2018 Y L R 389
[Blochistan] Before Jamal Khan Mandokhail and Nazeer Ahmed Langove, JJ
MUJEEB UR REHMAN---Appellant
Versus
The STATE---Respondent
Criminal Jail Appeal No.38 of 2016, decided on 20th September, 2017. (a) Penal Code (XLV of 1860) ---
----S. 295- B---Allegation of defiling, of copy of Holy Quran--- Benefit of doubt ---Prosecution
case was that a cart man was selling Holy Quran in front of the shop of complainant , in the
meantime, the accused came there with demand of tax from said cart man---On refusal, the accused defiled and desecrated the Holy Quran ---Prosecution examined as many as seven
witnesses against the accused including complainant to prove the charge ---Complainant appeared
and reiterated the contents of application on the basis whereof the FIR was registered ---
Remaining witnesses were not eye -witnesses of the incident and furnished only circumstantial
evidence ---Record showed that the cart man, star witness of the incident was not examined by
the prosecution, without any explana tion; in such circumstances, inference could be drawn that
had he been produced, he would have not supported the case of the prosecution---Record transpired that complainant was sole eye -witness against whom the defence had alleged previous
grudge and enmi ty, so reliance thereon, without corroboration from independent source, would
be highly unsafe ---Intention of the guilty person, was to be seen in such cases ---Prosecution was
supposed to produce evidence with high standard of integrity and for unimpeachable source ---In
the present case, the evidence produced by the prosecution was of not of the said standard---Circumstances suggested that there were doubts which were neither illusory nor imaginary but rooted into the stated positions of the prosecution---P revious enmity and personal grudge
existing between the complainant and the accused showed that complainant was highly interested to teach lesson to the accused by involving him in a heinous offence of defiling of the Holy Quran ---No person from the public had come forward to complain against the accused for his
previous involvement in such type of activities, however there was allegation of demanding Bhatha against the accused ---Record showed that accused was a Muslim and his alleged act was
not more than a negligence for which he was entitled to be benefited ---Circumstances established
that prosecution failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside
conviction and sentences recorded by the Trial Court.
2017 PCr.LJ 25 and 2015 MLD 1560 rel.
(b) Criminal trial ---
----Benefit of doubt ---Principle ---If a single doubt was created in the prosecution case, defence
would be entitled to the benefit of said doubt not as a matter of grace and concession but as a
matter of right.
Muhammad Akram v. The State 2009 SCMR 230 and Sher Umer Khan v. Khan Pur alias
Khaney and 2 others PLD 2015 Pesh. 143 rel.
Muhammad Khair Mengal for Appellant.
Ameer Hamza Mengal, Deputy Prosecutor General for the State.
Date of hearing: 22nd August, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Appellant Mujeeb -ur-Rehman son of Noor
Muhammad has sent Criminal Jail Appeal No.38 of 2016 through Superintendent, ,Central
Prison, Ma ch, challenging the validity of judgment dated 28th September, 2016 ("the impugned
judgment"), passed by learned Sessions Judge, Kharan ("the trial Court"), whereby he was convicted and sentenced under Section 295- B of P.P.C., to undergo Imprisonment for l ife.
2. Brief facts of the case are that in pursuance of written report submitted by PW Ghulam
Farooq son of Haji Muhammad Musa, the instant case was registered at Police Station, Kharan on 05.01.2014 under Section 295- B of P.P.C., vide FIR No. 09/2014, wherein he alleged that on
fateful day of incident at about 01:15 PM, a cart man was selling Quran Pak in front of his shop
situated at Kharan City, in the meantime, the accused Mujeeb -ur-Rehman came there with
demand of tax from said cart man, on refusal, t he accused defiled and desecrated the Holy
Quran. Hence this case, and arrest of accused. On completion of usual investigation, challan of the case was submitted and trial commenced. On 05.06.2014 the charge was read over and explained to the accused, to w hich he pleaded not guilty and claimed trial. The prosecution in
order to substantiate its claim, produced seven witnesses. On examination under Section 342, Cr.P.C., the accused disputed the case of prosecution and pleaded his innocence with the averments that he has falsely been involved in a heinous case of defiling the Holy Quran by the
police at the instance of complainant with mala fide intention and ulterior motives, he prayed for his acquittal, however did not opt to record his statement on oath as provided under section 340(2), Cr.P.C, nor produced any witness in his defense.
3. The Trial Court after hearing the parties and evaluating evidence, found the
appellant/accused guilty, as such convicted and sentenced him for the period mentioned hereinabo ve. Hence this Jail Appeal. In this respect Mr. Muhammad Khair Mengal, Advocate is
appointed as counsel for the appellant at state expenses.
