' QAZI MUHAMMAD AMIN AHMED, J.---Crl. Appeal No,318 of 2007 filed by appellants against their convictions and Crl. Appeal No,326 of 2007 filed by the complainant against acquittal of the appellants from some of the charges, are being decided by this single judgment as both arise out of judgment dated 28-6-2007 passed by the learned Additional Sessions Judge, Karror District Layyah.
2. Prosecution case is structured upon application (Exh.PA) moved by Abdul Ghaffar (P.W.2) wherein Mehmood Ali, Muhammad Ajmal, and Elahi Bakhsh sons of Ghulam Qadir and Hassan Muhammad son of Fateh Muhammad had been arrayed as accused with a specific prayer for registration of a case under sections 295-C, 295-B and 420, P.P.C. Case of Abdul Ghaffar P.W.2 is that he was running a shoe store at Town Fateh Pui; the business was on the rocks and he desired to go abroad for a better financial future and for that he was in search of some exorcist (Aamil) and it was in this process that he learnt about some persons living in Chak No, 116-B/TDA, giving amulets and incantations; his maternal uncles Anwar-ul-Haq and Ikram-ul-Haq P.Ws. Who were also facing financial difficulties desired to join him as well and it was in this backdrop that they approached the accused at their residence where they found their co-villagers Muhammad Tariq Mehmood and Ikhlaq Ahmad P.Ws. As well who had arrived there for the same purposes. There is a detailed accusation in Exh.PA which in brief is a claim by Mehmood Ali accused about his divine ascension to the positions foreclosed in religion. It is further alleged that the accused, on different occasions, received a sum totaling Rs,25,00,000 and thus defrauded the complainant and the P.Ws.
The application ended on a note that the accused committed contempt of the Holy Prophet (P.B.U.H) as well as of other holy personages besides depriving them of a huge amount. The application (Exh.PA) which is written in vernacular is however signed by Abdul Ghaffar (P.W.2) in English.
' Fayyaz Haider S.I. (P.W.5) arrested the accused on 18-3-2006. The investigation was taken over by DSP Malik Khalil Ahmad. According to his findings, sections 295-B and 295-C, P.P.C. Were not attracted to the facts and circumstances of the case; he was examined as CW-1. A report under section 173, Cr.P.C. Dated 1-4-2008 was sent to learned Area Magistrate under Sections 298, 419, 420 P.P.C., who, however, holding that, prima facie, offences under sections 295-B and 295-C, P.P.C.
Were made out and sent the case to the Court of Session on 29-4-2006. The accused were indicted under sections 295-C, 295-B, 298, 419 and 420, P.P.C. On 13-5-2006 when they pleaded not guilty and claimed trial, in pursuance where to prosecution produced as many as 5 witnesses in order to bring home charge against the appellants. Confronted with the prosecution evidence, appellant Mehmood Ali took the following plea:-- "I am Muslim of strong belief on Allah Almighty and Muhammad(Peace be upon him)is the last prophet of God Almighty and no one will come till QIAMAT as Nabi and Holy Quran is last. This false case has been got registered only in order to take revenge from me and my co-accused and blackmail us. The investigation of this case was conducted by Mr. Nizam Shahid Durani, D.P.0 and DSP (Investigation) Malik Khalil Ahmad in the presence of respectable of the area and Ulama Kiram, public representatives and press Reporters. Face to face conversation was also made among the parties. During the course of investigation, C.D. Was got played which was presented by the complainant and all the persons present in the investigation proceedings heard and seen the same that no derogatory sentence was used by the accused in the said C.D. And no such offence had ever been committed by us. In the investigation of D.S.P Malik Khalil Ahmad, he finally concluded that the complainant wilfully invited the accused at his shop and forcibly got signed pro note, stamp papers from the accused and then they bring us to the Police Station on the same day and tortured us and got registered the above said case. D.P.O Layyah and DSP Karor during investigation deleted the offence under section 295-B/295-C, P.P.C. According to the prosecution story sections 419 and 420, P.P.C. Were not committed within jurisdiction of Police Station Fatehpur. I.0 was not competent to investigate the case at Police Station Karor. Nothing was recovered from me and my co- accused during physical remand of 14 days. P. Ws. Are close relatives of complainant and they have deposed falsely."
' Co-accused Muhammad Ajmal, Elahi Bakhsh and Hassan Muhammad also confronted the prosecution evidence with a denial.
