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Petitioner: Muhammad Ishaq VS Respondent: The State
Court Name: Lahore High Court Judge(s): Ibad-Ur-Rehman Lodhi, Khalid Mehmood Malik Title: Muhammad Ishaq vs The State Case No.:(1) Criminal Appeal No.48 of 2012. (2) Capital Sentence Reference No.05 of
2012 (3) Criminal Revision No.35 of 2012. Date of Judgment:2017-02-24 Reported As: 2017 LHC 939 Result: Criminal Revision Dismissed Judgment IBAD-UR-REHMAN LODHI J.:- Muhammad Ishaq son of Muhammad Anwar-appellant was tried by learned Additional Sessions Judge, Jhelum in case F.I.R. No.106, dated 08.07.2009, under Sections 295-A, 295-C P.P.C., registered with Police Station City Talagang, District Chakwal for using derogatory remarks in respect of Holy Prophet (P.B.U.H.) and outraging religious feelings of the people. Vide judgment dated 30.01.2012, the learned trial court convicted and sentenced the appellant as under:- i) under Section 295-C P.P.C. to death with fine of rupees two lacs or in default thereof to undergo S.I. for six months . ii) under Section 295-A P.P.C. to ten years R.I. However , he was extended benefit of Section 382-B Cr .P.C. 2. Capital Sentence Reference No.05 of 2012 seeking confirmation or otherwise of death sentence awarded to Muhammad Ishaq-appellant has been sent to this Court. The appellant has approached this Court by filing Criminal Appeal No.48 of 2012 against his conviction and sentence passed by the learned trial court. On the other hand, Asad Ullah-complainant preferred Criminal Revision No.35 of 2012 for imposition of fine upon respondent No.1 under Section 295-A P.P.C. and enhancement of fine awarded to him under Section 295-C P.P.C. All these matters are being disposed of together through this single judgment. 3. The facts of this case as contained in First Information Report (Exh.P A/1), registered on the written application (Exh.P A) of Asad Ullah Khan-complainant (P.W.2) are that on 07.07.2009, at night time, one Mehfil was held at Darbar Qalandaria Qatlia, Sultan Road near Farooq-e-Azam Masjid, Talagang, where Muhammad Ishaq-appellant introduced himself as Peer/Sufi and in the said Mehfil , beating of drums, dance and singing songs as well as acts against Sharia were done, which outrage d feelings of Muslims. A meeting of Ulema and people was convened on 08.07.2009, at 8:00 a.m. in the premises of Eidgah , in which, it was decided that Muhamma d Ishaq-appellant be conveyed the feelings of Muslims and for that purpose, he (complainant) alongwith Moulvi Ubaid-ur-Rehman,
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Moulvi Abdul Rehman Usmani, Moulvi Shahid Kaleem, Moulvi Sabir Ayub, Sana Ullah Khan, Muhammad Hammad, Asad Ullah Khan son of Ata Ullah Khan, Waheed Ullah, Muhammad Farooq and others met the appellant in Bethik of Malik Saleem Iqbal and he was appra ised about the facts, whereupon he allegedly said that the people, who prostrated him, might see God in him and if people called him Ya Rasool Ullah , it is their belief. He further stated that every person can prostrate anywhere including toilet and Qadianies to whom you considered Kafir, are not Kafir in his view. Appellant allegedly further stated that God is on both sides i.e. east and west and he was present in America and at the same is present here. Asad Ullah Khan-complainant alleged in Exh.P A that appellant denied the existence of Khuda and committed contempt of Holy Prophe t (Peace Be Upon Him), as a result of which, religious feelings of Muslims were outraged. 4. After registration of case, the case was mainly investigated by a Sub-Inspector of Police, who is P.W.6 Muhammad Ashraf Gondal. However , after completion of all formal inves tigation, Muhammad Zulfiqar , Superintendent of Police has also been shown to have partially investigated the case. After due investigation, the appellant was challaned to face trial. On receipt of challan, the learned trial court summoned the accused and a formal charge under Sections 295-A and 295-C P.P.C. was framed, to which, he pleaded not guilty and claimed trial. For ready reference, charge as was framed on 28.08.2010, is reproduced herein below:- "Firstly: That on 8.7.2009, at night time, in the Baithak of Malik Saleem Iqbal situated in the area of Talagang, within the jurisdiction of