JUDGMENT ARIF IQBAL HUSSAIN BHATTI, J.- Salamat Masih s/o Allah Ditta, Christian, aged 14 years, no village Ratta Dhotran, Tehsil and District Gujranwala and Rehmat Masih s/o Nanak Masih, Christian, aged 48 years, no village Phokarpur, Tehsil and District Gujranwala, were tried and convicted by the learned Additional Sessions Judge, Lahore. Vide judgment dated 9.2.95 both the accused were sentenced by the learned trial Court u/s 295-C/34 PPC to death with a fine of Rs.25,000/- each and in default of payment of fine they were sentenced to undergo two years R.I. Each. Both of them were also sentenced u/s 298-A/34 PPC to undergo two years' R.I. With a fine of Rs.10,000/- each, in default of payment of fine they were directed to undergo further imprisonment for six months R.I.
Each. Both the convicts/appellants filed appeal against then- conviction. The learned trial Court has made the reference u/s 374 Cr.P.C, for the confirmation of the death sentence. These two matters pertaining to same conviction shall be decided by this judgment.
2. Case FIR No.56/93 dated 11.5.1993 was lodged through an application Ex.PA at police-station Kot- Ladha, District Gujranwala by Hafiz Muhammad Fazal-e-Haq. He alleged in the FIR that he was a Khatib and Imam of the mosque of Mauza (village) Ratta Dhothran. About one year prior to the registration of the case objectionable words about the Holy Prophet (Peace Be Upon Him) were written in the toilet of the mosque. After sometime, a piece of paper was thrown at the door of the mosque containing derogatory words about the Holy Prophet (P.B.U.H). After passage of sometime, papers of like nature were thrown near the place of ablution. Then again objectionable words were written on the poster containing . The complainant stated in the FIR. That on 9.5.1993 at about evening time, Salamat Masih, Rehmat Masih and Manzoor Masih (since murdered) were seen writing words with a piece of brick derogatory to ((Urdu Text)) and other religiously provocative words on the wall of the mosque and other places. The complainant, Haji Muhammad Akram and Lambardar Muhammad Bakhsh tried to apprehend them but they ran away. The complainant and witnesses immediately wiped out these objectionable words. The complainant produced before the police the material containing objectionable writings which were kept by him. The two objectionable chits PI & P2 containing derogatory words against the Holy Prophet (P.B.U.H.) were taken into possession by the S.I. On the same day vide memo Ex.PB.
3. Aman Ullah S.I. Visited the place of occurrence, inspected the spot and prepared the site-plan Ex.PC. The Sub-Inspector arrested Salamat Masih and Manzoor Masih on the same day from their houses while Rehmat Masih voluntarily surrendered and arrested on 13.5.1993. After the completion of the investigation, the challan was submitted in Court.
4. Learned Additional Sessions Judge, Lahore conducted the trial of the case. Manzoor Masih was murdered during the trial and, therefore, the case against him abated. Salamat Masih and Rehmat Masih faced the trial. The prosecution produced for PWs in all. PW-1 Hafiz Muhammad Fazal-e-Haq appeared in Court and stated on oath that keeping in view the prevalent circumstances and danger to his life, he did not want to pursue the case.
5. PW.1 made the statement which is reproduced as under:- "I do not want to pursue this case keeping in view the prevalent circumstances and keeping in view that my life is also in danger. (At this stage the learned DDA requests to declare the witness as hostile as according to him the witness is intentionally suppressing the truth. The request of the learned DDA appears to be genuine and, therefore, he is allowed to cross-examine the witness).
XXXXXXX by DDA.
It is correct that application Ex.PA, is in my hand and bears my signatures. The occurrence narrated in Ex.PA, in fact had taken place. I had been attacked and I apprehend further attack.
XXXXXXX by learned defence counsel.
I do not apprehend any danger from the accused."
