Updated: Sunday September 25, 2016/AlAhad
Thoul Hijjah 23, 1437/Ravivara
Asvina 03, 1938, at 04:55:40 PM
IN THE SUPREME COURT OF
(Appellate Jurisdiction)
PRESENT:
Mr.
Justice Asif Saeed Khan Khosa
Mr.
Justice Mushir Alam
Mr.
Justice Dost Muhammad Khan
Criminal Appeals No. 210 and 211 of 2015
(Against the
judgment dated 09.03.2015 passed by the Islamabad High Court,
No. 01 of
2011)
Malik Muhammad Mumtaz Qadri (in Criminal
Appeal No. 210 of 2015)
The State (in Criminal Appeal No. 211 of 2015)
… Appellants
versus
The State, etc. (in Criminal Appeal No. 210 of
2015)
Malik Muhammad Mumtaz Qadri (in Criminal
Appeal No. 211 of 2015)
… Respondents
For
the appellants: Mian Nazir Akhtar, ASC
Khawaja
Muhammad Sharif, ASC
Mr.
Ghulam Mustafa, ASC
(in Criminal Appeal No. 210 of 2015)
Mian
Abdul Rauf, Advocate-General,
(in Criminal Appeal No. 211 of 2015)
For
the respondents: Mian Abdul Rauf, Advocate-General,
(in Criminal Appeal No. 210 of 2015)
Mian
Nazir Akhtar, ASC
Khawaja
Muhammad Sharif, ASC
Mr.
Ghulam Mustafa, ASC
(in Criminal Appeal No. 211 of 2015)
Dates
of hearing: 05.10.2015, 06.10.2015 &
07.10.2015
Criminal Appeals No. 210
and 211 of 2015 2
JUDGMENT
Asif Saeed Khan Khosa, J.: Almighty
Allah has ordained in the Holy Qur’an that upon receipt of a news or
information the men of faith ought to ascertain correctness of such news or
information before they may act upon the same and that harm may be avoided if
such news or information is got investigated in the first place. The following
verses of the Holy Qur’an are relevant in this regard:
Surah Al-Hujurat: verse 6
“O you who have faith! If a profligate [person] should
bring you some news, verify it, lest you should visit [harm] on some people out
of ignorance, and then become regretful for what you have done.”
Surah An-Nisa: verse 94
“O you who have faith! When you issue forth in the way of
Allah, try to ascertain: do not say to someone who offers you peace, ‘you are
not a believer’, seeking the transitory wares of the life of this world. Yet
with Allah are plenteous gains. You too were such earlier, but Allah did you a
favour. Therefore, do ascertain. Allah is indeed well aware of what you do.”
Surah An-Nisa: verse 83
“When a report of safety or alarm comes to them, they
immediately broadcast it: but had they referred it to the Apostle or to those
vested with authority among them, those of them who investigate would have
ascertained it. And were it not for Allah’s grace upon you and His mercy, you
would have surely followed Satan, [all] except a few.”
In the following paragraphs of this judgment it shall be
highlighted as to how the accused person in this case had acted on the basis of
nothing but hearsay without getting his information ascertained, verified or
investigated and, as Almighty Allah has warned, he has brought harm not only to
another person but also to himself. Verily, such are the consequences when
Almighty Allah’s warnings or commands are not heeded to.
2. The facts of this case are quite simple and
straightforward admitting of no ambiguity but the issues posed before us have
been made to appear existential and of metaphysical proportions involving
religious beliefs and philosophical reflections. With respect and without
prejudice to the strong religious and philosophical views expressed before us
we must state at the outset that we, in terms of our calling and vocation and
in accord with the oath of our office, are obligated to decide this case in
accordance with the law of the land as it exists and not in accordance with what
the law should be. There is no gainsaying that the provisions of Article 203G
of the Constitution of the Islamic Republic of Pakistan, 1973 categorically
oust the jurisdiction of this Court in matters of interpretation of the
Injunctions of Islam as laid down in the Holy Qur’an and the Sunnah of the Holy
Prophet Muhammad (peace be upon him) falling within the exclusive domain, power
and jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench
of this Court with reference to an existing law and essentially this Court’s
jurisdiction in such matters is limited to application of the principles where
they are settled. Apart from that, by virtue of the provisions of Article 230
of the Constitution, it is one of the functions of the Council of Islamic
Ideology to interpret the Injunctions of Islam with reference to an existing or
proposed law and we would not like to usurp that function either.
3. At about 04.15 PM on 04.01.2011 Mr. Salman Taseer, the
then Governor of the Province of the Punjab, was returning home near Kohsar
Market, Islamabad when Malik Muhammad Mumtaz Qadri appellant, serving in the
Elite Force of the Punjab Police and performing the duties of an official guard
of the Governor at that time, opened fire at Mr. Salman Taseer from his
official weapon riddling his body with bullets and causing multiple injuries.
The grievously injured Mr. Salman Taseer was immediately shifted to
Mr. Shehryar Taseer, a son of Mr. Salman Taseer deceased,
reported the matter to the local police through an application at 05.10 PM on
the same day whereafter formal FIR No. 06 was registered in that regard at
Police Station Kohsar, Islamabad at 05.25 PM during the same evening for
offences under section 302, PPC read with section 109, PPC and section 7 of the
Anti-Terrorism Act, 1997.
4. After completion of the investigation a Challan was
submitted before the Anti-Terrorism Court-II, Rawalpindi Division &
Islamabad Capital Territory which framed a Charge against Malik Muhammad Mumtaz
Qadri appellant in respect of an offence of qatl-e-amd punishable under
section 7(a) of the Anti-Terrorism Act, 1997 read with sections 302 and 109,
PPC to which the appellant responded as follows:
“I have not committed murder of an apostate like Suleman
Taseer (the then Governor Punjab) contrary to dictums of the Holy Quran and
Sunnah.”
During the trial the prosecution produced fourteen
witnesses in support of its case against the appellant and also placed on the record
some documentary evidence including a positive report of the Forensic Science
Laboratory confirming matching of the crimeempties with the firearm recovered
from the appellant’s possession.
Nadim Asif, ASI (PW11) and Muhammad Amer Khan, Inspector
(PW12) furnished the ocular account of the incident and also deposed about
arrest of the appellant at the spot and recovery of the weapon of offence from
his custody. Dr. Muhammad Arshad, Surgeon (PW1) provided the medical evidence
and Ch. Muhammad Ali,
“Salman Taseer, at relevant time, was acting as Governor
of the
I may put a question to the prosecution “If a Muslim due
to “Sub-o-Shattim” and “Ertad” does not render himself liable to dual liability
of being killed? The act which is embedded with both “Sub-o-Shattim” and
“Ertad” touches the heights of gravity. Here prosecution has to show that due
to Shatum one does not become “Murtad” (apostate) and that “Murtad” is not
liable to be killed?
This preposition would definitely settle fate of the case,
one way or other. Personal life of Salman Taseer shows that right from early
times he proved himself as an infidel. He married three times. His one wife was
“Sikh” by religion. He arranged his so called marriage in a secret way with
that lady in
His lifestyle, faith and living with a lady of non Muslim
faith, reflecting his act of living in constant state of Zinna under the
pretext of marriage (not permissible in Islam) speak volume of his character
and associated matters.
On the faithful day, I being member of Elite Force I was
deployed as one of the member of the Escort Guard of Salman Taseer, the
Governor Punjab. In Koh-i-Sar Market, the Governor with another after having
lunch in a restaurant walked to his vehicle. In adjoining mosque I went for
urinating in the washroom and for making ablution. When I came out with my gun,
I came across Salman Taseer. Then I had the occasion to address him, “your
honour being the Governor had remarked about blasphemy law as black law, if so
it was unbecoming of you” Upon this he suddenly shouted and said, “Not only
that it is black law, but also it is my shit”. Being a Muslim I lost control
and under grave and suddenly provocation, I pressed the trigger and he lay dead
in front of me. I have no repentance and I did it for
“Tahafuz-i-Namoos-i-Rasool” Salman offered me grave and sudden provocation. I
was justified to kill him kindly see my accompanying written statement U/s
265(F)(5) of Cr.P.C.”
