P L D 2006 Karachi 613 (PLP)

SARMAD JALAL OSMANY, J.

This Criminal Miscellaneous Application impugns the order, dated 22-8-2003 whereby cognizance was taken of the direct Complaint No.278 of 2003 filed by the Respondent No.1 before the Learned IIIrd Additional Sessions Judge, Malir. The brief facts of the case as per the Direct Complaint are that the Applicants/Accused were making bed sheets in their factory with the names of Allah Almighty and the Holy Prophet (Peace be upon him) printed on the same. As such the Complainant/Respondent No.1 reported the matter to the Nazim-e-Ala, Karachi, on whose directions the Municipal Commissioner along, with staff visited the factory and took photographs of said bed sheets as well as samples. Thereafter, the Complainant lodged F.I.R. No.390 of 2001 under section 295-B and C P.P.C. against the Applicants. However, upon investigation by the police a report was filed under section 173, Cr.P.C. recommending that the case be disposed of as no offence had been committed, which was allowed by' the learned Vth Judicial Magistrate, Karachi East. Being aggrieved with such order, the Complainant filed C.P. No.344 of 2002 before this Court, which was also dismissed with the observations that the Complainant should file a direct complaint or resort to the provisions of section 561-A, Cr.P.C. Hence the direct Complaint which was entertained by the learned trial Court who upon recording the statement of the Complainant as well as his witnesses took cognizance and issued bailable warrants of arrest against the Applicant/Accused.

2. In support of the Application, learned counsel has firstly submitted that the Applicant/Accused is a manufacturer of bed sheets/towels and in pursuance of an order placed by his foreign principal in Japan, the bed sheets were printed, which had some alphabets of the Japanese language, which had been malafidely interpreted by the Complainant as containing the name of Allah Almighty and the Holy Prophet (peace be upon him). In this regard, he has also referred to the opinion (Fatwa) of Darul Iftah, Darul Uloom Karachi, according to which some of the words printed on the bed sheets in question perhaps can give rise to a doubt regarding the impression of the Holy Names, However, this is not certain. Hence, purchase and sale of the bed sheets was allowed by the learned Muftis but in future more care was advised in the printing of such bed sheets.

3. Next, per learned Counsel, the Applicant has also filed an affidavit before this Court to the effect that he had not intentionally printed the bed sheets in question and undertaken not to do the same again which may contain any insinuations to the Holy Names. Finally; per learned Counsel, there is a bar under section 196, Cr.P.C. of taking cognizance by a Court of Law of offences under section 295-A, P.P.C. without obtaining sanction from the Central or Provincial Governments. Hence, the private complaint in the present case would be barred under the law as no such permission has been taken.

4. In support of his submissions learned counsel has relied upon: Fazl-a-Raziq v. Riaz Ahmed (PLD 1978 Lah. 1082), Qaiser Raza v. The State (1979.PCr.LJ 758), Abdul Rasheed v. The State (2000 YLR 1306), Bashir Ahmed v. the State (2000 PCr.LJ 902), Muhammad Mahboob v. The State (PLD 2002 Lah. 587), Muhammad Sadique v. The State (2003 YLR 2114), Barat Ali v. The State (1997 MLD 1228) and Salim Masih v. The State (2003 YLR 2422).

5. For all the foregoing reasons learned Counsel -has submitted that based on the sole piece of evidence available with the Prosecution viz. the bed sheet in question the printing of which has not been denied by the Applicant, there is no possibility of his conviction as also for the reason that no permission had been sought by the Respondent under section 196, Cr.P.C. for filing the complaint. Hence, he has prayed that the direct complaint be quashed.

6. On the other hand, the Respondent No.1, who is present in person, has submitted that upon a bare perusal of the bed sheet in question (which was produced in Court) the Holy Names without doubt are printed upon it and hence there is enough evidence in this shape for the conviction of the Applicant/Accused in which event the direct complaint cannot be quashed.

7. Mr. Sardaruddin Qureshi, learned State Counsel, has supported the submission of the learned Counsel for the Applicant.

8. I have heard both learned Counsel as well as Respondent No.1 in person and also gone through the record. My conclusions are as under.

9. It would be seen that as per the provisions of section 196, Cr.P.C., inter alia, no Court can take cognizance of any offence punishable under section 295-A, P.P.C. without the complaint being made by order of or under the authority from the Central or the Provincial Government concerned or some officer empowered in this behalf by either of the two Governments. Admittedly, the direct complaint has been entertained both under sections 295-A and 295-C, P.P.C. vide the impugned order. Consequently, although the direct complaint cannot proceed under section 295-A, P.P.C. as no sanction has been obtained under section 196, Cr.P.C., however, there is no requirement under section 295-C for taking the necessary permission etc. Consequently, the direct complaint cannot be quashed on this ground alone.

10. Coming to the merits of the case, it would be seen that the only piece of evidence available with the Prosecution is the, bed sheet in question upon which allegedly the Holy Names have been printed. I have examined the same in Court and, in my opinion, it can hardly be said that it contains any impression of the Holy Names. Similarly, it would be seen that according to the "Fatwas" issued by the learned Muftis of Madrassah Darul Uloom Karachi, perhaps there can be doubt in the minds of the ordinary public regarding the impressions on the bed sheets as resembling the Holy Names, However, this could not be said with any certainty. So also the Applicant as well as Co-Accused have filed Affidavits in this Court to the effect that the figures and alphabets printed on the bed sheet do not have any resemblance at all to the Holy Names, however, if this has, in any manner, found to be objectionable they sincerely repent the same and that they have full faith in Almighty Allah and respect for the Holy Prophet (peace be upon him) and cannot dare to defile their sacred names in any manner whatsoever. It would also be seen that according to the Sunnah of the Holy Prophet (peace be upon him) where a person had repented after insulting him, he (The Holy Prophet, peace be upon him) had forgiven that person. Similarly, it is the accepted principle of Islamic Jurisprudence and in fact in all civilized countries that wherever there is a doubt the benefit should be given to the Accused because it is better to acquit ten guilty persons than to convict an innocent man. (Muhammad Mahboob v. The State (supra).

11. For all the foregoing reasons, I am of the opinion that there is no possibility of the conviction of the Applicant/Accused in the facts and circumstances of the case. Consequently, the prolonging of the trial would be an abuse of the process of the learned Trial Court. Hence, this Cr. Misc. Application is allowed and the proceedings under direct Complaint No.278 of 2003 filed by the Respondent No.1 before the learned IIIrd Addl. Sessions Judge, Malir, are quashed. H.B.T./M-87/L Proceeding quashed.