SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Amjad alias Billa son of Ghulam Muhammad, Malik/Taili by caste, resident of Mohalla Qadirabad, City Hafizabad and Mukhtar Ahmed alias Maroo son of Ghulam Muhammad, Malik/Taili by caste, resident of Mohalla Qadirabad, City Hafizabad, appellants were involved in case FIR 48/2013, dated 25.01.2013, primarily registered under the provisions of sections 324, 337-A(i), 337-A(ii), 337-L(2), 296, 440, 148, 149, P.P.C., with Police Station City IIafizabad. Subsequently after the elapse of two months and twenty two days on 16.04.2013 provisions of section 295-C, P.P.C., were added. They were tried by learned Additional Sessions Judge, Hafizabad (Camp at Gujranwala) under the afore-mentioned offences. After conclusion of trial, learned trial court vide judgment dated 04.07.2015 convicted and sentenced the appellants in the following terms:- Sr # Name of the appellant Sentence and conviction
(1) Amjad alias Billa Under section 295-C, P.P.C. sentenced to death.
Under section 296, P.P.C., sentenced to undergo R.I. for one year.
(2) Mukhtar Ahmadalais Maroo under section 295-C, P. P.C. sentenced to death.
Under section 296, P. P. C., sentenced to undergo R.I. for one year.
2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed their conviction and sentence through filing Criminal Appeal No.358-J/2015 while the learned trial court forwarded Capital Sentence Reference No.9-T/2017 for confirmation or otherwise of sentence of death inflicted upon the convicts. 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 portrayed in the FIR (Exh.PA/1) lodged on the application (Exii.PA) of Muhammad Aslam son of Noor Muhammad, caste Mughal (PW-1) is that the complainant is resident of Mohalla Sharifpura, District Hafizabad and runs his business at Fazalia Agricultural Industry situated at Gujranwala Road opposite Admore Petrol Pump, Hafizabad. On the intervening night of 24/25.01.2013 at 3:20 a.m. the complainant along with other inhabitants of Mohalla was participating Mehfil-c-Milad. All of sudden accused (1) Amjad alias Billa, (2) Mukhtar alias Maroo, both sons of Ghulam Muhammad, Malik/Taili by caste and residents of Mohalla Qadirabad along with 6/7 unknown accused persons, armed with firearms while riding on a motorcycle Ilonda-125 and Alto Car reached there. Soon they resorted to indiscriminate firing at Mehfil-e-Milad, which created sense of insecurity among the participants and other inhabitants of the locality. The participants of the Mehfil-e-Melad, in order to save their lives, entered in the nearby houses and also went towards streets. The accused persons put off Tashbihat of Roza-e-Rasool and Na'lain Pak and extended abuses to Naat Khawan that Naooz Billah Min Zalik it was Melad of his mother/sister.
Irfan Akhtar and Muhammad Usman both sons of Muhammad Mansha, Muhammad Zaman son of Muhammad Akram son of Shafi forbade the accused on which Amjad alias Billa made a straight fire shot, which while touching hair of Ikram Mustafa son of Muhammad Shafi went away, who luckily escaped. The accused inflicted injuries on the head and right hand of Irfan Akhtar, on left hand and leg of Muhammad Zaman and on the right side of chest and ankle of Muhammad Usman. Thereafter the accused persons made firing with their respective firearms, which hit the nearby parked vehicles and articles arranged for Mehfil-e-Milad, and resulted into sense of insecurity among the public at large. The complainant averred that besides him the occurrence was witnessed by Zahid Rasool son of Muhammad Shafi, Muhammad Younas son of Noor Muhammad and Muhammad Mansha son of Ahmed.
4. In order to report the matter to police the complainant reached Police Station and presented his application before Abu Bakar, ASI (PW-8) on the basis of which formal FIR was chalked out and the investigation was entrusted to Muhammad Arshad, S.I. (PW9), who along with other police officials reached the place of occurrence. From the spot he took into possession Na'lain Mubarak (P-2), one flex containing Shabi of Roza-e-Rasool, one flex containing Shabi of Roza Rasool {{ARABIC TEXT}} Haram Pak and Darood Sharif (P-3), paper posts containing the name of Holy Prophet {{ARABIC TEXT}} (P-4/1-19) a pearl of buntings containing words Aamad-e-Mustafa' {{ARABIC TEXT}} (P-5) vide recovery memo Exh.PB. (cutting and over writing on this memo has been observed by the Court). He also took into possession empty bullets vide recovery memo Exh.PC and prepared rough site plan of the place of occurrence (Exh.PH). On 28.02.2013, Investigating Officer arrested the appellants and obtained their physical remand. Subsequently on 05.03.2013, Investigating Officer added the provisions of offence under sections 298 and 298-A, P.P.C. During the course of interrogation in pursuance of disclosure on 07.03.2013 Amjad alias Billa appellant led to the recovery of rifle .222-bore (P-6), which was taken into possession vide recovery memo Exh.PD.
