ATA ULLAH Versus THE STATE

ORDER

The petitioner, has applied for grant of bail in a case registered against him vide F.I.R. No.302, dated 8‑9‑1999 for an offence under section 298‑B of the P.P.C, at Police Station Sadar, Chishtian, District Bahawalnagar.

2. In this case. "Alami Majlis‑e‑Tahaffuz‑e,Khatam‑e‑Nabuwat", Bahawalnagar made a written complaint to the Assistant Commissioner, Chishtian on 4‑9‑1999 alleging therein that the petitioner had. committed an offence under section 298‑B of the P.P.C. by getting ‑an "Ibadat. Gah" or place of worship constructed like a Masjid/mosque. .The complaint was marked to the Extra‑Assistant Commissioner/Magistrate First Class, Chishtian for necessary action. The E.A.C. alongwith a police party and Maulana Abdul Qadir Kashmiri, Maulana Aziz‑ur‑Rehman, residents of Chistian and a number of residents. of Chak No. 11 visited the spot and found that adjacent to the Dera/house of the petitioner an "Ibadat Gah" or a worship‑place had been constructed like a mosque. The building had minarets, Mehrab/arches and a crest, like a "Masjid" or mosque. In the presence of residents of the locality the disputed building was, searched in which a number of books, the Mirzai literature and a copy of the Holy Qur' an were found which were taken into possession by the police through a recovery memo. To safeguard its sanctity, the Holy Qur'an, found from the disputed place was entrusted to Maulana Aziz‑ur‑Rahman,. Khateeb Jamia Masjid, Tehsilwali. The recovery memo. was signed, amongst others, . by Mukhtar Ahmad son of the petitioner who informed the E.A.C. that the petitioner was the manager of the place of worship. The residents, of‑ the locality also informed the E.A.C. that the petitioner used to bring preachers for propagating (Quadiani faith) in the disputed place of worship. During the course of investigation, the police recorded the statements of Maulana Abdul Qadir Kashmiri, Maulana Aziz‑ur‑Rehnian, Bashir Ahmad, Lambardar of Chak. No.11/F.W., Amjad Rashid, Sardar and Muhammad Shafiq Yunus, all residents of Chak No. 11/F.W., where the disputed building is located.

3. The petition was taken up for hearing on 4‑10‑1999. During the course of arguments, the complainant's learned counsel pointed out that the disputed place of worship was got constructed by the petitioner in the form of a traditional Muslim mosque. The petitioner's learned counsel candidly stated that if the structure had resemblance with a traditional Muslim mosque it will be modified and the minarets etc. will be pulled down. To ascertain whether the present structure had any resemblance with a Muslim mosque, the complainant was allowed to place on record photographs of the disputed structure. The hearing of the case was postponed to 7‑10‑1999 when the complainant's learned counsel placed on record six photographs marked as Annexures "E to E/5". The petitioner's learned counsel also placed on record two photographs marked as Annexures "F" and "F/1". The said. photographs clearly show that the structure is similar to a traditional Muslim mosque. When questioned whether the structure would be modified so as to put an end to the controversy, the petitioner's learned counsel stated that the petitioner was not prepared to do so; that the offer made on 4‑10‑1999 was valid only for that date and added that the petitioner was not competent to take 'a decision personally and that the decision to modify the existing structure of the disputed building ‑, could be taken by Jamaat‑e Ahmadia.

4. Before proceeding further it may be mentioned that on 4‑10‑1999 the petitioner's learned counsel had urged that the petitioner is aged about 65 years and a weak and infirm person. A report was called from the Jail Doctor about the petitioner's age and state of health. The doctor reported that the petitioner is about 60 years old with normal health. In view of this report, the petitioner's learned counsel did not press the prayer for bail on the ground of the petitioner's alleged old age and infirmity.

