.W.3 Maulana Muhammad Qasim Shujaabadi his (appellant) wrong teachings, sacrilegious/ derogatory material were also recorded in cassettes which could be verified and the allegations could also be verified from the witnesses namely Master Ghulam Hussain, Muhammad Irshad, Rao Liaquat Ali, Haji Muhammad Yaqoob and Muhammad Ameen who had also heard the said derogatory remarks from Bashir Ahmad appellant. First of all they got approved a resolution from Tehsil Council Bahawalnagar and then he moved an application for registration of case whereupon the above said F.I.R. Exh. PB/1 was recorded under sections 295-A and 295-C, P.P.C.

4. After registration of the case one cassette Exh.P.5 was taken into possession by Muhammad Abdul Rashid, Inspector S.H.O. P.W.2 which was presented by Maulana Saeed Ahmad vide memo. Exh.P.C in the presence of Master Ghulam Hussain (P.W.4) and Haji Muhammad Yaqoob (not produced). Similarly, four cassettes were also produced by Maulana Muhammad Qasim Shujaabadi to P.W.2. Investigating Officer which were also taken into possession by him vide Recovery memo., Exh..PE on the same day. Bashir Ahmad appellant was arrested on 30-10-2001 and he led to the recovery of 4 books which were also taken into possession by (P.W.2), vide recovery memo.

5. After completion of investigation report under section 173, Cr.P.C. was submitted before the learned trial Court. Copies of the documents as required under section 265-C, Cr.P.C. were supplied to Haji Bashir Ahmad, conviction and charge was framed against him, which was denied by him and he claimed to be tried.

6. The prosecution in order to prove the guilt of the appellant produced as many as six witnesses. Rana Nazir Ahmad, Head Constable (P.W.1) is the formal witness as Bashir Ahmad appellant got recovered 4 books in his presence. (P.W.2) Muhammad Abdul Rashid, Inspector S.H.O. had recorded the formal F.I.R. and also investigated the case. (P.W.3) Maulana Muhammad Qasim Shujaabadi is complainant while P.W.4 Ghulam Hussain, Muhammad Irshad (P.W.5) and Muhammad Ameen (P.W.6) had supported the story of the prosecution.

7. After close of the prosecution evidence. Bashir Ahmad appellant in his statement recorded under section 342, Cr.P.C. denied the allegations levelled by the prosecution and stated the present case had been lodged against him with the connivance of the P.Ws. Moreover, in his defence he opted to appear under section 340(2), Cr.P.C. as P.W.4 and also produced three witnesses namely Ch. Niaz Ahmad, Muhammad Akram, Muhammad Aslam as D.W.1 to D.W.3 respectively in his defence.

8. After hearing the arguments of the learned counsel for the parties, the learned trial Court has passed the impugned judgment of conviction and sentence which is being assailed through this appeal.

9. Learned counsel for the appellant contends that the prosecution has failed to prove the case against the appellant; that there was delay of 7 days in lodging the F.I.R. which was not explained and the same is sufficient to draw an inference that the witnesses were not telling the truth; that the witnesses are not worthy of reliance as there were contradictions on material points in the statements of the witnesses and P.W.3 Maulana Muhammad Qasim Shujaabadi himself not heard the derogatory remarks while P.W.4 Ghulam Hussain and P.W.5 Irshad were also not the eye-witnesses; that four witnesses were produced by the prosecution and to belie them from witnesses were produced by the defence who gave the more plausible version, which is liable to be relied as D.W.1 Ch. Niaz Ahmad who is relative of the appellant has made categorical statement denying the allegations levelled against the appellant whereas D.W.2 Muhammad Akram is an independent witness and D.W.3 Muhammad Aslam is Headmaster and M.A. in Islamic Study while Bashir Ahmad appellant himself also appeared as D.W.4 and denied the allegations levelled against him. It is next contended that P.W.3 Maulana Muhammad Qasim Shujaabadi is the President of Tahreek Khatmey Nubuwat, Bahawalnagar, who even admitted to have previously got lodged a criminal case under the same offence against another person and as such he being habitual of recording the similar F.I.Rs. is not worthy of reliance; that the P.Ws were not residents of the same locality and there was no occasion for the appellant to make such abusive utterances before them; that P.W.4 Ghulam Hussain and P.W.5 Irshad are also attached with Tahreek Khatmey Nubuwat and no independent person was produced by the prosecution to prove the guilt of the appellant; that P.W.6 Muhammad Ameen is not worthy of reliance as he allegedly heard the words in the year 1993 but had not reported the matter to police at that time; that firstly resolution was got approved against the appellant from Tehsil Council, Bahawalnagar, which suggests that number of persons were interested in the prosecution of the appellant, but none of them made statement against the appellant before the police or in the Court and the police conducted partial investigation of the case under the pressure of the public and that the appellant is liable to be acquitted as the prosecution has miserably failed to prove the case beyond any reasonable doubt while the appellant has great respect for all the apostles and he cannot even think to disgrace them. According to the learned counsel the appellant is denying to have made such utterances from the very first day of lodging the F.I.R. and he cannot be convicted on the contradictory statements of the P.Ws. who are not worthy of reliance. Reliance is placed on PLD 2002 SC 1048, PLD 2002 Lahore 587 and 2002 YLR 1273. It is contended that the Holy Prophet (peace be upon him) was model of forgiveness and mercy. It is lastly contended that Bashir Ahmad appellant is 85 years of age, who is mentally upset in jail and he may be acquitted of the charge.