Subsequently Joint Investigation Team comprising DSP Saddar, SHO and Muhammad Arshad, S.I. was constituted and in light of its report (Exh.PJ/1-7) provisions of section 295-C, P.P.C. were added.
5. As a result of investigation report under section 173, Cr.P.C. was prepared and submitted before the court of competent jurisdiction. Learned Additional Sessions Judge, Hafizabad (camp at Gujranwala), vide order dated 17.10.2014 formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as eleven (11) prosecution witnesses.
6. Muhammad Aslam (PW-1) is complainant of the case and besides him Irian Akhtar (PW- 2).
Muhammad Usman (PW-3) and Ikram Mustafa (PW- 4) are witnesses of ocular account. First Information Report was chalked out by Abu Bakar, ASI (PW-8) while Dr. Zaheer Ahmad (PW-7) had medically examined the injured PWs. Investigation in this case was conducted by Muhammad Arshad, S.I. (PW-9), however, subsequently Joint Investigation Team comprising of Muhammad Waris Bharwana, DSP (PW-l1), SHO and Muhammad Arshad, S.I. (PW-9) was constituted.
7. After conclusion of prosecution evidence, statements of the appellants as required under section 342, Cr.P.C., were recorded wherein they refuted the allegations levelled against them. Both of them opted neither to produce defence evidence, nor did they opt to appear as their own witnesses in terms of section 340(2), Cr.P.C. in disproof of allegations levelled against them in the prosecution evidence.
8. Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt against the appellants resulting into their conviction in the afore-stated terms.
9. Learned counsel for the appellants at the outset contended that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to real facts of the case and material available on record. Learned counsel vehemently contended that the occurrence is stated to have taken place on the intervening night of 24/25.01.2013 at 3:20 a.m.
(night) while the same was reported to the police on 25.01.2013 at 3:45 p.m. with an unexplained delay of more than twelve hours. which requires close scrutiny qua the genuineness of the prosecution version. It was next argued that story advanced by the prosecution in the crime report on the face of it does not appeal to reason. Learned counsel vigorously argued that it has come on record in the statement of Irian Akhtar (PW-2) that he didn't know the whereabouts of the appellants prior to the occurrence and though he stated that he was told names of appellants by the nearby shopkeepers, however, identity of those persons was not brought into limelight. It was argued that although the occurrence had taken place on 25.01.2013, however, provisions of section 295-C, P.P.C., were subsequently added after a delay of two months and twenty two days on 16.04.2013, which speaks volume. Moreover, investigation in this case was conducted by Muhammad Arshad, S.I. (PW-9) in violation of the provisions of section 156-A, Cr.P.C., which straightway smashes the credence of the prosecution version. Further argued that as a matter of fact Mukhtar Ahmad alias Maroo, appellant was injured at the hands of the complainant party and he was also medically examined, however, in order to pressurize the appellants, they were falsely involved in this concocted/fabricated case. Learned counsel vehemently argued that it was a case of scuffle, which was culminated into an offence falling within the provisions of section 295-C, P.P.C., with mala fides of the complainant in connivance with the local police. Lastly it was argued that in absence of any credible and convincing material available on record, the learned trial court was not justified in recording conviction against the appellants, which is liable to be set at naught.
10. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant supported the impugned judgment. As far as delay in lodging the crime report is concerned, it was argued that the injured were medically examined very promptly through police; hence delay in lodging the FIR is not fatal in this case. Learned counsel for the complainant submitted that there is tangible evidence in the shape of statements of Muhammad Aslam (PW- 1)/complainant, Irfan Akhtar (PW-2), Muhammad Usman (PW-3) and Ikram Mustafa (PW-4), who while appearing in the witness-box fully substantiated the prosecution case with regard to mode and manner of occurrence. They are truthful witnesses and their testimony could not be shattered during the course of cross-examination. Next submitted that at the time of spot inspection, Investigating Officer had taken into possession articles which were defiled by the accused including Shabi of Roza-e-Rasool etc. Moreover, crime empties were also collected by the Investigating Officer from the place of occurrence. Next submitted that the prosecution witnesses being quite impartial had no to falsely involve the appellants in this case. Further submitted that in view of evidence brought forth on record, the learned trial court was fully justified in recording conviction/sentence against the appellants, therefore, the appeal preferred by them is liable to be dismissed.
