1. The present appeal is directed against the judgment, dated 24-7-2001 passed by the learned Additional Sessions Judge, Kandiaro in Session Case No, 15 of 2002 (The State v. Muhammad Ismail alias Manther), whereby the learned Judge has convicted the appellant under section 295-B, P.P.C.
2. And sentenced him to undergo RI for imprisonment for life and extended the benefit of section 382- B, Cr.P.C. The brief facts, giving rise to the present appeal are that complainant Qadir Bux lodged F.I.R on the Police Station Mohabbat Dero Jatoi on 29-12-1999 stating therein that they are three brothers in all.
3. Two brothers are younger than the complainant. There is house of complainant having entrance towards southern side in shape of Landi, surrounded by Katcha wall (Koat). The accused Muhammad Ismail has got visiting terms with the complainant party being easte fellow. The complainant had restrained him about one month prior to registration of the F.I.R., not to come in his house, on which the accused had annoyed and threatened for dire consequences. On the day of incident, it was about noon time, the complainant was in his house. Meanwhile, accused entered and started abusing and went inside the landhi, took out the box wherein the Holy Qur'an was lying.
4. The accused after tearing the Holy Qur'an set it on fire, on which the complainant raised cries which attracted P.W. Deedar and others, who saw the accused and advised the complainant to lodge the F.I.R. Hence, he proceeded to police station where his F.I.R. Was lodged. After registration of the F.I.R.
5. Investigation was made and after usual investigation charge-sheet was filed in the Court where from the case was sent to the Sessions Judge, Nausheroferoze and made over the same to the learned Ist Additional Sessions Judge Kandiaro for disposal according to law. The formal charge was framed against the accused at Exh.2. To which he did not plead his guilt and claimed for trial vide his plea (Exh.3). In support of the charge, the prosecution examined the complainant Qadir Bux as Exh.6. Who produced F.I.R. As Exh. 6-A P.W. Abdul Majeed was examined as Exh.7 and Deedar Ali as Exh.
8. Mashir P.C. Nazeer Ahmed was also examined as Exh.10, who produced Mashirnama of the incident securing the Holy Qur'an and arrested the accused as Exh.10-A and 10-B respectively. The prosecution also examined ASI Khadim Hussian as Exh.11. Thereafter, the prosecution closed its side as Exh.12. The trial Court recorded the statement of the accused under section 342, Cr.P.C. As Exh.13 to which the accused had denied the allegation levelled against him and stated that he has been involved falsely due to enmity with Abdul Ghafoor. ASI, complainant and P.W. Nazeer. He did not examine himself on oath but lead the evidence in his defence. Mr. Ali Nawaz Dehraj, learned counsel for the appellant, has contended that the learned trial Court has failed to appreciate the evidence of the prosecution witnesses and there was no trustworthy evidence to convict the accused. The appellant was referred by the trial Court to the Sir C.J.
6. Institute of Psychiatry Hyderabad for medical report and appellant was found suffering form Psychosis and is not fit to understand the proceeding of the Court, but such Medical Officer was not examined. It is further argued that the prosecution evidence is tainted in nature and complainant party had stopped the visit of the appellant one month prior to the registration of the F.I.R. And no motive was disclosed in the F.I.R. As to what were the reasons for not allowing the appellant to visit the house of the complainant, but it is disclosed in the F.I.R. That accused entered in the house and persuaded towards landhi by abusing the complainant took out the box wherein the Holy Qur'an was lying and after tearing the same he set on fire. It is further pointed out by the learned counsel for the appellant that P.Ws Deedar Ali and Abdul Majeed came on cries and they cannot be termed as eyewitnesses of the incident as appellant opened iron box, took out Holy Qur'an and set the same on fire whereas the P.W. Abdul Majeed has deposed that on the day of incident it was 2-00 p.m. He was in his house when he heard cries and commotion from the house of the complainant Qadir Bux. He rushed there immediately and saw accused Muhammad Ismail was setting on fire the Holy book he was also tearing holy papers in his presence and he restrained the accused from his nefarious acts. The said P.W. Abdul Majeed has not disclosed the presence of other P.W. Deedar Ali. As per evidence of P.W. Deedar Ali it is stated that he heard commotion at 2-00 p.m. From the house of the complainant he rushed there and saw that Holy book was being set on fire by the appellant and the pages of holy book were lying in the torn condition and accused ran away in his presence from the roof of the house of complainant. This witness has not deposed regarding the presence of P.W. Abdul Majeed nor the presence of complainant Qadir Bux. As per evidence of complainant it is deposed that about one and half year ago, it was 2 p.m. He was in his house at that time accused Manthar Ali came in his house. He was restrained by him not to enter in his house, but accused entered into the room of complainant house opened the.Iron box, took out Holy Qur'an set the same on fire. The appellant accused had also torn the pages of Holy Qur'an. He raised hue and cry, which attracted P.W. Abdul Majeed and Deedar Ali, thereafter the accused fled away and said P.W.s suggested him to lodge F.I.R. Mr. Fazlur Rehman, learned counsel for the State, has vehemently opposed this appeal mainly on the ground that the offence with which the accused has been charged is an heinous offence carrying religious sensitivity. I have heard the arguments of both the learned counsel and have also gone through the R&P of the case coupled with entire material available on record as well as the law relevant for the purpose of appropriate decision.