10. Conversely, the learned counsel for the complainant has opposed this appeal on the ground that P.Ws. had no intimacy or grudge to falsely implicate the appellant in the present case and utmost care was taken before reporting the matter to the police for registration of the case. According to the learned counsel the derogatory remarks used to be uttered by the appellant were even recorded through tape recorded on different occasions and 5 cassettes have been produced on record to prove that the appellant was habitual in doing so. The learned counsel further contends that the only punishment provided for the offence in Islam is death and the appellant does not deserve for any leniency. He also quoted an incident from the life time of the Holy Prophet (peace be upon him) that a woman used to pass derogatory remarks against the Holy Prophet (peace be upon him), who asked his companions that who could commit death of said woman whereupon one blind Sahabi went in the night and killed her due to this reason. The Holy Prophet (peace be upon him) prayed that he had become successful in both the worlds. It is further contended that to constitute offence under section 295-C P.P.C. it is not necessary to injure feelings of general public but saying something for the contempt of the Holy Prophet (peace be upon him) is sufficient to cause death of the contemnor and his blood would be vain.

11. Learned Assistant Advocate-General appearing on behalf of the State has also opposed this appeal, but relying upon PLD 2002 Lahore 587 has prayed for taking a lenient view.

12. We have heard the learned counsel for the parties and also perused the record with due care and caution.

13. In the present case the defiling words highlighted in the F.I.R. do constitute the offence under section 295-C, P.P.C. The prosecution in order to prove its case produced P.Ws 3 to 6 along with five audio cassettes allegedly containing derogatory remarks uttered by the appellant on different occasions in his own voice and copy of Resolution approved by the Tehsil Council Bahawalnagar for registration of the case against the appellant on the application Exh. P-F submitted by the complainant.

14. P.W.3 Maulana Muhammad Qasim Shujaabadi is District Incharge of Tahreek Khatmey Nubuwat. Bhawalnagar, while posted there for a period of last four years. He stated he had heard from some body that Bashir Ahmad appellant resident of Basti Jurana was making sacrilegious/derogatory remarks against the Prophets as well as basic teachings of Islam and Companions of Holy Prophet. He was also making derogatory remarks particularly against Holy Prophet Hazrat Muhammad (peace be upon him). According to P.W.3 he himself had also heard the said utterance from the appellant Bashir Ahmad, which have been detailed in para.3 ante. (P.W.3) further stated that Master Ghulam Hussain (P.W.4), Muhammad Irshad (P.W.5), Rao Liaquat Ali, Haji Muhammad Yaqoob and Muhammad Ameen (P.W.6) had also heard the said derogatory remarks from the appellant (P.W.3) was subjected to lengthy cross-examination. He frankly stated that he could not give the name of the person who firstly informed him about derogatory remarks uttered by the accused and before it neither he was aware of the activities of the appellant nor did meet him before the information was received by him. (P.W.3) explained that he deputed three persons namely Haji Muhammad Yaqoob, Muhammad Irshad and Rao Liaqat Ali for making inquiry against the appellant and they furnished reports to him to the effect that he was indulged in making unholy remarks against the Holy Prophet (peace be upon Him) and his Companions. P.W.3 further explained that he himself had heard the derogatory remarks from the appellant at the shop of Liaqat Ali P.W. located in Mohajir Colony near the mosque, when he visited the said shop after Maghrab prayer two days prior to the registration of the F.I.R. P.W.3 also denied that the other P.Ws were members of the Thareek Khatmey Nubuwat of Tehsil Council, Bahawalnagar. Nothing has been brought on the record to show that P.W.3 was inimical towards the appellant and he had any ulterior motive to falsely implicate him in this case.

