Ziarat Shah Vs The State

I

JUDGMENTSHEET

PESHAWARHIGH COURT

MINGORABENCH

(Judicial Department) Cr.A No. 1 32-W2021

JUDGMENT

Date of hearing: 06.12.2022

Appellant: (Ziarat Shah) by Muhammad Israr, Advocate.

Respondents: (State & another) by Mr. Sohail Sultan, Astt: A.G and complainant namely Nikas Ali, in person.

MUHAMMAD IJAZ KHAN. J .- Appellant namely Ziarat Shah has called in question the order/ judgment of his conviction and sentence passed by the leamed Additional Sessions Judgel lzafi Zila Qazi I't Buner at Dagger, dated 25.03.2021 vide which the appellant was convicted and sentenced as follows;

U/S 295-8 PPC the appellant was convicled and sentenced to life imprisonmenl tnd he wos also extended the benelil of seclion 382-B j Cr.P,C fr ) Appellant faced trial in a criminal case registered against him vide case FIR No.275 dated 20.07.2020 under section 295-8 PPC at Police Station City Swari District (D.B) Hon'ble M.. Justico Muhamm.d Nasom Anwat Hon'bls Mr. Ju3tlc6 Muhammad lJaz Khtn

Buner. As per contents of the FIR, the local police during routine patrolling of the area received information that in village Cheena a person has been apprehended by the local inhabitants who was alleged to have willfully defiled and damaged the copy of Holy Quran.

Acting on such information, when the SHO namely Abdul Wakil Khan (PW-2) along with other 'Nafri' reached to the spot where they found the appellant and the complainant-party along with the defiled/ desecrated/ damaged copy of the Holy Quran. The complainant namely Nikas Ali reported the matter to local police that on the day of occurrence he was present in his house, when in the meanwhile, he overheard noise coming from the house of their neighbor namely Ziarat Shah (the appellant herein), therefore, he went towards his house and when reached there the other ^) PWs Zar Farosh and Attiq Ullah were already attracted to the spot and in the meanwhile, the appellant came out from his house having a copy of the Holy Quran in his hands who tried D B) Hon'ble llr. Juatlco Muhamm6d Naesm Anwar Hon'bla llr, Juatlca uh3mmad ljsz Khan

to set ablaze the script of Holy Quran and tom some of the pages and thereafter threw the same in the nearby drain, therefore, the appellant was charged for willfully defiling damaging and desecrating the copy of the Holy Quran in a derogatory and disrespectful manner.

3 The accused was summoned by

the learned trial Court and charge was framed against him, to which he pleaded not guilty and claimed trial. The prosecution was invited to produce its evidence, who accordingly examined seven (07) witnesses in support of their case and thereafter statement of the accused was recorded under section 342 Cr.P.C. On conclusion of proceedings in trial, accused/appellant was convicted and sentenced vide the impugned order/judgment 0 dated 25.03.2021 of the Court of leamed Additional Sessions Judge[zafr Zila Qazi Buner at Dagger, as stated hereinabove. The appellant has now challenged the aforesaid (D.B) Hon'blo ur, Ju.tlc. l, u h.mmld Nsoom Anw.. Hon'bla ll,. JuaUc.lluhammad lar Kh.n

order/ judgment by filing the instant appeal before this Court.

4 Arguments of learned counsel for the appellant as well as leamed Astt: A.G.

appearing on behalfofthe State were heard in considerable detail and the record perused with their able assistance, whereas the complainant stated that initially he was not in the knowledge that the appellant is an addict now he has been convinced that he is an addict, therefore, he does not want to engage a counsel and would rely on the arguments of leamed Astt: A.G.

5.It is the case of prosecution that on the day of occurrence the local SHO namely Abdul Wakil Khan got information that a person in village Cheena has damaged/defiled/desecrated the Holy Quran, therefore, he for confirmation and legal ^) action along with other police officials rushed to the spot where the complainant namely Nikas Ali (PW-4) in the company of other PWs namely Zar Farosh Khan (PW-5) and (D.B) Hon'blo ,. Ju3tlco uuhamm.d Naoom Anw.r Hon'blo Mr. Jusuc6 Muhammad ljaz Khan