11. We have heard the arguments advanced by learned counsel for the parties and gone through the record available on file with their able assistance.
12. It is cordial principle of law that each criminal case has its own peculiar facts and circumstances; however, admittedly the matter in hand might be the most unfortunate aspect of the judicial scrutiny before a court of law. We being Muslims believe that whosoever made any attempt to segregate the honour or even has any doubt regarding the supremacy of last Prophet {{ARABIC TEXT}} as {{ARABIC TEXT}} has defiled/disregarded the basic postulates of the Muslim faith. Undeniably, Allah (almighty) and His Angels are continuously glorifying the Holy Prophet Muhammad {{ARABIC TEXT}}and sending down upon Him their Blessings and Salutations as they did before the world came into existence and as they will when the world shall remain no more.
13. As far as merits of the case are concerned it has been noticed that according to prosecution own version the occurrence in the instant case had taken place on the intervening night of 24/25.01.2013 at 3:20 a.m. (night) while the same was reported to the police after a delay of more than twelve hours at 3:45 p.m. on 25.01.2013. Perusal of record available on file further reflects that in order to report the matter to police, the complainant, himself reached Police Station and presented his application before Abu Bakar, ASI (PW-8) on the basis of which formal FIR was chalked out.
There is nothing on record to give even a glimpse that after presentation of application at Police Station by the complainant any delaying tactics were adopted by the local police in registration of the case. Hence, in all eventualities the delay in reporting the matter can only be resolved at the part of the complainant while there is nothing on record that under what compelling circumstances this delay occasioned, therefore, only inference which could be drawn out of it is that the crime report was lodged after due deliberations and consultations, which act has been deprecated by the superior courts of the country from time-to-time. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Ayub Masih v. The State (PLD 2002 Supreme Court 1048) wherein FIR recorded under the provisions of section 295-C, P.P.C., with a delay of six hours was declared to have been lodged after due deliberations and consultations.
14. The most crucial aspect of the case requiring scrutiny by this Court is that initially the case was registered under the provisions of sections 324, 337-A(i), 337-A(ii), 337-L(2), 296, 440, 148, 149, P.P.C., which clearly reflects that at the most it is a case of scuffle between two factions of the society. As far as second limb of the prosecution version that the accused had caused damage to Tashbihat of Roza-e-Rasool and Na 'lain Pak, as well as, 'Buntings' installed at 'Mehfil-e-Milad' is concerned, there is no denial to this fact that the memo prepared by the Investigating Officer in this regard carries over-writing/cutting, which has been observed by this Court meaning thereby that changes were made at a belated/subsequent stage against the actual facts and circumstances brought forth during the course of investigation carried out at initial stage. When this aspect is evaluated with the fact that provisions of section 295-C, P.P.C., were added after the elapse of two months and twenty two days, had there been any element of accusation which is reflected in the report prepared under section 173, Cr.P.C. available to the prosecution at very initial stage that must have been given more weight and seriousness which is absolutely missing in the instant case. Besides above from the perusal of the whole prosecution B case we are unable to find out that the ingredients of provisions of section 295-C, P.P.C., are available in this case. There is nothing on record that any of the accused had ever used any derogatory remarks which is sine qua non of the afore-said provision. The same is reproduced as under for ready reference:- "295-C. Use of derogatory remark etc., in respect of the Holy Prophet: Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation directly or indirectly, defies the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.] As far as element of one of the sentence 'behn ka milad' is concerned, if the whole prosecution case qua this aspect is examined, provisions of section 295-C, P.P.C., were added after two months and twenty two days, hence genuineness/authenticity of the same can squarely be ignored on the premise of benefit of doubt as there is no denial to this fact that the whole prosecution case regarding this aspect has been brought at a belated stage without rendering any explanation in this behalf.