P.S. City, Talagang, District Chakwal, you, the above said accused, arranged a gathering and in the said gathering, you uttered that:- {{URDU TEXT}} with the deliberate and malicious intention and in this way, you outraged the religious feelings of people, and thus, you committed an offence punishable under Section 295-A of the Pakistan Penal Code and within my cognizance. Secondly: That on 8.7.2009 at about 10.30 a.m, in the Baithak of Malik Saleem Iqbal situated in the area of Talagang, within the jurisdiction of P.S. City, Talagang, District Chakwal, you, the above said accused, in presence of the people, uttered the following derogatory words:- {{URDU TEXT}} and defiled the sacred name of Holy Prophet Muhammad (Peace Be Upon Him) with the deliberate and malicious intention, and thus, you committed an offence punishable under Section 295-C, P.P.C. and within my cognizance. 5. In order to prove its case, the prosecution examined as many as seven witnesse s. Ijaz Hussain Shah, Inspector (P.W.1) is the formal witness, who chalked out formal F.I.R. Exh.P A/1. Asad Ullah Khan, a private person is the complainant of this case, who also appeared as P.W.2 during trial. In order to provide strength to complainant' s case, P.W.3 Ubaid-ur-Rehman and P.W.4 Sabir Ayub were produced by the prosecution, who stated to have participated in a meeting arranged in the house of Malik Saleem Iqbal on 08.07.2009 in order to confront the appellant with alleged obnoxious conduct adopted by him in a Mehfil held in his Aastana on 07.07.2009 and in the said house, the appellant uttered some derogatory remarks not only in respect of Allah Almighty , but also some outrageous remarks as against Holy Prophet Hazrat Muhammad (P.B.U.H.). Asad Ullah Khan-complainant also produced two compact discs (CDs) allegedly containing remarks uttered by the appellant in the stated meeting held on 08.07.2009 before the Investigating Officer in presence of P.W.5 Zaka Ullah, who attested the recovery memo Exh.PC. Muhammad Ashraf Gondal, SI (P.W.6) and Muhammad Zulfiqar , retired Superintendent of Police (P.W.7) are the Investigating Officers of this case. The prosecution has closed its evidence after tendering certain documents and giving up certain P .Ws. 6. After recording of prosecution evidence, the appellant was examined under Section 342 Cr.P.C. In reply to question "why this case against you and why the PWs have deposed against you", he made the following statement:- "I believe in one Almighty Allah. Hazrat Muhammad (P.B.U.H.) is the last Holy Prophet of Almighty Allah. By the grace of Almighty Allah, I am Muslim having Sunni Brailvies faith. I am follower of late Peer Fazal Shah alias
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Afzal Shah whose shrine is situated in Talagant City. After the death of said Peer Fazal Shah, I was appointed as "Sajjada Nashin". Peer Fazal shah belonged to Awan Caste and was from Dhola clan. Some years ago, a dispute arose between grandsons of Peer Fazal Shah namely Pirzada Jawwad, Jameel and myself. To avoid any controversy, I and my followers separately built Aastana Qadria Chistia Qalandria at Sultan Road Talagang City and started arranging Mahfil-e-Melad and Mahfil-e Naat in respect of Hazrat Muhammad (P.B.U.H.) and annual Urs in respect of Peer Fazal Shah alias Afzal Shah. Myself and my followers were also arranging Mahfl-e- Samah/Qawalies on the said Aastana. Complainant and other PWs and Molvies belong to Dewband Maslak except namely Ayyub Sabir, who is Brailvi Naqashbandi. The sect of Brailvi Naqashbandi do not believe in reciting and arranging Mahfil-e-Samah in respect of Hazrat Muhammad (P.B.U.H.). As people of the City and from all over Pakistan started gathering around us due to our preach according to true spirits of Islam, therefore, Molvies of Dewband Maslak joined hands with the complainant and his family. I am settled in America. I have to come in Talagang City on 07.07.2009 to celebrate Mahfil e-Naat in respect of Hazrat Muhammad (P.B.U.H.) and my said programme was announced much earlier. Even before that date, Molvies of Dewband Maslak and the complainant chalked out a programme to oust me from the City and to forbid me from arranging such like religious ceremony, they spread a message on Mobile sets in this regard. Permission was sought