M. NAEEMULLAH KHAN SHERWANI, J.---The way in which the instant appeal arises is this Pir Zahoor Ahmad son of Haji Muhammad Suleman faced trial before a learned Additional Sessions Judge at Jhelum for offering derogatory remarks/against the Holy Prophet Muhammad (peace be upon him). The learned trial Judge, by virtue of his judgment dated 12-3-2001, found him guilty of the said charge, convicted him under section 295-C, P.P.C. And sentenced him to death.
2. Murder Reference No. 141 of 2001 seeks confirmation of said sentence of death awarded to Pir Zahoor Ahmad-convict, whereas he by filing Criminal Appeal No. 107 of 2001 has approached this Court to call in question conviction and sentence passed against him by the said learned Judge.
Both these matters are being disposed of together through this single judgment.
3. Raja Muhammad Waheed-- complainant (P.W.1) set the State functionaries into motion by making an application (Exh.P.A.), duly signed by him and two others, namely. Abdul Saboor Hashmi (P.W.3) and Malik Fida Hussain (not produced) before the Superintendent of Police, Jhelum, for registration of a criminal case against the appellant with regard to an occurrence, which took place on 19-8-2000. He puts the matter succinctly by stating therein that a self-styled Pir Zahoor Ahmad has adopted many followers and is openly flouting commandments of Almighty Allah and is violating principles of Sharia. He has published a pamphlet "Faizan-e-Qalandar" in his own name, which contains derogatory remarks pertaining to the Holy Prophet Muhammad (p.b.u.h.) at different places. He also imparted status of Almighty Allah to Hazrat Abdul Qadir Jillani (r.a.).
Pamphlet "Faizan-e-Qalandar" (Exh.P.A./2) was attached with the application.
Superintendent of Police forwarded this application to Deputy Superintendent of Police (Legal), Jhelum for his opinion on the same day. Ghulam Safdar, D.S.P. (P.W.5) furnished his opinion on 26- 8-2000 to Superintendent of Police, who then directed S.H.O., Police Station Sohawa to proceed as opined by the Deputy Superintendent of Police (Legal). Abdul Rashid, Inspector/S.H.O. (P.W.4) on receipt of application (Exh.P.A.) drew up formal F. I. R. (Exh.P.A./1) on 26-8-2000 without any addition or subtraction on his part.
4. Succeeding registration of case, investigation into the crime was launched by him. After having finalized the investigation, Abdul Rashid, Inspector/S.H.O. (P.W.4) prepared challan against the appellant and submitted the same before the trial Court for his trial in accordance with law.
5. The trial Court examined all the documents carefully and found it a tit case in all respects for trial of the appellant. Thereafter, it framed charge. In order to furnish overall picture of the case, we feel it essential to furnish the charge with much exactitude, which would render maximum help to adjudicate upon fairly the case in question. It reads as under;-- "That on 19-8-2000 in the area of Police Station, Sohawa, you were preaching against the Orders or Almighty Allah, published a pamphlet as 'Faizan-e-Qalandar' in Item No.8, page No.4, you have changed the (Kalma Tayyiba) and passed the derogatory remarks in respect of the Holy Prophet (peace be upon him). Thus you have committed an offence punishable under section 295-C, P.P.C.
Within the cognizance of this Court. "
It was put to the appellant, who dismissed the charge being naive and illogical one and claimed to be tried. The prosecution to achieve its object produced Raja Muhammad Waheed (P.W.1), Qaiser Hamayun Saqlain (P.W.2), and Abdul Saboor Hashmi (P.W.3), for bringing home guilt of the accused. Another important witness, namely. Malik Fida Hussain was given up by the prosecution as being unnecessary. However, Abdul Rashid, Inspector/S.H.O. And Ghulam Safdar, D.S.P. Appeared in the witness-box as P. Ws. 4 and 5, respectively. The learned prosecutor after doing this much declared the prosecution case close.
