MUHAMMAD NASEEM CHAUDHRI J.-- Hakeem Iqbal Ahmad complainant submitted the application before the SHO Police Station Sharaqpur. District Sheikhupura on 8.10.1.988 with the allegation that an Tuesday when u was the Day of Eid-i-Mi!Ad-un-Nabi some young persons belonging to Qadiani* religion including Ashfaq. Tanveer and Shahbaz were pasting the pamphlets of Qadiani religion in Sharaqpur City preaching and professing their faith. The sentiments of the persons who read the pamphlet were-injured. Maqsood. Ahmad. Ahmad Sabir Ali. Sh. Muhammad Habib and Sh.
Ashraf All went to the houses of the aforesaid boss who entered into arguments and they came hack. On that date <28 i0.19881 inside New Gate Sharaqpur in front of the shop of Jamil Pot-Seller there were present Maqsood Ahmad. Sh. Ahmad Sabir Ali and Sh. Muhammad Habib. The aforesaid Ashfaq and another person arrived and again started protessting about the faith of their religion and incited them to their house who intimated them that Abdul Qadeer. Preacher of their religion, was present in their house who would satisfy them. They went to their house were the faith of Qadiani religion was professed and propagated- ln the meanwhile, he (complainant. Mahmood- ul-Hassan. Hafiz Naeem-ur-Rehman's and Sh. Jamil Ahmad also reached there. Hafiz Naeem-ur- Rehman's and Mahmood-ul-Hassan stressed about the truthfulness of the Religion of Islam, but the preacher of the Qadiani religion misinterpreted the Islamic Religion who used derogatory language in respect of the Holy Prophet Muhammad (Peace be Upon him. They asked him to refrain front doing so and also from removing the Kalma "they had written in front of the house" who refused in the matter According to him Abdul Qadeer preacher of Qadiani religion Ashfaq and Shahbaz used the derogatory sentence that "all what you consider (have the feelings about Mirza Ghulam Ahmad they say the same about Muhammad (Peace Be Upon Him)." The complainant prayed for taking the legal action in the matter. On the basis of the aforesaid complaint formal FIR No. 399. Dated 28.TO. 1988 was registered under section 298 PPC at Police Station Sharaqpur.
District Sheikhupura. A perusah of Refile/hat- made out that the case was half-heartedly investigated by the Police and the challan for the prosecution of the accused namely Abdul Qadeer. Shahbaz and Ashfaq Ahmad under section 298- A Pakistan Penal Code was submitted in the Court of the Area Magistrate Police Station Sharaqpur who charged the accused persons on 9.7.1991 under section 298- A Pakistan Penal Code. The Area Magistrate recorded the. Statements of Hakeem Iqbal Ahmad PW-1. Maqsood Ahmad PW 2. Mahmood-ul-Hassan PW3 and Hafiz Naeem- ur-Rehman's PW-4. However, the Investigating Officer was not examined. Abdul Qadeer. Ashfaq Ahmad and Muhammad Shahbaz accused persons w ere examined under section 342 of the Code of Criminal Procedure who denied the version of the prosecution case. Abdul Qadeer Qamar appeared as his own witness in defence on solemn affirmation under section 340i2i of the Code of Criminal Procedure on 27.3.1994.
2. It was on 17.10.1994 that Hakeem Iqbal Ahmad complainant filed an application before the trial Magistrate that the accused persons were prima facie liable under section 295-C Pakistan Penal Code and that the charge may be attended. This petition remained pending while the trial continued. This application was disposed of on 14.3,1995 by the trial Magistrate who expressed that derogaiory remarks were expressed about the Holy Prophet Muhammad (Peace Be Upon him and that instead of section 298-A Pakistan Penal Code. the accused were prima tone liable under section 295-C Pakistan Penal Code. Expressing about the nonexistence of jurisdiction ,to hear the case prima fade falling under section 295-C Pakistan Penal Code, the trial Magistrate sent up the same to the learned Sessions Judge. Sheikhupura as contemplated under section 19013 > of the Code of Criminal Procedure.
The matter came tip before Mr. Ijaz Mahmood' Chaudhri. Additional Sessions Judge. Sheikhupura who expressed the opinion that- the aforesaid order dated 14.3.1995 was not a speaking order and passed the order -end back the file to the trial Court to adjudicate upon the matter on the basis of the material a\ ail able on the record. He placed-the matter before the learned Sessions Judge.
