Muhammad Riaz vs The State

Stereo. HC JD A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Criminal Appeal No. 38 of 2016.

Muhammad Riaz Versus The State and another

JUDGMENT

Date of hearing 03.02.2026.

Appellant by: Mr. Muhammad Fahad Khan, Advocate. State by:- Rao Muhammad Riaz, Deputy Prosecutor General. Respondent Mr. Muhammad Naeem Bhatti, Advocate. No.2 , by:-

SADIQ MAHMUD KHURRAM, J.:- This appeal has been preferred on behalf of Muhammad Riaz assailing the judgment dated 22.12.2015 passed by the learned Additional Sessions Judge, Bahawalpur, whereby the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja was acquitted of the charge in case F.I.R No.581 of 2010 dated 01.12.2010 registered in respect of an offence under section 295-C P.P.C.at the police station Civil Lines, District Bahawalpur.

2.The prosecution case, according to the appellant as narrated by him in his statement before the learned trial court, was as under:- “On 27.9.2010, at Magrib Wela, I alongwith my son Mohammad Farooq was using internet at Khanjee Internet shop situated at University

Chowk, Bahawalpur, where, my son Mohammad Farooq was operating computer, when he came to a web site http://www.Kawaqi blog spot.com, uploaded by accused Waqas Khawaja, present in the court, where, derogatory remarks were written by him, in blasphemy, in respect of our Holy Prophet (PBUH) and our religion Islam, written in complaint Exh.PA including seven pages. I also signed complaint Exh.PA and my signature thereon is Exh.PA/1. I myself felt injured to watch said web site. Thereafter, I contacted Mr. Shafqat Mahmood, Advocate, who is my neighbourer and he also watched said web site and web site was downloaded and prints of same were obtained and forwarded with written compliant Exh.PA for registration of FIR against accused Waqas Khawaja.”

3.After the formal investigation of the case, report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, and the accused was sent to face trial. The learned trial court framed the charge against the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja under section 295-C on 19.11.2012. The respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja pleaded not guilty and claimed trial. The prosecution examined as many as fourteen witnesses in order to bring home the charge against the accused. The appellant namely Muhammad Riaz (PW-1) and his son namely Muhammad Farooq (PW-

2)stated about what they had seen on 27.09.2010 while surfing the internet. Abdul Rasheed Khan (PW-3) stated that on 27.09.2010, he printed out the papers requested by the appellant. Arshad ASI (PW-4) stated that on 01.12.2010, he got recorded the formal F.I.R. (Exh.PA/1).

Sajjad Hussain, SI (PW-6) stated that on 27.05.2012, he arrested the respondent No.2 and in his presence the laptop (P-1) was recovered from the respondent No.2. Muhammad Akram Mughal (PW-12)

prepared his report (Exh.PF). Ghulam Murtaza Abbasi (PW-13) examined the laptop (P-1) and prepared the report (Exh.PG).

Muhammad Azhar Gujjar SP (PW-14) investigated the case from 15.05.2012 till 23.12.2012 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

Khursheed Ahmad, SI (PW-8) investigated the case from 01.12.2010 till 31.03.2011 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Javed Iqbal, SP (PW-11) investigated the case from 24.01.2011 till 10.03.2011 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

4.On 16.12.2013, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Shafqat Mahmood as being unnecessary. On 11.09.2014, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Shah Zareen, ASI as being unnecessary. On 09.06.2012, the learned Assistant District Public Prosecutor closed the prosecution evidence.

5.After the closure of prosecution evidence, the learned trial court examined the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja under section 342, Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja replied that he had been involved in the case falsely and was innocent. The respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja opted not to get himself

examined under section 340(2) Cr.P.C however produced documents (Mark-A to Mark-H) as evidence in his defence.

6.The learned trial court, after taking into consideration the entire material brought on the record, came to the conclusion that the prosecution had failed to establish its case against the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja beyond a reasonable doubt. Accordingly, the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja was acquitted of the charges vide judgment dated 22.12.2015, passed by the learned trial court, hence, the instant appeal.

7.The learned counsel appearing on behalf of the appellant and the learned Deputy Prosecutor General contended that sufficient incriminatory evidence was available on the record establishing the guilt of the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja, therefore, the learned trial court was not justified in acquitting him.

