This judgment will dispose of Criminal Appeal No.676 of 2000 (Saleem Masih etc. v. The State) and also Criminal Revision No.414 of 2000 (Maqsood Ahmad v. The State).
2. The case against the accused/ appellants is based on F.I.R. No.326 of 1999, registered on 1-6-1999 in Police Station Pasrur, District Sialkot regarding an occurrence which had allegedly taken place on 29-5-1999. The F.I.R. Was lodged by Maqsood Ahmad son of Muhammad Sharif complainant. The formal F.I.R. Was registered on the basis of application Exh.P.A. Submitted by Maqsood Ahmed complainant wherein he had stated that on the day of occurrence, around 11-30 a.m., he went to Mauza Saboo Mahal for the sale of Kulfah/Faloodah. Some persons were sitting there at the Dera and were sewing footballs. One Nawaz son of Abdul Ghani came there and asked for Faloodah which he provided to him. In the meanwhile, Saleem Masih also reached there and asked for Faloodah. He told him that he had utensils for Muslims only and asked him to bring his own utensils from his house. Thereupon he got infuriated and used insulting words about the Holy Prophet (peace be upon him). In the meanwhile, Rasheed Masih, a brother of Saleem Masih also reached there and started hurling abuses on him and asked him to kill him. Thereafter they confined him there for about two hours. On seeing them quarrelling, Shahbaz Ali P. W.1 also reached there and got the matter patched up. This incident had created tension in the area and hence the matter was reported to the police.
3. After the investigation the challan was submitted against the accused and the case was sent upto the Court of Session for trial.
4. Both the accused namely Saleem Masih and Rasheed . Masih were formally charged by the learned Additional Sessions Judge, Pesrur on 18-4-2000 under section 295-C, P.P.C. Both of them pleaded not guilty and the prosecution was thus asked to produce its evidence. On the conclusion of the trial, both the accused were convicted under section 295-C, P.P.C. And were sentenced to imprisonment for life and a fine of Rs.50,000. In case of default in the payment of fine, they were to undergo S.I. For two years. Both the accused were also convicted under section 295-A, P.P.C. And sentenced to R.I. For ten years and a fine of Rs.25,000 each. It was directed that in case of default in the payment of fine they will suffer S.I. For one year. It was directed that the sentences of imprisonment awarded to both the accused shall run consecutively. The benefit of section 382-B, P.P.C. Was also granted.
5. Aggrieved of the judgment of the learned Additional Sessions Judge dated 11-5-2000, both the accused i.e. Saleem Masih and Rasheed Masood have filed appeal (Criminal Appeal 676 of 2000).
For enhancement of sentence awarded to the accused, the complainant has filed Criminal Revision No.414 of 2000. Both these matters are being disposed of through this single judgment.
6. So far as the prosecution evidence is concerned, the prosecution has examined in this case as many as four P.Ws.
7. P.W.1 Maqsood Ahmad is the complainant who stated that on 29-5-1999, around 1/11-30 a.m., he was selling Faloodah in the village Saboo Mahal while some boys were sewing footballs at the Dera of Bajwa. A boy Nawaz demanded Kulfah from him. At that time Saleem Masih accused also came there and demanded Kulfah from him. He told Saleem Masih accused that he had no utensils for Christians and asked him to bring his own utensils for taking Kulfah. On this, Saleem Masih accused flared up and said, what is your religion? P.W.1 thereafter narrated certain objectionable sentences which Saleem Masih accused had allegedly uttered about the Holy Prophet (peace be upon him).
He stated that at that time Rasheed Masih accused also reached the spot and both the accused described the Holy Book of Muslims (The Holy Qur'an) as imagination of a poet. Then both the accused grappled with him and kept him in wrongful confinement. Shahbaz P.W. Also saw the occurrence and rescued him from the clutches of the accused. P. W.1 further stated that some persons tried to effect compromise between him and the accused but on their failure, he i.e. The complainant lodged the complaint (Exh.P.A.) with the police for the registration of the F.I.R., two days after the occurrence.