5. On merits, the petitioner's learned counsel strenuously urged that it is an ordinary case registered under section 298‑B of the P.P.C. which did not fall within the prohibitory clause of section 497 of the Cr.P.C., that the matter is not to be decided on the basis of peculiar faith of a party; that from the contents of the F.I.R. no offence was made out. against the petitioner as the place. of worship was neither named nor called by the petitioner as a Masjid/mosque; that on the gate of the place of worship the words "Baitul Ahmadia" had been written as is evident from the photographs Annexures "F" and "F/1"; that the allegation that construction of the place of worship has injured the feelings of Muslims is frivolous because during the construction too body raised any objection till the registration of the case; that the report was lodged by an organisation known as "Aalami Majlis‑e Tahaffuz‑e‑Khatam‑e‑Nabuwwat, Bahawalnagar" and no resident of Chishtian had objected to it; that the petitioner belongs to Quadiani Group of Jamaat‑e‑Ahmadia who never concealed his faith or claimed to be a Muslim; that the land on which the disputed building has been constructed belongs to the petitioner who also contributed to the construction being a Quadiani; that the F.I.R. has been falsely registered and. amounts to violation of Articles 4, 20 and 25 of the Constitution of Pakistan; that bail cannot be refused merely because the offence is against the society and that bail should be allowed in a case like the present one, which does not fall within the prohibitory clause of section 497 of the Cr.P.C. In support of his contentions, he relied on the following judgments:‑‑

(i) Muhammad Aslam v. The State 1998 PCr.LJ 522.

(ii) Asghar Mlssih and another v. The State 1995 PCr.LJ 544‑

(iii) Sikandar A. Karim v. The State 1995 SCMR 387.

(iv) Syed Ahmad Ali Rizvi and others v. .The State PLD 1995 SC 500.

6. On the other hand, the learned A.A.‑G. opposed. bail and urged that the petitioner has clearly committed the offence under section 298‑B as well as 298‑C of the P.P.C.; that the Quadianis are not entitled ‑to build their place of worship like a traditional Muslim mosque; that by doing so deliberately they have injured the feelings of the Muslims of the country; that during the course of investigation it was found that preachers were brought in the disputed place of worship for preaching the Quadiani faith; that if this kind of practice was allowed to continue this would create a serious law and order situation; that the petitioner cannot be allowed bail merely because the offence does not fall within the prohibitory clause of section 497 of the Cr.P.C. as he has deliberately violated the law and demonstrated by his conduct that he would continue to commit an offence by not changing the disputed structure; that mosque is included in Shaa'ir‑e‑Islam and is an important place of worship for Muslims, their religious culture and education; that sufficient material has been collected during the course of investigation to show that the petitioner brings the residents of the locality to the place of worship so that they may hear the Quadiani preachers; that the Holy Qur'an being the sacred book' of Muslims cannot be touched by the Quadianis or for that matter other non‑Muslims who are not "Tahir" or clean or pure; that the mere fact that the words "Bait‑ul‑Ahmadia" have been written on the main gate or the inner Mehrab of the place of worship is not enough to obviate the possibility of deception to Muslims because a large number of the residents of the locality are illiterate who cannot read the above‑referred words and even otherwise very often the literate persons do not advert to what is written on the gate or the Mehrab etc., therefore, there is every possibility of deception to Muslims who might mistakenly enter the place of worship and offer their prayers behind a non‑Muslim/Quadiani Imam. In support of his contentions the learned A.A.‑G. relied on the judgment in the case of Zaheeruddin and others v. The State and others 1993 SCMR 1718. Referring to the provisions of section 298‑B of the P.P.C. the learned A.A.G. urged that the words, "refers to" used in clause (d) of subsection (1) of section 298‑B of the P.P.C. means, in the context, to direct attention to the place of worship as a Masjid/mosque and that by building the place of worship according to the commonly known design of Muslim mosques, the accused petitioner has directed attention to the disputed structure as if it was a Masjid/mosque.