15. P.W.4 Ghulam Hussain is also resident of Bahawalnagar. He has also supported the prosecution story in the same manner as narrated by P.W.3 Maulana Muhammad Qasim Shujaabadi. He is M.A. English and B.Ed. He admitted that he was working as private tutor. According to him, he had previously made written complaint against derogatory assertions of the appellant before Maulana Allah Yar Ashrafi, Mohatmim Jamia Razai Mustafa. During cross-examination he was confronted with this previous statement Exh. D.A. on the point that he was aware about sacrilegious views of the accused for a period of last 1-1/2 years and word 1-1/2 year was not found mentioned therein. He confirmed that Maulana Muhammad Qasim Shujaabadi (P.W.3) had constituted a body comprising himself and other P.Ws. and he had made a programme for recording conversation of the accused and for this propose he sent Liaqat Ali and Irshad for recording utterances of accused incidentally although he was confronted with his previous statement Exh.D.A. on this point. During cross-examination (P.W.4) conceded that the appellant was having majority of Mureeds (followers) who were being preached by him and the P.Ws. were not his Mureeds. From the same it is proved that the appellant was not an ordinary person and he can be expected to have formed his own views and expressing them. From the statement of (P.W.4) it is established that he previously knew the appellant as he had been teaching the grand children of the appellant in his house. He denied the suggestion that the said tuition was discontinued by the appellant on account of his dubious character, and he explained that as once the appellant expressed objectionable, derogatory and insulting remarks against the Apostles, he discontinued the said tuition and also made complaint before Muhammad Zafar son of the appellant who tendered apology before him in this regard. No specific enmity or ulterior motive was put to this P.W. resulting into any ill-will or grudge against the appellant to falsely implicate him in the case in hand.

16. Muhammad Irshad P.W.5 has also supported the prosecution story. There is nothing on the record to suggest that any enmity, ill-will or grudge against the appellant. However, Muhammad Ameen P.W.6, who is resident of the same vicinity has appeared to prove that the appellant was expressing his views against the teachings of Islam since 1990 and he was witness of the same. The above said witnesses are independent witnesses. They had no enmity or grudge even admitted by the appellant during cross-examination while appearing as D.W.4 to falsely implicate him in such a heinous offence punishable with capital punishment.

17. We don t find any contradiction in the statements of the prosecution witnesses regarding the nature of allegation against the appellant. It has been only contended by the learned counsel for the appellant that as (P.W.4) Ghulam Hussain was teaching the grand son of the appellant, but he was removed from the said job and his demand for letting him Rs.2 lac to procure Government job was not fulfilled by the appellant, he became inimical towards him and he maneouvred this false case through P.W.3 Maulana Muhammad Qasim Shujaadi. We have noticed that even no such suggestion was put to Ghulam Hussain when he appeared as P.W.4 during cross-examination by the learned defence counsel. He was only asked that due to his dubious character the tuition was got discontinued. The appellant while appearing as D.W.4 categorically stated that none of the witnesses had any ill-will or grudge against him to falsely implicate him in the present case. Although he has introduced the story that P.W.4 Ghulam Hussain who used to teach his grandson and grand-daughters and one day had demanded Rs.2,00,000 from him to get a job in Colony High School, but due to above discussion the same appeared to be an after-thought version and cannot be believed to discard his statement.

18. After minutely analyzing the whole evidence on record, we do not find any enmity, mala fide, ill-will and ulterior motive on the part of the P.Ws to falsely implicate the appellant in such a heinous offence entailing capital punishment. They are independent and trustworthy witnesses and there does not appear any reason to disbelieve them. However, we are not going to rely upon audio cassettes allegedly consigning derogatory remarks uttered by the appellant which even otherwise were only produced as corroborative piece of evidence, as from the record it is not clear that the voice recorded therein was confronted to the appellant at the trial. Hence, the same are of no use to the prosecution. But in the present case the prosecution has been able to prove its case against the appellant beyond any shadow of doubt through the oral statements of P.Ws.3 to