8.The learned counsel for the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja submitted that as the prosecution failed to prove the case therefore the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja was rightly ordered to be acquitted by the learned trial court.

9.We have heard the learned counsel appearing on behalf of the appellant, learned counsel for the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja, the learned Deputy Prosecutor General and have gone through the record of the case with their assistance.

10.A perusal of the prosecution evidence as produced reveals that though the prosecution case against the respondent No. 2 namely Waqas Ahmad Khawaja was that when Mohammed Riaz (PW-1) and Mohammed Farooq (PW-2) were surfing the internet on 27-09-2010, they came upon a website http://www.kawaqi.blogspot.com ,upon which they found present articles published upon the same which were blasphemous and highly disrespectful, and after having seen the said articles published on the said website, the complainant of the case, namely Mohammad Riaz, (PW-1) ,after getting the said articles downloaded and printed from Abdul Rasheed Khan (PW-3), reported the matter to the police by way of submitting the written application (Exh.PA) for the registration of the F.I.R. . It is a fact that while appearing as witnesses, both Mohammad Riaz (PW-1) , and Mohammad Farooq, (PW-2) , did not mention or reproduce the articles which they had surfed while perusing the website http://www.kawaqi.blogspot.com, nor did they reproduce the words written and used in the articles seen by them while surfing the website http://www.kawaqi.blogspot.com and only stated that they had just perused those articles, got downloaded those articles, then got them printed and had also shown them to their conunsel namely Mr Shafqat Mehmood, advocate( gieven up as unecessary witness). It is admitted

that what was actually seen by both Muhammad Riaz (PW-1) and Muhammad Farooq (PW-2), while surfing the internet and going through the website http://www.kawaqi.blogspot.com, was not reproduced by them in their statements before the learned trial court .

During cross-examination, Muhammad Riaz (PW-1) also admitted that he could not even read the contents of his own application (Exh PA), and also admitted that he could not even read the contents of the website http://www.kawaqi.blogspot.com, upon which he had seen the blasphemous material. During cross-examination, Muhammad Riaz (PW-1) admitted as under:-

“Neither I can read out the contents of website, nor I can translate the same into Urdu.

I cannot tell the name of person, who drafted written complaint Exh.PA on computer. It is correct that I cannot read out contents of Exh.PA. Perhaps written compliant Exh.PA was submitted to the SHO on 27/28/29.9.2010.” (emphasis supplied)

This very admission of Muhammad Riaz (PW-1) that he could not even read the contents of the website which he had surfed on 27.09.2010 and furthermore that he could not even read the contents of his own application (Exh.PA) submitted for the registration of the F.I.R. makes it very much clear that what was stated by Muhammad Riaz (PW-1) in his written application (Exh.PA) had been written for him and he had no knowledge about the same. Furthermore, when the appellant namely Muhammad Riaz (PW-1) admittedly could not even read the contents of the website which he had surfed on 27.09.2010, then his statement

that the said website had on it blasphemous material published and displayed becomes absolutely absurd.

11.We have also noted with concern that Muhammad Farooq (PW-2) , the other witness who stated that he had surfed through the website where he found blasphemous material available, also admitted that he could not tell the meanings of certain words used in the same and during cross-examination, he answered with respect to this as under:-

“I can translate the articles of Exh.PA in Urdu word by word.

I cannot tell the meanings of word paganism written in complaint Exh.PF. Polygamy means that a persons who is irrational and an opportunist.”

More importantly, Muhammad Farooq, (PW-2) , admitted that he had no knowledge regarding the authors of the articles which he had perused and found present on the website and more importantly he had no knowledge about the IP address assigned to the device connected to the internet which he had used on the day he perused the contnent of the http://www.kawaqi.blogspot.com and it was also a fact that he could not tell at all as to who was the author of those articles or even the owner of the said website. During cross-examination, Muhammad Farooq (PW-2) admitted as under :-

