2021 PLP 1415 (MLD)

O' believers! Stand-up firmly by the Commandments of Allah bearing witness with justice and let not the enmity of any people incite you that you should not do justice. Do justice that is nearer to piety and fear Allah, undoubtedly, Allah is aware of your doings.1 TARIQ SALEEM SHEIKH, J.

Through this judgment we propose to decide Crl. Appeal No. 769/2014 and CSR No. 8/T/2017 as both arise from case FIR No. 407/2013 dated 20.7.2013 registered at Police Station City Gojra, District Toba Tek Singh, for offences under sections 295-B, 295-C, 201, P.P.C. and section 25-D of the Telegraph Act, 1885. Facts

2. According to the prosecution, on 18.7.2013 at about 10:15 p.m. Complainant Muhammad Hussain (PW-4) was offering prayers (Namaz-e-Taravih) at Talaab-Wali Mosque in Chak No.365, Gojra, when he received a text message (SMS) on his cell phone No.0300-6553526. After finishing the prayer when he checked the phone he found that it was a sacrilegious text from an unknown number 0303-9445368. The Complainant was dismayed and showed it to other people in the mosque, including Muhammad Shabbir (PW-5) and Khalid Maqsood (not produced). On 20.7.2013, he went to the office of Sajjad Asghar Khokhar, Advocate (PW-3), to initiate legal proceedings against the culprit. He was still there when he received five more SMS from the aforesaid number with the same irreverent content. He showed them to Sajjad Asghar who called the sender from his own cell phone (No.0300-6550125) to know who he was but he dismissed the call. However, a few moments later that person forwarded the above-mentioned SMS 3/4 times to Sajjad Asghar as well. Muhammad Hussain took his cell phone to Abdul Qadir (PW-6), a shopkeeper who dealt in mobile phones and accessories in Gojra, and showed him the SMS. He took its snap and e-mailed it to S.A.R. Digital Colour Lab. where Samiullah Khan (PW-7) took its print-out. Muhammad Hussain then drew complaint Exh. PJ and submitted it to the police with the print-out Exh. PJ/2 contending that the person who had sent the aforementioned SMS had committed blasphemy and outraged his religious sentiments and that of other Muslims. Consequent thereupon FIR No. 407/2013 dated 20.7.2013 Exh. PK was registered.

3. After lodging the FIR Exh. PK Complainant Muhammad Hussain (PW-4) went to the franchise of Mobilink,2 the mobile network and internet service provider doing business as Jazz, to determine the identity of the sender of the derogatory SMS. Rashid Mehmood (PW-9), an employee of the franchisee, apprised him that SIM No.0303-9445368 was purchased by Shagufta Kausar and her husband Shafqat Masih on 15.12.2012. Muhammad Hussain obtained their particulars from the franchise and learnt that they lived in the Bishop Compound at Mission Road, Gojra, and approached the police for their arrest.

4. On 20.07.2013 the Regional Police Officer entrusted the investigation of the case to Muhammad Nasir Sial, Superintendent of Police, Madina Town, Faisalabad (PW-11). The following day he went to Chak No.365 where Complainant Muhammad Hussain (PW-4) submitted his cell phone (P-1) and SIM No.0300-6553526 (P-3) on which he had received the derogatory messages and got his supplementary statement recorded nominating Shafqat Masih and Shagufta Kausar as accused. Nasir Sial/SP secured both the articles vide Recovery Memo Exh. PM. Sajjad Asghar, Advocate (PW-3), joined the investigation and stated that on 20.7.2013 he also received the same text message four times. He produced his cell phone (P-2) to the Investigating Officer who secured it vide Recovery Memo Exh. PL. The same day, i.e. 21.7.2013, Nasir Sial/SP raided the house of Shafqat and Shagufta and arrested them. They confessed their guilt. Shafqat handed over to him his Nokia 1208 phone (P-4). Shagufta brought an iron box from which Shafqat produced the jacket of SIM No.0303-9445368 (P-5), purchase receipt of the said SIM (P-6) and his National Identity Card (P-7) which he secured vide Recovery Memo Exh. PP. It is alleged that Shagufta Kausar had destroyed SIM No.0303-9445368. In the evening Nasir Sial/SP produced Shafqat before the Judicial Magistrate, Sajid Mehmood (PW-10), for recording his statement under section 164, Cr.P.C. He confessed his guilt before him as well. Later both the accused were sent to judicial lock-up.

5. On 07.12.2013 Shafqat and Shagufta were indicted. They pleaded not guilty and claimed trial. The prosecution examined 12 witnesses to prove its case and after it finished the court recorded the statements of the accused under section 342, Cr.P.C. confronting them with the evidence brought against them during the trial. They refuted it and professed innocence. They maintained that the Complainant had framed them in the case at the behest of their neighbour Nazir Masih with whom they had an altercation 7/8 months prior to the registration of the crime report. Shafqat also retracted the confession and said that he had made it under duress. The accused neither opted to make statements on oath under section 340(2), Cr.P.C. nor examined any witness in their defence.

