' IJAZ AHMAD CHAUDHRY, J.- This judgment will dispose of Criminal Appeal No,426 of 2002 filed by Idrees Rabbani appellant against his conviction and sentenced along with Murder Reference No,393 of 2002 sent by the learned trial Court under section 374, Cr.P.C. For confirmation of death sentence as both these matters have arisen from the same judgment dated .30-5-2002 passed by the learned Additional Sessions Judge, Multan through which he has convicted the said appellant under section 295-C, P.P.C. And sentenced him to death with a fine of Rs,50,000 or in default of payment thereof to undergo S.I. For six months. He was also convicted under section 295-A, P.P.C.
Arid sentenced to 10 years rigorous imprisonment. Both the sentences were directed to run concurrently. The benefit of section 382-B, Cr.P.C. Was also extended to him.
2. The occurrence in the present case was alleged to have taken place on .19-11-2001 within the area of Katchi Abadi Al-Muslim Road Mauza Tarraf Ravi, 2 Kilometers away from Police Station Mumtazabad District Multan while Muhammad Anees Rohani, complainant (P.W.l) submitted application to Fayyaz Ahmad S.H.O./Inspector at Mumtazabad Market at 2-50 p.m. On 20-11-2001 on the basis of which formal F.I.R. (Exh.PA/1) was drafted by Muhammad Anwar A.S.-I. On the same day at 3-10 p.m.
3. The brief facts as narrated in the F.I.R. (Exh.PA/1) by Muhammad Anees Rohani (P.W.l) and others are that it had come to their knowledge that Idrees Rabbani (appellant) used to pass derogatory remarks orally as well as in writing and thus provocated the emotions of Muslims, who also committed contempt of the sacred personalities and propagated against the Islamic Teachings.
According to his teachings, the person who used to recite Kalma Tayyaba was Mushrik. He also called Waqia Miraj as Deu Mala Story and denied the status of Holy Prophet (p.b.u.h.) as being Khatam-ur-Mursalin,and proclaimed himself to be a Rasul of Allah.
' On this application the case was registered against the appellant.
4. After the registration of the case, Muhammad Nazir, S.-I. (P.W.7) visited the place of occurrence and prepared site-plan without scale Exh.PG and recorded the statements of six witnesses under section 161, Cr.P.C. The appellant was not available and thereafter he arrested the appellant on 21- 11-2001 and on his pointation, he recovered Pamphlet P.1, Pamphlet Photostat P.10, Pamphlet P.11, Proclamation P.2, Pamphlet P.12 and proclamation P.13 which he took into possession vide recovery memo. Exh.PF attested by Shahid Raza (P.W.5) and Muhammad Aamir Qureshi. He also prepared the site-plan of place of recovery Exh.PH. On the same day, he recorded the statements of the P.Ws.
Under section 161, Cr.P.C. On 22-11-2001 he produced the appellant in the Court for remand. He also recorded the statements of six P.Ws. In the police station on 22-11-2001. On the same day, he made an application/written request (Exh.PI) for recording the statement of the appellant under section 164, Cr.P.C. Which was produced before the learned Illaqa Magistrate on 23-11-2001. On 22-11-2001 he recorded the statements of three P.Ws. Namely Muhammad Hanif, Abdul Hameed and Muhammad Riaz. He prepared recovery memq. Exh.PC, Exh.PD and Exh.PB and recorded the statements of the P.Ws. Under section 161, Cr.P.C. On 11-2001 he produced the appellant before the learped Illaqa Magistrate for recording his statement under section 164, Cr.P.C. And for [obtaining specimen writing of the appellant. On 25-11-2001, on the pointation of the appellant, he recovered one stamp P.8 .And Pamphlet P.9, which were taken into possession vide recovery memo. Exh.PE, which was attested by Syed Asghar Ali Shah and Muhammad Yousaf P.Ws. He prepared the site- plan of the recovery Exh.PJ. On 26-11-2001 he produced the appellant before the learned Illaqa Magistrate for obtaining his specimen writing through application (Exh.PK). The learned Judicial Magistrate took the specimen writing Exh.PL and Exh.PM. He sent the writings Exh.PL and Exh.PM to the Forensic Science Laboratory for comparison with the handwriting of the appellant. The report of the Forensic Science Laboratory is Exh.PN according to which the writing bears identical characteristic. On 27-11-2001 he produced the appellant before the learned Judicial Magistrate for recording the confessional statement of the appellant. He found the appellant guilty and sent him in the Judicial Lock-up.
5. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. The copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellant, the charge was framed which was denied by him and he claimed to be tried. The prosecution in order to prove its case produced as many as 9 witnesses.