7. Mr. A.R. Tayyab, Advocate, learned counsel for the complainant generally adopted the arguments of the learned A.A.‑G. and added that the offence committed by the petitioner falls under sections 298‑B and 298‑C of the P.P.C. as well as section 9 of the Anti‑Terrorism Act, 1997. He submitted that the deliberate construction of the place of worship like a Muslim mosque is a serious one which has provoked Muslims and created an 'atmosphere of hostility between the Muslims and 'Qadianis, therefore, the petitioner is guilty of committing a "terrorist act". He further urged that the Holy Qur'an is (SAHFAL MUTHARA) or sacred revelations of Almighty Allah and when written in 'the Arabic language can be touched only by clean or pure persons. Even a Muslim when in unclean condition under the rules of Sharia cannot touch the Holy Qur'an, muchless a non‑Muslim like a Qaudiani who is inherently not ,Tahir" or clean. In this connection he referred the relevant Verses of the Holy Qur'an and the commentary of the Holy Qur'an by Maulana Muhammad Shafi. At this juncture, Maulana Aziz‑ur‑Rehman who happened to be present in the Court came forward to clarify the point. He explained that the Holy Qur'an in the Arabic text cannot be touched by non Muslims as the sanctity primarily attaches to the words of Almighty Allah which are in the Arabic language but if it, is translated into any other language then the translated version can be used by all non‑Muslims for the purposes of guidance. Mr. A.R. Tayyab, Advocate further submitted that the disputed place of worship is like "Masjid‑e‑Zarar" and ought to be pulled down as it is likely to stir up communal or sectarian hatred acid clash. Lastly, he urged that bail cannot be claimed by the petitioner as of right particularly when he is not prepared to modify the offending building. He relied on the following judgments:‑‑

(i) Muhammad Azad Khan v. The State 1988 PCr.LJ 1245;

(ii) The State v. Muhammad Nazir and others PLD 1991 Lah. 433;

(iii) Tariq Bashir and 5 others v. The State PLD 1995 SC 34;

(iv) Kanwar Khalid Younus and another v. The State PLD 1995 Kar.347;

(v) Muhammad Afzal ‑and another v. The State 1997 SCMR 278;

(vi) Imtiaz Ahmad and another v. The State PLD 1997 SC 545;

(vii) Pir Bakhsh and 4 others v. The State 1999 PCr.LJ 111;

(viii) Muhammad Saeed v. The State PLD 1999 Kar. 345.

8. M/s. Shabbir Ahmad Bhutta and Ghulam Rasool, Advocates (for the complainant) supported the view‑point convassed by Mr. A.R. Tayyab, Advocate and added that non‑Muslims are debarred from entering the sacred limits of Harm‑e‑Kaaba because they are "Najas" or unclean.

9. Mr. Muhammad Akhtar Qureshi, Advocate also appeared for the complainant and urged that it was wrong to say that the case involved commission of an ordinary penal offence; that the law relating to Anti‑Islam Activities of the Quadiani and Lahori Groups of Jamaat‑e‑Ahmadia was enforced on 26‑4‑1984; that since then the Quadianis are violating the law in different ways and creating law and order situation in the country; that for the said reason ban was imposed on their centenary celebrations upon which they filed a writ petition in the Lahore High Court which was dismissed; that in Zaheeruddin's case (1993 SCMR 1718) it was held that Islam is the supreme and effective law in ;the country and that the Quadianis deceive the world by passing of their faith as Islam; that offences involving religious sentiments are very serious and can create national as well as international 'problems; that 'it cannot be said at this stage that the case requires further probe and inquiry because there are reasonable grounds for believing that the petitioner has deliberately committed the offence by building a place of worship like a Muslim mosque; that the F.I.R. can be got registered on the report of any informant who need not necessarily be a resident of the place of occurrence; that in the present case residents of the locality are also witnesses who had duly supported the prosecution case; that the F.I.R. was duly, registered after preliminary inquiry conducted under the orders of the Assistant Commissioner, Chishtian; that a preliminary investigation/inquiry can be conducted by virtue of the provisions of section 196‑B of the Cr. P. C. ; that if the petitioner agrees to modify the disputed structure and undo the similarities with a Muslim mosque then he will have no objection to grant of bail to him; that in the present shape Muslims are likely to be misled and might come forward to use the place as their own Masjid which might result in disputes and clashes in future; that the challan had been submitted in the Court on 11‑9‑1999 and the trial Court could be directed to conclude the trial within a short period.