The appellant opted not to make a statement on oath under
section 340(2), Cr.P.C. and did not produce any witness in his defence. He,
however, submitted a written statement under section 265-F(5), Cr.P.C.
maintaining that he was “justified” in killing Mr. Salman Taseer and also
placed on the record some newspaper reports.
5. After recording the evidence and attending to the final
arguments of the learned counsel for the parties the learned Judge, Special
Court-II, Anti-Terrorism, Rawalpindi Division & Islamabad Capital Territory
convicted Malik Muhammad Mumtaz Qadri appellant for an offence under section
302(b), PPC vide judgment dated 01.10.2011 and sentenced him to death
and to pay a sum of Rs. 1,00,000/- to the heirs of the deceased by way of
compensation under section 544-A, Cr.P.C. or in default of payment thereof to
undergo simple imprisonment for six months.
Through the same judgment the trial court also convicted
the appellant for an offence under section 7(a) of the Anti-Terrorism Act, 1997
and sentenced him to death and to pay a fine of Rs. 1,00,000/- or in default of
payment thereof to undergo simple imprisonment for six months.
6. Malik Muhammad Mumtaz Qadri appellant challenged his
convictions and sentences before the Islamabad High Court, Islamabad through
Criminal Appeal No. 90 of 2011 which was heard by a learned Division Bench of
the said Court along with Capital Sentence Reference No. 01 of 2011 seeking
confirmation of the sentences of death passed by the trial court and vide judgment
dated 09.03.2015 the appeal filed by the appellant was dismissed to the extent
of his conviction and sentence recorded by the trial court for an offence under
section 302(b), PPC and the connected Capital Sentence Reference was answered
in the affirmative to that extent but the appeal was partly allowed to the
extent of his conviction and sentence recorded by the trial court for an
offence under section 7(a) of the Anti-Terrorism Act, 1997 which conviction and
sentence were set aside and he was acquitted of that count of the Charge.
7. Subsequently Malik Muhammad Mumtaz Qadri filed Criminal
Petition No. 197 of 2015 before this Court seeking leave to appeal against the
above mentioned judgment delivered by the Islamabad High Court, Islamabad and
assailing his conviction and sentence for an offence under section 302(b), PPC
whereas the State preferred Criminal Petition No. 275 of 2015 before this Court
seeking leave to appeal against the same judgment and challenging acquittal of
Malik Muhammad Mumtaz Qadri from the charge under section 7(a) of the
Anti-Terrorism Act, 1997. On 14.05.2015 this Court allowed both the said
Criminal Petitions and granted leave to appeal therein by passing the following
order:
“Criminal Petition No. 197 of 2015
The record of the case shows that Malik Muhammad Mumtaz
Qadri petitioner had admitted killing Governor Salman Taseer and this is so
evident from the petitioner’s statement recorded under section 164, Cr.P.C.,
his response to the charge framed against him and his answers to questions No.
3 and 8 put to him at the time of recording of his statement under section 342,
Cr.P.C. It has vehemently been argued by the learned counsel for the petitioner
that the killing of the deceased by the petitioner was on account of the
deceased having committed blasphemy in terms of section 295-C, PPC and in that
backdrop the petitioner was justified in murdering the deceased. After hearing
elaborate submissions of the learned counsel for the petitioner we are of the opinion
that the following questions, inter alia, require consideration of this
Court:
i) Did any utterance of the deceased in fact amount to
blasphemy in terms of section 295-C, PPC and was sufficient record available in
this case to presume commission of blasphemy by the deceased? The learned
counsel for the petitioner has read out from clippings of two newspaper reports
which prima facie tend to show that the deceased had said something
about the law framed for the offence of blasphemy and its improper application
and apparently the deceased had not uttered any word defiling the sacred name
of the Holy Prophet Muhammad (Peace Be Upon Him).
ii) If the petitioner entertained an impression that the
deceased had committed blasphemy then did the petitioner, acting in his private
capacity, have any legal justification to kill the deceased without having
recourse to the law? In this respect Article 9 of the Constitution of the
Islamic Republic of Pakistan, 1973 may be relevant which stipulates that no
person shall be deprived of his life or liberty save in accordance with law.
iii) Even if the petitioner entertained an impression
about commission of blasphemy by the deceased and even if he was motivated by
any religious sentiment in that regard still could the petitioner kill the
deceased at a time when he was performing the duties of a guard of the deceased
and was performing official functions, wearing an official uniform, using an
official weapon and possessing officially supplied bullets? It would be
relevant in this context to consider as to whether a person given in the
protection of the petitioner could be deprived of his life by the petitioner
himself and as to whether committing such a murder would not offend against the
religious injunctions, precepts or traditions.
iv) If the petitioner had confessed killing the deceased
before the learned trial court at different stages of the trial then was it not
a case attracting the provisions of section 304, PPC and section 302(a), PPC
which offence carries the punishment of death only and has no alternative
sentence?
v) In case the petitioner’s conviction is not interfered
with by this Court then are there any mitigating circumstances available on the
record warranting reduction of the petitioner’s sentence from death to
imprisonment for life or not? It may be relevant in the present context that
the petitioner had no personal enmity with the deceased and he had acted only
under a religious motivation. It may also be relevant in this context that the
petitioner could be said to have acted cruelly and brutally in the matter as he
had riddled the deceased’s body with as many as thirty-two injuries caused by
twentyeight bullets.
2. The questions mentioned above, amongst others, require
consideration of this Court. This petition is, therefore, allowed and leave to
appeal is granted for the purpose.
Criminal Petition No. 275 of 2015
3. It has inter alia been contended by the learned
Advocate-General, Islamabad appearing for the petitioner/the State that while
holding that the case in hand did not attract the definition of ‘terrorism’
contained in section 6 of the Anti-Terrorism Act, 1997 the Islamabad High
Court, Islamabad had completely failed to advert to the provisions of section
6(1)(c) of the Anti-Terrorism Act, 1997 which stipulate that an offence of
murder committed for the purpose of advancing a religious cause or for the
purpose of intimidating and terrorizing the public or government officials amounts
to terrorism triable by an Anti-Terrorism Court. He has also argued that the
Islamabad High Court,
4. The contentions of the learned Advocate-General,
5. The office is directed to club the appeals arising out
of the above mentioned two petitions so that they may be heard together.
The office is also directed to fix the appeals for regular
hearing in the month of October, 2015, as agreed between the learned counsel
for the parties.” Hence, the present appeals before this Court.
8. We have heard Mian Nazir Akhtar, ASC and Khawaja Muhammad
Sharif, ASC appearing for Malik Muhammad Mumtaz Qadri convict-appellant and
Mian Abdul Rauf, Advocate-General, Islamabad appearing for the State at
considerable length and have minutely gone through the record of the case with
their able assistance besides carefully perusing all the religious texts and material
produced or referred to during the arguments. In the following paragraphs we
propose to separately discuss and deal with all the arguments advanced before
us from both the sides.
9. In a case of murder two questions are of paramount importance
and they are (i) was it the accused person facing the trial who had committed
the murder in issue? and
(ii) if it was the accused person facing the trial who had
committed the murder in issue then did he have any factual or legal
justification for committing that murder?
In the case in hand the answer to the first question had
been provided by Malik Muhammad Mumtaz Qadri appellant himself by admitting at
every stage of the case that he, and he alone, had committed the murder of Mr.
Salman Taseer. During the investigation, in his confessional statement recorded
by a Magistrate under section 164, Cr.P.C., in his reply to the Charge framed
by the trial court, through some suggestions put by his learned counsel to
different prosecution witnesses, in his statement recorded under section 342,
Cr.P.C., in his written statement filed under section 265-F(5), Cr.P.C.,
through the final arguments advanced by his learned counsel at the conclusion
of the trial and also before the High Court, at the leave granting stage before
this Court and during the submissions made by his learned counsel before this
Court at the time of hearing of the present appeals it had and has consistently
been maintained by Malik Muhammad Mumtaz Qadri and his learned counsel that Mr.
