Asia Bibi case: Justice Asif Saeed Khosa's additional note

ISLAMABAD: The Supreme Court Wednesday overturned the conviction of Asia Bibi, a Christian mother facing execution for blasphemy, in a landmark case which has incited deadly violence and reached as far as the Vatican.Bibi appeared to be in state of disbelief after hearing that Pakistan’s Chief Justice Saqib Nisar had quashed her conviction nearly eight years after she was first sentenced to death."I can't believe what I am hearing, will I go out now? Will they let me out, really?" Bibi told AFP by phone from prison after the ruling."I just don't know what to say, I am very happy, I can't believe it."Demonstrations broke out in major cities across the country following the verdict, with approximately a thousand club-wielding demonstrators blocking Islamabad’s main highway as several roads in the port city of Karachi were barricaded by protesters sparking chaotic traffic jams.Justice Asif Saeed Khosa also penned down an additional note on the verdict, which is being reproduced here: Asif Saeed Khan Khosa, J.: I have had the privilege of perusing the proposed judgment authored by my lord the Hon’ble Chief Justice and I agree with the reasons recorded and the conclusions reached therein. However, because of some important legal and factual issues involved in the case I have decided to record this separate concurring opinion. 2. Mst. Asia Bibi appellant had allegedly made some derogatory remarks against the Holy Prophet Muhammad (Peace Be Upon Him) and the Holy Qur’an on 14.06.2009 in the presence of some of her Muslim female co-workers while plucking Falsa (a kind of berry also known as grewia asiatica) in the field of one Muhammad Idrees in village Ittanwali in the area of Police Station Sadar, Nankana Sahib and for that alleged commission of the offence of blasphemy under section 295-C of the Pakistan Penal Code, 1860 (P.P.C.) she was booked in case FIR No. 326 registered at the said Police Station on 19.06.2009 at the instance of Qari Muhammad Salaam complainant, an Imam of the local mosque. It was alleged that the appellant had stated something to the effect that the Holy Prophet Muhammad (Peace Be Upon Him) had fallen ill and was bedridden for one month before his death, insects had emerged from his mouth and ear, he had got married to Hazrat Khadija (May Almighty Allah Be Pleased With Her) with the intention to loot her wealth and after looting her wealth he had discarded her. It was also alleged that on the same occasion the appellant had also uttered words to the effect that the Holy Qur’an was not a book of God and it was not a divine book but a self-made book. The appellant was arrested by the local police on 19.06.2009 soon after registration of the FIR and upon completion of the investigation a Challan was submitted before the trial court recommending her trial. The trial court framed a Charge against the appellant for an offence under section 295-C, P.P.C. to which she pleaded not guilty and claimed a trial. During the trial the prosecution produced seven witnesses in support of its case against the appellant and produced some documents and statement of a Court Witness was also recorded by the trial court. In her statement recorded under section 342 of the Code of Criminal Procedure, 1898 (Cr.P.C.) the appellant denied and controverted all the allegations of fact leveled against her by the prosecution and professed her innocence. She opted not to make a statement on oath under section 340(2), Cr.P.C. and did not produce any evidence in her defence. Upon completion of the trial and after hearing of arguments of the learned counsel for the parties the learned Additional Sessions Judge, Nankana Sahib trying the case convicted the appellant for the offence under section 295-C, P.P.C. vide judgment dated 08.11.2010 and sentenced her to death and to pay a fine of Rs. 1,00,000/-or in default of payment thereof to undergo simple imprisonment for a period of six months. The appellant challenged her conviction and sentence before the Lahore High Court, Lahore through Criminal Appeal No. 2509 of 2010 which was heard by a learned Division Bench of the said Court along with Murder Reference No. 614 of 2010 seeking confirmation of the sentence of death passed by the trial court against the appellant and vide judgment dated 16.10.2014 the appellant’s appeal was dismissed, her conviction and sentence recorded by the trial court were upheld and confirmed and the Murder Reference was answered in the affirmative. Hence, the present appeal by leave of this Court granted on 22.07.2015. 3. Leave to appeal had been granted by this Court in order to reappraise the evidence and we have undertaken that exercise by perusing the record of the case from cover to cover with the assistance of the learned counsel for the parties. We have also carefully heard and considered the arguments advanced by the learned counsel for the parties. 4. It has been argued by the learned counsel for the appellant that an FIR in respect of the alleged occurrence had been lodged by Qari Muhammad Salaam complainant (PW1) with a delay of five days and it had been admitted by the complainant before the trial court that before lodging of the FIR deliberations had taken place amongst the members of the complainant party which delay and deliberations had denuded the FIR of its evidentiary value, as held by this Court in the case of Iftikhar Hussain and others v The State (2004 SCMR 1185). He has also argued that the prosecution witnesses had differed with each other over the place where the FIR had been lodged and the Advocate who had drafted the application for registration of the FIR had never been named. He has further argued that two independent prosecution witnesses had confirmed that a quarrel had taken place between the appellant and the ladies belonging to the complainant party before the offending words had allegedly been uttered by the appellant but the prosecution witnesses belonging to the interested complainant party had completely suppressed such an important fact. It has also been argued by him that no independent corroboration was available confirming the allegations leveled against the appellant by the crucial prosecution witnesses appearing before the trial court, i.e. Mafia Bibi (PW2) and Asma Bibi (PW3). According to him the investigation of this case was conducted by an officer who was not competent to investigate this case as required by section 156-A, Cr.P.C. and in support of this contention he has relied upon the cases of Shaukat Ali v The State and others (2008 SCMR 553), Amjad Farooq and another v The State (2007 P.Cr.L.J. 238) and Malik Muhammad Mumtaz Qadri v The State and others (PLD 2016 SC 17). He has also submitted that it was alleged in the FIR that the appellant was a preacher of Christian faith which formed the motive in this case but no such assertion was made before