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Official Citation: 2025 IHC 215907
Court / Jurisdiction: Islamabad High Court
Parties: Arbaz Ali vs The State etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 215907. In this matter between Arbaz Ali and The State etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Mohsin Akhtar Kayani) AUTHOR JUDGE: Honourable Mr. Justice Mohsin Akhtar Kayani DECISION DATE: 13-MAY-2025 CASE NO: Jail Appeal-248-2024 CITATION: 2025 IHC 215907 PARTIES: Arbaz Ali VS The State etc. LAW / SECTION: - SUBJECT: Against Conviction (PPC), Life Imprisonment REMARKS: Jail Appeal in FIR No. 1101-2022 dated 30.05.2022 U/s 295-B PPC P.S. Koral, Islamabad ============================================================ JUDGMENT SHEET ISLAMABAD HIGH COURT, ISLAMABAD, JUDICIAL DEPARTMENT
Jail Appeal No.248-2024 Arbaz Ali Versus The State.
Appellant by: Mr. Manzoor Ahmed Rehmani, Advocate.
Respondents by:
Ms. Saadia Shehzadi, State Counsel. Muhammad Iqbal, Inspector. Complainant in person.
Assisted by: Ms. Aymen Azeem, Law Clerk, I.H.C.
Date of Hearing: 02.05.2025.
JUDGMENT
MOHSIN AKHTAR KAYANI, J: Through the instant appeal, the appellant has assailed the judgment dated 21.05.2024, passed by learned Additional Sessions Judge, Anti-Rape Court (East), Islamabad, whereby appellant has been convicted in case F.I.R No.1101, dated 30.05.2022, under Section 295-B PPC, P.S Koral, Islamabad and sentenced to imprisonment for life. The benefit of Section 382-B Cr.P.C. was also extended to the appellant 2. Brief facts referred in the instant appeal are that Muhammad Ashfaq Khan (Complainant) lodged complaint Exh.PA with the allegation that on 30.05.2022, he returned after offering Asar prayer to his factory situated at Shareef Abad, where he saw that torn pages of the Holy Quran lying in filth on the ground. He asked his laborers regarding the said torn pages, upon which they informed him that someone from the roof of the
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adjacent house had thrown the torn pages. They collected and preserved the said pages. In the meantime, a person namely Arbaz Ali S/O Moharam Khan appeared on the roof of the adjacent house and again started tearing the pages of the Holy Quran in front of them. Upon witnessing this objectionable act, they raised hue and cry, after which he went inside the house. After some time, he appeared again on the said roof and once again started tearing the pages of the Holy Quran and began using derogatory words about it, saying, “I do not believe in this Holy Quran, this Holy Quran is not real, this Holy Quran is a lie/fake. Call any preacher (molvi) in front of me, but I do not believe in it (Holy Quran). At the same time, many other people from the locality gathered there, and the father of the accused also came to the spot. The father of the accused took out torn pages of the Holy Quran from his pocket and stated that the accused had been tearing pages of the Holy Quran since yesterday and was not stopping, despite their efforts. Meanwhile, the accused Arbaz Ali came out into the street and again started tearing pages of the Holy Quran and continued using derogatory and blasphemous language against the Holy Quran, repeating, “This Holy Quran is not real, I do not believe in it.” Upon this act, the accused was apprehended, and Rescue 15 was called immediately. After the arrival of the police, the accused and his mother started extending threats of dire consequences to the complainant and people of the locality. The complainant (PW-02) handed over the torn pages of the Holy Quran to the police. He moved an application Ex-PA/1-2 comprising two pages against
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the accused Arbaz Ali, which was converted into FIR No. 1101/2022, dated 30.05.2022, under Section 295-B PPC, P.S. Koral, Islamabad, through Exh.PE. 3. The Investigation Officer, Umer Hayat S.I (PW-04), after receiving information about the occurrence, along with other Eagle Squad officials, reached the place of occurrence, where complainant Muhammad Ashfaq handed over a written application and the torn pages of the Holy Quran to him. He also collected torn pages of the Holy Quran from inside the factory and the street where the accused resided. He prepared a sealed parcel of the above torn pages of the Holy Quran (P1) and took the same into possession vide recovery memo Exh.PB in the presence of attesting witnesses Muhammad Ashfaq and Abid Hussain (PW-02 and PW-03). After registration of the criminal case, he handed over the relevant documents to Investigation Officer Muhammad Iqbal (PW-06), who apprehended the accused but deferred his formal arrest. He took the accused to the hospital. After the discharge of the accused from the hospital, he completed the investigation and submitted the final challan under Section 173 Cr.P.C. in the Court. The trial Court framed the charge on 11.01.2023, to which the appellant pleaded not guilty. Consequently, seven prosecution witnesses were recorded, and documentary evidence from Exh.PA to Exh.PF was received, along with the statement of the appellant under Section 342 Cr.P.C. The trial Court also recorded the evidence of Dr. Masouda Batool as CW-01, who conducted the psychiatric
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evaluation of the accused. Thereafter, the trial Court convicted the appellant accordingly. 4. Learned counsel for the appellant contends that the appellant is mentally ill and has remained under medical treatment, a condition verified by Dr. Masouda Batool, CW-1. Despite this, the appellant was convicted by the trial Court without following the prescribed procedure under the Mental Health Ordinance, 2001. He further submits that the original Quran, from which the pages were allegedly torn by the appellant, was not produced before the Court. Even the torn pages themselves were not fully produced. Thus, the primary evidence is missing in this case. 5. Conversely, learned State Counsel contends that the accused did not take the plea of medical illness or legal insanity during the trial; therefore, the ground of insanity is not available to the appellant at this stage. He further contends that the recovery memo has been placed on record, confirming the recovery of the Quran and the torn pages in this case, as duly supported by the statements of eyewitnesses i.e. Touseef Ur Rehman (PW-01), Muhammad Ashfaq Khan (PW-02), and Abid Hussain (PW-03). 6. Arguments heard and record perused. 7. Perusal of the record reflects that the appellant was apprehended in this case on the basis of the complaint made by eyewitness Muhammad Ashfaq Khan (PW-02), who stated that on 30.05.2022, when he returned from the factory situated at Shareef Abad, he saw torn pages of the Holy Quran lying in filth
