Stereo.

HCJDA 38
JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Criminal Appeal No. 769/2014

Shafqat Masih etc. Vs. The State etc.

CSR No. 8/T/2017

The State Vs. Shafqat Masih etc.

JUDGMENT

Date of hearing 03.06.2021

Mr. Saif-ul-Malook, Advocate, with Sardar

Appellants by:
Khalil Tahir Sindhu, Advocate.
Mr. Muhammad Moeen Ali, Deputy Prosecutor
State by:
General.
Mr. Muhammad Tauqeer Ashraf, Advocate, with
Complainant by: Mr. Ghulam Mustafa Chaudhry and Malik
Zeeshan Ahmad Awan, Advocates.

O‟ believers! Stand-up firmly by the Commandments of Allah bearing witness

with justice and let not the enmity of any people incite you that you should not
do justice. Do justice that is nearer to piety and fear Allah, undoubtedly, Allah
is aware of your doings.1

Tariq Saleem Sheikh, J.- Through this judgment we

propose to decide Crl. Appeal No. 769/2014 and CSR No. 8/T/2017 as
both arise from case FIR No. 407/2013 dated 20.7.2013 registered at
Police Station City Gojra, District Toba Tek Singh, for offences under
sections 295-B, 295-C, 201 PPC and section 25-D of the Telegraph Act,
1885.

1
Holy Quran, Surah Al-Maidah, Verse 8
Crl. Appeal No.769/2014 & -2-
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Facts

2. According to the prosecution, on 18.7.2013 at about 10:15

p.m. Complainant Muhammad Hussain (PW-4) was offering prayers
(Namaz-e-Taravih) at Talaab-Wali Mosque in Chak No.365, Gojra, when
he received a text message (SMS) on his cell phone No.0300-6553526.
After finishing the prayer when he checked the phone he found that it was
a sacrilegious text from an unknown number 0303-9445368. The
Complainant was dismayed and showed it to other people in the mosque,
including Muhammad Shabbir (PW-5) and Khalid Maqsood (not
produced). On 20.7.2013, he went to the office of Sajjad Asghar Khokhar,
Advocate (PW-3), to initiate legal proceedings against the culprit.
He was still there when he received five more SMS from the aforesaid
number with the same irreverent content. He showed them to Sajjad
Asghar who called the sender from his own cell phone (No.0300-
6550125) to know who he was but he dismissed the call. However, a few
moments later that person forwarded the above-mentioned SMS 3/4 times
to Sajjad Asghar as well. Muhammad Hussain took his cell phone to
Abdul Qadir (PW-6), a shopkeeper who dealt in mobile phones and
accessories in Gojra, and showed him the SMS. He took its snap and e-
mailed it to S.A.R. Digital Colour Lab. where Samiullah Khan (PW-7)
took its print-out. Muhammad Hussain then drew complaint Exh. PJ and
submitted it to the police with the print-out Exh. PJ/2 contending that the
person who had sent the aforementioned SMS had committed blasphemy
and outraged his religious sentiments and that of other Muslims.
Consequent thereupon FIR No. 407/2013 dated 20.7.2013 Exh. PK was
registered.

3. After lodging the FIR Exh. PK Complainant Muhammad

Hussain (PW-4) went to the franchise of Mobilink,2 the mobile network
and internet service provider doing business as Jazz, to determine the
identity of the sender of the derogatory SMS. Rashid Mehmood (PW-9),
an employee of the franchisee, apprised him that SIM No.0303-9445368
was purchased by Shagufta Kausar and her husband Shafqat Masih on

2
Trade name of Pakistan Mobile Communications Limited
Crl. Appeal No.769/2014 & -3-
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15.12.2012. Muhammad Hussain obtained their particulars from the

franchise and learnt that they lived in the Bishop Compound at Mission
Road, Gojra, and approached the police for their arrest.

4. On 20.07.2013 the Regional Police Officer entrusted the

investigation of the case to Muhammad Nasir Sial, Superintendent of
Police, Madina Town, Faisalabad (PW-11). The following day he went to
Chak No.365 where Complainant Muhammad Hussain (PW-4) submitted
his cell phone (P-1) and SIM No.0300-6553526 (P-3) on which he had
received the derogatory messages and got his supplementary statement
recorded nominating Shafqat Masih and Shagufta Kausar as accused.
Nasir Sial/SP secured both the articles vide Recovery Memo Exh. PM.
Sajjad Asghar, Advocate (PW-3), joined the investigation and stated that
on 20.7.2013 he also received the same text message four times. He
produced his cell phone (P-2) to the Investigating Officer who secured it
vide Recovery Memo Exh. PL. The same day, i.e. 21.7.2013, Nasir
Sial/SP raided the house of Shafqat and Shagufta and arrested them. They
confessed their guilt. Shafqat handed over to him his Nokia 1208 phone
(P-4). Shagufta brought an iron box from which Shafqat produced the
jacket of SIM No.0303-9445368 (P-5), purchase receipt of the said SIM
(P-6) and his National Identity Card (P-7) which he secured vide
Recovery Memo Exh. PP. It is alleged that Shagufta Kausar had destroyed
SIM No.0303-9445368. In the evening Nasir Sial/SP produced Shafqat
before the Judicial Magistrate, Sajid Mehmood (PW-10), for recording his
statement under section 164 Cr.P.C. He confessed his guilt before him as
well. Later both the accused were sent to judicial lock-up.

5. On 07.12.2013 Shafqat and Shagufta were indicted. They

pleaded not guilty and claimed trial. The prosecution examined 12
witnesses to prove its case and after it finished the court recorded the
statements of the accused under section 342 Cr.P.C. confronting them
with the evidence brought against them during the trial. They refuted it
and professed innocence. They maintained that the Complainant had
framed them in the case at the behest of their neighbour Nazir Masih with
whom they had an altercation 7/8 months prior to the registration of the
Crl. Appeal No.769/2014 & -4-
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crime report. Shafqat also retracted the confession and said that he had
made it under duress. The accused neither opted to make statements on
oath under section 340(2) Cr.P.C. nor examined any witness in their
defence.

6. On conclusion of the trial, vide judgment dated 4.4.2014, the

learned Additional Sessions Judge convicted and sentenced Shafqat and
Shagufta as under:

i) Convicted under section 295-C/34 PPC and sentenced to death

with fine of Rs.100,000/- and in default thereof to undergo
simple imprisonment for six months each (in case death is not
confirmed by the High Court);

ii) Convicted under section 201/34 PPC and sentenced to rigorous

imprisonment for one year each;

iii) Convicted under section 25-D of the Telegraph Act, 1885, read
with section 34 PPC and sentenced to rigorous imprisonment
for one year each.

