2003 Y L R 2114

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SADIQ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.326 of 2001, heard on 19th March, 2003.

Penal Code (XLV of 1860)---

----S.295-B---Defiling etc. of copy of Holy Qur'an---Intention of the accused had to be accounted

for---No person could be held guilty on the presumed intention without doing an act towards the
commission of the offence---Conviction could not be based on mere presumptions or suspicion,
but there had to be unimpeachable and irresistible evidence to connect the accused with the
commission of the offence---If, in the present case, there was a presumption that some wrappers
were to be used for binding the Qura'nic Siparas which would amount to defiling of Holy Qur'an,
there could also be a presumption, when the said wrappers were still not found to have been used
for binding purpose, that those were kept aside for wasting them---Prosecution having failed to
prove the charge against the accused person beyond any shadow of doubt, judgment of
conviction and sentence passed against the accused was set aside and accused were ordered to be
acquitted of the charge by extending them the benefit of doubt by the High Court.

Ch. Faqir Muhammad for Appellants.

Syed; Altaf Hussain Bukhari for the State.

Date of hearing: 19th March, 2003.

JUDGMENT

This appeal has been directed against the judgment dated 11-4-2001 passed by the learned
Additional Sessions Judge, Multan, by which, he has found both the appellants guilty under
section 295-B, P.P.C. and sentenced them to imprisonment for life. The benefit of section 382-B,
Cr.P.C. has also been extended to them.

2. F.I.R. No.159 (Exh.P.A./1), which is not available on the judicial file, was recorded by Rashid
Ahmad, Head-ConstableP.W.1 on the receipt of complaint (Exh.P.A.) submitted by Ch.
Muhammad Aslam, Magistrate 1st Class-P.W.4, which discloses that on the receipt of
information about a book binder that he was using objectionable papers in binding Qur'anic
Suras, a raiding party comprising Muhammad Yousaf, Inspector, Zahoor Ahmad, A.S.-I., Sajjad
Hussain and Muhammad Aslam, Constables under the supervision of the complainant was
constituted. They reached at the place of occurrence and found Muhammad Sadiq appellant
there. From his possession 180 wrappers which were to be used for binding, were recovered vide
recovery memo. Exh.P.B. These wrappers contained the words

on the one side and on the other side there were objectionable pictures thereon. According to the
complainant in the meanwhile Muhammad Abdul Manem appellant who is proprietor of
"Farooqi Kutab Khana" also reached there and admitted that Muhammad Sadiq appellant had
prepared these wrappers on his direction. Hence, this case was registered.

3. After the completion of investigation, the appellants were challaned and report under section
173, Cr.P.C. was submitted. Charge was framed which was denied by the appellants and they
claimed to be tried. Prosecution in order to prove their guilt, produced four witnesses: P.W.1
Rashid Ahmad Ranjah, Head Constable has recorded the formal F.I.R. while P.W.2 Zahoor
Ahmad, A.S.-I. was the member of raiding party and proved recovery of 180 wrappers effected
vide memo. Exh.P.B; P.W.3Muhammad Yousaf, Inspector was also the member of the raiding
party and he conduced the investigation as well. However, Ch. Muhammad Aslam, M.I.C.
appeared as P W.4 and reiterated the prosecution story enumerated above.

4. The accused in their statements under section 342, Cr.P.C. denied the allegations and claimed
that they are innocent. On a question to Abdul Manem "Why this case against you and the P.Ws.
have deposed against you?" he replied as under:--

"I am a bookseller and running my book shop at Bohar Gate, Multan. So many books
binders used to remain in contact with me because I give them books for binding work on
contract. According to the terms of contract I stood liable to pay the total cost of book
binding to the book binders. Paper purchase, card, cloth etc. used in book binding are the
liability of book binders. I have only concern with the binded books. Sadiq accused in the
instant case is neither my servant nor I have any concern with him. I have given him
Siparas of Holy Qur'an for the purpose of bindings.

Prior to the registration of instant case Ch. Muhammad Aslam Magistrate visited my shop
and requested for the sale of one thousand books written by his Peer at highest cost. I
refused to accept the liability which caused serious annoyance to him. I am a responsible
person having the wisdom of Qur'an and Sunnah, therefore, I cannot think to commit
such-like offence as it has been alleged against me. I am innocent. The allegedly
recovered wrappers might have been provided from the professional rival group in the
market. I have been falsely implicated in this case. I am Muslim by Faith and usually
render services as "Khateeb" in Jumma prayers, and belongs to famous religious family
of Multan, as such, even cannot think, to give any gesture of derrogation or disregard,
defiling, insult, or damage to the Holy Qur'an. All the P.Ws. have deposed at the instance
of Ch. Muhammad Aslam Magistrate, who managed my false implication. "
 and to the same question Muhammad Sadiq appellant replied as under:

"Ch. Muhammad Aslam Magistrate pressurized me to give evidence against Abdul

Manan in this concocted case. On account of my refusal I have been booked by the said
Magistrate falsely."

