' Hakeem Iqbal Ahmad complainant submitted the application before the S.H.O., Police Station Sharaqpur, District Sheikhupura on 28-10-1988 with the allegation that on Tuesday when it was the Day of Eid-i-Milad-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 Ali went to the houses of the aforesaid boys who entered into arguments and they came back. On that date (28-10-1988) 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 professing about the faith of their religion and invited them to their house who intimated them that Abdul Qadeer, preacher of their religion, was present in their house that would satisfy them. They went to their house where the faith of Qadiani religion was professed and propagated. In the meanwhile, he (complainant), Mahmood-ul-Hassan, Hafiz Naeem-ur- Rehman and Sh. Jamil Ahmad also reached there. Hafiz Naeem-ur- Rehman 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 Holy Prophet Muhammad (peace is upon him). They asked him to refrain from 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 F.I.R. No,399, dated 28-10-1988 was registered under section 298, P.P.C. At Police Station Sharaqpur, District Sheikhupura. A perusal of the file has 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 P. W.1, Maqsood Ahmad P.W.2, Mahmood-ul-Hassan P.W.3 and Hafiz Naeem-ur-Rehman P.W.4. However, the Investigating Officer was not examined. Abdul Qadeer, Ashfaq Ahmad and Muhammad Shahbaz accused persons were 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 340(2) 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 amended. This petition remained pending while the trial continued. This application was disposed of on 14-3-1995 by the trial Magistrate who expressed that derogatory 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 facie liable under section 295-C, Pakistan Penal Code. Expressing about the non-existence of jurisdiction to hear the case prima facie 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 190(3) of the Code of Criminal Procedure.
3. The matter came up 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 to send back the file to the trial Court to adjudicate upon the matter on the basis of the material available on the record. He placed the matter before the learned Sessions Judge, Sheikhupura vide 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 1st Class, Ferozewala for further proceedings in the light of the reference made by Mr. Ijaz Mahmood 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 learned Sessions Judge as contemplated under section 190(3) of the Code of 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. It was 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 was 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 what had expressed that the case has to be tried by the Court of Session and that thereafter he has rightly passed the order under section 190(3) of the Code Criminal Procedure whereby he has sent up the case to the Court of Session.
7. Feeling aggrieved, the petitioners-accused have filed this petition undet section 561-A of the Code of Criminal Procedure for the quashment of the proceedings conducted by the Magistrate 1st 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 Qura'n is a revealed Book". They maintained that they are being vexed since long.
8.I have heard-the preliminary arguments. The contentions of the learned heard-the 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 295-C, Pakistan Penal Code and that the case could not be sent up in terms of section 190(3) of the Code of 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. I 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 v. The State 1980 SCM R 402 that the Court can alter the charge and proceed accordingly before pronouncement of judgment.
9. 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 to proceed under section 347 of the Code of Criminal Procedure which reads as under:-- "347. Procedure when, after commencement of trial, Magistrate finds case should be tried by Court of Session or High Court.--- If 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 to 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."
10. Legally section 347 of the Code of Criminal Procedure applies when after commencement of trial and before the announcement of the final judgment the Magistrate finds that the case should be sent to the Sessions Court. When 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 190(3) of the Code of Criminal Procedure "a Magistrate taking cognizance of a case under subsection (1) of 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 of Session for trial". When section 347 and section 190(3) of the Code of Criminal Procedure are read together the Magistrate 1st Class, Ferozewala is held to have proceeded in accordance with law.
11. For the sake of academic discussion which is also linked with the dispute in hand, I would like to touch at this stage another provision of law whereby a Magistrate can lay off 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."
12. The provisions of section 346 apply where the offence committed is apparently one which the Magistrate is not competent to try keeping in view column 8 to Schedule II of the Code of Criminal Procedure as in the instant case as according to Column 8 to Schedule II concerning section 295- C, Pakistan Penal Code an offence under section 295-C, Pakistan Penal Code is triable by the Court of Session (which shall be presided over by a Muslim) because the punishment is death or imprisonment for life and fine. The case in hand is of the said category and the Magistrate has rightly not proceeded. If a Magistrate is personally interested in a matter, as provided under section 556 of the Code of Criminal Procedure, he shall submit the case with a brief report explaining his position to the Sessions Judge and can send the file to him. Likewise if it is a case of tender of pardon to an accomplice, the District Magistrate or a Sub-Divisional Magistrate after tender of pardon subsection (1) of section 337 of the Code of Criminal Procedure shall not hear the case.
Under section 4.82 of the Code of Criminal Procedure where the Court considers that a case of contempt falling under section 480, Code of Criminal Procedure should not be dealt with by him due to the circumstances mentioned in section 482 of the Code of Criminal Procedure, he shall forward the case to another magistrate having the jurisdiction to try the same. Lastly, under section 487 of the Code of Criminal Procedure except as provided in sections 476, 480 and 485 of the Code of Criminal Procedure no Judge of a Criminal Court or Magistrate other than a Judge of a High Court shall try any person for any offence referred to in section 195 of the Code of Criminal Procedure when such offence is committed before himself or in contempt of his authority or is brought under his notice as such Judge or Magistrate in course of a judicial proceedings.
Obviously, the wisdom behind is that the same person should not decide a matter which he may have already prejudged.
13. The upshot of the aforesaid discussions is that the Magistrate 1st Class proceeded correctly keeping in view the procedural law and had no alternative but to send up the case to the Court of Session at Sheikhupura as contemplated under section 190(3) of the Code of Criminal Procedure.
14. Now I would take up the matter whereby the Additional Sessions Judge has, vide order, dated 15-7-1997, decided to proceed with the trial. The learned Additional Sessions Judge, Sheikhupura has affirmed the order passed by the Magistrate 1st Class regarding sending up the case to the Court of Session and I have approved his view. Thereafter, there is no justification to take an exception to the view expressed by the learned Additional Sessions Judge about the prima facie attraction of section 295-C, Pakistan Penal Code. It would be convenient to produce as under section 295-C, Pakistan Penal Code:-- "295-C. Use of derogatory remark etc.. In respect of the Holy Prophet (p.b.u.h.) .--- Whoever, by words, either spoken, or written, or by visible representation, or by any imputation, innuendo, or insinuation, - directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine."
15. Section 298-A, Pakistan Penal Code deals with the use of derogatory remarks etc. In respect of Holy Personages i,e, the sacred name(s) of any wife (Ummul Mumineen), or members of the family (Ahle-Bait), of the Holy Prophet (peace be upon Him) or any of the righteous Caliphs (Khulafa-e- Rashideen) or companions (Sahaaba) of the Holy Prophet (peace be upon Him). Thus, the recitals of the complaint have to be considered by the Court at the time of the formulation of the charge. In the complaint (F.I.R.) there is rather no mention about the Personages narrated in section 298-A, Pakistan Penal Code. In the complaint the allegation is about the use of derogatory remarks in respect of the Holy Prophet Muhammad (peace be upon Him) and the opinion expressed by the learned Additional Sessions Judge in his order, dated 15-7-1997 is held to be legal, valid and operative who has to hold the trial keeping in view Column 8 to Schedule II of the Code of Criminal Procedure.
16. 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 15-7-1997. The petitioners are prima facie liable under section 295-C, Pakistan Penal Code triable by the Court of Session. No doubt the matter is pending since long, yet I have to express my view that-the same has to 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.
16. Finding no force in this petition, I dismiss the same in limine.
17. 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 of 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 emphasise 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 day(s) 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, I 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.