7. Shafqat Masih and Shagufta Kausar (hereinafter jointly

referred to as the “Appellants”) have filed Crl. Appeal No.769/2014
against their conviction and sentence while the Additional Sessions Judge
has made a reference (CSR No. 8/T/2017) to this Court under section 374
Cr.P.C. for confirmation of their death penalty.

Arguments

8. The learned counsel for the Appellants, Mr. Saif-ul-Malook,

Advocate, contended that the Appellants were law abiding citizens and
had never indulged in any activity that could hurt the feelings of the
Muslims. He further contended that the Additional Sessions Judge had
failed to appreciate the prosecution evidence in accordance with law
which had caused serious miscarriage of justice. He argued that, firstly,
the prosecution evidence was fabricated and unreliable. Secondly, the
prosecution had failed to prove that SIM No.0303-9445368 was
purchased by the Appellants or was in their use at any point of time.
Thirdly, the Nokia phone (P-4), and the jacket (P-5) and the invoice (P-6)
of the aforementioned SIM were foisted on the Appellants. Fourthly, the
alleged extra-judicial confession of the Appellants before Nasir Sial/SP
(PW-11) and the judicial confession of Appellant Shafqat before Sajid
Crl. Appeal No.769/2014 & -5-
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Mehmood (PW-10) were inadmissible. And lastly, Shafqat‟s judicial

confession could not be used against Shagufta. The learned counsel
prayed that Crl. Appeal No.769/2014 be accepted and the Appellants be
acquitted of the charge.

9. Mr. Muhammad Moeen Ali, Deputy Prosecutor General,

assisted by Mr. Muhammad Tauqeer Ashraf, Advocate, the learned
counsel for the Complainant, controverted the above contentions. He
contended that the prosecution had proved its case beyond reasonable
doubt. The Complainant and other prosecution witnesses had no motive to
prosecute the Appellants on trumped up charges. During investigation
Shafqat categorically admitted that he and his spouse, Shagufta Kausar,
longed to go to Europe and had deliberately committed the offence to get
a visa.

Discussion

10. Article 4 of the Constitution of the Islamic Republic of

Pakistan, 1973, stipulates that every citizen, wherever he may be, and
every other person for the time being in Pakistan has an inalienable right
to enjoy the protection of law and to be treated in accordance with law. In
particular, no action detrimental to his life, liberty, body, reputation or
property shall be taken except in accordance with law. Then, Article 9
commands that no person shall be deprived of his life or liberty save in
accordance with law and Article 10 provides safeguards as to arrest and
detention. Articles 9 and 10 are contained in Part-II Chapter I of the
Constitution which relates to Fundamental Rights. In Ismaeel v. The State
(2010 SCMR 27) the Hon‟ble Supreme Court of Pakistan observed that
the rights guaranteed under Articles 4, 9 and 10 are sacrosanct and
jealously guarded by our courts.

11. It is the duty of the courts to decide the cases dispassionately

on the basis of available evidence without being influenced by emotions.
And where the offence alleged is heinous, as in the instant case, they
should be all the more cautious. In Azeem Khan and another v. Mujahid
Khan and others (2016 SCMR 274) the Hon‟ble Supreme Court of
Crl. Appeal No.769/2014 & -6-
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Pakistan said that a Judge would arrive at a wrong conclusion if he allows

himself to be influenced by the nature of crime or some extraneous
consideration. In Ali Raza alias Peter and others v. The State and others
(2019 SCMR 1982) the Supreme Court held that even a person accused of
the “most heinous” offence is entitled to a right of fair trial and a
meaningful opportunity to defend himself. Collective human wisdom has
not been able to develop a procedure better than due process of law. More
recently, in Naveed Asghar and 2 others v. The State (PLD 2021 SC
600), which involved five murders, the apex Court held:

“The ruthless and ghastly murder of five persons is a crime of heinous

nature; but the frightful nature of crime should not blur the eyes of
justice, allowing emotions triggered by the horrifying nature of the
offence to prejudge the accused. Cases are to be decided on the basis of
evidence and evidence alone and not on the basis of sentiments and
emotions. Gruesome, heinous or brutal nature of the offence may be
relevant at the stage of awarding suitable punishment after conviction;
but it is totally irrelevant at the stage of appraising or reappraising the
evidence available on record to determine guilt of the accused person,
as possibility of an innocent person having been wrongly involved in
cases of such nature cannot be ruled out. An accused person is
presumed to be innocent till the time he is proven guilty beyond
reasonable doubt, and this presumption of his innocence continues until
the prosecution succeeds in proving the charge against him beyond
reasonable doubt on the basis of legally admissible, confidence
inspiring, trustworthy and reliable evidence.”

The august Supreme Court further observed:

“No matter how heinous the crime, the constitutional guarantee of fair
trial under Article 10-A [of the Constitution of Islamic Republic of
Pakistan, 1973] cannot be taken away from the accused. It is, therefore,
duty of the court to assess the probative value (weight) of every piece
of evidence available on record in accordance with the settled
principles of appreciation of evidence, in a dispassionate, systematic
and structured manner without being influenced by the nature of the
allegations. Any tendency to strain or stretch or haphazardly appreciate
evidence to reach a desired or popular decision in a case must be
scrupulously avoided or else highly deleterious results seriously
affecting proper administration of criminal justice will follow. It may
be pertinent to underline here that the principles of fair trial have now
been guaranteed as a Fundamental Right under Article 10-A of the
Constitution and are to be read as an integral part of every sub-
constitutional legislative instrument that deals with determination of
civil rights and obligations of, or criminal charge against, any person.”

12. After this prologue we turn to the case before us. At the very
outset, we observe that the incident was reported to the police with
inordinate delay. According to the prosecution, Complainant Muhammad
Crl. Appeal No.769/2014 & -7-
CSR No.8/T/2017

Hussain (PW-4) received the blasphemous SMS on 18.07.2013 but he

lodged the FIR Exh. PK two days later, i.e. on 20.07.2013. Keeping in
view the sensitivity of the issue and the manner in which the Complainant
subsequently conducted himself, we find no explanation for this delay. In
Mst. Asia Bibi v. The State and others (PLD 2019 SC 64) the Hon‟ble
Supreme Court held:

“In this regard reference has been made by the learned counsel for the
Complainant to the judgments of this Court reported as Zar Bahadar v.
The State (1978 SCMR 136) and Sheraz Asghar v. The State (1995
SCMR 1365) to contend that the delay in registration of a FIR is not
per se fatal in all the cases as it never washes away nor torpedoes
trustworthy and reliable ocular and circumstantial evidence. There is no
cavil to the proposition. However, it is to be noted that in absence of
any plausible explanation, this Court has always considered the delay in
lodging of FIR to be fatal and held that it casts a suspicion on the
prosecution story and has extended benefit of doubt to the accused. It
has been held by this Court that a FIR is always treated as a cornerstone
of the prosecution case to establish guilt against those involved in a
crime. Thus, it has a significant role to play. If there is any delay in
lodging of a FIR and commencement of investigation, it gives rise to a
doubt which, of course, cannot be extended to anyone else except to the
accused.”