Ateeq Ullah (the abandoned PW) produced the appellant along with the scripVcopy of the Holy Quran and reported the matter to local police to the effect that he being the close neighbor of the appellant namely Ziarat Shah was present in his house when at 13:30 hours he overheard noise from the house of the appellant, upon which he came out of his house and proceeded towards the house of appellant where PWs Zar Farosh and Ateeq Ullah were also attracted due to the aforesaid noise, when in the meanwhile the appellant came out of his house and was holding the scripUcopy of the Holy Quran in his hands who set ablaze the same and the Quran Majeed has not yet been set ablaze when he started tearing apart the pages of the Holy Quran and then threw the tom offpages along with script of the Holy Quran into the nearby -a j drain and thereafter he went to his house and when the PW namely Ubaid Ullah was collecting those tom off pages along with the copy of Holy Quran from the drain and they (D.B) lon'ote ur..tuetlco Muh.mmsd Neoom Anwat Hon'ble Mr, Juaucg Muhammad U.z Kh.n

started cleaning the same when in the meanwhile the appellant Ziarat Shah again came out of his house who was apprehended by the complainant-party and when they were about to take him for legal proceedings to the police station, when the local police itself reached to the spot, arrested the appellant and hence the ibid FIR was registered against him.

6 In this case the ocular account has fumished by PW-4 and PW-5 who are absolutely independent and disinterested witnesses. PW-4 namely Nikas Ali who is the complainant and one of eyewitnesses of the present case when appeared in Court has narrated a natural and straight-forward facts to the effect that initially the appellant set ablaze the copy of the Holy Quran and then started tearing off its pages and then put the same ,2 into the nearby drain and then in the cross- examination he has specifically been asked about any previous ill-will or grudges against the appellant which he has out-rightly denied.

(D.B) Hon'ble r, Juttlc.lluh.mmld Naoom Anw.r Hon'bla Mr. Ju.tlca ltruhammad lj3z Kh.n

Regarding the identity of the appellant when he was confronted he has straight-away stated that since they are close neighbors, therefore, he is acquainted with him and was already in the knowledge of his name as well as of his parentage. Similarly, when the other pW namely Zar Farosh Khan appeared in Court as PW-5 who too has specifically stated regarding the mode and manner of defiling/damaging/desecrating the copy of the Holy Quran and in the cross-examination he also stated that he was having a good relationship with the appellant and his father, however, due to the respect and honour for Holy Quran he has come forward to record his statement. In view of the above both these PWs have fumished a direct evidence regarding the commission of the offence by the appellant and have also established that * the offence of defiling/damaging/desecrating the copy of the Holy Quran has been committed in their presence and they were the D B) Hon'blo a. Jurtlco Uuhammad Naegm Anwla Hon'bl. rrir. Ju.tlc. uh.mm.d ljaz Khan

persons who apprehended the appellant on the

spot.

7 In view of the above, both these PWs i.e. PW-4 and pW-5 have produced a consistent, trustworthy and confidence inspiring evidence and no material whatsoever has been brought on record either to make the identity of the appellant as doubtful or to contradict the mode and manner of the occurence or that these PWs were not present on the scene of occurrence, or that the appellant was not apprehended by them at the time of occurrence, therefore, their statements have to be believed for maintaining the impugned judgment. In a situation akin to the p resent one in the case of "Shabbir Hussain v/s The Stqte" reported as 2021 198 the Hon'ble Apex Court has held that we have -& 1 gone through the statements of PWs and find them in a comfortable and confident unison on all the salient aspects of the raid as well as details collateral therewith. Leamed counsel for the petitioner has not been able to point (D.B) Hon'blo lrr. Justlc. Muh.mmad Nsoom Anw.r Hon'blo Mr, Juitlce Muhammad llaz Khsn

out any substantial or major variation or contradiction in their statements that may possibly justifu excluding their testimony from consideration. On the contrary, it sounds straightforward and confidence inspiring without a slightest tremor. Similarly, in the case of "Sved Iiaz Hussain alias Tahir Pir v/s The Slale" reported as 1994 MLD 15,the Hon'ble Lahore High Court has held the defiling, damaging or desecrating of a. copy of Holy Qur'an or of an extract therefrom if willfully must constitute an offence under section 295-B, P.P.C. The act of defiling or desecrating if done consciously and deliberately with or without the intention to damage and destroy the honour, respect and greatness in the eye of public in general or .6 j with the purpose to satisff one's own feelings shall be a willful act bringing the case within the purview of section 295-8, P.P.C.