6. PW.2 Muhammad Akram stated in his examination-in-chief that:- "On 9.5.93 at about deger-wala I along with Mohammad Bakhsh and Hafiz Mohammad Fazal-e- Haq PW came out from Masjid. Salamat Masih accused present in the court was writing something on the wall with a stone. Rehmat Masih accused present in the Court and Manzoor Masih (since dead) were also standing there. I cannot express those words keeping in view the sanctity. The accused ran away towards the South and so they could not be apprehended. Some un-known persons used to throw chits in the Toilets and as we were not in the know as to who were those persons, we had not taken any action. Manzoor Masih on one day entered into argument as Hafiz Mohammad Fazal Haq used to give lecture on Jesus Christ. P.1 and P.2 were produced before the Investigating Officer, in my presence which were taken into possession vide memo Ex.P.B. Which was signed by me and Mohammad Bakhsh PW."
7. Learned defence counsel, in cross-examination, asked certain questions to the witness regarding some disputes between the witness and the family members of Salamat Masih and Manzoor Masih. The witness also admitted that he saw Ex.Pl and P2 for the first time on 11.5.1993. He also admitted that Rehmat Masih was a resident of village Phokar which was at a distance of 1/ 1 mile from the village of the witness.
8. PW-3 Muhammad Bakhsh stated in his examination-in-chief that: "It was about between Asar and Maghrab Prayer on 9.5.1993 when I was sitting with Hafiz Mohammad Fazal-e-Haq in the Masjid along with Haji Mohammad Akram PW and were discussing some propositions. When we came out from Masjid we saw that Rehmat Masih, Salamat Masih accused present in the Court and Manzoor Masih (since murdered) were writing on the wall with stones in their hands. I cannot express those words which they were writing on the wall. On our.
Sight, the accused present in the Court along with their co-accused (since murdered) ran away.
Moulvi Fazal-e-Haq PW produced P.1 and P.2 before the police in my presence which were taken into possession vide memo Ex.PB, which was signed by me."
9. In cross-examination, he also admitted that PI and P2 were seen by him for the first time when they were produced by PW-1 at the police-station. Learned defence counsel also cross-examined the witness with regard to certain disputes between the accused and the witness and that Manzoor Masih used to have discussions with PW-1 on religious matters. The witness was further cross- examined regarding obtaining of signatures of Christians by Rehmat Masih against Master Inayat who had refused to teach Christians children in the school. A question was also put to the witness regarding the installation of loud-speaker in the church by Rehmat Masih which was opposed by the witnesses but he denied.
10. PW-4 Aman-Ullah S.I./SHO stated in Court that he investigated this case on the basis of and after registration of FIR and stated that he registered the case, arrested the accused, took into possession chits P.1 and P.2 and submitted the challan. In cross-examination, the witnesses admitted that Salamat Masih Manzoor Masih were arrested from their houses. Learned defence counsel also asked certain questions regarding the installation of loudspeaker in the church by Rehmat Masih and Manzoor Masih indulging in discussion with Maulvi Fazal-e- Haq PW-1.
11. Learned trial Court while recording the statement of Rehmat Masih u/s 342 Cr.P.C, asked question No.3 as under:- "It is in the evidence that you along with your co-accused above named prepared Ex.P.1 and Ex. P.2 incorporating in those exhibits the derogatory remarks to de-file the sacred name of the Holy Prophet (peace be upon him), what do you say about it?" to which the accused/appellant answered as under:- "It is incorrect. Ex.P.1 and Ex. P.2 were in fact prepared by the PWs."
In answer to question No.4 as to why this case against you and why the PWs deposed against you, he stated that one Master Inayat had refused to teach Christian children. He obtained signatures of Christian community and lodged report against the said teacher. He threatened him to teach a lesson at proper time. He further stated that he installed a loudspeaker in the church after obtaining permission from the Deputy Commissioner. In consultation with the respectables of the village, the loudspeaker remained closed in the time of prayer. Master Inayat protested that his students got disturbed by the loudspeaker; consequently, he removed the loudspeaker. He stated that Salamat Masih was not his relative and was not even acquainted to him. He learnt that he was involved falsely in the case and with the help of Aadil Sharif, M.P A, he surrender before the S.S.P.
Gujranwala. He stated that he had regards for the Muslims and all other religions. Master Inayat had formed a group against him. He alleged that Manzoor Masih co-accused was murdered by these peoples. He also sustained injuries at their hands.
