' DOST MUHAMMAD KHAN, J.--Sentenced to life term for crimes under sections 295-B/188, P.P.C., Abdul Ahad appellant, has impugned his conviction and sentence recorded vide judgment dated 26-8-2006 of the learned Additional Sessions Judge-V, Peshawar.
' Arguments heard and record perused.
2. Concisely, facts of the case are that Mir Hassan (P.W.7) made a written complaint to I.-G.P., N.- W.F.P. On 25-1-1999 to the effect that he was passing through "Qissa Khwani Bazar, Peshawar City" when he heard an Afghan refugee telling another that a booklet with him titled "Yaseen Maghribi" is a good book but the other replied that the book was containing unholy rather disparaging contents in addition to the original text of "Surah Yaseen" thus he shall refrain from reading the booklet. This brief discourse attracted attention of the complainant. He obtained the booklet from the distributor on road side which in his view, for containing additional words/verses was an act of desecration and distortion of the original text of "Surah Yaseen" (part of Holy Qur'an), therefore, the I.-G.P. Was requested to confiscate the said booklet and to give exemplary punishment to the guilty one.
3. The above complaint was sent to P.S. Kabli (C Division) where Bahadar Khan, SI of CIA Peshawar started inquiry u/s 156(3), Cr.P.C. During the course of inquiry, he recovered 70 booklets of "Yaseen Maghribi" and "Ayatul Kursi Maghribi" from "Noorani Kutab Khana" which were taken into possession vide memo Exh.PD, on 16-2-1999 some of the booklets were allegedly produced by the appellant to him as shown in another recovery memo Exh.PC on 17-2-1999.
4. The Inquiry Officer then obtained "Fatwa" from one Maulana Mufti Ghulam-ur-Rehman (not produced) and according to his opinion any addition or deletion in the text of Holy Qur'an would amount to distortion and desecration which is an act punishable under the law.
5. Not satisfied with the opinion of religious cleric, to clinch the matter, finally the Inquiry Officer got opinion of the prosecution branch and then the case was registered under section 295-B read with section 188, P.P.C. Vide F.I.R. No,132 in P.S. Kabli because by then the District Magistrate, Peshawar had issued an order under section 144, Cr.P.C. Prohibiting publication, printing such matters. On his arrest and after completion of investigations, charge-sheet was filed against the appellant in the trial Court. He denied the charge on 25-11-2000 thus, trial was held.
6. To prove its case, the prosecution examined 8 witnesses in all while one Maulana Mufti Najm-ur- Rehman was examined as a Court witness (CW-1).
7. The objectionable materials were produced in the court and were exhibited as Exh.PW7/2 to Ex.
PW7/18.
8. To proceed further, it is of worth to mention here that at bail stage the complainant Mir Hassan (P.W.7) appeared with an affidavit Exh.PW.7/19 and also recorded his statement on oath Exh.PW7/20 exonerating the appellant from the charge, however, while appearing at the trial as P.W.7, the complainant resiled from both the statements given on oath, giving unfounded explanation that he had given the same under the pressure of elders of the area. He was confronted with the fact that when he was before the Court of Magistrate, did he disclose the pressure exerted upon him, to which his reply was in the "No". He is the star witness for the prosecution as on his complaint the matter was initiated culminating into the registration of the case. Apparently he had come out for a noble cause but his subsequent vacillating and wavering conduct, jumping from one stance to another has reduced his credibility almost to naught.
9. The principle with regard to the evidence of such a witness is well-settled as he who makes statements mutually inconsistent is neither A reliable nor he is entitled to be listened to as credibility-wise the probative value of his testimony is drastically reduced. Reliance in this regard may also be placed on the view taken by the Hon'ble Lahore High Court in the case of The Crown v.
