' This appeal is directed against the judgment, dated 23-5-1992 passed by the learned Additional Sessions Judge-II, Bahawalnagar whereby he had convicted the appellant under section 295-A, P.P.C. And has sentenced him to imprisonment for life.
2. Brief facts of the case are that one Muhammad Iqbal son of Noor Muhammad, a Cloth Merchant of Eidgah Road, Bahawalnagar had lodged F.I.R. No,100 of 1990 (Exh.P.C./1) in Police Station City, Bahawalnagar to the effect that on 11-3-1989 around 9-15 a.m. He opened his shop and was sitting there when the sweeper of the area of Eidgah Road called at a loud voice that when he was sweeping around the nullah, a copy of the Qu'ran, the Holy Book of the Muslims was lying there. On hearing his call he i,e, the complainant went near him and a number of other shopkeepers also reached there and saw that a Qur'an Sharif was completely in the mud and the sweeper told him that he had picked the same from nullah. The complainant washed the said copy of the Qur'an and wrapped a piece of cloth around it and kept the same with him. In the evening he told his companions about the same and he also told Muhammad Younas Shahid, General Secretary, Youth Force, Ahl-eHadis, Muhammad Usman, Nazim (Finance) Youth Force and the said persons informed Maulana Muhammad Akram Tariq, Khateeb Jamia Masjid, Ahl-e-Hadis. Maulana Muhammad Akram Tariq and his other companions and the other Ulema of the city including Maulana Jalil-urRehman, Nazim-e-Aala of the Eidgah, Maulana Qutab-ud-Din, Maulana Qari Abdul Ghafoor and Muhammad Saeed Qureshi, General Secretary of Anjuman-e-Tajiran held a meeting in Masjid Ahl-e-Hadis after Maghrab prayers and unanimously decided that in the first instance the matter be enquired and in the course of which Sher Ahmed, Ittar Farosh (scent vendor), Hafiz Muhammad Eisa and Muhammad Younas Clerk told that Dilshad Hussain son of Yameen, a lock- maker had come to the shop to purchase oil and demanded oil on payment of Rs,2. Thereafter, he asked him i,e, Dilshad as to which of his brothers had grown beard. Dilshad replied that this mistake had been committed by him. He then told him that it was not a mistake. Thereafter, Dilshad said that he had committed other mistakes also and that he had also thrown copy of Qur'an-e-Majeed in the nullah. At that time Younas Clerk and Hafiz Muhammad Eisa were also present. Muhammad Younas Clerk proceeded to his house whereas he and Hafiz Muhammad Eisa went to Jamia Masjid for offering Isha prayers. Thereafter, Younas asked them as to why they had allowed Dilshad to go away. He said to him that it was not proper to quarrel at that stage and so they also went away to offer prayers. Thereafter, the matter was reported to the Police and the case was registered in Police Station, City, Bahawalnagar under section 295-B, P.P.C. On the basis of application Exh.P.C.
Which had been submitted to the S.H.O. After the investigation the police submitted the challan against Dilshad accused.
3. Accused/appellant was formally charged by the learned Senior Civil Judge/Magistrate section 30, Bahawalnagar on 5-6-1990 (although formal charge appears to have been framed under section 295-B, P.P.C. But the relevant section was wrongly typed as 395-B, P.P.C. On account of a typing mistake in the charge). The accused pleaded not guilty and the prosecution was thus asked to produce its evidence.
4. On the conclusion of the prosecution evidence the learned trial Magistrate recorded the statement of the accused under section 342, Cr.P.C. And wherein he denied all the incriminating circumstances. He also produced evidence in defence and also himself appeared in the witness- box to make statement on oath under section 340(2), Cr.P.C. After the proceedings were complete the learned trial Magistrate on 12-5-1992 observed in his order that during the course of arguments it had transpired that the only punishment prescribed for the offence under section 295-B, P.P.C.