6. On conclusion of the trial, vide judgment dated 4.4.2014, the learned Additional Sessions Judge convicted and sentenced Shafqat and Shagufta as under: i) Convicted under section 295-C/34, P.P.C. and sentenced to death with fine of Rs.100,000/- and in default thereof to undergo simple imprisonment for six months each (in case death is not confirmed by the High Court); ii) Convicted under section 201/34, P.P.C. and sentenced to rigorous imprisonment for one year each; iii) Convicted under section 25-D of the Telegraph Act, 1885, read with section 34, P.P.C. and sentenced to rigorous imprisonment for one year each.

7. Shafqat Masih and Shagufta Kausar (hereinafter jointly referred to as the "Appellants") have filed Crl. Appeal No.769/2014 against their conviction and sentence while the Additional Sessions Judge has made a reference (CSR No. 8/T/2017) to this Court under section 374, Cr.P.C. for confirmation of their death penalty. Arguments

8. The learned counsel for the Appellants, Mr. Saif-ul-Malook, Advocate, contended that the Appellants were law abiding citizens and had never indulged in any activity that could hurt the feelings of the Muslims. He further contended that the Additional Sessions Judge had failed to appreciate the prosecution evidence in accordance with law which had caused serious miscarriage of justice. He argued that, firstly, the prosecution evidence was fabricated and unreliable. Secondly, the prosecution had failed to prove that SIM No.0303-9445368 was purchased by the Appellants or was in their use at any point of time. Thirdly, the Nokia phone (P-4), and the jacket (P-5) and the invoice (P-6) of the aforementioned SIM were foisted on the Appellants. Fourthly, the alleged extra-judicial confession of the Appellants before Nasir Sial/SP (PW-11) and the judicial confession of Appellant Shafqat before Sajid Mehmood (PW-10) were inadmissible. And lastly, Shafqat's judicial confession could not be used against Shagufta. The learned counsel prayed that Crl. Appeal No.769/2014 be accepted and the Appellants be acquitted of the charge.

9. Mr. Muhammad Moeen Ali, Deputy Prosecutor General, assisted by Mr. Muhammad Tauqeer Ashraf, Advocate, the learned counsel for the Complainant, controverted the above contentions. He contended that the prosecution had proved its case beyond reasonable doubt. The Complainant and other prosecution witnesses had no motive to prosecute the Appellants on trumped up charges. During investigation Shafqat categorically admitted that he and his spouse, Shagufta Kausar, longed to go to Europe and had deliberately committed the offence to get a visa. Discussion

10. Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, stipulates that every citizen, wherever he may be, and every other person for the time being in Pakistan has an inalienable right to enjoy the protection of law and to be treated in accordance with law. In particular, no action detrimental to his life, liberty, body, reputation or property shall be taken except in accordance with law. Then, Article 9 commands that no person shall be deprived of his life or liberty save in accordance with law and Article 10 provides safeguards as to arrest and detention. Articles 9 and 10 are contained in Part-II Chapter I of the Constitution which relates to Fundamental Rights. In Ismaeel v. The State (2010 SCMR 27) the Hon'ble Supreme Court of Pakistan observed that the rights guaranteed under Articles 4, 9 and 10 are sacrosanct and jealously guarded by our courts.

11. It is the duty of the courts to decide the cases dispassionately on the basis of available evidence without being influenced by emotions. And where the offence alleged is heinous, as in the instant case, they should be all the more cautious. In Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274) the Hon'ble Supreme Court of Pakistan said that a Judge would arrive at a wrong conclusion if he allows himself to be influenced by the nature of crime or some extraneous consideration. In Ali Raza alias Peter and others v. The State and others (2019 SCMR 1982) the Supreme Court held that even a person accused of the "most heinous" offence is entitled to a right of fair trial and a meaningful opportunity to defend himself. Collective human wisdom has not been able to develop a procedure better than due process of law. More recently, in Naveed Asghar and 2 others v. The State (PLD 2021 SC 600), which involved five murders, the apex Court held: "The ruthless and ghastly murder of five persons is a crime of heinous nature; but the frightful nature of crime should not blur the eyes of justice, allowing emotions triggered by the horrifying nature of the offence to prejudge the accused. Cases are to be decided on the basis of evidence and evidence alone and not on the basis of sentiments and emotions. Gruesome, heinous or brutal nature of the offence may be relevant at the stage of awarding suitable punishment after conviction; but it is totally irrelevant at the stage of appraising or reappraising the evidence available on record to determine guilt of the accused person, as possibility of an innocent person having been wrongly involved in cases of such nature cannot be ruled out. An accused person is presumed to be innocent till the time he is proven guilty beyond reasonable doubt, and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond reasonable doubt on the basis of legally admissible, confidence inspiring, trustworthy and reliable evidence." The august Supreme Court further observed: "No matter how heinous the crime, the constitutional guarantee of fair trial under Article 10-A [of the Constitution of Islamic Republic of Pakistan, 1973] cannot be taken away from the accused. It is, therefore, duty of the court to assess the probative value (weight) of every piece of evidence available on record in accordance with the settled principles of appreciation of evidence, in a dispassionate, systematic and structured manner without being influenced by the nature of the allegations. Any tendency to strain or stretch or haphazardly appreciate evidence to reach a desired or popular decision in a case must be scrupulously avoided or else highly deleterious results seriously affecting proper administration of criminal justice will follow. It may be pertinent to underline here that the principles of fair trial have now been guaranteed as a Fundamental Right under Article 10-A of the Constitution and are to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of, or criminal charge against, any person."