Salman Taseer had been done to death by none other than Malik Muhammad Mumtaz
Qadri appellant at the date, time and place alleged by the prosecution. In
these circumstances the question as to who had committed the murder of Mr.
Salman Taseer may not detain us any further.
10. The second question as to whether Malik Muhammad Mumtaz
Qadri appellant had any factual or legal justification for committing the
murder of Mr. Salman Taseer or not has been and is the real bone of contention
in this case. This aspect of the case can be divided into two parts, i.e.
factual justification and legal justification and we now proceed to discuss
these parts separately with reference to the record of the case as well as the
submissions made by the learned counsel for the parties before us.
11. The factual justification consistently advanced by
Malik Muhammad Mumtaz Qadri appellant has been that in his capacity as the
Governor of the Province of the Punjab Mr. Salman Taseer had committed
blasphemy. Two separate parts of such factual justification have been
highlighted by the learned counsel for the appellant. The first part is that
after conviction and sentence of one Mst. Asia Bibi, a Christian lady, in some
case for committing the offence of blasphemy Mr. Salman Taseer had paid a visit
to that lady inside a jail and on that occasion and also in some television programme
aired later on he had observed that the minorities in Pakistan enjoyed adequate
constitutional and legal protections, Mst. Asia Bibi had been convicted not
under any law introduced by the Quaid-i-Azam or Zulfiqar Ali Bhutto but under a
law promulgated by Zia-ul-Haq which was a black law, according to his own
inquiries Mst. Asia Bibi was innocent in the matter, Mst. Asia Bibi was a poor
and hapless woman, her conviction and sentence had brought a bad name to our
system inside the country and abroad and he had obtained an application from
Mst. Asia Bibi for seeking some relief for her from the relevant quarters. For
proving such utterances of Mr. Salman Taseer the appellant had produced two
newspaper reports before the trial court which had been placed on the record as
Mark-A and Mark-B. It has been maintained by the learned counsel for the
appellant that the above mentioned utterances of Mr. Salman Taseer were
blasphemous.
The second part of the factual justification advanced by
the appellant was that immediately before the present occurrence the appellant
had said to Mr. Salman Taseer that it was unbecoming of him as a Governor to
have remarked about the blasphemy law as black law upon which Mr. Salman Taseer
had responded by saying that “Not only that it is black law, but also it is my
shit” which response was also blasphemous and the same had gravely and suddenly
provoked the appellant. On the basis of the above mentioned two factual aspects
the learned counsel for the appellant has canvassed that Mr. Salman Taseer had
committed blasphemy and had also provoked the appellant and, therefore, the appellant
was quite justified in killing him. The learned Advocate-General,
12. In a criminal case whenever an accused person wants
the court to accept that his action was justified in the peculiar circumstances
of the case the provisions of Article 121 of the Qanun-e-Shahadat Order, 1984
come into play which provide as follows:
“121. Burden of proving that case of accused comes
within exception.- When a person is accused of any offence the burden of
proving the existence of circumstances bringing the case within any of the
General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any
special exception or proviso contained in any other part of the same Code, or
in any law defining the offence, is upon him, and the Court shall presume the
absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness
of mind, he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges that, by grave and
sudden provocation, he was deprived of the power of self-control. The burden of
proof is on A.
(c) Section 325 of the Pakistan Penal Code (Act XLV of
1860) provides that whoever, except in the case provided for in section 335,
voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section
325. The burden of proving the circumstances bringing the case under section
335 lies on A.”
Grave and sudden provocation offered by a victim to the
assailant is surely one of the exceptions within the contemplation of the above
mentioned Article 121 which exception was previously recognized by Exception
No. 1 to the erstwhile section 300, PPC and is now covered by the provisions of
section 302(c), PPC. The law is quite settled by now that if an accused person
wants the court to believe that some words or actions of the victim had provoked
him and on the basis of such provocation he had killed the victim then in all
such cases the court is to presume the absence of the circumstances being
asserted by the accused person in support of his plea and it is for the accused
person to prove through positive and legally admissible evidence that some provocation
was actually offered to him by the victim and such provocation was grave and
sudden. In the present case both the parts of the factual justification
advanced by the appellant had clearly remained unproved by him. As regards the
Mst. Asia Bibi related utterances attributed to Mr. Salman Taseer no specific
date or time of such utterances or the exact words uttered had been established
on the record, the jail and the city wherein he had statedly made the relevant
observations were variantly described, the television channel or the programme
referred to had not been named, the reporters who had prepared the newspaper
reports Mark-A and Mark-B had not been produced as witnesses, both the said
newspaper reports were not duly exhibited in evidence and the said reports had
never been lawfully proved. Mark-A was a newspaper report published after the
murder of Mr. Salman Taseer, i.e. many months after the alleged utterances had
been made by him and the said report was purely speculative in nature as the
reporter had only speculated that Mr. Salman Taseer had been murdered because
of some utterances he had made some months ago. In that report the reporter had
never claimed that he had himself heard Mr. Salman Taseer saying what was
alleged to have been said by him. Mark-B was a newspaper report about some
observations statedly made by Mr. Salman Taseer in a programme aired by a television
channel and in that report neither the television channel nor the programme had
been named nor the reporter had claimed to have personally heard or seen Mr.
Salman Taseer making those observations. Even the date and time of airing of
the television programme had not found any mention in the said newspaper
report. During their cross-examination some suggestions were put by the
appellant to both the eyewitnesses produced by the prosecution regarding the
Mst. Asia Bibi related utterances allegedly made by Mr. Salman Taseer but both
of them had categorically stated that those suggestions were incorrect. It is true
that a similar suggestion put to the investigating officer was accepted by him
to be correct but at the same time it is equally true that no source of
knowledge of the investigating officer about correctness of such suggestions
had been disclosed by the investigating officer himself or was established on
the record by the appellant. Apart from that, even if the Mst. Asia Bibi
related utterances attributed to Mr. Salman Taseer were to be accepted as duly
proved still all that Mr. Salman Taseer had allegedly said on that occasion
conveyed an impression that, according to Mr. Salman Taseer, the law regarding
commission of blasphemy had been promulgated by an unrepresentative military
ruler and the same was a black law because in the absence of proper safeguards against
its misuse it was being utilized as a vehicle of oppression against innocent
people and weaker segments of the society including religious minorities. In
the alleged utterances Mr. Salman Taseer had never, directly or indirectly,
made any observation about the Holy Prophet Muhammad (peace be upon him) so as
to attract the definition of blasphemy contained in section 295-C, PPC which
definition is relevant only to a person who “by words, either spoken or
written, or by visible representation, or by any imputation, innuendo or
insinuation, directly or indirectly, defiles the sacred name of the Holy
Prophet Muhammad (peace be upon him)”. It is, therefore, difficult to accept
that the Mst. Asia Bibi related alleged utterances of Mr. Salman Taseer
amounted to commission of blasphemy by him and it is even more difficult to
accept that such utterances could be treated by the appellant to be providing
provocation to him which provocation was neither grave nor sudden so as to
attract any general or special exception recognized by the Pakistan Penal Code.
We have already observed above that even if any such exception could be said to
be attracted to the case in hand it was for the appellant to prove the
circumstances attracting such exception through positive and legally admissible
evidence which he had completely failed to produce. In these circumstances the judicial
presumption regarding absence of such circumstances contemplated by Article 121
of the Qanun-e-Shahadat Order, 1984 stood reinforced.
13. The second part of the factual justification advanced
by the appellant pertained to a verbal exchange allegedly taking place between
the appellant and Mr. Salman Taseer immediately prior to opening of fire by the
former upon the latter. The contents of the alleged exchange of words asserted
by the appellant through his statement recorded under section 342, Cr.P.C. have
already been reproduced above. It may be reiterated that even in respect of
this factual aspect of the case the onus of proof was squarely on the appellant
but he had utterly failed to discharge that onus. In his first version before
the investigating officer the appellant had not mentioned any such verbal
exchange taking place with Mr. Salman Taseer immediately preceding the firing.
