' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Reference No,15 of 1998 and Criminal Appeal No, 113 of 1998 filed by Ghulam Akbar, appellant who was convicted and sentenced on 29-81998 by learned Additional Sessions Judge, Khanpur to undergo death sentence under section 295-C, P.P.C. With a fine of Rs,20,000 and in default two months R.I.
2. Occurrence in this case had taken place on 17-4-1995 at Ishawela in a hotel situated near Serani mosque which falls within Mauza Fatehpur Kamal, 18 kilometers from Police Station Zahar Peer, district Rahimyar Khan while the matter was reported by Bashir Ahmad (P.W.1) through a written complainant Exh. P.A. On 8-5-1995 upon which formal F.I.R. Exh. P.A./1 was recorded by Jan Muhammad, S.I./S.H.O. Of the Police Station who was examined as P.W.4.
3. Allegation against the appellant was that on 17-4-1995, complainant went to the hotel of Rahim Bux to have a cup of tea where Ghulam Akbar, appellant was already sitting and asked the name of complainant and his companion. Complainant after telling his name and name of the companion also asked about the name of appellant who stated his name as Ghulam Akbar. Then the complainant also asked the name of companion of the appellant which was told as Muhammad Abbas. In the meanwhile, Ghulam Akbar, appellant interrupted and asked Muhammad Abbass not to tell his name as Muhammad Abbass but Ghulam Abbass and used derogatory remarks about the Holy Prophet Hazrat Muhammad (URDU TEXT) Complainant asked Ghulam Akbar, appellant to beg pardon and not to use any filthy remarks but he entered into arguments. Then the complainant ran towards the mosque so that people could be gathered but none was present in the mosque. Complainant alongwith his companion thereafter went to the house of Master Muhammad Zafar who was called outside and many other people also gathered there. All who were present outside the house of Zafar started towards the hotel of Raheem Bux but the appellant had run away. Later on, complainant and others went to house of the appellant but nobody came out although light conversation was going on inside the house. Next morning, appellant was searched but it was learnt that the appellant had run away from his house and on the third day Ghulam Akbar was arrested from Mauza Saidpur and brought to Government High School where many people of the locality also gathered and asked for his punishment. During this, respectables of the area constituted a committee consisting of 10 members which was chaired by Khawaja Muhammad Ashraf, Sajjada Nasheen Darbar Aalia Hamid Saraj. The committee took the evidence of witnesses and also from the first cousin of Ghulam Akbar, during which Muhammad Abbass admitted that Ghulam Akbar had used filthy language against Holy Prophet Hazarat Muhammad (URDU TEXT). The committee so constituted gave the decision that Ghulam Akbar had in fact used derogatory remarks against Holy Prophet Hazrat Muhammad (URDU TEXT) and that he should be handed over to police. According to complainant, time was sought from the police to get "Fatwas" and the same were taken.
' After registration of the formal F.I.R. Jan Muhammad, S.I., inspected the spot, prepared the site plan Exh. P.C. And recorded the statements of the witnesses under section 161, Cr.P.C. On 9-5-1995 and 11-5-1995. He also arrested the appellant on 13-5-1995 and submitted the challan on 16-5-1995.
4. Prosecution in order to prove its case produced four witnesses in all, out of whom Bashir Ahmad and Muhammad Altaf (P.Ws.1 and 2) were eye-witnesses while P.W.3 was Chairperson of the Committee constituted by the respectable of the area to inquire into the allegation against Ghulam Akbar appellant and Khan Muhammad, Investigating Officer was examined as P.W.4.
Thereafter, statement of the appellant under section 342, Cr.P.C. Was recorded and he produced Mukhtar Ahmad in his defence as D.W.1.
5. Learned counsel for the appellant has read before us the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And submits that appellant has been falsely involved in this case due to enmity; there is an unexplained delay of 21 days in lodging the F.I.R.; that the appellant has not admitted the allegation levelled by the prosecution during the trial and even in his statement recorded under section 342, Cr.P.C.; that Kh. Muhammad Ashraf, P.W.3 is not an eye- witness; appellant has been made a scape goat for ulterior motive by the complainant and that although no enmity has been brought on record between the complainant party and the appellant yet it cannot be said with certainty that the prosecution witnesses have spoken the truth.