6. Now the trial shifted to next important phase, in which the appellant was confronted with the prosecution evidence in its entirety, so that he may well understand the nature of accusations brought against him and also to offer handsome explanation of the crime imputed to him. He proclaimed his absolute innocence in the matter and alleged his false involvement in the case due to political rivalry with the complainant party and Maulvi Muhammad Din of Jamia Rizvia. While answering question "Have you anything else to say''", he made following statement:-- "I am innocent. I have not issued the exhibited pamphlets. These have been prepared by the complainant party in connivance with the police. I am a Muslim and cannot think of any statement or issuance of any material contemptuous to the Holy Prophet or any religious personality. In my literature sayings there is nothing contemptuous to any Holy persons or Shirk or Kufr or anything wound the feelings of any Muslim or another person. I believe in all the fundamentals of Islam and is a practising Muslim. We do not recite or write the Zikr "Abdul Qadir Shai Lilla" as part of Kalima or Zikr. We believe that Sh. Abdul Qadir is the friend of Allah. In Pakistan different sects have Fatwas of Shirk, Kufr or defiling of the name of the Holy Prophet against each other. But we do not involve or participate in such sectarian or prejudiced activities. I have not done anything which amounts to violation of any provision of law or Shariah. "
The appellant opted not to make statement on oath under section 340(2), Cr.P.C. In disproof of the accusations brought against him. He did not opt to produce any evidence in defence.
7. The learned trial Judge after fullest evaluation of entire evidence, pronounced verdict of guilt against the appellant and punished him as aforementioned.
8. Learned counsel for the appellant in his attractive arguments to this Court highlighted following points for our consideration and prayed for his acquittal:--
(i) That there was tense party faction in between the appellant, on one side and Maulvi Muhammad Din and others, on the other side. They forged documentary evidence to involve him wrongly in a serious criminal case.
(ii) That there was no truth behind the accusations, which were a patent falsehood and the appellant has vehemently controverted the same.
(i.e) That the witnesses had high interest in the matter and brought false charge against him in collaboration with the police.
(iv) That the appellant is a true Muslim and could not think of indulging into such type of nefarious activities.
(v) That evidence in its entirety lacks behind set standards of evidence. Prosecution witnesses are guilty of making prevaricating statements and cease to be trustworthy.
(vi) That prosecution has miserably failed to prove that the incriminating pamphlets were got published by him or were published at his instance. Nobody appeared in the witness-box to depose that he saw the appellant to get the pamphlets in question published from any Printing Press or heard the appellant making such derogatory remarks. The evidence falls within the definition of hearsay evidence and no conviction can be made on its strength.
(vii) That recoveries are fake and are not connecting the appellant with the crime imputed to him.
(viii) That it is very easy to bring about such type of allegations but very difficult to prove. None of the documents stood proved. None came forward to depose about so-called Fatwa or authenticity or truthfulness of contents of various wrongly exhibited documents.
9. Conversely, learned Law Officer assisted by learned counsel for the complainant supports judgment of the trial Court and submits that sufficient evidence is available in the form of statements of Raja Muhammad Waheed, Qaiser Hamayun Saqlain, Abdul Rashid, Inspector/S.H.O.
And Ghulam Safdar, D.S.P. (P.Ws.1 to 5), who are reliable witnesses and the appellant stood rightly convicted by the trial Court. Learned counsel for the complainant with the help of Black's Law Dictionary simply furnished meanings of 'defiling innuendo or insinuation'.
10. We have with much care and devotion examined the whole material and scrutinized each and every aspect of the matter relevant to the central issue. During re-evaluation of evidence, we feel necessity of bringing under discussion provisions of section 295-C, P.P.C., which reads as under:-- Use of derogatory remarks, etc., in respect of the Holy Prophet.----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."
This section primarily relates to use of derogatory remarks etc., in respect of the Holy Prophet (p.b.u.h.). Most essential ingredients of the offence punishable under section 295-C, P.P.C. Are to defile the sacred name of Holy Prophet Muhammad (p.b.u.h.) by words either, "either spoken or written, or by visible representation, or by any imputation, but he has been charged for preaching against the orders of Almighty Allah published in a pamphlet as Faizan-e---Qalandari" in Item No.8, page No.4 and brought changes in Kalma Tayyiba and also passed derogatory remarks in respect of Holy Prophet on 19-8-2000 in the area of Police Station Sohawa. We failed to understand as to who supported this allegation pertaining to preaching against the orders of Almighty Allah.
