' SAGHIR AHMAD, J.---Niaz Ahmad accused/appellant was tried by learned Sessions Judge, Bahawalnagar in case F.I.R. No,215 dated 11-8-2003 under section 295-C, P.P.C. Registered with Police Station, Saddar Bahawalnagar, and on the conclusion of the trial of the said case, the learned trial Court through judgment dated 11-11-2003 convicted the accused/appellant under section 295-C, P.P.C. And sentenced him to death, with further order to pay Rs,50,000 as fine, in default whereof to further suffer two years' simple imprisonment. Criminal Appeal No,375 of 2003 has been filed by the accused/appellant challenging his above conviction and sentence, whereas, Murder Reference No,723/2003 has been sent by the learned trial court in terms of section 374, Cr.P.C. Seeking confirmation of death sentence.
2. The prosecution case as it emerges from F.I.R. Exh.PA/1 got lodged by Muhammad Abbas is that, on the fateful day and time, he (complainant) along with about twelve other men was sitting in tea stall of Saleem when Muhammad Baqir son of Azeem came there and offered "SALAM" and also shook hand "with every body one by one. When he offered "SALAM" to Niaz Ahmad (accused/appellant) he did not reply, whereupon, Baqir said that he had offered the "SALAM" of Hazrat Muhammad (P.B.U.H.) in answer Niaz Ahmad, according to the F.I.R., (Allah forbid) used derogatory remarks and also allegedly hurled abuses towards Holy Prophet Muhammad (P.B.U.H.), which was heard by all the persons including complainant, Fazal-e-Haq son of Mian Kala, etc.
3. The investigation of the case was carried out by Muhammad Anwar Sub-Inspector P.W-3, who after recording the formal F.I.R. Exh.PA/1 proceeded to the place of occurrence, prepared site-plan without scale, recorded statements of the witnesses under section 161, Cr.P.C, arrested the accused and after completion of investigation sent up the accused to face trial, where charge was framed, to which the accused pleaded not guilty and claimed to be tried. During trial the prosecution examined three witnesses in all, which include the statement of Investigating Officer, as detailed above, the statement of Muhammad Abbas complainant P.W-1 and Muhammad Bilal P.W-2, who both deposed about hearing the alleged filthy remarks by the accused/ appellant. In his statement under section 342, Cr.P.C. The accused having denied the prosecution evidence attributed his involvement due to previous grudge as according to him, Muhammad Abbas had earlier tried to make unnatural excesses towards his son, which was resisted and out of venom he was falsely roped in the case. In defence Baqar Ali who in fact could be the star witness for the prosecution was produced as DW-1 and similarly Fazal-e-Haq- who according to the F.I.R. Itself was present at the time of occurrence also appeared as DW-2. However, on conclusion of the trial, above conviction and sentence was recorded by the learned trial Court.
4. Learned counsel appearing for the convict/appellant has argued that even according to the F.I.R.
Baqir Ali was the main person on whose appearance at the scene, the entire matter ensued and further Fazal-e-Haq was also stated to be witness of the occurrence and both these persons were also cited as prosecution witness in the relevant column of the challan, but both of these witnesses were given up by the prosecution and while appearing in the witness box as D.Ws. Both made unanimous deposition that as Baqir Ali had hot relations with Niaz Ahmad accused/appellant, therefore, on his offering "SALAM" Niaz Ahmad instead of replying in a decent manner, used filthy language against Baqir Ali and that he did not utter any derogatory remarks against Hazrat Muhammad (P.B.U.H.), in these circumstances, the prosecution had failed to prove the charge against the convict. It was further argued that complainant P.W-1 as well as Muhammad Bilal P.W.2 both were chance witnesses, therefore, their evidence was not worthy of credence. Moreover the complainant was highly interested witness as he already was on hard terms with accused Niaz Ahmad because he had tried to commit sodomy with the son of Niaz Ahmad, which was resisted, therefore, in order to take revenge he was falsely implicating him with such a charge which is far from even mere imagination of a Muslim. It is therefore, concluded by the learned B counsel that prosecution had miserably failed to prove the charge and that by appearance of Baqir Ali and Fazal-e-Haq as D.Ws., sufficient doubt is cast upon the prosecution story, the benefit of which must be extended to the accused.
5. Conversely, the learned Additional Prosecutor General supported the impugned judgment of conviction and sentence, by contending that prosecution had been successful in proving the charge against the convict/appellant and that he being accused of a serious offence was also not entitled to any sort of leniency.
6. We have considered the arguments of learned counsel for the parties and have also scanned the evidence with their help.