6. On the other hand, learned, A.A.-G. Submits that appellant is named in the F.I.R., and P.Ws 1 to 3 have supported the prosecution case. Further, submits that appellant has committed a heinous offence by using derogatory remarks against Holy Prophet Hazrat Muhammad (ARABIC TEXT)
7. We have heard the learned counsel for the parties at a great length and have also gone through the prosecution evidence with their assistance. At the very outset it may be noted here that no sane Muslim can hear/bear such type of remarks, allegedly attributed to the appellant by the complainant because had the occurrence taken place in the manner as stated by the prosecution witnesses then the complainant should and must have taken some action at the spur of the moment but in the instant case nothing was done except to ask the appellant that why he was using such derogatory remarks and he should beg pardon. There is delay of 21 days in lodging the F.I.R. And the explanation given by the complainant is not natural and plausible. The occurrence had allegedly taken place in a hotel but neither the owner of the hotel nor waiter or any customer was produced by the prosecution to prove its case. It is very important to note here, that in the F.I.R., complainant stated that he met the appellant in the hotel where he asked the name of the appellant who in turn also inquired about name of the complainant. It, thus, stood proved that both the appellant and the complainant were not known to each other. The question of going to the house of the appellant after the occurrence, therefore, makes the prosecution story doubtful, the benefit of which must go to the accused/appellant not as a matter of grace but as a matter of right. Another important aspect of the case is that the person, namely Muhammad Abbass to whom the appellant had said not to call his name as Muhammad Abbass but Ghulam Abbass was never produced by the prosecution. He was the star witness in this case. Even the learned trial Court did not think it proper to summon Muhammad Abbas under section 540, Cr.P.C. In order to reach at a just decision. Statements of the eye-witnesses are not corroborated by any other independent source. As far as, statement of Kh. Muhammad Ashraf, Sajjada Nasheen Darbar Aalia Hamid Saraj, is concerned, he had admitted in his cross-examination, that appellant had not confessed his guilt before the committee but asked for pardon. We may also mention here, that when one person who claims himself to be a Muslim is taking a plea before the trial Court during the trial that he did not utter such abusive language as has been alleged by the complainant and the other P.Ws. Then why we should insist on this that he had used the abusive language against our Holy Prophet Hazrat Muhammad(ARABIC TEXT). The teaching of our Holy Prophet Hazrat Muhammad (ARABIC TEXT) is always for giveness and mercy.
' A perusal of the Judicial file of the case also shows that Muhammad Abbass had sworn an affidavit at the time of bail application filed by the accused/appellant before the learned Additional Sessions Judge, stating therein that no such occurrence had taken place. At this juncture, observation made by the learned Additional Sessions Judge, occurring at page 20 of its judgment may be advantageously reproduced here; "I see eye to eye with this contention of learned defence counsel that production of Muhammad Abbass as P.W. Would have been very helpful to the case of the prosecution; but it is the prosecution to know which of which P.W. Is to be produced by it and it cannot be compelled or advised to produce or not to produce such witness."
' Now we would take up the statement of the appellant recorded under section 342, Cr.P.C. Wherein he has denied the allegation of using derogatory remarks in respect of Holy Prophet Hazrat Muhammad (ARABIC TEXT). Here reference can be made to ground "four" of the bail application moved by accused/appellant before the learned Additional Sessions Judge, which read as under: {{URDU TEXT}} ' Here we would like to refer "Hidaya" 1410, occurring at page 625 of (URDU TEXT), which reads as under; {{URDU TEXT}} ' The saying of Holy Prophet Hazrat Muhammad (ARABIC TEXT) has been reiterated at page 137 of the book (URDU TEXT) authored by Imam Wali-ud-Din Muhammad, the urdu translation. Of which reads as under:{{URDU TEXT}} ' Guidance can also be had from the book (URDU TEXT), page 619 whereof reads as under:{{URDU TEXT}} ' Being Muslim, we are to follow what is ordained by Allah in the Holy Book and saying of our Holy Prophet Hazrat Muhammad (ARABIC TEXT) So, following the dictates of our beloved Holy Prophet Hazrat Muhammad (ARABIC TEXT). We should follow his foot- steps. He (ARABIC TEXT) was for whole of the world.
' Considering overall facts and circumstances of the case, particularly, non-production of the star witness of the, prosecution, namely Muhammad Abbass, delay in lodging the F.I.R. After a period of 21 days and without any corroboration having come from independent source to statements of the prosecution witnesses, we have come to the conclusion that prosecution has failed to prove its case against the appellant beyond any shadow of doubt and the appellant has been able to create dents in prosecution case, the benefit of which is given to the appellant. Therefore, appellant is acquitted from the charge levelled against him, conviction and sentence recorded by the learned trial Court is set aside and the appeal filed by the appellant is accepted with the result that he shall be released forthwith, if not required to be detained in any other case. Reference is answered in the negative.
' Death sentence of the appellant Ghulam Akbar is not confirmed.