RAJA SHAHID MEHMOOD ABBASI, J. Through this judgment, we intend to decide Criminal Appeal No.1030 of 2018 filed by Qaiset Ayub appellant against his conviction and sentence along with Criminal Appeal No.1031 of 2018 filed by Amoon Ayub appellant against his conviction and sentence and reference (Capital Sentence Reference No. 7-T of 2018) sent by learned trial court for confirmation or otherwise of death sentence passed against the appellants, as all these matters have arisen from the judgment dated 13.12.2018, handed down by learned Additional Sessions Judge, Talagang (Chakwal), in case FIR No.105 dated 09.06.2011, registered under sections 295-C, 295-A, 295-B, P.P.C., at Police Station City Talagang, whereby the appellants were convicted under section 295-C, P.P.C. and sentenced to death each with fine of Rs.1,00,000/- each or in default thereof to undergo six-months S.I. each.
2. Factual resume of the case gleans out from FIR (Ex.PB) lodged on the basis of application (Ex.PA) of Muhammad Saeed complainant, supplemented with the printouts of blasphemous portraits and articles, is that during August 2010, Qaiser Ayub and Amoon Ayub appellants, having telephone No.042-5091181, mobile No.0322-9811775 and website ' www.ucopak.org ' , published blasphemous material in the shape of portraits and articles through their website and gave wrong references from the Holy Quran in order to derogate and insult the Holy Prophet Hazrat Muhammad and excruciated the feelings and emotions of Muslims of all over the world, particularly those living in Pakistan.
3. After registration of FIR, the investigation against the appellants was carried out; they were apprehended and recoveries were effected from them, digital forensic analysis of recovered articles/material was conducted and finding them well-connected with the allegations, they were sent before the learned trial court to face the trial.
4. On indictment, appellants denied the charge and claimed trial and in order to prove its case, prosecution produced twelve witnesses, detail of which finds an elaborate mention in the judgment passed by learned trial court. The prosecution closed its evidence after giving up witnesses namely Khalid Khalil, Muhammad Ehsan, Zahid Jabar, Muhammad Ameen 549/C and Muhammad Bashir 522/C, being unnecessary, Altaf Hussain S.I. being dead and Umar being untraceable. Thereafter, the appellants were examined under section 342, Cr.P.C. whereby they professed their innocence and pleaded false implication in the case. They did not opt to make statements on oath as provided under section 340(2), Cr.P.C. in disproof of allegations levelled against them but Amoon Ayub appellant produced certain documents in his defence. Learned trial court, upon conclusion of trial, proceeded to convict and sentence the appellants as mentioned in paragraph No. 1 above. Hence, the appeals and capital sentence reference.
5. Learned counsel for the appellants contended that the factual and legal aspects of the case have not been appreciated in true perspective, resulting in grave miscarriage of justice; that the prosecution was miserably failed to substantiate the factum of accusation by producing independent evidence, which aspect of the matter went unnoticed causing serious prejudice against the appellants; that the appellants are absolutely innocent and they cannot even think to commit such a heinous offence, yet they were falsely implicated in this case with mala fide intention and ulterior motive; that the prosecution has not explained as to how the complainant came to know about appellants' involvement in this case; that nobody had seen the appellants while creating/ writing blasphemous portraits/articles and there is no evidence that they had in fact published the same on 'www.ucopak.wordpress.com' and even the administrators of 'www.ucopak. wordpress.com' were not joined with the investigation or produced before the trial court to establish any connection of appellants with blasphemous material; that fake recoveries were planted on the appellants and thereafter blasphemous material was inserted in computer devices in order to create some evidence in this case of no evidence; that the website i.e. 'www.ucopak.org' belonging to one of the appellants does not contain any blasphemous material and the allegation of blasphemy is based on material which is allegedly available on 'www.ucopak. word press.com', meaning thereby the appellants have no concern with blasphemous material; that the digital forensic analysis report is fabricated and concocted and has been maneuvered through unfair means, which cannot be made basis to maintain conviction and sentences of appellants on the capital charge; that as a matter of fact, complainant and other private witnesses had personal axes to grind against the appellants, so they falsely implicated them in this case by levelling serious allegation and later on the investigating agencies did not properly investigate the matter; that the prosecution has failed to prove its case beyond the shadow of doubt and the evidence so produced is neither confidence-inspiring nor worthy of credence, hence, prayed that the appeals filed by the appellants may be accepted and they may be acquitted of the charge.
