JUDGMENT.
SADIQ MAHMUD KHURRAM, J.- Sajid Ali son of Mohsin Khan (convict) was tried by the learned Additional Sessions Judge, Hasanabdal in the case F.I.R. No. 143 of 2020 dated 14.04.2020 registered in respect of offences under sections 295-C and 298-A P.P.C. at the Police Station Saddar Hassanabdal, District Attock. The learned trial court, vide judgment dated 07.07.2023, convicted Sajid Ali son of Mohsin Khan (convict) and sentenced him as infra: Sajid Ali son of Mohsin Khan : i) Death under section 295-C P.P.C. and directed to pay fine of Rs.100,000/- and in case of default thereof, the convict was directed to undergo a further six months of simple imprisonment. ii) Rigorous imprisonment of three years under section 298-A P.P.C.
The convict was ordered to be hanged by his neck till death.
The convict was, however, extended the benefit available under Section 382-B of the Code of Criminal Procedure, 1898 by the learned trial court.
2. Feeling aggrieved, Sajid Ali son of Mohsin Khan (convict) lodged Criminal Appeal No.583 of 2023 assailing his conviction and sentence. The learned trial court submitted Capital Sentence Reference No. 02 of 2023 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Sajid Ali son of Mohsin Khan. We intend to dispose of the Criminal Appeal No. 583 of 2023 and Capital Sentence Reference No. 02 of 2023 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by the prosecution witnesses are that on 10.04.2020, the appellant namely Sajid Ali son of Mohsin Khan ,spoke words defiling the sacred name of the Holy Prophet Muhammad (peace be upon him) and the sacred names of the wives (Ummul-Mumineen), and members of the family (Ahle-bait) of the Holy Prophet (peace be upon him) and the righteous Caliphs (Khulafa-e-Raashideen) and companions (Sahaaba) of the Holy Prophet (peace be upon him), in the presence of the prosecution witnesses .
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused was sent to face trial. The learned trial court framed the charge against the accused on 09.11.2020, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as twelve witnesses recorded. The prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW- 11) and Shahid Mahmood (PW-12) all stated that on 10.04.2020, the appellant namely Sajid Ali son of Mohsin Khan ,spoke words defiling the sacred name of the Holy Prophet Muhammad (peace be upon him) and the sacred names of the wives (Ummul-Mumineen), and members of the family (Ahle-bait) of the Holy Prophet (peace be upon him) and the righteous Caliphs (Khulafa-e- Raashideen) and companions (Sahaaba) of the Holy Prophet (peace be upon him), in the presence of the prosecution witnesses. Mahmood Ahmad, ASI (PW-1) stated that on 14.04.2020, he got recorded the formal F.I.R. (Exh.PA/PW-1). Atif Sattar, SI (PW-4) stated that on 10.04.2020, Bilal Mahmood (PW-2) submitted the application (Exh.PB) for the registration of the F.I.R. upon which he entered Rapt No.18 (Exh.PD/PW -4) and sent the said application to the police station for the registration of the F.I.R. Maulana Mahmood ul Hassan Toheedi (PW-9) and Maulana Ghulam Siddiquei (PW-10) rendered the opinion (Exh.PF). Azhar Shabbir, DSP (PW-5) investigated the case from 14.04.2020 till 28.05.2020, arrested the appellant on 16.04.2020 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. On 23.06.2023, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Syed Khadim Hussain Shah and Nawaz Malik as being unnecessary and closed the prosecution evidence.
7. After the closure of prosecution evidence, the learned trial court examined the appellant namely Sajid Ali son of Mohsin Khan under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Sajid Ali son of Mohsin Khan opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence.
8. On the conclusion of the trial, the learned Additional Sessions Judge, Hasanabdal convicted and sentenced the appellant as referred to above.
9. The contention of the learned counsel for the appellant precisely was that the whole case was fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, was highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to suspicion alone. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.
10. On the other hand, the learned Deputy Prosecutor General contended that the prosecution had proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General submitted that there was no occasion for the prosecution witnesses to falsely involve the appellant. Lastly, the learned Deputy Prosecutor General prayed for the rejection of the appeal.
11. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their able assistance, perused the record and evidence recorded during the trial.