During the trial some suggestions were put by the defence to both the
eyewitnesses produced by the prosecution regarding the asserted exchange of words
but such suggestions were categorically denied and controverted by both of
them. It may be relevant to mention here that the words forming the verbal
exchange put to the two eyewitnesses through suggestions were different and
they were also different from the words mentioned by the appellant in his statement
recorded under section 342, Cr.P.C. The record of the case shows that at the
time of the present occurrence Mr. Salman Taseer was accompanied by his friend
namely Sheikh Waqas whose presence at the spot at the relevant time was also
confirmed by the site-plan of the place of occurrence. As the onus to prove the
asserted verbal exchange between the appellant and Mr. Salman Taseer was on the
appellant, therefore, the appellant could have produced the said Sheikh Waqas
as a defence witness or he could have applied before the trial court for
summoning of the said witness as a court witness so as to establish taking
place of the asserted verbal exchange between the appellant and Mr. Salman Taseer
but the appellant had taken no such step. In the absence of any confirmation of
the asserted verbal exchange by the eyewitnesses produced by the prosecution
and in the absence of production of Sheikh Waqas as a defence witness or his summoning
as a court witness the only other person who could prove or establish the
asserted exchange of words between the appellant and the victim was none other
than the appellant himself but admittedly he had declined to appear before the
trial court as his own witness by making a statement on oath under section 340(2),
Cr.P.C. Failure of the appellant to enter the witness-box for making a
statement in respect of that asserted fact amounted to withholding the best
available evidence and such failure on his part had given rise to an inference
adverse to truthfulness of the appellant’s factual assertion made in that
regard. During his arguments the learned counsel for the appellant was
questioned by us regarding complete lack of evidence regarding this part of the
factual justification advanced by the appellant and all that he could submit
was that it had become available on the record that some of his injuries had
been received by Mr. Salman Taseer on the frontal parts of his body and that at
some point of time immediately before the firing at him he was facing the
appellant and, thus, it could be presumed that some conversation must have taken
place between the appellant and Mr. Salman Taseer at that stage. In this
context it has also been submitted by him that great number of injuries caused
by the appellant to his victim indicated receipt of grave provocation by the
appellant and this hinted at taking place of some exchange of words between the
appellant and his victim which had gravely provoked the appellant at the spot.
Such submissions of the learned counsel for the appellant
have, however, been found by us to be nothing but speculative. The onus of
proof on this issue was on the appellant and it cannot be said that the
requisite onus had been discharged by the appellant on the basis of a mere speculation,
more so when such speculation did not relate to the content of the conversation
supposedly taking place which content was the very basis of the factual
justification being advanced for the murder. We have, thus, felt no hesitation
in concluding that this part of the factual justification advanced by the
appellant was nothing but an afterthought and even this part of the factual
justification had remained far from being proved or established on the record.
14. As regards the issue of availability of any legal
justification with Malik Muhammad Mumtaz Qadri appellant for murdering Mr. Salman
Taseer the said issue has also been addressed by the learned counsel for the
appellant from two diverse angles. The first angle is that commission of
blasphemy by Mr. Salman Taseer had provoked the appellant and as the murder of
Mr. Salman Taseer had been committed on account of serious provocation offered
by the victim, therefore, the appellant’s case attracted some general and
special exceptions recognized by the Pakistan Penal Code and, thus, his action
did not fall within the purview of section 302(b), PPC. The second angle is
that being a devout Muslim the appellant was under a religious and moral, and
hence legal, obligation to kill an apostate who had committed the offence of
blasphemy, particularly when the State had failed to take any legal action against
the offender.
15. We note that both the above mentioned angles of the
legal justification advanced are premised upon an alleged commission of the
offence of blasphemy by Mr. Salman Taseer and the resultant provocation
statedly received or entertained by the appellant which factual premise had, as
observed above, remained totally unproved on the record of this case in
accordance with the law. It goes without saying that no court of law can decide
a question of law on the basis of a fact which itself remains not established
in terms of the legal requirements. When confronted with this legal position the
learned counsel for the appellant referred to section 79, PPC which reads as
under:
“79. Act done by a person justified, or by mistake of
fact believing himself justified, by law.- Nothing is an offence which is
done by any person who is justified by law, or who by reason of a mistake of
fact and not by reason of a mistake of law in good faith, believes himself to
be justified by law, in doing it.
Illustration
A sees Z commit what appears to A to be a murder. A in the
exercise, to the best of his judgment, exerted in good faith of the power which
the law gives to all persons of apprehending murders in the Act, seizes Z, in
order to bring Z before the proper authorities. A has committed no offence,
though it may be true if Z was acting in self-defence.”
By relying upon the provisions of section 79, PPC the
learned counsel for the appellant has maintained that even if as a matter of fact
Mr. Salman Taseer had not committed the offence of blasphemy within the
meanings of section 295-C, PPC still the appellant mistakenly believed that Mr.
Salman Taseer had committed the said offence and, therefore, the appellant had committed
no offence by murdering him. We have, however, found such an interpretation of
section 79, PPC advanced by the learned counsel for the appellant to be
misconceived and unacceptable.
According to our understanding the said section has two
parts and for clarity of comprehension the said section can be read as follows:
(i) Nothing is an offence which is done by any person who
is justified by law in doing it.
(ii) Nothing is an offence which is done by any person who
by reason of a mistake of fact and not by reason of a mistake of law in good
faith believes himself to be justified by law in doing it.
As regards the first part of section 79, PPC the accused
person has to refer to and rely upon some express and existing legal provision which
makes his act justified by law. In the present case the learned counsel for the
appellant has not been able to refer to any express and existing legal
provision in the entire body of laws of this country authorizing any person to
kill another person on his own because such other person had, or was perceived
to have, committed the offence of blasphemy. As far as the second part of section
79, PPC is concerned the accused person has to establish that by reason of a
mistake of fact he believed in good faith that his act was justified by law and
such belief that his act was justified by law was not based upon a mistake of
law. This provision contemplates that if there had been no mistake of fact and
if the fact perceived by the accused person to exist actually existed as a fact
then the act of the accused person was such that it was justified by law. This
provision also makes it clear that the accused person’s belief in his act being
justified by law should not be based upon a mistake of law. This provision
further requires that the accused person must act in good faith. Applying these
tests to the case in hand it is quite apparent that even if due to a mistake of
fact the appellant entertained an impression that Mr. Salman Taseer had
committed the offence of blasphemy still there was no valid basis available
with the appellant to believe that his act of killing Mr. Salman Taseer was
justified by the law of the land. It is also obvious that if the appellant
believed that his act was justified by law then such belief was based upon a
mistake of law and, therefore, the provisions of section 79, PPC were
inapplicable to the case. As regards the requirement of good faith it cannot be
argued with any degree of seriousness that the decision of the appellant to take
the law in his own hands was based upon good faith. The appellant was a serving
officer of the police department at the relevant time and he, of all the
persons, would have known about the importance and requirement of recourse to
the law. A police officer acting in a matter by taking the law in his own hands
may be termed as the worst manifestation of bad faith. Section 52, PPC defines
“Good faith” and clarifies that “Nothing is said to be done or believed in
“good faith” which is done or believed without due care and attention”. In the
case in hand the appellant had never claimed that he had himself heard or read
the Mst. Asia Bibi related utterances attributed to Mr. Salman Taseer, he had
never claimed that he had tried to get his impression or information about
commission of the offence of blasphemy by Mr. Salman Taseer verified in any
manner whatsoever, he had acted in the matter on the basis of nothing but
hearsay and even the asserted verbal exchange between him and Mr. Salman Taseer
statedly taking place immediately prior to the occurrence had not been proved
by him through any positive evidence at all. In these circumstances it could
not be said that the appellant had acted in the matter with “due care and
attention” and, hence, in “good faith” within the meanings of section 79, PPC
read with section 52, PPC. For all these reasons the arguments addressed by the
learned counsel for the appellant on both the angles of the legal justification
advanced by the appellant have failed to convince us.
