SAYYED MAZAHAR AL! AKBAR NAQVI, J.---Manzar-ul-Haq Shah Jahan son of Muhammad Shafi, caste Jatt, resident of Mohalla Mustafa Abad, District Faisalabad, appellant, was involved in case FIR No.20/2009, dated 05.02.2009, offence under Section 295-C, P.P.C., registered with Police Station Raja Jang, Kasur, and was tried by learned Additional Sessions Judge, Kasur. The learned trial court seized with the matter in terms of [Vol. XVIII judgment dated 16.03.2012 convicted and sentenced the appellant as under:- 1 Under Section 295-C', P.P.C., sentenced to undergo imprisonment for lift with fine of Rs.2,00,000/- and in case of default in payment thereof to further undergo R. I. For two years.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant assailed his conviction and sentence through filing Criminal Appeal No.608/2012 while the complainant being dissatisfied with the quantum of sentence preferred Criminal Revision No.491/2012. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as contained in the FIR (Exh.PA/1) lodged on the written application (Exh.PA) of Muhammad Younas son of Mehmood, caste Arain, resident of Raja Jang, Tehsil and District Kasur (PW-2) is that he is special reporter of 'Daily Insaf'. On 26.01.2009 at 8:00 p.m. The complainant along with Muhammad Javed Iqbal son of Muhammad Iqbal, caste Arain (PW-3) went to Police Station Raja Jang to meet with Umar Hayat, S.I., however, he was not available. Thereafter, the complainant went to Shah Jahan/SHO, who met with him in the room of Iqbal Anjam, Incharge Investigation. During their discussion they discussed the matters involving street crime in the village including dacoity with Hafiz Shahid, Imam Farooqia Masjid. On this Shah Jahan said that what to speak about Molvies, they use to commit sodomy with the boys and entice away the girls.
Hafiz Shahid was also such like person, who was only Naatgo' and used to recite 'Naats' that Madinay-walia "Madinay Bula" and na'uzbillah used the blasphemous words in respect of Holy Prophet (P.B.U.H) and also made the sign with his hand. The complainant and his companion left the police station and reaChed Jamia Masjid Mohammadia, Station Wali and after Isha Prayer by taking oath disclosed the whole occurrence before 65 respectable of the village. Hence, this case.
4. The complainant moved an application before District Police Officer, Kasur on the basis of which case was registered and the investigation was entrusted to Israr Ahmed Khan, S.P. (PW-4), who visited the place of occurrence and got prepared rough site plan (Exh.PB). On 09.02.2009, Muhammad Javed lqbal (PW-3) joined the investigation and made his statement under Section 161, Cr.P.C. During the course of investigation, the Investigating Officer referred the matter to 'Dar- ul-Aloom' Jamia Naeemia, Registered, Lahore', and on 07.04.2009 'Fatwa' signed by 5/6 religious scholars was received wherein it was opined that in view of evidence available on record, offence of blasphemy is not made out. Thereafter, the matter was referred to DSP, Legal, for opinion and according to his view (Exh.PD/1), the Investigating Officer prepared report under Section 173, Cr.P.C.
And sent the same to the court of competent jurisdiction. On 10.07.2010, the learned Additional Sessions Judge, Kasur, formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as four (4) prosecution witnesses.
5. Muhammad Younas (PW-2) is the complainant of the case while Muhammad Javed Iqbal (PW- 3) is eye-witness of the occurrence. Abdul Razzaq, S.I. (PW-1) had chalked out formal FIR while investigation in this case was conducted by Israr Ahmed Khan, S.P. (PW-4).
6. The appellant was also examined under Section 342, Cr.P.C, wherein he opted to produce defence evidence, however, he opted not to appear as his own witness in terms of Section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition:-- "I belong to Hanfi, Sunni and Brailvi sect. My father constructed a Ders in village Ulake for the children, where the religious education with regard to Sunni and Brailvi sect is being imparted.