from the District Authorities to arrange religious ceremony i.e. Mahfil-e-Naat at Aastana Aalia Chistia Qadria. On 07.07.2009 my followers received and took me in a religious procession to said Aastana. During the journey from Bus stop to Aastana Naatia Qawalies were recited in respect of Hazrat Muhammad (P.B.U.H.). After reaching at Aastana first of all, verses from Holy Quran were recited, then Mahfil-e-Naat was arranged in which various Naat Khans participated and recited Naats in respect of Holy Prophet Hazrat Muhammad (P.B.U.H.) and at the end we all combined paid Darood-o-Salam in respect of Holy Prophet Hazrat Muhammad (P.B.U.H.). My followers met me in respectable manners. According to their belief, they use to kiss my hands and feet and they never think it that they are adoring me. "Sijda" is for Almighty Allah. I am living in America since 1979 and I am holding green card. To preach Islamic ideology, I established a registered institution over there in the name of "International Islamic Markaz Tareeqat, INC, 323 Etna Street, Brooklyn, New York, N.Y. 11208". Mahfil-e-Melad and Mahfil-e-Naat are arranged under the management of above said institution in America. We also use to publish articles, pamphlets etc. for the purpose of awareness and education about Islam even in non-Muslims community." The appellant, while appearing in the witness-box, also got recorded his statement on oath as required under Section 340(2) Cr.P.C. in disproof of allegations levelled against him and produced certain documents in his defence evidence. 7. After evaluating evidence on record and hearing the arguments, the appellant was convicted and sentenced as detailed hereinabove by means of impugned judgment dated 30.01.2012 passed by the learned Additional Sessions Judge, Jhelum, who conducted trial in Central Jail, Adiala, Rawalpindi. 8. We have heard learned counsel for the appellant, learned Deputy Prosecutor-General representing the State and learned counsel for the complainant at length and have gone through the record with their assistance. 9. Before analysis of quality and standard of evidence, which was produced by the prosecution, in an attempt to bring home guilt with the appellant in a case involving capital sentence, the brief resume of the evidence would be appropriate. The charge has been reproduced hereinabove, which the appellant denied. Asad Ullah Khan-complainant of this case appeared in the witness box as P.W.2. The crux of his statement by reproducing some relevant extracts from his deposition is as under:- "No body disclosed before me that Sufi Muhammad Ishaq accused delivered any speech on 07.07.2009 during the whole time of the Mehfal e-Milad conducted within the said Aastana. I have no record that Sufi Muhammad Ishaq accused uttered any words regarding the allegations levelled in my examination-in-chief due to which the feelings of the Muslims were outraged before 07.07.2009...." "I do not know if any person on behalf of accused Sufi Muhammad Ishaq was present for the purpose of investigation on 12.07.2009 or 14.07.2009. In my presence, no one appeared before Muhammad Ashraf SI or SP
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Zulfiqar who had claimed that he was asked by Sufi Muhammad Ishaq accused to believe him God or Prophet or to pay Sajjada to him. V olunteered, directly he did not ask any one in this regard. " Ubaid-ur-Rehman is P.W.3, who introduced himself as a Khateeb of Markazi Jamia Masjid Eidgah in the age of 38 years only . The relevant extracts from his deposition are reproduced herein below:- "There was no written or oral material against Sufi Muhammad Ishaq accused present in the court which may be declared to be objectionable in respect of Almighty Allah, Holy Prophet (PBUH) or any other religious feelings of any sect of the Muslims. I do not remember all the conversation between accused and us except the portions which were objectionable. No body told me or any body else in my presence that Sufi Muhammad Ishaq accused present in the court delivered any speech having objectionable material on 07.07.2009 at the occasion of his reception and in the Mehfil-e-Milad celebrated at Aastana-e-Aalia Qatlia Qalandaria Chishtia, situated at Sultan Road, Talagang.... " "Four investigations of this case were conducted by the