12. The Holy Qur'an has unequivocally described the glorification and exaltation of the Holy Prophet Muhammad (peace be upon him) and has ordered Muslims to strictly observe maximum respect and be extremely careful in this regard, to the extent of using the most appropriate words and even lowering their voices, failing to do will render all their good deeds in vain, as mentioned in the following Verses.
"Among the Jews are those who distort words from their [proper] usages and say, "We hear and disobey" and "Hear but be not heard" and "Ra'ina" (I )twisting their tongues and defaming the religion. And if they had said [instead], "We hear and obey" and "Wait for us [to understand]," it would have been better for them and more suitable. But Allah has cursed them for their disbelief, so they believe not, except for a few. [An-Nisa (4:46)] "O ye who believe! raise not your voices above the voice of the Prophet , nor shout when speaking to him as you shout one to another, lest your deeds be rendered vain while you perceive not." [Al- Hujurat (49:2)] Allah Almighty declared the enemy of the Holy Prophet Muhammad (peace be upon him) as the enemy of Allah and ordained that, in this temporary world and also in the eternal life hereinafter, there is a punishment of the highest degree for those who disbelieve or disrespects him. For reference, some of the Verses of the Holy Quran are mentioned herein below: "Ask forgiveness for them, [O Muhammad], or do not ask forgiveness for them. If you should ask forgiveness for them seventy times - never will Allah forgive them. That is because they disbelieved in Allah and His Messenger, and Allah does not guide the defiantly disobedient people". [At-Tawbah (9:80)] "And thus, have We made for every prophet an enemy from among the criminals. But sufficient is your Lord as a guide and a helper". [Al-Furqan (25:31)] "Have you not considered those who were forbidden from private conversation, then they return to that which they were forbidden and converse among themselves about sin and aggression and disobedience to the Messenger? And when they come to you, they greet you with that [word] by which Allah does not greet you and say among themselves, "Why does Allah not punish us for what we say?" Sufficient for them is Hell, which they will [enter to] burn, and wretched is the destination."
[Al-Mujadila (58:8)] "May the hands of Abu Lahab be ruined, and ruined is he. His wealth will not avail him or that which he gained. He will [enter to] burn in a Fire of [blazing] flame. And his wife [as well] - the carrier of firewood. Around her neck is a rope of [twisted] fiber." [Al-Masad (111:1-5)] "How wretched is that for which they sold themselves - that they would disbelieve in what Allah has revealed through [their] outrage that Allah would send down His favor upon whom He wills from among His servants. So, they returned having [earned] wrath upon wrath. And for the disbelievers is a humiliating punishment." [Al-Baqarah (2:90)] "Indeed, those who disbelieve in Allah and His messengers and wish to discriminate between Allah and His messengers and say, "We believe in some and disbelieve in others," and wish to adopt a way in between - Those are the disbelievers, truly. And We have prepared for the disbelievers a humiliating punishment." [An-Nisa (4:150-151)] "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". [Al-Ahzab (33:57)] Thus, all of these Verses of the Holy Qur'an, mention in clear terms, that these abusers and contemners of the Holy Prophet Muhammad (peace be upon him) are actually the opponents of Allah and His Holy Prophet Muhammad (peace be upon him). These Verses clearly prescribe the severe punishment of death for the opponents of Allah and his Holy Prophet Muhammad (peace be upon him) , who include contemners of the Holy Prophet Muhammad (peace be upon him).
Thus, no one, by words, either spoken or written, directly or indirectly, is allowed to disobey, disregard and rebel against the Holy name of Holy Prophet Muhammad (peace be upon him) and if found guilty of disrespecting the name, they are liable to be punished. History has remained a witness to the incidents pertaining to any attempts of defiance made regarding the name of our Beloved Holy Prophet Muhammad (peace be upon him). The Muslim communities that exist around the globe have always acted against any such act of contempt and have openly reacted to such, followed by serious repercussions. That is why Section 295-C P.P.C. had to be enacted to bring such contemners before the Court of Law. In this backdrop, we shall now consider the facts of the instant case.