13. The courts all over the world are making increasing use of
the evidence becoming available through modern technology. In Pakistan,
Article 164 of the Qanoon-e-Shahadat Order, 1984 (QSO), provides the
legal pedestal therefor. It mandates:

164. Production of evidence that has become available because of

modern devices etc.– In such cases as the court may consider
appropriate, the court may allow to be produced any evidence that may
have become available because of modern devices or techniques.
Provided that conviction on the basis of modern devices or
techniques may be lawful.

14. Article 164 of the QSO may be termed as the enabling

provision. The procedure to prove the evidence collected through modern
techniques is laid down in Articles 46-A and 78-A thereof and the
Electronic Transactions Ordinance (LI of 2002). In Ishtiaq Ahmed Mirza
and 2 others v. Federation of Pakistan and others (PLD 2019 SC 675)
the Hon‟ble Supreme Court held that this has “smoothened the procedure
to receive such evidence.”3 SMS, which stands for Short Messaging

3
Also see: Ali Raza alias Peter and others v. The State and others (2019 SCMR 1982) and Mian Khalid
Perviz v. The State through Special Prosecutor ANF and another (2021 SCMR 522).
Crl. Appeal No.769/2014 & -8-
CSR No.8/T/2017

Service and is commonly known as texting, “is one of the most

deliverable forms of communication worldwide.”4 Research shows that it
has a delivery rate of 99.9% and 90% of the text messages are opened
within three minutes of receipt.5 SMS is covered by Article 164 of the
QSO and is admissible to prove a fact subject to the following three
conditions:

i) the fact sought to be proved is relevant, i.e. it must be

“of consequence to the determination of the case”;

ii) the text is not a hearsay; and

iii) its authenticity is duly established at the trial.

In Commonwealth v. Duncan Purdy, 459 Mass. 442, it was held that

even if the defendant‟s name is on the text message there may be
situations in which it may be necessary for a party to prove some
“confirming circumstances” that demonstrate authorship.

15. In the instant case, the prosecution produced oral as well as

documentary evidence to prove the charge against the Appellants.
Complainant Muhammad Hussain (PW-4) testified that on 18.7.2013 at
about 10:15 p.m. he was offering prayers at Talaab-Wali Mosque when he
received blasphemous text messages from Cell No.0303-9445368. On
20.7.2013 he went to the office of Sajjad Asghar Khokhar, Advocate
(PW-3), to initiate legal proceedings against the culprit. He was still there
when he received five more SMS from the aforesaid number containing
the same sacrilegious content. He showed them to Sajjad Asghar who
called the sender from his own Cell No.0300-6550125 to know who he
was but he dismissed the call. However, a few moments later that person
forwarded the above-mentioned SMS to Sajjad Asghar as well four times.
Muhammad Hussain‟s cell phone was exhibited as P-1 and SIM as P-3.
The prosecution examined Sajjad Asghar (PW-3) who confirmed the
happening of the 20th July and got his handset exhibited as P-2.
Muhammad Shabbir (PW-5) came for corroboration of those witnesses.
He deposed that on 18.7.2013 he was in the mosque with Muhammad
Hussain and on 20.7.2013 accompanied him to Sajjad Asghar‟s office and
4
How reliable is SMS delivery? [Accessed at https://help.sendinblue.com>articles]
5
ibid
Crl. Appeal No.769/2014 & -9-
CSR No.8/T/2017

added that he read the derogatory text messages received by them. Abdul
Qadir (PW-6) was a vendor of mobile phones and accessories in Gojra.
Device P-1 was non-smart phone so PW Muhammad Hussain took it to
him with the SIM. He photographed the SMS and e-mailed it to Samiullah
Khan (PW-7) who helped with the print-out Exh.PJ/2. On 21.7.2013 the
Investigating Officer, Nasir Sial/SP (PW-11), sent the cell phones P-1 and
P-2 to Uns Rasheed/ASI (PW-1), Incharge, District Commandant Control
Room, DPO Office, Toba Tek Singh, who took the print-outs (Exh. PA
and PB) of the said text messages. This evidence shows that Muhammad
Hussain and Sajjad Asghar received irreverent SMS from Cell No.0303-
9445368 but the Appellants can be convicted only if the prosecution
establishes that the handset P-4 belonged to them or was in their use and
they authored and sent the texts. As we shall discuss below, it has
miserably failed on all the counts.

16. Pakistan Telecommunication Authority (PTA) has issued

Standard Operating Procedure (SOP) for sharing of information by the
companies providing mobile network and internet service (the “Mobile
Companies”) with the law enforcement agencies. Under the SOP in force
in July 2013 the police could seek Call Data Record (CDR) of a cellular
subscriber via the Intelligence Bureau, Government of Pakistan. On
20.7.2013, the District Police Officer, Toba Tek Singh, addressed Letter
No.169/Mob/G-A (Exh. PB) to the competent authority for provision of
CDRs of Cell Nos.0300-6553526 and 0300-6550125 (two numbers).
However, neither the reply of the Intelligence Bureau nor Mobilink by
way of letter or e-mail has been adduced in evidence to establish that the
requisite data was furnished to the DPO‟s Office. Record shows that in a
separate communication, vide Letter No.510/PA (MD) dated 21.7.2013
(Exh. PW), Muhammad Nasir Sial/SP (PW-11) requested the DPO to
approach the Intelligence Bureau for the CDRs of the three cell numbers
involved in the case, i.e. 0303-9445368, 0300-6553526 and 0300-
6550125. It appears that the DPO did not take any action on it in view of
his aforementioned correspondence. In the circumstances, an important
link to establish the authenticity of the data Exh. PE/1-2, Exh. PG/1-3 and
Exh. PH/1-5 which Uns Rasheed/ASI retrieved on 21.7.2013 is missing.
Crl. Appeal No.769/2014 & - 10 -
CSR No.8/T/2017

17. One may think that the above objection is technical but it is
not. In his letter Exh.PB the DPO requested for the CDR of only two
numbers mentioned in the preceding paragraph which belonged to PWs
Muhammad Hussain and Sajjad Asghar on which they received the
derogatory SMS. It did not include Cell No.0303-9445368 (attributed to
the Appellants) from which they were sent. As already noted, according to
the SOP in force in July 2013, the police did not have direct access to the
data of cellular subscribers. Hence, it was incumbent on the prosecution to
prove that they made a request to the service provider through the
prescribed channel and it furnished them the requisite data by the same
conduit. In our opinion, Exh. PE/1-2, Exh. PG/1-3 and Exh. PH/1-5
cannot be used against the Appellants.