7. According to the contents of the F.I.R. As well as per statement of Muhammad Abbas complainant P.W-1 the entire matter cropped up when Baqir Ali offered "SALAM" to every body and when Niaz Ahmad did not reply, Baqir Ali insisted that he had offered the ".'SALAM" of Holy Prophet Hazrat Muhammad (P.B'.U.H.) and in answer to that allegedly Niaz Ahmad used derogatory remarks. Thus, it becomes quite obvious that Baqir Ali was the star prosecution witness who was also cited as such in the relevant column of witnesses in the challan. Similarly, Fazal-e-Haq was also shown to be present at the place and he too was cited as a prosecution witness in the challan paper. Their presence at the place of occurrence is also a fact which was admitted by the complainant in the court also. The complainant as P.W-1 and Muhammad Bilal P.W-2 both while appearing in the witness box made statements in line with the contents of the F.I.R. And they did not deny the presence of Baqir Ali and Fazal-e-Haq at the crucial time. In view of the allegation levelled by Niaz Ahmad convict/appellant against Muhammad Abbas complainant that he had tried to make undue excesses towards his son, to prove a capital charge, it had become very essential for the prosecution to have examined the witnesses whose credibility was free from any sort of doubt and for this purpose statement of Baqir Ali and Fazal-e-Haq could be the best evidence and by withholding such witnesses, naturally an adverse presumption is bound to be drawn against the prosecution that those witnesses were not going to support the prosecution case or the prosecution case right from its inception was untrue, and as such this failure on the part of the prosecution by itself was sufficient to create enough doubt about the prosecution story. Whereas, Baqir Ali as D.W-1 in his examination-in-chief admitted that he had bit hot relation with Niaz Ahmad and that was the reason that his "SALAM" was not answered by him and instead Niaz Ahmad used filthy language against him i,e, Baqir Ali alone. Similar is the statement of Fazal-e-Haq D.W-2. In such a situation a person who admittedly is on hard terms with the accused, when appears in the witness box in support of such accused and also admits that filthy or abusive language was used by the accused against him alone, his statement gains much importance against those who either have friendly relations or no relations at all with the accused. Therefore, un-shattered statement of Baqir Ali D.W-1, fully corroborated by another eye-witness namely Fazal-e-Haq D.W-2, has preferential value as compared to the statements of other prosecution witnesses.
8. There is yet another important aspect of the case that according to the statement of Muhammad Abbas complainant P.W-1 himself, he (complainant) was present on the other side of the bridge and admittedly the distance between him and the accused as well as other witnesses (including Baqir and Fazal-e-Haq) was about twenty feet. For this reason also, we are fortified to give preferential value to the statement of Baqir Ali who admittedly was on that side of the bridge where accused was sitting, and further the matter having erupted on his appearance, he being nearest to the accused, could be the best person to listen and observe each and every word which was being uttered by Niaz Ahmad accused. He was also in a better position to even see the gesture of the accused while making such remarks. As detailed above Baqir Ali D.W-1 as well as Fazal-e- Haq who too was sitting along with the accused have made categorical statements to the effect that in fact filthy or abusive language was used by the accused against Baqir Ali alone. In such a situation, it would not be suitable and justified at all to unnecessarily stretch the prosecution evidence towards the neck of the accused. Further, undisputedly Niaz Ahmad is a Muslim and it is beyond one's comprehension that a Muslim would use derogatory remarks against Holy Prophet Muhammad (P.B.U.H.) therefore, for proving such a serious charge running counter to the normal phraseology, the evidence produced must have been rock solid, far from being interested and also of unimpeachable character. So far as the defence plea being taken by the accused is concerned, in its support admittedly there is no material else except mere statement of the accused, yet the burden to prove his defence plea does not shift on him until the charge established against him by the prosecution and the prosecution must prove its case beyond reasonable doubt irrespective of any plea raised by the accused in defence. While holding so we are guided by the judgment of the apex court in Shamoon's case (1995 SCMR1377).
9. Further, we note that the learned trial court has even permitted the prosecution to get exhibit the statements of certain witnesses (including Baqir Ali and Fazal-e-Haq) recorded under section 161, Cr.P.C. Which was not permissible in law, because such statements can only be used to get a witness contradicted from his previous statement and not for any other purpose. In these circumstances, we throw those exhibits out of consideration.
9A. So far as the "FATWA" Exh.PB is concerned, although said document was brought on the file and also got exhibited by the prosecution but there is abundant case law on the point that unless its author or even signatory was produced in the witness box and subjected to cross-examination enabling the accused to explain the entire circumstances prevailing, at the relevant time, such "FATWA" even by some Mufti or religious scholar cannot be considered and read in evidence.
10. For what has been discussed above, we are of the view that there exists ample doubt in the prosecution story, whereas, conviction or sentence can neither be recorded nor maintained on simple hypothesis and assumptions. To prove a charge carrying capital punishment, the prosecution is required to prove its case up to hilt, which element is totally missing in the case in hand, whereas there is a golden principle that as severe an offence carries the punishment so hard and strict should be the scale to assess, evaluate and analyse the evidence. The prosecution being obliged to prove its case against the accused beyond any reasonable doubt and if it failed to do so the accused was entitled to benefit of doubt as of right. Rule of benefit of doubt was essentially a rule of prudence which could not be ignored while dispensing justice in accordance with law.
Said rule was based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted." This has so been held by the Hon'ble Supreme Court of Pakistan in the case "Ayub Masih v. The State" (PLD 2002 SC 1048).
11. The Quran and Sunnah being the best, complete and comprehensive code of life has always been sufficient, is plenty and shall remain more than enough to cater all sorts of eventualities in the past, in the present as well as in the coming future, so in the situation being faced in the case in hand, we are guided by the principle laid by Holy Prophet Hazrat Muhammad (P.B.U.H.) to the effect that "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
12. The accumulative effect of all what has been discussed above, we have reached to an irresistible conclusion that the prosecution has not been able to bring home the guilt against the convict/appellant, therefore, we allow this appeal, set aside the conviction and sentence as recorded by the learned trial court against Niaz Ahmad appellant and order his immediate release from jail if not required in any other case.