They also produced D.W.1 Irfaz Shahzad in support of their defence. Learned trial Court after
hearing both the parties, both the appellants were convicted and sentenced as above through the
impugned judgment.

5. Learned counsel for the appellants contends that only wrappers are alleged to have been
recovered from the inside of room which were not used for binding therefore, offence under
section 295-B, P.P.C. is not made out and moreso no private person ever complained about the
de-filing of Holy Qur'an by the appellants; that Abdul Manem appellant is a "Hafiz-e-Qur'an"
and used to address "Khutba" in Jumma prayers for the last so many years, who could not even
think to defile the Holy Qur'an or any portion thereof; that the case has been registered only due
to personal grievance with him by Muhammad Aslam P.W.4; that Muhammad Sadiq appellant
has denied him to be the servant of Abdul Manem appellant; that prosecution story is improbable
and has been concocted only to wreak the personal vengeance; that the prosecution evidence is
not worthy of reliance; that the appellants are true Muslims and have no history of their
involvement in such type activities; that they have good reputation in the people of their vicinity
and lastly prays that the appellants may be acquitted of the charge.

6. On the other hand, learned counsel appearing on behalf of the State opposes this appeal.

7. I have heard the learned counsel for the parties and also gone through the evidence available
on the record. From the perusal of statement of P.W.4 Muhammad Aslam it is clear that only 180
wrappers (P.1 to 180) were recovered and these were still not used for binding of "Qur'anic
Siparas". No binded Qur'an with objectionable wrapper or material was recovered from the
appellant or elsewhere from the Market. According to him these wrappers though were not
prepared by the appellants yet pasting was to be made 'by them. However, he conceded that their
Publisher was not arrested. He also admitted that no private part of the human body of a woman
was visible on these wrappers; that both the accused/appellants are Muslims by Faith and a
Muslim cannot cause any damage or insult to Islam or to the Holy Books, and that both the
accused have not intentionally caused any humiliation or disregard to the Holy Qur'an but stated
that they should be presumed negligent. Same type is the statement of other P. Ws.

8. What offence has been committed by the appellants, I would like to reproduce the provisions
of section 295-B, P.P.C. here:--

"295-B. Defiling etc. of copy of Holy Qur'an. Whoever wilfully defiles, damages or
desecrates a copy of the Holy Qur'an or of an extract therefrom or uses it in any
derogatory manner or for any unlawful purpose shall be punishable with imprisonment
for life."
According to the afore-quoted provisions whether any person is guilty of the said offence, first of
all his intention has to be accounted for. According to the prosecution evidence only wrappers
were recovered in this case from Muhammad Sadiq appellant which were presumed to be used
for binding of ' Sura Albaqra' find still no such ' Sipara' was binded therewith. There also does
not come on the record that any 'Sapara' or Holy Quran binded with such type of wrappers was
either available in the market or was produced by any person from the public. The prosecution
evidence is also silent that whether any person from the public had come forward to complain
against the appellants for their involvement in such type of activities. However, as against this it
has come on the record that the appellants are true Muslims, and their act was not more than a
negligence.

9. It is an admitted position that both the appellants are Book Binder and Proprietor respectively
and had not prepared these wrappers by themselves and the prosecution has failed to locate their
publisher. Moreover, it is only the presumption of the complainant (P. W.4) and the other P. Ws.
that these were to be used for binding of 'Qur'anic Siparas'. No person can be held guilty on the
presumed intention without doing an act towards the commission of an offence.

10. I have myself seen the wrappers P.1 to 180 allegedly recovered from Muhammad Sadiq
appellant. Though these contained some type of objectionable pictures on one side but
admittedly these were still not used for binding. The prosecution has miserably failed to bring on
record any evidence to connect the appellants with the commission of offence they have been
made accused whereof. In criminal cases conviction cannot be based on mere presumptions or
suspicion, but there should be unimpeachable and irresistible evidence to connect the accused
with the commission of an offence. If there was a presumption that these wrappers were to be
used for binding Qura'nic Siparas which would amount to defiling of Holy Qur'an, there can also
be a presumption, when these wrappers were still not found to have been used for binding
purpose, that these were kept aside for wasting them.

11. For the foregoing reasons the prosecution has miserably failed to prove the charge against the
appellants beyond any shadow of doubt. Hence this appeal is accepted, the impugned judgment
of conviction and sentence is set aside and the appellants are acquitted of the charge by
extending them the benefit of doubt. They are in custody and shall be released forthwith if not
required in any other case.

M.B.A./M-1816/L Appeal accepted.