13. A perusal of the prosecution evidence reveals that the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW- 7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) all stated that on 10.04.2020 at about 06.45 a.m., the appellant namely Sajid Ali son of Mohsin Khan ,spoke words defiling the sacred name of the Holy Prophet Muhammad (peace be upon him) and the sacred names of the wives (Ummul-Mumineen), and members of the family (Ahle-bait) of the Holy Prophet (peace be upon him) and the righteous Caliphs (Khulafa-e-Raashideen) and companions (Sahaaba) of the Holy Prophet (peace be upon him), in the presence of the said prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12), however, they never reported the matter to the police till 9.30 p.m. on 10.04.2020, rather even let the appellant,who had allegedly spoken such appalling, abysmal, awful, damning, hateful and outrightly sacrilegious words in the presence of the witnesses ,leave the place of the incident without even making any effort to take action against him. The prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12), who all claimed that the appellant had spoken unmentionable words in their presence and hearing were so nave that they let the appellant leave their sights without making any effort to apprehend him. The prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) did not react at all to the alleged statement of the appellant and calmly saw him leaving, without even moving an inch to restrain the appellant and handing him over to the police. The prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW- 7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) have not mentioned in their statements that the appellant had some weapon with him which could have precluded the said witnesses from apprehending the appellant. The prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW11) and Shahid Mahmood (PW-12) did not even state that they attempted to arrest the appellant though it should have been the natural reaction and instinct of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) if the appellant had actually spoken the words which the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW- 11) and Shahid Mahmood (PW-12) stated that he had, in their presence. This conduct of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW11) and Shahid Mahmood (PW-12) in letting the appellant leave their sights after making the alleged utterances was not natural in the circumstances. This utter failure of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW- 12) in making any effort to apprehend the appellant proves that the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) had not heard the appellant speak the alleged words and invented a story regarding the same subsequently, for the simple fact that if the appellant had indeed uttered the alleged words, no person, besides the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12), who would have heard the said words, would have let the appellant leave after the said utterances. This failure of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW- 7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) in not reacting at all to the alleged statement of the appellant and not proceeding against the appellant proves that the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW- 11) and Shahid Mahmood (PW-12) had not heard the appellant speak the words on the said date and time.We are of the considerate view that the conduct of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) in the circumstances reveals that no such words were uttered by the appellant in the presence of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12), otherwise the appellant would have been apprehended there and then.
Moreover, it is a fact that no person professing Muslim faith would even continue to hear such words as allegedly spoken by the appellant and not make any effort to stop the said person. In the circumstances of the case, it cannot be believed that the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW- 7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) would have allowed the appellant to complete his statement and then would have also allowed themselves to continue to hear such words and remember them too. Why the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW- 7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) let the appellant complete his statement in their presence has not been explained. Why the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) did not stop the appellant immediately has not been explained. Why the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) continued to not only hear the alleged words of the appellant but also to remember them, though differently, has not been explained.
14. We have also noted that all the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) made entirely different statements with regard to the words allegedly used by the appellant and heard by the said prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) . Not even two of the prosecution witnesses namely Bilal Mahmood (PW- 2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) repeated the utterances of the appellant while using the same words or even the same utterances, denuding the failure of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) to give a consistent account of what was uttered by the appellant. It proves that it is a case of Chinese Whispers ,with the information being passed on from one prosecution witness to another, than the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) having themselves hearing the appellant.
15. Another aspect of the case raising doubt over the statements of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) ,Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW- 12), is the fact the matter was reported to the police on 10.04.2020 at 09.30 p.m., when the prosecution witness namely Bilal Mahmood (PW-2) submitted the written application (Exh.PB) to Atif Sattar, SI (PW-4) for the registration of the F.I.R. upon which Atif Sattar, SI (PW-4) entered Rapt No.18 (Exh.PD/PW -4) and sent the said application to the police station for the registration of the F.I.R. whereas the incident had taken place on 10.04.2020 at 06.45 a.m. Atif Sattar, SI (PW-4) during cross-examination explained as under:- "I received the application for registration of case on 10.04.2020 at 09:30 PM. I visited the spot after 10:00 PM but I cannot tell the exact time. I do not remember the inter-se distance of Police Post Jharikass and the place of occurrence. "
In this manner, the delay in reporting the matter to the police was of about nine hours, for which delay no reason, much less plausible, was offered. No justification, much less credible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police and the delay in submitting the written application (Exh. P.B.) by Bilal Mahmood (PW-2) to Atif Sattar, SI (PW-4), at the police post Jhari Kas. The police post Jhari Kas was at a short distance from the place where the incident took place and still none of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW- 7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) reported the matter to the police for such a long period. In this case, the statements of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW11) and Shahid Mahmood (PW-12) suffer from legal and factual infirmities and do not appeal to a prudent mind, much less a legal one, because the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) never reported the matter to the police for as many as nine hours. This inordinate delay in reporting the matter conclusively proves that the written application (Exh.PB) submitted by Bilal Mahmood (PW-2) to Atif Sattar, SI (PW-4) , at the police post Jhari Kas was prepared after probe, consultation, planning, investigation and discussion . The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh.PB) submitted by Bilal Mahmood (PW-2) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document.
Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard.
Reliance is placed on the cases of "Ghulam Abbas and another v. The State and another" (2021 SCMR 23), "MUHAMMAD ASHRAF JAVEED and another vs. MUHAMMAD UMAR and others" (2017 SCMR 199) , "Zafar vs. The State and others" (2018 SCMR 326) , "G. M. NIAZ Vs. The State" (2018 SCMR 506), "Abdul Jabbar and another Vs. The State" (2019 SCMR 129) and "Muhammad Shafi alias Kuddoo Vs. The State and others" (2019 SCM R 1045).
16. We have also noticed that not only the matter was reported to the police with delay but the statements of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW11) and Shahid Mahmood (PW-12) were also recorded with substantial delay, without any explanation for the said delay. As mentioned above, initially even after receiving the application (Exh.PB) from Bilal Mahmood, the prosecution witness namely Atif Sattar, SI (PW-4) admitted that he did not record the statement of any witness on 10.04.2020 even after his arrival at the place of incident and his stay there for as much as more than an hour. Atif Sattar, SI (PW-4) during cross- examination explained as under: - "A number of persons more than 20 in number were present at the spot when I visited there. I did not record statement of any person at the spot as they all were flared up. I remained present at the spot for about 1 1/2 /2 hours. "
Furthermore, Azhar Shabbir, DSP (PW-5), the Investigating Officer of the case also admitted that he visited the place of the incident for the first time on 15.04.2020 and even on that day he only recorded the statements under section 161 of the Code of Criminal Procedure, 1898 of Bilal Mahmood (PW-2) and Muhammad Dawood (PW-3), whereas the statements of the other witnesses were recorded on 28.05.2020. Azhar Shabbir, DSP (PW-5) during cross-examination, stated as under:- "I visited the spot for the first time on 15.04.2020 at 10:00 AM. When I visited the spot, Bilal complainant alongwith a witness and few locals of the vicinity was present at the spot. It is correct that on 15.04.2020, I only recorded statement U/Sec. 161 Cr.P.C of the complainant and the other witness namely Daud and did not record statement of any other person. ---------- On 28.05.2020, 1 recorded statements U/Sec. 161 Cr.P.C of eight witnesses namely Mehboob, Daud, Munawar etc., however, I could not tell the names of all the witnesses recorded on 28.05.2020 without consulting the record. "(emphasis supplied)
All the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW- 11) and Shahid Mahmood (PW-12) admittedly did not provide any reason for not getting their statements recorded with promptitude and why the matter was delayed by them. This delay in getting their statements recorded to the police clearly proves the fact that the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) were not present at the time of the incident. It is trite that the delayed recording of the statement of a prosecution witness under section 161 of the Code of Criminal Procedure, 1898 reduces its value to nothing unless there is plausible explanation for such delay. No explanation, much less plausible, has been given by the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3) , Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) for them not getting their statements under section 161 of the Code of Criminal Procedure, 1898 recorded immediately and therefore no value can be attached to their statements. The august Supreme Court of Pakistan in the case of "Abdul Khaliq Vs. The State" (1996 SCMR 1553) has held as under: "It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nill unless there is plausible explanation for such delay".
The august Supreme Court of Pakistan in the case of "Muhammad Khan Vs. Maula Bakhsh" (1998 SCMR 570) has held as under: "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C is recorded with delay without offering any plausible explanation".
The august Supreme Court of Pakistan in the case of "Syed Saeed Muhammad Shah and another Vs. The State" (1993 SCMR 550) at page 571 has held as under: "In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation".