6. After the close of the prosecution evidence the statement of the appellant was recorded under, section 342, Cr.P.C. In which he denied the allegations and professed his innocence. However, to a question that "why this case against you and why the P.Ws. Have deposed against you"?: Idrees Rabbani appellant made the following reply which is reproduced as under:- "I believe in the Fiqah of Ahl-e- Hadis and the complainant party belongs to the Fiqah of Brailvi. Due to "{{URDU TEXT}}" the complainant party made false allegation against me and involved me in this case falsely. The complainant party planted against me fictitious documents P.l to P.12 with the connivance of police. The P.Ws. Being the members of Dawat-e-Islami, deposed against me on; the asking of the leader of said Jamat."
' The appellant did not opt to make statement under section 340(2), Cr.P.C. And also denied to produce any defence evidence.
' The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant, which is being assailed through the instant appeal.
8. The learned counsel for the appellant contends that the appellant has translated the Qur'an on the lines, already adopted by certain scholars in the books relied upon by him and had not injured the feelings of any Sect; that the complainant and other witnesses admittedly belonged to Ahla-e- Sunnat while the appellant was following Ahla-e-Hadees Sect and difference of thought about the teaching of Islam in between the followers of different Sects does not amount to attract the provisions of sections 295-A, and 295-C, P.P.C.; that the appellant was true Muslim, who believes in one Allah and that Muhammad (P.b.u.h) was the last Prophet of GOD; that the appellant never claimed him to be the status of the last prophet and he never made derogatory remarks against Muhammad (p.b.u.h) and against the teachings of Muhammad (P.b.u.h);- that the statement of the appellant under section 164, Cr.P.C. Had not been recorded while observing the procedure laid down in the High Court Rules and Orders and possibility of pressurizing the appellant to make such statement cannot be ruled out; that the appellant has also retracted from the alleged judicial confession made during the investigation of the case-and the same cannot.Be used against the appellant without being corroborated by other evidence, which is lacking in the present case; that mere report of the Forensic Science Laboratory is not.-sufficient to declare that the alleged documents had in fact been written by the appellant and no witness appeared who had seen the appellant while doing so; that the P.Ws. Were interested witnesses and their oral statement cannot be relied upon for maintaining the conviction in a case entailing capital sentence and that the F.I.R.
Was got lodged with the delay of one day after due deliberation and consultation and the story contained therein cannot be used as a gospel truth. Relies upon Ayub Masih v. The State (PLD 2002 SC 1048) in support of his contentions.
9. The learned Additional Prosecutor General on the other hand, opposes this appeal and supported the impugned judgment.
10. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution.
11. According to the witnesses, the appellant had been passing derogatory remarks about the teaching of Islam and thus provoked the Muslims who also insulted the pious personalities of Islam.
' The witnesses bad watched him and case was got registered on 20-11-2001 on the basis of literature the detail of which is not mentioned in the F.I.R. But the F.I.R. Was got recorded by Muhammad Anees Rohani complainant j(P.W.l) through the application Exhj.PA, which was signed by 14 other persons. So the F.I.R. Was got recorded with delay of one day after consultation of 15 persons. ' In Ayub's Masih's case (supra) the delay of about 10 hours was declared fatal to the prosecution version. The relevant portion is reproduced as under:- ' "The unexplained delay in lodging the F.I.R. Coupled with the presence of the elders of the area at the time of recording of F.I.R. Leads to | inescapable conclusion that the F.I.R. Was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot j be excluded altogether. Unexplained inordinate delay in lodging the F.I.R. Is an intriguing circumstance which tarnishes the authenticity of the F.I.R., casts a cloud bf doubt on the entire prosecution evidence. It is true that unexplained delay in lodging the F.I.R. Is not fatal by itself and is immaterial when the prosecution evidence] is strong enough to sustain conviction but it becomes significant where the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."
' As such the prosecution evidence has to be seen with utmost care and caution.
12. During the trial the prosecution produced P.W.l Muhammad Anees Rohani, P.W.2 Muhammad Saleem Qadri, P.W.3 Muhammad Riaz, P.W.4 Asghar Ali Shah and P.W.5 Shahid Raza to prove the allegation against the appellant. P.W.l Muhammad Anees Rohani stated that the appellant gave him certain Pamphlets Exhs.P. 1, P.2, P.3, P.4 and P.5 and he had given different versions about the teaching of Islam in these Pamphlets which were taken into possession. P.W.2 Muhammad Saleem Qadri has also made similar type of statement that the appellant had issued Pamphlets containing derogatory remarks against Islam and Holy Prophet (P.b.u.h) and P.W.l had gone to the appellant along with him and he gave photocopy of the Pamphlets. P.W.l Muhammad Anees Rohani was a Khateeb in Naqshbandi Jamia Masjid Bilal Nagar and he claimed that the said Pamphlets had been handed over - by Idrees Rabbani appellant on 19-11-2001 which were in the hand writing of the appellant and simultaneously, he stated that he was already having in his possession the said documents, but the appellant did not hand over him said Pamphlets on 19-11- 2001. So P.W.l made contradictory statement, who also claimed that hand written Pamphlets given by the appellant to him were still in his possession and the Pamphlets he had handed over to the police at the time of registration of the case were not handed over to him by the appellant.