Neither the place of preaching nor time of preaching nor persons, who were preached by him, have been disclosed by the witnesses. According to charge, preaching was done by publishing pamphlet as Faizan-e---Qalandari and by bringing changes in Kalma Tayyiba and by passing derogatory remarks pertaining to the Holy Prophet (p.b.u.h.). It was imperative upon the prosecution to establish beyond any shadow of doubt printing and publishing of the said pamphlet. Who is there to depose that it was the appellant who got it published. If so, from where and through whom. The name or Printing Press or Publisher of the said pamphlet is not known. Had any printer or publisher or his employees been associated or produced at the trial, then they could have furnished the real evidence that it was printed or published at the instance of the appellant.
Nobody perceived all this through his senses. Someone was required to state that he saw him effecting changes in the Kalma Tayyiba or that the printing or publishing was ordered by him through a particular publisher or printer. Nobody ever heard him passing derogatory remarks, what to talk of getting it published. Who received this pamphlet from the appellant is not known till today, so the whole quantum of our analysis reveals that accusations brought against the appellant not well found in evidence.
Ages old history of mankind also reveals that throughout in every region 'clime' and 'people' comes the never-ending quest for truth in justice. Evidence is the basis of justice. Falsehood of accusations can be seen through the evidence led by the prosecution against the accused. Raja Muhammad Waheed-complainant, who appeared as P.W.1, in his examination-in---chief stated that he came to know about the publication of a pamphlet by the appellant and thus entered into deliberations and consultations with the jurists. Qari Muhammad Din and Syed Ahmad Shah, Khateeb Markazi Jamia Masjid, Sohawa laid an information before him that the said material is contemptuous one and the appellant was responsible for committing Tauheen-e-Risalat. We have no hesitation in holding that it is a big joke with an elaborate net work of evidence rules. He did not disclose, through whom he came to know about publication of the pamphlet by the appellant. The prosecution also failed to produce the said jurist, Ulma-e-Din, namely, Qari Muhammad Din and Syed Ahmad Shah, who told him that the material was contemptuous and that the accused had committed offence of Tauheen-e-Risalat. He does not state all these facts from his personal knowledge. He is simply banking upon the opinion work furnished to him by the above said jurists.
We are shocked to see that this piece of evidence is not worth looking being hearsay hit by Article 71 of the Qanun-e---Shahadat Order, 1984. During course of cross-examination, he for the first time started alleging that he received the pamphlet from one Qaiser Hamayun Saqlain, and then in the same breath stated that Qaiser Hamayun Saqlain did not give him the pamphlet. He further stated that he had seen the pamphlet on 15/16-4-2000 at about 3/4-00 p.m. When he alongwith Abdul Saboor Hashmi, Malik Fida Hussain and some other persons was sitting in the mosque Abdul Saboor Hashmi appeared as P.W.3, but Malik Fida Hussain was given up as unnecessary. He did not remember names of other persons. This witness went to the maximum qua this disputed pamphlet and according to him Qaiser Hamayun Saqlain had taken the pamphlet there and a month after, S.H.O. Was approached through a written application. During this period, he indulged into consultations with three or four other persons. During that exercise, he and Qari Muhammad Din used to be present. Then after four/five days, he met Syed Ahmad Shah who is also a Khateeb.
Besides him, some other Khateebs were also contacted by him. None of them was produced before the trial Court. No Fatwa was procured by him from these people, nor any demand was made by him. These persons do not enjoy the status of Muftis. He never approached the accused to verify genuineness or correctness of contents of the pamphlet or to know that if he was responsible for getting this pamphlet published. The other three never called the accused to verify if the allegations were legitimate against him. The contents of Exh.P.B. Did not bear seal of the accused. Likewise, signatures of the accused are also not there. He admits that first Kalma is written in the pamphlet (Exh.P.B.), which is cent. Percent. Correct which we have seen is absolutely correct. So in these circumstances the accused cannot be saddled with the responsibility of getting this pamphlet printed or published from anywhere. Time of hostility and party faction had been suggested time and again. According to Qaiser Hamayun Saqlain (P.W.2), he used to visit Dera of the accused in the company of others and a pamphlet was given to him, but he never alleged that the appellant delivered him the said pamphlet. He also stated that it is not the same pamphlet, which is Exh.P.B. He then passed on this to Qari Muhammad Din, who found it contemptuous. Again we failed to get this information from his statement that the said pamphlet was given to him by the accused. Qari Muhammad Din is not a witness in the case and he has also said that the pamphlet (Exh.P.B) is not the same, which was given to him. The statements of Raja Muhammad Waheed and Qaiser Hamayun Saqlain (P. Ws.1 and 2) are at great variance with each other both the statements do not prove most essential ingredients of the offence with which the appellant stood charged.