17. We have also noted that in the site plan of the place of incident (Exh.PE/PW-5) as prepared by Azhar Shabbir, DSP (PW-5) the names of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) have not been mentioned.
Furthermore, except the mentioning of the house of the complainant of the case , the residences of the other prosecution witnesses namely Muhammad Dawood (PW-3),Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) have not been marked or mentioned in the site plan of the place of incident (Exh.PE/PW-5). Moreover, according to the site plan of the place of incident (Exh.PE/PW-5) as prepared by Azhar Shabbir, DSP (PW-5), only the complainant of the case and one witness were present at the time of the incident and there is no mention of the presence of the other prosecution witnesses namely Munawar Hayat (PW-6), Mazhar Mahmood (PW-7), Muhammad Zeeshan (PW- 8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) in the said site plan (Exh.PE/PW-5). All these facts fatally hurt the prosecution case.
18. We have also noticed that the learned trial court proceeded to exhibit the statements of the prosecution witnesses namely Bilal Mahmood (PW-2) and Muhammad Dawood (PW-3) recorded under section 161 of the Code of Criminal Procedure, 1898 as Exh.PC/PW-2. This procedure adopted by the learned trial court whereby it proceeded to exhibit the statements of the prosecution witnesses namely Bilal Mahmood (PW-2) and Muhammad Dawood (PW-3) recorded under section 161 of the Code of Criminal Procedure, 1898 during their statements being recorded by the learned trial court militates against the provisions of the law. Section 162 of the Code of Criminal Procedure, 1898 clearly mentions the use of any statement recorded under section 161 of the Code of Criminal Procedure, 1898 and prohibits its use in the manner used by the learned trial court in this case.Section 162 of the Code of Criminal Procedure, 1898 reads as under:- "162. Statements to police not to be signed, use of such statements in evidence: (1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall if reduced into writing be signed by the person making it; nor shall any such statement or any record thereof whether in a police-diary or otherwise or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:--- Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination:--- Provided further, that, if the Court is of opinion that any part of any such statement is not relevant to the subject-matter of the Enquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but- not the reasons therefore) and shall exclude such part from the copy of the statement furnished to the accused.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32, clause (1) of the Evidence Act, 1872 or to affect the provisions of Section 27 of that Act.
" (emphasis supplied)
19. With regard to the statements of Maulana Mahmood ul Hassan Toheedi (PW-9) and Maulana Ghulam Siddiquei (PW-10) that they rendered the opinion (Exh.PF),it is observed that both Maulana Mahmood ul Hassan Toheedi (PW-9) and Maulana Ghulam Siddiquei (PW-10) themselves had not heard what was said by the appellant and rendered their opinion (Exh.PF) upon the narrations of the prosecution witnesses as submitted to them, therefore the opinion (Exh.PF) rendered by of Maulana Mahmood ul Hassan Toheedi (PW-9) and Maulana Ghulam Siddiquei (PW-10) has no relevancy for the simple fact that the statements of the prosecution witnesses namely Bilal Mahmood (PW-2), Muhammad Dawood (PW-3), Munawar Hayat (PW6), Mazhar Mahmood (PW- 7), Muhammad Zeeshan (PW-8), Sadaqat Ali (PW-11) and Shahid Mahmood (PW-12) as made by them before the learned trial court have been found short of being proof of facts in issue and relevant facts.
The plea of the learned Deputy Prosecutor General that because the complainant party had no enmity to falsely implicate the appellant in such a heinous crime thus, the evidence adduced should be believed, is entirely a misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person. Even evidence of an uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of an inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of "Waqar Zaheer vs. The State" (1991 PSC 281). It is a known and settled principle of law that the prosecution primarily is bound to establish guilt against the accused without a shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw a conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges, so imputed against the accused, have not been proved beyond a reasonable doubt, then the accused becomes entitled to acquittal. In such a situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether the accused is entitled to the benefit of the doubt the Court can conclude by considering the agglomerated effect of the evidence available on record as held in the cases of "Safdar Ali v. The Crown" (PLD 1953 FC 93) and "Muhammad Luqman v. The State" (PLD 1970 SC 10). In the instant case we have scanned the prosecution evidence in-depth and we are persuaded to hold that the prosecution has failed to produce trustworthy, confidence-inspiring and consistent evidence against the appellant.
