P L D 2002 Supreme Court 1048 Present: Nazim Hussain Siddiqui, Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

 

P L D 2002 Supreme Court 1048 

Present: Nazim Hussain Siddiqui, Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

AYUB MASIH ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal NoA1 of 2002, decided on 15th August, 2002.

(On appeal from the judgment dated 24‑7‑2001 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No. 159 of 1998 and Murder Reference No. 122 of 1998).

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 295‑C‑‑‑Constitution of Pakistan (1973). Art. 185(3)‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑ Leave to appeal was granted by the Supreme Court to consider whether the principles of safe administration of justice and evaluation of evidence in criminal cases laid down by the Supreme Court had been followed in the case while appraising the prosecution evidence and that whether the offence of blasphemy covered by S.295‑C, P.P.C. fell within the purview of Hadd and the evidence for conviction of the amused must undergo the test of Tazkia tul‑Shahood.

(b) Penal Code (XL of 1860)‑----

‑‑‑‑S. 295‑C‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑‑Burden of proof‑‑‑Defiling words highlighted in the F.I.R. certainly constituted the offence under S.295‑C, P.P.C. but the prosecution had failed to prove its case against the accused beyond any reasonable doubt‑‑‑Prosecution being obliged to prove its case against the accused beyond any reasonable doubt and if it failed to do so the accused was entitled to benefit of doubt as of right‑‑‑Rule of benefit of doubt was essentially a rule of prudence which could not be ignored while dispensing justice in accordance with law‑‑‑Doubt must be reasonable and not imaginary‑‑‑Said rule was based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" and occupied a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h.) that the "mistake of Qazi (Judge) in releasing a criminal is better, than his mistake in punishing an innocent" 

In the present case the defiling words highlighted in the F.I.R. certainly constitute the offence under section, 295‑C, P.P.C. but the prosecution has failed to prove its case against the accused beyond any reasonable doubt The accused is, therefore, entitled to the benefit of doubt which was withheld by the two Courts without the support of sound reasons. The prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. If there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted": In simple words it means that utmost care should be taken by the Court in convicting an accused. This rule is antithesis of haphazard approach or reaching a fitful decision in a case. This rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h.) "the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an, innocent .

The State v. Mushtaq Ahmed PLD 1973 SC 418 ref.

(c) Islamic Jurisprudence‑

‑‑‑‑Crime and punishment‑‑‑Rule of benefit of doubt occupies a pivotal place in the Islamic Law and enforced rigorously.

(d) Criminal trial‑‑‑

‑‑‑‑ Benefit of doubt, a golden rule‑‑‑Applicability‑‑‑Principles.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 295‑C‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑‑Reappraisal of evidence‑‑‑Allegation against the accused was that on the day of occurrence while the accused was sitting in a street the complainant and his companions came there by chance where the accused exalted Christianity, maligned Islam, uttered certain derogatory words about the Holy Prophet (p.b.u.h.) and not only advised the complainant and his companions to read the book of Salman Rushdi but also asked them to accompany him to Karachi for the purpose‑‑‑Complainants and his companions are admittedly labourers and had come across the accused by chance‑‑‑ Nothing was available on record to suggest even remotely that the derogatory remarks were made by the accused as a result of an argument, a controversy, a discussion or a wrangle‑‑‑No evidence was 'available to show that the accused was fond of delivering sermons‑‑‑Held, in such backdrop there was no occasion for uttering the derogatory remarks attributed to the accused besides asking ordinary labourers to read Salman Rushdi's book sounded ridiculous and preposterous‑-‑Prosecution story thus did not ring true intrinsically and was too odd to stand to reason‑‑‑Such aspect which was overlooked throughout, was by itself sufficient to demolish the prosecution case‑‑‑Where the evidence created doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused without any reservation.

Muhammad Ilyas v. The State 1997 SCMR 25 ref.

(f) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 295‑C‑‑‑Criminal Procedure Code (V of 1898), S.154‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑ Reappraisal of evidence ‑‑‑Unexplained inordinate delay in lodging the F.I.R. coupled with the presence of the elders of the area at the time of, recording of F.I.R. led to the inescapable conclusion that the F.I.R. was recorded after consultation and deliberation and fabrication of a story and false implication could not be excluded altogether‑‑‑Unexplained inordinate delay in lodging the F.I.R. was an intriguing circumstance which tarnished the authenticity of the F.I.R., cast a cloud of doubt on the entire prosecution case and was to be taken into consideration while evaluating the prosecution evidence‑‑‑Delay in lodging the F.I.R., in the present case assumed great significance inasmuch as the prosecution story was doubtful from the outset and the prosecution evidence was remarkable in weakness only.