16. Faced with the above mentioned insurmountable
difficulties in establishing before us that the appellant had any legal justification
available with him for committing the murder of Mr. Salman Taseer the learned
counsel for the appellant has turned to the religion of Islam which even
otherwise has remained the primary focus of all his arguments advanced before
us. He has argued that committing blasphemy is a grave offence in Islam and if
a Muslim commits the murder of a person guilty of committing blasphemy then he
commits no offence at all and he cannot be punished for the murder committed by
him. In support of this plank of his arguments the learned counsel for the
appellant has referred to the written statement submitted by the appellant
before the trial court under section 265-F(5), Cr.P.C. wherein references had
been made to different verses of the Holy Qur’an including Surah At-Taubah:
verse 12, Surah At-Taubah: verses 13, 14 & 15, Surah Al-Maidah: verse 33,
Surah Al-Hujurat: verse 2, Surah An-Nur: verse 63, Surah Al-Baqarah: verse 104,
Surah Al-Ahzab: verse
57, Surah An-Nisa, verse 65, Surah At-Taubah: verses 64,
65 & 66, Surah Al-Mujadilah: verses 20 & 21 and Surah Al-Anfal: verses 12,
13 & 14. In the same written statement of the appellant references had also
been made to about thirty Ahadith (traditions) of the Holy Prophet Muhammad
(peace be upon him) reported in different religious texts. The appellant had
also referred in that written statement to two decisions rendered by Caliphs
Umar and Ali (May Allah Almighty be pleased with them) and to opinions recorded
by some renowned scholars of Islam in respect of liability of a person who has
committed blasphemy. The said written statement of the appellant also contained
opinions of some religious scholars justifying extrajudicial killing of an
apostate and also of his supporters and maintaining that the deadbody of an apostate
is not to be given a cleansing bath and no funeral prayers are to be offered
for him. Apart from referring to the said written statement filed by the
appellant under section 265-F(5), Cr.P.C. the learned counsel for the appellant
has also placed on the record some other material containing some more
references concerning commission of blasphemy and justifying killing of an
apostate. The learned counsel for the appellant has vehemently maintained before
us that in the impugned judgment passed by the Islamabad High Court, Islamabad,
particularly in paragraphs No. 28, 29 and 30 thereof, some observations had
been made by the High Court which observations, according to the learned
counsel for the appellant, did not interpret the Islamic law regarding
blasphemy in its true and correct perspective. We have gone through all the above
mentioned texts, references and material very carefully and with the deepest
veneration and respect that they deserve but at the same time we are also
conscious of the contours and scope of the jurisdiction that we can exercise in
the present proceedings, particularly in the context of Articles 203G and 230
of the Constitution referred to in the opening part of this judgment and also
in the context of Article 175(2) of the Constitution which mandates in no
uncertain terms that “No court shall have jurisdiction save as is or may be
conferred on it by the Constitution or by or under any law”. We may only
observe in this context that we as Muslims are fully aware and convinced of the
most exalted position held by the Holy Prophet Muhammad (peace be upon him) in
the eyes of Almighty Allah as well as in the hearts and minds of the Ummah and
the followers of the Islamic faith. It goes without saying that deepest respect
and profound reverence for the Holy Prophet Muhammad (peace be upon him) is an
article of faith with all of us. Be that as it may the issue involved in this case
is not as to whether anybody is allowed to commit blasphemy by defiling the
sacred name of the Holy Prophet Muhammad (peace be upon him) or not or as to
whether a person committing blasphemy can be killed by another person on his
own or not but the real question involved in the present case is as to whether
or not a person can be said to be justified in killing another person on his
own on the basis of an unverified impression or an unestablished perception
that such other person has committed blasphemy. A close and careful examination
of all the references made and the religious material produced in this case by
the appellant and his learned counsel shows, and shows quite clearly and
unmistakably, that such references and material pertain to cases where
commission of blasphemy stands established as a fact and then the discussion is
about how the apostate may be treated and not a single reference made or
instance referred to in the material produced permits killing of a person on
the basis only of an unverified impression or an unestablished perception
regarding commission of blasphemy. In the case in hand there is nothing on the
record to show that the appellant had made any effort whatsoever to get the
Mst. Asia Bibi related utterances attributed to Mr. Salman Taseer verified in
any manner. An attempt had, however, been made by the appellant during the
trial to improve his case in that regard by introducing the story of a verbal exchange
taking place between him and Mr. Salman Taseer immediately prior to the
occurrence of murder but we have already concluded above that this part of the
story introduced by the appellant was an afterthought and the same had also
remained far from being proved in accordance with the law. As mentioned above, in
the Holy Qur’an Almighty Allah has repeatedly warned those who start believing
in hearsay without getting it ascertained, verified or investigated or conduct
themselves on the basis of such hearsay. The appellant, therefore, would have
done better if, notwithstanding his professed religious motivation in the
matter, he had paid heed to those warnings of Almighty Allah as well before an
unjustified killing of another on the sole basis of hearsay.
An unjustified killing of a human being has been declared
by Almighty Allah as murder of the entire mankind.
17. When specifically questioned by us in that respect the
learned counsel for the appellant has maintained that it is not just defiling
the sacred name of the Holy Prophet Muhammad (peace be upon him) which
constitutes blasphemy but criticizing the law regarding blasphemy is also
blasphemous. We may record in this context that for canvassing such a point of
view the learned counsel for the appellant has not placed reliance upon any scripture
of divine origin but has referred to some scholastic interpretations of human
origin. In our country the offence of blasphemy has been defined in section
295-C, PPC and by dictate of the oath of our office we are bound to decide
matters in accordance with the Constitution and the law and, thus, we have found
it difficult to act in this case on the basis of a definition of blasphemy
advanced by the learned counsel for the appellant which definition travels
beyond the scope of the statutory definition of the same in the law of the
land. Apart from that in a democratic society citizens have a right to contend,
debate or maintain that a law has not been correctly framed by the State in terms
of the mischief sought to be suppressed or that the law promulgated by the State
ought to contain adequate safeguards against its misapplication or misuse by
motivated persons. It goes without saying that seeking improvement of a manmade
law in respect of a religious matter for better or proper enforcement of such
law does not ipso facto amount to criticizing the religious aspect of
such law. An example at hand is that of the Hudood laws introduced in
this country in the year 1979 which were followed by persistent protest against
their misapplication and misuse against weaker segments of the society and
religious minorities which protest had led to various amendments made in those
laws and in the Pakistan Penal Code and the Code of Criminal Procedure from time
to time in the later years. For instance, through an amendment section 156-B
had been introduced in the Code of Criminal Procedure which provides as
follows:
“156-B. Investigation against a woman accused of the offence
of Zina.- Notwithstanding anything contained in this Code, where a person
is accused of offence of zina under the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (VII of 1979), no police officer below the rank of a
Superintendent of Police shall investigate such offence nor shall such accused
be arrested without permission of the Court.
Explanation.-- In this section ‘zina’ does not
include ‘zinabil-jabr’.”
