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Petitioner: Sawan Masih alias Bodi VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Syed Shahbaz Ali Rizvi, Asjad Javaid Ghural Title: Sawan Masih alias Bodi vs The State and another Case No.:Criminal Appeal No. 727 of 2014 and Capital Sentence Reference No. 7-T of
JUDGMENT
Reported As: 2021 YLR 125 Result: Appeal allowed Judgment JUDGMENT SYED SHAHBAZ ALI RIZVI, J.---This judgment shall dispose of Crl. Appeal No.727 of 2014 filed by Sawan Masih alias Bodi, appellant against his conviction and sentence and Capital Sentence Reference No.7-T of 2017 sent by the learned trial court for confirmation or otherwise of the sentence of death awarded to the appellant as same have arisen out of same judgment dated 27.03.2014 pasted by the learned Addl., Sessions Judge, Lahore in case FIR No.112 dated 08.03.2013, offence under Section 295-C, P.P.C. registered at Police Station Badami Bagh District Lahore whereby , the appellant was convicted under Section 295-C, P.P.C. and sentenced to death with the direction to pay fine of Rs.2,00,000/- and in default thereof, to undergo simple imprisonment for six months. 2. Per prosecution, the facts of the case, as disclosed by Shahid Imran, complainant (PW-2) in his complaint (Exh- PA) on the basis of which formal crime report (Exh-P A/2) was registered, are that on 07.03.2013 after Fajar ' prayer , the complainant came out of his house for a walk. When he reached near the godown of Bao Saeed, his neighbours. Muhammad Shafique (given up PW) and Iftikhar Khan (PW-3) also came there. Muhammad Shafique (given up PW) was having a word with him when the appellant in rickshaw suddenly started using derogatory remarks about the Holy Prophet Hazrat Muhammad (s.a.w) to whom they tried to apprehend but he fled away from the spot. 3. Sawan Masih alias Bodi, appellant was arrested in this case by Multan Khan, S.P. (PW-7), the investigation officer on 09.03.2013. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted against the appellant. The learned trial court, after observing pre-trial codal formalities, framed the charge against him on 29.05.2013 to which he pleaded not guilty and claimed trial. 4. The prosecution, in order to prove its case, produced as many as eight witnesse s during the trial. Shahid Imran, complainant (PW-2), Iftikhar Khan (PW-3) and Shabbir Hussain (PW-4) furnished the ocular account. Multan Khan,
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S.P. (PW-7) and Syed Muhammad Amin Bukhari, S.P. (PW-8) are the investigation officers of this case whereas, rest of the witnesses are formal in nature. The learned Assistant District Public Prosecutor gave up Muhammad Shafique and Qasim Ali PWs being unnecessary and closed the prosecution evidence. 5. The statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, he refuted the allegations levelled against him and professed his innocence. He further maintained that he had been involved in this case on the asking of godown owners who wanted to purchase Joseph colony but the residents of the colony refused to sell their houses. He further states that Joseph colony was set on fire as a result whereof, about 200 houses were burnt. He did not opt to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him however , he produced Khadim Masih (DW -1) and Altaf Masih (DW -2) in his defence. 6. The learned trial Court vide its judgment dated 27.03.2014, found the appellant guilty , convicted and sentenced him as mentioned above. 7. We have heard the arguments of learned counsel for the appellant, learned Prosecutor General, learned counsel for the complainant and also scanned the record with their assistance. 8. Before adverting to the appraisal of evidence available on file and giving our observations regarding the same, we find it advantageous to borrow and reproduce an excerpt from the judgment recently passed by the Hon'ble Supreme Court of Pakistan in the case of Mst. Asia Bibi v. The State and others (PLD 2019 Supreme Court 64) that reads as under: - "10. After the independence, to ensure that no attempt could be made to defy the Prophet Muhammad (PBUH), a new provision was introduced in Pakistan Penal Code, 1860 (P .P.C.), which reads as under: - "295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet (peace be upon him): 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." As per this provision, the act of blasphemy was made culpable and sentence provided was either death or imprisonment for life along with a fine. The validity of this provision was considered by the Federal Shariat Court in the case titled as Muhammad Ismail Qureshi v. Pakistan through Secretary , Law and Parlia-mentary Affairs (PLD 1991 FSC 10) wherein the Court ruled that Section 295-C of P.P.C. was repugnant to the fundamental principles of Islam to the extent that it provided for the punishment of life imprisonment which acted as an alternative to a death sentence. It was held that the penalty for contempt of the Holy Prophet (peace be upon him) is death. It was further held that if the President of the Islamic Republic of Pakistan did not take any action to amend the law before 30th April, 1991, then Section 295-C would stand amended by the said ruling. An appeal was filed before the Shariat Appellate Bench of this Court, which was dismissed for want of prosecution. 