PLJ 2022 Cr.C. 15
Dishonest improvement--
----If dishonest improvements are made by a witness on material aspects of case then he is not worthy of reliance--It is, therefore, not safe to rely upon evidence of above mentioned eye-witnesses who made dishonest improvements in their statements before Court in order to strengthen prosecution case. [P. 22] B
2010 SCMR 385.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 295-A & 295-B--Conviction and sentence--Challenge to--benefit of doubt--Dishonest improvements--Derogatory rewarks about Muslims, Islam or the Holy Qur’an--Prosecution witnesses made dishonest improvements in their statements, recorded before learned trial Court regarding material aspects of case--It is therefore, evident from perusal of statements of abovementioned prosecution witnesses that appellant was living in their area since long (35-years) and there was no complaint against appellant that he ever tried to outrage feelings of Muslim Community--The said prosecution witnesses further conceded that appellant had many Muslim friends--None of prosecution witnesses stated that at time of occurrence or prior to occurrence, appellant ever spoke any derogatory remarks about Muslims, Islam or the Holy Quran--Underline circumstances, if for sake of arguments prosecution case is taken as gospel truth that appellant burnt some books containing Arabic words, even then prosecution failed to prove menseria of appellant that he intentionally committed offence to outrage feelings of Muslims because appellant might have burnt some books containing Arabic language while considering them waste papers and without realizing that there might be some Quranic versers written in said books--Court have considered all aspects of this case and have come to this irresistible conclusion that prosecution could not prove its case against appellant beyond shadow of doubt--Held: It is by now well settled law that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt regarding truthfulness of prosecution story--Appeal was allowed.
[Pp. 21 & 23] A, C & D
2017 SCMR 344, 2008 SCMR 6, 1995 SCMR 1345 and 2009 SCMR 230.
Sardar Khalil Tahir Sandhu, Advocate for Appellant.
Ch. Muhammad Ishaq, Addl. Prosecutor General for State.
Mr. Muhammad Javed Bajwa, Advocate for Complainant.
Date of hearing: 15.12.2020.
PLJ 2022 Cr.C. 15
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan, J.
IMRAN MASIH--Appellant
versus
STATE & another--Respondents
Crl. A. No. 233 of 2010, heard on 15.12.2020.
Judgment
This judgment shall dispose of the aforementioned criminal appeal, filed by the appellant, namely, Imran Masih against his conviction and sentence. The appellant was tried in case FIR No. 622 dated 01.07.2009 registered at Police Station Sargodha Road District Faisalabad offences under Sections 295-A/295-B of, PPC by the learned Addl. Sessions Judge, Faisalabad and after conclusion of trial, vide judgment dated 11.01.2010, the learned trial Court convicted and sentenced the appellant as under:
Under Section 295-A of PPC to undergo rigorous imprisonment for ten years with fine of Rs. 100,000/-and in default of payment of fine, the appellant was directed to undergo S.I for six months.
Under Section 295-B of, PPC to undergo Imprisonment for Life.
Both the sentences were directed to run concurrently.
The benefit of Section 382-B of, Cr.P.C. was also extended to the appellant.
2. Brief facts of the case, as given by the complainant Faryad Ali (PW-1) in the complainant (Ex.PA) on the basis of which formal FIR (Ex.PA/II) was chalked out, are that he (complainant) was resident of Street No. 2 Mohallah Bilal Ganj Hajveri Town, Faisalabad and was ex-General Counselor of U.C No. 212, Faisalabad. On 01.07.2009 at about 03:30 p.m., Imran Masih (appellant) in order to spread religious hate intentionally set on fire Quranic Verses, Holy Siparay and Arabic Books near Government M.C Primary School Chibban Road Hajveri Town, Faisalabad due to which Quranic extracts were burnt. In the meanwhile Muhammad Ashraf (PW-4), Haji Liaqat Ali (PW-3), Munir Ahmad, Mian Naeem Ahmad and Muhammad Nadeem (given up PWs) attracted to the spot and apprehended the accused (appellant). Local police was called at Phone No. 15 and the accused (appellant) was handed over to the police along with burnt extract of the Quran and Arabic books.