10. Mr. Bilal Ahmad Qazi, Advocate (amicus curiae) argued that the persistent behaviour of the Quadianis/Ahmadis shows that they do not adhere to the law of the land and deliberately violate the Constitution by claiming to be real Muslims and by preaching their faith and constructing their places of worship like Muslim mosques; that their acts undermine the authority of the Constitution and law of the land; that in this way they are guilty of subverting the Constitution of the country; that the present case is not one where somebody due to some motive or mistake has once committed a crime but is one of calculated and continuous commission of crime; that the petitioner has refused to modify the structure so as to give it a shape different from a Muslim mosque, hence, his conduct also disentitles him to the discretionary relief of bail.

11. Mr. Muhammad Haq Nawaz Qamar, Advocate (amicus curiae) urged that. the first notable judgment against the Quadianis was delivered by Muhammad Akbar Khan, District Judge, Bahawalpur on 7‑2‑1935 and since then the Quadinis have focussed their attention on this area and are desperately trying to spread their peculiar faiths and, that for this purpose they have been sending preachers in this area; that they got the Holy Qur'an translated in the Saraiki language generally spoken in this region; that construction of the disputed place of worship is a calculated step for spreading the Quadiani faith; that it will be used like Masjid‑e‑Zarar for causing harm to the Muslim Ummah that bail cannot be granted to the petitioner who has knowingly violated the law; that the petitioner's release on bail will provoke the Muslims and might even endanger the petitioner's life.

12. In reply, the petitioner's learned counsel urged that all arguments raised on behalf of the learned counsel for the complainant, the State and the leaned counsel who appeared as amicus curiae are extra‑Constitutional and irrelevant; that there is no charge in the F.I.R. that the petitioner has ever posed as a Muslim or called the disputed place of worship as Masjid; that the petitioner is a non‑Muslim under the Constitution of Pakistan; that the disputed place is certainly not a Muslim mosque as the place was not dedicated for construction of a mosque for Muslims generally; that so far as Mehrab/arch is concerned, according to Imam Sayuti it is a Bidaa or an innovation which cannot be a proper part of mosque. In this connection he referred to Fatawa Darul Uloom Deoband Vol. 11, page 778; that at this stage bail cannot be withheld as a punishment; that to avoid deception the words "Baitul Ahmadia have been written on the main entrance of the disputed place. On a. Court question the petitioner's learned counsel A stated that the petitioner was not ready to add the words ( QADIANI GROUP) after the words Baitul Ahmadia . He further submitted that in case the F.I.R. was lodged after some preliminary inquiry then it merited to be quashed. At the end of his arguments the petitioner's learned counsel was again questioned whether the petitioner would be prepared to modify the existing structure of the disputed building to put an end to the controversy, to which he replied in the negative.

13. I have carefully considered the above‑referred contentions raised before me and perused the material on the record. The objections to registration of the case at the instance of an organization known as "Aalmi Majlis‑e‑'Tehaffuz‑e‑Khatm‑i‑Nabuwat" through its office‑bearers and holding of some investigation before formal registration of the F.I.R. do not carry much weight. The machinery of law can be set in motion by any person who need not necessarily be a resident of the locality where an offence takes A place. The controversy regarding holding of some investigation prior to registration of the case was set at rest by the Full Bench judgment in the case of "Riaz Ahmad v. The State" (PLD 1994 Lahore 485). It was held that in I cases involving cognizable offences, receipt and recording of a First Information Report was not a condition precedent to the setting in motion of a criminal investigation and that illegality committed in this respect did not, per se, vitiate the arrest of the accused or his trial.