Sultan Mahmood and others (PLD 1953 Lahore 271). The complainant has not brought on record his religious qualification to prove the level of his knowledge with regard to the Islamic "Fiqa", anyhow he was not relied upon in this regard by the prosecution itself and for that end a "Fatwa" was obtained from one Maulana Mufti Ghulam-ur-Rehman, who was not produced at the trial although he was alive at the relevant time and was conveniently subject to the process of the trial court. In place of Maulana Mufti Ghulam-urRehman, one Mufti Najm-ur-Rehman was examined as C.W-1 who has claimed as "Naib Raees" of "Jamia Usmani Darul Uloom Nauthia, Peshawar City" who identified the signature on the "Fatwa" (verdict) to be that of Maulana Mufti Ghulam-ur-Rehman and other one written by him.
10. The said witness (C.W.1) in cross-examination has claimed that he has "Sanad from Wifaq-ul- Madaris" and was qualified in "Takhasul Fiqa" from Darul Uloom Akora Khattak, District Nowshera besides well versed with Qur'an, Hadith and Fiqa. He has expressed ignorance as to whether the original of the objectionable booklet or its photo copy thereof was shown to him by the police which are Exh.PW7/2 to 7/18. He further admitted that the same was brought by a constable however, most pertinent is his admission that it is correctly written by him in the "Fatwa" that if "Yaseen Maghribi" is used for seeking solace from grief, disease distress or to free oneself from evil magic as amulets then, the addition made in it do not fall under "Tehrief" (distortion). While concluding his statement in cross-examination, he squarely admitted that the contents of Ex.
PW7/2 to 7/18 on perusal clearly indicate that this booklet "Yaseen Maghribi" was meant for the purpose of amulets with supplication seeking blessings of "ALLAH" the Almighty. The status of this witness assumingly is that of expert on Islamic Law. His competency to give a valid opinion on the disputed and intricate question was never subjected to judicial test/scrutiny. No judicial care and caution was observed as his academic qualifications were neither checked nor verified from any source. The level of his knowledge about Islamic "Fiqa" (laws) thus has remained entirely a guess work. The most essential requirement of law is that an expert on particular subject whether Science, Art or Law including Muhammadan Law must be a master in the relevant field because of special study, training, experience and extensive research work carried out. The opinion of such an expert alone would be relevant and admissible. Additionally such religious scholar/expert has to be duly notified by the Government to provide legal sanction to his opinion. Unfortunately the Government has not appointed "Muftis" authorizing to issue "Fatwa" (verdict) on any religious matter/question to be referred to them. Leaving apart this important legal aspect, this witness at the trial has given indescriptive, inconclusive and variant rather inconsistent opinions on the issue which under no circumstances can be made safe or valid basis for conviction on capital charge.
The learned trial Court has acted blind foldedly while placing reliance on it.
11. On factual side, in no manner it has been established that "Noorani Kutab Khana Qissa Khwani Bazar Peshawar City" is run by the appellant as a proprietor.. To the contrary, the witnesses have conceded that the appellant is running a shop in Jangi Street, Peshawar while the above book shop is run by his father and uncle as joint venture. In this regard, the admission of the complainant in cross-examination is more explicit, giving rise to a big begging question as to who was the printer/publisher and distributor of the objectionable booklets. In any case, on the available evidence, the appellant in no manner could be tagged with the same as the prosecution has miserably failed to establish a direct nexus between the appellant and the objectionable booklets.
The investigations were choked in half way without taking it to ultimate and logical conclusion as the person responsible for authoring the text, printing and publishing the same has not been discovered. The evidence led at trial leave behind much to be debated upon. The same is of very little evidentiary value entirely insufficient to convict the appellant to suffer capitally.
12. On legal plan, our attention was drawn by the learned counsel for the appellant to the provision of section 295-B, P.P.C. And emphatically argued that "mens rea" is the essential and integral limb of the said provision and complete absence of it would not attract the charge. The appellant was thus prosecuted and punished in disregard of law. To properly understand, the provision of section 295-B, P.P.C. Is reproduced below"- S.295-B Defiling etc. Of copy of Holy Quraan".