3. After completion of the investigation, the challan was submitted before the Court. The learned trial Court framed the charge under Section 295-A/295-B of PPC against the appellant on 20.08.2009, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced six witnesses during the trial. Prosecution also produced documentary evidence as Ex.PA to Ex.PC and closed the prosecution evidence. Statement of the appellant under Section 342 of Cr.P.C. was recorded by the learned trial Court.
5. The learned trial Court vide its judgment dated 11.01.2010, found the appellant Imran Masih, guilty for the offences under Sections 295-A/295-B of PPC and convicted and sentenced him as mentioned and detailed above.
6. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant due to the grudge that the complainant party wanted to get the shop of the appellant for extension of their business and this fact has duly been brought on record during the prosecution evidence but as the appellant refused to vacate his shop therefore, the complainant party after concocting a false and fabricated story, lodged the FIR against the appellant; that there are material contradictions in the statements of the prosecution witnesses which have not been properly appreciated by the learned trial Court while passing the impugned judgment; that no burnt/semi-burnt book was recovered from the spot by the police and semi-burnt books were produced before the police by the complainant himself; that the prosecution witnesses made dishonest improvements in their statements while appearing before the learned trial Court and as such, they are not worthy of reliance; that some of the prosecution witnesses also admitted that they cannot read Arabic language and as such, it has not been proved in this case beyond the shadow of doubt that the appellant burnt any extract or verse from the Holy Quran; that the prosecution miserably failed g to prove its case against the appellant beyond the shadow of doubt therefore, this appeal may be accepted and the appellant may be acquitted of the charges.
7. On the other hand, learned Addl. Prosecutor General for the State assisted by learned counsel for the complainant contended that the prosecution has successfully proved its case against the appellant beyond the shadow of any doubt therefore, he was rightly convicted & sentenced by the learned trial Court; that the appellant is unable to establish any malafide on the part of the prosecution witnesses for his false involvement in this case; that the prosecution eye-witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that the prosecution case against the appellant is further corroborated by the recovery of ash and semi-burnt books containing verses of the Holy Quran; that there is no substance in this appeal therefore, the same may be dismissed.
8. Arguments heard. Record Perused.
9. I have noted that Imran Masih appellant in his statement recorded under Section 342 of Cr.P.C. while answering to question No. 4 took this plea that shop of Liaqat Ali (PW-3) was adjacent to his (appellant’s) shop and both the shops were owned by one and the same owner who was a widow. He further stated that the abovementioned Liaqat Ali (PW-3) also wanted to get his (appellant’s) shop on rent but as he failed to do so therefore, the complainant party nourished this grudge in their minds and involved him (appellant) in the instant false and frivolous case. The appellant further stated in his above-referred statement that he respects Muslims and their belief and cannot think to outrage religious feelings of the Muslim Community and all the allegations leveled against him were false and frivolous. Same was the case of the appellant during the trial of this case and recording of the prosecution evidence. Although prosecution witnesses denied the abovementioned grudge while appearing in the witness box but they have frankly conceded that owners of the shops of Liaqat Ali (PW-3) & Imran Masih appellant was the same. Faryad Ali complainant (PW-1) also conceded that the shops of the accused and Liaqat Ali (PW-3) are situated adjacent to each other. Relative part of his statement reads as under:
“The Shops of the accused are situated in front of M.C Primary School for Boys and Girls. The shop of Haji Liaquat is situated adjacent to the shop of the accused.”
Likewise statement of Liaqat Ali (PW-3), in this respect, reads as under:
“The owner of my shop as well as the shop occupied by Imran Masih is the same. It is incorrect to suggest that I want the possession of the shop occupied by Imran Masih accused.”
It is therefore, evident that shops of Imran Masih appellant and Liaqat Ali (PW-3) were adjacent to each other and the same were owned by the same owner.