police and I remained present in all. It is correct that in all the above said investigations, no one appeared with the assertion that he adored before Sufi Muhammad Ishaq accused claiming him as Almighty Allah or Sufi Muhammad Ishaq accused preached him or asked to adore before him claiming himself (accused) as Almighty Allah.... " "No one appeared before me till today who claims that he was adoring before Sufi Muhammad Ishaq accused believing the accused Almighty Allah or Sufi Muhammad Ishaq accused asked him to adore before him (the accused) and that he felt repentance upon it. Volunteered, some persons confessed before me in the Baithak that they remained adoring before Sufi Muhammad Ishaq accused. I neither remember their names nor their descriptions ...." Sabir Ayub of 35 years of age claiming himself a Khateeb of Jamia Masjid Ibrahim Khalil Ullah, Talagang appeared as P.W.4 and what he deposed, while recording his statement, is reproduced herein below:- "It is correct that in my presence, Sufi Muhammad Ishaq accused did not ask any one to adore him considering him Almighty Allah or consider him as Holy Prophet.... " "No one appeared before the I.Os. in my presence who claimed that accused present in the court asked him to believe him Almighty Allah, Holy Prophet or that Qadianies are not Kaafirs... " P.W.5 Zaka Ullah is a person, who is a witness of recovery memo of two CDs i.e. P1/1 and P1/2 produced before the Investigating Officer by Asad Ullah Khan complainant. The effect and contents of CDs will be discussed later on. Muhammad Ashraf Gondal, Sub-Inspec tor of Police has mainly investigated the present criminal case and appeared during the trial as P .W.6. Some relevant extracts from his deposition are reproduced as under:- "It is correct that u/s 156-A of Cr.P.C., Sub Inspector is not authorized to investigate the cases registered u/s 295- C PPC. Volunteered, investigation of this case was handed over to me by the SHO/Inspector.... " "It is correct that there is no name or any signature written on the CDs P1/1-2, to show that these CDs are of the said Mehfal-i-Milad, which was held on 07.07.2009 or the meeting held on 08.07.2009, in the Baithak of Malik Saleem Iqbal, with Sufi Muhammad Ishaq accused present in the court. The said CDs and the contents thereof were seen by me after playing before taking them into possession but I have not mentioned this fact in police diary. I have also not written in police diary that what was seen by me in the CDs. I have also not written in the police diary that in the said CDs, which question was putting by whom and who is answering the same. It is incorrect to suggest that I am deposing falsely in this regard. It was not brought into my knowledge during the investigation that where and who prepared the CDs. CDs were not sealed but I prepared a parcel of the same in a Khaki envelop while putting the CDs therein and handed over to the Moharrir. I am wearing pent of Khaki colour. It is correct that the envelop present in the court is of white colour and it is also correct that I have not put the CDs in this envelop (i.e. present in the court). However, Moharrir might have put the CDs in envelop Exh.PC. The writing on Exh.PC is not written by me, rather it was written by the Moharrir. Moharrir did not make any writing on Exh.PC in my presence. I inspected the Baithak of Saleem Iqbal but I did not inspect Aastana-e-Aalia Qatalia Qalandaria Chishtia, situated at Sultan Road, Talagang. Except Zaka Ullah and Masood PWs none else appeared before me in the P.S. PWs were already present there and I recorded their statements. Malik Saleem
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Iqbal also came there. It is correct that Saleem Iqbal is the person who is Ex-MPA and he was sitting Tehsil Nazim at that time. Whatever I had seen in the CDs, the PWs got recorded their statements confirming the contents of the CDs in all. I neither added nor omitted anything in their statements. It is incorrect to suggest that I have recorded the statements of the PWs of my own and not in the light of the CDs. I had joined Malik Saleem Iqbal during the investigation...." Muhammad Zulfiqar was Superintendent of Police at the relevant time, who appeared as P.W.7 and partial investigation of this case was conducted by him and his