Even otherwise case involving the provisions of section 295-C, P.P.C., it is requirement of the legislation that the investigation should have been conducted by a Police Officer not below the rank of Superintendent of Police as envisaged in the provisions of section 156-A, Cr.P.C. The same are reproduced hereunder for ready reference:- "[156-A. Investigation of offence under section 295-C, P.P.C. Notwithstanding anything contained in this Code, no Police Officer below the rank of a Superintendent of Police shall investigate the offence alleged to have been committed by him under section 295-C of the Pakistan Penal Code, 1860, (Act XLV of 1860)1"
However, in the instant case whole proceedings with regard to investigation were carried out by Muhammad Arshad, S.I. (PW-10), which is squarely in contravention to the explicit provisions of supra section, as well as, in violation to the guidelines given by the superior courts of the country on the subject. Although subsequently Joint Investigation Team was constituted, however, again it was headed by an officer of the rank of DSP. Record available on file reflects that Faisal Ali Raja, SSP, who was posted as District Police Officer at the relevant time appeared during the course of trial as PW-10, yet according to his own statement proceedings of JIT were conducted under his supervision only and he was neither part of the JIT nor he himself had investigated the case.
Moreover, the Joint Investigation Team only recommended for adding the provisions of section 295-C, P.P.C., and no findings with regard to involvement of the appellants vis--vis authenticity of the prosecution version in this case were given.
15. Apart from this as far as involvement of the appellants before us in this case is concerned the same also requires detailed scrutiny to arrive at a just conclusion. There is no denial to this fact that while lodging the crime report the complainant had named both the appellants along with 6/7 unknown accused persons. He had also mentioned the details of the prosecution witnesses present over there including Irfan Akhtar (PW-2). Admittedly PW-2 is not related to the complainant or other prosecution witnesses, hence, in this scenario he is quite impartial and independent witness. While making his statement during the course of trial Irfan Akhtar (PW-2) stated that he didn't know the whereabouts of the accused prior to the occurrence. Relevant extract out of his statement is reproduced as under: - "The accused present in the court Mukhtar alias Maroo and Amjad alias Billa were not known to me prior to the occurrence."
However, although according to prosecution version PW-2 is a material witness being injured but while making his statement during the course of trial it was not mentioned by him that he was told about the identity of the accused by the complainant or other witnesses rather it has come on record that he came to know about the names of the accused through adjacent shop-keepers but those shopkeepers were not brought into limelight either during the course of investigation or during the course of trial. Relevant extract out of statement of PW-2 is reproduced as under for ready reference:- "Their names were disclosed by the participants/shop keepers of the congregation of Mehfil-e- Milad (Peace Be Upon Him).
We did not produce the shop keepers/khokha owners, who disclosed the names of the accused, to the police during investigation."
In addition to above, bare reading of the crime report reflects that besides the appellants, 6/7 unknown accused persons committed the occurrence; however, admittedly their identity was not brought on record either during the course of investigation or during the course of trial. This fact straightway hits the very basis of the prosecution version.
16. Another important aspect of the case is that the accused had allegedly assaulted during the course of proceedings of Mehfil-e-Milad and they had also extended abuses to the 'Naat Khawan'.
However, astonishingly neither name of any of the 'Naat Khawan' was mentioned in the crime report nor this fact was disclosed in the statements of the prosecution witnesses recorded under section 161, Cr.P.C. This fact alone shatters the credence of authenticity of the prosecution version.
17. All these facts when scrutinized on judicial parlance and evaluated on the touchstone of observations made above by this Court, as well as, while taking guidance from the principles set by Holy Prophet {{ARABIC TEXT}}, who was extended the title of {{ARABIC TEXT}} by Allah Almighty, this Court is of the considered view that there is nothing on record to establish guilt against the appellants as portrayed in the crime report. 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 amongst the complainant and the prosecution witnesses, was having adequate Islamic knowledge to be tested upon the touchstone of Tazkia-tul-Shahood. 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."
18. 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, Criminal Appeal No.358- J/2015 filed by the appellants is ACCEPTED IN TOTO. Conviction and sentence recorded in the judgment passed by the learned trial court on 04.07.2015 is set at naught. The appellants are ordered to be acquitted of the charge in case FIR 48/2013, dated 25.01.2013, offence under sections 295-C, 324, 337-A(i), 337-A(ii), 337-L(2), 296, 440, 148, 149, P.P.C., registered with Police Station City Hafizabad, and they are directed to be released forthwith, if not required in any other case.
19. Capital Sentence Reference No.9-T/2017 forwarded by the learned trial court for confirmation of sentence of death inflicted upon the convicts fails, which is answered in negative. Death sentence is not confirmed.