the trial court by any prosecution witness during the trial. He has pointed out that none of the other female co-workers of the appellant working in the same field of Falsa was produced by the prosecution in support of its case against the appellant and, thus, the best evidence had been withheld by the prosecution and on account of such failure of the prosecution an adverse inference is to be drawn against it. With these arguments the learned counsel for the appellant has maintained that the case of the prosecution against the appellant was full of serious doubts and the benefit of such doubts ought to be extended to her. 5. As against that the learned Additional Prosecutor-General, Punjab appearing for the State has maintained that investigation of a case by a police officer not competent to investigate such case does not vitiate the investigation and in support of this argument he has referred to the provisions of section 156(2), Cr.P.C. He has submitted that the statements made before the trial court by Mafia Bibi (PW2) and Asma Bibi (PW3) were quite consistent and their statements had found sufficient support from the statements made by Muhammad Idrees (CW1) and Muhammad Amin Bukhari, SP (Investigation) (PW6). It has, thus, been maintained by him that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt. 6. While opposing this appeal and supporting the appellant’s conviction and sentence recorded and upheld by the courts below the learned counsel for the complainant has argued that delay in lodging of an FIR is not always fatal to a criminal case and in the present case the delay stood sufficiently explained by the prosecution. He has relied in this regard upon the cases of Zar Bahadar v The State (1978 SCMR 136) and Sheraz Asghar v The State (1995 SCMR 1365). He has also argued that both the courts below had concurred in their findings and had found the appellant guilty as charged and such concurrent findings of the courts below are not be interfered with lightly. He has pointed out that in her statement recorded under section 342, Cr.P.C. the appellant had not disputed her presence in the relevant field of Falsa at the date and time of occurrence and she had also admitted having some verbal interaction with her female co-workers, including Mafia Bibi (PW2) and Asma Bibi (PW3), on that occasion and no suggestion was made to those witnesses during their cross-examination that the allegations leveled by them regarding commission of blasphemy by the appellant were incorrect. According to the learned counsel for the complainant an assertion of fact by a witness is deemed to have been admitted by the opposite party if the witness is not controverted regarding such assertion through a suggestion during his cross-examination. He has also submitted that the appellant had made multiple extra-judicial confessions about her guilt before different prosecution witnesses who had consistently deposed about the same before the trial court. In the end he has argued that the prosecution witnesses had no ostensible reason to falsely implicate the appellant in a case of this nature, their consistent statements had inspired confidence of the courts below and, therefore, the appellant’s conviction and sentence recorded and upheld by the courts below do not warrant any interference by this Court.7. After hearing the learned counsel for the parties and going through the record of the case with their assistance I have observed that the prosecution had produced seven witnesses in support of its case against the appellant. Qari Muhammad Salaam complainant had appeared before the trial court as PW1 and had deposed about having been informed about the incident by three ladies, holding of a public gathering on 19.06.2009 wherein the appellant had allegedly confessed her guilt and had asked for forgiveness and lodging of the FIR by him on 19.06.2009. Mafia Bibi (PW2) had deposed about the incident taking place in the field of Falsa on 14.06.2009, informing the complainant about that incident and holding of a public gathering on 19.06.2009 wherein the appellant had allegedly made a confession and had sought pardon. Asma Bibi (PW3) had also made a statement regarding the same events which were stated by Mafia Bibi (PW2). Muhammad Afzal (PW4) had stated about having been informed by Qari Muhammad Salaam complainant (PW1), Mafia Bibi (PW2) and Asma Bibi (PW3) about the blasphemy allegedly committed by the appellant and holding of a public gathering on 19.06.2009 wherein the appellant had allegedly admitted her guilt and had sought forgiveness. Muhammad Rizwan, SI (PW5) had recorded the formal FIR at the Police Station. Muhammad Amin Bukhari, SP (Investigation) had appeared as PW6 and had stated about the investigation of this case conducted by him. Muhammad Arshad, SI (PW7) was the initial investigating officer of this case and he had stated about inspecting the place of occurrence on 19.06.2009, recording of statements of witnesses, arresting the appellant, obtaining her judicial remand from a Magistrate and sending her to the judicial lock-up. Some documents were also produced by the prosecution before the trial court in support of its case. The trial court summoned and recorded the statement of Muhammad Idrees as CW1 who claimed to be the owner of the Falsa field wherein the occurrence had allegedly taken place and he also stated about the appellant confessing her guilt before him on 14.06.2009, the complainant being informed about the incident, holding of a public gathering on 19.06.2009 and the appellant allegedly confessing her guilt before that gathering and also before the investigating officer on that day. In her statement recorded under section 342, Cr.P.C. while answering a question as to why the present case was registered against her and as to why the prosecution witnesses had deposed against her the appellant had stated as follows: “I am married woman having two daughters. My husband is a poor labourer. I used to pluck Falsa from the plants of Muhammad Idrees along with number of ladies on the daily wages basis. On the alleged day of occurrence, I along with number of ladies were working in the fields. Both the ladies Mst. Mafia Bibi and Mst. Asma Bibi PWs quarreled with me over fetching water which was offered by me to bring for them but they refused saying that since I am Christian, so, they never took water from the hand of Christian. Over this, quarrel was insued and some hot words were exchanged between myself and the PWs ladies. The PWs then approached Qari Salaam complainant through his wife who remained teaching the both ladies, hence, the PWs were conspiring with Qari Salaam got a false, fabricated and fictitious case against me. I offered my oath to police on Bible that I had never passed such derogatory and shameful remarks against the Holy Prophet (PBUH) and the Holy Quran. I have great respect and honour to the Holy