Was life imprisonment and therefore, in accordance with the provisions of section 347, Cr.P.C. He sent the file to the learned Sessions Jude, Bahawalnagar as the case was one which, according to him, ought to have been tried by the Court of Session. The learned Sessions Judge vide his order, dated 16-5-1992 entrusted the case to Mr. Shaukat Hussain Khan, the learned Additional Sessions Judge-II, Bahawalnagar and who heard the arguments on 21-5-19}.92 and vide his judgment, dated 23-5-1992 convicted and sentenced the accused/ appellant as aforesaid. Aggrieved of the aforesaid judgment of the learned Additional Sessions Judge-II, Bahawalnagar, the appellant has come up in appeal.
5. At the time of arguments, at the very outset, the learned counsel for the appellant took the plea that the accused/appellant was suffering from mental ailment and that at the item of occurrence he was a mental patient. He submitted that at the bail stage the appellant, in his bail application, had taken the plea that he did not have proper mental balance and that he had remained admitted in Mayo Hospital, Lahore in the department relating to the mental diseases. On the basis of the said plea, the learned Sessions Judie, Bahawalnagar on 18-4-1990 had issued a direction to the Jail Authorities for producing the appellant before the Medical Superintendent, D.H.Q. Hospital, Bahawalnagar for examination and to report about the mental condition of the appellant. In consequence of the said order the accused/appellant was medically examined and the Medical Superintendent in his Letter No,1719, dated 23-4:1990 addressed to the District and. Sessions Judge, Bahawalnagar had reported as under:--- ' Under-trial Mr. Dilshad Hussain son of Muhammad Yaamin, has been examined in this hospital after admission and he has been found suffering from multiple abscesses. He is also found to be disoriented with space and time also mentally unsound."
' It was on the basis of the said report of the Medical Superintendent that the learned Senior Civil Judge/Magistrate section 30, Bahawalnagar vide his order, dated 10-5-1990 had admitted the accused to bail. The same" Senior Civil Judge/Magistrate Section 30 framed the charge against the accused on 5-6-1990 without following the procedure prescribed under Chapter XXXIV of the Code of Criminal Procedure. The learned counsel for the appellant has argued that on this very short ground the judgment passed by the learned trial Court is liable to be set aside as the procedure prescribed under section 464, Cr.P.C. Had not been followed.
6. The learned counsel for the appellant has argued that even otherwise on the basis of the evidence on record the prosecution was unable to establish its case against the accused/appellant beyond reasonable doubt and so the appellant is entitled to be acquitted.
7. Before considering the arguments addressed from both sides, we have to, in the first instance, advert to the evidence on record.
8. P.W.1 is Kastoori Lal, the Sweeper who was sweeping Ganda Nullah and who had recovered the copy of Holy Book therefrom and had handed over the same to be shopkeepers.
9. P.W.2 is Hafiz Muhammad Eisa, P.W.3 is Shabbir Ahmed and P.W.4 is Muhammad Younas, a Clerk of Settlement Branch of the D.C. Office who were all present at the shop of Shabbir Ahmed P.W.
When the accused/appellant had allegedly come to the shop of Shabbir Ahmed and who had asked him as to which of his brothers had grown beard and it was then that he had replied that this mistake had been committed by him. He had also told him that he had committed many other mistakes as well and that he had also thrown away copy of the Qur'an-e-Pak in the Ganda. Nullah.
P.W.2, P.W.3 and P.W.4 corroborated the story narrated in the F.I.R. However, all three of them admitted in the course of cross-examination that in their presence the accused/appellant had not thrown the copy of Qur'an-e-Pak in the Ganda nullah. However, all three of them stated that the accused had made a statement to that effect in their presence. P.W.2 Hafiz Muhammad Eisa narrated the same story about the extra-judicial confession of the accused as was narrated later by P.W.3 and P.W.4. He is also one of the signatories of the complaint Exh.P.C. P.W.2 further stated that he had wiped (cleaned) the copy of the Qur'an-e-Pak, wrapped it in a Ghilaf' and thereafter a meeting was held and they had jointly drafted the application Exh.P.C. Which was also signed by him.
10.. P.W.5 is Atta Ullah, A.S.-I./Investigating Officer who stated that on 14-3-1990 the investigation of this case was entrusted to him and on the said day Muhammad Iqbal had produced a wet Quran- ePak in the police station and which he had taken into possession vide memo. Exh.P.A. He had inspected the spot and had prepared the site plan Exh.P.B. And had also recorded the statement of the P.Ws. After the conclusion of investigation he had submitted the challan in the Court.