6. On the other hand, learned counsel for the complainant argued that the complainant as well as other prosecution witnesses had no earthly reason whatsoever to falsely involve the appellants in this case; that prior to lodging of instant crime report by the complainant, an inquiry was conducted by Cyber Crime Wing on his application, in which it was concluded that the appellants had uploaded blasphemous material on internet in order to insult, disgrace and derogate the Holy Prophet Hazrat Muhammad , Quran and Sunnah and also to hurt the feelings and emotions of Muslims, but Cyber Crime Wing lacked jurisdiction to prosecute the appellants, due to which the complainant was constrained to lodge crime report before the police; that after the arrest of appellants, both of them got recovered laptops and other computer/data as well as internet devices and articles and since the laptops, hard discs etc. recovered at the instance of appellants were containing their personal information as well, the appellants cannot claim that the recoveries thereof were fake or planted; that huge quantity of blasphemous material was recovered from the computer devices recovered at the instance of appellants for which they could not furnish any plausible justification; that it has also successfully proved through digital forensic analysis report (Ex.PK) that the Internet devices recovered from the possession of appellants were used in uploading blasphemous material on internet; that appellants did not deny their connection with 'www.ucopak.com' as well as their other information, which was used for creating account and posting blasphemous material on 'www.ucopak.wordpress.com'; that the reason advanced by the appellants for their implication in this case is nothing but a pack of lies and they were miserably failed to prove the same during investigation as well as during trial. Learned Law Officer, while adopting the arguments of learned counsel for the complainant, added that the prosecution has amply proved the case against the appellants beyond any reasonable doubt, so their appeals may be dismissed, conviction and sentences may be maintained and capital sentence reference may be answered in affirmative.
7. We have heard the learned counsel for the parties as well as learned Law Officer and have examined the record with care and caution.
8. The Constitution of Islamic Republic of Pakistan, 1973, in its preamble, provides that sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; and it is the will of the people of Pakistan to establish an order, wherein, o the State shall exercise its powers and authority through the chosen representatives of the people; o the principles of democracy., freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed; o the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures; The Constitution of the Islamic Republic of Pakistan, 1973 is structured upon the philosophy that the country is an Islamic State wherein the Muslims are entitled to live in accordance with their religious faith whereas minority are given equal right to profess and follow their respective religions. The balance of constitutional religious harmony can best be maintained by paying respect to the faith and sentiments of others. Neither the Muslims be permitted to take advantage of their majority for infringing the religious sentiments of other citizens nor any person hailing from a minority be disrespectful to Islamic injunctions. The case in hand rests upon various posts uploaded on Internet whereby not only the sacred name of Holy Prophet Muhammad was besmirched but at the same time purity of Quran as divine book was mocked as is evident from Exh.PI/1-7, Exh. PJ/1-12, Exh. PN/9 and Exh.PN/14-22. Besides that, the posts so shared on the Internet also contained material of extreme derogatory nature about the Holy Bible (Exh.PN/8), the divine status of which is acknowledged equally by Muslims and Christians. Some of the posts including Exh.PN/9, Exh . PN/10, Exh. PK/11, Exh PKJ 12, Exh.PK/14 and Exh.PK/15 are offensively derogatory as these are containing caricatures of- Allah Almighty, Holy Prophet Muhammad , Hazrat Isa (A.S) and Hazrat Zainab (RTA). Through the post (Exh.PK/11), the Nikah of Holy Prophet Muhammad , with Hazrat Zainab (A.S) was derided through a caricature. Needless to mention here that the Nikah of Holy Prophet Muhammad , was solemnized upon the command of Almighty Allah as is evident from Verse No.37 of Surah Al-Ahazab. For reference sake, the translation of above referred of Quranic verse is being reproduced hereunder:- "O Prophet, remember the time when you were saying to the man, whom Allah as well as you had favoured, "Keep your wife and fear Allah." You were at that time keeping hidden in your heart that which Allah intended to reveal: you were fearing the people, whereas Allah has a greater right that you should fear Him. So, when Zaid had fulfilled his desire of her, we married (the divorced woman) to you so that there remain no hindrance for the believers in regard to the wives of their adopted sons when they have fulfilled."
Since the contents of all these derogatory and blasphemous posts are part of record, hence, we intentionally opted not to mention their details in the judgment. The blasphemous genesis of the material so brought on record in support of indictment is not even challenged by learned counsel for the appellants. Inexorably, if the general public gains access to the subject posts, it can ignite rage and fury sufficient for bringing to ashes even any city of the country. Despite having gone through the questioned posts, we have clarity of mind that fate of case in hand is to be decided without being driven or influenced by the sentiments or emotions, rather in accordance with settled principles laid down for appraisal of evidence. Administering justice is the command of Almighty Allah, Sunnah of Holy Prophet Muhammad , and legal requirement of our oath taken while assuming the office of a Judge. A Judge while deciding the case has to rise much above his religion, patriotism, caste and creed. Even otherwise, Islamic injunctions about imparting justice are strict in nature and unjust judge is doomed to land in hell on the final day. In this regard it is appropriate to refer the commands of Almighty Allah ordained in following verses of Holy Quran for administering justice:-- "(1) Surah al-Nahl (Verse-90)
"Surely Allah enjoins justice, kindness and the doing of good, to kith and kin, and forbids all that is shameful, evil and oppressive. He exhorts you so that you may be mindful.
(2). Surah Al-Nisa (Verse-58)
"All commands you to deliver trusts to those worthy of them; and when you judge between people, to judge withy justice. Excellent is the admonition Allah gives you. All is All-Hearing, All-Seeing."
(3). Surah Al-An'am We task not any soul beyond its scope. And if you give your word, do justice thereunto, even though it be (against) a kinsman; and fulfill the covenant of Allah. This He commands you that haply you may remember."