“It is correct that on pages of articles, no name of author is mentioned, therein. I have no knowledge that articles on blogs spot website, names of authors are not mentioned therein. I have no knowledge, whatever material is printed on the website, complete IP address also comes in the footnotes

of the page. It is correct that no where on pages of articles on footnotes or headnotes, IP address or name of website, is/are mentioned therein that wherefrom the articles under reference were downloaded and printed. I have knowledge about Microsoft Word. It may be that this article be printed in my name while using Microsoft Word. I have no proper knowledge about scanner devise. I did my B.Sc with subjects of Mathematics and Physics. It is correct that in my presence and view I did not have seen any person while writing or uploading this article and website.” (emphasis supplied) Now this reply of, Muhammad Farooq (PW-2) that he did not know about the IP address assigned to the device connected to the internet which he had used on the day he perused the contnent of the http://www.kawaqi.blogspot.com or that who was the author of the blasphemous material found present on the said website or even the owner of the website has high importance for the fact that according to the statements of Muhammad Riaz (PW-1) and, Muhammad Farooq, (PW-2) ,the particulars of the accused were detailed in not only the written complaint (Exh.PA) , but it was also stated that the said details of the accused were in the knowledge of both the witnesses namely Muhammad Riaz (PW-1) and Muhammad Farooq, (PW-2) however, they could not answer to this query that how did they come to know about the said details of the owner of the website upon which they had found present the blasphemous material. The most important fact remains and was rightly identified by the learned trial court while acquitting the accused was that both Muhammad Riaz (PW-1) and Muhammad Farooq (PW-2) , in their statements recorded by the learned

trial court , did not narrate as to what was the material which they perused on 27-09-2010 and which material they considered to be blasphemous and therefore their statements do not prove any fact in issue or even a relevant fact.

12.With regard to the statement of Abdul Rashid Khan, (PW-3) , the owner of the Internet Cafe, which cafe the witnesses, namely Muhammad Riaz, (PW-1) and Muhammad Farooq, (PW-2) , had visited on 27-09-2010 and surfed the questioned website using the computers available at the said cafe, he in his statement only stated that both Muhammad Riaz (PW-1) , and Muhammad Farooq (PW2 , asked him to print the material available on the said website and it was on their asking that he printed the pages as a hard copy of what was published on the said website however he admitted that firstly he did not have any knowledge regarding the address of the website or from where he had downloaded the said material and then printed it and also that he never appeared before the. Investigating officer of the case.

During cross-examination, Abdul Rashid Khan, (PW-3) admitted as under:-

“I never ever appeared before the police/IO during investigation of this case.

I have no personal knowledge regarding this website and I only heard the conversation in between the complainant and his son.

It is correct that material/articles consisting of six pages available on the file, no address of website is motioned (sic) thereon in headnotes or in footnotes.”

In this manner, the learned trial court was right in not considering the statement of Abdul Rashid Khan, (PW-3) as proof of any fact in issue or even a relevant fact.

13.The other piece of evidence brought on record during the course of the trial so as to prove the allegations against the accused was the recovery of the laptop (P-1) from the possession of the petitioner and its analysis. With regard to the arrest of the respondent accused and the recovery of the laptop (P-1) from his possession, it was stated by Sajjad Hussain, SI (PW-6), that it was on 27.05.2012, that he got information regarding the presence of the accused at the bus stand of Bahawalpur, while the accused was a resident of Lahore, and then he arrested the accused and brought him to the police station Civil Lines and thereafter Mohammad Azhar Gujar, SP, (PW-14) visited the said police station and it was Muhammad Azhar Gujar SP (PW-14) who then took into possession the laptop (P-1) through the recovery memo (Exh.PB). Now the most important fact is that according to the admission of not only Sajjad Hussain SI (PW-6) but Muhammad Azhar Gujar SP (PW-14) also, the visit of both the said witnesses to the police station Civil Lines was not entered in Register Number II maintained at the said police station, though it was necessary to have made such an entry. During cross-examination, Sajjad Hussain SI (PW-6) admitted as under:-

“I did not enter any Rapat of arrest and bringing of accused Waqas Khawaja at P.S. Civil Lines,Bahawalpur, on my arrival there on More important is the fact that according to the statement of Abid Hussain, 718/HC (PW-10) , when the laptop (P-1) was handed over to

him for the same to be transmitted to the office of the FIA Islamabad, at that time, the said laptop was not sealed at all, rather it was open.

