' IJAZ AHMAD CHAUDHRY, J.---Through this Criminal Appeal No,1599 of 2004, Shahbaz Masih (appellant) has challenged the judgment, dated 25-9-2004 passed by learned Sessions Judge, Faisalabad whereby he had convicted the appellant under section 295-B, P.P.C. And sentenced him to imprisonment for life.
2. The occurrence in the present case had allegedly taken place on 4-6-2001 at 9-00 a.m. Within the territorial jurisdiction of Police Station Sargodha Road, Faisalabad and the matter was reported by Qari Muhammad Rafique, Khateeb, Jamia Masjid. Baikhi Chestia Darbar, Islamia Park, Faisalabad, complainant (P.W.2) at 10-45 a.m. Through application (Exh. PA) on the basis of which formal F.I.R. No,315 of 2001 (Exh.PA/1) was drafted by Manzoor Hussain, A.S.-I. (P.W.1) on the same day at the police station.
3. The brief facts as narrated by Qari Muhammad Refique complainant (P.W.2) in the F.I.R. (Exh.PA/1) are that he was Khateeb in Jamia Masjid Baikhi Chestia Darbar, Islamia Park, Faisalabad, and on 11- 9-2001 at about 9-00 a.m. Was giving Dars-e-Quran to the children when he heard a noise in the Darbar opposite to the Mosque. Thereupon the complainant rushed towards Darbar and saw that Shahbaz alias Kaka the appellant was tearing and over running the pages of the Holy Quran under his feet, which was also witnessed by Jameel Sabir (P.W.3) and Qamar Ali P.W. Not produced. The appellant was apprehended by the people and handed over to the police along with Shahed (torn) pages of the Holy Quran.
4. On 4-6-2001, Sajjad Hussain S.-I./I.O. (P.W.4) after receivingan information, reached at Din Muhammad Chesti Darbar, situated at Street No,8, Islamia Park, Faisalabad along with police officials, where Qari Muhammad Rafique, complainant (P.W.2) handed over him application (Exh.PA), which was sent to the police station through Shahid Ali Constable No,4992 and then he went to get the permission from the Higher Officers and opinion regarding the said occurrence through application Exh.PC for the registration of F.I.R. After getting the opinion, formal F.I.R.
(Exh.PA/1) was recorded. Thereafter, he prepared the site-plan Exh.PE. Muhammad Rafique, complainant produced before I.O. Pages of sacred leaves of Holy Quran, which weretaken into possession vide recovery Memo Exh.PB and got the same attested by the P.Ws. He also recorded the statements of P.Ws. Under section 161, Cr.P.C. In this regard. On 5-6-2001, he arrested Shahbaz alias Kaka (appellant) and got him medically examined by the Doctor through an application Exh.PF and sent the appellant to Judicial lock-up on 5-5-2001 while declaring him guilty.
5. After completion of the investigation, report under section 173, Cr.P..C. Was submitted in the Court. Then 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.
6. The prosecution in order to prove its case produced as many as 4-witnesses. The ocular account was furnished by Qari Muhammad Rafique, complainant (P.W.2) and Jameel Sabir (P.W.3), while the investigation was conducted by Sajjad Hussain, S.-I./I.O. (P.W.4). Manzoor Hussain, A.S.-I., who drafted the F.I.R. Appeared before the trial Court as P.W.1.
7. After the close of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. Who denied the allegation and professed his innocence. However, to a question that "why this case against you and why the P.Ws. Deposed against you?" Shahbaz alias Kaka (appellant) made the following reply:-- "The accused was a psycho patient and had been got admitted by his guardian in the psychiatric Hospital in Lahore, where he remained for quite some time, thereafter, he ran away from the Hospital and started wandering different places. On 4-6-2001 the accused was an idiot and unable to apprehend reason had been wandering near the tomb while he was wearing a cross. He was intercepted by the people of the area and handed over to the present P.W., who interrogated him and found him a Christian and thus took it a desecrating act and thus out of their religious zeal and activism connived with the Investigating Officer of this case, who developed the proposed and booked the case under section 295-A & B by manipulating the facts to attract the said offence. The mental incapacity of the accused was though revealed upon the Investigating Officer yet he manoeuvred the facts and evidence out of his religious Zeal and planted the sacred leaves by collecting the same from some Mosque or Tomb. It may be pertinent to add here that rages sacred leaves of the Holy Book can be found in almost every Mosque and Tomb for their onward burial and are kept in basket to avoid the desecration."