18. Rashid Mehmood (PW-9) is one of the most important

witnesses because through him the prosecution seeks to prove that SIM
No.0303-9445368 belonged to the Appellants. He testified that he was
working as Customer Care Representative at Mobilink. On 15.12.2012 the
Appellants came to him and purchased the aforementioned SIM in
consideration of Rs.100/- and he issued them a receipt. He further stated
that Shafqat made the payment while the SIM was issued in the name of
Shagufta. He produced the Receipt Book which was exhibited as P-8. The
carbon copy of the receipt pertaining to SIM No.0303-9445368 was at
Serial No.78 in that book and marked as P-8/1. Before analyzing the
deposition of PW Rashid Mehmood we need to refer to the regulatory
regime that governed the Mobile Companies in those days.

19. PTA issued revised SOP for the Mobile Companies vide
Letter No.15-9/2012/Enf/PTA dated 13.3.2012. Some of the instructions
that are relevant for this case are mentioned below:

i) The sale outlets of the Mobile Companies were

divided into three categories: (a) company‟s own
Customer Sales/ Services Centres (CSCs), (b)
Franchises, and (c) Registered Retailers.
ii) Every sale channel (CSC, Franchise or Registered
Retailer) had a Unique ID. Non-active pre-paid SIMs
(including but not limited to stalls, stalls under
Crl. Appeal No.769/2014 & - 11 -
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umbrellas, footpaths, make-shift shops etc.) could be

sold only through the holder of “Unique ID”.

iii) Retail Shops were further classified as under:

a) Dedicated business of SIM sale;

b) Involved in other business related

telecommunication only, e.g. sale/purchase of
telecom equipment/accessories, re-load, pre-
paid cards etc.;

c) Any other premises having Unique ID.

iv) The Mobile Companies were required to sign fresh

agreements with their franchisees and the latter with
the retailers within a stipulated period and confirm the
same to PTA.

v) The Mobile Companies were required to issue

registration letters/authorization certificates to the
franchisees and retailers and they were obligated to
display them at a suitable place in their premises.

vi) Mobile Companies were required to maintain record of

SIMs/connections sold by franchisees/retailers for
tracking and share them with PTA on quarterly basis.

vii) The Mobile Companies were required to establish a

Call Centre to handle verification and activation
process.

viii) The Mobile Companies were required to establish a

system for maintaining Cellular Service Agreement
Form in electronic format (e-CSAF) enabling
automation of pre-sale and post-sale process through
cross verification of subscribers‟ antecedents from
NADRA‟s Database.

ix) The sale outlets could only sell inactive

connections/SIMs. The Mobile Companies‟ own CSCs
and Call Centres had the sole authority to verify and
activate them.
x) Post-paid/Data SIMs could only be purchased from
CSCs and franchises. The retailers were not
authorized.

20. Rashid Mehmood (PW-9) claimed that he was the Customer

Care Representative of Mobilink Franchise but neither he produced its
Registration Letter/Authorization Certificate nor his own appointment
Crl. Appeal No.769/2014 & - 12 -
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letter. Apart from that we have noted the following issues with his
deposition owing to which he cannot be relied upon:

i) In his examination-in-chief Rashid Mehmood stated

that on 15.12.2012 Shafqat came to him with his
spouse Shagufta to purchase a SIM. However, in his
cross-examination he said that Shagufta came into the
outlet while Shafqat remained outside.

ii) The receipt P-8/1 is in the name of Shafqat and bears

his CNIC. It was dishonestly on Rashid Mehmood‟s
part to draw it that way if he had not come to the
counter.
iii) The Receipt Book P-8 is itself dubious. During the
hearing of this appeal we de-sealed and examined it in
open court. We noted that it is of ordinary pattern and
can be easily fabricated. There is no explanation why it
is not on the franchise‟s official stationery.6 We have
also found that it is in one hand and appears to have
been prepared in one sitting.

iv) Ordinarily receipt books have 100 leaves which are

serially numbered by machine. The Receipt Book P-8
has 94 leaves and are not so numbered. Receipt P-8/1
is also numbered by hand.

21. We are chagrined that this case was investigated by an

officer of the rank of Superintendent of Police but he did not make any
effort to cross-check the information furnished to him by Rashid
Mehmood. The purpose of referring to the SOP issued by PTA in
paragraph 19 of this judgment was to show that Mobilink had a
comprehensive back-up system which he could have utilized in his
investigation.

22. The prosecution claims that Nokia 1208 phone (P-4) was
used by the Appellants for sending the blasphemous texts and the said
device alongwith the jacket of SIM No.0303-9445368 (P-5) and the
purchase receipt (P-6) were recovered from them. As regards the SIM, it
is alleged that the Appellants destroyed it but there is no evidence to that
effect. Recovery of the handset is indeed important but it must be
corroborated by some independent evidence before it is relied upon. In the
instant case, it was particularly necessary because the SIM was not

6
The Senior Court Associate re-sealed P-8 after the examination.
Crl. Appeal No.769/2014 & - 13 -
CSR No.8/T/2017

recovered. The IMEI number7 of a phone contains secret information

about the product and can also help in ascertaining the location of the user
and tracking him down. The Investigating Officer did not probe the matter
on the basis of the IMEI number of phone P-4.

23. The fact that we do not find ourselves comfortable with

phone P-4 also renders the alleged recovery of the SIM jacket P-5 and the
purchase receipt P-6 inconsequential. However, we have an additional
reason to reject this evidence. People in our society generally do not
preserve such things and in shantytowns the practice is almost non-
existent. It is queer that the Appellants had them more than seven months
after they allegedly purchased SIM No.0303-9445368.

24. In order to bring home guilt to the Appellants the prosecution

was also required to establish that they authored the profane texts. It has
failed on this score as well. Nasir Sial/SP (PW-11) categorically admitted
in his cross-examination that nobody had seen the Appellants sending the
SMS. He deposed:

“I have not found any such person who had seen the accused while
sending the SMS. Volunteered that I have only collected electronic
evidence and confession of the accused.”