10. It is further noteworthy that according to the prosecution case as set forth in the FIR (Ex.PA/II), the occurrence took place on 01.07.2009 at 03:30 p.m., but the prosecution evidence regarding the date & time of occurrence is self-contradictory. Prosecution eye-witnesses, namely, Faryad Ali (PW-1) and Naseer Ahmad (PW-2) while appearing in the witness box stated regarding the date & time of occurrence as under:
Faryad Ali (PW-1).
“States that on 4th of July 2009 at 1.00 or 2.00 P.M. I went towards school side from my home, where I saw that the accused Imran Masih defiled the pages of Holy Quran, Qurani verses, gathered the same and get on fire.”
Naseer Ahmad (PW-2).
“States that on 4th of July 2009 the accused Imran Masih defiled and set on fire the pages of Holy Quran bearing Quranic verses and other religious books. The said occurrence took place at 1.00 or 2.00 P.M.”
Although other prosecution eye-witnesses, namely, Liaqat Ali (PW-3) and Muhammad Ashraf (PW-4) gave the date of occurrence as 01.07.2009 but their evidence regarding the date of occurrence of this case is in conflict with the evidence of Faryad Ali complainant (PW-1) and Nasser Ahmad (PW-2) who mentioned the above-referred date as 04.07.2009. It is also noteworthy that the time of occurrence given by Faryad Ali (complainant/PW-1), Naseer Ahmad (PW-2) as 01:00 p.m., to 02:00 p.m., and the time of occurrence as given by Liaqat Ali (PW-3) and Muhammad Ashraf (PW-4) as 02:00/02:30 p.m., is also in conflict with each other, as well as, with the time of occurrence, mentioned in the FIR (Ex.PA/II) as 03:30 p.m. Although it is argued by learned Addl. Prosecution General assisted by learned counsel for the complainant that there may be some typographical mistake or slip of tongue in the statements of Faryad Ali (PW-1) and Naseer Ahmad (PW-2) regarding the date of occurrence but I have noted that there may be typographical mistake or slip of tongue in the statement of one witness but the abovementioned date i.e. 04.07.2009 has been mentioned in the evidence of two different prosecution witnesses. It is further noteworthy that admittedly till today, no application has been moved before the learned trial Court for correction of the record or the above-referred alleged typographical mistake in the statements of the above-said prosecution witnesses and as such, there is no substance in the abovementioned argument of learned Addl. Prosecution General assisted by learned counsel for the complainant.
11. It is further noteworthy that the most important piece of evidence in this case was the Books containing verses of the Holy Quran which were allegedly set at fire by the appellant but I have noted that in the site plan (Ex.PB), point No. 1 was mentioned that on the said point, Imran Masih appellant burnt the books containing Quranic verses but from the said point only the ash was recovered. It has not been mentioned in the site plan (Ex.PB) that any semi-burnt pages or books containing verses of the Holy Quran have been recovered from the place of occurrence. Perusal of the recovery memo (Ex.PC) further shows that at the time of spot inspection, Shaukat Hayat, Sub Inspector/I.O (PW-5) has mentioned that only ash was recovered from the spot and two semi-burnt books were produced before him by Faryad Ali complainant (PW-1). I.O. did not mention in the recovery memo that any verse of the Holy Quran was also written on the said books and he simply stated that some Arabic words were written on the said books and at the end of one book, National Anthem of Pakistan was written. Faryad Ali complainant (PW-1) has admitted during his cross-examination that he had not read the Holy Quran though he claimed that he can read the Quranic verses. He ..further admitted that he had not learnt Arabic language. It is further noteworthy that the prosecution evidence regarding recovery of the semi-burnt books which contained verses of the Holy Quran is also contradictory and material dishonest improvements were also made in this respect in the statements of the prosecution witnesses. The prosecution witnesses were confronted with their previous statements and dishonest improvements made by them regarding the material aspect of the case were duly brought on record. Relevant parts of their statements reads as under:
Faryad Ali (PW-1).