Even the Holy Prophet Muhammad , always laid emphasis upon administering justice in all circumstances as is evident from following sayings (hadiths):-
(1) A woman of the Makhzoom family with good connections was found guilty of theft. For the prestige of the Quraysh, some prominent people including Usaamah Ibn Zayd, may Allah be pleased with him, interceded to save her from punishment. The Holy Prophet Muhammad refused to condone the crime and expressed displeasure saying: "Many a community ruined itself in the past as they only punished the poor and ignored the offences of the exalted. By Allah, if Muhammad's (My) daughter Fatimah would have committed theft, her hand would have been severed." [Al-Bukhari]
(2) Abu Sa'eed reported: The Messenger of Allah, peace and blessings be upon him, said: Verily, the most beloved of people to Allah on the Day of Resurrection and the nearest to Him will be the just leader. The most hated of people to "Allah and the furthest from Him will be the tyrannical leader". (Sunan At-Tirmidhi 1329).
(3) Narrated Buraydah ibn al-Hasib: The Prophet (peace be upon him) said: Judges are of three types, one of whom will go to Paradise and two to Hell. The one who will go to Paradise is a man who know that is right and gives judgment accordingly; but a man who knows what is right and acts tyrannically in his judgment will go to Hell: and a man who gives judgment for people when he is ignorant will go to Hell".
9. In the above backdrop, we have eloquently pondered upon every bit of prosecution case so as to ascertain that the guilty verdict handed down to the appellants by the trial court was based on sufficient incriminating evidence or not. We are not oblivious of the fact that ours is an adversarial system of trial and the burden to prove the guilt of an accused rests upon the shoulders of prosecution. A criminal trial can only entail consequences of conviction to an offender, if the prosecution discharges its obligation of proving the case against accused beyond speck of any ambiguity. The Hon'ble Supreme Court of Pakistan in case reported as Mst. Asia Bibi v. The State and others (PLD 2019 Supreme Court 64) held as under:-- "The onus rests on the prosecution to prove guilt of the accused beyond reasonable doubt throughout the trial. Presumption of innocence remains throughout the case until such time the prosecution on the evidence satisfies the Court beyond reasonable doubt that the accused is guilty of the offence alleged against him "
10. In the wake of what is mentioned above, we have meticulously examined the record and it is noticed that appellants were settled in Lahore, whereas complainant Muhammad Saeed (PW.6) was having abode in Teshil Talagang and they were not only unknown to each other but also were having no previous history of inter se vengeance. Muhammad Saeed (PW.6) in August, 2010 came across the blasphemous posts uploaded on a website www.ucopak.org. Admittedly, the First Information Report (Exh. PB) was registered with afflux of about ten months on 09.06.2011 but such delay has no adverse significance keeping in view the background and the peculiar facts of the case. It is evident from record that after acquiring knowledge about the crime in question, Muhammad Saeed (PW.6) did not resort to slumber and immediately approached Police Station City Talagang but unfortunately due to insouciant approach of the concerned Station House Officer, the FIR was not registered immediately. Though the sensitivity of the matter was alluding from the plain review of accusations but still the complainant Muhammad Saeed (PW.6) was made a rolling stone between a troika of SHO, S.P. (Investigation) and FIA. We are mindful of the fact that the appellants were nominated in the complaint (Exh.PA/1) but no exception about it can be taken as Muhammad Saeed (PW.6) explained flawlessly as to how he acquired knowledge about the identity of actual culprits. According to Muhammad Saeed (PW.6), the website www.ucopak.org was not only containing the names of appellants but also their contact numbers and email addresses.
11. In a wrestle with the task of deciding the fate of case justly, fairly and in consonance with old aged principles of appraising the evidence, we are confronted with question of pivotal importance that what is the evidence led by prosecution to connect the appellants with the commission of crime. Before dilating any further upon the nature of accusations and their intrinsic worth, we consider it appropriate to reiterate here that it is admitted by all that the subject material is derogatorily blasphemous. As a necessary consequence, it will be a futile endeavour to discuss and reproduce the contents of posts uploaded on the Internet. In the same stretch, it is observed that case of prosecution is mainly resting upon the recovery of various articles effected from both the appellants which include computers, CPUs and laptops etc. From the recovered computers and laptops, blasphemous material was recovered in pursuance of digital forensic. In the given circumstances, firstly we consider it appropriate to have a look upon the nature of recovered articles and the legal worth of recovery proceedings. So far as Qaiser Ayub (appellant) is concerned, on 16.11.2014 he made a disclosure before Jabbar Hussain S.P. and got recovered following articles through recovery memo. Exh.PF:-- i) CPU (Desktop) Dell of black colour P-8 ii) CPU Acer (Tower) P-9 iii) CPU Tower-Intel inside P-10 iv) Four Hard Disks P-11/1-4 v) 110 CDs P-12/1-110 vi) PTCL Device of White Colour P-13 vii) Wi-Fi Device of Wi-tribe Red Colour P-14 viii) Two External Devices P-15/1-2 ix) Wi-Fi ATxT Device P-16 x) One MP3 Player P-17 xi) One Telephone Set P-18 xii) One Laptop (Lenovo) along with charger P-19 xiii) LCD (Optima) of black colour P-20 xiv) Two Keyboards of Dell P-21/1-2 xv) One Old Mouse P-22 xvi) One New Mouse P-23 Similarly, Amoon Ayub (appellant) was arrested in the case on 18.04.2015 and from his personal search a Samsung Mobile Phone along with SIM (P.24) was recovered which was secured through Exh.PG. On 22.04.2015, Amoon Ayub (appellant) made a disclosure and got recovered Laptop of Dell (P.25) from the house of his father-in-law situated at Maryam Colony Lahore which was taken into possession through recovery memo Exh.PH.