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on the ground. Upon inquiry, his laborers told him that someone from the roof of the adjacent house had thrown those pages. Eventually, the appellant appeared and tore some pages in front of Muhammad Ashfaq Khan (PW-02). This version was corroborated by the other eyewitnesses, PW-01 and PW-03. Additionally, Abid Hussain (PW-03) stated that the father of the accused took out 2–3 torn pages of the Holy Quran from his pocket and stated that the accused had been doing such acts since yesterday. Thus, the admitted position on record is that torn pages of the Holy Quran were recovered from one Quran. Umer Hayat S.I stated: “I also collected torn pages of the Holy Quran from inside the factory and the street where the accused was residing. I prepared the sealed parcel of the above-said torn pages of the Holy Quran (P1) and took the same into possession vide recovery memo Exh.PB”. 8. During the course of cross-examination, PW-04 acknowledged that he did not recover anything from the accused directly; rather, he gathered small pieces from the place of occurrence. The torn pieces of paper were handed over to him by the complainant. He also apprehended the accused on the spot; however, no video was taken into possession. He confirmed that the small pieces were gathered by him from the place of occurrence, which were 9–10 in number, though he never counted the torn pages referred by the complainant. He prepared one parcel of all the torn pieces, including those handed over to him by the complainant and those he gathered himself. No book (نسخہof the Holy Quran having torn pages was taken into
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possession by him. He did not investigate whether the torn pages of the Holy Quran belonged to one book (نسخہor multiple books (نسخہ جات .) 9. In this backdrop, the principal duty required to be performed in such types of cases rested on the shoulders of Umer Hayat, S.I (PW-04), as well as Muhammad Iqbal (PW-06), Investigating Officer. They were responsible for preparing the sealed parcel of torn pages as incriminating articles, including, but not limited to the Holy Quran, from which the pages were allegedly torn by the appellant as claimed by the prosecution. Similarly, Muhammad Iqbal (PW-06), Investigating Officer, also confirmed that “I did not recover anything from the accused directly. The sealed parcel said to contain torn pages of the Holy Quran was not sent for forensic analysis”. 10. Therefore, Rule 22.16 of the Police Rules, 1934 ("the Police Rules") deals with the "case property". Sub-rule (1) thereof provides, inter alia, that in certain circumstances, police shall seize weapons, articles and property in connection with criminal cases, and take charge of property which is unclaimed. Sub-rule (2) thereof provides, inter alia, that each weapon, article or property (not being cattle) seized under the above sub-rule shall be marked or labelled with the name of the person from whom, or the place where, it was seized, and reference to the case diary or other report submitted from the police station. If articles are made up into a parcel, the parcel shall be secured with sealing wax, bearing the seal impression of the responsible officer, and
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shall similarly be marked or labelled. Such articles or parcels shall be placed in safe custody, pending disposal as provided by law or rule. Sub-rule (3) thereof provides, inter alia, that the police shall send to headquarters or to magisterial outposts all weapons, articles and property connected with cases sent for trial, as well as suspicious, unclaimed and other property, when ordered to do so by a competent Magistrate. Sub-rule (4) thereof provides, inter alia, that motor vehicles detained or seized by the police in connection with cases or accidents shall be produced before a Magistrate after rapid investigation or by means of in- complete challan. The evidence relating to the identity or condition of the vehicle should be led and disposed of at an early date, and the Magistrate should then be invited to exercise the discretion vested in him by section 516-A, Code of Criminal Procedure, to order that the vehicle be made over to the owner pending conclusion of the case on security to be produced whenever demanded by the Court. Similarly, Rule 22.18 of the Police Rules deals with the “custody of property”, which requires to be deposited with the District Headquarters and at last Rule 22.70 of the Police Rules which deals with the Register No.XIX, which shall be maintained in the Police Station, wherein every article shall be entered in the said Register and removal of any such article shall also be noted in the appropriate column by the Moharrir Mallkhana of the Police Station. The Police Rules mandate that case property be kept in the Mallkhana and that the entry of the same be recorded in Register No.XIX, which is the duty of the police and prosecution to establish that the case