11. Abdul Saboor Hashmi (P.W.3) in his examination-in-chief has also stated that some persons of the city gave him pamphlet (Exh.P.B.), which was not only contemptuous but also contained Shirkia Kalmat. He confirmed the submission of application (Exh.P.A.) written and signed by him. He also stated that on 27-8-2000, passport (P.1), Seal (P.2), booklet (P.3), pamphlet (P.B.6 pages) were secured by the police through recovery memo. Exh.P.C., attested by him as well as Malik Fida Hussain and Haji Muhammad Hanif P.Ws. (not produced), meaning thereby that he did not even reiterate contents of the memo. He never disclosed the places of recovery of these articles and from whom the same stood recovered. He never alleged that the so-called recoveries were made at the instance of the accused or from his possession or in his presence. Recoveries in the absence of the accused are inconsequential, so no evidentiary value can be attached thereto. He has also failed to furnish name of the person, who delivered him the said pamphlet and also alleged that Qaiser Hamayun Saqlain (P. W.2) did not give him the pamphlet and he described the marked differences in certain other material facts about the pamphlet. According to him, the pamphlet, which was annexed with the application was green in colour and was originally limited one. It was not a photostat. It was partly in green colour. No green chits were ever pasted on the said pamphlet. He also stated that the pamphlet, which was with the Qari had a seal and signatures of the accused. The pamphlet, which was in his possession did not contain signatures and seal of the accused. The pamphlet of Qari was annexed with the application (Exh.P.A.) made before Superintendent of Police, Jhelum and his pamphlet was not annexed with the said application. He denied factum of animosity in between Qari and the appellant.
12. P.W.4 Abdul Rashid, Inspector/S.H.O. Without disclosing particulars of the person from whom the pamphlet was got published by the accused stated that he was dead. Neither the name of printing press nor the name of publisher is available on the pamphlet. Opinion of the Deputy Superintendent of Police (Legal) (Exh.P.F) does not contain in specific terms Tauheen-e---Risalat.
None has been produced at the trial to show that anything derogatory was there. When custody of the pamphlet,, its printing, and publishing had not been proved beyond doubt, how we can presume that the appellant is responsible in any manner. Ghulam Safdar, D.S.P. (P.W.S) is not a religious jurist. He has scantly knowledge. No evidentiary value can be attached to his opinion.
Abdul Rashid, Inspector (P.W.4) also admits in his cross---examination that D.S.P. (Legal) is not a religious Mufti and he attributed no fault/ allegation against the accused excepting a subtraction or addition in the contents of Kalma Sharif. He registered case merely on the basis of opinion of the D.S.P. (Legal). He also frankly admitted the factum of sectarian rivalry prevailing in that locality.
13. We have subjected the statements or the prosecution witnesses to critical analysis and have come to the conclusions that the pamphlet does not belong to the accused. He did not get it published. He did not preach contents thereof. He did not utter a worn about all these facts before any person. It was not recovered from his possession or at his instance. Religious rivalry was available in the locality and this material fact was dishonestly suppressed by the complainant. All the necessary links in the chain or evidence are missing. Serious defects and flaws are abundantly available in the evidence. The case is pregnant with innumerable doubts of large size and high magnitude. Statements by the prosecution witnesses have not been honestly and truly made and are not worthy of credence, Custody of the pamphlet with the appellant its delivery to the people, and preaching his own ideas, further printing and publishing of this pamphlet by the appellant or at his instance has not been established at all. There is not an atom's weight of evidence linking the appellant with the commission of crime imputed to him. We are convinced about innocence of the appellant.
14. Accordingly, by accepting this appeal, we quash conviction and sentence awarded to the appellant by the trial Court and acquit him of the charge. He is directed to be released from custody forthwith if not required to be detained in any other case. Death sentence is not confirmed and Murder Reference is answered in the negative.