After the death of my father I am managing that Ders. The allegations levelled against me are totally false, baseless and malicious. I can not imagine to utter blasphemous word or make any sign especially with regard to the Holy Prophet During the investigation, at several time, I offered to plead my innocence while swearing on Holy Quran and I am ready to swear Holy Quran that I have not uttered a single word or made any sign blasphemous in nature. One Muhammad Siddique lodged FIR No. 274/08 under section 324, P.P.C. On 03.10.2008 at P. S. Raja Jang. I produced the attested copy of the same as exhibit DC in which Muhammad Siddique alleged that Razzaq, his son sustained fire arm injuries. Muhammad Younis complainant was the supporter of said Muhammad Siddique. Muhammad Idrees was the nominated accused in the said FIR. After investigation, Muhammad Idrees accused was arrested and it came to light that injured Razzaq and Ayub wanted to commit sodomy with Idrees accused nominated in the said FIR in the house of Ayub. Ayub and Razzaq on pistol point intimidated Idrees for committing sodomy and during the scuffle a fire was fired from the pistol of Ayub which hit to Razzaq, the son of the complainant. !Muhammad Idrees also filed a petition under section 22-A of Cr.P.C. And the court order for the registration of the cross-version under sections 377/511, P.P.C. Was registered against Ayub and Razzaq. Muhammad Younis complainant of this case was annoyed due to the above said incident, and he was pressing hard upon me for cancellation of the cross version. Meanwhile, case FIR No.327/2008 dated 20.12.2008 under section 395, P.P.C. Was registered at P.S. Raja fang at the instance of Javed Iqbal P.W. I produced the attested copy of the said FIR as Exh.DD. Muhammad Younis complainant is relative of Javed Iqbal who also was supporting Javed Iqbal in the investigation of that case. Ayyub son of Muhammad Shafi was nominated as an accused along with four other unknown accused. During the investigation Ayyub nominated accused was found to be innocent. On the said findings, Muhammad Younis and Javed Iqbal P. W. Complained against me before the DPO regarding the investigation of the said case. The DPO entrusted the investigation to Inspector Ehsan Elahi Khokhar who was posted in CIA at that time, and after thorough investigation, he also found Ayyub accused to be innocent, and consequently, Ayyub was not challaned in the said case which further annoyed Younis and Javed Iqbal P. Ws. Time and again, they made false complaints against me before the DPO, Kasur. Then, Younis and Javed Iqbal requested me to arrest Muhammad Umar Naib Nazim of Raja fang in case FIR No.327. I apprised them to nominate Muhammad Umar in the supplementary statement but they were not ready for that. Thereafter, due to the result of conspiracy this false case was got registered against me. At the relevant time, I was present at the police station, and one Fazal Qadar son of Ibraheem, Muhammad Mushtaq son of Arif Ali r/o Bhambakalan, Umar son of Ghulam Muhammad r/o Raja fang. Afzal: son of Siddique who was my servant were present with me.
According to the FIR, Iqbal Najam Inspector investigation has been shown to be present and was a witness of the alleged occurrence. Neither I uttered about the Molvis nor. I uttered any word that Molvi do commit the offence of sodomy with children in Hujra and enticed away the girls. I also did not utter Na'uzbillah any blasphemous word in respect_ of the Holy Prophet (11.11;,-6.1.Vicr nor made any sign. On 26.01.2009 at evening time, master Amanat AU informed me on telephone that quarrel has taken place between Molana Manzoor Ahmed Qadri and Molvi Muhammad lifan on religious matter, and they wanted to come at the P.S. 1 instructed them to be present in the mosque and I myself is coming to the mosque. Then I myself went to Masjid Adday Wali where 30/35 Molana Hazrat were present who apprised me regarding the quarrel which taken place in between them. 1 spent 5-6 hours for patching up the matter and returned back to P.S. At about 1:00 a.m. Midnight. On 28.01.2009, the above said religious scholar along with the respectables came at the P.S. In the presence of Mian Muhammad Arshad, the then DSP/SDPO of P.S. Raja fang and produced Sulah Nama before the DSP, and this fact also was proved during the investigation, that the Molana Sahban were present with me at Adday Wali Masjid on the night of 26.01.2009, and none from the said Aulama Ikrams complained against any blasphemous remarks as have been attributed to me by the complainant. About 102 respectables of the area appeared before the 1.0. To prove my innocence. They also submitted their affidavits, which are part of the police file."
7. Learned trial court after evaluating the evidence available on record found the version of the prosecution proved beyond shadow of reasonable doubt against the aivellant resulting into his conviction in the afore stated terms.