14. The present case is a sensitive one involving religious feelings and sentiments. The faith of general body of Muslims is materially different from that of the Quadiani Group or Lahori Group of Jamat‑e‑Ahmadia. The clash of their faiths has a long history spread over a period of more than one hundred years. On several occasions in the past, it resulted in bloodshed and serious law and order situations. The followers of Mirza Ghulam Ahmad belonging to Quadiani Group and Lahori Group were declared to be non- Muslims under Article 260(3)(b) of the Constitution of the Islamic Republic of Pakistan, 1973. To achieve the objectives of the Constitution, the law known as the Anti‑Islamic Activities of Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984 was enforced on 26‑4‑1984. Through this law sections 295‑B and 298‑C were brought on the statute book to keep the said minorities within certain limits of the law and to protect the rights of the vast majority of. Muslim citizens of Pakistan. The present case has been registered under section 298‑B of the P.P.C. which provides as under:‑‑

(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". "Khalifa‑tul‑Momineen", Khalifa‑tul Iy4uslimeen, "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 Ummum Mumineen";

(c) refers to, or addresses, any person, other than a member of the family "Ahle‑bait";

(d) refers to, or names, or calls, his place of worship as "Masjid"; shall be punished with imprisonment of either descriptions for a term which may extend to three years, and shall also be liable to fine.

(2) Any person of the Quadiani 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 refers 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."

The primary object of this provision of law is to protect and preserve the glory, honour and sanctity of the Ahle‑Bait, the Caliphs of the Holy Prophet (p.b.u.h.) his noble wives and companions and to prevent the Quadiani or Lahori Group from misusing the epithets, descriptions and titles reserved for the said Holy personages or referring to or naming or calling their place of worship as "Masjid". The petitioner's learned counsel laid stress that the petitioner is neither referring to his place of worship as a mosque nor calling or naming it as a "Masjid". He urged that the building got constructed by the Quadianis who are non‑Muslims under the Constitution of Islamic Republic of Pakistan, cannot become a "Masjid" under the Islamic Sharia. As regards the Mehrab, he urged that it is a Bidaa' and not necessarily a part of a Muslim mosque. The creation of a Sharaee mosque is not to be proved for constituting an offence under section 298‑B(l)(d) of the Pakistan Penal Code. It is enough if by words spoken or written or mere visible representation it is conveyed to others that the Quadianis' place of worship is "Masjid". The words "as Masjid" would mean, in the context, as if it was a Masjid. p Therefore, if a person belonging to Quadiani or Lahori Group constructs a building, though squarish in shape or like a Christian Church, or a Hindu Temple and names or calls it as "Masjid" he would be guilty under the above‑referred provision of law. Conversely, if he constructs or gets the building constructed like a traditional Muslim mosque, prima facie, it would be a visible representation showing that it is a "Masjid". In that eventuality, will naming it as "Bait‑ul‑Ahmadia" make any difference can it be said that it amounts to double deception. These questions may be finally decided by the trial Court but I may observe tentatively that such an act would prima facie, fall within the mischief of section 298-B(1)(d) of the P.P.C. There is weight 1E in the argument raised by the learned A.A.‑G. and the learned counsel for the complainant that notwithstanding the writing of the words "BAITUL AHMADIA" atop the main entrance of the disputed building, the possibility of deception to Muslim community will remain there because the illiterate persons/Muslims will not be able to read the said words and others, though literate may not advert to or understand the true import of the writing and mistakenly enter the place and offer prayers behind a non‑Muslim Quadiani Imam. Moreover, the writing can be washed out or removed at any F time or may fade away with the passage of time. Prima facie, the offence is also covered under section 298‑C of the P.P.C. because the act of construction of the building like a traditional Muslim mosque by non Muslims has injured the feelings of Muslims. It has also been found during, tile course of investigation that the petitioner brings Quadiani preachers in the disputed building and throws challenge of debate or "Munazera" to Muslims. Hence, prima facie, reasonable grounds are made out for believing that the petitioner has committed an offence under sections 298‑B and 298‑C I of the P.P.C.