During cross-examination , Abid Hussain, 718/HC (PW-10), admitted as under:-

“The laptop was not in sealed condition but it was open” This reply of the witness, namely Abid Hussain, 718/HC (PW-10), that at the time when he was handed over the laptop (P-1) , as allegedly recovered from the accused on 27.05.2012 , it was open ,accessible and was not sealed, has all the more relevance for the fact that cccording to the report, as prepared by Ghulam Murtaza Abbasi, Assistant Forensic Expert, National Response Center for Cybercrime, FIA Islamabad,(PW-

13),the last date of the modification of the contents of the said laptop was 12 June 2012. During cross-examination Ghulam Murtaza Abbasi, Assistant Forensic Expert, National Response Center for Cybercrime, FIA Islamabad, (PW-13) admitted as under:-

“The created date mentioned in Ex.PG at page No.33, is 25.02.2012 and modified date is mentioned as 12.6.2012.” (emphasis supplied) The very fact that the contents of the laptop (P-1) were modified on 12- 06-2012, when the arrest of the accused had been effected on 27-05- 2012 makes it abundantly clear that the modifications were done subsequently so as to create a false record regarding the use of the said laptop (P-1) . Addedly for the fact that the said laptop was not sealed, therefore no relevance can be placed upon the report (Exh.PG) related to the analysis of the said laptop (P-1) .

14.Another flaw of the case rightly identified by the learned trial court was the statement of Muhammad Akram Mughal, the Deputy

Director of the Network Security National Response Centre for Cybercrime,(PW-12) who stated that he had prepared the report (Exh.PF) relating to the queries made from him by the investigating officer of the case with regard to the website upon which Muhammad Riaz (PW-1) and Muhammad Farooq (PW-2) had perused the blasphemous material. The specific queries which were made by the investigating officer of the case from Muhammad Akram Mughal (PW-

12)were with regard to the identification of the IP address of the website http://www.kawaqi.blogspot.com and whether it was a newly created website or had been in use for a longer time and whether the accused had uploaded articles upon the said website and in answer to the said questions, Muhammad Akram Mughal,(PW-12) , according to his report (Exh.PF) , stated that he used the WhoIs tool to determine the IP address of the machine used to register the website http://www.kawaqi.blogspot.com and the IP address was determined to be 173.194.79.191, whose original registrant was the Google Inc., Mountain View CA 94043 US, and as the website

http://www.kawaqi.blogspot.com was a free unregistered subdomain provided by the blogspot.com for business purposes, therefore, the IP address of the machine used to register the particular website, i.e http://www.kawaqi.blogspot.com, could not be determined. More importantly, in his report, Muhammad Akram Mughal, the Deputy Director of the Network Security National Response Centre for Cybercrime,(PW-12) mentioned that the articles which were found present on the said blogspot were published on 13th September 2010 at 07.21 p.m., 8th September 2010 at 06.36 p.m. and on 29th August 2010 at 6.20 p.m. whereas according to the record available, the said

website http://www.kawaqi.blogspot.com had been registered in the name of the accused on 18th September 2010. Obviously, it was proved on record through analysis that the website

http://www.kawaqi.blogspot.com had already posted upon it the said articles which were blasphemous, prior to it being registered in the name of the accused and therefore, the accused could not be associated with the publishing of the said blasphemous articles. It is also a fact that, according to the report of Muhammad Akram Mughal, the Deputy Director of the Network Security National Response Centre for Cybercrime,(PW-12) , it was also determined that similar articles were published on another website http://www.kwaqas.co.uk on 13th September 2010 at 10.33 pm, 8th September 2010 at 9.32 pm, 29th August 2010 at 9.28 pm and 15th March 2011 at 5.14 am. however, it could never be determined that the accused was the one who had established the said website http://www.kwaqas.co.uk, nor it could be brought on record that he was the one who was using the same website.