Prophet (PBUH) as well Holy Quran and since police had conspired with the complainant, so, the police has falsely booked me in this case. The PWs are real sisters and interested to falsely involve me in this case as they felt disgrace and dishonor on the basis of altercation and hard words extended to them. Qari Salaam complainant is also interested person and both the ladies remained teaching Holy Quran from his wife. My forefathers are living in this village since creation of Pakistan. I am also about 40 years old and since the alleged occurrence, no complaint likewise this never exist against me. I am uneducated and no priest of Christian. So much so there is no church of the Christian in the village, so, being ignorant of any Islamic thought, how can I use such clumsy and derogatory remarks against the beloved Prophet (PBUH) of Allah and the Divine book viz Holy Quran. PW Idrees is also a interested witness who has close family links with their above said ladies.” The appellant had opted not to make a statement on oath under section 340(2), Cr.P.C. and had not produced any evidence in her defence. 8. I now proceed to evaluate every piece of evidence produced by the prosecution in the sequence of events statedly unfolding in this case.9. Mafia Bibi (PW2) and Asma Bibi (PW3) were produced by the prosecution as witnesses of the incident allegedly taking place in the field of Falsa on 14.06.2009. The said ladies were young girls and sisters inter se and were semi-literate who had statedly received some elementary religious education in their village from the wife of Qari Muhammad Salaam complainant (PW1). Those ladies had never stated as to who was addressed by the appellant at the time of uttering the derogatory remarks, they had never disclosed in whose field of Falsa the alleged incident had taken place and they had not themselves lodged any report about the same with the local police. It is of critical importance to mention here that the senior investigating officer of this case namely Muhammad Amin Bukhari, SP (Investigation) (PW6) as well as the owner of the relevant field of Falsa namely Muhammad Idrees (CW1) had categorically stated before the trial court that the derogatory words were uttered by the appellant when there was a religious discussion between the appellant and her Muslim co-workers in the field of Falsa after Mafia Bibi (PW2), Asma Bibi (PW3) and other Muslim co-workers had stated that they would not drink water from the hands of the appellant who was a Christian by faith. According to the said witnesses it was on the basis of the said stance of the appellant’s Muslim co-workers that a “quarrel” had taken place and during the said quarrel the appellant had uttered the derogatory words against the Holy Prophet Muhammad (Peace Be Upon Him) and the Holy Qur’an. This shows that, according to the prosecution itself, the appellant had uttered the derogatory words attributed to her after the appellant’s religion was insulted and her religious sensibilities had been injured by her Muslim co-workers including Mafia Bibi (PW2) and Asma Bibi (PW3). It is unfortunate that in the FIR lodged by Qari Muhammad Salaam complainant (PW1) and in their statements made before the police under section 161, Cr.P.C. no mention was made by Qari Muhammad Salaam complainant (PW1), Mafia Bibi (PW2) and Asma Bibi (PW3) regarding any such verbal exchange or quarrel. It is also disturbing to note that both Mafia Bibi (PW2) and Asma Bibi (PW3) had completely suppressed this factual aspect of the case in their examinations-in-chief before the trial court and when it was suggested to them by the defence during their cross-examination they simply denied any such verbal exchange and the ensuing quarrel. It is, thus, obvious that both Mafia Bibi (PW2) and Asma Bibi (PW3) had no regard for the truth and they were capable of deposing falsely and also that the said semi-literate young sisters had a reason to level allegations against the appellant which could be untrue. I propose to comment on this aspect of the case from another angle as well in the later part of this opinion. 10. Muhammad Idrees had appeared before the trial court as CW1 and he had not been produced by the prosecution but was summoned by the trial court as a Court Witness. He claimed that he was the owner of the relevant field of Falsa, he had gone to his field of Falsa on 14.06.2009 and he was informed by Mafia Bibi (PW2) and Asma Bibi (PW3) at the spot about an altercation taking place between those ladies and the appellant whereafter the appellant had made a confession before him and had sought pardon. Muhammad Arshad, SI (PW7) had stated that the place of occurrence was the field of Falsa belonging to Muhammad Idrees (CW1) and Muhammad Amin Bukhari, SP (Investigation) (PW6) had stated that Muhammad Idrees (CW1) was attracted to the field and the ladies had narrated the matter to him whereafter he inquired from the appellant who confessed before him. I have, however, found that the story about Muhammad Idrees (CW1) being attracted to the spot, being apprised of the incident by Mafia Bibi (PW2) and Asma Bibi (PW3) and the appellant confessing before him and seeking pardon was a story which was completely new and in their depositions Mafia Bibi (PW2), Asma Bibi (PW3), Qari Muhammad Salaam complainant (PW1) and Muhammad Afzal (PW4) had not stated anything at all about Muhammad Idrees (CW1) coming to the spot, being apprised of the incident by Mafia Bibi (PW2) and Asma Bibi (PW3) and the appellant confessing before him and seeking pardon! It appears that Muhammad Idrees (CW1) was introduced in this case at some later stage by way of an afterthought. He had not joined the initial investigation of this case conducted by Muhammad Arshad, SI (PW7) and had not made any statement before him. It was the subsequent investigating officer namely Muhammad Amin Bukhari, SP (Investigation) (PW6) who had claimed that Muhammad Idrees (CW1) had appeared before him on 04.07.2009, i.e. after 20 days of the alleged occurrence and after 15 days of registration of the FIR. Such belated surfacing of the said witness was quite suspicious and in all likelihood he had been planted in this case at some subsequent stage. Apart from that the confession allegedly made by the appellant before Muhammad Idrees (CW1) was not put to the appellant at the time of recording of her statement under section 342, Cr.P.C. and the law is settled that a piece of evidence or a circumstance not put to the accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be used or considered against him. The statement made by Muhammad Idrees (CW1) before the trial court is, therefore, to be kept completely out of consideration. 