“The burnt pages of Holy Quran as well as ashes were taken into custody by the police itself. Those articles were taken into custody by the police from us. I can differentiate between Quranic Verses and ordinary arabic language. I have not read the Holy Quran, but I can read Quranic Verse. I have not learnt arabic language”
Liaqat Ali (PW-3)
“I got recorded in my statement before the police that Naseer Ahmad PW picked a partially burnt book on which there was Kalamah Tayyabah written confronted with Ex.DA where it is not so recorded…………….. I got recorded in my statement before the police that Faryad Ali complainant picked second partially burnt book on which there was Kalamah Tayyab and Quranic Verses written confronted with Ex.DA where it is not so recorded.”
Shaukat Hayat S.I (PW-5).
“I secured the ash and two books were handed over to me by the complainant, which were semi-burnt through recovery memo
Ex.PC …………It is possible that in those two books, there are some arabic poems and dialogues, written.”
The abovementioned prosecution eye-witnesses made dishonest improvements in their statements regarding the material aspects of the case and their statements regarding the most important piece of evidence of this case i.e. recovery of semi-burnt books containing the verses of Holy Quran by the police itself are against the record (Recovery Memo Ex.PC & Site Plan Ex.PB). The other prosecution witness, namely, Shaukat Hayat S.I (PW-5) did not state that he himself took into possession the semi-burnt books containing verses of Holy Quran from the spot rather he stated that the said books were handed over to him by the complainant. It is, therefore, evident from the perusal of prosecution evidence that the prosecution witnesses made dishonest improvements in their statements, recorded before the learned trial Court regarding material aspects of the case, in order to strengthen the prosecution case and as such, they are not worthy of reliance. In the case of “Sardar Bibi and another vs. Munir Ahmed and others” (2017 SCMR 344, while discussing the evidence of a witness who made dishonest improvements in his statement, the Hon’ble Supreme Court of Pakistan observed as under:
“So the improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they were not trustworthy witnesses”.
Similarly in the case of “Akhtar Ali and others versus The State” (2008 SCMR 6), the Hon’ble Supreme Court of Pakistan observed as under:
“It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh’s case PLD 1963 Kar. 805.”
12. It is further noteworthy that the prosecution witnesses, namely, Naseer Ahmad (PW-2), Liaqat Ali (PW-3) and Muhammad Ashraf (PW-4) stated that the appellant was living in their area since long (35-years) and he had many Muslim friends and there was no complaint against the appellant prior to the present occurrence. The relevant parts of their statements in this respect read as under:
Naseer Ahmad (PW-2).
“I know the accused since long. I had good relations with Imran accused. There are other Muslim friends of Imran accused. There is no previous complaint against Imran accused regarding similar act. I including the other Muslim friends of the accused had no complaint, whatsoever, with Imran accused regarding any of his such act.”
Liaqat Ali (PW-3).
“It is correct that Imran Masih accued has many Muslim friends. Prior to this occurrence there was no complaint of similar nature against Imran Masih accused.”
Muhammad Ashraf (PW-4).
“I am residing in St:No. 2, Hajweri Town for the last thirty five years. Imran Masih accused is living at the same place for the last thirty five years. There was no complaint of similar nature against Imran Masih prior to this case. Accused Imran Masih has many Muslim friends.”
‘5. …… The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the
accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.’
The Hon’ble Supreme Court of Pakistan while reiterating the same principle in the case of ‘Muhammad Akram versus The State (2009 SCMR 230), at page 236, observed as under:
‘13. ….. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez 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 created 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.”
14. In the light of above discussion, the instant appeal (Criminal Appeal No. 233 of 2010) filed by Imran Masih appellant is allowed, his conviction and sentence recorded vide impugned judgment dated 11.01.2010 passed by the learned Addl. Sessions Judge, Faisalabad is hereby set-aside and he is acquitted of the charge by extending him the benefit of doubt. He is in custody. He be released forthwith if not required in any other case.
(A.A.K.) Appeal allowed
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