1. QAZI MUHAMMAD AMIN AHMED, J. --- Impugned herein is judgment dated 31-10-2013, returned by a learned Addl. Sessions Judge at Rawalpindi in the wake of a trial held in Central Jail Rawalpindi wherein Usman Rasheed, appellant herein, stands convicted under Section 295-C of the Pakistan Penal Code, 1860 and sentenced to death; he is additionally convicted under Section 295-A of the Code ibid and sentenced to 10-years RI with benefit of Section 382-B of the Code of Criminal Procedure, 1898, however, he is acquitted from the charge under Section 380 of the Code ibid. 2.Prosecution case is structured upon complaint Ex.PC recorded by Muhammad Aslam SI (PW-7) on 15-52010 on the statement of Zubair Zaib Abbasi (PW-4) wherein it is alleged that the appellant, who served at a local pharmacy and left two years back with a letterhead pad, used by him to inscribe derogatory remarks to defile the sacred name of the Holy Prophet (Peace Be Upon Him); according to the complainant, the appellant visited the outlet on 15-5-2010 at an unknown point of time and as he confronted the complainant accompanied by Muhammad Sabeel, he was subdued and handed over to the police; his formal arrest is shown as on 15-5-2010; initial investigative steps were taken by Muhammad Aslam SI (PW-7), who secured writing Ex.P.A presented before him by Zubair Zaib Abbasi (PW-4) vide memo Ex.PD investigation was taken over by Hanif Ahmad, Superintendent of Police (Investigation) Rawalpindi (PW-13); on 24-1-2011. the impugned writing was taken by this witness and transmitted to NADRA for comparison with samples taken on 28-2-2011 before Muhammad Ashraf Gondal. learned Judicial Magistrate Rawalpindi; he never appeared before the Court and instead prosecution relied upon the statement of Kamran Akbar, Ahmad (PW-6). The next in line is Israr Ahmad Khan Abbasi.
2. Superintendent of Police (PW-12); he sent the appellant to the Court. Hafiz Muhammad Ishaq (PW- 8) and Haji Fazal-e-Karim (given up PW) were associated with the investigation; they produced before the Investigating Officer leaves of letterhead of the pharmacy with derogatory remarks thereon, secured vide memo Ex.PG. Hanif Ahmad, Superintendent of Police (PW-13) took into possession an undated panaflex banner (P-1) through memo Ex.PE whereby general public was requested to track down the miscreants misusing pharmacy's letterhead used to dissem1nate derogatory material he also secured through memo Ex.PF, a piece of paper marked as PW-13/A along, with a photocopy of appellant's 'national identity card that purportedly carried a confession allegedly made by the appellant before Zubair Zaib Abbasi (PW-4). Amir Ali Hussain Khan (PW-11) carried out comparison of derogatory writing with handwriting specimens; his report is Ex.PJ, indicating various points of similarity, however, with an element of disguise. The appellant. who had pleaded innocence before the Investigating Officer at the time of his arrest, once again confronted prosecution evidence with a denial in the following terms:-- "was employee with De-Watson. They had not paid my salary for which I also issued legal notice to them, therefore, after maneuvering with the police, this false case was registered against me."
3. However the learned trial Judge .proceeded to convict and sentence the appellant vide the impugned judgment as referred to above.
4. 2.Learned counsel for the appellant contends that the appellant is a devout Muslim and cannot even think of committing contempt of a personage whom he considers his last hope for redemption; that the entire prosecution is sullied with the taint of malafide to settle a score by abusing penal provisions to grind an axe; that the appellant pleaded innocence from the day one till conclusion of trial and as such his position merited preference over flawed pieces of evidence introduced belatedly; that the appellant, a weakling, had no rhyme or reason to confront his mighty erstwhile employer locked with him in a dispute over payment of his wages; the bottom line of submissions made at the bar is that the prosecution miserably failed to prove its case beyond reasonable doubt and as such there was no occasion for the learned trial Judge to return a guilty verdict. The learned Law Officer assisted by learned counsel for the complainant, contrarily defended the impugned judgment on the ground that the appellant had committed a most heinous crime by offering contempt not only to the Prophet (Peace Be Upon Him) but also misused letterhead of a reputed business house; they concluded that prosecution successfully brought home the charge against the appellant through various pieces of evidence that according to them excluded every hypothesis of appellant's innocence.
5. 3.Heard. Record perused.