The unexplained delay in lodging the F.I.R. coupled with the presence of the elders of the area at the time of recording of F.I.R. leads to the inescapable conclusion that the F.I.R. was recorded after consultation and deliberation. The possibility of fabrication 'of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the F.I.R. is an intriguing circumstance which tarnishes the authenticity of the F.I.R., casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the F.I.R. is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused. In the present case the delay in lodging the F.I.R. has assumed great significance inasmuch as the prosecution story is doubtful from outset and the prosecution evidence is remarkable in weakness only.

(g) Criminal Procedure Code (V of 1898)‑---

‑‑‑‑S. 154‑‑‑Delay in lodging the F.LR.‑‑‑Implications.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 295‑C‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑‑Reappraisal of evidence‑‑‑Credibility and credentials of the complainant were not above board and he was not an independent and truthful witness as the defence evidence on record indicated that he had a motive to falsely implicate the accused‑‑‑Prosecution evidence on which conviction of the accused rested consisted of the statements of complainant and his companion and testimony of both the complainant and witness neither inspired confidence nor could be termed as evidence having come from an unimpeachable source‑‑‑Prosecution story did not ring true and the possibility of fabrication and false implication could not be ruled out as the F.I.R. was lodged after consultation and deliberation and the delay of at least six hours in lodging the same had not been explained‑‑‑Such factors strongly reacted on the credibility of both the witnesses who were chance witnesses on their own showing‑‑‑Prosecution witness made improvement on the prosecution story which made the prosecution evidence discrepant and the testimony of the witness unreliable‑‑‑Motive of the complainant was to grab an Ihata in possession of the father of accused and statement of Illaqa Patwari made it manifest that during pendency of the present case the portion of Ihata in possession of accused's father was allotted to the complainant and he had taken its possession as well‑‑‑Accused was indubitably the beneficiary of the case, therefore, placing reliance on the statement of complainant would not be conducive to safe administration of justice‑‑‑Conviction and sentence of the accused, in circumstances, were set aside by the Supreme Court and he was acquitted of the charge levelled against him.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

(i) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑S. 295‑C‑‑‑Criminal Procedure Code (V of 1898), S.342‑‑‑Allegation use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑ Reappraisal of evidence‑‑‑Parallel version of the incident was given by the accused in his statement under S.342, Cr.P.C. wherein he had attributed fabrication of the case and his false implication to another person and his relatives as well as the complainant‑‑‑No evidence on record showed any connection of the said other person and his relatives with the case but there was sufficient evidence which clearly suggested that the case against the accused was the outcome of machination of the complainant who wanted to grab the Ihata in possession of the father of the accused‑‑‑Defence version thus had an edge over the prosecution version which suffered from inherent improbabilities and infirmities of a serious nature‑‑‑Effect‑‑‑Held, in case of two versions of the incident both the versions of the incident were to be kept in juxtaposition to find out as to which version was more probable but in the present case the defence version had been assessed in isolation and not in Juxtaposition with the prosecution case because had it been so assessed the conclusion would have been exactly the opposite‑‑‑Conviction and sentence of the accused, in circumstances, were set aside by the Supreme Court and he was acquitted of the charge levelled against him.

(j) Penal Code (XLV of 1860)----

‑‑‑‑S. 295‑C‑‑‑Criminal Procedure Code (V of 1898), S.340(2)‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑ Reappraisal of evidence‑‑‑ Refusal of accused to record his statement on oath in disproof of the charge‑‑‑Impact‑‑‑Accused cannot be compelled to make a statement on oath and on his failure to do so no adverse inference can be drawn against him.

Ameer Khatun v. Faiz Ahmed PLD 1991 SC 787 and Munawar Ali v. The State PLD 1993 SC 251 ref.

