' M.A. ZAFAR, J.---This judgment will dispose of Criminal Appeal No,1243 of 2003 filed by Maulvi Tahir Asim, who was convicted and sentenced by learned Additional Sessions Judge, Gujrat vide impugned judgment, dated 23-6-2003 as under:-- Under section 295-C P.P.C.
' Death and a fine Rs,30,000, in default of payment of fine to further undergo six month S.I.
2. Murder Reference No,515 of 2003 for confirmation of death sentence or otherwise of the appellant shall also be replied through this single judgment.
3. According to the F.I.R. Ex.PA/1, the facts of the case as narrated by Dr. Muhammad Akram Kareemi complainant are that on 16-8-2002, Maulvi Tahir Asim accused, the orator of Muhammadi Jamia Mosque Ahl-e-Hadees, Mohallah Eid Gah, Kunjah was delivering speech to the Juma congregation.
During his address to the public, passed derogatory remarks in respect of the Holy Prophet (Peace by upon him) and his Honourable mother Hazrat Arnim. (R.A) as "When Moosa (A.S) went to Koh-e- Toor and His Lord appeared in his glory on the mountain, he made it crumbled to dust. Had Holy Prophet (Peace be upon him) been "Noor", then why belly of his mother would not have crumbled to dust". The residents of Mohallah wherein the said mosque is located are the followers of Ahle- Sunnat, out of whom Ch. Muhammad Khalil, Ch. Nisar Ahmad Gondal, Ch. Nisar Ahmad Councillor, Mirza Sikandar and Mushtaq came to the complainant and expressed their injured provocated sentiments, upon which Ch. Nisar Ahmad Gondal, Chairman Muhammad Siddique Kunjah Press Club, Butt, Qari Maqbool Ahmad along with the complainant went to Ameer and Nazim of Jammiat Ahle Hadees, Kunjah and apprised him of all the facts and circumstances of the case where it was resolved that on 23-8-2002 Maulvi Tahir Asim while delivering the Juma Sermen would withdraw from the derogatory remarks and seek apology from the public at large. But Maulvi Tahir Asim accused did not do so, whereupon sentiments of the public at large generally and that of followers of the Ahle-Sunnat were extremely hurt provocated. Upon this allegation, the accused was booked under section 295-C P.P.C.
4. After registration of the case, Safat Ullah S.-1. P.W.5 investigated the case. He recorded the statements of the witnesses under section 161 Cr.P.C., proceeded to place of occurrence, inspected the spot and prepared site plan Ex.PB, arrested Molvi Tahir Asim accused, produced the accused before learned Ilaqa Magistrate and he was sent up to the judicial lock-up, thereafter, on 31-10- 2002 challan was sent to Court against the accused under section 295-C P.P.C.
5. At the trial, prosecution in order to prove its case produced five witnesses in all, out of them, P.W.1 is Muhammad Akram Kareemi complainant, P.W.2 is Nisar Ahmad Gondal, P.W.3 is Mushtaq Ahmad, P.W.4 is Qlab-e-Abbas A.S.-I. And P.W.5 is Safat Ullah S.-I./ Investigating Officer, thereafter, learned A.D.A closed the prosecution case, then, the statement of the accused under section 342 Cr.P.C.
Was recorded in which he pleaded innocence. However, after conclusion of the trial, the accused was convicted and sentenced as stated above by the learned trial Court.
6. Learned counsel for the appellant submits that the appellant never uttered derogatory remarks against the Holy Prophet (P.B.U.H.) and in fact the complainant party is "Suni" by Faith while the accused belongs to "Ahl-e-Hadees". To support his submission, learned counsel argues that the convict appellant has tendered an affidavit before the learned counsel argues that the convict appellant has tendered an affidavit before the learned trial Court Ex.DA wherein he has categorically stated that he has full faith on Holy Prophet (P.B.U.H.) and that he cannot even think of uttering any derogatory remarks against the Holy Prophet (P.B.U.H.) and his mother Hazrat Amna (R.A). Learned counsel for the appellant further adds that there was ban imposed upon the use of loudspeaker by the government and appellant had never delivered the speech in loudspeaker.
Even otherwise, on many occasions sectarian strife had taken place between the two sects and many cases were registered against the parties and finally the Ilaqa Magistrate and Town Nazim of the area settled the matter between the parties.