The proceedings, which led to the recovery of aforementioned articles, are challenged on the ground that these were conducted without adhering to the provisions of Section 103, Cr.P.C. as no independent person from the vicinity was made witness. We have noticed that the articles were recovered in pursuance of the disclosure and pointation of the appellants, witnessed by Mehboob Hussain ASI (PW.4) and Jabbar Hussain SP (PW.8). The articles were recovered from places within the exclusive knowledge of both the appellants and no one knew prior to recoveries that the computers and laptops were having same blasphemous material which was uploaded on the interne. The aforementioned feature brings the recovery proceedings within the purview of Article 40 of Qanun-e-Shahadat Order, 1984. Such proceedings gain legal credibility even if witnessed by two persons not necessarily hailing from the same neighbourhood. If any reference in this regard is needed that can be made to the case reported as Sh. Muhammad Amjad v. The State (PLD 2003 SC 704) wherein the Hon'ble Supreme Court of Pakistan held as under:-- "Further it is noted that as per Article 40, corresponding to Section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a Police Officer, such information whether it amounts to a confession or not as it relates distinctly to the fact whereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible."
Admittedly, Mehboob Hussain AS1 (PW.4) and Jabbar Hussain S.P (PW.8) provided all the necessary detail of recovery proceedings and their deposition is not giving rise to any legal flaw. Keeping in view the sensitive nature of the recovered blasphemous substance, one must appreciate the wisdom of Jabbar Hussain S.P. (PW.8) that he opted not to give even a clue to the residents of the vicinity about the proceedings as it could make the appellants vulnerable to the danger of lynching or violent death. We have also taken note of the fact that none out of the two witnesses of recovery had any previous history of hostility with the appellants and it out-rightly excludes the possibility of any malice.
12. Now the question of foremost importance arises that what relevancy the aforementioned recovered articles have to the prosecution accusations and how these articles can be used to criminate the appellants with the crime. In this regard, it is noticed that the articles recovered from Qaiser Ayub (appellant) through recovery memo (Exh.PF) includes a CPU Acer (P.9) and Laptop Lenovo (P.19). Both these articles were forwarded for forensic analysis to the office of Cyber Crime FIA, Islamabad where the needful was done by Mehmood-ul-Hassan Deputy Director through his report (Exh.PK). The forensic analysis lifted veil from the misdeeds of Qaiser Ayub appellant as blasphemous material including Exh.PK/8 to Exh.PK/72 was recovered. We have taken the pain to examine each of the aforementioned document and have noticed that Exh.PK/9, Exh.PK/11 to Exh.PK/29 and Exh.PK/33 to Exh.PK/38, Exh.PK/41 to Exh.PK/44 and Exh.PK/70 to Exh.PK/72 are extremely offensive, derogatory and contemptuous not only towards Almighty Allah but also to Holy Prophet Muhammad (ARABIC TEXT') and religion of Islam. It further divulged through digital forensic analysis report (Exh.PK) that almost the same material was uploaded on the internet. From the documents Exh.PK/32 and Exh.PK/34, it emerged that Qaiser Ayub appellant made access to the same website by using his email address i.e. contacbaucopak.org and qaisaraucopak.org. So far as Lenovo laptop (P.19) recovered from Qaiser Ayub appellant through memo Exh.PF is concerned, from its digital forensic personal information of Qaiser Ayub like E-tickets for foreign destinations Exh. PK/85 to Exh. PK/92, Hotel reservation in America Exh. PK/94, US Visa Application Exh. PK/95 to Exh.PK/97, bank statements Exh.PK/98 to Exh.PK/104 and a receipt of Western Union Exh.PK/108 to Exh.PK/107 were recovered. Likewise, personal correspondence of Qaiser Ayub Exh.PK/113 to Exh.PK/130 were recovered from the same computers, the perusal of which unfolds that he was involved in the sinister activity of conspiring with other blasphemers living across the globe.
Inevitably, the aforementioned data relates to the personal information of Qaiser Ayub appellant and establishes a strong nexus between him and the recovered computers.