(k) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 295‑C‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑‑Reappraisal of evidence‑‑‑Accused was found to be entitled to acquittal on merits by the Supreme Court‑‑‑Contention on behalf of the accused as to whether offence of blasphemy covered by S.295‑C, P.P.C. fell within the purview of Hadd and the evidence for conviction of the accused must undergo the test of the Tazkia‑tul‑Shahood was left open by the Supreme Court as the plea was raised as alternate plea with rider that same may be treated as not pressed and the question be left open if the accused was found entitled to the benefit of doubt on merits of the case and acquittal.

Abid Hassan Minto, Naeem Sheikh and M.L. Shahani, Advocates Supreme Court and Mehmood A. Qureshi, Advocate‑on‑Record (absent) for Appellant.

Tariq Mehmood Khokhar, Additional Advocate-General, Punjab for the State.

Date of hearing: 15th August, 2002.

JUDGMENT

QAZI MUHAMMAD FAROOQ, J.‑‑‑This appeal, by leave of the Court, is directed against the judgment dated 24‑7‑2001 of a learned Division Bench of the Lahore High Court Multan Bench passed in Criminal Appeal No. 159 of 1998 whereby the appellant's conviction under section 295‑C, P.P.C., recorded by the learned Sessions Judge Sahiwal vide judgment dated 27‑4‑1998, was upheld and the sentence of death as also fine of Rs.1,00,000 or two years' R.I. in default awarded to him was confirmed.

2. The derogatory remarks attributed to the appellant were allegedly made by him on 14‑10‑1996 at 3‑00 p.m. in the area of Chak No.353/EB located at a distance of about 8 Kilometres from Police Station Saddar, Arifwala, District Pakpattan Sharif. The appellant was nabbed on the spot and while complainant Muhammad Akram and his companions were taking him to the Police Station, Abdul Sattar, S.‑I. met them on the way at about 10‑00 p.m. and recorded the statement of the complainant in presence of certain elders of the area. The statement of the complainant was despatched to the Police Station Arifwala where a formal F.I.R. was drawn up at 10‑30 p.m. on the strength thereof and a case was registered against the appellant under section 295‑A, P.P.C. The section of law was, however, altered to 295‑C, P.P.C. subsequently.

3. The background of the case, in the light of the allegations detailed in the F.I.R., is to the effect that on the eventful day at about 3‑00 p.m. the appellant was sitting in a street in front of the house of Hakim Machhi. The complainant and his companions Muhammad Zulfiqar and Muhammad Akram son of Muhammad Sharif Arain appeared on the scene by chance. On seeing them the appellant allegedly declared that‑his faith was true and their's was false and also made certain derogatory remarks about the Holy Prophet (p.b.u.h) and advised them to read Salman Rushid's Book. They were further asked to accompany him to Karachi so that the said book could be made available to them. The complainant got infuriated by the unsavoury remarks and grappled with the appellant whereupon his companions interceded and separated them. Thereafter, the complainant and his companions apprehended the appellant and alongwith him set out for Police Station Arifwala.

 

4. The appellant was indicted for the offence of blasphemy and in order to prove its case the prosecution examined as many as four witnesses including Abdul Sattar, S.‑I, complainant Muhammad Akram and Muhammad Zulfiqar. The appellant, when examined under section 342, Cr.P.C,, denied the prosecution allegations, professed innocence, pleaded false implication and made a lengthy statement wherein he expressed respect for the Holy Prophet (p.b.u.h) and also put forth a paralled version of the case. The relevant portions of his, statement read as under:‑‑

 

"I studied ' Deenyat' , up to Matric, as a subject in Government M.C. High School, Arifwala and passed the Matriculation Examination in the year 1986. I still remember, by heart three Kalamas, Surat Fateh and Surat Aahad, I am a Christian by belief, but as I had studied the Islamic Injunctions in the course, I had all the respects for Holy Prophet Muhammad (peace be upon him) and his followers, because my training in Religion School from 1st class to 10th class, I cannot imagine or dream of uttering such words. I, after Matriculation, could not continue my studies and have opted a profession of a Mason. I had never indulged in any Religious controversy, nor have preached Christianity, nor attended any sort of Religious meetings. The entire case is a fabrication against me, because I am the only literate person of my family. The entire case is concocted and got registered at the influence of Haji Abdul Aziz and his relatives Mr. Zafar Salim, who is in Police Department and has exerted his influence to get this case registered. I came, to know of this case in Sahiwal Jail, on the second day, when the Superintendent Jail informed me about the next date of hearing in the Court of Additional Sessions Judge, Arifwala. "

"The gravity of the; offence and its sentimental nature, has been fully exploited by the P.Ws. to grind their axe and are successful in' bringing me to this trial, where I am innocent and law‑abiding. I had all the respects for the Holy Prophet Muhammad (peace be upon Him) and his followers and all Muslims. My religion and my belief taught me respects of all Prophets and love with all. We are by practice peacemakers, preach love arid tolerance.