11. The next development allegedly taking place in this case was that Qari Muhammad Salaam complainant (PW1) was informed about the incident but the evidence brought on the record about that development was also not free from doubt. In the FIR lodged by him the complainant had stated that Mafia Bibi (PW2), Asma Bibi (PW3), Yasmin Bibi and some others had informed him and other people of the village about the incident but in the FIR he had not divulged as to when he was informed about the incident. In his examination-in-chief before the trial court the complainant had stated that he was informed by Mafia Bibi (PW2), Asma Bibi (PW3) and Yasmin Bibi on 14.06.2009 and on that occasion Muhammad Afzal (PW4) and Muhammad Mukhtar Ahmad were also present with him whose presence with him had not been mentioned by him in the FIR. In his cross-examination the complainant had changed his stance and had stated that he was informed about the occurrence on 16.06.2009 (not on 14.06.2009 as stated by him in his examination-in¬chief).12. According to the prosecution the next person informed about the alleged incident was Muhammad Afzal (PW4) but where was he contacted for the purpose was also in doubt. Qari Muhammad Salaam complainant (PW1) had stated before the trial court that on 14.06.2009 Mafia Bibi (PW2), Asma Bibi (PW3) and Yasmin Bibi came to him and informed him about the incident and on that occasion Muhammad Afzal (PW4) and Muhammad Mukhtar Ahmad were also present with him. However, Muhammad Afzal (PW4) had maintained before the trial court that on 14.06.2009 Qari Muhammad Salaam complainant (PW1), Mafia Bibi (PW2), Asma Bibi (PW3), Yasmin Bibi and Muhammad Mukhtar Ahmad came to his house and narrated the occurrence to him. 13. According to the record of the case some steps had been taken by the complainant party before reporting the matter to the police but the ambivalence surrounding taking of such steps was quite noticeable. The alleged occurrence had taken place on 14.06.2009 and the matter was reported to the police on 19.06.2009, i.e. after five days. Qari Muhammad Salaam complainant (PW1) had initially stated before the trial court that he had been informed about the incident on 14.06.2009 but during the same testimony he had also stated that he had been apprised of the occurrence on 16.06.2009. He had stated before the trial court that between 16.06.2009 and 19.06.2009 he and the people of the village had “investigated and consulted and peeped into the matter” and the matter was reported to the police when they had felt satisfied about correctness of the allegations leveled against the appellant. Muhammad Idrees (CW1) had also stated that Qari Muhammad Salaam complainant (PW1) had verified the facts from him. It has pertinently been noticed by us that no detail of any such investigation, consultation or peeping into the matter by the complainant party or of verification by the complainant had been divulged before the trial court nor any evidence had been produced in that regard. 14. The next development allegedly taking place in this case was a public gathering convened and held on 19.06.2009 wherein the appellant was summoned and she had statedly made a confession and had sought pardon. I have found that the evidence produced by the prosecution in respect of the said public gathering and about what transpired therein was not only an afterthought but was nothing short of concoction incarnate. The said public gathering was allegedly held at about Noon on 19.06.2009 and an FIR in respect of the alleged commission of blasphemy by the appellant had been lodged by Qari Muhammad Salaam complainant (PW1) with the local police at 05.45 P.M. on the same day, i.e. 19.06.2009 but it is quite intriguing to note that in the FIR so lodged no mention whatsoever had been made to any public gathering convened or held earlier on the same day or to summoning of the appellant in any such public gathering, making of a confession by her and seeking pardon by her therein! All that was mentioned in the FIR was that on 19.06.2009 Qari Muhammad Salaam complainant (PW1), Muhammad Afzal (PW4) and Mukhtar Ahmad had summoned Asma Bibi (PW3), etc. and when the appellant was asked about the incident taking place on 14.06.2009 she confessed and sought pardon. After lodging and registration of the FIR the initial investigating officer namely Muhammad Arshad, SI (PW7) had recorded the statements of Mafia Bibi (PW2), Asma Bibi (PW3) and Muhammad Afzal (PW4) under section 161, Cr.P.C. (Exhibits-DA, DB and DC respectively) on that very day and in those statements the said witnesses had also failed to mention anything about any public gathering convened and held on the same day, summoning of the appellant in such gathering, making of a confession by the appellant or seeking pardon by her therein! 15. The witnesses produced by the prosecution before the trial court in order to prove the convening and holding of the so-called public gathering on 19.06.2009 and summoning of the appellant to that gathering, making of a confession by her and seeking pardon by her therein were Qari Muhammad Salaam complainant (PW1) and Muhammad Afzal (PW4). The statements made by the said witnesses have, however, been found by me to be mutually contradictory besides having been contradicted by the remaining record of the case. Qari Muhammad Salaam complainant (PW1) had stated that a public gathering was called in the village on 19.06.2009 but he had failed to mention the time or specific place of its holding. He claimed that in that gathering the appellant had confessed her guilt before him. He had conceded that convening and holding of any public gathering on 19.06.2009 had not been mentioned by him in the FIR (Exhibit-PA) lodged by him later on the same day. He had maintained that in the public gathering the appellant had narrated the occurrence to him and then Mafia Bibi (PW2) and Yasmin Bibi had narrated the occurrence but in her statement made before the trial court Mafia Bibi (PW2) had not said anything about her presence in the public gathering and Yasmin Bibi was not produced by the prosecution before the trial and she had been given up as unnecessary. Although Mafia Bibi (PW2) had stated about a public gathering in her statement made before the trial court yet she had never claimed to be present in any such gathering and, thus, her statement in that regard was nothing but hearsay. She had stated that the public gathering was held after four days of the alleged occurrence which meant that either the public gathering was held on 18.06.2009 and not on 19.06.2009 or the alleged occurrence had taken place on 15.06.2009 and not on 14.06.2009. I have already mentioned above that in her statement made before the police under section 161, Cr.P.C. Mafia Bibi (PW2) had said nothing about any public gathering at all and she was duly confronted with that earlier statement. In her statement made before the trial court Asma Bibi (PW3) had stated about holding of a public gathering but she had failed to mention any date, time or place of holding of such gathering. In her