So far as Amoon Ayub appellant is concerned, he got recovered a Del Laptop (P.25) during proceedings, the detail of which is mentioned in Para No.10 above. Even this Del Laptop was subjected to forensic analysis for which report Exh.PN/1 to Exh.PN/22 was issued. Unfortunately, the Laptop (P.25) recovered from Amoon Ayub appellant was also containing hate material against the two divine books Holy Quran and Holy Bible Exh.PN/8, against Holy Prophet Muhammad and Hazrat Ayesha (A.S.) Exh. P. 9, Exh. P. 11, Exh.P.12, against Allah Almighty Exh.P.10 as well as religion of Islam Exh.PN/22. The most important aspect discernable from technical analysis report Exh.PS/1-9 is to the effect that the website was accessed for uploading this material through Email which was having the backing of Landline number 92 42-5091181, which according to Cyber Crime Report was issued in the name of Amoon Ayub appellant as is evident from the following extract taken from the deposition of Jabbar Hussain S.P. (PW.8):-- "On 24.03.2015, PTCL and Cyber Crime Reports were received and it was found that the telephone number 042-5091181 was registered in the name of Amoon Ayub accused present in the court."
13. In the wake of facts mentioned in the preceding para, the question of paramount importance arises that if at all the plea of appellants about their innocence have some shred of truth in it then how the blasphemous material was recovered from their computers etc. All the aforementioned aspects were put to both the appellants while being examined under section 342, Cr.P.C. but they miserably failed to counter it. We have also given considered thought to the relevancy and admissibility of the incriminating material extracted from the computers of both the appellant through digital forensic and have found it to be backed by Articles 46-A and 164 of Qanun-e- Shahadat Order, 1984. Article 46-A makes relevant electronic documents extracted through automated information system, whereas Article 164 makes permissible to bring on record any evidence generated through modern devices or techniques.
14. We have also dilated upon the submissions so made on behalf of appellants that the blasphemous material was uploaded and available on the website www.ucopak.wordpress.com and prosecution miserably failed to establish a nexus between the appellants and the website. The in-depth scrutiny of record unveiled that indeed from the prosecution evidence the appellants are strongly linked with the website. It is observed from record that Qaiser Ayub (appellant) had established an organization with the name as United 'Christians Organization Pakistan (UCOPAK) and had also got registered a website www.ucopak.org that too in his own name. A pressing need is felt to mention here that "wordpress" is a platform wherein anyone can get registered and to upload his views upon any topic. For making access to "wordpress", the individual has to use his email account and for this reason, "wordpress" comes after the email account of the individual. For the clarity of the point under consideration, we consider it appropriate to refer an extract from the cross-examination of Mehmood-ul-Hassan,. Deputy Director, FIA (PW7), which is as under:-- "It is correct that "wordpress" is a free blog. It is correct that anyone can make his account on "wordpress". It is correct that no registration fee is required in order to make the "wordpress" account. I do not know the process of creating account on "wordpress". As I have not processed, therefore, I do not know that whether the e-mail account is necessary for creating an account of "wordpress". It is correct that word "wordpress" comes after the account name added for creating the account on the "wordpress".
It further divulges from the documents (Ex.PK/169, Ex.PK/170 and Ex.PK/171) that Qaiser Ayub (appellant) purchased the domain of www.ucopak.org in year 2009. It will be of immense importance to mention here that the aforementioned three documents were discovered during digital forensic of laptop (P-19) as is evident from the following excerpt of the cross-examination of Mehmood-ul-Hassan, Deputy Director, FIA (PW7):-- "It is correct that purchase of domain of www.ucopak.org of Qaiser Ayub accused was for one year.
Volunteers that I can say so on basis of a document Ex.PK/170 found during analysis of laptop which was an order form for registration of www.ucopak.org for one year. As per document Ex.PK/170, the domain was purchased on 02.06.2009."
It further divulges from the Technical Analysis Report (Ex.PS/1-9) that URL www.ucopak.wordpress.com was created through an address, landline numbers and email account of Qaiser Ayub (appellant). On account of relevancy, a portion of Technical Analysis Report (Ex.PS/1-9) is being reproduced below:-- "Technical Findings: Following are the technical findings based on the objectives mentioned above:
1. No specific website was mentioned in the complaint.
2. However the subject material was searched on the interne and it was found that the website www.wordpress.com contains substantial material on one URL www.ucopak.wordpress.com.
Note: The snapshots are annexed at "Flag-A"
3. The specific page contains the complete information of the person who uploaded this page. The information is as under: 'Qaiser Ayub'
97-F Raja Center, Main Market, Gulberg, Lahore, Pakistan.
Ph: +92 42 5091181, Cell: +92 322 9811775.
Email: contact@ucopak.org, qaisereucopak.org Note: The information are attached at "Flag-B"
We have also given considered thought to the possibility that someone else might have created the account on "wordpress" by using information of UCOPAK, but this possibility is laid to rest when seen in the context that sufficient supporting data was discovered through Digital Forensic Analysis from the computers so recovered' from the appellants. Even during arguments we confronted the learned counsel appearing on behalf of appellants with the query as to how the blasphemous material and traces of "wordpress" were found in the computers but they failed to offer any explanation, even naive in nature. We also intend to reiterate here that from the computers/laptops, personal information and correspondence of both the appellants were retrieved. Inevitably the facts mentioned above unambiguously establish a strong bond between the appellants, recovered computers, websites and the blasphemous substance.
15. Both the appellants are followers of Christianity but unfortunately they put at back the preaching of their own religion wherein blasphemy is considered as a sin gravest in nature. St.