4. The learned counsel for the appellant argued that the judgment impugned passed by the
Trial Court is contrary to law, facts and principles of natural justice, because the same is based
on non- reading, misreading and misapplication of the relevant provisions of the law, as such is
not sustainable under the law, and is liable to be reversed. He added that the Trial Court failed to
appreciate and consider the plea of defense, wherein previous enmity and personal grudge
existed between the complainant and the accused was brought on record, in such circumstances recording conviction under section 295- B of P.P.C., and sent enced thereunder was unjust,
improper and against the well known and well settled principles of the law. He added that the learned Trial Court derived conclusion from the facts and evidence, not existed at all, as such
findings based on presumptions and as sumptions, should not have been made basis for such a
heinous offence and harsh sentence thereto. He submitted for acquittal of the accused.
5. The learned DPG strenuously opposed the appeal by submitting that the judgment
impugned passed by the Trial Cour t is based on proper appreciation of evidence available on
record, as such, is not liable to be reversed; that the learned counsel for the appellant failed to
point out any specific illegality, irregularity or non -reading or misreading of evidence in the
judgment impugned warranting interference by this Court, as such the appeal filed by the
appellant being devoid of any merits is liable to be dismissed.
6. We have heard learned counsel for the parties and gone through the record with their
assistance. It appears that a fateful incident occurred on 05.01.2014 at Kharan City with the allegation of defiling pages of the Holy Quran by the accused/ appellant in a derogatory manner, when his demand of Bhatta alleged to have refused by a cart man.
7. Careful perus al of record shows that though the allegation leveled against the appellant
accused is serious in nature, for which punishment provided under the law is also harsh, but proof thereof sine qua non within the four corners of the relevant provisions of the la w is lacking.
We are cognizant of the fact that willful defiling and damage thereof to the Holy Quran is a basic ingredient, willfully means the act of defiling, damaging, desecrating or distorting the original
tax of the Holy Quran or part of it, must be with intention to achieve a nefarious objective contemptuously and showing disrespect to Holy Quran which he has forbidding by law to do. Act of willfully defiling, damaging and desecrating of Holy Quran or part of it, would constitute the offence committe d intentionally, knowingly, purposely and for achieving the detestable
objectives, in absence thereof it cannot be presumed that such intention and mens rea was there, in absence thereof a person charged cannot be held guilty except in very rare and except ional
circumstances.
8. The prosecution examined as many as seven witnesses. PW -1 Ghulam Farooq, is the
complainant, appeared and reiterated the contents of application Ex.P/1- A on the basis whereof
the instant FIR was registered, wherein details of the in cident have been mentioned with the
effect that on 05.01.2014 at about 01:15 pm, the witness was present in his shop, Mohammad Sharif, cart man, selling Holy Quran and other books in front of his shop was also there, the appellant/accused came and demanded tax, on refusal he defiled and desecrated pages of the
Holy Quran, on which people gathered and handed over him to the Police. PW -2 Moulvi
Hidayatullah, is not an eye -witness of this incident, but story of defiling was narrated to him by
the cart man. PW -3 Asadullah, introduced circumstantial views found a gathering in front of
complainant's shop, beating the accused. PW -4 Abdul Salam, also stated the same facts of
gathering and the appellant having been assaulted by the mob. PW -5 Moulvi Azmat Ullah, also
furnished circumstantial evidence and identified the desecrated pages of the Holy Quran produced as articles P -1 to 2. PW -6 Muhammad Qasim, ASI, on receiving information about the
incident rushed to the spot and rescued the appellant/accused from the peopl e gathered there.
PW-7 Abdullah SI, is the Investigating Officer, after registration of the instant case, vide, FIR
Ex.P/7, investigation was entrusted to him, he visited the place of incident, recorded the
statements of witnesses, secured two pages of the Holy Quran, prepared site plan, the accused
was produced before a Medical Board, which opined that he is not suffering from any major
psychotropic illness and is a man of sound mind. On completion of investigation he submitted
the challan.
9. Most importa nt aspect of this case, which surprised us was non examination of
Muhammad Sharif, cart man, the star witness of this incident, which too without any
explanation, therefore, inference can be drawn that had he been produced he would not support the case of the prosecution, in this respect reliance can be placed on 2017 PCr.LJ page 25. Relevant portion therefrom is quoted herein below: --
"The prosecution has withheld its best evidence. Non- production of said witness further
makes the story of prosecution dubious. It is well -settled principle of law that if a best
piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some evil motive behind it in not producing the said evidence".
Unde r Article 129 Qanun- e-Shahadat, 1984, Court may presume existence of certain facts. For
further convenience the above mentioned Article is quoted herein below: --
129. Court may presume existence of certain facts . The Court may presume the
existence of any fact, which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
(g) that evidence which could be and is not produc ed would, if produced, be unfavourable
to the person who withholds it.
10. Remaining sole eye -witness is the complainant, Ghulam Farooq, against whom the
defense alleged to have previous grudge and enmity, so, reliance, thereon, without corroboration from independent source would be highly unsafe.
To further understand, language of Section 295- B of P.P.C. provides that: --
Whoever willfully defiles, damages or desecrates a copy of the Holy Quran or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall
be punishable with imprisonment for life.