During cross-examination, Mohammad Akram Mughal PW-12, also admitted that the website http://www.kwaqas.co.uk was not even hosted in Pakistan and furthermore, according to his determination, the said website was a registered website and for its registration, payment had been made, however, that payment was not tracked back to the accused in any manner, nor the Computerized National Identity Card (CNIC) number of the accused was found to have been used for the registration of the website http://www.kwaqas.co.uk. During cross-examination, Mohammad Akram Mughal PW-12, stated as under:-

“It is correct that anyone can register in the name of www.kwaki.blogspot.com. www.kwaqas.co.uk is a website

associated with an identity or individual and its registration is the first step which is made after payment to the registrar, second step is hosting of contents which also require payment and service provider, the publishing of articles on such websites is associated with user i.ds. www.kwaqas.co.uk is not hosted in Pakistan and in my report, I have not mentioned regarding the payment of this website due to unavailability of above mentioned information as it is hosted outside the Pakistan.

As per international standards defined by ICAMM and its registries in the world like APNIC in Asia Pacific requires the identity information (CNIC) as mandatory requirement for registration of websites. It is correct that payment can be made either by credit card or in the form of cash but it requires the identity information of the registrant. It is not mentioned in my report about payment of website by Khawaja Waqas accused.” (emphasis supplied) Similarly, Ghulam Murtaza Abbasi (PW-13) , who had analyzed the laptop (P-1) as allegedly recovered from the accused and who had prepared his report (Exh.PG) , also did not find any articles in the laptop (P-1) which were blasphemous and which articles were found present on the websites http://www.kwaqas.co.uk and http://www.kawaqi.

blogspot.com . When the articles which were found blasphemous were not even found present in the laptop (P-1) as recovered from the accused, then the learned trial court was right to conclude that the prosecution could not prove the case against the accused/respondent. More importantly, in none of the reports it was found that the machine address of the laptop (P-1) recovered from the possession of the accused was the same which was used for uploading the blasphemous material and

furthermore the IP addresses of of the machines used to register the particular websites were also not found to be of Pakistan and the blogspot http://www.kawaqi.blogspot.com was registered in the United States of America (USA) whereas http://www. kwaqas.co.uk was registered in the United Kingdom (UK) . During cross-examination Muhammad Akram Mughal (PW-12) stated as under :- “The blogspot website was owned by Google Corporation which was in USA, whereas, the second website was Kwaqas.com which was normally hosted in USA but I cannot tell the exact location of said website.”

The prosecution did not prove that the accused had ever remained at the said places.

15.In the light of the above discussion and facts, it is clear that the prosecution failed to prove the case against the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja. It is important to note that according to the established principle of the criminal administration of justice, once an acquittal is recorded in favour of the accused facing criminal charge, he enjoys double presumption of innocence, therefore, the court is competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as “Ghulam Sikandar and another Versus Mamaraz Khan and Others” (P L D 1985 Supreme Court 11) wherein it has been held as under:

“The Court would not interfere with acquittal merely because on re- appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however. the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.”

Reliance is placed on the case of “Muhammad Inayat Versus The State” (1998 SCMR 1854) wherein it has been held as under:

“The judgment of acquittal qua Muhammad Yousaf, Muhammad Sated (sic) and Muhammad Nawaz cannot, in the given situation, be termed as perverse or foolish inasmuch as the view having been taken by the High Court can possibly be taken for acquitting them in the peculiar facts and circumstances of this case. It cannot be said that the impugned judgment of the High Court acquitting Muhammad Yousaf and two others is fanciful, artificial, shocking or ridiculous. 1t is based on convincing reasons”

The august Supreme Court of Pakistan in the case of “Mst. Sughran Begum and another Vs. Qaiser Pervaiz and others” (2015 SCMR 1142) has held as under:

“On acquittal, an accused person earns twofold innocence particularly, in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction. Unless the concurrent findings of the two Courts below are found perverse, fanciful, arbitrary and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same because on reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course.”

16.In view of the above, the conclusions arrived at by the learned Additional Sessions Judge, Bahawalpur vide judgment dated 22.12.2015 have been found by us to be such that any court could have arrived at the same upon a fair assessment of the evidence available on the record. In these circumstances, we have found no occasion of

interference with the impugned judgment of acquittal passed by the learned Additional Sessions Judge, Bahawalpur in respect of the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja. Hence, this appeal fails and is hereby dismissed. The notice issued to the respondent No. 2 namely Waqas Ahmad Khawaja son of Noor Ahmad Khawaja by this Court is withdrawn.

(MUHAMMAD WAHEED KHAN) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE.

Raheel

Approved for Reporting

Judge