Thomas Aquinas described it as a sin against faith in the 1369 of contemporary Canon Law, Book VI, Part II in following words:-- "A person who in a public show or speech, in published writing, or in other uses of the instru-ments of social communication utters blasphemy, gravely injures good morals, expresses insults,. or excites hatred or contempt against religion or the Church is to be punished with a just penalty."
A peep through the archives of history unfolds that the Christian Emperor Justinian's in codification of the Roman Law embodied in the Corpus Juris Civilis provided the punishment for blasphemy to be a death. By the time the Holy Roman Empire became firmly established around 800 AD, such laws were widely accepted throughout Europe. Likewise, St. Augustine advocated the death penalty for blasphemers. From the Middle Ages to Renaissance, both the Catholic and the Protestant Churches as well as secular authorities punished blasphemers, depending on the severity of their crimes, for example, with large fines, pillory, exile, lashes, cutting of the lips, burning or tearing out the tongue, perpetual imprisonment in chains and starvation to death, or burning at the stake.
Thomas Aquinas in his Summa Theologise regarded blasphemy as graver offence than murder.
Likewise, Judaism also strongly condemns blasphemy. In Judaism, blasphemy denotes 'the cursing of God's name', expressed in Hebrew as "birkat hashem". The Torah (Leviticus 24:16) states:-- "And one who blasphemously pronounces the Name of the Lord, shall be put to death; the entire community shall stone him; convert and resident alike if he pronounces the [Divine] Name, he shall be put to death."
To insult Torah or Moses, or the other prophets, or the scholars of Judaism, is also a serious offence and is an extension of the original blasphemy law of the Torah. Abba Shaul, a famous Jewish scholar, was of the opinion that in addition to the punishment inflicted by worldly powers, the blasphemer is also excluded from the life in the hereafter. Under the Byzantine emperor Justinian I (reigned 527-565) death penalty was decreed for blasphemy. In the United States many states have legislation aimed at the offence. In Scotland until the 18th century, it was punishable by death, and in England it is both a statutory and a common law offence. It was recognized as the latter in the 17th century; the underlying idea apparently was that an attack on religion is necessarily an attack on the state. This idea probably has been reason why penalties have been laid down for blasphemy in some secular legal codes.
16. The religion of Islam is no exception and it strongly reprimands the act of blasphemy and for reference, some of the dictates of Allah Almighty ordained in the Holy Quran are being quoted hereunder:-- "And of them are those who vex the Prophet and say: He is only a hearer. Say: A hearer of good for you, who believeth in Allah and is true to the believers, and a mercy for such of you as believe.
Those who vex the messenger of Allah, for them there is a painful doom." (Surat Al-Tauba, Verse 61)
"Lo! Those who malign Allah and His Messenger, Allah hath cursed them in the world and the hereafter, and hath prepared for them the doom of the disdained." (Surat A1-'Ahzab, Verse 57)
"O ye who believe! Lift not up your voices above the voice of the Prophet, nor shout when speaking to him as ye shout one to another, lest your works be rendered vain while ye perceive not." (Surat Al-Hujurat, Verse 2)
"Make not the calling of the Messenger among you as your calling one of another. Allah knoweth those of you who steal away, hiding themselves. And let those who conspire to evade orders beware lest grief or painful punishment befall them." (Surat An-Nur, Verse 63)
"That ye (mankind) may believe in Allah and His Messenger, and may honour Him, and may revere Him, and may glorify Him at early dawn and at the close of day." (Surat Al-Fath, Verse 9)
"0 ye who believe! Enter not the dwellings of the Prophet for a meal without waiting for the proper time, unless permission be granted you. But if ye are invited, enter, and, when your meal is ended, then disperse. Linger not for conversation. Lo! That would cause annoyance to the Prophet, and he would be shy of (asking) you (to go); but Allah is not shy of the truth. And when ye ask of them (the wives of the Prophet) anything, ask it of them from behind a curtain. That is purer for your hearts and for their hearts. And it is not for you to cause annoyance to the Messenger of Allah, nor that ye should ever marry his wives after him. Lo! That in Allah's sight would be an enormity." (Surat Al-'
Ahzab, Verse 53)
"Those who oppose Allah and His Messenger, they will be among those most humiliated." (Surat Al- Muijadala, Verse 20)
"Lo! It is thy insulter (and not thou) who is without posterity." (Surat Al-Kausar, Verse 3)
"The only reward of those who make war upon Allah and His Messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the hereafter theirs will be an awful doom." (Surat Al-Maida, Verse 33)
"And if they break their pledges after their treaty (hath been made with you) and assail your religion, then fight the heads of disbelief--Lo! They have no binding oaths--in order that they may desist." (Surat Al-Tauba, Verse 12)
We also thought it appropriate to shed light upon the blasphemy from Hadith of the Holy Prophet Haztat Muhammad which can be summarized as under:-- Narrated Al-Bara' bin 'Azib (RA); Allah's Apostle (SAW) sent some men from the Ansar to (kill) Abu Rafi', the Jew, and appointed 'Abdullah bin 'Atik as their leader. Abu Rafi' used to hurt Allah's Apostle
(SAW) and help his enemies against him. He lived in his castle in the land of Hijaz. When those men approached (the castle) after the sun had set and the people had brought back their livestock to their homes. 'Abdullah (bin 'Atik) said to his companions, "Sit down at your places. I am going, and I will try to play a trick on the gate-keeper so that I may enter (the castle)." So 'Abdullah proceeded towards the castle, and when he approached the gate, he covered himself with his clothes, pretending to answer the call of nature. The people had gone in, and the gate-keeper (considered 'Abdullah as one of the castle's servants) addressing him saying, "O Allah's Servant! Enter if you wish, for I want to close the gate." 'Abdullah added in his story, "So I went in (the castle) and hid myself. When the people got inside, the gate-keeper closed the gate and hung the keys on a fixed wooden peg. I got up and took the keys and opened the gate. Some people were staying late at night with Abu Rafi' for a pleasant night chat in a room of his. When his companions of nightly entertainment went away, I ascended to him, and whenever I opened a door, I closed it from inside.