6. Moreover, the Resolution approved by the Tehsil Council, Bahawalnagar, dated 29th October, 2001 on the application Exh.P-F submitted by the complainant shows that people of the city were making processions against the nefarious act of the appellant and it eliminates the possibility of false implication of the appellant by the P.Ws for any mala fide or ulterior motive. The case-law cited by learned counsel for the appellant is not applicable to the facts and circumstances of the present case. In PLD 2002 SC 1048, the P.Ws. were found inimical towards the accused and were declared untrustworthy whereas in 2002 YLR 1273 it was held that the Holy Prophet (p.b.u.h) used to forgive the people, the F.I.R. was lodged with the delay of 21 days, the star witness was not produced and prosecution evidence was not found corroborated by any independent source. In PLD 2002 Lahore 587 the accused was alleged to have pasted Ishtihars at the main gate of the mosque and the prosecution evidence was found insufficient.

19. So far as defence evidence is concerned, D.W.1 Ch. Niaz Ahmad is close relative of the appellant. D.W.2 Muhammad Akram is tenant of the appellant and his sons having taken shop on rent from them where he is doing his business and D.W.3 Muhammad Aslam resides at Arifwala. Admittedly, none of them appeared during the investigation to plead innocence of the appellant and during cross-examination they explained that for the first time they appeared as D.Ws in the Court and that too on the asking of sons of the appellant. Their statements cannot be preferred over the statements of the P.Ws, whose statements could not be shaken during cross-examination and they proved to be trustworthy. The appellant might have not uttered such ugly remarks before the DWs, but their statement are not sufficient to show that the P.Ws are telling a lie. To constitute offence under section 295-C, P.P.C. number of witnesses are not required and it is not necessary that such abusive language should be made loudly in public or in a meeting or at some specific place, but statement of single witness that somebody had made utterance for the contempt of the Holy Prophet (p.b.u.h.) even inside the house is sufficient to award death penalty to such contemnor. The following incidents from the life time of the Holy Prophet (p.b.u.h.) are sufficient to prove the same:- It has been related on the authority of Ibn Abbas that a blind person in the period of Holy Prophet (p.b.u.h.) had a female slave who used to abuse the Holy Prophet (p.b.u.h.). Thus blind person forbade her to abstain from it and warned her not to do so but she did not care. One night when she was as usual abusing the Holy Prophet (p.b.u.h.), this blind person took a knife and attacked her belly and killed her. Next morning when the case of murder of this woman was referred to the Holy Prophet (p.b.u.h.), he collected the people and said, who has done this job. Stand and confess because of my right on him for what he has done. On this the blind person stood and came rolling the people before the Holy Prophet (p.b.u.h). and said, O Prophet, I have killed this salve woman because she abused you. I have constantly forbade her but she dn t care for that. I have two beautiful sons from her and she was my very good companion, but yesterday when she started abusing you, I took my knife and attacked on her belly and killed her. The Holy Prophet (p.b.u.h). said, O people be witnesses that the blood of this woman is vain (Abu Daud, Vol. II, pages 355-357). It has been related on the authority of Hazrat Ali that a jew woman used to abuse the Holy Prophet (p.b.u.h.) and thus a person killed her. The Holy Prophet (p.b.u.h.) declared her blood as vain (h) (ibid). It has been related on the authority of Umair ibn Umayyah that he had a mushrikah sister who teased him when he met the Holy Prophet (p.b.u.h.) and used to abuse the Holy Prophet (p.b.u.h). At last one day he killed her with his sword. Her sons cried and said, We know her murderers who killed our mother and the parents of these people are mushrik (infidels). When Umair thought that her sons may not murder wrong persons, he came to the Honly Prophet (p.b.u.h.) and informed him of the whole situation. The Prophet said to him, have you killed your sister? He said, Yes . Prophet said, Why He said that she was harming me in your relations. The prophet called her sons and asked about the murderers. They showed to her persons as murderers. Then Prophet informed them and declared her death as vain. (Majmauz Zawaid as Manbaul Fawaid, Vol.V. page 260). It has been narrated that a person came to the Holy Prophet and said, O Prophet! My father abused you and I could not bear it thus killed him. The Holy Property (p.b.u.h.) confirmed his action (Al-Shifa by Qazi Ayaz, Vol.II, page 285) Urdu transalation For the foregoing reasons, the conviction of the appellant under section 295-C, P.P.C. is maintained.

