The Order dated 06.02.2024 passed by the honourable Supreme Court of Pakistan in Criminal Petition No. 1054-L/2023 and Criminal Petition No. 1344-L/2023, has caused great confusion and panic amongst the Muslims especially in Pakistan and in the Muslim community world-wide. I will discuss the legality and impact of the judgment in juxtaposition of the Constitution of Pakistan, Law of the land and Islam. Firstly we will ponder upon the charge and allegations levelled in the First Information Report (FIR), the petitioner was charged for three offences pursuant to the case arising out of FIR No. 661/22 registered against him on 6 December 2022, at Police Station Chenab Nagar, District Chiniot. The three offences for which the petitioner is charged were under: (a) section 7 read with section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011, (b) under section 298-C of the Pakistan Penal Code, 1860 (‘PPC’), and (c) under section 295-B of the PPC.
In my view as per bare reading of the contents of the FIR, the offence, is clearly made out.
The judgment further goes, it was alleged in the FIR that the “petitioner was distributing/disseminating a proscribed book – Tafseer-e-Sagheer. Learned counsel submits that distributing/disseminating a proscribed book was made an offence by the Punjab Holy Quran (Printing and Recording) (Amendment) Act in the year 2021 whereas the FIR alleged that the petitioner had done this in 2019. We have examined the original law and the changes made to it, and the contention of the learned counsel that the said offence was incorporated into the law in 2021 is correct.”
The Supreme Court of Pakistan opined that, since in the year 2019 the distribution/dissemination of a proscribed book was not an offence, the petitioner could not have been charged for it. And as regards the offences under sections 298-C and 295-B of the PPC for which the petitioner is also charged his learned counsel submits that neither the FIR nor the police report (challan), submitted after investigation by the police, allege that the petitioner had done any of the acts mentioned therein to constitute these offences.
The Supreme Court, therefore, removed the offences under sections 298-C and 295-B of the PPC from the Charge framed against the petitioner.
It was further observed by the SC, that the FIR would not have been registered in respect of the abovementioned offences, had the State authorities taken proper view of the matter. Therefore, Criminal Petition for Leave to Appeal No. 1054-L of 2023 was converted into an appeal and allowed by setting aside the impugned order and by deleting section 7 read with section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011 and section 298-C and 295-B of the PPC from the Charge framed against the petitioner.
While dealing with Criminal Petition No. 1344-L/2023 regarding bail, the Supreme Court referred its earlier order, “On the last date of hearing the following order was passed: ‘Learned counsel states that the petitioner was arrested on 7 January 2023 and if at all the offence is made out it would be under section 5 of the Criminal Law Amendment Act, 1932, as the allegation against him is that he distributed a proscribed book, that is, Tafseer-e-Sagheer, which section attracts a maximum imprisonment of six months. Learned counsel further states that the FIR was registered on 6 December 2022 whereas the alleged offence was stated to have been committed on 7 March 2019 without explaining the delay and the petitioner has remained incarcerated since 7 January 2023.” This stance was ratified by the Additional Prosecutor General Punjab and thus charge was altered to Section 5 of the Criminal Law Amendment Act, 1932 and consequently the petitioner was released by furnishing personal bond of Rs. 5000/-
While passing the above controversial order, the Supreme Court of Pakistan referred many provisions of the Holy Qur’an and the Articles of the Constitution of Islamic Republic of Pakistan. Here, I will analyze the same and will try to convey the true objectives of the relevant provisions and injunctions of Islam.
It must be unveiled that the religion of Islam and Injunctions of Qur’an and Sunnah are unparalleled, binding and ruling over the Constitutional provisions and Law of the Land. Hence, Islam is Prime, wherefrom provisions, principles and traditions of Constitution and Law are derived. Islam is supra-Constitution and not the Constitution of Pakistan is supra-Islam. This aspect of the matter must be abundantly and categorically cleared and fitted in the minds of men at the realm of affairs. Men/creature may never be wise than Creator, hence the commandments of Almighty Allah and his last Prophet, Muhammad (peace be upon him) are binding and unavoidable. Under Article 2 of the Constitution of Pakistan, it is embodied that Islam shall be the State religion of Pakistan.
Under Article 227 it has categorically provided that no law shall be enacted against the Injunctions of Islam, which is reproduced as under:
Article: 227 Provisions relating to the Holy Quran and Sunnah:
(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.
Explanation-In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.
(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.
(3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens.