' Who ever wilfully defiles, damages or desecrates a copy of the Holy Quraan or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.
13. The legal word "wilfully would, therefore, essentially connote that the act of defiling, damaging or desecrating the Holy Qur'an must be wilful. The 'term' wilful in law means an intentional and deliberate act. A default or negligence may amount to wilful act if the doer of the wrongful act when under the ordinary circumstances while committing the default or guilty of negligence knows that what he was doing and intended to do as a free agent was forbidden or injurious in view of the concept of penal law. The dictionary meaning of "wilful" means "wantonly, deliberate, intentional and consciously and not accidentally".
In the context of the provision of section 295-B, P.P.C. "wilfully" would, therefore, means that the act of defiling, damaging, desecrating or distorting the original text of the Holy Qur'an or part of it must be with intention to achieve a nefarious objective contemptuously and showing disrespect to the Holy Qur'n which he was forbidden by law not to do.
14. Precisely the act of wilfully, defiling, damaging and desecrating of Holy Qur'an or part of it, would constitute the offence committed intentionally, knowingly, purposely for achieving the detestable objectives while in the absence of such intention, the necessary "mens rea" would be absolutely lacking and in that eventuality the person accused for such an offence cannot be held guilty except in very rare and exceptional circumstances.
15. In Jurisprudence, "mens rea" means the intent or mental condition which must concur with the act done and the consequences achieved. The combination of these acts would tag the wrong doer with the mens rea. In criminal law, particularly under the Penal Code, no man can be tried or imprisoned for an act which is committed due to any delusion or misconception of mind, however, culpable and criminal it might be. In offences of negligence or negligent driving, it is not mandatory for the prosecution to prove "mens rea" (intention) of an accused while to the contrary in offences where mens rea is made an essential element to constitute the same then the prosecution have to establish the crime adducing evidence to prove all the elements constituting the crime i,e, mens rea etc. ' It is the rock bed and elementary principle of criminal justice that no one shall be construed into a crime unless his guilt is proved beyond reasonable doubt by the prosecution through reliable and legally admissible evidence.
16. In legal parlance, evidence means confirmation, attestation, authentication, corroboration, demonstration, proof, substantiation, validation and verification to make a disputed fact manifest or apparent enabling a Judge to act upon it for delivering a judicial verdict. In our system of justice, substantially, evidence is given by witnesses in the courts testifying to the disputed fact to establish it. Under the Law of Evidence, evidence is of various kinds which include (1) direct evidence (2) indirect evidence (3) corroboratory evidence and (4) circumstantial evidence. The level of expert evidence in criminal trials in this country is not at par with the countries equipped with advanced technology. These shortcomings create hurdles for Judges in administering justice in an effective and fair manner. The government shall strive to properly institutionalize the expert evidence by introducing the advanced technology to improvise the qualification of experts in acquiring 'high degree of skill in the relevant field which would be of great benefit for achieving the set goals in the system of justice.
17. In the instant case, we are confronted with the same problem. The above mentioned religious scholar has neither brought on record his qualification nor has told the Court about his competency in delivering the "Fatwa" against the accused.
18. With the anomaly we are facing the only course open for us is to read and understand the objectionable text of "Yaseen Maghribi" and "Ayatul Kursi". The author of the "Fatwa" Exh.PW8/2 did appear but was unable to quote anything from "Sharia" that any addition which is not derogatory in nature to the original text of a Surah and that too for the purpose of driving away evil forces like diseases or to seek solace in distress as our poor people do, would come within the mischief of desecration or distortion of Holy Qur'an or part of it. In the absence of any quotation to support his view, the opinion expressed by the witness in our view, is neither legally admissible nor relevant as it is an opinion of the witness who has not established his competency in relevant field thus, the same is of no legal efficacy. Moreso, the added text in the instant case has been written in Persian and the expert witness/religious scholar (C.W.1) in unequivocal words has admitted that he does not understand Persian language and was not in a position to explain that what did it means. On examination of the Persian text and other addition in Arabic refers to the great four angels of the Almighty Allah and different prayers cited by the well. Acknowledged Muslim scholars of high calibre. These additions do not carry any word which can be held a deliberated distortion of the text of the above two Surahs with intention to bring it into disrespect nor it changes its meaning and the message of Allah the Almighty.