25. The text of the sacrilegious messages was in Roman English.

It has come in evidence that the Appellants are semi-literate having
studied only upto the seventh or eighth grade. Keeping in view the
standard of education in the backward area of Chak No.365, Gojra, it is
doubtful that they could compose it.

26. There is one more point that has intrigued us. Exh.PE shows
that during the period SIM No.0303-9445368 was active, thirty-eight (38)
SMS were sent from it to different numbers out of which 23 were text to
0334-6400737. There is no complaint from any recipient except PWs
Muhammad Hussain and Sajjad Asghar. The Investigating Officer was
7
The IMEI number or in other words International Mobile Equipment Identity is a unique 15-digit code
that precisely identifies the device with the SIM card input. The first 14 digits are defined by GSM
Association. The last digit is generated by an algorithm name Luhn formula and it has a control
character. This number is an individual number assigned to each and every phone all over the world.
The IMEI was created because the SIM card number cannot be a permanent identifier of the device. The
SIM Card is associated with the user and can be easily transferred from one phone to the other.
(source: IMEI.info)
Crl. Appeal No.769/2014 & - 14 -
CSR No.8/T/2017

obligated to interview those people, particularly the user of SIM

No. 0334-6400737, but he did not.

27. Next we take up the confession of the Appellants made to

Nasir Sial/SP (PW-11) and the judicial confession of Shafqat before Sajid
Mehmood, Judicial Magistrate (PW-10).

28. The word “confession” has not been defined in the QSO. In
Article 21 of his Digest of the Law of Evidence Justice Stephen stated that
“a confession is an admission made at any time by a person charged with
a crime, stating or suggesting the inference that he committed that crime.”
However, the Privy Council did not accept this definition for the purposes
of the Evidence Act, 1872, in India. Considering the matter in Pakala
Narayana Swami v. Emperor (AIR 1939 PC 47) Lord Atkin observed:

“A confession must either admit in terms the offence, or at any rate

substantially all the facts which constitute the offence. An admission of
a gravely incriminating fact, even a conclusively incriminating fact is
not of itself a confession, e.g. an admission that the accused is the
owner of and was in recent possession of the knife or revolver which
caused a death with no explanation of any other man‟s possession.
Some confusion appears to have been caused by the definition of
„confession‟ in Article 22 of Stephen‟s „Digest of the Law of Evidence‟
which defines a confession as an admission made at any time by a
person charged with a crime stating or suggesting the inference that he
committed that crime. If the surrounding articles are examined it will
be apparent that the learned author after dealing with admissions
generally is applying himself to admissions in criminal cases, and for
this purpose defines confessions so as to cover all such admissions, in
order to have a general term for use in the three following articles,
confession secured by inducement, made upon oath, made under a
promise of secrecy. The definition is not contained in the Evidence Act,
1872 and in that Act it would not be consistent with the natural use of
language to construe confession as a statement by an accused
„suggesting the inference that he committed‟ the crime.”

29. The Hon‟ble Supreme Court of Pakistan approvingly cited

Pakala Narayana Swami’s case in Raza v. The State8 and further
observed:

“There is a distinction between admissions and confessions. It would

appear that confessions are a species of which admission is the genus.
All admissions are not confessions, but all confessions are admissions.
If the statement by itself is sufficient to prove the guilt of the maker, it
is a confession. If, on the other hand, the statement falls short of it, it
amounts to an admission. No statement, which contains self-

8
Crl. Petition Nos.1124-L of 2015 and 1120-L of 2015 decided on 25.06.2020
(Available at: Crl.p_1124_I_2015.pdf)
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exculpatory matter, can amount to a confession, if the exculpatory

statement is of some fact which, if true, would negate the guilt. A
confession is thus an admission by an accused in a criminal case and if
he does not incriminate himself, the statement cannot be said to be a
confession.”

30. The substantive law of confession is contained in Articles 37

to 43 of the QSO. The object of law is to ensure that a confession should
be free and voluntary. It should proceed “from remorse and a desire to
make reparation for the crime.”9 Article 37 of the QSO stipulates that a
confession made by an accused is irrelevant if it is caused by any
inducement, threat or promise proceeding from a person in authority.
However, Article 41 provides that it would become relevant if that
inducement, threat or promise is removed. Article 38 interdicts
confessions made to a police officer. Article 39 ordains that no confession
made by a person while he is in the custody of police, unless it is made in
the immediate presence of a Magistrate, shall be proved against him.
Article 40 says that so much of such information that distinctly leads to
the discovery of a fact alone is admissible in evidence. It is an exception
to Articles 38 and 39 of QSO. Commenting on section 26 of the Indian
Evidence Act, 1872, which is pari materia with Article 39 of QSO,
Woodroffe & Amir Ali write:10

“Under the Indian Evidence Act the Miranda11 exclusionary rule that
custodial interrogations are inherently coercive, finds expression in
section 26, although the Indian provision confines it to confession,
which is a narrower concept than self-incrimination. Section 26 makes
a provision for a confession by accused while in custody of police to be
inadmissible, unless it is made in the immediate presence of a
magistrate.”

31. Nasir Sial/SP (PW-11) testified that the Appellants confessed

their guilt before him. According to him, Shafqat also stated that he
cherished to migrate to Europe with his family and the blasphemous SMS
was a means to achieve that goal. He had 5/6 SIMs but obtained the
“mischievous” one in the name of Shagufta “with her connivance.” The
alleged confession is hit by Article 38 of QSO. Accordingly, we hold that
it is inadmissible and respectfully adopt the following observations of

9
Cave J. in R v. Thompson, (1893) 2 Q.B. 12
10
Woodroffe & Amir Ali, Law of Evidence, 20th Edition, p. 1495.
11
Miranda v. Arizona, (1966) 384 US 436.
Crl. Appeal No.769/2014 & - 16 -
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Shah, J. in State of Uttar Pradesh v. Deoman Upadhyaya (AIR 1960 SC

1125):

“Sections 25 and 26 [of the Indian Evidence Act, 1872]12 were enacted
not because the law presumed the statements to be untrue, but having
regard to the tainted nature of the source of the evidence, prohibited
them from being received in evidence. It is manifest that the class of
persons who needed protection most were those in the custody of the
police and persons not in the custody of police did not need the same
degree of protection.”

32. The law regarding judicial confessions is set out in section

164 Cr.P.C. read with section 364 Cr.P.C. and Chapter 13 of Volume III
of the Lahore High Court Rules and Orders which may be summarized as
follows:

(a) Section 164 Cr.P.C. deals with the recording of statements and
confessions at any stage before the commencement of an
inquiry or trial. Section 342 Cr.P.C. deals with the examination
of accused persons during the course of an inquiry or trial.
Section 364 Cr.P.C. prescribes the manner in which the
examination of an accused person is to be recorded.