There was no secretarian dispute in the village from the last 50 years, when my father and other families started living in this area. I had never been challaned in any criminal case nor I had indulged in any activity which can be termed as immoral, blasphemous derogatory to Religion. "

"Muhammad Akram complainant, after getting this case registered has got the possession of Ihata 9 Marlas in the possession of my father and has got it allotted in his name. "

"My father gave an application to the Prime Minister of Pakistan for allotment of Ihatas in his possession and in the possession of 16 families who were Christians or for reserving of land under Seven Marlas Scheme. I carne back from Karachi and was seriously prosecuting the application, on which Abdul Aziz and other respectables, including the P.Ws. got annoyed and have fabricated this case against me for their personal gains and motive and thus were successful to eject three families from the agricultural land and 16 families from the residential Ihatas."

5. Apart from making the above statement under section 342, Cr.P.C. the appellant examined three defence witnesses, namely, Rashid Ahmed Patwari (D.W.1), Sooba Masih (D.W.2) and Walayat Masih (D.W.3). He, however, did not record his statement under section 340(2), Cr.P.C. on oath in disproof of the charge.

6. Implicit reliance was placed on the testimony of the complainant and Muhammad Zulfiqar by the learned trial Court as well as the learned members of the Division Bench of the High Court, the counter‑version was spurned and the appellant was convicted and sentenced as mentioned above.

7. Leave was granted to consider whether the principles of safe administration of justice and evaluation of evidence in criminal cases laid down by this Court have been followed in this case while appraising the prosecution evidence and whether the offence of blasphemy covered by section 295‑C, P.P.C, falls within the purview of Hadd and the evidence for conviction of the accused must undergo the test of Tazkia-tul-Shahood.

8. Mr. Abid Hasan Minto, learned counsel for the appellant placing reliance on a judgment of the Federal Shariat Court reported as Muhammad Ismail v. Pakistan (PLD 1991 Federal Shariat Court 10) contended that the offence of blasphemy envisaged by section 295‑C was an offence liable to Hadd and "Tazkia‑tul‑Shahood" was obligatory in view of the observations made in Sanauilah v. The State (PLD 1991 Federal Shariat Court 186), therefore, the prosecution evidence on which the two judgments of conviction were based was not legally admissible having not been tested on the touchstone of "Tazkia‑tul‑Shahood". However, he took the stance that the contention had been raised by him as an alternate plea and if a case of acquittal is made out on merits of the case then the plea may be treated as not pressed the issue may be left open and the appeal be disposed of in the light of the evidence available on record. As regards the merits of the case, he raised the following contentions‑

(i) The prosecution story was more imaginary their real because the complainant and his companions had by chance found the appellant sitting in a street, no controversy or discussion had preceded the occurrence and none of the witnesses had given any reason as to why the words attributed to the appellant were uttered by him.

 

(ii) The occurrence had allegedly taken place at 3‑00 p.m. but the F.I.R. was made at 10‑00 p,m. and that too on wayside and no explanation was given for the delay. Besides, presence of several respectables of the area at the time of handing over of the appellant to the police and recording of the complainant's statement was shown in the F.I.R. These factors clearly indicated that the prosecution story was fabricated after consultation and deliberation.

 

(iii) The complainant as well as Muhammad Zulfiqar were chance witnesses, therefore, their evidence was not worthy of credence. Moreover, the complainant was a highly interested witness as he wanted to grab an Ihata in possession of the appellant's family and had achieved his objective by getting a false case registered against the appellant as a result of which his family had left the village. It was evident from the statement of Rashid Ahmed Patwari (D.W.1) that the Ihata in possession of the appellant's father was allotted in favour of the complainant on 26‑2‑1997 and the mutation in respect thereof was attested on 31‑5‑1997.

 

(iv) The counter‑version given by the appellant in his statement under section 342, Cr.P.C. had not been evaluated properly.

 

9. The learned Additional Advocate‑General, on the other hand, submitted that the offence of blasphemy was not liable to Hadd and the impugned judgment was unexceptionable.