19. It is a common practice that in our society, both poor and middle class are under formidable influence of the so-called magic performers and amulet makers. They are under the entire misconception and wrong notion that these people can give them relief by changing their luck through magic transformation and are able to drive away evil forces occupying their heads and minds. While seeking solace in distress, grief or decease, our poor people fall prey to such amulet makers and magicians who while preparing amulets ordinarily mix up and intermingle with Qur'anic verses other words in different languages and even through drawings not capable to be understood. None of them have been so far booked by the police on that account nor any objection has been raised to their activities. The case in hand cannot be distinguished as the booklet is like an amulet which the complainant and the person who has written the "Fatwa"
(verdict) have also described so while stating on oath in the trial Court to the effect that the same is ordinarily used for this purpose thus the appellant has been convicted at random and that took on a capital charge. The trial Court has committed glaring illegality in ignoring the evidence and the legal position emerging therefrom. It did not observe a little care and caution that whether the offence u/s 295-B PPC was constituted or not. Such a careless dispensation of justice would never be conducive to the system of criminal justice.
20. True that as a Muslims we have to defend, protect the original text of the Holy Qur'an and Sunnah from any type of desecration, distortion and to thwart all attempts in bringing changes in it by any quarter/person, however, we should not ignore the shocking fact that whenever a person is charged for such an offence, the print media give extensive coverage to such incident and the accused person is cursed and abused by the society/people-at-large. So much so that even his life becomes at risk at the hands of certain segments of the society who do not know or realize that the Almighty Allah in the Holy Qur'an has ordained that "Do justice even to those who are your worst enemy".
21. Under the law of the land and even under the Islamic Injunctions, it is for the Judge/Qazi alone to decide about the guilt or innocence of an accused person on the basis of evidence brought before him and no one can be allowed to fore judge and condemn any person accused of such an offence without facing proper and fair trial. The level of tolerance in a segment of our society, in such-like cases has come down to a very low grade. Accused persons thus facing charge of this nature go through very painful and hostile conditions and process of investigation as well.
' In view of such facts where an accused charged for such offences is portrayed as devil and in many cases the truth is shrouded while the person charged has to carry upon himself almost a sky load of allegations at the hands of illiterate people terming him "Kafir". As such cases always receive extraordinary publicity associated with public criticism of the accused person, therefore, in this background for securing firmly the ends of justice, the court has to examine the evidence furnished by the prosecution with extra degree of care and caution so that it might not be deliberately taken to a mistaken conclusion causing the miscarriage of justice. The Judge in no circumstances shall be carried swa y due to element of sensationalism and excessive publicity of a crime lest the detestable and shocking nature of crime might induce him to lose judicial temperament and approach and might indulge in dispassionate security of facts and law far from fair judicial scrutiny. This principle was firmly adopted by the august Supreme Court in the case of Syed Saeed Muhammad Shah and another v. The. State (1993 SCM R 550).
' Judged and seen from all angles legal and factual, in our view the evidence led by the prosecution is highly incredible and unreliable and absolutely insufficient to rest a belief on it for recording conviction on a capital charge. The conviction of the appellant and awarding him life term by the trial court has resulted into miscarriage of justice. The impugned judgment is wholly unsustainable in law, therefore, the same is set aside. This appeal is allowed, the appellant is acquitted of all the charges levelled against him and it is directed that he be set free forthwith if not required in any other case.
' These are the detail reasons for our short order of today.