(b) Statements or confessions made in the course of an

investigation can be recorded only by a Magistrate of the First
Class or a Magistrate of a Second Class who has been specially
empowered by the Provincial Government. However, it is not
necessary that the Magistrate recording the confession should
be the Magistrate having jurisdiction in the case.

(c) The confession must be recorded and signed in the manner

provided in section 364 Cr.P.C.

(d) Police officers investigating the case should not be present at

the time when the Magistrate records the confessional
statement.

(e) Before recording any confession the Magistrate should explain

to the person making it that he is not bound to make the
confession and that if he does so it may be used as evidence
against him.

(f) A Magistrate should not record any such confession unless

upon questioning the accused person he is satisfied that he is
making it voluntarily. For this purpose he should put him the
questions stipulated in Rule 5 of Chapter 13 of Volume III of
the Lahore High Court Rules and Orders and record his answers
thereto. If the answers are ambiguous he may put him such
further questions as may be necessary. In order to determine
whether the confession is voluntary the Magistrate should
consider inter alia the period during which the accused person
has been in police custody. He should also ensure that the
confession is not the result of any undue influence or ill-
treatment.

12
See Articles 38 and 39 of QSO.
Crl. Appeal No.769/2014 & - 17 -
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(g) In order to further ensure that a confession under section 164

Cr.P.C. is made voluntarily, before he proceeds to record the
confession the Magistrate should allow the accused person
some time to ponder and during that period he should be kept
out of the hearing of police officers and other persons likely to
influence him.

(h) The memorandum set forth in section 164(3) Cr.P.C. must be

appended at the foot of the record of the confession.

(i) The confession should be recorded in open court and during

court hours unless there are exceptional reasons.

33. Rule 3 of Chapter 13 Volume III of the High Court Rules and
Orders talks of the presumption attached to the confession recorded by the
Magistrate and its evidentiary value. It stipulates:

(i) Under Article 91 of the Qanun-e-Shahadat Order, 1984, a court

is bound to presume that a statement or confession of an
accused person, taken in accordance with law and purporting to
be signed by any Judge or Magistrate, is genuine, and that the
certificate or note as to the circumstances under which it was
taken, purporting to be made by the person signing it, are true,
and that such statement or confession was duly taken. The
words “taken in accordance with law” occurring in this section
are very important and it is essential that in recording a
statement or confession under Section 164 Cr.P.C., the
provisions of that section are strictly followed. The evidentiary
value of a confession depends upon its voluntary character and
the precision with which it is reproduced.

(ii) The mere fact that a confession is retracted does not render it
inadmissible in evidence but the court has to scrutinize any such
confession with the utmost care and accept it with the greatest
caution. Experience and common sense in fact shows that in
the absence of some material corroboration it is not safe to
convict merely on a retracted confession unless from the
peculiar circumstances under which it was made and judging
from the reasons alleged or apparent of retraction there remains
a high degree of certainty that the confession notwithstanding
its having been resiled from is genuine.

34. In Nazir Ahmad v. King Emperor (AIR 1936 PC 253) the

Privy Council held that the provisions of section 164 Cr.P.C. are
mandatory and non-compliance renders the confession inadmissible. Lord
Roche said:

“The rule which applies is a different and not less well recognized rule,
namely, that where a power is given to do a certain thing in a certain
way the thing must be done in that way or not at all. Other methods of
performance are necessarily forbidden … [A]lthough the Magistrate
acting under this group of sections is not acting as a court, yet he is a
judicial officer and both as a matter of construction and of good sense
there are strong reasons for applying the rule in question to section
164 … On the matter of construction of sections 164 and 364 must be
Crl. Appeal No.769/2014 & - 18 -
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looked at and construed together, and it would be an unnatural

construction to hold that any other procedure was permitted than that
which is laid down with such minute particularity in the sections
themselves.”

35. In criminal cases there is a great responsibility on the courts

to determine whether a confession is voluntary and true. To this end they
must take into consideration the “totality of circumstances” and find out
what prompted the accused to make it. In State of Rajasthan v. Raja Ram
(AIR 2003 SC 3601) the Supreme Court of India held:

“It follows that a confession would be voluntary if it is made by the

accused in a fit state of mind, and if it is not caused by any inducement,
threat or promise which has reference to the charge against him,
proceeding from a person in authority. It would not be involuntary, if
the inducement, (a) does not have reference to the charge against the
accused person, or (b) it does not proceed from a person in authority; or
(c) it is not sufficient, in the opinion of the court to give the accused
person grounds which would appear to him reasonable for supposing
that, by making it, he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him.”

The Court further said:

“Whether or not the confession was voluntary would depend upon the
facts and circumstances of each case, judged in the light of section 24
[of the Indian Evidence Act].13 The law is clear that a confession
cannot be used against an accused person unless the court is satisfied
that it was voluntary and at that stage the question whether it is true or
false does not arise. If the facts and circumstances surrounding the
making of a confession appear to cast a doubt on the veracity or
voluntariness of the confession, the court may refuse to act upon the
confession, even if it is admissible in evidence. One important
question, in regard to which the court has to be satisfied with is,
whether when the accused made confession, he was a free man or his
movements were controlled by the police either by themselves or
through some other agency employed by them for the purpose of
securing such a confession. The question whether a confession is
voluntary or not is always a question of fact. All the factors and all the
circumstances of the case, including the important factors of the time
given for reflection, scope of the accused getting a feeling of threat,
inducement or promise, must be considered before deciding whether
the court is satisfied that its opinion the impression caused by the
inducement, threat or promise, if any, has been fully removed. A free
and voluntary confession is deserving of highest credit, because it is
presumed to flow from the highest sense of guilt. [See R. v.
Warwickshall: (1783) Lesch 263)] … An involuntary confession is one
which is not the result of the free will of the maker of it. So where the
statement is made as a result of the harassment and continuous
interrogation for several hours after the person is treated as an offender
and accused, such statement must be regarded as involuntary.”

13
See Article 37 of QSO
Crl. Appeal No.769/2014 & - 19 -
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36. Similarly, in Muhammad Ali and others v. The State

(2002 PCr.LJ 1631) the Sindh High Court held:

“In order to determine whether confession is voluntary or not, attending

circumstances must be subjected to very close, minute and rigid
scrutiny. Voluntariness and truthfulness of confession is to be evaluated
on the following considerations: (i) the character and duration of
custody; (ii) whether the confessor was placed in a position to seek
advice of his relatives or his lawyers; (iii) the nature and quantum of
proof which was available against the confessor before he confessed;
and (iv) whether the confession was consistent with evidence which
was available at the time when confession was made.”