12. After this prologue we turn to the case before us. At the very outset, we observe that the incident was reported to the police with inordinate delay. According to the prosecution, Complainant Muhammad Hussain (PW-4) received the blasphemous SMS on 18.07.2013 but he lodged the FIR Exh. PK two days later, i.e. on 20.07.2013. Keeping in view the sensitivity of the issue and the manner in which the Complainant subsequently conducted himself, we find no explanation for this delay. In Mst. Asia Bibi v. The State and others (PLD 2019 SC 64) the Hon'ble Supreme Court held: "In this regard reference has been made by the learned counsel for the Complainant to the judgments of this Court reported as Zar Bahadar v. The State (1978 SCMR 136) and Sheraz Asghar v. The State (1995 SCMR 1365) to contend that the delay in registration of a FIR is not per se fatal in all the cases as it never washes away nor torpedoes trustworthy and reliable ocular and circumstantial evidence. There is no cavil to the proposition. However, it is to be noted that in absence of any plausible explanation, this Court has always considered the delay in lodging of FIR to be fatal and held that it casts a suspicion on the prosecution story and has extended benefit of doubt to the accused. It has been held by this Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime. Thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt which, of course, cannot be extended to anyone else except to the accused."

13. The courts all over the world are making increasing use of the evidence becoming available through modern technology. In Pakistan, Article 164 of the Qanun-e-Shahadat Order, 1984 (QSO), provides the legal pedestal therefor. It mandates:

164. Production of evidence that has become available because of modern devices etc.- In such cases as the court may consider appropriate, the court may allow to be produced any evidence that may have become available because of modern devices or techniques. Provided that conviction on the basis of modern devices or techniques may be lawful.

14. Article 164 of the QSO may be termed as the enabling provision. The procedure to prove the evidence collected through modern techniques is laid down in Articles 46-A and 78-A thereof and the Electronic Transactions Ordinance (LI of 2002). In Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others (PLD 2019 SC 675) the Hon'ble Supreme Court held that this has "smoothened the procedure to receive such evidence."3 SMS, which stands for Short Messaging Service and is commonly known as texting, "is one of the most deliverable forms of communication worldwide."4 Research shows that it has a delivery rate of 99.9% and 90% of the text messages are opened within three minutes of receipt.5 SMS is covered by Article 164 of the QSO and is admissible to prove a fact subject to the following three conditions: i) the fact sought to be proved is relevant, i.e. it must be "of consequence to the determination of the case"; ii) the text is not a hearsay; and iii) its authenticity is duly established at the trial. In Commonwealth v. Duncan Purdy, 459 Mass. 442, it was held that even if the defendant's name is on the text message there may be situations in which it may be necessary for a party to prove some "confirming circumstances" that demonstrate authorship.

15. In the instant case, the prosecution produced oral as well as documentary evidence to prove the charge against the Appellants. Complainant Muhammad Hussain (PW-4) testified that on 18.7.2013 at about 10:15 p.m. he was offering prayers at Talaab-Wali Mosque when he received blasphemous text messages from Cell No.0303-9445368. On 20.7.2013 he went to the office of Sajjad Asghar Khokhar, Advocate (PW-3), to initiate legal proceedings against the culprit. He was still there when he received five more SMS from the aforesaid number containing the same sacrilegious content. He showed them to Sajjad Asghar who called the sender from his own Cell No.0300-6550125 to know who he was but he dismissed the call. However, a few moments later that person forwarded the above-mentioned SMS to Sajjad Asghar as well four times. Muhammad Hussain's cell phone was exhibited as P-1 and SIM as P-3. The prosecution examined Sajjad Asghar (PW-3) who confirmed the happening of the 20th July and got his handset exhibited as P-2. Muhammad Shabbir (PW-5) came for corroboration of those witnesses. He deposed that on 18.7.2013 he was in the mosque with Muhammad Hussain and on 20.7.2013 accompanied him to Sajjad Asghar's office and added that he read the derogatory text messages received by them. Abdul Qadir (PW-6) was a vendor of mobile phones and accessories in Gojra. Device P-1 was non-smart phone so PW Muhammad Hussain took it to him with the SIM. He photographed the SMS and e-mailed it to Samiullah Khan (PW-7) who helped with the print-out Exh.PJ/2. On 21.7.2013 the Investigating Officer, Nasir Sial/SP (PW-11), sent the cell phones P-1 and P-2 to Uns Rasheed/ASI (PW-1), Incharge, District Commandant Control Room, DPO Office, Toba Tek Singh, who took the print-outs (Exh. PA and PB) of the said text messages. This evidence shows that Muhammad Hussain and Sajjad Asghar received irreverent SMS from Cell No.0303-9445368 but the Appellants can be convicted only if the prosecution establishes that the handset P-4 belonged to them or was in their use and they authored and sent the texts. As we shall discuss below, it has miserably failed on all the counts.