11. As mentioned above, Muslims all over the world have immense love, admiration and affection for Prophet Muhammad (peace be upon him) more than their own lives or the lives of their parents and children. No one could be allowed to defy the name of the Holy Prophet Muhammad (peace be upon him) nor could a person guilty of disrespecting the Holy Prophet (peace be upon him) be let off scot-free. Even the Government has always made efforts at the national and international level to eliminate instances of blasphemy of the Holy Prophet (peace be upon him). For instance, in March 2009, our government presented a resolution to the United Nations Human Rights Council in Geneva condemning "defamation of religion" as a human rights violation, which called upon the world to formulate laws against the defamation of religion. The resolution was adopted on 26.3.2009 despite wide concerns that it could be used to justify restrictions on free speech in Muslim countries. The efforts of our government succeeded in imposing global limitations against any attempt to defy a religion or belief, on the basis of freedom of expression. The social media website "Facebook" was blocked as it promoted and hosted a page called as "Everybody draw Muhammad Day". This was another attempt made by the authorities to stop these malicious and vexatious attempts to sabotage the Holy name. The ban was lifted when Facebook prevented access to the said page. In June 2010, seventeen websites were banned for hosting content which were offensive and demeaning to Muslims. Since then the authorities have been monitoring the content of various websites including
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Google, Yahoo, YouTube, Amazon, MSN, Hotmail and Bing and all social media websites which are used globally and have a direct impact on people. 12. As noted above, no one could be allowed to defy the name of the Holy Prophet Muhammad (peace be upon him) and be left unpunished, but there is another aspect of the matter; sometimes, to fulfill nefarious designs the law is misused by individuals levelling false allegations of blasphemy . Stately , since 1990, 62 people have been murdered as a result of blasphemy allegations, even before their trial could be conducted in accordance with law. Even prominent figures, who stressed the fact that the blasphemy laws have been misused by some individuals, met with serious repercussions. A latest example of misuse of this law was the murder of Mashal Khan, a student of Abdul Wali Khan University , Mardan, who in April 2017 was killed by a mob in the premises of the university merely due to an allegation that he posted blasphemy content online. 13. Reference may also be made to the case of one Ayub Masih, who was accused of blasphemy by his neighbour Muhammad Akram. The alleged occurrence took place on 14th October 1996, the accused was arrested, but despite the arrest, houses of Christians were set ablaze and the entire Christian population of the village (fourteen families) were forced to leave the village. Ayub was shot and injured in the Sess ions Court and was also further attacked in jail. After the trial was concluded, Ayub was convicted and sentenced to death, which was upheld by the High Court. However , in an appeal before this Court, it was observed that the complainant wanted to grab the plot on which Ayub Masih and his father were residing and after implicating him in the said case, he managed to grab the seven-marla plot..." 9. Now coming to the case in hand, we have observed that the appellant stands convicted under the charge of an offence that carries capital sentence only. Being so, it requires higher standards of appreciation of evidence and strict scrutiny of the same. For that purpose in the peculiar circumstances of this case we need to bear in mind commandment of Allah Almighty ordained in Surah Al-Nisa V erse No.135reads as under: - "So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever , with what you do, acquainted." 