Section 156-B, Cr.P.C. did not tinker with the offence of Zina
itself or with the religious aspects of the same but through introduction of
some procedural safeguards it only made it difficult for an innocent person to
be maliciously subjected to an unnecessary investigation or trial for that
offence. Keeping in view the strong religious sentiments in our society it
ought to be understood quite clearly that any call coming from serious quarters
for reform in the laws regarding religion related offences can only be a call
for introducing safeguards against misapplication or misuse of such laws by
motivated persons and such call is ordinarily not to be construed as a call
against the religious aspects of the offences covered by such laws. Similar is
the case as far as the offence of blasphemy is concerned. It is of critical
importance to mention here that in one form or the other laws against offending
religious sentiments have been a part of the Pakistan (previously Indian) Penal
Code since its enactment in the year 1860 by the British Government with an aim
to protect the religious feelings, sensibilities and sensitivities of different
religious groups or classes of persons. Section 295 has been a part of the Code
since its inception and the same provides protection to places of worship of all
religions so that the religion of any class of persons is not insulted. Through
an amendment section 295-A was added to the Code in the year 1927 for
preventing deliberate and malicious acts intended to outrage religious feelings
or beliefs of followers of all religions. Later on the Code was further amended
to include section 295-B against willful defiling, damaging or desecrating the Holy
Qur’an and still later the Code was again amended and section 295-C was
introduced against defiling the sacred name of the Holy Prophet Muhammad (peace
be upon him). Such Improvements of the Code over time through suitable
amendments thereof was never considered as an affront to any religion and, therefore,
a call for improvement of section 295-C, PPC for the purpose of providing
safeguards against its misuse through leveling of false allegations ought not
to be considered as objectionable because the religion of Islam loathes
leveling of false allegations which is a serious offence in itself. A bare look
at the definition of blasphemy contained in section 295-C, PPC shows that
apparently the statutory definition restricts blasphemy to defiling the sacred
name of the Holy Prophet Muhammad (peace be upon him) and even the learned
counsel for the appellant impliedly considers such definition of blasphemy to
be inadequate or incomplete because, on the basis of the views of some
religious scholars, he maintains that criticizing the law regarding blasphemy also
falls within the mischief of blasphemy. This by itself amply demonstrates that
the definition of blasphemy contained in section 295-C, PPC may be considered
by some to be needing improvement so as to bring it in line with the true scope
of the concept of blasphemy and, likewise, there may be others who may feel
that some procedural and other safeguards need to be introduced so that it
should become difficult to level or prosecute a false allegation regarding
commission of the offence of blasphemy. The above mentioned reference to
introduction and amendment of the Hudood laws in the country makes it
evident that in all matters, including religious, there is an on-going effort
to keep the laws of the land updated through amendments so as to meet the
emerging challenges and also to provide safeguards against mischievous manipulations,
misapplication or misuse of the existing laws. It is an unfortunate fact which
cannot be disputed that in many cases registered in respect of the offence of
blasphemy false allegations are leveled for extraneous purposes and in the
absence of adequate safeguards against misapplication or misuse of such law by motivated
persons the persons falsely accused of commission of that offence suffer beyond
proportion or repair. In one of the Judicial Training Toolkits prepared by the
Legal Aid Society,
“The known blasphemy cases in Pakistan show that from 1953
to July 2012, there were 434 offenders of blasphemy laws in Pakistan and among
them were, 258 Muslims (Sunni/Shia), 114 Christians, 57 Ahmadis, and 4 Hindus.
Since 1990, 52 people have been extra-judicially murdered, for being implicated
in blasphemy charges. Among these were 25 Muslims, 15 Christians, 5 Ahmadis, 1
Buddhist and a Hindu.
During 2013, 34 new cases were registered under the
blasphemy laws. While at least one death sentence for blasphemy was overturned
during the year, at least another 17 people were awaiting execution for
blasphemy and at least 20 others were serving life sentences. Although the
government has never carried out a death sentence for blasphemy, NGOs reported
that at least five persons accused of blasphemy had died in police custody in recent
years.
The majority of blasphemy cases are based on false
accusations stemming from property issues or other personal or family vendettas
rather than genuine instances of blasphemy and they inevitably lead to mob
violence against the entire community.”
In the case of Muhammad Mahboob alias Booba v. The State
(PLD 2002 Lahore 587) a learned Division Bench of the Lahore High Court,
Lahore had traced the history of the law of blasphemy in the sub-continent and
had not only taken judicial notice of the rampant misuse of that law by
unscrupulous people trying to settle their personal scores but had also pointed
out the hazards of investigation of such cases by untrained and poorly advised investigating
officers. Some of the observations made in that case are relevant to the
present context and the same are, therefore, reproduced below:
“15. Historically speaking the Blasphemy Law was enacted
by the British to protect the religious sentiments of the Muslim minorities in
the Sub-Continent before partition against the Hindu majority. After the
creation of
16. It appears that ever since the law became more
stringent, there has been an increase in the number of registration of the blasphemy
cases. A report from the Daily Dawn of 18th July, 2002, says that between 1948
and 1979, 11 cases of blasphemy were registered. Three cases were reported
between the period 1979 and 1986. Forty four cases were registered between 1987
and 1999. In 2000 fifty two cases were registered and strangely, 43 cases had
been registered against the Muslims while 9 cases were registered against the
non-Muslims. The report further states that this shows that the law was being
abused more blatantly by the Muslims against the Muslims to settle their scores.
Because the police would readily register such a case and without checking the
veracity of the facts and without taking proper guidance from any well-known
and unbiased religious scholar, would proceed to arrest an accused. That an
Assistant Sub-Inspector or a Moharrir was academically not competent to adjudge
whether or not the circumstances constitute act of blasphemy.
18. In this case we have observed that the investigation
of this case which involves a death sentence and where the allegations were of
blasphemy, was entrusted to an official of the rank of an Assistant
Sub-Inspector who has himself admitted about his own level of education in his
statement, the portions of which have been reproduced above. The D.S.P. (Legal)
was never produced to state who guided him in proposing that a case of
blasphemy was made out against the appellant. The most preposterous fact of the
case is brought on the file by the statement of Adalat Khan (P. W.2), according
to which pencils and markers, ordinarily obtainable from the market and
purchased by someone other than the appellant, and secured through memo.
Exh.P.A., were used as an incriminating evidence against the appellant/convict.
23. Needless to say that when the case of the prosecution
was per se infirm going into a debate pertaining to Fiqah at the end of the
trial Court was totally unnecessary, particularly when the learned trial Court
had taken no help from any jurisconsult or any Islamic Scholar having known
credentials. The nature of the accusations overwhelmed the trial Court to such
an extent that it became oblivious of the fact that the standard of proof for establishing
such an accusation and as required, was missing. Mere accusation should not
create a prejudice or a bias and the duty of the Judge and as has also been
ordained by our Holy Prophet (s.a.w.), is to ascertain the facts and the
circumstances and look for the truth with all the perseverance at his command.
30. As we have seen in the recent past cases of such-like nature
are on the increase and we have also observed element of mischief involved.
This calls for extra care at the end of the Investigating Officers. Whereas, we
have seen the failure, inefficiency and incompetence of the Investigating
Officer in handling the present case with all its consequences. Therefore, we direct
the Inspector-General of Police, Punjab, Lahore, to ensure that whenever such a
case is registered, it be entrusted for purposes of investigation to a team of
at least two gazetted Investigating Officers preferably those conversant with
the Islamic Jurisprudence and in case they themselves are not conversant with
Islamic Law, a scholar of known reputation and integrity may be added to the
team and this team should then investigate whether an offence is committed or
not and if it comes to the conclusion that the offence is committed, the police
may only then proceed further in the matter.
31. In view of the sensitivities involved and the rise in
the accusations of this type which can be easily made besides what is proposed
on the investigational side, we further propose that the trial in such-like
case be held by a Court presided over by a Judicial Officer who himself is not
less than the rank of a District and Sessions Judge.”
The procedural safeguards against misapplication or misuse
of the law regarding the offence of blasphemy proposed or directed by the Lahore
High Court,
Commission of blasphemy is abhorrent and immoral besides
being a manifestation of intolerance but at the same time a false allegation
regarding commission of such an offence is equally detestable besides being
culpable. If our religion of Islam comes down heavily upon commission of
blasphemy then Islam is also very tough against those who level false
allegations of a crime. It is, therefore, for the State of the Islamic Republic
of Pakistan to ensure that no innocent person is compelled or constrained to
face an investigation or a trial on the basis of false or trumped up allegations
regarding commission of such an offence.
18. As a sequel to the discussion made above a conclusion
is irresistible, unavoidable and inescapable that it was Malik Muhammad Mumtaz
Qadri appellant who had committed the murder of Mr. Salman Taseer at the date,
time and place alleged by the prosecution and also that the appellant had no
factual or legal justification available with him for committing the said
murder. In Criminal view of this
conclusion reached by us the conviction of the appellant recorded by the trial
court for an offence under section 302(b), PPC and upheld by the Islamabad High
Court, Islamabad has been found by us to have been validly recorded and upheld.
19. We have also attended to the question as to whether
the provisions of section 302(a), PPC stood attracted to this case or not and
have found that although Malik Muhammad Mumtaz Qadri appellant had at all
stages of this case admitted killing Mr. Salman Taseer yet he had always
advanced some factual, legal or religious justifications for such act of his.