Similarly P.W.2 Muhammad Saleem Qadri during the cross-examination admitted that he was employee of "Dawat-e-Islami" and also a worker, according to him for the first time he came to know about the belief and of the appellant in the year 1998, who had been arrested and then forgiven as he repented before the Councillor but the appellant continued preaching his beliefs in door. The story narrated by him that on 19-11-2001 certain Pamphlets had been handed over by the appellant to P.W.l Muhammad Anees Rohani stood falsified through the statement of P.W.l that these Pamphlets were already in his possession. P.W.3 Muhammad Riaz also stated that the appellant had been preaching against the teachings of Islam, who was distributing hand written literature and they asked him to stop and he read the literature. P.W.3 stated that the appellant did not deliver any Pamphlet to any person before him but he had been expressing his ideas got published in the Pamphlets. P.W.4 Asghar Ali Shah was the witness of recovery of Pamphlets on the pointation of the appellant but he did not support the prosecution version. However, during the cross-examination he admitted that Sufi Abdul Hameed and Muhammad Hanif while going to Police Station were holding P.6 and P.7 but they did not deliver the copies of P.6 and P.7 to the I.O.
On 19-11-2001 but these were delivered to the I.O. On 22-11-2001. It was also stated by him that number of persons had gone to the police station on 20-11-2001 against the appellant. P.W.5 Shahid Raza is also the witness of recovery of Pamphlets but the said Pamphlets were taken from the house of the appellant, but it was not mentioned that the appellant had got recovered the said Pamphlets. P.W.6 Abdul Hameed was also the recovery witness, but he did not state that the said Pamphlets had been taken into possession from the appellant. P.W.7 Muhammad Nazir S.-I. Was the Investigating Officer, while Mian Ghulam Hussain Additional District and Sessions Judge, Multan appeared as P.W.8, who had taken the specimens of handwritings of the appellant and also recorded his statement under section 164, Cr.P.C. P.W.9 Muhammad Yousaf was also the recovery witness.
13. After the close of the prosecution evidence when examined under section 342, Cr.P.C. The appellant denied the allegations and stated that the literature P.1 to P.5 did not belong to him. He denied that there were three prayers and categorically stated that he believed in five times prayers. He further denied that he ever stated that "Namaz-e-Janaza" was not allowed but he believed in Namaz-e-Janaza. He also denied that he had ever claimed that "Kaffan" was not allowed to dead body or that the Mosques were house of "Shatan", but he believed that the mosques were for the worship of Allah. According to the complainant he never claimed that slaughtering of animals was killing of animals, but he believed that Qurbani at Eid-ul-Azha was the part of Islam. The appellant denied the version attributed to him that the people who recited Kalma Tayyaba were non-Muslim but he believed in Allah and also Holy Prophet (p.b.u.h) as the last Prophet of God. He also recited full Kalma Tayyaba {{ARABIC TEXT}}. The appellant denied the allegation that he was claiming that Miraj was story of Bull and Cock, but he fully believed upon Waqia Miraj. The appellant further denied that he ever claimed himself to be Rasul of "God", but he believed that Hazrat Muhammad (p.b.u.h) was last Rasul and Nabi of "God" and he was Ummatti of Holy Prophet (p.b.u.h). As regard the statement recorded under section 164, Cr.P.C. The appellant denied to have made the same and disowned the said statement. It is clear that the appellant has not admitted the allegations.