12. In this statement u/s 342 Cr.P.C., Salamat Masih denied the allegations and stated that he had a quarrel with Mujtahid, nephew of Muhammad Akram PW and that there was enmity between the accused and Haji Akram regarding the theft of Sheesham tree and that is why he has been involved in the case. He stated that he has regards for Islam and all other religions.
13. Learned trial Court, despite the fact that PW-1 stated in his statement that he was not prepared to pursue his case, held that the whole material contained in complaint Ex.PA would be read as evidence against the accused, learned trial Court, while accepting the evidence of PW-2 and PW3, came to the conclusion that an offence u/s 295-C and 298-A PPC was made out and convicted the two appellants accordingly.
14. Mrs Asma Jahangir, advocate, learned counsel for the appellants, has inter alia submitted that PW-1 Hafiz Muhammad Fazal-e-Haq, complainant, stated on oath that he did not want to pursue the case and was declared hostile on the ground of intentionally suppressing the truth. In cross- examination, he stated that the application Ex.PA was in his hand and bore his signatures. And that the occurrence narrated in Ex.PA in fact had taken place. Learned counsel submitted that he was a hostile witness and his statement lost its all evidentiary value having been declared as such. He stated nothing in the Court regarding the occurrence concerning writing on the wall or the production of objectionable chits Ex.Pl and P2, therefore, his evidence was of no value. Learned defence counsel submitted that there are serious contradictions between the version of PW-2 and PW-3. PW- 2 stated that Salamat Masih accused was writing something on the wall with a stone.
Rehmat Masih and Manzoor Masih were also standing there. While PW-3 Muhammad Bakhsh stated that Rehmat Masih, Salamat Masih and Manzoor Masih were writing on the walls with stones in their hands. It is the serious contradiction between the version of the two eye witnesses which makes then- evidence doubtful and unreliable. Learned defence counsel further submitted that even if the evidence of PW-2 is accepted, they have stated nothing with regard to the offences u/s 295-C and 298-A PPC. The only thing that PW-2 and PW-3 stated was something being written on the wall. The two witnesses have not stated that the writing was either derogatory/defamatory to the Holy Prophet(p.b.u.h.) or was against the religious feelings of any community. Learned counsel submitted that the alleged derogatory words on the wall of the mosque were wiped-out immediately by the witnesses. Those words were not reproduced and stated in Court by the witnesses. The impressions and opinions of these witnesses cannot be made the basis for a judicial finding under the law. With regard to the chits-Pl and P2, learned defence counsel argued that the prosecution has failed to prove that these were written by the appellants or were recovered from them or had any connection whatsoever. This objectionable material was kept by PW-1 for one year and was produced for the first time on 11.5.1993 at the police-station. Learned counsel has seriously challenged lodging of the FTR after two days of the occurrence and argued that the witnesses after consultation involved the appellants and Manzoor Masih (since dead) in the case and it is a case of no evidence.
15. Mian Abdus Sattar Najam, Advocate-General while making submissions, stated that from the plan reading of the evidence on record, no case is made out against the appellants. The witnesses did not narrate the objectionable words written on the wall nor they took the Court into confidence.
Simple impression and findings of the witnesses cannot be made basis for the conviction of the serious nature like the one u/s 295-C PPC against the appellants. No nexus was established by the prosecution regarding the writing of chits PI and P2 with the appellants.
16. Mr. Muhammad Ismail Qureshi and Mr .Rashid Murtaza Qureshi, Advocates appearing for the complainant submitted that a serious offence regarding the sentiments of the Muslims community concerning defamatory writings regarding the Holy Prophet (p.b.u.h.) was alleged by the prosecution witnesses in the FIR. The words were so provocative that the witnesses had to remove the same from the wall and the witnesses were unable to utter those words in Court. Their evidence as such is sufficient to warrant the conviction u/s 295-C/34 & 298-A PPC. The production of chits PI and P2 provide circumstantial and corroborative pieces of evidence against the appellants.