I said to myself, 'Should these people discover my presence, they will not be able to catch me till I have killed him.' So I reached him and found him sleeping in a dark house amidst his family, I could not recognize his location in the house. So I shouted, 'O Abu Rafi!' Abu Rafi' said, 'Who is it?' I proceeded towards the source of the voice and hit him with the sword, and because of my perplexity, I could not kill him. He cried loudly, and I came out of the house and waited for a while, and then went to him again and said, 'What is this voice, O Abu Rafi? He said, 'Woe to your mother!
A man in my house has hit me with a sword! I again hit him severely but I did not kill him.' Then I drove the point of the sword into his belly (and pressed it through) till it touched his back, and I realized that I have killed him. I then opened the doors One by one till I reached the staircase, and thinking that I had reached the ground, I stepped out and fell down and got my leg broken in a moonlit night. I tied my leg with a turban and proceeded on till I sat at the gate, and said, 'I will not go out tonight till I know that I have killed him.' So, when (early in the morning) the cock crowed, the announcer of the casualty stood on the wall saying, 'I announce the death of Abu Rafi', the merchant of Hijaz. Thereupon I went to my companions and said, 'Let us save ourselves, for Allah has killed Abu Rafi', 'So I (along with my companions proceeded and) went to the Prophet (SAW) and described the whole story to him. He said, 'Stretch out your (broken) leg. I stretched it out and he rubbed it and it became alright as if I had never had any aliment whatsoever," (Sahib Bukhari, Vol. V, Chapter 3714 Pp 251 - 253).
"It has been related on the authority of Umair Ibn Umayyah that he had a "mushrikah" sister who teased him when he met the Holy Prophet (SAW) and used to abuse the Holy Prophet (SAW). At last one day he killed her with his sword. Her sons cried and said, "we know her murderers who killed our mother and the parents of these people are "mushrik (Infidels)." When Umair thought that her sons may not murder wrong persons, he came to the Holy Prophet (SAW) and informed about the whole situation. The prophet (SAW) said to him, "have you killed your sister." He said, "Yes." Prophet (SAW) said, "Why" He said that she was harming me in your relation. The Prophet (SAW) called her sons and asked about the murderers. They show other persons as murderers. Then Prophet informed them and declared her death as vain."
(Majmauz Zawaid was Manbaul Fawaid, Vol.V, page 260)---As reported in PLD 1991 FSC 10 "It has been related on the authority of Ikrimah that a person abused the Holy Prophet (SAW). The Holy Prophet (SAW) said, "Who will help me against my (this) enemy." Zubair said, "I". Then he (Zubair) fought with him and killed him. The Holy Prophet (SAW) gave him this goods."
(As reported in PLD 1991 FSC 10/25)
"It is reported from Ishaq bin Ibrahim, from Abdullah bin Muhammad, from Sufyan bin Anya, from Umro. Hazrat Jabar (RA) that the Holy Prophet (SAW) said who would kill Ka'ab bin Ashraf because he had teased the Holy Prophet (SAW) much. Muhammad bin Musailma asked "0 Prophet of Allah.
Do you wish I should kill him". The Holy Prophet (SAW) said," yes." and they killed him." (Sahih Muslim, Kitab-al-Jihad 2158)
"It has been narrated that after the conquest of Makkah, the Holy Prophet (SAW) after giving general pardon ordered killing of Ibn Khatal and his she-slaves who used to compose defamatory poems about the Holy Prophet (SAW)." (Al-Shifa by Qazi Ayaz, Vol II, page 284 Urdu Translation.
As reported in PLD 1991 FSC 10
17. There remained no second opinion that blasphemy is recognized as a heinous offence not only in Pakistan but in many other countries of the world and in this regard, brief history and comparative provisions of blasphemy laws prevalent in different countries is as under:-- Afghanistan An Islamic State. Afghanistan prohibits blasphemy as an offence under Sharia. Blasphemy may be punished by penalties up to execution by hanging.
Austria In Austria, two sections of the penal code relate to blasphemy: x188 Vilification of Religious Teachings x189 Disturbance of Religious Practice Bangladesh Bangladesh discourages blas-phemy by a provision in its penal code that prohibits "hurting religious sentiments," and by other laws and policies that suppress freedom of speech.