8.It is the case of prosecution that when the appellant was apprehended by the PWs and when they were about to take him to D B) Hon'ble Mr. Juatlco lluhamoad Naogm Anwar Hon'bla ll,. Jutgca Muh.mmad l.l.z Khsn

the police station for legal action when in the meanwhile PW- 2 namely Abdul Wakil Khan, SHO in the company of other police officials reached to the spot and who then and there arrested the accused and took into possession the damaged copy of the Holy Quran along with tom off wet and partially burned pages of the Holy Quran and sealed the same into the parcels and proper recovery memo was prepared in the presence of the marginal witnesses. In the cross-examination due to the blessing of the defence counsel the departure of this PW from the police station and his arrival to the spot has been confirmed as it has been established that at the relevant time at about l3:45 hours he was present on the spot.

He has also confirmed that when he reached the spot the PWs were present there. He has 12 also confirmed that near the place of occurrence there are houses, which also supports the stance of the complainant-party, therefore, the statement of this PW too is in line with the statements rendered by PW-4 D B) Hon'bl6 llr. Juatlca liuhamm.d l,laeom Anwar Hon'bl. Mr. Ju.tlc. tluh.mmld qlz Kh.n

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and PW-5 and thus all the prosecution witnesses have fumished a consistent evidence to the effect that the appellant has willfully and intentionally acted in a manner which duly attracts the provision of section 295-8 PPC and their statements cannot be discarded on any principle of appreciation of evidence. In the case of "Tahir Naqash & others v/s The State & others" reported as PLD 2022 u Court 385 the Hon'ble Apex Court has observed that to constitute an offence under section 295-8, P.P.C. the accused must have defiled, damaged or desecrated a copy of the Holy Quran or an extract therefrom or use it in any derogatory manner or for any unlawful purpose.

9 The Investigation in this case was conducted by Sattar Khan who appeared as PW-7 who too has also conducted a honest and fair investigation as after deputing him as an Investigating Officer of the case he straight-away rushed to the spot where he has recovered the match box containing 21 match (D.B) Hoo'blo t r. Jurtlce Muhrmm.d Naeom Anwet Hon'blo llr, Juatlca uuhemmad li.z Khan

sticks along with half burnt match stick from the spot which he took into possession and sealed the same into parcels. The appellant also made pointation to the Investigating Officer then and there and who also recorded statements of the PWs including the inmates of the house under section 164 Cr.p.C and thus fully succeeded to connect the appellant with the commission of offence.

10.During the course of arguments as well as before the leamed trial Court one of defence plea of the appellant was that the appellant being an addict person, is not mentally sound, however, this plea of unsoundness has never been agitated by the appellant during the course of investigation nor before the trial Court nor the same established and proved on the face of record * and thus same remained a vague, evasive and unproved plea all along. The Investigating Officer namely Sattar Khan who appeared as PW-7 in his cross-examination has stated that during his investigation no evidence (D,B) Hon'ble lil,. Juitlco lluhammad Nasom Anwa, Hon'blo ltlr. Juatlco Muhammad Uaz Khan

whatsoever was produced before him suggesting that the appellant was having mental abnormality nor any such plea has been raised either by the appellant or his relatives and while stating his observations he explained that the appellant was apparently physically and mentally fit. Similarly, the mental condition of the appellant has also been confirmed from the complainant pW-4 namely Nikas Ali in his cross-examination who has stated that the appellant is mentally sound. Same was the response of PW-5 namely Zar Farosh Khan who too has stated that the appellant is mentally sound person, therefore, no benefit ofsuch plea could not be extended to the appellant. It is settled law that if a plea taken by the appellant is even prima facie proved or if the same is reasonable or if f the same is appealable or if the same is conceivable as against the prosecution story then benefit ofthe same could be extended to him, however, if the same is either unreasonable, non-appealable or the same is (D.B) Hon'blo Mr Juatlce lruhammad Naeam Anwar Hon'blo Mr Juatlco lluh8mmad lJ.z Khen