8. Learned counsel for the appellant while addressing the Court argued that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts of the case and law on the subject. Learned counsel vigorously argued that the prosecution witnesses of occular account are partial and biased, therefore, their statements are not trustworthy. Learned Counsel contended that Muhammad Younas complainant (PW-2) under the garb of a press reporter, was in the habit of approaching the concerned police station and influencing the appellant to extend undue favour to the parties of his choice in a number of cases and on his refusal, the complainant by joining hands with Muhammad Javed Iqbal (PW-3) by concocting a fake/frivolous story, roped him in this case false case. Learned counsel vigorously argued that the appellant belongs to 'Fiqa-Hanfi/Brailvi', and his father used to run 'Madrisa for religious education in the village and on his death the same is being maintained by the appellant and his other family members on the same footing and number of young students are being blessed out of the Islamic Teachings. Therefore, he cannot even think to utter blasphemous words in respect of the Holy Prophet (P.B.U.H) and the story advanced by the complainant is without any foundation. Further submitted that the Investigating Officer/PW-4 conducted investigation while sitting in the mosque: wherein Muhammad Javed Iqbal (PW-3) did not support the accusations contained in the crime report. Next argued that the matter was also referred to the religious scholars and according to 'Fatwa' in view of evidence available on record, no offence under Section 295-C, P.P.C., is made out. It was further argued that during the course of investigation, the Superintendent of Police (Investigation) found the appellant innocent as such placed his name in column No.2 of the report prepared under Section 173, Cr.P.C, therefore, in absence of any credible and convincing material available on record, the learned trial court was not justified in recording conviction against the appellant, which is liable to be set at naught.
9. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant supported the conviction recorded by the learned trial court. Learned counsel for the complainant submitted that it was very unfortunate that the appellant has used blasphemous words in respect of Holy Prophet which a Muslim cannot dare to utter in all eventualities and even cannot think it in dream. While referring certain `Ayat-e-Karima' from the Holy Quran and `Ahadiths' learned counsel for the complainant has emphasized that being a Muslim, other than Go4 (almighty) the Holy Prophet is the only personality for which we are bound to extend the esteem respect in the Universe. Learned counsel contended that the act of the appellant tantamounts to an attempt to lower tbe respect of Holy Prophet rilici.'..Tikr, hence in view of evidence brought forth on record in the shape of occular account, the same squarely attracts the provisions of Section 295-C, P.P.C. As far as innocence of the appellant recorded by the Investigating Officer is concerned, it was argued that he being police official was extended concession by his senior colleague, therefore, the same is of least importance.
' While arguing Criminal Revision 491/2012, learned counsel for the complainant argued that the evidence adduced by the prosecution fully satisfies the provisions of Section 295-C, P.P.C., therefore, he deserves normal penalty of death provided under the statute, which aspect of the case escaped notice of the learned trial court while inflicting sentence.
10. I have heard the arguments advanced by learned counsel for the parties and gone through the record available on file with their able assistance.
11. It is very unfortunate that the instant occurrence was reported to the police in the manner as mentioned in the crime report. Any person who claims himself to be a Muslim cannot utter such derogatory / blasphemous words with reference to Holy Prophet While scanning the material available on record this Court has observed two aspects, which are essential for consideration to determine the roots of the accusations while adjudicating the instant lis:--
(1) Whether these words were actually uttered by the appellant? If so, sentence inflicted by the learned trial court is in exact proportionate to the act committed by him!
(2) Whether the prosecution has levelled the accusations wrongly and if so disposal of the lis while touching upon merits of the case would be suffice or it calls for any stern action against the complainant and others?
12. It is absolute faith of the Court that none in this world can undermine the respect, honour, sanctity, inviolability and piety of Holy Prophet as the same has been guaranteed none else except Allah (almighty). The title of Hazrat Muhammad being is part and parcel of every Muslim, who recites `Kalma' and pays allegiance to His Holy Personality. Whosoever made any attempt to segregate honour or even has any doubt regarding His supremacy as the Last Prophet is none except infidel. Undoubtedly Allah (almighty) and Angels are reciting His glory and the glorified remembrance of Holy Prophet in continuation since emergence of this world and will remain forever. Even observance of the same respect and honour is the very basis of faith of every Muslim.
' His virtues and dominance over the whole Universe bestowed upon Him by Allah (almighty) and esteemed protocol as being has been mentioned in Surah Al-Ahzab, Verse No.56, in the following words:-- "56. Surely, Allah send down His Blessings on the Prophet and His Angles pray for him. 0 the people who have attained to faith! Send your blessings on him and salute him fully with best salutation."
' Further Allah (almighty) has provided guidelines to establish contact with the Holy Prophet for which modus operandi has been mentioned in Sura AlMujadla, Verse No.12, which read as under:-- {{ABABIC TEXT}} "12. 0 you who have attained to faith! When you consult the Messenger in private, then spend something in charity before your private consultation. That will be better and purer for you. ' But if you do not find (anything to give) then surety, Allah is Oft-Forgiving, Most Merciful."