relevant deposition is as under:- "It is correct if the complaint is received u/s 108-A, 153-A, 294-A, 295-A and 505 PPC, the F.I.R. cannot be registered without the prior permission of Provincial or Federation Government. When I received the file, there was no letter attached with the file which could show that any such permission was obtained from the Federal or Provincial Government. Volunteered, in such like case, SHO concerned obtains permission after having contacts with the DPO and DIG and after such SHO registers the case. My volunteered portion of the statement is not incorporated in police `Karwai; in the F.I.R. Exh.PA/1. According to column No.2 of the F.I.R., Exh.PA/1, Asad ullah was a private person who was the complainant of this case. It is correct that except the endorsement `A' to `A' on Exh.PA, there no mentioning of permission from DPO or high ups by the SHO. According to section 156-A Cr.P.C., the cases u/s 295-C PPC cannot be investigated by the officer below the rank of SP. It is not mentioned in the police diary that Muhammad Ashraf S.I contacted me or the DPO that he cannot investigate this case being unauthorized officer. I have not written the inspection notes of my visit of the place of occurrence. Neither I prepared site plan nor the inspection notes. Volunteered, I only verified the inspection notes and rough site plan which were prepared by Muhammad Ashraf S.I. I had inspected Aastana-e- Aalia, Qatalia Qalandaria Chistia Sultan Road, Talagang where the occurrence took place and where the meeting was held. The site plan of the above said place of occurrence i.e. Astana-e-Alia Qatalia Qalandria, Chistia, Talagang was prepared by the I.O. The place which was inspected by me, the names Ya Allah, Ya Muhammad (PBUH) and Ahle Bait (As) were written. On 10.07.2009, I directed the SHO and the I.O to produce the complainant party before me in my office. I myself did not record the statement of any PW U/S 161 Cr.P.C. on 12- 07-2009 or even on 14.07.2009. Neither myself nor the SHO issued any notice to the PWs to appear for making their statements in my office. For 12.07.2009 and 14.07.2009, I had seen the CDs but I have not mentioned this fact in my case diaries. I have not written the contents of the CDs in my case diaries. I have also not written in case diary that in whose presence, I had seen the CDs. I had seen two CDs. The time period of one CD was 15 minutes. Again said, the duration of CDs was 30 to 45 minutes. Again said, 30 minutes; again said 15 minutes. It is incorrect to suggest that neither I had seen the contents of the CDs nor I arrived at any conclusion. It is incorrect to suggest that I have deliberately wrongly replied this question..... " "I have not confronted the accused present in the court with the PWs to uneart h the truth. The version of the accused before me was that he believes in the oneness of Almighty Allah and His last Holy Prophet MUHAMMAD (PBUH). It is correct that I asked the question to the accused present in the court that adore can be submitted in the latrine upon which, he replied that he did not say so and that the adore can only be submitted on the pious place.... " On the conclusion of prosecution evidence, the statement of the appellant was recorded under Section 342 Cr.P.C. In answer to question No.16, the appellant responded in the following manner:- "I believe in one Almighty Allah. Hazrat Muhammad (P.B.U.H.) is the last Holy Prophet of Almighty Allah. By the grace of Almighty Allah, I am Muslim having Sunni Brailvies faith." The appellant even appeared as his own witness and deposed on oath under Section 340(2) Cr.P.C. and denied all the allegations levelled against him by the prosecution and remained firm during the test of cross-examination. 10. Although learned Additional Sessions Judge, who conducted the trial and sentenced the appellant, has noted in the impugned judgment that he has seen the CDs P1/1 and P1/2 repeatedly , but he has failed to reproduce the contents of said CDs and even the prosecution during investigation has not provided any transcript of such CDs. In order to overcome such deficiency , this Court has arranged the playing of CDs in open Court and I.T. Department of this Court has arranged the playing of both the CDs in open Court in presence of both the sides.