The appellant had pleaded not guilty to the Charge framed against him and,
therefore, it was not possible to equate his qualified admission regarding
killing Mr. Salman Taseer with an unqualified confession of guilt so as to attract
the provisions of sections 304 and 302(a), PPC to the facts of this case.
20. The next question to be considered is as to whether by
committing the murder of Mr. Salman Taseer, the then Governor of the Province
of the Punjab, the appellant had also committed the offence of ‘terrorism’ as
defined by section 6 of the Anti-Terrorism Act, 1997 or not which offence is
punishable under section 7(a) of the said Act. Section 6 of the Anti-Terrorism
Act, 1997, as it stood at the time of the present occurrence, provided as
follows:
“6. Terrorism.—(1) In this Act, “terrorism” means
the use or threat of action where:
(a) the action falls within the meaning of subsection (2),
and
(b) the use or threat is designed to coerce and
intimidate or overawe the Government or the public or a section
of the public or community or sect or create a sense of fear or insecurity in
society; or
(c) the use or threat is made for the purpose of advancing
a religious, sectarian or ethnic cause.
(2) An “action” shall fall within the meaning of
subsection (1), if it:
(a) involves the doing of anything that causes death;
(3) The use or threat of any action falling within
sub-section (2) which involves the use of firearms, explosive or any other weapon
is terrorism, whether or not sub-section (1)(c) is satisfied.
(4) In this section “action” includes an act or a series
of acts.
(5) In this Act, terrorism includes any act done for the
benefit of a proscribed organization.
(6) A person who commits an offence under this section or
any other provision of this Act, shall be guilty of an act of terrorism.
(7) In this Act, a “terrorist” means:-
(a) a person who has committed an offence of terrorism under
this Act, and is or has been concerned in the commission, preparation or
instigation of acts of terrorism.
(b) a person who is or has been, whether before or after the
coming into force of this Act, concerned in the commission, preparation, or
instigation of acts of terrorism, shall be included in the meaning given in
clause (a) above.”
A plain reading of section 6 of the Anti-Terrorism Act,
1997 shows that while defining ‘terrorism’ the said section bifurcates the same
into two parts, the mens rea for the offence falling in section 6(1)(b) or
(c) and the actus reus of the offence falling in section 6(2) of the Act
and in order to attract the definition of terrorism in a given case the
requisite mens rea and actus reus must coincide and coexist. The
provisions of section 6(5), (6) and (7) of the Act also indicate that there may
be some other actions of a person which may also be declared or recognized as
acts of terrorism by some other provisions of the same Act. Restricting
ourselves to the provisions of section 6 of the Anti-Terrorism Act, 1997 for
the present purposes we note that in a case where the action involves the doing
of anything that causes death [section 6(2)(a)] and such causing of death is
designed to coerce and intimidate or overawe the Government or the public or a
section of the public or community or sect or create a sense of fear or
insecurity in society [section 6(1)(b)] or such causing of death is for the
purpose of advancing a religious, sectarian or ethnic cause [section 6(1)(c)] there
the causing of death of the victim is to be accepted and treated as terrorism
triable exclusively by an Anti-Terrorism Court.
As far as the case in hand is concerned the action of
Malik Muhammad Mumtaz Qadri appellant involved firing at Mr. Salman Taseer and
thereby causing his death and, thus, his actus reus fell within the
ambit of section 6(2)(a) of the Anti-Terrorism Act, 1997.
As regards the appellant’s mens rea he had himself
stated in his statement recorded by the trial court under section 342, Cr.P.C. that
the murder of Mr. Salman Taseer committed by him was “a lesson for all the
apostates, as finally they have to meet the same fate”. That statement of the
appellant clearly established that he not only wanted to punish Mr. Salman
Taseer privately for the perceived or imagined blasphemy committed by him but
the appellant also wanted to send a message or teach a lesson to all others in
the society at large who dared to follow Mr. Salman Taseer’s suit. In this view
of the matter the causing of death of Mr. Salman Taseer by the appellant was
surely designed to intimidate or overawe the public or a section of the public
or to create a sense of fear or insecurity in the society so as to attract the
requisite mens rea contemplated by section 6(1)(b) of the Anti-Terrorism
Act, 1997. Apart from that it cannot be seriously contested that the appellant
had committed the murder of Mr. Salman Taseer for the purpose of advancing a
religious cause and, thus, even the mens rea contemplated by section
6(1)(c) of the Anti-Terrorism Act, 1997 stood fully attracted to the case of
the appellant. In these circumstances we have entertained no manner of doubt
that the action of the appellant and the intention, design or purpose behind such
action fully attracted the definition of terrorism contained in section 6 of
the Anti-Terrorism Act, 1997 and, therefore, he was correctly and justifiably
punished by the trial court under section 7(a) of the said Act for committing
the offence of terrorism. In paragraph No. 44 of the impugned judgment the
Islamabad High Court, Islamabad had set aside the appellant’s conviction and sentence
recorded by the trial court under section 7(a) of the Anti-Terrorism Act, 1997
on the sole ground that sufficient evidence had not been brought on the record
by the prosecution to establish that the murder committed by the appellant had
in fact created any sense of fear or insecurity in the society. We have found
such an approach adopted by the Islamabad High Court,
21. It has been argued by the learned counsel for the
appellant that the Charge framed in this case contained only one count in respect
of committing “the offence of qatl-e-amd punishable under clause (a) of
section 7 of the Anti-Terrorism Act, 1997 read with sections 302 and 109, PPC”
and as no separate charge had been framed by the trial court in respect of an
offence under section 6 read with section 7(a) of the Anti-Terrorism Act, 1997,
therefore, after recording the appellant’s conviction and sentence for an offence
under section 302(b), PPC the trial court could not separately and additionally
convict and sentence the appellant under section 7(a) of the Anti-Terrorism
Act, 1997. We have examined this argument with reference to the record of the
case and have observed that at no stage of his trial the appellant had ever
raised any objection in the above mentioned regard or had ever claimed that he
had been misled or prejudiced on the basis of any irregularity in the Charge
framed or on account of any misjoinder of charges. In view of such conduct of
the appellant before the trial court the provisions of section 537, Cr.P.C.
provide a complete answer to the argument advanced by the learned counsel for
the appellant in this regard. Apart from that this Court has clarified in many
cases that the offences of murder and terrorism are distinct and separate
offences and a person found guilty of committing murder while committing the
offence of terrorism is to be convicted and sentenced separately for the said offences.
In the present case the trial court had followed the law declared by this Court
in that respect and, thus, no legitimate exception can be taken to the course
adopted by the trial court in that regard.
22. As regards the sentences passed or to be passed
against Malik Muhammad Mumtaz Qadri appellant both the learned counsel for the
appellant have argued with emphasis that in the peculiar circumstances of this
case the appellant does not deserve a sentence of death either for the murder
committed by him or for indulging in terrorism. In this regard it has been
argued that the appellant had no personal enmity with Mr. Salman Taseer and his
only motivation for committing the murder of Mr. Salman Taseer was religious.
It has also been argued that the appellant had been provoked firstly by the
Mst. Asia Bibi related blasphemous utterances of Mr. Salman Taseer and secondly
by his verbal exchange with the appellant immediately before his murder and, thus,
the case in hand was a case of a continuing provocation as well as of grave and
sudden provocation offered to the appellant at the spot. It has further been
argued that the motive set up in the FIR had not been proved by the prosecution
and lack of proof of motive set up by the prosecution is a valid ground for
reduction of a sentence of death to imprisonment for life on a capital charge.
It has lastly been pointed out in this context that according to the record of
the case the appellant had acted under the influence of some religious speakers
on the basis of whose inciting, provocative and instigating speeches made in a
religious meeting the appellant had made up his mind to kill Mr. Salman Taseer
and, thus, his conduct in the matter was not that of a free agent acting on his
own. As against that the learned Advocate-General,
23. We have carefully attended to the above mentioned contentions
of the learned counsel for the appellant and the learned Advocate-General,
The appellant’s grooming in religious traditions would
also have taught him to distinguish between the requirements of his job for which
he was paid from the public exchequer and acting on the basis of his personal
sentiments. The appellant’s religious training would also have guided him in
the matter of discerning between hearsay and fact and he would have been
conscious that, as referred to in the opening lines of this judgment, Almighty
Allah has warned against believing hearsay or conducting oneself on the basis
of unverified news or information. In this backdrop the selfserving argument
based upon religious motivation of the appellant has been found by us to be
unacceptable, particularly when this argument is squarely based upon an alleged
commission of blasphemy by Mr. Salman Taseer which assertion had never been proved
before the trial court through any lawfully adduced evidence at all.