examination-in-chief she had never claimed to be present in the public gathering but in her cross-examination she had stated that she and others had gone to attend the public gathering on their own. It has already been mentioned by me above that in her statement made before the police under section 161, Cr.P.C. Asma Bibi (PW3) had also said nothing about any public gathering at all and she was duly confronted with that earlier statement. Muhammad Afzal (PW4) had stated before the trial court about his presence in the public gathering and about summoning of the appellant to that gathering, making of confession by her in that gathering and her seeking pardon but he was confronted with his earlier statement made before the police under section 161, Cr.P.C. wherein he had said nothing at all about any such public gathering, summoning of the appellant to that gathering, making of confession by the appellant in that gathering and her seeking pardon. Muhammad Idrees (CW1) had also stated before the trial court about the public gathering convened and held on 19.06.2009 and also about what transpired therein but he had admitted in black and white that he was not present in that gathering and he was told about the same by some other persons. His statement about the public gathering and whatever transpired therein was, thus, hit by the rule against hearsay evidence. It may, however, be pointed out that the said witness had maintained that the public gathering was held after two or three days of the alleged occurrence and not after five days as asserted by some other witnesses. 16. Apart from what has been discussed above the evidence produced by the prosecution about where the public gathering had been held, how many people had participated in that gathering, who had brought the appellant to the gathering, how the appellant was brought to the gathering and the time consumed in the meeting has been found by me to be replete with glaring contradictions exposing complete falsity of the said part of the prosecution’s story. As regards the place of holding the public gathering Qari Muhammad Salaam complainant (PW1) had stated that the public gathering was held in the house of Muhammad Mukhtar Ahmad who was not produced by the prosecution and was given up as unnecessary. He had also stated that the total area of the house of the said Muhammad Mukhtar Ahmad was 5 Marlas. Mafia Bibi (PW2) had stated that the public gathering was held in the house of her father namely Abdul Sattar wherein she and her sister namely Asma Bibi (PW3) also resided. Asma Bibi (PW3) had stated in one breath that the public gathering was held in her house but in the other breath she had stated that the public gathering was held in the house of her neighbour namely Rana Razzaq. Muhammad Afzal (PW4) had maintained that the public gathering was held in the house of Muhammad Mukhtar Ahmad who had not been produced by the prosecution and had been given up as unnecessary. According to Muhammad Idrees (CW1) the public gathering was held at the Dera of Haji Ali Ahmad and not at any other place. The number of persons who had participated in the said public gathering was stated by Qari Muhammad Salaam complainant (PW1) to be about 100, Mafia Bibi (PW2) had given that figure as more than 1000 including many Ulema and Imams of mosques, according to Asma Bibi (PW3) the number of participants was about 2000 including people of nearby villages and according to Muhammad Afzal (PW4) more than 200/250 people were present in that gathering. Muhammad Idrees (CW1) had stated that many religious scholars were also present in the gathering but he did not know the names of the religious scholars who had participated. If, as stated by Qari Muhammad Salaam complainant (PW1), the total area of the house wherein the public gathering had been held was only 5 Marlas then hundreds or thousands of people could not conceivably fit into that very small house. The evidence produced by the prosecution regarding bringing the appellant to the public gathering was equally discrepant and utterly unreliable. According to Qari Muhammad Salaam complainant (PW1) some residents of the village including one Mudassir had gone on two motorcycles to the house of the appellant and had brought her with them to the public gathering. The said Mudassir was not produced by the prosecution as a witness. Asma Bibi (PW3) had stated that the house of the appellant was situated only three houses away from the place where the public gathering was held and that the appellant was brought there on foot and she also went back on foot. Muhammad Afzal (PW4) had stated that the house of the appellant was situated 200/250 yards away from the house wherein the public gathering had been held and it was one Mushtaq Ahmad who had brought the appellant to the gathering. Later on during the same statement the said witness had maintained that Mushtaq Ahmad had brought the appellant from the field of Falsa. Muhammad Idrees (CW1) had stated that the appellant’s house was situated in front of the Dera whereat the public gathering was held. According to Mafia Bibi (PW2) and Asma Bibi (PW3) the public gathering lasted for about 15/20 minutes but Muhammad Afzal (PW4) had deposed that the gathering had continued for two to two and a half hours. There was a general consensus among the prosecution witnesses that the public gathering was held on a Friday and it had commenced its proceedings around Noon time. If the proceedings had continued for two to two and a half hours then the participants of the gathering, including some religious scholars and Imams of mosques, might have missed their Friday prayers which was not expected of them!17. According to the prosecution after the public gathering was over Qari Muhammad Salaam complainant (PW1) had lodged an FIR with the local police on the same day, i.e. 19.06.2009. The circumstances in which the complainant had lodged the FIR were also not free from serious doubts. The original FIR (Exhibit-PA) was in the shape of a written application which had statedly been drafted by an Advocate. The record of this case is completely silent about availability of an Advocate in the village of the parties and nobody had stated anything about the complainant going to any city so as to contact an Advocate and to get an FIR drafted by him. As a matter of fact the complainant had stated before the trial court that he did not even remember the name of the Advocate who had drafted the FIR. The application Exhibit-PA showed that the same was presented by the complainant before Mehdi Hassan, ASI at Pull Nehar Chandarkot (bridge over Chandarkot canal) at 05.45 P.M. on 19.06.2009 when the complainant had met that police officer there while on his way to the Police Station. Qari Muhammad Salaam complainant (PW1) had, however, stated before the trial court that the application Exhibit-PA was delivered to the Station House Officer