17. Mr Abid Hassan Minto, senior Advocate as amicus curiae, submitted that he has carefully perused the evidence and the material of the case and was of the view that it was case a of no evidence and the conviction is baseless. Referring to the principles of Criminal Jurisprudence, he referred to pages 48, SO and 52 of the Qanoon-e-Shahadat commentary written by Mr. Justice Khalil-ur-Rehman's Khan and stated that in criminal case, the courts decision must rest upon legal grounds established by legal testimony. The prosecution must prove its case beyond all reasonable doubts and the benefits of doubt had to go to the accused as in Islamic Law he is presumed to be innocent. The conjectures, surmises and opinions of a witness regarding a fact not produced in verbatim before the court cannot be made basis for the conviction of an accused. He further argued that the evidence should be direct and the circumstances corroborating the evidence must be cogent. Learned Advocate has referred to Amir Ali and Woodroofs, Law of Evidence, Volume I, Edition 1963 at pages 172 to 174 with regard to the standard of proof in civil and criminal matters. While referring the same he argued that strong suspicion in a criminal case cannot be made basis for. The conviction and for any sever and serious crime, clear and strong evidence is required for the basis of conviction. He has referred to a book "Islamic Criminal Jurisprudence" by Cherif Bassiouni. In fact, it is a collection of different articles by different jurists.
Page 101 of the book refers that the principle of presumed innocence makes every man immune from punishment until evidence of guilt is established. This presumption is not negated by any degree of doubt. At page 109, it is again reiterated that" the accused is presumed innocent, is fundamental in Islamic Law. Whoever claims otherwise, must prove it." The corollary to this principle is that the burden of proof is on the complainant. Learned counsel has referred to another book titled" ((Urdu Text)) written by Irfan Hassan Siddiqui Learned counsel has referred to page 196 wherein the author says that:- ((Urdu Text))
Mr Abid Hassan Minto, Advocate submitted that sections 295-C and 298-A are the provisions of Pakistan Penal Code and the rules of 'Qanoon-e-Shahadat' like all other cases will be applicable.
The yard-stick of Tazkiya Tushahood ((Urdu Text)) was not applicable in the case.
18. Mian Dilawar Mahmud, Advocate as amicus curiae, agreeing with Mr Abid Hassan Minto, stated that the ordinary normal law of the land is applicable to the present case. But the cordial arm, pies of criminal justice must be kept in view that the accused is innocent in the . Vc of law and the prosecution is to prove its case upto hilt. In this case his. View was that it was a case of no evidence. He relied on PLD 1953 F.G. 93, 1969 S.C.M.R. 501, PLD 1952 (LHR) 384, PLD 1960 (LHR) 172, PLD 1979 (LHR) 279 & 1976.P.Cr.LJ (LHR) 82.
19. Mr. Ijaz Hussain Batalvi, senior Advocate as amicus curiae referred to submitted that the prosecution has to establish its case by evidence. The evidence has to take the shape of proof which convinces a prudent man to believe the evidence as true, strong and soiled which would result in the conviction of the accused. He submitted that essentials of an offence i.e. Corpus delicti has to be established by cogent, reliable and strong evidence before the Court. The evidence should be so strong and convincing that prudent man should believe that the evidence is adequate and inspiring for the purposes of conviction. He has referred to PLD 1992 Lahore 45 and submitted that the criteria of Tazkiya Tushahood ( ((Urdu Text)) ) regarding the evidence of witnesses is applicable only in Hudood cases and not in the present case. He submitted that he has gone through the evidence. The witnesses have said nothing with regard to the allegations u/s 295-C and 298-A PPC. It is a case of no evidence and he was surprised that still the learned trial Court has convicted the appellants.
20. Mr. S.M. Zafar, senior Advocate as amicus curiae submitted that he has perused the record of the case and pleaded that it was a case of clear acquittal and nothing else. By the acquittal he stated that it would a victory of the principles of Islamic Justice and defeat of none. Learned counsel referred to Sura 21 Ayet 7 of Holy Quran where it was ordained that God sent the Holy Prophet (p.b.u.h.) as a blessing for all humanity i.e. Including the Muslims and non-Muslims. He argued that justice is to be administered with compassion as laid down in Surah 16 Ayat 19 of the Holy Quran. Learned counsel referred to Article 24 & 25 of the Meesaaq-e-Madinah ((Urdu Text)) where the Holy Prophet (p.b.u.h.) as a Chief Justice ordered that the justice must be administered without discrimination. Learned counsel referred to a book "Judicial System under the Holy Prophet (p.b.u.h.) written by Mr. Yousaf Goraya. At page 128" giving constitutional protection to the witnesses the 'Holy Quran has provided that the witness must speak out truth and narrate details of the facts without fear or favour. If he does not perform his duties honestly or conceals the facts, he is the sinner."