16. Pakistan Telecommunication Authority (PTA) has issued Standard Operating Procedure (SOP) for sharing of information by the companies providing mobile network and internet service (the "Mobile Companies") with the law enforcement agencies. Under the SOP in force in July 2013 the police could seek Call Data Record (CDR) of a cellular subscriber via the Intelligence Bureau, Government of Pakistan. On 20.7.2013, the District Police Officer, Toba Tek Singh, addressed Letter No.169/Mob/G-A (Exh. PB) to the competent authority for provision of CDRs of Cell Nos.0300-6553526 and 0300-6550125 (two numbers). However, neither the reply of the Intelligence Bureau nor Mobilink by way of letter or e-mail has been adduced in evidence to establish that the requisite data was furnished to the DPO's Office. Record shows that in a separate communication, vide Letter No.510/PA (MD) dated 21.7.2013 (Exh. PW), Muhammad Nasir Sial/SP (PW-11) requested the DPO to approach the Intelligence Bureau for the CDRs of the three cell numbers involved in the case, i.e. 0303-9445368, 0300-6553526 and 0300-6550125. It appears that the DPO did not take any action on it in view of his aforementioned correspondence. In the circumstances, an important link to establish the authenticity of the data Exh. PE/1-2, Exh. PG/1-3 and Exh. PH/1-5 which Uns Rasheed/ASI retrieved on 21.7.2013 is missing.

17. One may think that the above objection is technical but it is not. In his letter Exh.PB the DPO requested for the CDR of only two numbers mentioned in the preceding paragraph which belonged to PWs Muhammad Hussain and Sajjad Asghar on which they received the derogatory SMS. It did not include Cell No.0303-9445368 (attributed to the Appellants) from which they were sent. As already noted, according to the SOP in force in July 2013, the police did not have direct access to the data of cellular subscribers. Hence, it was incumbent on the prosecution to prove that they made a request to the service provider through the prescribed channel and it furnished them the requisite data by the same conduit. In our opinion, Exh. PE/1-2, Exh. PG/1-3 and Exh. PH/1-5 cannot be used against the Appellants.

18. Rashid Mehmood (PW-9) is one of the most important witnesses because through him the prosecution seeks to prove that SIM No.0303-9445368 belonged to the Appellants. He testified that he was working as Customer Care Representative at Mobilink. On 15.12.2012 the Appellants came to him and purchased the aforementioned SIM in consideration of Rs.100/- and he issued them a receipt. He further stated that Shafqat made the payment while the SIM was issued in the name of Shagufta. He produced the Receipt Book which was exhibited as P-8. The carbon copy of the receipt pertaining to SIM No.0303-9445368 was at Serial No.78 in that book and marked as P-8/1. Before analyzing the deposition of PW Rashid Mehmood we need to refer to the regulatory regime that governed the Mobile Companies in those days.

19. PTA issued revised SOP for the Mobile Companies vide Letter No.15-9/2012/Enf/PTA dated 13.3.2012. Some of the instructions that are relevant for this case are mentioned below: i) The sale outlets of the Mobile Companies were divided into three categories: (a) company's own Customer Sales/ Services Centres (CSCs), (b) Franchises, and (c) Registered Retailers. ii) Every sale channel (CSC, Franchise or Registered Retailer) had a Unique ID. Non-active pre-paid SIMs (including but not limited to stalls, stalls under umbrellas, footpaths, make-shift shops etc.) could be sold only through the holder of "Unique ID". iii) Retail Shops were further classified as under: a) Dedicated business of SIM sale; b) Involved in other business related telecommunication only, e.g. sale/purchase of telecom equipment/accessories, re-load, pre-paid cards etc.; c) Any other premises having Unique ID. iv) The Mobile Companies were required to sign fresh agreements with their franchisees and the latter with the retailers within a stipulated period and confirm the same to PTA. v) The Mobile Companies were required to issue registration letters/authorization certificates to the franchisees and retailers and they were obligated to display them at a suitable place in their premises. vi) Mobile Companies were required to maintain record of SIMs/connections sold by franchisees/retailers for tracking and share them with PTA on quarterly basis. vii) The Mobile Companies were required to establish a Call Centre to handle verification and activation process. viii) The Mobile Companies were required to establish a system for maintaining Cellular Service Agreement Form in electronic format (e-CSAF) enabling automation of pre-sale and post-sale process through cross verification of subscribers' antecedents from NADRA's Database. ix) The sale outlets could only sell inactive connections/SIMs. The Mobile Companies' own CSCs and Call Centres had the sole authority to verify and activate them. x) Post-paid/Data SIMs could only be purchased from CSCs and franchises. The retailers were not authorized.

20. Rashid Mehmood (PW-9) claimed that he was the Customer Care Representative of Mobilink Franchise but neither he produced its Registration Letter/Authorization Certificate nor his own appointment letter. Apart from that we have noted the following issues with his deposition owing to which he cannot be relied upon: i) In his examination-in-chief Rashid Mehmood stated that on 15.12.2012 Shafqat came to him with his spouse Shagufta to purchase a SIM. However, in his cross-examination he said that Shagufta came into the outlet while Shafqat remained outside. ii) The receipt P-8/1 is in the name of Shafqat and bears his CNIC. It was dishonestly on Rashid Mehmood's part to draw it that way if he had not come to the counter. iii) The Receipt Book P-8 is itself dubious. During the hearing of this appeal we de-sealed and examined it in open court. We noted that it is of ordinary pattern and can be easily fabricated. There is no explanation why it is not on the franchise's official stationery.6 We have also found that it is in one hand and appears to have been prepared in one sitting. iv) Ordinarily receipt books have 100 leaves which are serially numbered by machine. The Receipt Book P-8 has 94 leaves and are not so numbered. Receipt P-8/1 is also numbered by hand.