Further Allah (Almighty) has used two words wherein enlightenment of 'Allah', as well as, 'Holy Prophet was extended to the whole world that is why when Allah (Almighty) has used words for HIMSELF the same domain has been extended rather equated in respect of the Holy Prophet through analogizing but the only difference is the word and but the domain is the same. In our history number of philosophers have described the personality of Holy Prophet in so many glorifying words. Sheikh Saadi, one of the greatest scholars, has described it as Personality of Highest Esteem in the Universe after God (Almighty) in elegant and comprehensive phrase.
13. While taking into consideration few verses of Holy Book and evaluating the other aspects of the Personality of the Holy Prophet this Court has taken into consideration the merits of the case in its totality according to which the occurrence in this case is stated to have taken place in the month of January when usually in this part of the world sun sets around 5:15/5:30 p.m., hence in the mosques of Hanfia, the Isha Prayers are offered around 7:00/7:20 p.m. While according to contents of the crime report the complainant along with Muhammad Javed Iqbal (PW-3) had approached the police station at 8:00 p.m. In order to see Umar Hayat, S.I. Who was not available and thereafter they went to the office of SHO, who took them in the room of Iqbal Anjum, Inspector/Incharge Investigation where allegedly the unfortunate occurrence took place and thereafter, by covering a reasonable distance, the complainant along with Muhammad Javed Iqbal (PW-3) went to the mosque. Hence, in all eventualities the complainant and PW-3 must have reached the mosque around 9:00 p.m. And it seems very, unusual that without any previous intimation for gathering, through making announcements in the loudspeaker or using other sources of communication which is not even the claim of the prosecution, after offering their prayers, the villagers had opted to stay over there till that time i.e. Perhaps around 1-1/2 hours after Isha Prayer.
14. The veracity of the contents of the complaint (Exh.PA) on the basis of which formal FIR (Exh.PA/1) was chalked out is also open to certain exceptions as it has come on record that the application for lodging the crime report was chalked out after due deliberation and consultations and that's too by friends/companions of the complainant. So much so before its presentation at Police Station it was also shown to legal advisor for advice, which fact was duly admitted by the complainant during the course of cross-examination in the following terms:- "My companions/friends prepared the application then the same was got typed through a computer. Draft of the application/complaint was got perused through our counsel/legal advisor."
' The above portion of statement of the complainant is suggestive of the act that contents of the crime report are not based on the true story which allegedly had taken place at the time of occurrence rather it was lodged after due deliberations and consultations.
15. Perusal of record available on file also reflects that the alleged occurrence had taken place in the room of Iqbal Anjum, Inspector/Incharge Investigation, who was also a rightist Muslim while according to Muslim philosophy the esteem respect of the Holy Prophet is the very basis of our faith. The prosecution has not brought any material on record that either Iqbal Anjum, Inspector was non-Muslim or he was not enjoying the status of rightist Muslim. Hence, had there been any blasphemous remarks by the appellant with reference to keeping in view the fact that a Muslim can sacrifice his life but cannot tolerate the blasphemy of the Holy Prophet said Iqbal Anjum must have supported the prosecution accusations contained in the crime report. Presence of said Iqbal Anjum, Inspector was also admitted by the complainant at the time of making his statement in the following terms:-- "At the time of occurrence, I, Javed and Iqbal Anjum Inspector Incharge investigation were present, who was watching the television."
' However, during the course of investigation conducted by Israr Ahmed Khan, S.P. (PW-4), said Iqbal Anjum Inspector had not supported the accusations contained in the crime report. This fact was also admitted by the complainant during the course of cross-examination, relevant portion of which reads as under:-- "It is correct that the Inspector Iqbal Anjum during the investigation before the SP investigation recorded his statement who recorded his statement to the effect that no such derogatory words were used and he further recorded his statement that I and Javed P.W. Never expressed their intentions and impressions regarding this occurrence to the said Iqbal Anjum Inspector police while leaving the place."
16. The most crucial aspect of the case is that during the course of investigation conducted by Israr Ahmed Khan, SP (PW-4), Muhammad Javed Iqbal (PW-3) had not supported the prosecution accusations, which fact was admitted by PW-4 during the course of cross-examination, which is reproduced as under:-- "On my question repeated three times, Mr. Javed ,Iqbal replied that he again reiterated that the words narrated in the FIR with reference to Holy Prophet (PBUH) were not stated and narrated by the accused in his presence."