"Conceal not the testimony and whoever conceals it, his heart is surely sinful"
The above rule holds that the decision would be taken on the apparent evidence and not on its hidden meanings. Learned counsel has referred t6 Fatawa-e- Alamgiri ((Urdu Text)) Volume V, page 289 where it was written that:- j? J & fe >////giving evidence on hear-say regarding objectionable and provocative material is not admissible in evidence and the impression of the witnesses regarding certain facts is also not reliable evidence. Learned counsel has also referred to Islamic Jurisprudence in Modem World" by Anwar Ahmad Qadri. At page 500, the author says that the fundamental rule of the Shariah (Islamic Jurisprudence) provides that no weight should be attached to doubts or similar things and that weight should be attached only to certainty or to what may be established by evidence. A thing established by evidence is as though it were established by only seeing it. Learned counsel referred to numerous other books to substantiate his argument that it is the evidence produced in Court which can only become the basis for the conviction of an accused. Learned counsel reiterated that in serious cases, standard of evidence and proof should be strict and strong and in the present case there is not an iota of evidence connecting the appellants with the commission of the offence.
21. Mr. Rafiq Ahmad Bajwa, Advocate a amicus curiae referred to the different provisions of Qanoon-e-Shahadat and stated that it is the quality and not the quantity of evidence. He also referred to numerous authorities of the Supreme Court in support of his arguments. He submitted that chits PI and P2, which really contained provocative and objectionable material, could be taken as circumstantial and corroborative piece of evidence. He further submitted that PW-1 should n6t have been declared hostile by the D.DA. And in any case his evidence should not be rejected as a hostile witness and should be taken as evidence. PW-1 stated in court that he submitted an application PA (FIR) which was in his hand and bore his signatures and that the occurrence narrated in PA, in fact, had taken place. He argued that the contents of the FIR although not reproduced in the statement of PW-1 can be taken as a substantive piece of evidence. He further submitted that in the peculiar circumstances of this case, evidence of PW-2 and PW-3 can be made basis for the conviction of the appellants although they have it reproduced the defamatory words allegedly written on the wall by the accused. Learned counsel finally submitted that the case is fully proved against the appellants. On the asking of the Court that what points are in favour of the defence in your opinion, he submitted that the statements of the witnesses can be considered in their favour but the same could also be taken as corroboration of the prosecution case. There is no cavil with regard to the quality of evidence. The conviction can be based on the solitary statement of a witness if the Court finds his evidence to be trust-worthy, inspiring and in consonance with the circumstances of that particular case. We do not agree with the arguments of the learned counsel that Ex.PA became a substantive piece of evidence after the admission of PW-1 that he lodged the FIR. The FIR in our view is not a substantive piece of evidence. It can only be used as corroboration or contradiction of the complainant's statement which he makes before the Court on oath. PW-1 has stated nothing in Court with regard to the production of PI and P2 before the investigating-officer. It was only through the evidence of PW-4 Aman Ullah, I.O. That PI and P2 were exhibited. These chits, although very provocative, remained with PW-1 for a period of one year and he did nothing about it. In these circumstances, how we can consider these pieces of evidence as corroboration or circumstantial evidence against th<- appellants. The prosecution has failed to prove any nexus of the appellants with these chits.
22. In the interest of justice, Mr. Rashid Murtaza Qureshi and Mr. Muhammad Ismail Qureshi, Advocate, on their request, were allowed to submit on behalf of the complainant. Mr. Rashid Murtaza Qureshi repeated the arguments and was unable to and more to what he had earlier stated. Instead of referring to the evidence and the points of law, he was stressing more on the sentiments of the people with regard to the blasphemy by the accused.