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A banner stated to have been displayed on the Aastana of appellant has been shown in Exh.P1/1, which displayed the following wording:- {{URDU TEXT}} The other CD P1/2 is damaged one and not playable. Nothing comes out, as to what material the said CD contained. As such, nothing can be said in certainty , as to whether any culpable material was available in P1/2 as against the appellant or not. 11. Malik Saleem Iqbal, who stated to be an Ex-MP A and sitting Nazim of the area and whose house was selected for a meeting, wherein the appellant was stated to have been confronted with the allegations, was never cited as a witness in the calendar of witnesses for the prosecution and what happened in his Baithik has not been brought on record from the owners of the house shown to be a responsible representative of the locality . 12. Keeping in view the sensitive nature of offence under Section 295-A PPC, the legislature has promulgated Section 196 in Cr.P.C. providing that no Court shall take cognizance of any offence punishable under Section 295-A P.P.C., unless upon complaint made by order of, or under authority from, the Federal Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments, whereas Section 156-A Cr.P.C. provides that notwithstanding anything contained in this Code, no Police Officer below the rank of a Superintendent of Police shall investigate the offence against any person alleged to have been committed by him under section 295-C of the Pakistan Penal Code, 1860, (Act XLV of 1860). Both such procedural mandates have been violated in the present case with reference to both the alleged offences for which the appellant was charged. The basic step by means of which, the Investigating Agency was put to motion by a private person is violative to the provision of Section 196 Cr.P.C., whereas the investigation of the offence under Section 295-C Cr.P.C. by a Sub-Inspector of Police is again violative to mandatory provision of Section 156-A Cr.P.C. This Court in a case registered under Section 295-A P.P.C. titled "BASHIR AHMED versus THE STATE" (2000 P Cr. L J 902) has held that violation of Section 196 Cr.P.C. is not a curable irregularity , as the provision of Section 196 Cr.P.C. was couched in the negative language which, unless the context otherwise required, was to be considered to be mandatory in nature and not a directory one and where a mandatory condition for the exercise of jurisdiction was not fulfilled, then the entire proceedings would become coram non judice, illegal and without jurisdiction. Non-compliance of provisions of Section 196 Cr.P.C., therefore, cannot be construed to be a curable irregularity within the meaning of Section 537 Cr .P.C. This Court in Criminal Appeal No.29 of 2013 titled "Ghulam Ali Asghar versus The State & another " vide judgment dated 09.12.2015 has placed reliance on a Division Bench view of this Court in similar circumstances reported as "Muhammad Mahboob alias Booba vs. The State " (PLD 2002 Lahore 587) and taking benefit of the authoritative view of learned Division Bench of this Court particularly by means of the following findings in Muhammad Mahboob' s case, proceeded to acquit the accused of an of fence under Section 295-A P.P.C.:- "Such quality of evidence could not be relied in a case as serious as the present one and reflected inefficiency , inaptitude, apathy and perfunctory working on the part of Police Officials and the way they collect evidence. If the case of the prosecution was per se infirm ,…
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