11. According to the aforesaid provision, whether any person is guilty of the said offence,
first of all his intention is to be seen. In the offences relating to religion, it is the paramount duty of court to see that such charges are mostly based upon verbal accusations and are capable of bald denial in the event of contest, as such the courts in such like cases must insist for evidence with high standard of integrity and for unim peachable source. Ordinarily a believer is not
expected to offer attempt to his own beliefs and convictions. In such juncture of affairs verbal
denial by the accused should be preferred over verbal accusation of the prosecution. Another
more important reas on for stringent scrutiny of evidence in offences relating to religion is that
Islam provided most effective and meaningful safeguards to an accused facing criminal charge. It is not high standard of proof alone but a court headed by a person of integrity and fearless impartiality who is enjoined to preferably err in acquittal than to err in conviction with the
opinion to acquit nine guilty persons than to convict one innocent. In the instant case the
evidence produced by the prosecution falls much short of the standards referred hereinabove.
There are doubts which are neither illusory nor imaginary rather rooted into the stated positions
of the prosecution. Plea raised by the defense with regard to previous enmity and personal grudge existed between the com plainant and the appellant shows that complainant was highly
interested to teach a lesson to the appellant/accused by involving him in a heinous offence of defiling of the Holy Quran, coupled with the non -production of Mohammad Sharif, cart man, the
star w itness of this case, but this important aspect went unattended by the trial court, which in
our perception caused miscarriage of justice. It is further observed that the prosecution evidence is silent that whether any person from the public had come forwar d to complain against the
appellant for his previous involvement in such type of activities, however as there was allegation of making demands for Bhatha. As per contention of the learned counsel the complainant after joining hands with the Police planned to teach him a lesson. It has come on the record that the appellant is a true Muslim and his alleged act, at the best was not more than a negligence for which in our considered view point he is entitled to be benefited. In this respect reliance can be placed on 2015 MLD P -1560. Relevant observation therefrom is quoted herein below: --
Our religious sensitivities notwithstanding, charges involving alleged contempt to religious beliefs must be scrutinized with utmost care and caution before a guilty verdict is returned thereon, for the reasons that such charges are mostly based upon verbal
accusations and are capable of bald denial in the event of contest. Therefore, in such like cases Court must insist for evidence with high standard of integrity and from an unimpeachable source. Ordinarily, a believer is not expected to offer contempt to his own beliefs and convictions. Verbal denial by the accused should be preferred over verbal accusations of the prosecution. Another more important reason for stringent scrut iny of
evidence in offences relating to religion is that Islam provided most effective and meaningful safeguards to an accused facing criminal charge. It is not high standard of proof alone but a tribunal headed by a person of immaculate integrity and fear less
impartiality who is enjoined to preferably err in acquittal than to err in conviction with the option to acquit nine guilty persons than to convict one innocent. The evidence produced by the prosecution falls much short of the standards referred to above. There are doubts which are neither illusory nor imaginary rather rooted into the stated positions of the prosecution. The appellants were rightly acquitted from the charge of blasphemy.
12. Now it is golden and well recognized principle of law that th e accused is favorite child of
law and is entitled for benefit of even a slightest doubt. Apart from that the defence is not required to create a series of dents and doubts in prosecution case but for giving the benefit of doubt if a single doubt is create d even then the defence is entitled to the benefit of doubt not as a
matter of grace and concession but as a matter of right. Reliance can be placed on the judgment title as Muhammad Akram v. The State reported in 2009 SCMR 230. Relevant observation there from are reproduced herein below: --
"The nutshell of the whole discussion is that the prosecution case is not free from doubt.
It is an axiomatic principle of law that in case of doubt, the benefit thereof must occur in favour of the accused as matter of r ight and not of grace. It was observed by this court in
the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If
there is circumstance which create reasonable doubt in a prudent mind about the guilt of
the accused, then the accused would be entitled to the benefit of doubt not as a matter of
grace and concession but as a matter of right".
Reliance can also be placed on case titled as Sher Umer Khan v. Khan Pur alias Khaney
and 2 others reported in PLD 2015 Peshawar 143 wherein it held as under: --
"It is settled law that the prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the court to draw conclusion: whether the prosecution has succeeded in establishing accusation against the accused or otherwise: and if it comes to the conclusion that the charges so imputed against the a ccused has not been proved
beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that
prosecution is duty bound to prove its case beyond any reasonable doubt and if any single
and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal. Moreover, accused is always consider as th e most favorite child of law and every benefit
of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance can be placed on case titled, "Fariad Ali v. State" 2008 SCMR 1086".
13. In view of what has been discussed hereinabo ve we are inclined to set aside the
impugned judgment dated 28th September, 2016 passed Sessions Judge Kharan, allow this jail appeal and acquit the accused of the charge. As a result the appeal filed by the appellant Mujeeb -
ur-Rehman son of Noor Muhammad is allowed and he is acquitted of the charge by extending
benefit of doubt in his favour, he is in custody he be released forthwith, if not required in any other case.
JK/138/Bal. Bail granted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.