24. What has been observed by us in the preceding
paragraph can also be said about the argument that the appellant was provoked
by some earlier utterances attributed to Mr. Salman Taseer and by the verbal
exchange taking place at the spot as it has already been concluded by us above
that none of those two events had been proved by the appellant before the trial
court in accordance with the law and the onus of proof in that respect was on
the appellant. We have also concluded above that the story advanced by the
appellant about an exchange of words between him and Mr. Salman Taseer at the
place of occurrence was nothing but an afterthought. It has been argued before
us that great number of injuries caused by the appellant to his victim showed that
the appellant had received grave provocation but this aspect of the matter
again stems from the story belatedly advanced by the appellant about a verbal
exchange between him and the victim at the spot which story had never been
proved by the appellant through any positive evidence at all. A ground for
mitigation of sentence cannot be pressed into service on the basis of something
which had never been proved on the record.
25. The argument based upon the motive set up by the prosecution
having remained unproved has also failed to impress us. The motive asserted in
the FIR was that Mr. Salman Taseer had his own point of view in respect of
various important national issues and for that reason different religious and
political groups were indulging in serious propaganda against him and were also
issuing threats that he would be murdered. The prosecution might have remained
unable to establish involvement of any religious or political group in the
murder of Mr. Salman Taseer but it had certainly succeeded in proving that the
appellant’s motivation for the murder of Mr. Salman Taseer was nothing but some
of his views although the contents of those views and those views being blasphemous
had never been established by the appellant in accordance with the law as the
onus for proving the same was exclusively on him. The place of motive in a case
of murder is to establish as to who would be interested in killing the person murdered
and such factor is to provide corroboration to the ocular account furnished by
the prosecution but where the accused person admits killing the deceased there
the primary purpose of setting up the motive stands served. According to
Article 21 of the Qanun-e-Shahadat Order, 1984 a motive set up by the
prosecution may be proved even by the conduct of the accused person and the conduct
of the appellant in the present case had gone a long way in proving the motive
set up by the prosecution. Apart from that Article 2(4) of the Qanun-e-Shahadat
Order, 1984 provides that “A fact is said to be proved when, after considering
the matters before it, the Court either believes it to exist, or considers its
existence so probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists.” In the
circumstances of this case the motivation of the appellant was so obvious that
only an imprudent man could conclude that his motivation was other than what
the prosecution had asserted.
Considering the prosecution’s case regarding the motive in
juxtaposition with the appellant’s stance and conduct we have felt no
hesitation in concluding that the prosecution had succeeded in proving the
motive set up by it and, therefore, the argument that the sentence of death may
be withheld in this case on account of lack of proof of motive has no legs to
stand upon.
26. The contention that the appellant had acted under the influence
of some others and, thus, his culpability stood diminished on that score has
been found by us to be a contention which is not based upon any evidence
whatsoever. Although it had been alleged in the FIR that the appellant had
committed the murder of Mr. Salman Taseer at the behest of some political and religious
groups and in his confessional statement recorded by a Magistrate under section
164, Cr.P.C. the appellant had said something about his inspiration for the
murder coming from the speeches made by some persons during a religious meeting
yet none of those factors carried any evidentiary value at all. An FIR is not a
substantive piece of evidence and the prosecution had not brought even an iota
of evidence on the record regarding the appellant acting at the behest of
anybody else. The appellant’s statement recorded under section 164, Cr.P.C. was
inadmissible in evidence because it had unlawfully been recorded on oath. Apart
from that in his written statement submitted before the trial court under
section 265-F(5), Cr.P.C. and also in his statement recorded by the trial court
under section 342, Cr.P.C. the appellant had abandoned the above mentioned
stand taken by him in his statement recorded under section 164, Cr.P.C., he had
declined to make his own statement before the trial court on oath under section
340(2), Cr.P.C. and he had also failed to produce any witness in his defence.
In these circumstances the claim that the appellant had acted under the
influence or at the behest of somebody else was a claim which was based upon no
evidence at all. It may be pertinent to observe in this context that at the
time of the present occurrence the appellant was not a child of an impressionable
age but was a fully grown up and trained police officer and, thus, his acting
under the influence of somebody else has appeared to us to be a contention
which is even otherwise difficult to accept.
27. There are some other aspects of this case which are relevant
to the issue of sentencing of the appellant and they must also be stated for
the record. The law of the land does not permit an individual to arrogate unto
himself the roles of a complainant, prosecutor, judge and executioner. The
appellant was a trained police officer who knew the importance of recourse to
the law. The appellant was very well aware of the case of Mst. Asia Bibi who
was
alleged to have committed the offence of blasphemy and
through the course of law she had been convicted for that offence by a trial court.
If the appellant had suspected Mr. Salman Taseer to have committed the offence
of blasphemy then he should also have adopted the legal course knowing that the
embargo contained in the provisions of Article 248 of the Constitution against
criminal proceedings against a serving Governor of a Province was only temporary
in nature and not permanent. Apart from that the appellant had acted in this
case on the basis of nothing but hearsay and he had murdered the serving
Governor of his Province without making any effort whatsoever to get his
information about commission of blasphemy by Mr. Salman Taseer verified or confirmed.
Throughout the world a police officer committing a crime is dealt with more
sternly in the matter of his sentence than an ordinary person because an
expectation is attached with a police officer that in all manner of
circumstances he would conduct himself strictly in accordance with the law and
under no circumstances he would take the law in his own hands. If the asserted
religious motivation of the appellant for the murder committed by him by taking
the law in his own hands is to be accepted as a valid mitigating circumstance
in this case then a door shall become open for religious vigilantism which may
deal a mortal blow to the rule of law in this country where divergent religious
interpretations abound and tolerance stands depleted to an alarming level. It
may also be relevant in the context of the appellant’s sentence that in the
execution of his design he had riddled his victim’s body with as many as
twenty-eight bullets causing thirty-two grievous injuries which clearly showed
that the appellant had acted cruelly and brutally in the matter and such cruelty
and brutality demonstrated by the appellant detracts from any sympathy to be
shown to him in the matter of his sentence.
Having said all that it is difficult to ignore that in his
statement recorded under section 342, Cr.P.C. the appellant had also maintained
that Mr. Salman Taseer used to indulge in different kinds of immoral activities.
This part of the appellant’s statement had opened a window to the appellant’s
mind and had clearly shown that it was not just the alleged commission of
blasphemy by Mr. Salman Taseer which prompted the appellant to kill him but there
was some element of personal hatred for Mr. Salman Taseer which too had played
some part in propelling the appellant into action against him. Such mixture of
personal hatred with the asserted religious motivation had surely diluted, if
not polluted, the acclaimed purity of the appellant’s purpose. For all the
reasons detailed above no occasion has been found by us for reducing the appellant’s
sentence from death to imprisonment for life for the offences of terrorism and
murder committed by him. The usual wages for the crimes of the nature committed
by the appellant is death and in the circumstances of this case the appellant
deserves no less.
28. As a sequel to the discussion made above Criminal
Appeal No. 210 of 2015 filed before this Court by Malik Muhammad Mumtaz Qadri
convict is dismissed, Criminal Appeal No. 211 of 2015 preferred before this
Court by the State is allowed and consequently the convictions and sentences of
Malik Muhammad Mumtaz Qadri recorded by the learned Judge, Special Court-II, Anti-Terrorism,
Rawalpindi Division & Islamabad Capital Territory on 01.10.2011 are
restored.
(Asif Saeed Khan Khosa)
Judge
(Mushir Alam)
Judge
(Dost Muhammad Khan)
Judge
October 07, 2015
Approved for reporting.
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