15. The arguments that the petitioner has committed a "terrorist act" as defined under section 6 of the Anti‑Terrorism Act, 1997 has not impressed me. Section 6 of the Act applies where no act is done to strike terror or creates a sense of fear and insecurity in the people or any section of the people or to alienate any section of people or to adversely affect harmony among different sections of the people by using bombs, dynamite or other explosive or inflammable substances or "notified" fire‑arms or other lethal weapons etc. in such a manner as to cause or be likely to cause the death or injury to any person or damage to property on a large scale or wide‑spread disruption of supplies of essential services of life or to threaten with the use of force public servants to prevent them from discharging their lawful duties) commits a scheduled offence the effect of which will be or likely to be, to strike terror or create a sense of fear and insecurity in the people or any section of the people or to adversely affect harmony among different sections of the people. The complainant's learned counsel stressed that the act committed by the petitioner is likely to adversely affect harmony among different sections of the people. He conveniently over‑looked that the effect I contemplated under section 6(b) of the Act must be relatable to a scheduled H offence and sections 298‑B and 298‑C are not included in the "schedule" of the Act. Therefore, the argument that the petitioner has committed a "terrorist act" is repelled.

16. Masjid or mosque is a highly important and sacred institution of Muslims. Every mosque is house of Allah where the name of Almighty Allah is glorified and where Muslims offer their prayers. The Holy Ka'aba located at the Holy City of Makkah is referred to in the Holy Qur'an as house of Allah and all other mosques are considered as daughters of Holy Ka'aba and also called houses of Allah which have to be carefully maintained and respected like other symbols of Islam . The non‑Muslims cannot be allowed to adopt symbol of Islam without amending their faith arid converting to Islam. If a building is constructed according to the common and familiar design of a "Masjid" and persons congregate and pray in the manner of Muslims then it can be thought that they are Muslims. In order to avoid deception to Muslim community Quadianis are prohibited I under section 298‑B of the P.P.C. from misusing certain epithets reserved for the highly reverend personages, announcing call for prayers through Azan or calling their place of worship as "Masjid". In Zaheer‑ud‑Din's case (1993 SCMR 17.18), the Hon'ble Supreme Court of Pakistan had ruled that insistence on the part of the Quadianis and their community to use prohibited epithets and (SHAA IR E ISLAM) leaves no manner of doubt that they want to do so intentionally and it may amount not only to defiling those pious presonages but also deceiving others; that if their religious community insists on deception as its fundamental right and wants assistance of Courts in doing the same then God help it. It was further held, "Consequently they (the persons belonging to Quadiani or Lahori Group) have no right to use the epithets etc. and the Shaa'ir'e'lslam, which are exclusive to Muslims and they have been rightly denied their use by law". It was further held: "Their use of the "Shaa‑ir‑e‑Islam etc., thus amounts to either posing as Muslims or~ to deceive others or to ridicule". Referring to provisions of Ordinance XX of 1984 the Hon'ble Supreme Court was pleased to hold:

"The impugned Ordinance, on the other hand, gives the actual epithets, the descriptions and also titles and other requirements sought to be protected or imposed. It is also stated that they cannot be used for entities or situations other than those for which they have been prescribed. The Ahmadis have been desecrating them and using them for their own leaders and practices etc., to deceive the people that they are also of the same type, status and the calibre. This practice not only deceived innocent, simple and not‑well informed people but also created law and order situation throughout the period. The legislation was, therefore, necessary, which in any way does not interfere with the religious freedom of the Ahmadis; for it only prohibits them from using those epithets etc., on which they have no claim of any nature. It does not prohibit them from coining their own. "

The Court emphasized that the Quadianis must honour the Constitution and the law. The relevant part reads as under:

"The Ahmadis like other minorities arc free to profess their religion I in the country and no one can take away that right of theirs either by legislation or by executive orders. They must. however, honour the Constitution and the law and should neither desecrate or defile the pious personages of any other religion including Islam nor should they use their exclusive epithets, descriptions and titles and also avoid using the exclusive name like mosque and practice like 'Azan' so that the feelings of the Muslim community are not injured and the people are not misled or deceived as regards the faith. "

The above interpretation of law and views of the highest Court of the country are a complete answer to the argument raised by the petitioner's learned counsel with reference to Article 4 of the Constitution of the Islamic Republic of Pakistan regarding right of individuals to be dealt with in accordance with the law, Article 20 regarding freedom to profess religion and to manage religious institutions and Article 25 of the Constitution regarding equality, of citizens.