11. P.W.6 is Syed Imdad Hussain, Inspector who on 14-3-1990 was posted as S.H.O. In Police Station City, Bahawalnagar and who on the receipt of complaint Exh.P.C. Had recorded the formal F.I.R.
Exh.P.C./1.
12. P.W.7 is Muhammad Iqbal who deposed that on hearing the alarm raised by the sweeper he had also reached the spot. They had washed the Qur'an-e-Pak and had placed it in a `Ghilaf' and on the next day he had narrated the story before Muhammad Younas and Usman etc. And who had informed the Ulema and who had convened a meeting wherein it was decided that a case be got registered and that they had jointly drafted the application Exh.P.C. Which was also signed by him.
13. On the conclusion of the prosecution evidence the learned trial Court had recorded the statement of the accused under section 342, Cr.P.C. And wherein he denied all the incriminating circumstances. In answer to question No,5, the accused had taken the plea that he had been falsely implicated in the case. The accused himself appeared in the witness-box as D.W.1 and deposed as under:---{{URDU TEXT}} ' In this respect, he further stated:-{{URDU TEXT}} ' During the course of cross-examination he deposed as under:-{{URDU TEXT}}
14. D.W.2 Fayyaz Ahmed deposed that the accused was known to him and that he is a true Muslim and is quite innocent in this case. The relevant lines are under:---{{URDU TEXT}}
15. On the conclusion of trial the learned trial Court convicted the accused/appellant as aforesaid under section 295-B, P.P.C. And sentenced him to imprisonment for life.
16: It is very surprising that the learned Senior Civil Judge/ Magistrate Section 30 who on 10-5-1990 had admitted the accused to bail by referring to the Medical Certificate issued by the Medical Superintendent had not adopted the procedure prescribed under ChapterXXXIV of the Cr.P.C.
Section 464 of the Cr.P.C. Reads as follows:--- "464. Procedure in case of accused being lunatic.--- (1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the District or such other Medical Officer as the Provincial Government directs and thereupon shall examine such surgeon or other Officer as a witness, and shall reduce the examination to writing.
(IA) Pending such examination and inquiry the Magistrate may deal with the accused in accordance with the provisions of section 466.
(2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case."
17. It has been submitted that during the trial no one had brought the said provision of law to the notice of the learned trial Magistrate. Normally, it cannot serve as an excuse as the learned trial Magistrate was himself expected to be aware of the procedural law.
18. Considering the importance of the case, the learned A.A.-G. Was called at the stage of arguments to assist this Court. The learned counsel for the appellant and the learned A.A.-G.
Agreed that as the occurrence had allegedly taken place on 10-3-1989 and as the accused and the P.Ws. Had suffered sufficient agony during the long years that followed, it would be not proper at this stage to remand the case to the learned trial Court. The learned A.A.-G. Has pointed out that during the trial the accused or his counsel had not taken the plea that the accused was of unsound mind and consequently was incapable of making his defence. Rather in the course of cross-examination as D.W.1 the accused had replied that he was perfectly all right and that he was not having the fits of insanity although he was having some mental ailment and that he had remained under treatment at Lahore. It was requested by the learned counsel for the appellant and the learned A.A.-G. That instead of sending the case back to the learned trial Court for a fresh trial the appeal be decided on merits as there is nothing on record to the effect that during the trial the accused/appellant was incapable of making his defence. Since the request of the learned counsel for the appellant and of the learned A.A.-G. Appears to be genuine, and since a period of more than 12 years has already elapsed after the occurrence, it appears appropriate to decide the case on merits, on the basis of the evidence on record rather than sending it back for a re-trial.
19. In this case the only evidence available with the prosecution is that of extra-judicial confession and which consists of the statements of P.W.2 Hafiz Muhammad Eisa, P.W.3 Shabbir Ahmed and P.W.4 Muhammad Younas. All three of them have stated that they had not themselves seen the accused throwing away the copy of Qur'an-e-Pak in the mullah. So, this is another reason for not remanding the case to the learned trial Court because even if it is done, the only evidence which the prosecution shall be producing again shall be that of 'extra judicial confession'. Even otherwise, no prejudice was caused to the prosecution at least, if the trial Court did not follow the prescribed procedure, while from the side of the accused/appellant re-trial has not been requested.