of the concerned Police Station which was factually incorrect and was belied by the document Exhibit-PA itself. Muhammad Rizwan, SI (PW5) had stated in black and white that on 19.06.2009 the complainant had presented the complaint Exhibit-PA before him at the Police Station and he had then chalked out the formal FIR (Exhibit-PA/1). Even Question No. 6 put to the appellant at the time of recording of her statement under section 342, Cr.P.C. was about the complainant presenting the application Exhibit-PA at the Police Station which was against the record. It was suggested to the complainant by the defence during his cross-examination that the application Exhibit-PA was presented by him before Mehdi Hassan, ASI at Pull Nehar Chandarkot and not at the Police Station but the complainant had categorically denied that suggestion and had maintained that it was incorrect to suggest that the application Exhibit-PA was not presented by him at the Police Station. The complainant had lied in that regard because it had been recorded by Mehdi Hassan, ASI at the bottom of the application Exhibit-PA that the said application had been presented by the complainant before him at 05.45 P.M. on 19.06.2009 at Pull Nehar Chandarkot. This lie told by the complainant could have further been exposed by Mehdi Hassan, ASI but for some undisclosed reason the said police officer was not produced by the prosecution before the trial court. It is quite strange and out of the ordinary that Qari Muhammad Salaam complainant (PW1), the initiator of this criminal case, did not remember who had drafted the application Exhibit-PA for the purpose of lodging the FIR and he did not even know where and before whom the said application had been presented by him for the purpose of getting an FIR registered. It, thus, appears that something else was happening behind the scene and the actual movers of the present criminal case were some others who had never come to the fore. Apart from that the FIR had been lodged in this case by Qari Muhammad Salaam complainant (PW1) who was not present in the incident allegedly taking place in the field of Falsa on 14.06.2009 and who had not himself heard any derogatory remark attributed to the appellant. The FIR lodged by him had not even disclosed as to which female co-worker was being addressed by the appellant when she had allegedly uttered the offending words on the relevant occasion. An FIR lodged with a noticeable delay and after consultations and deliberations loses its credibility and in the present case the FIR had been lodged with an unexplained delay of five days and the complainant had admitted before the trial court that the FIR had been lodged after he and the people of the village had “investigated”, “consulted” and “peeped into the matter”. The complainant and the FIR lodged by him, thus, were not worthy of much credit. 18. The investigation conducted in this case by the police after registration of the FIR had also left much to be desired. Qari Muhammad Salaam complainant (PW1) had admitted before the trial court that no permission was obtained from the District Coordination Officer or the District Police Officer, etc. for lodging or registration of an FIR in respect of the offence of blasphemy. The initial investigation of this case was conducted by a Sub-Inspector of Police, i.e. Muhammad Arshad, SI (PW7) which was a violation of section 156-A, Cr.P.C. according to which investigation of such a case could be conducted by an officer not below the rank of Superintendent of Police. After lodging of the FIR it was Muhammad Arshad, SI (PW7) who was entrusted the investigation of the case and it was he who had gone to the place of occurrence, had recorded statements of the witnesses under section 161, Cr.P.C. and had arrested the appellant on the same day, i.e. 19.06.2009. Muhammad Amin Bukhari, SP (Investigation) had appeared before the trial court as PW6 and had claimed to have conducted the subsequent investigation of this case after the Deputy Inspector-General of Police/Regional Police Officer, Range Sheikhupura had entrusted the investigation of the case to him on 24.06.2009. That statement of PW6 was factually incorrect because the relevant letter of the Deputy Inspector-General of Police/Regional Police Officer, Range Sheikhupura was dated 26.06.2009 as was evident from the statement of PW6 himself. The said officer had never visited the place of occurrence and had not recorded the statements of witnesses himself. Even the circumstances in which the appellant had been arrested in connection with this case were quite doubtful. Muhammad Arshad, SI (PW7) had stated before the trial court that the appellant had been arrested by him on 19.06.2009 from the appellant’s house. Muhammad Idrees (CW1), however, had a different story to tell in that regard and according to him the religious scholars present in the public gathering had handed over the appellant to the police and the appellant had been arrested at the Dera of Haji Ali Ahmad where the public gathering was held. 19. The argument of the learned counsel for the complainant that some factual assertions made by the prosecution witnesses were deemed to have been admitted by the defence because the prosecution witnesses were not cross-examined regarding those assertions and no suggestion was put to them regarding incorrectness of such assertions has been found by me to be misconceived. In the case of Nadeem Ramzan v The State (2018 SCMR 149) this Court had clarified while referring to the earlier cases of S. Mahmood Alam Shah v The State (PLD 1987 SC 250) and State v Rab Nawaz and another (PLD 1974 SC 87) that “the principle that a fact would be deemed to be proved if the witness stating such fact had not been cross-examined regarding the same was a principle applicable to civil cases and not to criminal cases. It was held that a criminal case is to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him.” 20. The glaring and stark contradictions in the evidence produced by the prosecution in respect of every factual aspect of this case, noticed by me above, lead to an irresistible and unfortunate impression that all those concerned in the case with providing evidence and conducting investigation had taken upon themselves not to speak the truth or at least not to divulge the whole truth. It is equally disturbing to note that the courts below had also, conveniently or otherwise, failed to advert to such contradictions and some downright falsehood. All concerned would have certainly done better if they had paid heed to what Almighty Allah has ordained in the Holy Qur’an: “O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just, that is nearer to righteousness. And fear Allah; indeed, Allah is acquainted with what you do.” (Surah Al-Ma’idah: verse 8) “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.” (Surah An-Nisa: verse 135) 21. There are indications