21. We are chagrined that this case was investigated by an officer of the rank of Superintendent of Police but he did not make any effort to cross-check the information furnished to him by Rashid Mehmood. The purpose of referring to the SOP issued by PTA in paragraph 19 of this judgment was to show that Mobilink had a comprehensive back-up system which he could have utilized in his investigation.

22. The prosecution claims that Nokia 1208 phone (P-4) was used by the Appellants for sending the blasphemous texts and the said device along with the jacket of SIM No.0303-9445368 (P-5) and the purchase receipt (P-6) were recovered from them. As regards the SIM, it is alleged that the Appellants destroyed it but there is no evidence to that effect. Recovery of the handset is indeed important but it must be corroborated by some independent evidence before it is relied upon. In the instant case, it was particularly necessary because the SIM was not recovered. The IMEI number7 of a phone contains secret information about the product and can also help in ascertaining the location of the user and tracking him down. The Investigating Officer did not probe the matter on the basis of the IMEI number of phone P-4.

23. The fact that we do not find ourselves comfortable with phone P-4 also renders the alleged recovery of the SIM jacket P-5 and the purchase receipt P-6 inconsequential. However, we have an additional reason to reject this evidence. People in our society generally do not preserve such things and in shantytowns the practice is almost non-existent. It is queer that the Appellants had them more than seven months after they allegedly purchased SIM No.0303-9445368.

24. In order to bring home guilt to the Appellants the prosecution was also required to establish that they authored the profane texts. It has failed on this score as well. Nasir Sial/SP (PW-11) categorically admitted in his cross-examination that nobody had seen the Appellants sending the SMS. He deposed: "I have not found any such person who had seen the accused while sending the SMS. Volunteered that I have only collected electronic evidence and confession of the accused."

25. The text of the sacrilegious messages was in Roman English. It has come in evidence that the Appellants are semi-literate having studied only upto the seventh or eighth grade. Keeping in view the standard of education in the backward area of Chak No.365, Gojra, it is doubtful that they could compose it.

26. There is one more point that has intrigued us. Exh.PE shows that during the period SIM No.0303-9445368 was active, thirty-eight (38) SMS were sent from it to different numbers out of which 23 were text to 0334-6400737. There is no complaint from any recipient except PWs Muhammad Hussain and Sajjad Asghar. The Investigating Officer was obligated to interview those people, particularly the user of SIM No. 0334-6400737, but he did not.

27. Next we take up the confession of the Appellants made to Nasir Sial/SP (PW-11) and the judicial confession of Shafqat before Sajid Mehmood, Judicial Magistrate (PW-10).

28. The word "confession" has not been defined in the QSO. In Article 21 of his Digest of the Law of Evidence Justice Stephen stated that "a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime." However, the Privy Council did not accept this definition for the purposes of the Evidence Act, 1872, in India. Considering the matter in Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) Lord Atkin observed: "A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. Some confusion appears to have been caused by the definition of 'confession' in Article 22 of Stephen's 'Digest of the Law of Evidence' which defines a confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles, confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872 and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused 'suggesting the inference that he committed' the crime."

29. The Hon'ble Supreme Court of Pakistan approvingly cited Pakala Narayana Swami's case in Raza v. The State8 and further observed: "There is a distinction between admissions and confessions. It would appear that confessions are a species of which admission is the genus. All admissions are not confessions, but all confessions are admissions. If the statement by itself is sufficient to prove the guilt of the maker, it is a confession. If, on the other hand, the statement falls short of it, it amounts to an admission. No statement, which contains self-exculpatory matter, can amount to a confession, if the exculpatory statement is of some fact which, if true, would negate the guilt. A confession is thus an admission by an accused in a criminal case and if he does not incriminate himself, the statement cannot be said to be a confession."

30. The substantive law of confession is contained in Articles 37 to 43 of the QSO. The object of law is to ensure that a confession should be free and voluntary. It should proceed "from remorse and a desire to make reparation for the crime."9 Article 37 of the QSO stipulates that a confession made by an accused is irrelevant if it is caused by any inducement, threat or promise proceeding from a person in authority. However, Article 41 provides that it would become relevant if that inducement, threat or promise is removed. Article 38 interdicts confessions made to a police officer. Article 39 ordains that no confession made by a person while he is in the custody of police, unless it is made in the immediate presence of a Magistrate, shall be proved against him. Article 40 says that so much of such information that distinctly leads to the discovery of a fact alone is admissible in evidence. It is an exception to Articles 38 and 39 of QSO. Commenting on section 26 of the Indian Evidence Act, 1872, which is pari materia with Article 39 of QSO, Woodroffe and Amir Ali write:10 "Under the Indian Evidence Act the Miranda11 exclusionary rule that custodial interrogations are inherently coercive, finds expression in section 26, although the Indian provision confines it to confession, which is a narrower concept than self-incrimination. Section 26 makes a provision for a confession by accused while in custody of police to be inadmissible, unless it is made in the immediate presence of a magistrate."