7. Admittedly, in the cross-examination the complainant has deposed that door of the room was opened at the time of incident. The P.Ws. Deedar Ali and Abdul Majeed had come on his cries that means the incident was not witnessed by such witnesses. It is admitted in the F.I.R., the appellant and the complainant party were on good terms and A one and half month ago before lodging of the F.I.R. The complainant had restrained the appellant not to visit his house. From the story it appears that there were some other acts of the appellant/accused which were not accepted to the complainant and it is only alleged that the accused had entered into the house and proceeded to the room and took out the holy book from the iron box and set the same on fire. In the trial Court, two defence witnesses were examined, namely, Rahim Bux and Ameer Bux that accused appellant Ismail was occasionally fell unwell and occasionally abnormal. At some time, he avoided to speak with others and some time he used to have conversation by loosing temperament with mohalla people. On the application made by the learned counsel for the appellant a Board was constituted vide order dated 22-6-2000. The prayer made in the application is reproduced herein below as well as the order passed by the trial Court thereon:-- "It is humbly prayed on behalf of the accused/applicant Mohammad Ismail alias Manthar that this Honourable Court may be pleased to issue the letter to Director General Health Department Hyderabad for constitution of Medical Board for medical treatment, check up and certificate of above named accused for asserting the actual position of the accused as claimed in the application that Mohammad Ismial alias Manthar son of Mir Khan Sargani that how much long above he is suffering from the above decease and remained unsound".
8. "ORDER 22-6-2000. By consent application is allowed. Issue letter to the Director General Health Department Hyderabad for constitution of Medical Board for medical checkup and report." The appellant had remained admitted in mental hospital, medical officer Psychiatrists Hyderabad vide letter No, Jailer/64/2000, dated 20-1-2000 for medical check up and treatment as per direction of the Court. Ailment of the appellant is secondary point for consideration but in fact the evidence of complainant and witnesses is in conflict as two witnesses had categorically stated that due to hue and cry they had approached to the house of the complainant, but it is deposed by the complainant that accused entered in his house and proceeded towards the room and look out the holy book from iron box and after tearing the holy pages he set the same on fire and then the complainant raised cries. The complainant had not disclosed as on what actions their relations had become strained and as to why the appellant was restrained not to visit the house of the complainant. It appears that there was some other motive to restrain him from visiting the house of complainant. The appellant is also caste fellow of the complainant and prosecution witnesses.
9. The trial Court while passing the judgment has also held that the charge for section 506, P.P.C. Was not proved against the accused. The prosecution case is that the appellant had entered into the house of complainant and it was agitated by the complainant why he has come to his house and then appellant abused the complainant and went inside the Landhi. The first part of the allegation is that the appellant entered in the house and abused the complainant and picked the match box as well as took out the Holy Qur'an from the iron box and after tearing he set the same on fire. From the perusal of the entire evidence, it appears that the accused was already in the house of the complainant and complainant after tearing the holy book set the same on fire and raised cries which attracted the prosecution witnesses, who saw the accused and advised the complainant to lodge the F.I.R. I am of the view that the present case, which is unfortunately was infact family affair case which was not disclosed to the village people being against the custom and society and it was converted into a sensitive nature by the complainant and A.S.-I Abdul Ghafoor, who were inimical with the appellant accused and both parties have suppressed their enmity from the trial Court was well as while lodging the F.I.R. At police station. The complainant party after commission of the incident has waited for their nekmard (head of the village) and after deliberation registered the F.I.R. For the alleged crime. Keeping in view the above position, a doubt has been created with regard to the prosecution story particularly from the statement of P.W. Abdul Majeed and Deedar Ali containing ignorance in respect of their presence at the incident. The testimony of the police officials becomes doubtful and when the complainant and two witnesses have contradicted each other regarding their presence and witnessing the incident. According to the deposition of P.W. Abdul Majeed, it has been admitted in the cross-examination that at the time of incident the complainant and his ladies folk were present in the house and accused was having lathi in his hand but the complainant has not deposed that at the time of incident the appellant was armed with lathi nor P.W. Deedar Ali had deposed that accused was armed with lathi, who fled away from the place of incident. In the cross-examination of the same Witness, it is stated that "it is correct to suggest that daughter of Koro and wife of Gulzar have also put the Holy Qur'an on fire". Again says, that "when that lady had torn the Holy Qur'an at that time she was only daughter of koro and yet had not been married with Gulzar". The presence of ladies in the house of complainant is also admitted by P.W.
10. Deedar Ali. If it is presumed that the said witnesses had come on the cries of the complainant and why they did not try to apprehend the accused. The P.W. Qadir Bux being complainant in this case has deposed as under:-- "Prior to this incident the accused was also visiting my house. The door of the room was opened. I was present only at the time of incident in the house while P.W. Deedar and Abdul Majeed had come on cries after setting on fire by the accused".
11. Gulzar Sangi is known to him, as he is police constable. I cannot say why the accused had set the Holy Qur'an on fire and torn its holy pages. The evidence of complainant and other two witnesses, namely, Deedar Ali and Abdul Majeed are not worthy to believe particularly in the aforesaid circumstances, which could lead the prosecution to award the capital punishment to the appellant/accused. Consequently, I allow this appeal, set-aside the conviction and sentence awarded to the appellant under the impugned judgment. He is acquitted and set at liberty. At present he is in custody, he should be released forthwith, if not required in any other custody case. Criminal Appeal No, 10 of 2001 stands disposed of.