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property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tampered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court. 11. Now adverting to Rules, 14-E, 14-F, 14-H, which have their own significance mechanism and process in the criminal trials, which imposes certain obligations upon the prosecution that every article which confirms the circumstantial evidence should be produced in Court and their identity should be proved by the witnesses. Similarly, Rule 14-H provides, inter-alia, that all exhibits should be marked with a letter or number. Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such article is referred to and should be distinctly marked as "admitted or not admitted". Thus, under the Police Rules and the High Court Rules, mentioned above, in all cases, especially in the cases of articles sent to the chemical examiner, it is necessary that there be no doubt as to what person or persons have had charge of such articles throughout various stages of the inquiry. 12. Surprisingly in this case, I have attended the original record with the able assistance of learned counsel for the
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appellant as well as with the help of learned State Counsel and Investigating Officer, but P1 is not available in the original file. Even otherwise, primary evidence i.e. Holy Quran from which pages were torn allegedly by the appellant is not taken into possession by the Investigating Officer, such damaging defect demolished the entire superstructure of the case in the light of case law reported as 2004 SCMR 1209 (Qamar Zaman Vs. Waseem Iqbal and 5 others), 2005 SCMR 594 (State of Islamic Republic of Pakistan through Deputy Attorney: General for Pakistan Vs. Kenneth Marshal and 2 others), 2009 SCMR 431 (Gul Dast Khan Vs. The State), It was held that it is necessary to produce the incriminating articles, which require proper identification and must be exhibited as case property during the trial. The failure to do so attracts the presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984, which implies that if such material had been produced, it might have gone against the prosecution or that no such material exists at all. No doubt that if the case property is not produced in Court, the concerned authority/ prosecution is required to furnish plausible explanation based upon concrete material and not mere lame excuses, which is not the case in hand. All these aspects were duly appreciated in case law reported as 2023 SCMR 781 (Ahmed Ali Vs. The State). 13. Another important aspect which is the fundamental aspect of the case is the mental condition of the accused, who was apprehended on the same date i.e. 30.05.2022 and he remained under treatment with Dr. Masouda Batool (CW-01), who while
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appearing as a witness in the Court stated that she is posted at PIMS Psychiatry Department and when patient (appellant) namely Arbaz Ali aged 25 years was brought by police in handcuffs with the complaints of hearing multiple voices and suspiciousness. He also had history of substance misuse, violent and disruptive behavior. His medical tests were unremarkable. CT brain, plain psychological assessment i.e. HTP interpretation showed. Maniac tendencies. Mal adjusted personality. Phychotic. Suspicious. Distorted perception of reality. Infantile behavior. 14. The final conclusion given by the CW-01 is that he was diagnosed as a case of paranoid schizophrenia + substance addict by consultant doctor. After detail examination, it was concluded that patient is case of paranoid schizophrenia and illicit substance induced psychosis. The act of blasphemy was done in psychotic state of mind with no insight into the process. 15. Primarily, this Court is unable to understand why the Doctor was called as CW-01 in the Court, especially when she treated the patient at the initial stage and the Investigating Officer brought the appellant to the Hospital for his psychotic evaluation. As per the statement of Muhammad Iqbal, Inspector (PW-06), the appellant remained under treatment from 30.05.2022 till 18.06.2022, and the opinion rendered by CW-01 has been referred in the final report under Section 173 Cr.P.C., which has been taken judicial notice of. When no explanation
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has been rendered by the prosecution as to why this prosecution witness was designated as CW-01, it appears she was intentionally not called as a prosecution witness, especially when she had rendered a clear opinion regarding the mental illness of the appellant, in which no criminal liability could be imposed. However, that aspect was not taken into account by the trial Court; rather, the Court allowed the State as well as the Complainant to cross-examine CW-01. Nevertheless, despite extensive cross-examination of CW-01, prosecution could not make any dent that the appellant was not treated for mental illness or that the opinion rendered by CW-01, being a Doctor in the Psychiatry Department of PIMS, is contrary to the record. 16. During the cross-examination, it has also been confirmed that the disease paranoid schizophrenia is an extreme of schizophrenia. It is correct that the patient of paranoid schizophrenia must be kept in isolation and under care instead of keeping him free in public. It is also acknowledged that it is correct that paranoid schizophrenia is the last/highest degree of the said disease and as per her investigation, the patient was ill. In this backdrop, what is the way forward to determine the mental illness of a person under United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, 19911: Principle 4 Determination of mental illness
1 https://www.ohchr.org/en/instruments-mechanisms/instruments/principles-protection-persons- mental-illness-and-improvement
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1. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards. 2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status. 3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community, shall never be a determining factor in diagnosing mental illness. 4. A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness. 5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.