We will examine the relevant sections alleged in the FIR, those are section 7 read with section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011,
What is Section 7 and 9:
7. Translation or interpretation of the Holy Quran contrary to belief of Muslims.– [(1)] Where, in a copy or record of the Holy Quran, or in any extract thereof published in a text book, a prayer book, a religious treatise or any other book, an Ayah is translated, interpreted or commented upon, disseminated, uploaded, shared, produced, reproduced, converted into portable document through any information system or electronic device into cyberspace by any person contrary to the belief of Muslims, the author, the printer or publisher, or the person who prepared the record, downloader, creator, possessor, modifier, disseminator whatsoever, whether or not registered under this Act, shall, unless he proves that such translation, interpretation, commentary, dissemination, uploading, sharing, production, reproduction or conversion occurred only owing to a printing or mechanical error, be liable to punishment provided for in section 9.]
[(2) Whoever willfully degrades, derogates and disrespect the Holy Quran or any part thereof while putting or writing it on any part of the human body in sacrilegious manner in any form of printing and recording (audio & video) including any electronic form through modern electronic devices or techniques on internet and social media for any unlawful purpose shall be liable to be punished under section 9 of this Act or any other law for the time being in force.]
[8. Disposal of damaged or shaheed copies.- A publisher or a recording company shall make suitable arrangements in the prescribed manner for disposal of a damaged or shaheed copy of the Holy Quran and shall comply with the directions of the Punjab Quran Board issued for proper disposal of a damaged or shaheed copy of the Holy Quran.]
9. Penalty.– (1) A printer, publisher or a proprietor of a recording company who contravenes any provision of this Act or the rules made thereunder, or a person in whose voice a record is prepared, or a person who has certified under sub-section (3) of section 5, a specimen copy or record of the Holy Quran which is not in conformity with the provisions of this Act, shall be punished with imprisonment which may extend to seven years but which shall not be less than three years or with fine which shall not be less than one hundred thousand rupees, or with both].
(1A) Whoever contravenes the provisions of section 7 with the intent to use the same in derogatory manner or for any unlawful purpose, shall be punished with imprisonment for life.]
(2) The Punjab Quran Board may cancel the registration of a publisher or a recording company which is convicted of an offence under sub-section (1).]
Now, the relevant provisions deleted by the Supreme Court from the charge are mentioned hereunder:
Pakistan Penal Code (Act XLV of 1860) Section 298-C narrates;
298-C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith:
Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name), who directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
298-B Misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or places:
(1)Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name who by words, either spoken or written, or by visible representation-
(a) refers to or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as “Ameer-ul-Mumineen”, “Khalifatul- Mumineen”, Khalifa-tul-Muslimeen”, “Sahaabi” or “Razi Allah Anho”;
(b) refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (peace be upon him), as “Ummul-Mumineen”;
(c) refers to, or addresses, any person, other than a member of the family “Ahle-bait” of the Holy Prophet Muhammad (peace be upon him), as “Ahle-bait”; or
(d) refers to, or names, or calls, his place of worship a “Masjid”;
shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
(2) Any person of the Qaudiani group or Lahori group (who call themselves “Ahmadis” or by any other name) who by words, either spoken or written, or by visible representation refers to the mode or form of call to prayers followed by his faith as “Azan”, or recites Azan as used by the Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting Its religion or religious beliefs:
Whoever, with deliberate and malicious intention of outraging the ‘religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
295-B. Defiling, etc., of Holy Qur’an:
Whoever wilfully defiles, damages or desecrates a copy of the Holy Qur’an or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.
295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet:
Whoever 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) shall be punished with death, or imprisonment for life, and shall also be liable to fine.
505. Statements conducing to public mischief:
(1) Whoever makes, publishes, or circulates any statement, rumour or report-
(a) with intent to cause or incite, or which is likely to cause or incite, any officer, soldier, sailor, or airman in the Army, Navy or Air Force of Pakistan to mutiny, offence or otherwise disregard or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity; or
(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment for a term which may extend to seven years and with fine.
(2) Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment for a term which may extend to seven years and with fine.
Explanation: It does not amount to an offence within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid.
the Punjab Holy Quran (Printing and Recording) Act, 2011:
This Act was promulgated in the year, 2011 and was amended in the year, 2021. The charge mentioned in the FIR was already an offence and its sentence was increased through amendment. As the book is being circulated in the market and the public, therefore, offence is continued and does fall in the amended Act, 2021 even. That prohibited book was liable to be banned and its copies to be collected from the market.