10. Admittedly , the appellant is a Christian by faith. The occurrence of this case, as per prosecution's story , took place on 07.03.2013 after Fajar' prayer . The allegation against the appellant is that he perpetrated the offence of blasphemy in presence of five Muslim witnesses when he was not armed. The complainant (PW-2) also claims in his examination in chief at page 22 of the paper-book that many other people from the locality also gathered there and they informed them about the words used by Sawan Masih, appellant but surprisingly the matter was not reported by the complainant or the other witnesses till 02.50 p.m. on 08.03.2013 i.e. after `Jummah' prayer when according to Shahid Imran, complainant (PW-2) himself, Joseph Colony (Christian Colony) had already been set on fire and an altercation had taken place inside that colony as is reflected from his statement that reads as under: - "...On 8.3.13 when Jozif colony was set on fire I was not present there. Again said that I was present there but specifically at the time of setting Jozif colony on fire I was not present. I had gone to mosque for Jumma prayer and when I came back the people had set on fire the Billiard game of the accused, and so many people were present there. Mohammad Shafique/PW was also present there and he was having chhuri in his hand. Some one had informed the police at that time I, Iftikhar and Shafique were present and police also reached there. It is correct that regarding the setting on fire Jozif colony the criminal case was registered but I cannot remember the case FIR No. I am also accused nominated in the said FIR. Shafique PW is also accused in that case..." Besides the complainant (PW -2), Iftikhar Khan (PW -3) in his examination in chief admits as under: - "...On next day I was telephonically informed that fight had taken place in the christian colony . I also reached there. Then application was submitted to the police already present there..." The investigation of ficer (PW -8) at the beginning of his cross-examination also states as under: - "I recorded in my case diary dated 12.3.1 3 that PWs Mohammad Shafique and Iftikhar Ahmad Khan had fled away due to that reason I have not interrogated them on the same day. The said PWs were the accused regarding the burning of houses and a case was regis tered against them under 7ATA. I interrogated them in custody as they were arrested in case FIR No.1 14/13 P . S . Badami Bagh..."
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These reproduced excerpts from the statements of the prosecution witnesses reveal (i) that Joseph Colony was attacked and set on fire even on 08.03.2013; (ii) the complainant as well as Muhammad Shafique (given up PW) and Iftikhar Khan (PW-3) were the nominated accused of the FIR subsequently registered; (iii) it is thereafter , the complainant and others found it required to get a criminal case registered against the appellant and that after `Jummah' prayer on 08.03.2013, they reported the matter at 02.50 p.m. to the concerned SHO who attracted to the spot having information about the occurr ence in Joseph Colony . This aspect of the prosecution case, at the very inception, makes the credibility of the FIR that has been got registered by the complainant and others after they purportedly had burnt the properties of the Christians in their colony including the Billiard game of the appellant, doubtful. It cannot be ruled out that the accusation levelled in the crime report (Exh-P A/2) might have been concocted to create a defence with regard to the assault made. 11. It is also very much relevant in this case that written application (Exh-P A) admittedly drafted on 08.03.2013 bearing thumb impression of the complain ant and read over to him does not carry the derogatory remarks allegedly uttered by the appellant in presence of the witnesses even though from the details given by the prosecution witnesses, the application (Exh-P A) was drafted in presence of other persons of Muslim community gathered for Vummah' prayer in the mosque situated near Joseph Colony . PW-2 is self discrepant with regard to his explanation in this regard as during his cross-examination, he maintains that he had mentioned the derogatory remarks in the FIR but not written by the scribe while in contravention of the same in his examination in chief, he maintains that application (Exh-P A) was duly thumb marked by him and same was read over to him. It is also to be kept in mind that Multan Khan, S.P. (PW-7) in hi; statement claims that complainant Shahid Imran, in his statement before him, had endorsed contents of his complaint (Exh-P A). Similarly , being inconsistent with his earlier explanation, in his written application (Exh-PB), he (PW -2) gives the reason that reads as under:- {{URDU TEXT}} If the complainant got recorded the blasphemous words in his first application (Exh-P A) but were not incorporated by the recorder , he should have given the same reason for that omission in his second application (Exh-PB). Moreover , before moving application (Exh-PB), he had the opportunity to rectify the lacuna when (i) the application (Exh-P A) was read over to him; (ii) when he during investigation of S.P. Multan Khan (PW-7) endorsed contents of FIR on 08.03.2013. It is of much importance to note that the second investigatio n officer (PW-8) admits that on 13.03.2013, derogatory remarks were not recorded in the