23. Learned defence counsel submitted that although blasphemy has not been defined in the Penal Code but one can take assistance from the dictionary meanings of this word. The law makers have incorporated very elaborate exhaustive canvas covering all the situations connecting with the defiling of the sacred name of Holy Prophet (PBUH). Learned counsel agreeing with the arguments of Mr Abid Hassan Minto and Mr. Ijaz Hussain Batalvi, Advocates that corpus delicti is a must for every criminal charge i.e. Firstly the crime has been committed and secondly the accused is the author of it, he submitted that if an offence has been committed, the surrounding circumstances could be taken as the circumstantial evidence as well as corroborative evidence.
Learned counsel when confronted with the statements of PW-2 and P-3 that they failed to reproduce the alleged defiling words on the wall and they also did not mention whether it were defiling sanctity of the Holy Prophet (PBUH) or any other personality, he stated that it should not be presumed in favour of the prosecution that the defiling words were written against the sanctity of the Holy Prophet (PBUH).
24. Mr. Ghulam Bari Saleemi, senior Advocate appeared as amicus curiae and submitted that after going through the record of the case, he was of the confirmed view that the prosecution has failed to establish case against the appellants. PW.1 was utter lier and Lota who changed his position and the stances thrice, once before the trial Court and twice before this Court. He submitted that he was surprised to know what PI and P2 being provocative material were kept by this witness for one year in his custody. Learned counsel submitted that it is the statement of facts on oath before the Court subjected to cross-examination which provides material to the court, in coming to a conclusion, with regard to the guilt or otherwise of the accused. The FIR is not a substantive piece of evidence and it can only be used to c or corroborate the witness in the Court. The contradiction between PW-2 and PW-3 with regard to the overt act of the three accused is a serious contradiction. The prosecution has failed to bring any explanation with regard to the serious contradictions between the. Statements of these witnesses. Learned counsel submitted that the simple reading of evidence of PW-2 and PW-3 does not make out any case u/s 295-C PPC.
According to the Holy Quran and Ahadith, the benefit of each doubt is to be given to the accused and vague circumstances, assumptions, impressions and perceptions of the witnesses can not be made basis for conviction. The suspicion howsoever strong may be, do not obtain the status of facts. Learned amicus curiae further submitted that regarding both the charges, the prosecution failed to prove anything against the present appellants. Regarding the first charge, the witnesses even failed to describe whether the words, erased from the wall, amounted to defiling personality of the Holy Prophet (peace be upon him) or Sahaba-e-Kram or Ummat-ul-Mohmineen .
This being so, the prosecution cannot be given the benefit of any doubt which was the sole right of the defence. Regarding the chits PI and P2, he submitted that the writing of the chits PI and P2 was neither attributed by the prosecution to the present appellants nor a word was said as to who had dropped those chits in the mosque. This fact that the chits were dropped by un-known person, writer of whom Weis anonymous, could not be taken sis a circumstance against the present appellants. Learned amicus curiae summed-up that it was a case where no proof had been brought by the prosecution on record to warrant conviction and the judgment of the learned trial Court suffered from inherent defects and could not be supported.
25. Kh. Sultan Ahmad, Advocate as amicus curiae submitted that the prosecution version suffers from inherent contradictions. Chits Ex.P.1 and P.2 which were very objectionable were kept by P.W.1 for one year but the writings on the wall were immediately wiped out by the witnesses. The three P.Ws, namely, P.W.1, P.W.2 and P.W.3 failed to establish the case and there is not an iota of evidence against the appellants. He referred to the negligent attitude of the investigating agency, the Public Prosecutor and the trial Court. They failed to perform their respective duties in a case based on a serious charge. The police did not take remand of the accused and not tried to take their samples of hand writing to compare the same with the writing on the chits. The Court framed erroneous charge with regard to the recovery of chits which was not, in fact, the prosecution case. Deputy District Attorney failed to perform his duty, did not confront each fact of the F.I.R, to P.W.