As per charge mentioned in the contents of FIR, the petitioner was distributing/disseminating a proscribed book – Tafseer-e-Sagheer. Even then the act of the accused clearly falls under section 298-C and Section 295-B of the Pakistan Penal Code irrespective of the fact that charge under the Punjab Holy Quran (Printing and Recording) Act, 2011, was not clearly made out. The charge was deleted abruptly and unwisely which is not inconsonance with the facts and applicable law. In addition thereto the accused was also liable under section 505 PPC and punishment therein is for 7 years.
QADIANIS/AHMADIS ARE NON-MUSLIM:
As per provisions of the Constitution of Islamic Republic of Pakistan, 1973, the Qadianis are non-Muslims, the relevant Article 260 is referred as under:
Article 260 sub-Article (3) Clause;
“non-Muslim” means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Budhist or Parsi community, a person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name), or a Bahai, and a person belonging to any of the scheduled castes.
QADIANIS ARE NON-MUSLIMS BUT HAVE NO SEPARATE RELIGION:
Qadianis as per Constitution has been declared non-Muslims but they do not possess their private separate religion. They follow the Qur’an with their own changed spirit and they do not believe on the last Prophet-hood of Muhammad (peace be upon him ) rather believe Mirza Ghulam Ahmed, as their prophet (God forbid), hence they do not hold any independent religion rather a de-shaped followers of Islam and Muslims, hence they pose themselves as Muslim and sometimes Ahmedi Muslim, which is kind of “Fitna” in Islam to eliminate the Islam thus they are making “Fasad fil Arz”, for which separate provisions have been made in the Constitution and Law of the land and thus they do not avail all the benefits and privileges like other religious minorities.
The quotations from Holy Quran and the provisions of the Constitution referred to in the judgment, are misfit, misquoted and derailed from the Constitution, Law and Islam, hence the judgment regarding this aspect of the case is redundant and unlawful.
BAIL CASE WAS ABSTRACTED:
It was simple case of bail, which can only be granted technically and legally by the August Court, but divulging into other unnecessary and irrelevant subjects were needless, fishy and tilted, which ought to be avoided by the honourable Court and rectified.
EXTREME CARE AND CAUTION; must be taken while judging the religious issues and that of Muslim beliefs. There must be at least two Shariah/Faqeeh Judges in the Bench of three judges while taking any question of religion or of Muslim belief. Surely the honourable Judges are learned but to be a Faqeeh is additional edge. As to err is human and to repent is admirable. Hence, the Supreme Court of Pakistan, exercising its powers should have itself review the judgment and preferably to delete all irrelevant contents and debate, and must pass a simple order of bail.
Further, in this judgment the SC mentioned that Qur’an is the basic source, Paragraph 6 of the judgment says, “Courts must exercise extreme caution when dealing with matters of faith. The Islamic faith is based on the Holy Qur’an which, in its surah Al- Baqarah (chapter 2), verse 256 reproduced hereunder, expounds that there must not be any compulsion in religion. ………7. Religious compulsion also violates the Divine scheme of accountability in the Hereafter. Even Prophet Muhammad (peace and blessings of Almighty Allah be upon him) was told by the Creator that he is required to only convey the Message and should not compel people to believe, as stipulated in surah Ar-Ra’d (chapter 13), verse 40 and in surah Yunus (chapter 10), verse 99 of the Holy Qur’an. Freedom of faith is one of the fundamental tenets of Islam.”
These quotations mentioned here in this judgment are misfit and mis-quoted. Restriction is upon forced entry into Islam, whereas Qadianis are neither forced to enter in Islam nor they are true followers of Islam and last Prophet of Allah rather defy the same and infringe the rights and sentiments of the Muslims. In the present case a person of Qadiani group, was distributing the prohibited book and altered tafseer, thereby causing damage and loss to the religious feelings and beliefs of Muslims and injuring the same.
CONTINUITY OF THE OFFENCE:
As the proscribed book was allegedly being spread and distributed by the accused, hence the distributed book is flourishing, propagating their religious belief and transferring from hand to hand and causing continuity of offence in the Muslim society, hence the offence is still carried on and perpetrated by the said offender and he is thus liable to be penalized under the law of the land. The alleged book must be banned and its circulated copies must be collected and estopped further spread.
In paragraph 9 of its judgment the worthy Supreme Court of Pakistan has partly referred Article 20 of the Constitution as under:
“The principle of there being no compulsion in religion mentioned in the Holy Qur’an is enshrined in the Constitution as a Fundamental Right. Clause (a) of Article 20 of the Constitution stipulates that, ‘every citizen shall have the right to profess, practice and propagate his religion’ and clause (b) of Article 20 states that, ‘every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions’. Article 22 of the Constitution requires and prescribes that, ‘no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination’. These Fundamental Rights cannot be derogated from, circumvented or diluted.”