31. Nasir Sial/SP (PW-11) testified that the Appellants confessed their guilt before him. According to him, Shafqat also stated that he cherished to migrate to Europe with his family and the blasphemous SMS was a means to achieve that goal. He had 5/6 SIMs but obtained the "mischievous" one in the name of Shagufta "with her connivance." The alleged confession is hit by Article 38 of QSO. Accordingly, we hold that it is inadmissible and respectfully adopt the following observations of Shah, J. in State of Uttar Pradesh v. Deoman Upadhyaya (AIR 1960 SC 1125): "Sections 25 and 26 [of the Indian Evidence Act, 1872]12 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. It is manifest that the class of persons who needed protection most were those in the custody of the police and persons not in the custody of police did not need the same degree of protection."

32. The law regarding judicial confessions is set out in section 164 Cr.P.C. read with section 364, Cr.P.C. and Chapter 13 of Volume III of the Lahore High Court Rules and Orders which may be summarized as follows: (a) Section 164, Cr.P.C. deals with the recording of statements and confessions at any stage before the commencement of an inquiry or trial. Section 342, Cr.P.C. deals with the examination of accused persons during the course of an inquiry or trial. Section 364, Cr.P.C. prescribes the manner in which the examination of an accused person is to be recorded. (b) Statements or confessions made in the course of an investigation can be recorded only by a Magistrate of the First Class or a Magistrate of a Second Class who has been specially empowered by the Provincial Government. However, it is not necessary that the Magistrate recording the confession should be the Magistrate having jurisdiction in the case. (c) The confession must be recorded and signed in the manner provided in section 364, Cr.P.C. (d) Police officers investigating the case should not be present at the time when the Magistrate records the confessional statement. (e) Before recording any confession the Magistrate should explain to the person making it that he is not bound to make the confession and that if he does so it may be used as evidence against him. (f) A Magistrate should not record any such confession unless upon questioning the accused person he is satisfied that he is making it voluntarily. For this purpose he should put him the questions stipulated in Rule 5 of Chapter 13 of Volume III of the Lahore High Court Rules and Orders and record his answers thereto. If the answers are ambiguous he may put him such further questions as may be necessary. In order to determine whether the confession is voluntary the Magistrate should consider inter alia the period during which the accused person has been in police custody. He should also ensure that the confession is not the result of any undue influence or ill-treatment. (g) In order to further ensure that a confession under section 164 Cr.P.C. is made voluntarily, before he proceeds to record the confession the Magistrate should allow the accused person some time to ponder and during that period he should be kept out of the hearing of police officers and other persons likely to influence him. (h) The memorandum set forth in section 164(3), Cr.P.C. must be appended at the foot of the record of the confession. (i) The confession should be recorded in open court and during court hours unless there are exceptional reasons.

33. Rule 3 of Chapter 13 Volume III of the High Court Rules and Orders talks of the presumption attached to the confession recorded by the Magistrate and its evidentiary value. It stipulates: (i) Under Article 91 of the Qanun-e-Shahadat Order, 1984, a court is bound to presume that a statement or confession of an accused person, taken in accordance with law and purporting to be signed by any Judge or Magistrate, is genuine, and that the certificate or note as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such statement or confession was duly taken. The words "taken in accordance with law" occurring in this section are very important and it is essential that in recording a statement or confession under Section 164, Cr.P.C., the provisions of that section are strictly followed. The evidentiary value of a confession depends upon its voluntary character and the precision with which it is reproduced. (ii) The mere fact that a confession is retracted does not render it inadmissible in evidence but the court has to scrutinize any such confession with the utmost care and accept it with the greatest caution. Experience and common sense in fact shows that in the absence of some material corroboration it is not safe to convict merely on a retracted confession unless from the peculiar circumstances under which it was made and judging from the reasons alleged or apparent of retraction there remains a high degree of certainty that the confession notwithstanding its having been resiled from is genuine.

34. In Nazir Ahmad v. King Emperor (AIR 1936 PC 253) the Privy Council held that the provisions of section 164, Cr.P.C. are mandatory and non-compliance renders the confession inadmissible. Lord Roche said: "The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden [A]lthough the Magistrate acting under this group of sections is not acting as a court, yet he is a judicial officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to section 164 On the matter of construction of sections 164 and 364 must be looked at and construed together, and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves."

35. In criminal cases there is a great responsibility on the courts to determine whether a confession is voluntary and true. To this end they must take into consideration the "totality of circumstances" and find out what prompted the accused to make it. In State of Rajasthan v. Raja Ram (AIR 2003 SC 3601) the Supreme Court of India held: "It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person, or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." The Court further said: "Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of section 24 [of the Indian Evidence Act].13 The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. [See R. v. Warwickshall: (1783) Lesch 263)] An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of the harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary."

36. Similarly, in Muhammad Ali and others v. The State (2002 PCr.LJ 1631) the Sindh High Court held: "In order to determine whether confession is voluntary or not, attending circumstances must be subjected to very close, minute and rigid scrutiny. Voluntariness and truthfulness of confession is to be evaluated on the following considerations: (i) the character and duration of custody; (ii) whether the confessor was placed in a position to seek advice of his relatives or his lawyers; (iii) the nature and quantum of proof which was available against the confessor before he confessed; and (iv) whether the confession was consistent with evidence which was available at the time when confession was made."

37. The burden of proving that the confessional statement is voluntary is on the prosecution. In R. v. Thompson, 1893 2 QB 12 : 9 TLR 435, Cave, J. said: "I prefer to put my judgment on the ground that it is the duty of the prosecution to prove, in case of doubt, that the prisoner's statement was free and voluntary, and that they did not discharge themselves of this obligation."