20. So far as quantum of sentence is concerned, no doubt the Holy Prophet (p.b.u.h.) had pardoned some of his contemnors, but the jurists concur that Prophet (p.b.u.h.) himself had the right to pardon his contemnors while Ummah had no right to pardon his contemnor. The Holy Quran, as a glorification of the Holy Prophet (p.b.u.h.) prohibited even the slightest cause of annoyance and declared that marriage with the wives of the Prophet after his death is prohibited for the believers so as to avoid not being means of the contempt of the Prophet. Holy Quran says:-- O ye who believed! Enter not the dwellings of the Prophet for a meal without waiting for the proper time, unless permission be granted you. But if ye are invited to enter and when your meal is ended, then disperse. Linger not for conversation. Lo! that would cause annoyance to the Prophet and he would be shy of (asking) you (to go); but Allah is not shy of the truth. And when ye ask of them (the wives of the Prophet), anything, ask it of them from behind a curtain. That is purer of your hearts and for their hearts. And it is not for you to cause annoyance to the messenger of Allah, nor that ye should, ever marry his wives after him. Lo! that in Allah s sight would be an enormity. (33:53). The Holy Prophet (p.b.u.h.) is the best interpreter of the above-noted verses of the Holy Quran and it is also proved by his Sunnah that his contemnor is liable to the penalty of death. Reference may be made to the following besides the above-quoted Ahadith:-- it has been related on the authority of Hazrat Ali that Holy Prophet (p.b.u.h.) said; Kill the person who abuses a Prophet and whip by stripes the one who abuses my companions. (Al-Shifa Qazi Ayaz Vol. II, page 194).:

21. Ibn Taimiyyah writes. Abu Sulaiman Khattabi said, when the contemnor of the Holy Prophet (p.b.u.h.) is a Muslim then his punishment is death and there is no difference of the opinion among the Muslim about this matter in my knowledge. (Assarimul Maslul, page 4).

22. Qazi Ayaz writes, Ummah is unanimous on the point that the punishment of a Muslim who abuses the Holy Prophet (p.b.u.h.) or degrades him is death (Al-Shifa, Vol. II, Page 211).

23. Qazi Ayaz further writes, everyone who abused Holy Prophet (p.b.u.h.), point out any defect in him, his lineage, his religion or in any of his qualities or makes allusion with him, or resembles him with another thing as his insult, disrespect, degradation, or his defect, he is contemnor and he will be killed, and there is consensus of the Ulema and Jurists on the point from the period of Sahaba till this time. (Al-Shifa By Qazi Ayaz, Vol.II, page 214).

24. Abu Bakr Jassas Hanafi writes, There is no difference of opinion among the Muslims that Muslim who maligns or insults the Holy Prophet (p.b.u.h.) intentionally becomes apostate liable for death. (Ahkmul Quran Vo. II, page

106. It will be useful to note one Hadith here:-- It has been related on the authority of Abdullah Ibn Abbas that Prophet (p.b.u.h.) said, Kill the person who changes his religion (Islam) (Bukhari, Vo. II, page 123).

25. It has been narrated by Qazi Ayaz that Haroon-ur-Rashid asked Imam Malik about the punishment of the contemnor of the Prophet and told him that some Jurists of Iraq had suggested the punishment of whipping him stripes, Imam Malik became furious on that and said, O Amirul Maanineen how the Ummah has the right to exist when her Prophet is abused. So kill the person who abuses the Prophet and whip stripes to one who abuses the companions of the Prophet (Al-Shifa, Vol. II, page 215).

26. Ibn Taimayah, while relating the opinions of the Jurists in this connection, writes, Abu Bakar Farsi Shafie has related that there is consensus of opinion among the Muslims that the punishment of contemnor of the Prophet is death, if he is Muslim. (Asarimul Maslul, page 3).

27. It has been narrated in Al-Shifa Vol-II page 284 Urdu Translation by Qazi Ayyaz that after the conquest of Makkah, the Holy Prophet (p.b.u.h.) announced general pardon, but ordered killing of Ibn Khatal and his she-salves who used to compose defamatory poems about him.

28. As a result of above discussion, we do not find any jurisdiction for award of lesser punishment. As such death sentence awarded to the appellant by the learned trial Court is confirmed. This appeal having no merit is dismissed and the impugned judgment is maintained.

29. Consequently, Murder Reference No.45 of 2003 is answered in affirmative and death sentence of the appellant is confirmed. H.B.T./B-71/L Appeal dismissed.