 

10. We have anxiously considered the contentions of the learned counsel for the appellant with regard to the merits of the case and scritinized the prosecution case and evidence as well as the counter-version and defence evidence with care and caution and also perused the reasoning by which the prosecution evidence has been held to be worthy of reliance by the High Court and the trial Court. We have come to the irresistible conclusion that the defiling words highlighted in the F.I.R. certainly constitute the offence under S.295‑C, P.P.C. but the prosecution had failed to prove its case against the appellant beyond any reasonable doubt. The appellant is, therefore, entitled to the benefit of doubt which was withheld by the two Courts without the support of sound reasons. It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a 'rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmed (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

 

11. First of all we will advert to the prosecution story to ascertain whether it rings true and appeals to reason. The prosecution story, in a nutshell, is that on the day of occurrence while the appellant was sitting in a street the complainant and his companions came there by chance. The appellant exalted Christianity, maligned Islam, uttered certain derogatory words about the Holy Prophet (p.b.u.h) and not only advised the complainant and his companions to read the book of Salman Rushdi but also asked them to accompany him to Karachi for the purpose. The complainant and his companions are admittedly labourers. They had come across the appellant by chance. There is nothing on the record to suggest even remotely that the derogatory remarks were made by the appellant as a result of an argument, a controversy, a discussion or a wrangle. There is also no evidence to show that the appellant was fond of delivering sermons. In this backdrop it goes without saying that there was no occasion of uttering the derogatory remarks attributed to the appellant. Besides, asking ordinary labourers to read Salman Rushdi's book sounds ridiculous and Preposterous. The prosecution story thus does not ring true intrinsically and is too odd to stand to reason. This aspect of the case, which was overlooked throughout, is by itself sufficient to demolish the prosecution case. It was held in Muhammad Ilyas v. The State (1997 SCMR 25) that it is well‑settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, its benefit has to be given to the accused without any reservation.

 

12. As observed earlier, the incident had allegedly occurred at. 3‑00 p.m. at a place located at a distance of about 8 kilometres from Police Station Arifwala. The record discloses that the complainant alongwith his companions and the appellant, who was apprehended by them on the spot, had set out in a trolley for the police station but the report was made at 10‑00 p.m. and that too on the way. The note of Abdul Sattar, S.‑I. under the statement of the complainant and the statement of the complainant recorded at the trial show that the F.I.R. was recorded in presence of several elders of the area. Keeping in view the facility of transport and the' distance between the spot of occurrence and the place where the F.I.R. was recorded there was delay of at least 6 hours in lodging the F.I.R. which ought to have been explained being inordinate but surprisingly no explanation was furnished at all, The unexplained delay in lodging the F.I.R. coupled with the presence of the elders of the area at the time of recording of F.I.R. leads to the inescapable conclusion that the F.I.R. was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the F.I.R. is an intriguing circumstance which tarnishes the authenticity of D the F.I.R.; casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the F.I.R. is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused. In the present case the delay in lodging the F.I.R. has assumed great significance inasmuch as the prosecution story is doubtful from outset and the prosecution evidence is remarkable, in weakness only.

 

13. This brings us to the prosecution evidence on which conviction of the appellant rests. It consists of the statements of the complainant Muhammad Akram and Muhammad Zulfiqar. The testimony of both of them neither inspires confidence nor can be termed as evidence having come from an unimpeachable source. The reasons are not far to seek. It has already been held that the prosecution story does not ring true and the possibility of fabrication and false implication cannot be ruled out as the F.I.R. was lodged after consultation and deliberation and the delay of at least six hours in lodging the same had not been explained. These factors strongly react on the credibility of both the witnesses who are chance witnesses on their own showing. Muhammad Zulfiqar made an improvement oh the prosecution story by stating that the derogatory remarks were made while on the eventful day at about 3‑00 p.m. he, the complainant, Muhammad Akram son of Sharif were sitting in the street in front of the house of Hakim Machhi and the appellant was also with them. This improvement has made the prosecution evidence discrepant and the testimony of Muhammad Zulfiqar unreliable. It was held‑in Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550) that statements of witnesses in the Court in which improvements are made to strengthen the prosecution case are not worthy of reliance. The credibility and credentials of the complainant are not above board and he is not an independent and truthful witness as the defence evidence on record indicates that he had a motive to falsely implicate the appellant. The motive was to grab an Ihata in possession of Inayat Masih, father of appellant. The statement of Rashid Ahmed Patwari (D.W.I) makes it manifest that during pendency of the present case the portion of Ihata No.76 in possession of the appellant's father was allotted to the complainant and he had taken its possession as well. It will be advantageous to reproduce the relevant part of the statement of the said Patwari. It reads as under :‑‑---

