2018 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

Through captioned criminal revision application, the applicant has impugned the judgment dated 13-10-2011, passed by the learned Sessions Judge, Kamber-Shahdadkot whereby he rejected the appeal of the applicant and allowed the Revision Application filed by the complainant against the judgment of learned Judicial Magistrate, Warah. Through the impugned judgment, the learned Sessions Judge, Kamber-Shandadkot enhanced the sentence from one month to 3 years and fine from Rs. 1000/- to Rs. 5000/- and also held that in default of payment of fine, he shall suffer R.I for three months more.

2. The relevant facts spelt out from the contents of the revision application are that the complainant Amir Ali lodged a FIR at PS Nasirabad on 07-04-2009 and reported that on the day of the incident, he and the prosecution witnesses were sitting in the Wahoocha Hotel in Nasirabad Town, when at 11.00 a.m. accused Muharram came at the hotel and he started derogatory language against Ahl-e-bait. The complaining party restrained him, but he again used derogatory words against Khulafa i-Rasheedin and went away towards his village. Thereafter complainant went to PS and lodged report.

3. After registration of the FIR, police arrested the applicant/convict and on completion of usual investigation, submitted a Final Report before the concerned Judicial Magistrate. The learned Judicial Magistrate took cognizance and initiated trial by framing charge against the applicant under section 298-A, P.P.C. to which he pleaded not guilty and claimed trial. The prosecution examined as many as five witnesses, including complainant, eye-witnesses and investigation officer. The trial court examined accused under section 342, Cr.P.C. in which he denied all the allegations levelled against him, but did not prefer to examine himself on oath or produce any defence witness. Ultimately, the trial court came to conclusion that the charge against the applicant/convict is proved, as such he was convicted to undergo imprisonment for one month and a fine of Rs. 1000/-in default whereof he has to undergo S.I for 15 days more.

4. The applicant/convict preferred an appeal before the learned Sessions Judge against the said verdict while complainant also filed a revision application before him for enhancement of the sentence so awarded to the applicant. The learned Sessions Judge after hearing the arguments advanced from either side, dismissed the appeal of the applicant and allowed the revision application filed by the complainant, as such impugned judgment was passed through which sentence was enhanced as mentioned above.

5. The learned counsel for the applicant while assailing the impugned judgment submits that the applicant is a primary school teacher and he is affiliated with Darvaishes (Saints); therefore, he cannot think to use derogatory language against holy personage of Islam. He submits that the complainant and applicant were under disputes in respect of removal of Alam Pak from the graveyard and against the complainant party several complaints and FIRs have been lodged in this respect. He draws attention towards Annexure-A (page 21) and Annexure-A 1 (page 23) and submits that these annexures which are actually applications filed by the complainant party against the applicant/convict, show animosity of complainant party towards the applicant/convict. He also submits that the prosecution could not establish the case against the applicant and the evidence produced is shaky, contradictory and doubtful in nature.

6. The learned APG concedes that the case against the applicant/convict could not be proved. According to him, the allegedly derogatory words could not be recorded in any form during the investigation or even the same could not be proved during trial.

7. After hearing the arguments advanced at bar, I have scanned the available record in the light of submissions made before me. The applicant/convict was charged by the trial Court under section 298-A, P.P.C. for an offence of using derogatory remarks against the esteemed and holy personage of Islam, which allegedly offended the religious feelings of the complainant. Before entering into further discussion, I think it proper to reproduce section 298-A, P.P.C., which is as under: "298-A. Use of derogatory remarks, etc., in respect of holy personages. Whoever by words, either spoken or written, or by visible representation, or by an imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of any wife (Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (Peace be upon him), or any of the righteous Caliphs (Khulafa-e-Rashideen) or companions (Sahaaba) of the Holy Prophet (Peace be upon him) shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".

8. From the above the statutory provision, it is clear that if a person uses the spoken or written words or by visible representation, etc., directly or indirectly, defiles the sacred name of any wife or a member of the family or any righteous Caliphs or companions of the Holy Prophet then he shall be held guilty and punishable under this section. In this respect, another aspect is important that the above provision of law is actually a continuation of section 298, P.P.C., which is actually the parent and the controlling section regarding all the statutory penal provisions in respect of religion. In section 298, P.P.C., it has been mentioned that the words used should be with the intention of hurting religious feelings of others. Besides, it is the settled principle of criminal jurisprudence that 'mens rea' or 'criminal intention is necessary to attract criminal liability. In the present case, the prosecution could not establish the intention of the applicant/convict of causing or hurting the religious feelings of the complainant or anyone else. Instead of intention on the part of the applicant, it has come on the record that the complainant party had some grudge against the applicant/convict. This fact is very much transpired from the cross-examination of PW -6 Ghulam Haider, who is the owner of the hotel where the alleged incident took place. During cross-examination, he said that: "It is fact that the accused used to come to my hotel but I do not give him tea for having." The learned counsel for the applicant/convict has also filed some applications moved by the complainant party against the applicant and others to different authorities. In such a situation, false implication cannot be ruled out.

9. The allegations against the applicant/convict are that he had used derogatory words against Ahl-e-bait and Khulfa-i-Rasheedin During trial, the learned Judicial Magistrate has examined complainant and eye-witnesses in which the complainant and eye-witnesses have stated that the applicant/convict has uttered derogatory words against those personalities Even during the course of the investigation, the investigation officer did not bother to write down those words in any documents or memos. I have gone through the entire deposition recorded before the trial court and in all statements recorded by the trial court, nowhere those words are specifically mentioned, which are said to be uttered by the applicant/convict before the complainant or other witnesses. The complainant and witnesses have stated in their cross-examination that the applicant/convict has used the words offending to them, but they neither tried to record the said words or to describe the same to the investigation officer during the investigation nor they reproduced those words in their deposition. In my view, unless those offending words are not come on the record; it is really hard to conceive that, the words allegedly uttered by the applicant/convict, were actually offending in nature. The offence with which the applicant/convict is charged is serious in nature and no one can be held guilty of such offence only by levelling allegations that certain derogatory or offending words have ever been used by him. It is necessary to establish the case against such a person that those words should be brought before the court in any form like recording, scribing, describing or reproducing in oral evidence but in the instant matter nothing of the sort happened during trial. As the offending words, have not been brought into the notice or knowledge of the trial court; therefore, holding the applicant/convict guilty of an offence under section 298-A, P.P.C. is inconceivable. It is my considered view that in the existing position of affairs, the prosecution miserably failed to bring the guilt of the applicant/accused at home. As the case against the applicant/accused could not be established under the settled principle of criminal jurisprudence; therefore, the Appellate Court's verdict of enhancement of the sentence is not proper as such the same is not sustainable.

10. In view of the above discussion, this revision application is allowed and the judgment of the appellate Court dated 13-10-2011, as well as trial Court dated 03-06-2010 are set-aside and the applicant is acquitted of charge. He is presently on bail; his bail bond is cancelled and surety is discharged.

11. The above are the reasons of my short order dated 01-06-2017. MH/M-167/Sindh Revision allowed.