Sheikhupura \ide order dated 16.5.1995 for passing the necessary orders. Vide order dated 21.5.1995 learned Sessions Judge. Sheikhupura sent back the file to the Court of Mr. Muhammad Siddique.
Civil Judge. Magistrate lst Class Ferozewala for further proceedings in the light of the reference made by Mr. Ijaz Mali mood Chaudhri.. Additional Sessions Judge Sheikhupura.
4 Thereafter the trial Magistrate wrote a detailed order comprising five pages and expressed the view that the accused persons are prima facie liable under section 295-C Pakistan Penal Code and that the trial could be conducted by the learned Court of Session at Sheikhupura Consequently he sent up the case to the iea. Ncd Sessions Judge as .Contemplated under section 190t3i of the Code ot Criminal Procedure.
5. The learned Sessions Judge. Sheikhupura entrusted the matter to the learned Additional Sessions Judge. Sheikhupura. On 18.12.1995 the accused persons made the application before the learned Additional. Sessions Judge wherein they expressed that the trial was concluded and arguments were heard by the Magistrate 1st Class and that the trial Magistrate had committed an illegality in making a reference of the case to the Court of Session without deciding the same with respect to the charge framed under section 298-A Pakistan Penal Code, lt was J prayed that the matter may be sent back for recording the judgment for the alleged commission of the offence under section 298-A Pakistan Penal Code.
6. At present the case is on the file of Rana Zahid Mahmood. Additional Sessions Judge.
Sheikhupura. Before the learned Additional Sessions Judge it was contended that the trial after the framing of the charge under section 298-A of the Code of Criminal Procedure w as concluded and the same should have been disposed of by the trial Magistrate who could not alter the charge and could not send up the case to the Court of Session. After hearing the parties learned trial Court expressed the view that a perusal of the recitals of the First information Report has made out the prima facie existence of the charge under section 295-C Pakistan Penal Code, that there was no lacuna in the order passed by the trial Magistrate under section 347 of the Code^of Criminal Procedure who had expressed that the case has to be tried by the Court of Session and that thereafter he ha> rightly passed the order under section 190(3) of the Code of Criminal Procedure whereby he has sent up the case to the Court of Session.
7. Feeling aggrieved the petitoners-accused have filed this petition under section 561-A of the Code of Criminal Procedure for the quashment of the proceedings conducted by the Magistrate lst Class and also the proceedings pending before Rana Zahid Mahmood. Additional Sessions Judge.
Sheikhupura. According to the petitioners "they believe in the prophethood of Rasool-i-Pak and also believe that He is Afzal-ur-Russal and that Holy Quran is a revealed Book'. They maintained that they are being vexed since long.
8. I have heard the preliminary arguments. The contentions ot the learned counsel for the petitioners are that after the conclusion of the trial, the charge framed under section 298-A Pakistan Penal Code could not be altered changed and no opinion could be expressed by the trial Magistrate 1st Class about the prima facie attraction of section 29.CC Pakistan Penal Code and that the case could not be sent up in terms of section 190i3t of the Code ot Criminal Procedure to the Court of Session. He laid the emphasis that the petitioners-accused are the Qadianis and are being vexed for the last about one decade against whom a false case has been got registered and that it being a matter of abuse of process of law the proceedings are liable to be quashed in toto.
9. 1 do not agree with the learned counsel for the petitioners. At this stage it would be proper to reproduce as under section 227 of the Code of Criminal Procedure:- "227. Court may alter charge.
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
10. A bare reading of the aforesaid section 227 of the Code of Criminal Procedure has made me to express that the Court has the power to add or to alter change a charge. My feeling is that at the time of the writing of the final judgment the trial Magistrate came to the conclusion that the offence prima facie falls under section 295-C Pakistan Penal Code, and not under section 298-A Pakistan Penal Code. It would be .Convenient to refer to the command made in the ruling published as Nadir Shah vs. The Stare (1980 SC.MR 402) that the Court can alter the charge and proceed accordingly before pronouncement of judgment.
11. In the instant matter the trial Magistrate, after expressing his opinion about the prima facie attraction of section 295-C Pakistan Penal Code had no alternative but-id proceed under section of the Code of Criminal Procedure winch reads as under:- "347. Procedure when, otter commencement of trial. Magistrate finds case should he tried ln Court of Session or High Court.
(1) lt in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought ro be tried by the Court of Session or High Court, he shall send the case to the Court, of Session or High Court, for trial."