Conversely, the evidence so brought on record appears to have been fabricated to prove the prosecution case. Even otherwise the prosecution evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the appellant intrinsically and if the evidence of such defective quality is accepted it would produce an illusory judgment which apparently would not be sustainable in the eyes of the law in view of the principles laid down by the august Supreme Court of Pakistan. Even otherwise the prosecution evidence is inconsistent and flawed, thus, on the basis of the same, the appellant cannot further be immured because he has every right to claim the guarantee of the Constitution of the Islamic Republic of Pakistan,1973 which provides that every citizen of the country shall be dealt with in accordance with the law. We cannot dismiss the appellant's plea of being a faithful Muslim nor can possibly take exception to it, in the absence of evidence to the contrary to his acclaimed unflinching conviction in the injunctions of his faith. The Constitution of the Islamic Republic of Pakistan, 1973 guarantees freedom to an individual to hold and profess the faith of his choice; in his divine pursuits, he is sovereign and there is no intermediary between his soul and its Comforter, therefore, the appellant's declaration of faith is to be preferred over divergent imputations. Citizens, regardless of religion, are equal before law and entitled to equal protection thereof and it is so guaranteed under the Constitution. A criminal charge is to be essentially settled on positive proof alone and not on perceptional or optical paradigms. It is a well settled principle of law that one who makes an assertion has to prove it. Thus, 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. There cannot be a fair trial, which is itself the primary purpose of criminal jurisprudence, if the judges are not able to clearly elucidate the rudimentary concept of the standard of proof that the prosecution must meet in order to obtain a conviction. Two concepts i.e., "proof beyond reasonable doubt" and "presumption of innocence" are so closely linked together that the same must be presented as one unit. If the presumption of innocence is a golden thread to criminal jurisprudence, then proof beyond a reasonable doubt is silver, and these two threads are forever intertwined in the fabric of the criminal justice system. As such, the expression "proof beyond reasonable doubt" is of fundamental importance to the criminal justice: it is one of the principles which seeks to ensure that no innocent person is convicted. Where there is any doubt in the prosecution story, benefit should be given to the accused, which is quite consistent with the safe administration of criminal justice. Further, suspicion however grave or strong can never be a proper substitute for the standard of proof required in a criminal case, i.e. beyond a reasonable doubt.
21. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Sajid Ali son of Mohsin Khan, in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha Vs. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749)."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 SCMR 736) in which it has been held as infra: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
The august Supreme Court of Pakistan in the case of "The State through P.G. Sindh and others Versus Ahmed Omar Sheikh and others" (2021 SCMR 873) has observed as under :- "32. After careful reappraisal of the entire evidence, as discussed above, we are entertaining no amount of doubt that prosecution has failed to bring home guilt of the accused/respondents and appellant as the evidence furnished during the trial is full of factual and legal defects. In this case, regarding each and every piece of evidence the doubts are emerging from the mouth of the witnesses, and it is settled since centuries that benefit of doubt automatically goes in favour of an accused. Even if a single circumstance create reasonable doubt in a prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation. Reliance can be made upon the case of Muhammad Mansha v. The State (2018 SCMR 772) in which this Court held as under: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that then guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
Reliance in this behalf can also be made upon the cases of Muhammad Imran v. The State (2020 SCMR 857), Abdul Jabbar and another v. The State (2019 SCMR 129), Mst. Asia Bibi v. The State and others (PLD 2019 SC 64), Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), Gul Dast Khan v. The State (2009 SCMR 431) and Daniel Body (Muslim name Saifullah) and another v. The State (1992 SCMR 196)."
22. For what has been discussed above, Criminal Appeal No.583 of 2023 lodged by Sajid Ali son of Mohsin Khan (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 07.07.2023 are hereby set-aside.
Sajid Ali son of Mohsin Khan (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Sajid Ali son of Mohsin Khan (appellant) is in custody and is directed to be released forthwith if not required in any other case.
23. Capital Sentence Reference No. 02 of 2023 is answered in Negative and the sentence of death awarded to Sajid Ali son of Mohsin Khan is Not Confirmed.