8. When cross-examined, P.W.1 Maqsood Ahmad stated that he is not an educated person but he again stated that he had received education up to 5th class and that he could sign. He had admitted that his National Identity Card does not bear his signatures. During cross-examination he stated that he had no watch on the day of occurrence and he could not tell the names of the persons who were sewing footballs at the Dera. He stated that as the accused quarrelled with him, he and the accused had raised hue and cry. He did not know whether giving something to the Christians in utensils of Muslims is prohibited in Islam or not. He stated that it was not in his knowledge whether a civil suit was filed against Salim Masih, Rasheed Masih and their father by Muhammad Arif Goraya and Faqir Muhammad in Civil Court at Pasrur. He denied the suggestion that a false case had been got registered against the accused on account of the said civil suit. He identified his signatures on the application Mark ' A' . He stated that application Exh.P.A. Was not written by him. However he stated that it had peen read over to him by the police. During cross- examination he stated that when Saleem Masih demanded Kulfah from him, Rasheed Masih was not present but he came to the spot when altercation was going on between him and Saleem Masih. He did not know whether Saleem Masih was member of Zila Council. P.W.2 Shahbaz Ali deposed on the same lines as P.W.1. During cross-examination he stated that his paternal uncle Faqir Muhammad did not file civil suit against Saleem Masih, Rasheed Masih and their father. He denied the suggestion that only a quarrel had taken place between Maqsood complainant and the accused and that the accused had not passed derogatory remarks against the Holy prophet (p.b.u.h.). He stated that the F.I.R. Was lodged two days after the occurrence. He further stated that his statement was not recorded at the police station by the S.H.O. He stated that the fact that registration of the case two days after the occurrence was in his knowledge and explained that the people of the village were trying to effect compromise between the complainant and the accused.
9. P.W.3 Muhammad Nawaz stated that about eleven months ago, around 11-30 a.m. He was sitting at the Dera of Mirzian at village Saboo Mahal and was sewing footballs. He stated than a man was selling Kulfah there and whose name was Mehmood. He asked Mehmood to give Kulfa to Saleem Masih but Mehmood asked Saleem Masih to bring his own utensils to take Kulfah. He stated that thereafter Saleem Masih talked about religion. He also talked about Holy Prophet (peace be upon him) but he did not remember the exact words as he was illiterate. He stated that he did not want to tell a lie. He stated that Saleem Masih accused had said that the Holy Qur'an had come temporarily. However, he added that he could not say 'anything further as his brain (mind) did not work. During cross-examination he admitted that the name of the complainant is Maqsood and not Mehmood.
10. It may be mentioned here that P.W.3 was declared hostile on the request of the learned prosecutor and was allowed to be cross-examined by him.
11. P.W.4 is Tahir Mehmood S.-I/ S.H.O. He stated that Maqsood complainant had produced the application Exh.P.A. Before him and on which he had prepared the formal F.I.R. Exh.P.A./1. Thereafter, he alongwith other police officials had proceeded to the place of occurrence and had inspected the spot. He recorded the statements of. P.Ws. Under section 161, Cr.P.C. He searched for the accused. On 4-6-1999 both the accused appeared before him and he arrested them.. On the same date, he prepared the challan and submitted the same in the Court.
12. During cross-examination P.W.4 admitted that the F.I.R. Was lodged three days after the alleged occurrence.
13. After conclusion of the prosecution evidence, the statements of the accused under section 342, Cr.P.C. Were recorded. In answer to the question as to why this case against him and why the P.Ws.
Had deposed against him, Saleem Masih stated that the P.Ws. Had deposed against him because civil litigation had been decided in their favour and in order to take revenge this criminal case had been got registered against them and it was the outcome of a conspiracy which was hatched up by the complainant and the P.Ws. In answer to the same question, almost same was the reply of Rasheed Masih accused. None of the accused made statement on oath under section 340(2), Cr.P.C. But they stated that they will produce evidence in defence. However, no evidence in defence appears to have been produced by the accused.
14. On the conclusion of the trial the accused were convicted and sentenced as aforesaid.
15. I have heard the arguments advanced from both sides and have also gone through the record.
16. In this case P.W.1 and P.W.2 have deposed in favour of the prosecution while the statement of P.W.3 was half-hearted. He was declared hostile and he went to the extent of saying that he did not want to tell a lie. P.W.2 Shahbaz Ali stated in the course of cross-examination that at the time of occurrence no adult person was present there but the people were attracted to the spot after hearing hue and cry.
17. The most important piece of evidence in this case is the application Mark ' A' . In the course of cross-examination, P.W.1 Maqsood Ahmad identified his signatures on the said application (Mark 'A'). It is correct that the said document was not duly exhibited but it is not understandable as to what was the legal obstruction in exhibiting the document after P.W.1 had admitted his signatures thereon. A perusal of the document Mark 'A' indicates that initially the complainant had submitted the said application to the police regarding the same incident and wherein he had made mention of only a quarrel which had taken place and in the said application he had not mentioned that the accused had used any derogatory remarks about the Holy Prophet (peace be. Upon him) or about Hazrat Khudija-Tul-Kubra (r.a.). The question arises as to why the complainant had not mentioned the said fact in the aforesaid application Mark 'A', in case the accused had actually passed any derogatory remarks in that respect. P.W.2 in the course of cross-examination stated that he knew Saleem Masih and Rasheed Masih as they were residents of their village and once Rasheed Masih was elected as a Councillor of their village. However, he denied a suggestion that he in connivance with the complainant had got the registered this false case against the accused. However, in the course of cross-examination he stated that when the quarrel had taken place between Maqsood Ahmad and the accused, he was present and that Maqsood and the accused had grappled with each other and he had separated them and thereafter the accused had taken Maqsood P.W.