14. ' The prosecution has not been able to prove that the Pamphlets had been written by the appellant through cogent and sufficient evidence as no person appeared, who had ever seen the appellant while writing the said Pamphlets. The witnesses who appeared against the appellant admittedly belong to different Sect and the appellant according to his belief, if it is presumed that he had written the said articles belong to another Sect. The report of the handwriting expert alone is not sufficient to hold that the appellant had written these Pamphlets. The prosecution failed to bring on record that as to when, where and in whose presence, the appellant had prepared the documents said to contain derogatory remarks. The P.Ws have contradicted each other regarding the manner of handing over those Pamphlets to them and then handing over the same by them to the police. Moreover, as per private witnesses none of the documents had been taken into possession from the appellant and the witnesses are in contradiction with each other that how the said documents had reached the complainant for producing the same to the police. On the other hand; the appellant himself has denied the allegations,. While appearing in the Court and we cannot insist upon to hold him guilty of contempt of Muhammad (p.b.u.h) and we cannot declare him out of circle of Islam. '
15. We have also noticed that P.Ws. 1 to 3 are not found consistent that as to when the appellant had committed this occurrence. P.W.l claimed that he came to know about the derogatory views of the appellant on 19-11-2001 at about 12/1-00 p.m. Through P.W.2. On the other hand P.W.2 claimed that he had come to know about the belief of the appellant for the first time, when he was arrested, but then forgiven as he repented before the Councillor. According to P.W.2 at that time the complainant (P.W.l) was also present and he (P.W.2) use to discuss the belief of the appellant with P.W.l even prior to 19-11-2001. As such P.W.2 has contradicted the version of P.W.l that he came to know about the views of the appellant only on 19-11-2001. P.W.3 also stated that before 19-11-2001 they had made a debate with the appellant about his belief. ' From the evidence of P.Ws.l to 3, it is clear that they were inimical towards the appellant due to differences of views between them about different teachings of Islam according to their sect. The prosecution failed to produce independent witnesses to show that the appellant was fond of making debates and he was frequently preaching his view to the others and thus injured their feelings. On the other hand, the case of the prosecution itself is that after knowing about the belief of the appellant, they themselves had approached the appellant at his house, who was found sitting alone outside his house on a bench. It is not the case that at that time the appellant had been preaching the other people about his belief and their feelings were being hurt. The prosecution witnesses themselves had allegedly opened the matter with the appellant about his belief, but the appellant never came behind them to make them believe about his belief. It may be generally noticed that there are different sects in Muslim and some of them have different thoughts about certain teachings of Islam as compared to other sect, but it cannot be said that while doing the same they have injured the feelings of others. In the present case the delay in lodging the F.I.R. Has assumed great significance inasmuch as the prosecution story is doubtful from outset and the prosecution evidence is remarkable in weakness only. It is settled principle of law that where the evidence created doubt about the truthfulness of the prosecution story, its . Benefit has to be given to the accused without any reservation. '
16. ' So far as judicial confession made by the appellant during the investigation of the case is concerned, we have noticed that due care and caution was 'not observed while observing the same. ' The record shows that firstly the appellant had been produced before P.W.9 on 23-11-2001 for recording his statement under section 164, Cr.P.C., which was written by the I.O. On 22-11-2001, but on the said day the statement of the appellant was not recorded, but to think upon the matter further time was afforded to the appellant and the matter was postponed till 26-11-2001. However, the custody of the appellant was again remanded to the police. Then the appellant was again produced in the Court of P.W.9 on 26-11-2001, but this time only specimens of the handwriting of the appellant were obtained while the statement under section 164, Cr.P.C. Of the appellant was recorded on the next day i.e, 27-11-2001. ' We are of the view that when the appellant had been firstly produced in the Court on 23-11-2001 and further time was afforded to him to think upon the matter, he should have been sent to the judicial lock-up, but the record shows that he remained throughout with the police and we are unable to differ with the answer made by the appellant to Question No, 10, while making statement under section 342; Cr.P.C., which is reproduced as under:- '
' "I was under custody of police when I was firstly produced before the learned Ilaqa Magistrate for recording of my statement under section 164, Cr.P.C. And police gave me severe torture while I was in custody, therefore, on 27-11-2001 when I was produced before the learned Ilaqa Magistrate. I made no statement under section 164, Cr.P.C. The learned Ilaqa Magistrate with connivance of complainant party recorded my statement himself without asking anything from me. I was under pressure at that time due to fear of severe torture of police. So I cannot agitate at that time. The learned Ilaqa Magistrate did not observe legal formalities to record my statement under section 164, Cr.P.C."
'' As such the retracted judicial confession of the appellant, cannot be made basis for recording the conviction and sentence against him. '
17. ' For the foregoing discussion we have come to an irresistible conclusion that the prosecution had not been able to bring home charges against the appellant beyond any shadow of doubt.
Consequently, Criminal Appeal No,426 of 2002 filed by the appellant is accepted, the impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charges by extending him the benefit of doubt, who shall be released from jail forthwith if not required in any other criminal case. '
18. Murder Reference No,393 of 2002 is replied in the negative and the sentence of death awarded to the appellant by the learned trial Court is not confirmed.