4. A charge involving ultimate penalty of death warrants a most cautious and careful scrutiny; it becomes all the more necessary when it is resting primarily on verbal assertions alone or upon pieces of evidence that may come about through sources easily available. In the present case, the charge is structured on ocular account. seizure of derogatory material and its forensic analysis. On ocular side. Zahid Waseem (PW-1), Sheikh Naveed Alt (PW-2). Muhammad Shafique (PW-3). Zubair Zaib Abbasi (PW-4) and Muhammad Sabeel Awan (PW-5) joined in unison to implicate the appellant; of them, Zubair Zaib Abbasi (PW-4) authored complaint Ex.PC; their case in the nutshell is that on 15th of May 2010 at about 10:30 a.m. the appellant visited the outlet and presented them leaves of letterhead with derogatory writing whereafter he was subdued by the witnesses; it is alleged in complaint Ex.PC that the appellant who previously served in the pharmacy and left job two years back had stolen the letterhead pad. In the written complaint. Zubair Zaib Abbasi and Muhammad Sabeel are shown as the only witnesses, who confronted the appellant and handed him over to the police same day. however, there is nothing in writing on the record to confirm the arrest of the appellant on the said date except for an assertion by Muhammad Aslam SI (PW-7) in his examination-in-chief that he formally arrested him, however, without mentioning any date thereof. Site plan Ex.PH depicting the place of occurrence prepared by this witness is not on judicial file, however, it is noticed in the police file wherein alongside the complainant one Muhammad Tabassam is shown present at the time of appellant's arrival. This initial structure of the prosecution case does not admit presence of Zahid Waseem (PW-1), Sheikh Naveed Ali (PW-2), Muhammad Shafique (PW-3) and Muhammad Sabeel Awan (PW-5), though Munammad Sabeel (PW-5) figures in complaint Ex.PC; he is conspicuous by his absence in the site plan prepared on 155-2010. Similarly, narrative related by Zahid Waseem (PW1) is not inconsonance with the details given in Ex.PC, as according to him, he was present in his office at Circular Road when at 11:00 a.m. he was informed on his cell phone about appellant's presence in the shop with derogatory papers; according to this witness, as he reached the scene, his meeting was arranged with the appellant, who admitted his guilt before him and that police arrived in his presence to whisk away the appellant. Zubair Zaib Abbasi complainant (PW-4) massively deviated from position taken by him in complaint Ex.PC. though he was not confronted therewith within the contemplation of Article 140 of the Qanun-e- Shandat Order, 1984, however, as he admitted contents of complaint Ex.PC in the witness-box, his departure therefrom can be taken into consideration in order to ensure safe administration of criminal justice: in the witness box, he referred to the arrival of the appellant in the pharmacy to admit his culpability mentioned in banner (P-1) when asked by this witness to establish his admission, according to him, the appellant took a letter out of his pocket, contents whereof, constituted contempt; he again asked to re-write the same and, according to him, the appellant once again readily obliged him; one would find it really hard to buy the story. Muhammad Sabeel Awan (PW-5) is one step ahead of other Witnesses; according to him, the appellant confessed before Zubair Zaib Abbasi (PW-4) that he had stolen the letterhead pad to his back; it is not latter's position either in the witness box or in complaint Ex.PC. It would be grievously unsafe to rely upon those witnesses, particularly when it is an admitted position that the appellant served as a salesman and was demanding his wages. The entire edifice is founded upon a letterhead pad, allegedly stolen by the appellant two years before the occurrence when he left the job and he is indicted for the theft as well, however, acquitted from the charge with no appeal against his acquittal on the said Charge either by the complainant or by the State. Prosecution also failed to improve upon its case on forensic side. According to Hafiz Muhammad Ishaque (PW-8), he found contemptuous writing on letterhead pad (Ex.PB) which he produced before Muhammad Hanif, Superintendent of Police (PW-13) on 26-1-2011, although according to him, it was with him since an unspecified. point of time before the said date; there was no occasion for this witness to keep this sacrilegious material with him for so longer period; even otherwise, seemingly there is no reason to plausibly explain withholding of this information till so late in the day and this certainly adversely impact upon handwriting comparison being relied upon by the prosecution; same is the case with banner (P-1) produced by Zubair Zaib Abbasi (PW- 4) as late as on 24-1-2011; the prosecution case runs reverse in chronological order. Amir Ali Hussain Khan (PW-11) carried out handwriting comparison between Ex. PA and Ex.PB with specimen sheet S-1 to S-24, he stated in his examination-in-chief:- the element of disguise was present...
6. He admitted in his cross-examination. it is correct that letter dated 25-6-2010 bearing No,4168/FSL Lab. No,3497/10 was sent by me that in questioned document and specimen handwriting are not enough and desired to consult previously written routine Urdu writing on notes, etc"; the witness also admitted that photocopies of the disputed documents were sent for analysis. Once having admitted that dispatched material was insufficient to carry out a reliable analysis, particularly. when the disputed material consists of photostat copies, there was hardly an occasion for this witness to make a reference to the points of possible similarity; even otherwise, opinion of a handwriting expert has its own limitations.
7. The owner of business house preferred to stay in the background; he sent forward witnesses not only on his payroll but diametrically discrepancy with one another and as admittedly the appellant had a dispute with his erstwhile paymaster, it would be unsafe to maintain the conviction, particularly, when the charge is tumbling on forensic side as well. Consequently, by extending benefit of doubt to the appellant, Crl. Appeal No,76-J of 2-13 is allowed; impugned judgment dated 31-10-2013 is set aside; the appellant is acquitted from the charge: he shall be released forthwith if not required in any other case. Capital Sentence Reference No,11-T of 2013 is answered NEGATIVE and death sentence is NOT CONFIRMED.