17. Several international human rights conventions and standards provide protections for individuals whose mental state is compromised, particularly in the context of criminal justice. These conventions emphasize the rights of individuals to be treated fairly and with dignity, recognizing that those with mental health conditions may have specific needs that must be accommodated. Here are some key international instruments related to this issue: i. As per Article 1 of the Convention on the Rights of Persons with Disabilities (CRPD) (2006)2 persons with
2 https://mohr.gov.pk/SiteImage/Misc/files/UNCRPD.pdf
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disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. Therefore, according to Article 14 of CRPD it is the duty of the state to ensure the right to liberty and security of persons with disabilities, specifically deprivation of their liberty unlawfully and arbitrarily, and such deprivation must be in conformity with the law. ii. United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) (2015)3 reflect that: B. Prisoners with mental disabilities and/or health conditions Rule 109 1. Persons who are found to be not criminally responsible, or who are later diagnosed with severe mental disabilities and/or health conditions, for whom staying in prison would mean an exacerbation of their condition, shall not be detained in prisons, and arrangements shall be made to transfer them to mental health facilities as soon as possible. 2. If necessary, other prisoners with mental disabilities and/or health conditions can be observed and treated in specialized facilities under the supervision of qualified health-care professionals. 3. The health-care service shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment.
3 https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf
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18. In addition to above, it is necessary to highlight the definition of Schizophrenia, explained in Justice Project Pakistan, Handbook Complete Volume-24 in the following manner:
A central feature of schizophrenia, a psychotic illness, is that the individual experiences a reality that is particular to them and is not shared with the people around them. This means that individuals suffering from schizophrenia may have belief systems that are not based on objective reality.
They may also have experiences such as hallucinations (having a sensory experience without any stimulus) i.e. hearing voices that are not heard by those around them. Another feature of these hallucinations may be “command hallucinations”. The individual may hear voices commanding them to perform certain acts. They may also lose control over their own bodies (somatic passivity) and are forced to move them without their own will or volition.
19. Even this Court has been guided by the research5 conducted by the Assistant Professor of law, Dr. Muhammad Ifzal Mahmood along with a District Judge from KPK Hamaish Khan whereby they explored the consequences of mental illness on criminal liability in Pakistan, particularly Schizophrenia. They differentiated between insanity and mental disorder by referring that individuals with mental disorders should not be held responsible for crimes because they may not fully understand
4 Justice Project Pakistan, handbook Complete Vol-2 https://jpp.org.pk/wp- content/uploads/2024/06/JPP-Handbook-Complete-v2.pdf 5 Dr Muhammad Ifzal Mehmood and Hamaish Khan, 'Changing Paradigms: Criminal Responsibility in Mental Health Laws of Pakistan and UN Conventions on the Rights of Persons with Disabilities' (2022) 3 Journal of Development and Social Sciences 189
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their actions. The idea is reflected in the legal concept of insanity, where a person of unsound mind is not held criminally liable as stated in Section 84 of Pakistan Penal Code. However, insanity is different from mental illness. While mental illness refers to health conditions, insanity is a legal term related to a person’s ability to understand and make decisions. Moreover, Schizophrenia is also a mental disorder and categorized in mental illness. It is a brain disorder in which a person is incapable to understand his action. 20. Similarly, Section 16 of the Criminal Code of Canada also recognizes no criminal liability against insane person by defining the concept as follows; - “No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”.
21. While taking benefit from case law reported as PLD 2021 SC 488 (Mst. Safia Bano Vs. Home Department), this Court is of the view that whenever the plea was raised regarding the state of mind of accused at the time of commission of offence, the onus would be on the defence (accused) to prove such a plea as contemplated in Article 121 of the…
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