38. Sarkar Law of Evidence14 writes: "Therefore a confession duly recorded being prima facie relevant, the question of excluding it as irrelevant or of the onus of proving its voluntary nature does not seem to arise so long as there is no doubt in the mind of the court, or the confession is not objected to or assailed by evidence or circumstances indicating that it was obtained by inducement, threat, torture and c., and no one other than the accused is in position to know better the existence of such facts. Whenever any sort of doubt creeps into the mind of the court or when the question of voluntariness is raised by the accused, the better and sounder opinion certainly is that it is for the prosecution to show affirmatively to the complete satisfaction of the court the voluntary nature of the confession as laid down in English cases noted above. The burden of proving beyond reasonable doubt that a confession is voluntary lies upon the prosecution [Desa Bin Hashim v. Public Prosecutor, (1995) 3 Malayan LJ 350 (Kuala Lumpur FC)]." It further states:15 "In Hem Raj Devilal v. The State of Ajmer, (1954 SCR 1133 : AIR 1954 SC 462), the Supreme Court [of India] observed that 'the principle laid down in that case (R. v. Thompson) is well-settled'. R. v. Thompson, being approved by the Supreme Court the position is that ordinarily a confession duly taken in accordance with law would be relevant; but in case of any doubt or when challenged, it is for the prosecution to show affirmatively to the satisfaction of the court that the confession was voluntary. If there is the slightest doubt or suspicion about its voluntary nature, the scale will be turned in favour of the accused ante: 'Appears to have been caused' and the burden is on the prosecution to show that it was voluntarily made. It has been held that the burden of proving voluntariness of confession is on prosecution. There is no onus on accused, Krishna Nandan Prasad Verma v. The State (AIR 1958 Patna 166); see Bala Majhi v. The State of Orissa, (AIR 1951 Orissa 168, 170 FB)."

39. The mere fact that the accused subsequently retracts the confession does not mean that it was not voluntary.16

40. Shafqat Masih's confessional statement Exh. PR traduces the law discussed above in more than one way. Judicial Magistrate Sajid Mehmood (PW-10) testified that the police produced Shafqat before him on 21-07-2013 at about 6:00/6:30 p.m. which was obviously after the court hours. As already stated, the Lahore High Court Rules and Orders mandate that the Magistrate must record confessional statements in open court and during court hours unless there are compelling reasons. In Wajid Hussain and others v. The State and others (2020 PCr.LJ 543) a Division Bench of this Court held that proceedings after court hours are look down with suspicion and give an impression that there was an apprehension that the accused might have second thoughts about making a confession if the matter was adjourned to the next day. Therefore, the Magistrates must record reasons for deviating from the normal course. Similar view was expressed in Abdul alias Abdul Karim and another v. The State (1975 PCr.LJ 1077) and Muhammad Chuttal v. The State (1991 MLD 392). Admittedly, in the instant case, the Judicial Magistrate has not given any reason for holding proceedings after the court hours which impinges upon the credibility and voluntariness of Shafqat's confession.

41. Our Constitution guarantees legal aid to an arrested person as his fundamental right. Article 10(1) ordains that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall be denied the right to consult and be defended by a legal practitioner of his choice. This is reinforced by Article 10A which declares right of fair trial itself a fundamental right. In Shahsawar v. The State (1998 PCr.LJ 1758), a Division Bench of this Court held that the said right can also be read into Articles 4 and 9 of the Constitution. In Wajid Hussain and others v. The State and others, supra, it was held that when a confessional statement is recorded after court hours the accused may not be able to engage an advocate and seek legal advice which may prejudice him. In our opinion, it also violates his fundamental rights.

42. There is nothing on the file to show that before recording Shafqat's confession the Judicial Magistrate, Sajid Mehmood (PW-10), asked him whether he would like to consult an advocate. The presumption would be that he did not make such inquiry and violated his fundamental right. In the circumstances, the confessional statement Exh. PR is vitiated.

43. Sajid Mehmood (PW-10) deposed that he gave 15/20 minutes to Shafqat to reconsider his decision to make a confession when the police produced him. He added that no police official was present in the court during that period. However, Exh. PR negates him. It evinces that Shafqat remained in custody throughout the proceedings and even his handcuffs were not removed. The S.P. and D.S.P. were also with him in the courtroom and they signed in the margin of the paper (Exh. PR) when the Magistrate put questions to verify whether he was making statement voluntarily and again when the proceedings concluded. This also makes Shafqat's judicial confession inadmissible.

44. We have noticed that Shafqat's judicial confession was recorded in English and not in his native language. As already discussed, he was semi-literate and could not understand English. Sajid Mehmood (PW-10) neither mentioned in his certificate at the foot of Exh. PR nor in his deposition before the trial court that after writing it he explained to him in his native language. This defect is incurable. Reliance is Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274); Hashim Qasim and another v. The State (2017 SCMR 986) and Allah Warrayo v. Mst. Ladan and 3 others (2020 MLD 334).