' Moreover, the complainant had also admitted that during the course of investigation, conducted while sitting in the mosque, in his presence the appellant took oath on Holy Quran that he had not committed any occurrence. Relevant extract from his statement is reproduced as under:-- "In my presence the accused present in the court on oath of Holy Quran professed his innocence and not committing of offence."
17. It is also relevant fact to observe that the appellant belongs to Hanfi/ Sunni/Brailvi sect and it is also part of the record that father of the complainant had constructed a Madrissa in village Ulake for religious education of the children. Moreover, after death of his father, the appellant is managing the affairs of Madrissa where hundreds of young children are being blessed with Islamic teachings. Moreover, it has also come on record that the complainant under the garb of press reporter has been appearing before the appellant in the capacity of SHO in connection with certain cases. In case FIR No.274/2008, offence under Section 324, P.P.C., Police Station Raja Jang, Kasur, the complainant was supporting Muhammad Siddique father of the injured Razzaq. In that case cross- version was registered under Sections 377/511, P.P.C., against the injured which had offended the complainant. Subsequently case FIR No.327/2008, dated 20.12.2008, offence under Section 395, P.P.C., was registered at Police Station Raja Jang, Kasur at the instance of Javed Iqbal, relative of the complainant. During the course of investigation the vires of the above crime report were found false and in this regard the complainant of the instant case and said Javed Iqbal had appeared before the District Police Officer for change of investigation.
18. All these facts when scrutinized on judicial parlance with regard to credibility of the contents of the crime report particularly when it is an admitted fact that the complaint was prepared by friends and companions of the complainant and not by himself the fact that Muhammad Javed Iqbal (PW-3) had not supported the A prosecution version during the course of investigation, as well as, during the course of trial coupled with the fact that Iqbal Anjum, Inspector, who according to prosecution version was also present in the room where the occurrence had taken place, however, he did not support the prosecution accusations, the fact that the appellant, during the course of investigation, had sworn on Holy Quran that he had not committed any offence as contained in the crime report, as well as the factual that the appellant belongs to a religious family of 'Fiqa-e-Hanfia' and a Madrissa for religious education was also being run by him and his family coupled with the fact that the complainant had admitted that he used to visit the Police Station in connection with investigation of certain cases being conducted by the appellant himself and on his refusal to favour the party of his choice even he had filed application before the District Police Officer, Kasur for change of investigation, create serious dents in the authenticity of the prosecution version, which go to its root and this Court is of the firm view that in these circumstances to maintain conviction/sentence as inflicted by the learned trial court would be against the canons of safe administration of criminal justice especially when none of the complainant and the prosecution witness was having adequate Islamic knowledge to be tested upon the touchstone of Tazkia-tulShahood. In the case of Ayub Masih v. The State (PLD 2002 Supreme Court 1048), it was held as under:-- "---S. 295-C---Allegation of use of derogatory remarks etc. In respect of the Holy Prophet (p.b.u.h.)--- Burden of proof---Defiling words highlighted in the FIR certainly constituted the offence under S.295-C, P.P.C. But the prosecution had failed to prove its case against the accused beyond any reasonable doubt---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."
19. Being a believer, it is bounden duty to decide the case by minutely going through the evidence brought forth on record within the parameters of prevailing law. In this respect guidance is sought from the saying of Hazrat Imam Ali (A.S) described in NAHJUL BALAGHA: {{URDU TEXT}} Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Therefore, keeping in view the facts and circumstances of the case, whole prosecution version seems to be hinging upon the conjectures and surmises; hence, this cannot reconsidered as legal evidence to connect the appellant with the commission of offence and the learned trial court was not justified in convicting the appellant while basing such an inconsistent/incoherent evidence, which even otherwise is full of material contradictions/flaws. Resultantly, Criminal Appeal No.608/2012 filed by the appellant is ACCEPTED IN TOTO. Conviction and sentence recorded in the judgment of the learned trial court passed on 16.03.2012 is set at naught. The appellant is ordered to be acquitted of the charge in case FIR No.20/2009, dated 05.02.2009, offence under Section 295-C, P.P.C., Police Station Raja Jang, Kasur, and he is directed to be released forthwith, if not required in any other case.
20. As far as Criminal Revision No.491/2012 filed by the complainant seeking enhancement in sentence is concerned, for the foregoing reasons, we find no legal justification in the same, which is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.