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not proved then the same has to be discarded and ignored and the prosecution story and evidence has to be accepted. It is also spelling out from the record that the appellant has not taken the plea of his unsoundness before the leamed trial Court nor before this Court in the memo of appeal, therefore, such arguments at this stage could be of no help for the appellant. In the case of ,,Illkhsr Ahmacl v/s The Stsle" reported as 2005 SCMR 272, the Apex Court has held that the plea of the learned counsel .that the petitioner was of unsound mind at the time of commission of the crime, therefore, in the light of the provisions of section 84, P.P.C. he had not committed any offence, is not bome out from the record. Had the accused petitioner taken this ground before the learned trial Court, it could have passed appropriate order by sending, him to the hospital ? for proper mental treatment, and after recovery the petitioner could have been summoned by the trial Court to face the trial. Even in his statement recorded under section 342, Cr.P.C. no plea of petitioner's insanity was raised, and if there was any such defence version, it would have been brought on the record through the statements of (D.B) Hon'ble Mr. Ju.tlc. uuh.mm.d Nao6m Anwar Hon'blo Mr. Jurtlc€ Muhammad llaz Xhan

the defence witnesses. In the case of ,,Akhtar &o tlt ers u/s The Stote' reported 2008 SCMR g[ and the case of,, t oth v/s

The repo rted 2 7S 661 the

Hon'ble Apex Court extended the benefit of the defence plea to the accused as such plea was fit in the matrix of those cases, however, in the present case the defence plea of the appellant is neither proved nor the same has been taken to the logical end.

11.In this the prosecution has also brought on record circumstantial evidence which too supports their stance as PW-4 and PW-5 have categorically stated that they took into possession the tom off pages, wet and partially damaged script of the Holy Quran and when they were about to take the appellant to the police station when the local police reached there and PW-2 namely Abdul q Wakil Khan, SHO took into possession the damaged copy of the Quran Majid along with torn off, wet and partially burnt pages and sealed the same into parcels which were (D.B) Hon'blo Ur, Jurtlc.lluh.mmad Naeem Anw.r Hon'bla llr. Juatlco Muhemmad ljaz Khan

exhibited as Ex. p-l and were taken into possession vide recovery memo Ex. pW_Zll in the presence of the marginal witnesses namely Said Nawab Khan and Sajid Mehmood and later on in support of the said recovery memo Sajid Mehmood was also produced as PW-3 who too has endorsed the recovery of the damaged copy of the euran Majid along with torn off, wet and partially bumt pages, therefore, the prosecution has also collected substantial and required material in the shape of recovery of the damaged copy of the Holy Quran and as such has established and proved that the appellant has intentionally and knowingly committed the offence.

t2. It may also be noted that in this case the damaged, torn off, wet and partially burnt pages of Holy Quran have been collected then and there on the spot and the appellant was also apprehended on the spot by PW-4 and PW-5 along with the (D B ) Hon'blo Mr. Ju3tlce Muhammsd Naeom Anwat Hon'bl6llr. Ju8tlce Muhammad ljez Khan

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abandoned PW and then PW-2 namely Abdul Wakil Khan, SHO reached there who arrested the appellant and took into possession the damaged copy of the Holy Quran and then all these PWs appeared in the Court and fumished a direct evidence of the occurrence, therefore, no possibility of any false implication or any other parallel theory of consultations or deliberations could be presumed or inferred or advanced for the innocence ofthe appellant, therefore, it is a fit case for the grant of maximum dose provided under the law. It is settled law that when once prosecution succeed to establish its case then the Courts of law should not hesitate to grant the maximum punishment' In the case of uIm dad th & anoilter v/s Th e State" r eporte d as 2015 85 the \ Apex Court has held that where the prosecution t7 not has proved its case then lenient view should be taken and the Courts of law should not (D.B) Hon'bla ur. Jutuca l'uhsmm'd Naoem Anw'r '- ' Hon'ble li.. Ju.Uc.lluhamm'd lia2 Kh3n

hesitate in awarding the maximum punishment.

13.In light of what has been discussed above, it is held that the leamed trial Court has rightly convicted the appellant after finding him guilty for commission of the offence by recording valid reasons in the impugned judgment and as such the appeal in hand filed by the appellant against his conviction is found devoid of any force and the same is accordingly dismissed.

Announced Dt. 06.12.2022

JUDGE

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(o.B) Hon'bl. r Juauca iiuhsmmtd Naoom Anwar Hon'bl. llr Ju.llc. lluh.mmld ljfl Kh.n