1. The P.Ws did not state anything regarding any word defiling the sacred name of the Holy Prophet (Peace be upon him) and despite that the learned trial Court convicted the appellants. Learned counsel has drawn our attention to the writings of chits, Ex. P.2 where the ntune of Holy Prophet Muhammad was written with (PBUH) He pointed out that this little (PBUH) cannot be written by a non-muslim and that the writing is of an educated and experienced person. Learned counsel submitted that it must have been done by some saboteur or anti national element. Learned counsel pointed out that the F.I.R. Ex.PA, were written by somebody else and Hafiz Fazal-e-Haq only signed the same and it was not in his on hand writing as claimed by him in his statement. Learned counsel further submitted that F.I.R. Ex.PA, and recovery memo Ex.P.B. Were written by a police officer at the police station after due consultation. The delay of two days casts serious doubts on the prosecution case.
26. The complainant filed an application for the recording of additional evidence, by then the learned counsel for the defence had concluded her arguments and had left for abroad for her heart treatment. The additional evidence was sought on those omissions which were inherent defects in the prosecution case and the complainant had tried to fill in the lacunas. We dismissed this application by a separate detailed order in the interest of justice.
27. We have heard the learned counsel for the appellants, the complainant and the State and learned amicus curiae at great length. We have carefully perused the record and the hearing weis spread over to seven days and all the factual and legal aspects were discussed at length.
28. The case was set in motion by registration of case Exh. PA. On the application of Hafiz Muhammad Fazal-e-Haq. He appeared as a witness on oath before the trial Court and expressed his desire not to pursue the case due to prevalent circumstances and keeping in view the danger to his life and was declared hostile by the D.D A. And he was intentionally suppressing the truth. In reply to the cross-examination he stated that application Exh.PA, was in his on handwriting and bore his signature. The occurrence narrated in Exh.PA., had, in fact, taken place. He further stated that he did not apprehend any danger from the accused. Keeping in view his statement we are of the view that this witness had not advanced the case of the prosecution in any manner nor can the F.I.R lodged by him be taken as a substantive piece of evidence. He failed to narrate the facts incorporated in the F.I.R, before the Court. He even failed to mention that he produced' chits Exh. P.1 and P.2 before the police. His admission in cross- examination that the occurrence had, in fact, taken place would not help the prosecution version in any manner. A witness not stating the facts on oath before the Court subjected to cross-examination is of no worth. Hafiz Fazal-e-Haq submitted an application in this Court and prayed that he does not want to pursue the case and withdrew the power of attorneys given to his counsel. He was allowed to do so on 20.2.1995. He again appeared on 22.2.1995 along with another application stating therein that he wants to pursue the case and had given power of attorneys to his counsel, to represent him during the proceedings. His application was accepted and his learned counsel were allowed to represent the complainant in the interest of justice. In view of his above stated conduct, he is not a reliable witness. He failed to report the incident for two days and kept blasphemous chits, Exh. P.-l and P.-2 with him for a period of one year which makes his credence doubtful. Keeping in view the above facts and conduct of the witness, we are of the confirmed view that he is an unreliable witness and reject his testimony. Resultantly the exhibition of the application Exh. PA. During his cross- examination and his statement that the occurrence narrated in the F.I.R., in fact, had taken place will not advance the prosecution case nor the contents of Exh.PA, will be of any help to the prosecution case.
29. The main stay of the prosecution case is on the statement of P. Ws.2 and 3. Their statements have already been reproduced in extenso. Muhammad Akram stated that Salamat Masih was writing something on wall with a stone while Rehmat Mashi and Manzoor Masih (since dead) were standing there. He did not express those words keeping in view the sanctity. The witness has not narrated the defamatory or blasphemous words in his statement nor he specifically mentioned that those words were with regard to the sanctity of the Holy Prophet (P.B.U.H.). He further stated that some unknown persons used to throw chits in the toilet and the objectionable chits, Exh. P.1 and P.2 were produced for the first time at police-station on 11.5.1993. The defence alleged a back ground of strained relations between this witness on one side and Manzoor Masih and Salamat Masih on the other. The witness stated that the objectionable sentences comprised of 5/6 words which were wiped out by Maulvi Fazal-e-Haq.