available on the record that something had transpired between the appellant, a Christian by faith, and her Muslim co¬workers in the field of Falsa on the fateful day and it was in the background of that something that the present allegation regarding commission of blasphemy had belatedly been leveled against the appellant after deliberations spanning over five long days. It is unfortunate that all the four private witnesses produced by the complainant party, i.e. Qari Muhammad Salaam complainant (PW1), Mafia Bibi (PW2), Asma Bibi (PW3) and Muhammad Afzal (PW4) had remained completely silent about that something and it were the Court Witness namely Muhammad Idrees (CW1) and the senior investigating officer namely Muhammad Amin Bukhari, SP (Investigation) (PW6) who had spilled the beans in that regard and had shown that the boot might in fact be on the other leg! According to the statement made by Muhammad Idrees (CW1) before the trial court he had come to know that before the offending words were allegedly uttered by the appellant a quarrel had taken place between the appellant and the other female co-workers over an issue of fetching water to drink. Elaborating the said quarrel the said witness, owner of the relevant field of Falsa, had disclosed that while working together in that field on the relevant occasion the worker ladies wanted to drink water and the appellant was requested to fetch water but Mafia Bibi (PW2) and Asma Bibi (PW3) said that they would not drink water from the hands of the appellant because she was a Christian. Muhammad Amin Bukhari, SP (Investigation) (PW6) had stated before the trial court that it came to his knowledge during the investigation that during a religious discussion between the ladies working together in the field of Falsa on the fateful day a Muslim lady asked for water but when the appellant offered her water the Muslim lady refused to have/drink it from the hand of a Christian lady. He had also confirmed that in his statement recorded under section 161, Cr.P.C. Muhammad Idrees (CW1) had stated that a quarrel had taken place between the appellant and the ladies appearing as prosecution witnesses on the issue of drinking water. The record shows, and it is sad to note, that when taking place of such a quarrel between the appellant and Asma Bibi (PW3) on the issue of drinking water was suggested to the latter by the defence during her cross-examination she had denied that suggestion. The denial of that suggestion by Asma Bibi (PW3) has, however, failed to surprise me because in the FIR, in their statements recorded by the police under section 161, Cr.P.C. as well as in their statements made before the trial court all the private witnesses belonging to the complainant party, i.e. Qari Muhammad Salaam complainant (PW1), Mafia Bibi (PW2), Asma Bibi (PW3) and Muhammad Afzal (PW4) had maintained complete silence over this factual aspect of the case and this fact had come to light only through the statements of a Court Witness and an investigating officer who were both independent witnesses. 22. The above mentioned suppression of a critical fact by the members of the complainant party in fact holds the key to a just, fair and correct decision of the present case. The record of the case shows that the appellant and her forefathers had been living in the same village since before the creation of Pakistan in the year 1947 and during all this while no such incident or quarrel over religions of the parties had ever taken place. It may be advantageous to read again what the appellant had stated in her statement recorded under section 342, Cr.P.C.: “I am married woman having two daughters. My husband is a poor labourer. I used to pluck Falsa from the plants of Muhammad Idrees along with number of ladies on the daily wages basis. On the alleged day of occurrence, I along with number of ladies were working in the fields. Both the ladies Mst. Mafia Bibi and Mst. Asma Bibi PWs quarreled with me over fetching water which was offered by me to bring for them but they refused saying that since I am Christian, so, they never took water from the hand of Christian. Over this, quarrel was insued and some hot words were exchanged between myself and the PWs ladies. The PWs then approached Qari Salaam complainant through his wife who remained teaching the both ladies, hence, the PWs were conspiring with Qari Salaam got a false, fabricated and fictitious case against me. I offered my oath to police on Bible that I had never passed such derogatory and shameful remarks against the Holy Prophet (PBUH) and the Holy Quran. I have great respect and honour to the Holy Prophet (PBUH) as well Holy Quran and since police had conspired with the complainant, so, the police has falsely booked me in this case. The PWs are real sisters and interested to falsely involve me in this case as they felt disgrace and dishonor on the basis of altercation and hard words extended to them. Qari Salaam complainant is also interested person and both the ladies remained teaching Holy Quran from his wife. My forefathers are living in this village since creation of Pakistan. I am also about 40 years old and since the alleged occurrence, no complaint likewise this never exist against me. I am uneducated and no priest of Christian. So much so there is no church of the Christian in the village, so, being ignorant of any Islamic thought, how can I use such clumsy and derogatory remarks against the beloved Prophet (PBUH) of Allah and the Divine book viz Holy Quran. PW Idrees is also a interested witness who has close family links with their above said ladies.” In the backdrop of that statement of the appellant, suppression of the fact by the complainant party about the quarrel over drinking water and confirmation about such quarrel by the Court Witness and the senior investigating officer there are two possibilities which appeal to reason: firstly, the appellant had uttered the offending words after her own religion or religious sensibilities had been insulted and injured by the Muslim co-workers at the spot or, secondly, due to the quarrel taking place between the appellant and her Muslim co-workers at the spot without any offending word having been uttered by the appellant the quarrel was reported by the Muslim ladies to others who then, after deliberating over the matter for five long days, had decided to go after the appellant with a false allegation regarding commission of blasphemy. Both these possibilities require some examination. 