12. Legally section 347 of the Code of Criminal Procedure applies when atter commencement of trial and before the announcement of the final judgment the Magistrate finds that the case should be sent to the Sessions Court. Whens the trial Magistrate had expressed the aforesaid opinion obviously he had to proceed under section 190(3) of the Code of Criminal Procedure keeping in view the punishment under section 295-C Pakistan Penal Code whereby the punishment provided is death or imprisonment for life and also the fine Under section 19ui3i of the Code of Criminal Procedure "a Magistrate taking cognizance of a case under sub-section 111 ot section 190 of the Code of Criminal Procedure of an offence trial exclusively by a Court of Session shall without recording the evidence send the case to the Court ot Session for trial". When-section 347 and section 190<3i of the Code of Criminal Procedure are read together the Magistrate lst Class.
Ferozewala is held to have proceeded in accordance with law.
13 For the sake of academic discussion which is also linked with the dispute in hand. 1 would like to touch at this stage another provision of law whereby a Magistrate can lay of his hands about the disposal of a case. In this regard section 346 of the Code of Criminal Procedure is reproduced as under:- "346. Procedure of Magistrate in cases which he cannot dispose of:-
(1) If. In the course of an inquiry or trial before a Magistrate in any district, the evidence appears to him to warrant a presumption that the case is one which should be tried or sent for trial to the Court of Session or the High Court, by some other Magistrate in such District, he shall stay proceedings and submit the case, with a brief report explaining its nature to the Sessions Judge or to such other Magistrate, having jurisdiction, as the Sessions Judge directs.
(2) The Magistrate to whom the case is submitted may. If. So empowered, either try the case himself, or send the case for trial to the Court of Session or the High Court.
14. The provisions of section 346 apply where the offence committed is apparently one which the Magistrate is not competent to try keeping in view [Text Missing]
15. Section 298-A Pakistan Penal Code de. Iis with the use of derogatory remarks etc. In respect of Holy Personages- i.e. the sacred name of any wife (Ummul Mumieen) or members of the family (Ahle-Bait) of Holy Prophet Peace be upon him or am of the righteous Caliphs Khulafa-e-Rashideen or companions (Sahaaba) of the Holy Prophet Peace Be Upon Him Thus the recitals ol the complaint have to be considered by the Court a; the time of the formulation she charge.. In the complaint (FIR) there is rathe: no mention about -he Pct images narrated in section 298-A Pakistan Pen Code. In the complaint the allegation is about the use of derogatory remarks in respect o: the Holy Prophet Muhammad (Peace Be Upen Hum and the opinion expressed by the learned Additional Sessions Judge m his order dated 15.7.1997~ is held to be legal validd and operatise who has to hold the trial keeping in view Column 8 to Schedule-H of the Code of Criminal Procedure.
I6. The only irresistible conclusion which can be drawn from the aforesaid 'state of affairs, analysis of the matter and discussion is that the learned Additional Sessions Judge has passed the correct order dated 15.".'.99":, The petitioners are primo fade liable under section 295-C Pakistan Penal Code triable by the Court of Session. No doubt the matter is pending since long yet 1 ha\e to- express my view that the same has jo be disposed of in accordance with law by the Court of competent jurisdiction keeping in view the nature of the alleged accusation and obviously has to be established independently by the prosecution in accordance with law.
17. Finding no force in this petition. I dismiss the same in limeline.
18. At this stage I have to simply-express my surprise that the matter is lingering on since long. The case remained pending before the Court which had no jurisdiction to try the same. The trial Magistrate simply acted on the wrong opinion of the Investigating Officer mentioned in the challan indictment and charged the accused persons under section 298-A Pakistan Penal Code even though there was no allegation of use of derogatory remarks in respect ot Holy Personages mentioned .Therein. Rather he conducted the trial in a perfunctory manner Now the case is at present in the Court of Rana Zahid Mahmood. Additional Sessions Judge.
Sheikhupura. I would refer to Chapter 24 Part-B. Lahore High Court Rules and Order Volume-III and would emphasis that the sessions trials should be given seriousness which they deserve and that the same can be disposed of through adopting the method procedure mentioned in the aforesaid ^Chapter. The trial Court shall fix this case day to day and on the relevant datisi it shall not crowd the cause-list The summer vacations for the year 1997 to be availed by the learned Additional Sessions Judge are just in the offing, keeping in view all the aspects. 1 direct Rana Zahid Mahmood.
Additional Sessions Judge. Sheikhupura to finally decide dispose of the case till 30.9.1997 under intimation to the Registrar of this Court.