45. Apart from the above failings, there is another reason for us to have misgivings about the voluntariness of Shafqat's confession. In cases like the one before us people get quickly charged and the environment is filled with tension. During his cross-examination Muhammad Nasir Sial/SP (PW-11) admitted that when he reached Police Station City, Gojra, there was a crowd of villagers and police officials. Many people also gathered during investigation and raid at the Appellants' house. The Appellants were vulnerable and must have felt threatened in this situation. In Shankaria v. State of Rajasthan (AIR 1978 SC 1248) the Supreme Court of India held that a double test must be applied before a confessional statement is received in evidence. The court should determine whether it is voluntary and, if so, whether it is true and trustworthy. If the first condition is not satisfied, it must be rejected. In such case the question of applying the second test does not arise.

46. In view of the fact that we have discarded Shafqat's judicial confession Exh. PR, there is no need to consider the question whether it can be used against Shagufta.

47. Did the Appellants have a motive to commit the offence? The prosecution claims that it was a stratagem to get visa to Europe. However, there is not a whit of evidence to substantiate that contention except Shafqat's statement before the Investigating Officer, Nasir Sial/SP (PW-11), which we have already held is inadmissible. It is pertinent to point out that there is nothing on the record to suggest that the Appellants ever applied for a European Visa which was refused. Even otherwise, it does not appeal to reason that a person would not only put his own life and liberty at risk but his entire community for it. Remember, when the alleged incident took place the memories of the 2009 happenings were still fresh in which 77 houses were burnt and at least seven people were killed when a mob attacked the neighbourhood on a rumour that a copy of the Holy Quran had been desecrated. It is by now well settled that the prosecution is not required to establish the motive in every case but if one alleged it must be proved and the courts may draw an adverse inference if it fails. Reliance is placed on Hakim Ali and 4 others v. The State and another (1971 SCMR 432), Aminullah v. The State (PLD 1976 SC 629), Noor Muhammad v. The State and another (2010 SCMR 97), Amin Ali and another v. The State (2011 SCMR 323) and Muhammad Ali v. The State (2017 SCMR 1468).

48. The contention of the learned Deputy Prosecutor General that the prosecution witnesses must be believed because they had no enmity with the Appellants deserves a short shrift. Courts administer justice on the basis of intrinsic worth of the evidence. The testimony of a person, who is seemingly uninterested and has no animosity with the accused, may be rejected if it is corrupt while an interested witness may be relied upon if he is corroborated by independent evidence. Reliance is placed on Waqar Zaheer v. The State (PLD 1991 SC 447) and Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274).

49. It is a cardinal principle of criminal law that the burden of proof is on the prosecution and it is obligated to prove the charge against the accused beyond reasonable doubt. In Lilienthal's Tobacco v. United States, 97 U.S. 237, 266 (1877), the US Supreme Court held that "in criminal cases the true rule is that the burden of proof never shifts." In Davis v. United States, 160 U.S. 469, 487, 10 S.Ct. 353, 40 L.Ed. 499 (1895) it ruled: "Strictly speaking the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime."

50. In Woolmington v. The Director of Public Prosecutions, [1935] AC 462, the House of Lords held: "Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."17

51. Similarly, in The State v. Muhammad Shafique alias Pappo and another (PLD 2004 SC 39) the Supreme Court of Pakistan held that seriousness of charge cannot absolve the prosecution of its duty to prove its case. Again, in Mst. Asia Bibi v. The State and others (PLD 2019 SC 64) it ruled: "[T]he onus rests on the prosecution to prove guilt of the accused beyond reasonable doubt throughout the trial. Presumption of innocence remains throughout the case until such time the prosecution on the evidence satisfies the Court beyond reasonable doubt that the accused is guilty of the offence alleged against him. There cannot be a fair trial, which is itself the primary purpose of criminal jurisprudence, if the judges have not been able to clearly elucidate the rudimentary concept of standard of proof that prosecution must meet in order to obtain a conviction. Two concepts i.e., 'proof beyond reasonable doubt' and 'presumption of innocence' are so closely linked together that the same must be presented as one unit. If the presumption of innocence is a gold thread to criminal jurisprudence, then proof beyond reasonable doubt is silver, and these two threads are forever intertwined in the fabric of criminal justice system. As such, the expression 'proof beyond reasonable doubt' is of fundamental importance to the criminal justice: it is one of the principles which seeks to ensure that no innocent person is convicted. Where there is any doubt in the prosecution story, benefit should be given to the accused, which is quite consistent with the safe administration of criminal justice."

52. In the instant case, on reappraisal of evidence we have come to an ineluctable conclusion that the prosecution has failed to establish the charge against the Appellants. We are dismayed that the learned Additional Sessions Judge has decided the case in a slipshod manner. We allow this appeal and set aside the impugned judgment dated 4.4.2014. The Appellants are acquitted of the charge. They shall be released from the jail forthwith if not required to be detained in some other case.

53. CSR No.8/T/2017 is answered in negative and death sentence awarded to the Appellants is not confirmed.

54. We conclude this judgment reminding all and sundry of the following Hadith of our beloved Prophet Muhammad "Beware! Whoever is cruel and hard on a non-Muslim minority, or curtails their rights, or burdens them with more than they can bear, or takes anything from them against their free will; I (Prophet Muhammad) will complain against the person on the Day of Judgment." (Abu Dawud)18

55. The Registrar of this Court is directed to arrange Urdu translation of this judgment and upload it on the official website. KMZ/S-50/L Order accordingly.