 

"Muhammad Tufail son of Ghulam Muhammad, caste Wattu, and Inayat son of Jeewan Masih were illegal occupants of Ihata No.76 and Exh.DD was issued by me. Ihata No.76 was allotted to Muhammad Akram son of Muhammad Sultan, caste Machhi, by C.A. on 26‑2‑1997 and mutation was attested in his favour on 31‑5‑1997. At the tune of effecting entry in Revenue Record by me Akram was seen is possession of Ihata No.76."

 

The document marked Exh.DD also shows that Ihata No.76 measuring 18 Marlas was owned by the Provincial Government and an area measuring 9 Marlas out of the same was in possession of Inayat Masih, father of the appellant. It was conceded by the learned, Additional Advocate‑General that Inayat Masih whose name figured in the statement of the Patwari and the document Exh..DD was father of the appellant. The appellant is indubitably the beneficiary of the case, therefore, there can be no cavil with the proposition that placing reliance on his statement will not be conducive to safe administration of justice.

 

14. There is yet another aspect' of the case which needs consideration. It relates to the parallel version of the incident given by the appellant in his statement under section 342, Cr.P.C. In the parallel version the appellant attributed' fabrication of the case and his false implication to Haji Abdul Aziz and his relatives as well as the complainant Muhammad Akram. It is true that there is no evidence on record to connect Haji Abdul Aziz and his relatives with the case but there is sufficient evidence which clearly suggests that the case against the appellant was the outcome of machination of the complainant Muhammad Akram who wanted to grab the Ihata in possession of his father. The defence version thus has an edge over the prosecution version which suffers from inherent improbabilities and infirmities of a serious nature. It is by now well‑settled that in case of two versions of the incident both the versions are to kept in juxtaposition to find out as to which version is more probable. In the present case the defence version 4has been assessed in isolation and not in juxtaposition with the prosecution case because had it been so assessed the conclusion would have been exactly the opposite.

 

15. Lastly, having noticed the impact of the appellant's refusal to record his statement .on oath in disproof of the charge on‑ the two judgments we deem it necessary to point out the law laid down by this Court on the subject. It was held in Ameer Khatun v. Faiz Ahmed (PLD 1991 SC 787) that an accused cannot be compelled to make a statement on oath and on his failure to do so no adverse inference can be drawn against him. The relevant portion, of the judgment reads as follows:‑‑---

 

"If an, accused is mandated to make a statement on oath under section 340(2), Cr.P.C. or if he is told that if he does not make that statement the inference will be drawn against him, he will come under a pressure which will violate requirements of section 343, Cr.P.C. Therefore, the interpretation of section 340(2), Cr.P.C. has to be that it has no compulsive effect on the accused. All that the Court can do is to ask him whether he will like to make a statement on oath. It is his option and without prejudice to his case to make a statement or not to make a statement on oath no adverse inference can be drawn if be does not opt to make a statement." .

 

In Munawar Ali v. State (PLD 1993 SC 251) it was held that adverse inference cannot be drawn if accused declines to make statement in his defence on oath. The view was reiterated in Javaid v. The State (PLD 1994 SC 679).

 

16. The appellant is entitled to acquittal on merits of the case, therefore, there is no need to advert to the contention whether the offence under section 295‑C, P.P.C. is liable to Hadd which was raised by the learned counsel for the appellant as an alternate plea with the rider that it be treated as not pressed and the question be left open if the appellant is found entitled to the benefit of doubt on merits of the case. The question is accordingly left open.

 

17. For the foregoing reasons, this appeal is allowed, the conviction and sentence of the appellant, are set aside and he is acquitted of the charge levelled against him. He be set as liberty forthwith' if not required in any other case.

 

18. At the conclusion of the hearing of this appeal, short order allowing the appeal for reasons to be recorded later on, was passed. The above are the reasons for the said short order.

 

M.B.A./A‑320/S                                                                                 Appeal accepted.