23. The statements made by Muhammad Idrees (CW1) and Muhammad Amin Bukhari, SP (Investigation) (PW6) before the trial court revealed that the alleged blasphemy had been committed by the Christian appellant after her Muslim co-workers had insulted the appellant’s religion and had injured her religious sensibilities only because she believed in and was a follower of Jesus Christ. According to the Holy Qur’an a Muslim’s faith is not complete till he believes in all the Holy Prophets and Messengers of Almighty Allah including Jesus Christ (Isa son of Maryam) (Peace Be Upon Him) and all the revealed Holy Books of Almighty Allah including the Holy Bible. From that perspective insulting the appellant’s religion by her Muslim co-workers was no less blasphemous. Almighty Allah, the Creator of mankind, knew how a human being whose religion and religious sensibilities are insulted is likely to snap and retort and that is why it was ordained in the Holy Qur’an that “And do not insult those they invoke other than Allah, lest they insult Allah in enmity without knowledge. Thus We have made pleasing to every community their deeds. Then to their Lord is their return, and He will inform them about what they used to do.” (Surah Al-An’am: verse 108) The Muslim co-workers of the appellant had violated the command of Almighty Allah by insulting the Deity believed in and the religion followed by the appellant and, even if the prosecution’s allegations against the appellant were to be accepted as correct, the stated reaction to the same by the appellant was not different from that warned about by Almighty Allah. 24. In view of the glaring contradictions in the evidence produced by the prosecution it has appeared to me to be equally plausible that due to the quarrel taking place between the appellant and her Muslim co¬workers at the spot without any offending word having been uttered by the appellant the quarrel was reported by the Muslim ladies to others who then, after deliberating over the matter for five long days, had decided to go after the appellant with a false allegation regarding commission of blasphemy. If that were so then the Muslim witnesses in this case had violated a covenant of the Holy Prophet Muhammad (Peace Be Upon Him) with those professing the Christian faith. In his book The Covenants of the Prophet Muhammad with the Christians of the World (published by Angelico Press on 01.09.2013) John A. Morrow has referred to and reproduced many covenants entered into by the Holy Prophet Muhammad (Peace Be Upon Him) with people of the Christian faith and one of such covenants is called the Covenant of the Prophet Muhammad (Peace Be Upon Him) with the Monks of Mount Sinai. It is reported that in or around the year 628 A.D. a delegation from St. Catherine’s Monastery, the world’s oldest monastery located at the foot of Mount Sinai in Egypt, came to the Holy Prophet Muhammad (Peace Be Upon Him), requested for his protection and he responded by granting them a charter of rights. That charter, also known as The Promise to St. Catherine, was translated from Arabic to English language by Dr. A. Zahoor and Dr. Z. Haq as follows: "This is a message from Muhammad ibn Abdullah, as a covenant to those who adopt Christianity, near and far, we are with them. Verily I, the servants, the helpers, and my followers defend them, because Christians are my citizens; and by God! I hold out against anything that displeases them. No compulsion is to be on them. Neither are their judges to be removed from their jobs nor their monks from their monasteries. No one is to destroy a house of their religion, to damage it, or to carry anything from it to the Muslims' houses. Should anyone take any of these, he would spoil God's covenant and disobey His Prophet. Verily, they are my allies and have my secure charter against all that they hate. No one is to force them to travel or to oblige them to fight. The Muslims are to fight for them. If a female Christian is married to a Muslim, it is not to take place without her approval. She is not to be prevented from visiting her church to pray. Their churches are to be respected. They are neither to be prevented from repairing them nor the sacredness of their covenants. No one of the nation (Muslims) is to disobey the covenant till the Last Day (end of the world)." The promise made was eternal and universal and was not limited to St. Catherine alone. The rights conferred by the charter are inalienable and the Holy Prophet Muhammad (Peace Be Upon Him) had declared that Christians, all of them, were his allies and he equated ill treatment of Christians with violating God’s covenant. It is noticeable that the charter imposed no conditions on Christians for enjoying its privileges and it was enough that they were Christians. They were not required to alter their beliefs, they did not have to make any payments and they did not have any obligations. The charter was of rights without any duties and it clearly protected the right to property, freedom of religion, freedom of work, and security of person. 25. It is unfortunate that while utilizing the sacred concept of Namoos¬e-Risalat (honour and dignity of Prophethood) the above mentioned promise made by the Holy Prophet Muhammad (Peace Be Upon Him) to those professing the Christian faith had not been adhered to by his followers in the present case. It appears that after an altercation taking place in the field of Falsa a feast of falsehood had followed and the Muslim members of the complainant party led by Qari Muhammad Salaam complainant had paid little heed to the following command of Almighty Allah in the Holy Qur’an: “O! ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor, for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do.” (Surah Al-Nisa: verse 135) Even if there was some grain of truth in the allegations levelled in this case against the appellant still the glaring contradictions in the evidence of the prosecution highlighted above clearly show that the truth in this case had been mixed with a lot which was untrue. Even in this regard the Muslim witnesses belonging to the complainant party had ignored what had been ordained by Almighty Allah in the following verse of the Holy Qur’an: “And do not mix the truth with falsehood or conceal the truth while you know [it].” (Surah Al-Baqarah: verse 42) Blasphemy is a serious offence but the insult of the appellant’s religion and religious sensibilities by the complainant party and then mixing truth with falsehood in the name of the Holy Prophet Muhammad (Peace Be Upon Him) was also not short of being blasphemous. It is ironical that in the Arabic language the appellant’s name Asia means ‘sinful’ but in the circumstances of the present case she appears to be a person, in the words of Shakespeare’s King Leare, “more sinned against than sinning”. 26. For what has been discussed above a conclusion is inescapable and irresistible that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and she is acquitted of the charge by extending the benefit of doubt to her. She shall be released from the jail forthwith if not required to be detained in connection with any other case. (Asif Saeed Khan Khosa)Judge 

from The News International - National https://ift.tt/2SB8A99

Share on FacebookPlus on Google+

SUBSCRIBE TO OUR NEWSLETTER