What actually the Article 20 is, it is reproduced as under for general information:
Article 20 Freedom to profess religion and to manage religious institutions
Subject to law, public order and morality,-
every citizen shall have the right to profess, practice and propagate his religion; and
every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.
Similarly, the Supreme Court has also quoted Article 22 by deleting some of its important portion, therefore, for fair commentary and analysis I would like to mention the provisions of Article 22 of the Constitution,
Article 22 Safeguards as to educational institutions in respect of religion, etc.
No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.
In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation.
Subject to law,
no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination; and
no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.
Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens.
It can easily be visualized that the Constitutional provisions cited above, referred to and based by the honourable Supreme Court of Pakistan are mistaken, partial and misconceived. These Constitutional provisions are Subject to law, public order and morality, and similarly the provisions of Article 22 are, Subject to law,
The law of the land prohibits Qadianis from propagating their religion to the public and addition many other restrictions provided under the law which will be entailed.
Constitution of Islamic Republic of Pakistan, 1973.
Article 260 sub-Article (3) Clause;
“non-Muslim” means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Budhist or Parsi community, a person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name), or a Bahai, and a person belonging to any of the scheduled castes.
THE CRIMINAL LAW AMENDMENT ACT, 1932 1ACT No. XXIII OF 1932.
5. Dissemination of contents of prescribed document. (1) Whoever publishes, circulates or repeats in public any passage from a newspaper, book or other document copies whereof have been declared to be forfeited to [Government] under any law for the time being in force, shall be punished with imprisonment for a term which may extend to six months, or with fine, or with both.
(2) No Court shall take cognizance of an offence punishable under this section unless the [Provincial Government] has certified that the passage published, circulated or repeated contains, in the opinion of the [Provincial Government], seditious or other matter of the nature referred to in subsection (1) of section 99A of the Code of Criminal Procedure, 1898 (V of 1898), or subsection (1) of section 4 of the Press (Emergency Powers) Act, 1931 (XXIII of 1931).
Pakistan Penal Code (Act XLV of 1860)
298-C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith:
Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name), who directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
298-B Misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or places:
(1) Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name who by words, either spoken or written, or by visible representation-
(a) refers to or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as “Ameer-ul-Mumineen”, “Khalifatul- Mumineen”, Khalifa-tul-Muslimeen”, “Sahaabi” or “Razi Allah Anho”;
(b) refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (peace be upon him), as “Ummul-Mumineen”;
(d) refers to, or names, or calls, his place of worship a “Masjid”;
shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
(2) Any person of the Qaudiani group or Lahori group (who call themselves “Ahmadis” or by any other name) who by words, either spoken or written, or by visible representation refers to the mode or form of call to prayers followed by his faith as “Azan”, or recites Azan as used by the Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting Its religion or religious beliefs:
Whoever, with deliberate and malicious intention of outraging the ‘religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
295-B. Defiling, etc., of Holy Qur’an:
Whoever wilfully defiles, damages or desecrates a copy of the Holy Qur’an or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.
295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet:
Whoever 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) shall be punished with death, or imprisonment for life, and shall also be liable to fine.
505. Statements conducing to public mischief:
(1) Whoever makes, publishes, or circulates any statement, rumour or report-
(a) with intent to cause or incite, or which is likely to cause or incite, any officer, soldier, sailor, or airman in the Army, Navy or Air Force of Pakistan to mutiny, offence or otherwise disregard or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity; or
(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment for a term which may extend to seven years and with fine.
(2) Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment for a term which may extend to seven years and with fine.
Explanation: It does not amount to an offence within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid.
MAIN SOURCES OF ISLAM:
The Holy Qur’an and Sunnah of the last Prophet (peace be upon him) are the main sources of Islam/Shariah amongst others. We cannot truly follow and understand the Injunctions of Qur’an without adopting and following the Sunnah/Traditions of the Last Prophet (peace be upon him) and them comes Traditions of Companions (RA) of the Last Prophet (peace be upon him), likewise Ijmah and then Qias.
In my humble view, the simplicit bail order of the August Court is seemed covered under the Law, as of being discretionary matter too and the other issues discussed and debated in the judgment are ultra vires, unconstitutional and supra constitutional and thus illegal. The honourable Supreme Court of Pakistan, in view of the very crucial and delicate matter, must reconsider the matter in review and rectify it as per Law and Constitution of Pakistan.
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