file. Upon the incident of Joseph Colony , a suo motu notice was taken by the Hon'ble Supreme Court of Pakistan and the investigation officers of this case attended the proceedings on 13.03.2013, while application (Exh-PB) carrying derogatory remarks was moved by the complainant on 15.03.2013 i.e. two days after the appearance of higher police authorities and the investigation officer before the Hon'ble Supreme Court of Pakistan regarding which Syed Muhammad Ameen Bukhari, Superintendent of Police (PW -8), during his cross-examination, concedes as under:- "...Till 13.3.13 derrogatory remarks were not recorded, and as per information received by me the observation was made by the August Supreme Court regarding derogatory remarks in the FIR,..." So, it cannot be denied that the contempt uous words were added by the complainant through a written application (Exh-PB) after the observation made by the Hon'ble Apex Court on 13.03.2013 and also after the registration of case FIR No.114/2013 under Sections 148, 149, 186, 427, 337-F(i), 337-L(2), 295-A, 353, 377 and 324, P.P.C. on 09.03.2013 against him, Iftikhar Khan (PW-3) and given up witness Muhammad Shafique. It is also an established fact that complaint (Exh-P A) was drafted by someone whose name, throughout the investigation and trial, remained shrouded in mystery however , consultation of the complainant in this regard is admitted which is also evident from the crime report itself. The supra noted inconsistent explanations of PW-2 qua the non-mentioning of derogatory remarks in the FIR, their belated insertion after the above referred proceedings of the Hon'ble Supreme Court and after the registration of FIR against the PWs, credibility of the contents of Exh-PB including the blasphemous words and the introduction of two new eye-witnesses becomes seriously dubious. Thes e facts lead us to infer that the circumstances in which the FIR without the derogatory remarks was lodged and subsequent application (ExhPB) carrying words blasphemous in nature was moved, were not free from doubts.
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12. As per Exh-P A,the written application moved by the complainant (PW-2), the occurrence took place when he, after 'Fajar' prayer went out for a walk {{urdu text}} and when he (means he was not accompanied by his guests (PW-4) and Qasim (given up PW) subsequently introduced through Exh-PB) reached near the godown of Bao Saeed, his neighbouring shop owner Muhammad Shafique (given up PW) and Iftikhar Khan (PW-3) arrived there. Muhammad Shafique was talking to him when the appellant in a rickshaw (means Sawan Masih, appellant was inside the rickshaw) started uttering derogatory remarks, we find it advantageous to reproduce the original text of Exh-P A that reads as under: - {{URDU TEXT}} It evinces that neither the complainant went for taking the car of his guest from the godown of Bao Saeed nor he was accompanied by his guest subseque ntly introduced by him in his supplementary statement/application (Exh- PB) after the delay of seven days hence , he is inconsistent about the reason given for his being at the place of occurrence and also to the effect that he went out alone or with guests. It is also noticed that FIR (Exh-P A/2) is even silent about the presence of Tola Masih, Tagga Masih, Shabbir Hussain (PW-4) and Qasim Ali (given up PW). Moreover , from the FIR, it reveals that the complainant (PW-2) left his house after 'Fajar' prayer not at 06.45 p.m. as stated by PW-3. The time of 'Fajar' explained by him (PW-2), during his cross-ex amination, then was 04.00 a.m., inadvertently written as 04.00 p.m. at page No.24 of the paper-book that can be gathered from the next sentence stated by him that reads as under: - "...and I said my prayer at about 5.30 a.m..." He (PW-2) further deviated from Exh-P A, during his cross-examination, saying that after 'Fajar' prayer , he remained in his quarter as according to FIR, he went out after ' Fajar' prayer . 13. Giving the manner of uttering blasphemous words, in his examination in chief, the complainant (PW-2) says as under: - "...In the meanwhile I along with Mohanunad Shabbir and Qasim Ali was present at the gate of godown. The watchman reached at the gate of godown in the meanwhile Sawan Masih/accused present in the court started talking. Iftikhar Hussain and Shafique PWs also reached there. The accused has used the words that..." Both, application (Exh-P A) as well as the statement of the complainant reproduced supra are silent about the fact that the time of utterance of derogatory remarks by the appellant who was being addressed. Even it is not given therein that why did he start uttering the said remarks. The witnesses in their statements have not stated that on 07.03.2013, at the given time, the appellant while giving remarks, derogatory in nature, addressed the complainant (PW-2) or the other PWs and similarly , it is not the case that he addressed Tola Masih or Tagga Masih. The prosecution evidence even does not disclose the occasion, context or the discus sion during which, the appellant spoke the words. Whole prosecution case canvassed by the prosecution witne sses is completely quiet in this regard. It is not appealing to a prudent mind that without any reason, the appeallant, to whom insanity is not even alleged, started talking such words at a public place that too in presence of Muslim witnesses in a Muslim country . 