SC orders extreme caution in matters of faith

Grants bail to an accused charged with distributing proscribed religious book

ISLAMABAD:

The Supreme Court has held that the courts must exercise extreme caution when handling cases involving matters of faith.

Chief Justice of Pakistan Qazi Faez Isa authored a five-page judgment while granting bail to an accused charged with distributing a proscribed book, Tafseer-e-Sagheer.

The judgment expressed concern that emotions often overshadow facts in cases related to offences against religion, where individual complainants take precedence over the state. The CJP highlighted the nature of such offences, emphasising that they are not against individuals or personal property.

"We regretfully note that in dealing with cases pertaining to offences against religion facts give way to emotions, as seems to have happened in this case too, and individual complainants supplant the State, even though the very nature of these offences is not against an individual or with regard to personal property,” the order read.

The counsel for the petitioner stated 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.

The accused had been charged with distributing a proscribed book in 2019, and the judgment noted that the Constitution prohibits charging someone for an act that was not an offence when committed.

The court ruled that since distributing the book was not an offence in 2019, the petitioner could not be charged for it.

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The judgement also noted that as regards the offences under sections 298-C and 295-B of the PPC for which the petitioner is also charged, his counsel submitted 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 instant case is also not one wherein the charge could be altered or where the petitioner could have been convicted of a lesser offence to those under sections 298-C and 295-B of the PPC.

Therefore, the offences under sections 298-C and 295-B of the PPC are removed from the Charge framed against the petitioner."

The court also said that 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.”

The judgement further held that freedom of faith is one of the fundamental tenets of Islam. “But sadly, in matters of religion tempers flare up and the Qur’anic mandate is forsaken,” it added

The court further said that if only the functionaries of the State had heeded the Holy Qur’an, considered the constitution and examined the law then the FIR would not have been registered in respect of the offences.

The court also said that the petitioner was arrested on January 7, 2023, and has remained incarcerated for thirteen months, which is more than double the permissible punishment under section 5 of the Criminal Law Amendment Act, 1932.

Trials in respect of offences where the maximum sentence of imprisonment is relatively short must be conducted promptly or the accused should be granted bail. However, bail was declined to the petitioner by the additional sessions judge on 10 June 2023, without considering that the petitioner had already served out the maximum prescribed imprisonment for the said offence.

The learned judge of the high court also dismissed the petitioner’s bail application, through the impugned order dated November 27, 2023, by overlooking this crucially important aspect of the case.

Therefore, the court noted, that since the petitioner has already served out the maximum imprisonment of six months prescribed for the offence if he is found to be guilty of having committed it, keeping him incarcerated would violate a number of his fundamental rights.

Article 9 of the Constitution stipulates that a person shall not be deprived of his liberty save in accordance with the law; the law no longer permits his detention, it added.

"And, Article 10A of the Constitution guarantees the right to a fair trial and due process, which too the petitioner is now being denied. In addition to the violation of these two Fundamental Rights is the overarching right stipulated in Article 4 of the Constitution, ‘To enjoy the protection of law, and, to be treated in accordance with law is the inalienable right of every citizen.’”

The petitioner is no longer being treated in accordance with law because while waiting for the conclusion of his trial he has remained imprisoned for a period much longer than what he could have been punished for if he is found guilty, the judgement read.