Inside the room. He stated that after the quarrel, he had gone to his house (and was there till the release of Maqsood P.W.). He stated that the F.I.R. Was lodged two days after the occurrence. He did not know whether any criminal case had ever been registered against the accused prior to this occurrence. He further stated that his statement was not recorded at the police station by the S.H.O.
18. As mentioned above, P.W.3 was declared hostile on the request of the prosecutor. He did give some affirmative answers in reply to the questions put to him by the learned prosecutor. However, when cross-examined by the learned defence counsel he stated that the questions put to him by the D.D.A. (prosecutor) were admitted by him to be correct at his instance (he used the words "on his saying").
19. The occurrence to which this case relates was of heinous nature, if the prosecution story could be believed. P.W.4 Tahir Hameed S.-I./Investigating Officer claimed that he is an honest officer and that nis service record is good. During cross-- examination he admitted that the F.I.R. Was lodged three days after the alleged occurrence. When confronted with the application mark 'A', he stated that he did not register the F.I.R. According to the contents of the application mark 'A' as the same was not produced before him. He denied that mark 'A' was received by him on the day of occurrence but he did not register the F.I.R. On its basis. During cross-examination P.W.4 further admitted that he had conducted the investigation (completed the investigation) in 24 hours. He admitted that a number of persons i.e. Asmat Ullah etc. Had filed affidavits but stated that the aforesaid affidavits dated 29-7-1999 are attached with the police file and the same had not been produced before him because by them he had been transferred from Police Station Pasrur.
20. The learned trial Court has not explained as to why it had refrained from awarding maximum punishment to the accused provided by the law. Obviously while doing so, the learned trial Judge may have in mind that the evidence produced by the prosecution in this case does not inspire confidence. The place of occurrence was situated close to Abadi which was inhibited by a large number of people. In a case of this nature wherein capital punishment could be awarded to the accused, the evidence which was required should have come from unimpeachable sources. As mentioned above the Investigating , Officer had hurried to complete the investigation within 24 hours, instead of making a serious effort to reach the truth.
21. It may be mentioned here that in this case, after the arguments had been heard, the accused filed C.M. No.261-M of 2003 and by which they placed on record their affidavits which are duly attested by the Deputy Superintendent, Central Jail, Sahiwal and wherein they have deposed on oath that they had never uttered any derogatory remarks about the Holy Prophet (peace be upon him) or about Hazrat Khudija-Tul---Kubra (r.a.) and that they respect them from the core of their hearts.
22. The evidence furnished by P.W.1, P.W.2 and P.W.3 is contradictory anal discrepant and is of such a nature that on its basis conviction cannot be recorded for a very heinous offence punishable under sections 295-C and 295-A, P.P.C. The contents of the application (Mark 'A') have created a serious dent in the prosecution story and have rendered the version of the complainant doubtful.
23. Delay in lodging the F.I.R. May lead me to believe that delay was deliberate. Mention of witness's name in the F.I.R. Is no guarantee of truth of his statement. This view finds support from the case reported as Ghulam Nabi Shah v. The Crown 1969 SCM R 629. It was held in Kali and 2 others v. The State 1978 PCr.LJ 766 (Lahore) that delay in lodging F.I.R., per se was sufficient to justify grave doubts about genuineness of allegation against an accused. It was held in Muhammad Farooq and others v. The State PLD 1976 Lahore 1403 that the mere fact that witness had no previous animosity with accused persons was not sufficient to label him as a truthful witness and the Court while testing veracity of a witness, should see whether version given by him was probable or not. In this case, though the offence was heinous, yet there is no sufficient evidence on record to support the allegations/charge.
24. Under the peculiar circumstances of the case it can be assumed that the case could be the result of personal vendetta. The prosecution has clearly failed to establish its case against the accused/appellants beyond reasonable doubt. As such the conviction recorded by the learned trial Court against the accused for the offence under sections 295-C and 295-A, P.P.C. Cannot be upheld because under the peculiar circumstances of the case the appellants are clearly entitled to the benefit of doubt.
25. In view of what has been stated above, the appeal is accepted, the conviction recorded by the learned trial Court against the appellants and also the sentence awarded to them m this case is set aside. In consequence, both the accused are acquitted of the charge. If not required in connection with any other criminal case, they tie set at liberty forthwith.
26. For the aforesaid reasons, Criminal Revision No.414 of 2000 titled Maqsood Ahmad v. Salim Masih etc. Is also dismissed.