3. Upon conclusion of trial, the learned trial Judge after believing the prosecution evidence convicted the accused/appellants Mehmood Ali, Elahi Bakhsh, Muhammad Ajmal and Hassan Muhammad under sections 419 and 420, P.P.C. And sentenced them to 10 years R.I. Each with fine of Rs,25,000 (each) and in case of non-payment of fine further undergo 2 months S.I each with benefit of section 382-B, Cr.P.C.
4. Learned counsel for the appellants contends that the appellants have been hounded on trump up charges; they are simple and straight forward Muslims and cannot even imagine what is being attributed to them and that they have been victimized through abuse of process of law.
5. Contrarily, the learned Law Officer assisted by the learned counsel for the complainant has defended the impugned judgment. Learned counsel for the complainant while addressing his arguments in Crl. Appeal No 326 of 2007 contends that once the trial Court was satisfied about the culpability of the appellants, there was no occasion for the learned trial judge to acquit them from the charge under sections 295-B, 295-C and 298, P.P.C. And prayed for dismissal of appellants' appeal and reversal of their acquittal from allied charges of blasphemy.
6. Heard. Record perused.
7. Application Exh.PA contains various details which cannot peacefully co-exist with each other.
Abdul Ghaffar (P.W.2) a small shoe vendor in a small town with his business running into losses desired to go abroad for good, he chooses a Peer instead of approaching emigration agent; his maternal uncles Anwar-ul-Haq and Ikram-ul-Haq are also facing financial difficulties; they were also searching a divine authority instead of available opportunities for their emigration abroad; this requires a pinch of salt. Despite bad business, they are still in a position to offer 2.5 million to the appellants, it is quite a sum and they are not supposed to have this money at their disposal and if they had really such huge amount with them, there does not appear any apparent reason for their leaving comfortable domestic life to face the foreign rigors. Positions taken by the complainant and P.Ws. In support thereof are mutually destructive. A bare reading of (Exh. PA) which is not a very readable document reflects belaboring which is far from being honest. A specific request on the day one for registration of a case - against the appellants under sections 295-B and 295-C speaks volumes about the motives which are conspicuously lurking behind application (Exh.pA).
Religion has been pressed into service to settle personal scores.
'Examination of Malik Khalil Ahmad, DSP as CW-1, who had deleted sections 295-C/295-D, P.P.C.
Which is the mainstay of the prosecution case is against the settled norms of our jurisprudence.
There was no justification for the prosecution or for the Court to examine him as a court witness. He had investigated the case and was a witness for the prosecution and prosecution could only examine him in chief to be cross-examined by the accused. Our system of administration of criminal justice is adversarial in nature and prosecution cannot be allowed an undue advantage to the detriment of the accused. No doubt, the Court has powers to examine a witness as court witness but only when it is A essential to the just decision of the case. Power of this amplitude is to be exercised with circumspection in aid of justice and not in aid of prosecution. There was no occasion or justification for the prosecution to cross-examine its own witness. Our religious sensitivities notwithstanding, charges involving alleged contempt to religious beliefs must be scrutinized with utmost care and caution before a guilty verdict is returned thereon, for the reasons that such charges are mostly based upon verbal accusations and are capable of bald denial in the event of contest. Therefore, in such like cases Court must insist for evidence with high standard of integrity and from an unimpeachable source. Ordinarily, a believer is not expected to offer contempt to his own beliefs and convictions. Verbal denial by the accused should be preferred over verbal accusations of the prosecution. Another more important reason for stringent scrutiny of evidence in offences relating to religion is that Islam provided most effective and meaningful safeguards to an accused facing criminal charge. It is not high standard of proof alone but a tribunal headed by a person of immaculate integrity and fearless impartiality who is enjoined to preferably err in acquittal than to err in conviction with the option to acquit nine guilty persons than to convict one innocent. The evidence produced by the prosecution falls much short of the standards referred to above. There are doubts which are neither illusory nor imaginary rather rooted into the stated positions of the prosecution. The appellants were rightly acquitted from the charge of blasphemy. Once the prosecution failed on the main Charges against the appellants, their conviction under sections 419 and 420, P.P.C. Is also not sustainable, as prosecution witnesses were found by the learned trial Judge to have capacity of mischief to make false imputations of the nature mentioned above, there was no occasion to return a guilty verdict under sections 419 and 420, P.P.C. Consequently, Crl. Appeal No, 318 of 2007 is allowed and while extending benefit of doubt, appellants are acquitted from the charges. They are on bail and their sureties are discharged.
8. As a natural corollary and for the reasons stated above, Crl. Appeal No, 326 of 2007 is dismissed.