20. It is an admitted position of law that the evidence of extra- judicial confession is a weak type of evidence and it is not safe to record conviction on its basis unless other corroborative piece of evidence is also available on record. In his statement under section 342, Cr.P.C., the accused had denied all the incriminating circumstances. In his statement as D.W.1 he has clearly stated that he is innocent in this case. He has deposed as under:-{{URDU TEXT}}
21. Now this is a case of retracted confession in which no other evidence is available on record to prove the charge. The question is whether conviction can be recorded on the basis of a retracted confession if there is no other corroborative piece of evidence on record. The answer is obviously 'No'. In Islam it is not permissible to inflict punishment on an accused person if he retracts from the confession allegedly made by him. In this case the accused has taken the plea that he is a true Muslim and cannot even think of such an act.
22. Under the circumstances, convicting a Muslim on the charge under section 295-B, P.P.C. To imprisonment for life when he clearly denies the charge and claims that he is a true Muslim and cannot even think of such an act and when the only evidence available with the prosecution is that of extra-judicial confession, shall be clearly without any lawful justification.
23. We all know that no Muslim can even think of saying or claiming before his fellow Muslims that he has shown any disrespect (heaven forbid) to the Holy Book of Allah. If any one does so, i,e, makes such a statement (as it is claimed in this case) such a person cannot be in sound mental health. The report of the Medial Superintendent in this case (a mention of which has already been made in earlier part of judgment) lends support to the view that if it be believed that the accused had actuary made such a statement before P.W.2, P.W.3 and P.W.4, he must be suffering from a fit of insanity at that particular time and section 84 of P.P.C. Reads:--- "84. Act of person of unsound mind.--- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."
' If it is assumed that the accused was under the fit of insanity or lunacy when he uttered the objectionable words/sentences and if he repents now and prays for forgiveness. We can be sure, that the almighty may forgive him.
24. Allah, the Almighty is `Rehman' as well as `Raheem' (the Beneficient and the Merciful). When a defaulting person, repents and begs for pardon, Allah, the Almighty loves to for give. His love and mercy for human beings is infinite and boundless. Even though the accused/appellant has denied in clear terms that he had committed the offence in question and even though the prosecution has failed to prove the charge against him beyond reasonable doubt, we hope and pray that Allah the Almighty, will forgive him and will guide him on the right path for the rest of his life and will show him the light to become a true Muslim. The Almighty has said in the Holy Qur'an:-{{URDU TEXT}} ' But Allah promise you forgiveness from Himself with bounty. Allah is All-Embracing, All-knowing. {{URDU TEXT}} (Surah 2, Verse 268), ' Forgiveness is only incumbent on Allah toward those who do evil in ignorance (and then turn quickly in repentance) to Allah. These are they toward whom Allah relented. Allah is ever Knower, Wise.{{URDU TEXT}} Surah 4, Verse 17)
' Ask pardon of our Lord and then turn towards Him (Repentant). Lo! My Lord is Merciful, Loving.
Surah 11, verse 90)
' (English translation by M.M. Pickthal, Urdu translation by Maulana Syed Abu-al-Aala Maudoodi).
25. So, we can be sure that even if the alleged objectionable words/sentences were uttered by the accused/appellant before the P.Ws. While he was suffering a possible fit of insanity/lunacy, he will seek forgiveness from the Almighty and will revert to the right path. However, as in this case the prosecution has been unable to prove the I charge against the accused/appellant beyond reasonable doubt, therefore he is entitled to be acquitted.
26. In consequence of what has been stated above, extending to him the benefit of doubt, the appeal filed by the accused/appellant (Criminal Appeal No, 47 of 1992/BWP) is accepted, the judgment of the learned trial Court, dated 23-5-1992, by which the appellant was convicted and sentenced as aforesaid, is set aside and the appellant is acquitted of the charge.
27. The accused/appellant is stated to be on bail. His bail bonds are discharged and sureties relieved.