7. Conversely, learned D.P.G. Assisted by learned counsel for the complainant submits that the prosecution has proved its case through the evidence of P.Ws. 1,2, and 3; these P.Ws. Have no enmity or to falsely depose against the appellant and that the defence by itself while cross- examining the P.Ws. Had brought on record that the appellant uttered derogatory remarks against the Holy Prophet (P.B.U.H). To support this argument, learned counsel D.P.G. Has drawn our attention to the statements of P.W.2 and P.W.3. Learned counsel for the complainant has relied upon 2005 YLR 985 Haji Bashir Ahmad v. The State.
8. We have heard learned counsel for the parties at great length and have gone through the evidence on record with their able assistance. The complainant in this case is Muhammad Akram Kareemi, who appeared before the learned trial Court as P.W.1. A perusal of Ex. PA complaint on the basis of which the F.I.R. Was recorded shows that the alleged occurrence of uttering derogatory remarks had taken place on 16-8-2002 while the complaint was made to the police on 23-8-2002 with the delay of eight days. The reasons for getting the case registered after eight days given by the complainant was that he along with Nisar Ahmad P.W. And others went to Nazim of 'Jameet- Ahl-e-Hadees and it was settled that if on next Friday that's 23-8-2002, the accused tenders apology he will be forgiven but as the accused did not tender pardon so the case was got registered on 23-8-2002. Except this bald assertion of the complainant, who was not an eye- witness of the occurrence and his basic qualification is Matric, having no religious education but claimed himself to be Khatteb of Jamia Masjid Alamgir Main Bazar Kunjah. Though the distance between the two mosques is one furlong but he has not seen the mosque where accused delivered the speech, the other witnesses, namely Nisar Ahmad and Mushtaq, who accompanied the complainant while going to Nazim of Jameet Ahl-e-Hadees, have not uttered even a single word with regard to their accompanying the complainant for having a meeting with the Nazim of Ahl- eHadees about the derogatory remarks uttered by the convict appellant, so there was no corroboration to the statement of the complainant so far as the delay in the B F.I.R. Is concerned.
This leads us to the conclusion that the F.I.R. Was recorded after due deliberation and consultation.
' Nisar Ahmad appeared, as P.W.2 is Bralvee by faith. He in his examinationin-chief stated that he heard the derogatory remarks, which injured his feelings. In cross-examination the P.W. Stated that the people, who heard the objectionable speech contacted him for registration of the case against the accused, as he was Councillor of the Ilaqa. If this was the position as alleged by the P.W., then why he did not report the matter to the police himself when the police post was hardly at a distance of one furlong from his house and he even did not go to mosque where the appellant uttered objectionable speech in order to lodge protest and instead introduced Muhammad Akram Kareemi, P.W.1 to be a complainant.
' Apart from above, this P.W. Resides at a distance of 1-1/2 furlong from the mosque and according to him he heard the objectionable words while making ablution in his house. This part of statement of the P.W. Does not inspire confidence and seems to be a concocted and fabricated one c so we rule out of consideration his testimony.
' It has come on record that Muhammad Akram Kareemi complainant was President of Jamat-e- Ahl-e-Sunat and was Khateeb of Jamia Masjid Alamgari while the appellant according to own saying of the complainant was Ahl-e-Hadees and was Khateeb in Masjid Ahl-e-Hadees, so making this P.W. As complainant when he was not eye-witness of the occurrence is obviously for some ulterior purposes.
' The complainant in cross-examination deposed that the above five persons including the P.Ws., who heard the derogatory remarks usually offer prayer in the mosque where the accused delivered Jumma speech. The other P.Ws., namely, Nisar Ahmad Gondal and Mushtaq Ahmad are Bralvee by faith. If P.Ws. 2 and 3 according to their own showing were Sunni by faith then how they usually used to say prayer in the mosque where the convict delivered the objectionable speech. It can thus be gathered that P.W.1 knew nothing about the alleged speech by the convict and he even did not know the P.Ws, rather the entire story was concocted for the reasons best known to the convict.
' Next is Mushtaq Ahmad P.W.-3. He in his cross-examination deposed as under:-- ' "I did not hear the speech prior to the objectionable words and after uttering these words."
' This part of cross-examination sufficiently demonstrates that the P. Ws. Did not go to the mosque for Jumma prayer where the convict had allegedly uttered the derogatory remarks. From the tenor of cross-examination of this P.W., it is proved that he was not aware of the religion what to talk of saying prayer when he admitted that he could not tell in which prayer "Duai Qanoot" is recited. The unnatural conduct of this witness coming out of mosque after hearing derogatory remarks without raising any objection also creates doubt about his presence. We are also not satisfied with the evidence of P.W.3. The evidence produced , by the prosecution does not inspire confidence and the same has not come from an unimpeachable source and the witnesses produced by the prosecution in support of this case are not truthful.