' The appellant did not opt to make the statement under section 340(2), Cr.P.C. But produced in his defence Dr. Pervez Ahmad Consultant, Phsychiatrist Punjab Institute Mental Health Lahore as D.W.1.
8. The learned trial Court after hearing the arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant. Hence, the instant appeal before this Court against the conviction of Shahbaz Masih (appellant).
9. The learned counsel for the appellant has contended that according to section 84 of P.P.C., any offence .:ommitted by an insane person is not an offence; that, insanity of the appellant had been proved by Dr. Pervez Ahmad, Consultant Phsychiatrist Punjab Institute Mental health Lahore (D.W.1), who specifically stated from the record that the appellant remained admitted in the Mental hospital from 23-8-2000 to 4-9-2000, but thereafter he absconded from the ward of the said Hospital and on the other hand, except for the statements of witnesses, there is no evidence that the appellant was not insane and a sick person, who was not aware of the act committed by him; that the impugned judgment had been passed by the learned trail Court without considering the medical report and the provisions of section 84, P.P.C., which is liable to be set aside and the appellant may be acquitted.
10. The learned State Counsel has opposed this appeal vehemently.
11. I have heard the arguments of learned counsel for the parties and gone through the impugned judgment and entire evidence with the assistance of learned counsel for the parties with due care and caution.
12. As per prosecution version, Qari Muhammad Rafique complainant (P.W.2) and Jamil Sabir (P.W.3) had seen the appellant in the Darbar while over running under his feet the pages of Holy Quran after tearing the same and also throwing the same on the graves inside A the bazaar, who was caught red-handed by the said along with others at the spot and then handed over to the police along with the torn pages of the Holy Quran. Admittedly the appellant was resident of Lahore whereas the occurrence had taken place at Faisalabad. Both P.Ws. 2 and 3 were cross-examined at length, but the defence failed to allege any enmity or mala fide on their part for the false implication of the appellant in the present case. Even the apprehension of the appellant at the spot was not denied. However, they were only suggested that the appellant was an insane and mentally retarted person and a run-away patient of Government Hospital for Psychiatric Diseases, Lahore at the time of the occurrence to which they denied knowledge. To prove this fact the defence produced Dr. Pervaiz Ahmad, Consultant, Psychiatrist, Punjab Institute of Mental Health, Lahore as D.W.1, who brought the record from said Hospital regarding the appellant and stated that the appellantwas admitted in the said hospital on 23-8-2000 and remained under their treatment till 4-9-2000, but then he absconded from the ward of the said hospital. He further stated that the most probable diagnosis at that time was bipolar affective disorder currently manic episode. He also produced certificate of admission and discharge of the appellant (Exh.D-A) issued on 15-8- 2000 by the Medical Superintendent, Government Hospital for Psychiatric Diseases, Lahore.
13. What offence has been committed by the appellant, I would like to reproduce the provisions of section 295-B, P.P.C. Here:-- "295-B Defiling, etc. Of copy of Holy Qur'an. Whoever wilfully defiles, damages or desecrates a copy of the Holy Quran or of an extract therefrom or uses it in any derogatory manner or for any unlawful purposes shall be punishable with imprisonment for life."
' According to the afore-quoted provisions, whether any person is guilty of the said offence, first of all his intention has to be accounted for.
14. On the other hand the defence has sufficiently proved on the record that at the time of the occurrence the appellant was an insane person and did not know the nature of the act done by him. As such provisions of section 84, P.P.C. Will definitely attract in the present case, which lays down that nothing is an offence done by a person, who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The occurrence in the present case had taken place on 4-6-2001.
The prosecution has failed to produce any evidence on the record to rebut the version of the appellant supported by the evidence of D.W.1 that he was not in the state of insanity at the time of the occurrence. In the absence of such evidence that the appellant was capable of knowing the nature of the act or that he was doing what was either wrong or contrary to law at the time of the occurrence cannot be held guilty for the offence under section 295-B, P.P.C.
15. For the foregoing reasons, the conviction and sentence of the appellant recorded by the learned trial Court under section 295-B, P.P.C. Is not sustainable in the eyes of law, which is set aside while allowing this Criminal Appeal and Shehbaz Masih appellant is acquitted of the charge while invoking the provisions of section 84, P.P.C. He shall be released from the jail forthwith, if not required in any other criminal case. However, as it has been proved on the record that the appellant was an insane and mentally retarded person and a runaway patient of Government Hospital for Psychiatric Diseases, Lahore at the time of the occurrence, the Superintendent Jail while releasing the appellant shall make arrangements for his admission in the aforesaidHospital for his treatment where he shall be kept as per Rules and Regulations of the said Hospital.