37. The burden of proving that the confessional statement is

voluntary is on the prosecution. In R. v. Thompson, 1893 2 QB 12 : 9 TLR
435, Cave, J. said:

“I prefer to put my judgment on the ground that it is the duty of the

prosecution to prove, in case of doubt, that the prisoner‟s statement was
free and voluntary, and that they did not discharge themselves of this
obligation.”

38. Sarkar Law of Evidence14 writes:

“Therefore a confession duly recorded being prima facie relevant, the

question of excluding it as irrelevant or of the onus of proving its
voluntary nature does not seem to arise so long as there is no doubt in
the mind of the court, or the confession is not objected to or assailed by
evidence or circumstances indicating that it was obtained by
inducement, threat, torture & c., and no one other than the accused is in
position to know better the existence of such facts. Whenever any sort
of doubt creeps into the mind of the court or when the question of
voluntariness is raised by the accused, the better and sounder opinion
certainly is that it is for the prosecution to show affirmatively to the
complete satisfaction of the court the voluntary nature of the confession
as laid down in English cases noted above. The burden of proving
beyond reasonable doubt that a confession is voluntary lies upon the
prosecution [Desa Bin Hashim v. Public Prosecutor, (1995) 3 Malayan
LJ 350 (Kuala Lumpur FC)].”

It further states:15

“In Hem Raj Devilal v. The State of Ajmer, (1954 SCR 1133 : AIR
1954 SC 462), the Supreme Court [of India] observed that „the
principle laid down in that case (R. v. Thompson) is well-settled‟. R. v.
Thompson, being approved by the Supreme Court the position is that
ordinarily a confession duly taken in accordance with law would be
relevant; but in case of any doubt or when challenged, it is for the
prosecution to show affirmatively to the satisfaction of the court that
the confession was voluntary. If there is the slightest doubt or suspicion
about its voluntary nature, the scale will be turned in favour of the
accused ante: „Appears to have been caused‟ and the burden is on the
prosecution to show that it was voluntarily made. It has been held that

14
18th Edition, p. 648
15
ibid, p. 649
Crl. Appeal No.769/2014 & - 20 -
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the burden of proving voluntariness of confession is on prosecution.

There is no onus on accused, Krishna Nandan Prasad Verma v. The
State (AIR 1958 Patna 166); see Bala Majhi v. The State of Orissa,
(AIR 1951 Orissa 168, 170 FB).”

39. The mere fact that the accused subsequently retracts the
confession does not mean that it was not voluntary.16

40. Shafqat Masih‟s confessional statement Exh. PR traduces the

law discussed above in more than one way. Judicial Magistrate Sajid
Mehmood (PW-10) testified that the police produced Shafqat before him
on 21-07-2013 at about 6:00/6:30 p.m. which was obviously after the
court hours. As already stated, the Lahore High Court Rules and Orders
mandate that the Magistrate must record confessional statements in open
court and during court hours unless there are compelling reasons. In
Wajid Hussain and others v. The State and others (2020 PCr.LJ 543) a
Division Bench of this Court held that proceedings after court hours are
look down with suspicion and give an impression that there was an
apprehension that the accused might have second thoughts about making a
confession if the matter was adjourned to the next day. Therefore, the
Magistrates must record reasons for deviating from the normal course.
Similar view was expressed in Abdul alias Abdul Karim and another v.
The State (1975 PCr.LJ 1077) and Muhammad Chuttal v. The State
(1991 MLD 392). Admittedly, in the instant case, the Judicial Magistrate
has not given any reason for holding proceedings after the court hours
which impinges upon the credibility and voluntariness of Shafqat‟s
confession.

41. Our Constitution guarantees legal aid to an arrested person as

his fundamental right. Article 10(1) ordains that no person who is arrested
shall be detained in custody without being informed, as soon as may be,
of the grounds for such arrest nor shall be denied the right to consult and
be defended by a legal practitioner of his choice. This is reinforced by
Article 10A which declares right of fair trial itself a fundamental right. In
Shahsawar v. The State (1998 PCr.LJ 1758), a Division Bench of this
Court held that the said right can also be read into Articles 4 and 9 of the

16
State of West Bengal v. Kajal Sarkar (2009 Cr.L.J 3250, Calcutta High Court)
Crl. Appeal No.769/2014 & - 21 -
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Constitution. In Wajid Hussain and others v. The State and others,

supra, it was held that when a confessional statement is recorded after
court hours the accused may not be able to engage an advocate and seek
legal advice which may prejudice him. In our opinion, it also violates his
fundamental rights.

42. There is nothing on the file to show that before recording

Shafqat‟s confession the Judicial Magistrate, Sajid Mehmood (PW-10),
asked him whether he would like to consult an advocate. The presumption
would be that he did not make such inquiry and violated his fundamental
right. In the circumstances, the confessional statement Exh. PR is vitiated.

43. Sajid Mehmood (PW-10) deposed that he gave 15/20

minutes to Shafqat to reconsider his decision to make a confession when
the police produced him. He added that no police official was present in
the court during that period. However, Exh. PR negates him. It evinces
that Shafqat remained in custody throughout the proceedings and even his
handcuffs were not removed. The S.P. and D.S.P. were also with him in
the courtroom and they signed in the margin of the paper (Exh. PR) when
the Magistrate put questions to verify whether he was making statement
voluntarily and again when the proceedings concluded. This also makes
Shafqat‟s judicial confession inadmissible.

44. We have noticed that Shafqat‟s judicial confession was

recorded in English and not in his native language. As already discussed,
he was semi-literate and could not understand English. Sajid Mehmood
(PW-10) neither mentioned in his certificate at the foot of Exh. PR nor in
his deposition before the trial court that after writing it he explained to
him in his native language. This defect is incurable. Reliance is Azeem
Khan and another v. Mujahid Khan and others (2016 SCMR 274);
Hashim Qasim and another v. The State (2017 SCMR 986); and Allah
Warrayo v. Mst. Ladan and 3 others (2020 MLD 334).

45. Apart from the above failings, there is another reason for us
to have misgivings about the voluntariness of Shafqat‟s confession. In
cases like the one before us people get quickly charged and the
Crl. Appeal No.769/2014 & - 22 -
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environment is filled with tension. During his cross-examination

Muhammad Nasir Sial/SP (PW-11) admitted that when he reached Police
Station City, Gojra, there was a crowd of villagers and police officials.
Many people also gathered during investigation and raid at the
Appellants‟ house. The Appellants were vulnerable and must have felt
threatened in this situation. In Shankaria v. State of Rajasthan (AIR
1978 SC 1248) the Supreme Court of India held that a double test must be
applied before a confessional statement is received in evidence. The court
should determine whether it is voluntary and, if so, whether it is true and
trustworthy. If the first condition is not satisfied, it must be rejected. In
such case the question of applying the second test does not arise.