' At this stage, we may advert the statement of the appellant made under section 342 Cr.P.C. And specially the affidavit Exh.DA. For the just decision of the case. We may reproduce the reply to questions Nos.4 and 6 as well as contents of affidavit Exh.DA, which are in Urdu:- "I have been falsely involved in this case due to long-standing Maslaki differences and enmity with the complainant and his u companions who belonged to Barelvi" (Ehl-e-Sunnat). On different occasions the complainant party has been attacking on our Mosques against whom reports J 'tihVe been made to the concerned authorities. Moreover, agreement between the two sects had also been arrived at by the intervention of Mr. Aftab Majeed, Magistrate and Chairman Town Committee, Kunjah, which was duly signed by the said Magistrate an Administrator/Chairman and also sighed by me. Moreover, the P.Ws. Who belonged to opposite sects have falsely deposed against me."
' I do not want to produce any oral evidence on my behalf. Anyhow I produce my affidavit Exh.DA, copy of notification issued by the D.I.G., Police Gujranwala, Range mark-B copy of Notification issued by Ministry of Interior and Narcotics Control Mark-C, copy of agreement Mark-D, copy of application to D.C/Ilaqa Magistrate and S.P Gujrat, Mark-E, copies of educational qualification Mark-F to Mark-S." The contents of Exh.DA are as under:--- {{URDU TEXT}} ' In order to verify the contents of affidavit Ex.DA/1 and satisfy also our conscious we summoned the appellant from jail and he in an open Court after reciting Qalma Tayyaba acknowledged and read in an open Court the contents of affidavit and denied the allegation levelled against him, thereafter, learned D.P.G. Insisted that the convict should deny the allegation on Holy Quran but when questioned whether he will withdraw the prosecution if the appellant takes oath on Holy Quran the learned D.P.G. Expressed his inability, so we are satisfied with the statement of the appellant made in an open Court after reciting Qalma Tayyaba denying the allegation in the F.I.R.
' The appellant having sworn an affidavit before the learned trial Court denying the allegation and also denied the same after reciting Qalma Tayyaba before us, we therefore, cannot insist upon to hold him guilty of uttering derogatory remarks about the Holy Prophet (P.B.U.H). Teaching of our Holy Prophet (P.B.U.H) is always forgiveness and mercy; here we quote some "Hidaya" on the subject.
' Here we would like to refer "Hidaya" 1410, occurring at which reads as under; {{URDU TEXT} ' The saying of Holy Prophet Hazrat Muhammad (P.B.U.H.) has been reiterated at page 137 of the book ( authored by Imam Wali-ud-Din Muhammad, the urdu translation of which reads as under. {{URDU TEXT}} ' Guidance can also be had from the book ({{URDU TEXT}}) page 619 whereof reads as under: {{URDU TEXT}} ' Being Muslim, we are to follow what is ordained by Allah in the Holy Book and saying of our Holy Prophet Hazrat Muhammad (P.B.U.H.) So, following the dictates of our beloved Holy Prophet Hazrat Muhammad (P.B.U.H.) we should follow his foot-steps. He was ({{URDU TEXT}}) for whole of the world.
' We may reproduce the following passage from the judgment of Hon'ble Supreme Court of Pakistan in a case titled as Ayub Masih v. State PLD 2002 SC 1048:- ' "It is also firmly settled that if there is an element of doubt as to the guilt of the accused, the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in the State v. Mushtaq Ahmad PLD 1973 SC 418 that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent. "
' The F.I.R. Having been recorded after due deliberation and consultation with the delay of eight days, the complainant being not an eye-witness of the occurrence and the presence of the one P.W. In the mosque where the convict appellant uttered alleged derogatory remarks, being doubtful and other hearing the same in his house at a distance of one furlong having no deep knowledge of Islam and appellant after reciting Qalma Tayyaba before us denying the allegations levelled against him, we are left with no other option but to acquits him from the charge by giving him benefit of doubt. Resultantly, appeal is accepted with the result that appellant shall be released forthwith if not required to be detained in any other case. Murder reference is answered in the Negative.
' Death sentence of the appellant Moulvi Tahir Asim is not confirmed.