Brazil Art. 208 of the penal code states that "publicly vilifying an act or object of religious worship" is a crime punishable with 1 month to a year of incarceration, or fine.
Candada The Criminal Code of Canada lists blasphemous libel as a crime; but the Code's provision contravenes provisions, in the superseding Canadian Charter of Rights and Freedoms.
The Crown last prosecuted a charge of blasphemous libel in R. v. Rahard (1935).
Denmark In Denmark, Paragraph 140 of the penal code is about blasphemy. The paragraph has not been used since 1938 when a Nazi group was convicted for antisemitic propaganda. The hate speech paragraph (266b) is used more frequently. Abolition of the blasphemy clause was proposed in 2004, but failed to gain a majority.
European initiatives The Parliamentary Assembly of the Council of Europe, in Strasbourg adopted on 29 June, 2007 Recommendation 1805 (2007) on blasphemy, religious insults and hate speech against persons on grounds of their religion.
A religious insult is forbidden in Andorra, Cyprus, Croatia, the Czech Republic, Denmark, Spain, Finland, Germany, Greece, Iceland, Italy, Lithuania, Norway, the Netherlands, Poland, Portugal, Russian Federation, Slovakia, Switzerland, Turkey and Ukraine.
Germany In Germany, blasphemy is covered by Article 166 of the Strafgesetzbuch, the German criminal law. If a deed is capable of disturbing the public peace, blasphemy is actionable. In 2006, Manfred van H.
(also known as "Mahavo") was prosecuted for blasphemy.
Indonesia Article 156(a) of Indonesia's Criminal Code forbids anyone from deliberately, in public, expressing feelings of hostility, hatred, or contempt against religions with the purpose of preventing others from adhering to any religion, and forbids anyone from disgracing a religion. The penalty for violating Article 156(a) is a maximum of five years' imprisonment.
Israel In Israel, blasphemy is covered by Articles 170 and 173 of the penal code.
Saudi Arabia Islam is Saudi Arabia's State religion and its laws prescribe penalties up to death for blasphemy.
18. After having made in-depth and circumspective scrutiny of record, we have arrived at irresistible conclusion that the prosecution successfully proved the guilt of appellants and that too beyond scintilla of even a remote doubt. After forming a conclusion adverse to the appellants, we have also examined the defence version put-forth during trial so as to look for the existence of any benefit, which can legitimately be extended to the appellants. It is noticed that while being examined under section 342, Cr.P.C. both the appellants were confronted with the contents of report (Ex.PS) and the blasphemous substance discovered from their respective computers and hard discs but they failed to counter it satisfactorily. Similarly the appellants were also given opportunity to explain about the IP address and recovered PTCL broadband device used for execution of their nefarious activities but they came forward with a brazen faced denial without offering any acknowledged legal explanation. The solitary justification for their false implication set out in reference to the question "why this case against you" is found by us to be nothing but a jumble of lie as it was having no backing of any material. It will not be an over exaggeration to say that appellants miserably failed to dislodge the prosecution case. So far as the quantum of sentence provided to the appellants is concerned, we have also given our considered thought so as to look for any legal justification of reduction. Though the provision of section 295-C, P.P.C. was made punishable with death or imprisonment for life at the time of its enactment, but the sentence of imprisonment for life was later declared by the Hon'ble Federal Shariat Court repugnant to the Injunctions of Islam as ordained in Holy Qur'an and Sunnah. Reference in this context is made to the case of "Muhammad Ismail Qureshi v. Pakistan through Secretary, Law and Parliamentary Affairs" (PLD 1991 Federal Shariat Court 10), in paragraphs 67, 68 and 69 of which it has been observed as under:-- "67. In view of above discussion we are of the view that the alternate punishment of life imprisonment as provided in section 295-C, P.P.C. is repugnant to the Injunctions of Islam as given in Holy Qur'an and Sunnah and therefore, the said words be deleted therefrom.
68. A clause may further be added to this section so as to make the same acts or things when said about other Prophets, also offence with the same punishment as suggested above.
69. A copy of this order shall be sent to the President of Pakistan under Article 203-D(3) of the Constitution to take steps to amend the law so as to bring the same in conformity with the Injunctions of Islam. In case, this is not done by 30th April, 1991 the words "or punishment for life" in section 295-C, P.P.C. shall cease to have effect on that date".
Though necessary legislation to. bring section 295-C, P.P.C. in conformity with aforementioned observation of the Hon'ble Federal Shariat Court was not done, but it underwent desired change on the, eve of 30th April, 1991 through necessary implication of Article 203-D(3) of the Constitution of Islamic Republic of Pakistan, 1973. As a necessary consequence, the punishment for life imprisonment in respect of section 295-C, P.P.C. ceased to have effect. At present, the solitary legal sentence which can be imposed in a proved case of section 295-C, P.P.C. is death penalty.
19. Consequently, Criminal Appeals Nos.1030 and 1031 of 2018 filed by the appellants are hereby dismissed, their conviction and sentences awarded by the trial court are maintained and upheld.
Capital Sentence Reference No.7-T of 2018 is answered in affirmative and death sentence of Qaiser Ayub and Amoon Ayub convicts is confirmed.