46. In view of the fact that we have discarded Shafqat‟s judicial

confession Exh. PR, there is no need to consider the question whether it
can be used against Shagufta.

47. Did the Appellants have a motive to commit the offence?

The prosecution claims that it was a stratagem to get visa to Europe.
However, there is not a whit of evidence to substantiate that contention
except Shafqat‟s statement before the Investigating Officer, Nasir Sial/SP
(PW-11), which we have already held is inadmissible. It is pertinent to
point out that there is nothing on the record to suggest that the Appellants
ever applied for a European Visa which was refused. Even otherwise, it
does not appeal to reason that a person would not only put his own life
and liberty at risk but his entire community for it. Remember, when the
alleged incident took place the memories of the 2009 happenings were
still fresh in which 77 houses were burnt and at least seven people were
killed when a mob attacked the neighbourhood on a rumour that a copy of
the Holy Quran had been desecrated. It is by now well settled that the
prosecution is not required to establish the motive in every case but if one
alleged it must be proved and the courts may draw an adverse inference if
it fails. Reliance is placed on Hakim Ali and 4 others v. The State and
another (1971 SCMR 432), Aminullah v. The State (PLD 1976 SC 629),
Noor Muhammad v. The State and another (2010 SCMR 97), Amin Ali
Crl. Appeal No.769/2014 & - 23 -
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and another v. The State (2011 SCMR 323) and Muhammad Ali v. The
State (2017 SCMR 1468).

48. The contention of the learned Deputy Prosecutor General that

the prosecution witnesses must be believed because they had no enmity
with the Appellants deserves a short shrift. Courts administer justice on
the basis of intrinsic worth of the evidence. The testimony of a person,
who is seemingly uninterested and has no animosity with the accused,
may be rejected if it is corrupt while an interested witness may be relied
upon if he is corroborated by independent evidence. Reliance is placed on
Waqar Zaheer v. The State (PLD 1991 SC 447) and Azeem Khan and
another v. Mujahid Khan and others (2016 SCMR 274).

49. It is a cardinal principle of criminal law that the burden of

proof is on the prosecution and it is obligated to prove the charge against
the accused beyond reasonable doubt. In Lilienthal’s Tobacco v. United
States, 97 U.S. 237, 266 (1877), the US Supreme Court held that “in
criminal cases the true rule is that the burden of proof never shifts.” In
Davis v. United States, 160 U.S. 469, 487, 10 S.Ct. 353, 40 L.Ed. 499
(1895) it ruled: “Strictly speaking the burden of proof, as those words are
understood in criminal law, is never upon the accused to establish his
innocence or to disprove the facts necessary to establish the crime for
which he is indicted. It is on the prosecution from the beginning to the end
of the trial and applies to every element necessary to constitute the
crime.”

50. In Woolmington v. The Director of Public Prosecutions,

[1935] AC 462, the House of Lords held:

“Throughout the web of the English criminal law one golden thread is
always to be seen, that it is the duty of the prosecution to prove the
prisoner‟s guilt. If, at the end of and on the whole of the case, there is a
reasonable doubt, created by the evidence given by either the
prosecution or the prisoner, as to whether the prisoner killed the
deceased with a malicious intention, the prosecution has not made out
the case and the prisoner is entitled to an acquittal. No matter what the
charge or where the trial, the principle that the prosecution must prove
the guilt of the prisoner is part of the common law of England and no
attempt to whittle it down can be entertained.”17

17
Approvingly cited by the Hon‟ble Supreme Court of Pakistan in Raja Khurram Ali Khan and 2 others
v. Tayyaba Bibi and another (PLD 2020 SC 146).
Crl. Appeal No.769/2014 & - 24 -
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51. Similarly, in The State v. Muhammad Shafique alias Pappo

and another (PLD 2004 SC 39) the Supreme Court of Pakistan held that
seriousness of charge cannot absolve the prosecution of its duty to prove
its case. Again, in Mst. Asia Bibi v. The State and others (PLD 2019 SC
64) it ruled:

“[T]he onus rests on the prosecution to prove guilt of the accused

beyond reasonable doubt throughout the trial. Presumption of
innocence remains throughout the case until such time the prosecution
on the evidence satisfies the Court beyond reasonable doubt that the
accused is guilty of the offence alleged against him. There cannot be a
fair trial, which is itself the primary purpose of criminal jurisprudence,
if the judges have not been able to clearly elucidate the rudimentary
concept of standard of proof that prosecution must meet in order to
obtain a conviction. Two concepts i.e., „proof beyond reasonable doubt‟
and „presumption of innocence‟ are so closely linked together that the
same must be presented as one unit. If the presumption of innocence is
a gold thread to criminal jurisprudence, then proof beyond reasonable
doubt is silver, and these two threads are forever intertwined in the
fabric of criminal justice system. As such, the expression „proof beyond
reasonable doubt‟ is of fundamental importance to the criminal justice:
it is one of the principles which seeks to ensure that no innocent person
is convicted. Where there is any doubt in the prosecution story, benefit
should be given to the accused, which is quite consistent with the safe
administration of criminal justice.”

52. In the instant case, on reappraisal of evidence we have come

to an ineluctable conclusion that the prosecution has failed to establish the
charge against the Appellants. We are dismayed that the learned
Additional Sessions Judge has decided the case in a slipshod manner. We
allow this appeal and set aside the impugned judgment dated 4.4.2014.
The Appellants are acquitted of the charge. They shall be released from
the jail forthwith if not required to be detained in some other case.

53. CSR No.8/T/2017 is answered in negative and death

sentence awarded to the Appellants is not confirmed.

54. We conclude this judgment reminding all and sundry of the

following Hadith of our beloved Prophet Muhammad ‫ﷺ‬

"Beware! Whoever is cruel and hard on a non-Muslim minority, or

curtails their rights, or burdens them with more than they can bear,
or takes anything from them against their free will; I (Prophet
Muhammad) will complain against the person on the Day of
Judgment." (Abu Dawud) 18

18
Cited in Mst. Asia Bibi v. The State and others (PLD 2019 SC 64)
 Crl. Appeal No.769/2014 & - 25 -
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55. The Registrar of this Court is directed to arrange Urdu

translation of this judgment and upload it on the official website.

(Syed Shahbaz Ali Rizvi) (Tariq Saleem Sheikh)

Judge Judge

Approved for reporting.

Judge Judge
Naeem