14. Per Iftikhar Khan (PW-3) when he reached at the place of occurrence at 06.45 a.m, the conversation was going on. The accused was talking and using the words derogatory in nature. The accused allegedly spoke same words in his presence for four times. This part of his statement is inconsistent with the statement of Shabbir Hussain (PW- 4) who in his examination in chief maintains as under:- ...We have to take the car from the garage where the accused present in the court he was present along with rickshaw and he had gripped the side pipe of the rickshaw . He said that...Then hot words were exchanged between Shahid Imran/complainant and accused..." This statement of PW-4 does not support the statement of PW-3 regarding the continuity of conversation of the appellant. Similarly , PW-3 and PW-4 are not consistent with regard to what exactly happened and what remained their reaction immediately after the utterance of blasphemous words by the appellant. According to Shabbir Hussain (PW-4), then hot words were exchanged between the complainant and the appellant. For better understanding, the same excerpt from his statement is reproduced hereunder: - "...Then hot words were exchanged between Shahid Imran/complainant and accuse d I asked Shahid Imran that who was this person and he said to me that I shall take my car and went to my work. During this period two
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persons namely Shafique and Iftikhar also reached there. Then I went to High Court for my Paishi." (underlining is ours) Being discrepant, PW -3, in his examination in chief, maintains as under: "On this Mohammad Shafique/ PW attacked on Sawan Masih and Tola Masih as well as Tagga Masih present there also restrained the accused not to use such words. We attempted to control Mohammad Shafique who was abusing the accused..." Likewise, in the same context, the statement of PW -2 reads as under:- "At that time two persons namely Tola Masih and Tagga Masih (Amjad Masih) were also present there and they had restrained the accused not to use these words and in reply accused Sawan Masih abused them..."(underlining is ours) The complainant (PW-2) has not stated that the hot words were exchanged between him and the appellant. Similarly , Shabbir Hussain (PW-4) said nothing about the intervention of Tagga Masih and Tola Masih at the relevant time. 15. We have also noticed that regarding the exact presence of Sawan Masih, appellant, the prosecution evidence is not consistent with each other . The complainant (PW-2), in his examination in chief, has not explained as to whether the appellant was sitting inside the Rickshaw or standing outside when he uttered blasphemous words but during his cross-examination, he states that when Sawan Masih, appellant used derogatory words, he was out of the Rickshaw . He, however admits that on 15.03.2013, he got recorded his supplementary statement and in that statement, he mentioned that Sawan Masih was standing near rickshaw . PW-3 while improving his earlier statement, inconsistent with PW-2, in his examination in chief, stated that Sawan Masih, appellant along with Tola Masih and Tagga Masih was present nearby the Rickshaw but when cross-examined by learned defence counsel, available at pages 31 and 32 of the paper-book, he states as under:- "...The statement was recorded by Multan Khan/SP . He read over the same to me Sawan Masih was present outside the rickshaw . It is incorrect to suggest that in my statement before SP/Multan Khan I recorded that Sawan Masih was present inside the rickshaw . Confronted with Ex.DA where it is so recorded..." (underlining is ours) Similarly , the marginal note given under the site plan prepared by the investigation officer Multan Khan S.P. (PW-7) also shows that the accused uttered derogatory remarks while sitting in the Rickshaw . 16. Further perusal of the prosecution evidence also reveals that the place of occurrence is the gate of godown of Bao Saeed which is situated right across the road where the house of the appellant is situated in Joseph Colony inhabited by the Christian community . According to the stance of the complainant (PW-2), in response of his telephone call, the watchman of godown of Bao Saeed, having good relations with the complainant, also reached at the gate when the occurrence took place. Meaning thereby , the watchman was the most…
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