30. P.W. 3, Muhammad Bakhsh, stated that be along with Hafiz Fazal-e- Haq and Muhammad Akram came out from the mosque. They saw Rehmat Masih, Salamat Masih and Manzoor Masih (since dead) were writing on the wall with stones in their hands and he could not express those words which were written on the wall. He further stated that chits P.1 and P.2 were produced by Maulvi Fazal-e-Haq at the police-station in his presence which were taken into possession vide memo exh.P.B. This witness was also subjected to lengthy cross- examination. The defence alleged back ground of previous enmity with this witness also, though he denied the same.
31. We would like to discuss the evidence of P.Ws. 2 and 3 together and evaluate their evidence vis- a-vis the charges against the present appellants. We are of the view that both the P.Ws, have not stated anything in their statements with regard to the writings on the wall. Both of them did not state a word that the alleged words or writings amounted to defiling the sacred name of the Holy Prophet (P.B.U.H.) or his family members. Both the witnesses have materially contradicted regarding the factum of writings on the wall. P.W.2 stated that Salamat Masih was writing and the other co-accused were just standing there while P.W.3 stated that all the three accused were writing on the wall with stones. In our view this is a serious contradiction which reflects on the veracity of these witnesses and makes their statements doubtful.
32. More so P.W. 2 stated that those sentences comprised of 5/6 words and if his statement is read in consonance with the statement of P.W.3 it becomes unbelievable and ridiculous that the three accused were writing one after the other these words ending upto 5/6 words in all. According to the Islamic Principle of Jurisprudence the truth has. To be stated in Court and withholding the truth amounts to a sin. It is the apparent truth which forms basis for warranting the conviction in a criminal case. The hidden truth which remains burned in the memories and chest of witnesses cannot be made basis for a conviction nor the conviction can be made to stand. Under the Qanun- e-Shahadat the facts alleged by the prosecution are to be proved by evidence on oath in Court and the evidence provides a basis for the proof of such facts which consequently results in the conviction of accused. The graver the offence the stronger and the inspiring evidence is the essential ingredient for the administration of criminal justice. Conjectures, surmises and impressions of a witness kept in his mind with regard to the action of an accused which consequently falls in the mischief of a crime is to be proved through cogent, tangible and strong evidence in Court. It is a cordial principle of criminal justice that a person is innocent in the eyes of law and it is the bounden duty of the prosecution to prove its case to the hilt. The evidence brought on the record of the case should be unambiguous and inspiring confidence in such a manner that a prudent man comes to an irresistable conclusion about the guilt of the accused Keeping in view the above said standard, we are of the view that these two P.Ws, have bitter-ably failed to prove the case of the prosecution and as such the reference is replied in the negative. Chits P.1 and P.2 has no nexus with the appellants and they stand exonerated of this charge also. Chits P.1 and P.2 were highly derogatory and defiling and we are sorry to say that these were kept for one year by P.W.1. The script of these two chits is by an experienced person and this requires a serious probe to trace out the actual culprits. We notice that of late, feelings of hatred among different communities and sects are being inflamed by anti-national elements. We expect that the Government will give immediate attention and take necessary steps in that direction.
33. What has been stated above, we are of the considered view that the prosecution has failed to establish the case against both the appellants. We accept the appeal and the appellants are acquitted of the charges. They shall be released forthwith if not required In any other case. The death sentence is not confirmed and the reference is returned with this order. The objectionable material to be destroyed under the orders of the Home Secretary after the disposal of appeal etc. In the Supreme Court. The poster of Kalmah-e-Tayyabiah be given back to the Imam Masjid.
Before parting with the judgment we want to place on record our appreciation for the valuable services rendered by Mrs Asma Jahangir, Advocate for the appellants and Mr. Muhammad Ismail Qureshi, Advocate for the complainant. We are also thankful to Mian Abdus Sattar Najam Advocate General Punjab for fair, candid and courageous presentation of the case before this Court. We are especially grateful to the valuable assistance rendered by M/S S.M. Zafar, Ijaz Hussain Batalvi, Abid Hassan Minto, Kh. Sultan Ahmad, Mian Dilawar Mahmood, Muhammad Hanif Khatana, Rafique Ahmad Bajwa, and Ghulam Bari Salimi Advocates as amicus curiae in the case.