17. The petitioner's learned counsel also urged that construction of a Mehrab in a Muslim mosque is ' Bidaa' and is not a necessary part of Masjid. He relied on the view of Allama Jalal‑ud‑Din Sayuti contained in his book, "ALAMUL ARANIAB FI BIDATUL HARAIB". This book has not been produced before me but its name is mentioned in Fatawa Darul Uloom Deoband, Volume 2, page 779. Maulana Masood Ahmad has differed with this view and opined:

Mufti Muhammad Shafi concurred with the view of Maulana Masood Ahmad and added: Therefore, it is not possible to hold that construction of Mehrab in a mosque is ' Bidaa' or prohibited under the Islamic Law.

18. It was urged before me with reference to verse No.79 of ' Surah al Waqia' That non‑Muslims including the Quadianis not being 'Tahir' or clean cannot be allowed to touch the Holy Qur'an and that by keeping copies of ,the Holy Qur'an in the disputed place of worship the Quadianis had injured the religious feelings and sentiments of Muslims. Does this verse of the Holy Qur'an embody a rule of propriety qua a "superior act and is applicable to Muslims or contains a. rule of law governing Muslims as well as non‑Muslims? The answer to this question is not easy one and may be given after thorough research and probe. This exercise may be done at the bottom level by the trial Court. It was said before me by a religious scholar "Maulana Aziz‑ur‑Rehman" that translated version of the Holy Qur'an in English, German or any other language can be touched and read by non‑Muslims. Then what about those non‑Muslims who can only speak and follow the Arabic language? Will the rule qua them be different from those who speak and understand other languages? After all the Holy Qur'an embodies the last heavenly message for guidance of the entire mankind. Without expressing any considered view on this aspect of the matter I leave it to be decided by the trial Court in the light of the teachings of Islam.

19. Now I may refer to some of the judgments relied upon by the learned counsel for the parties. The petitioner's learned counsel has heavily relied on the judgment in the case of Muhammad Aslam v. The State (1998 PCr.LJ 522) In this case, the allegation levelled against the Quadianis was that they were preaching their religion and misleading Muslims; that the model of the place of worship of Quadianis was like a Muslim mosque and tended to deceive the general body of Muslims; that "Kalima Tayyabah" and other Qura'nic verses were inscribed on the walls of the building. Bail was granted to the accused on the following considerations:‑‑

(i) Quadianis seldom conceal the identity of their worship place, and it is publicly known to all those around that a particular place is centre of worship of the Quadianis and not that of the Muslims.

(ii) No question of the Muslims falling prey to any confusion about identity of such a building arises; that inscription of the Qur'anic verses does not tantamount to desecration or derogation of Allah's book if followers of other religion do so to derive spiritual enlightenment and guidance.

(iii) That if feelings of the complainant or other Muslims are injured why did they keep silent for about 5‑1/2 months.

(iv) That the offences under sections 295‑B and 298‑C of the P.P.C. do not fall within the prohibitory clause of section 497 of the Cr.P.C.

(v) That no recovery is to be made from the accused persons.

(vi) That it is not known as to when the trial will commence and conclude.

With utmost respect, I find myself unable to' subscribe to the view that there is no possibility of deception to Muslims merely because Quadianis, do not conceal the identity of their place of worship. If the structure of the building used by the Quadianis as their place of worship resembles with that of a Muslim mosque, Qura'nic versus are inscribed on its walls or atop the arches and additionally prayers are offered in the manner of Muslims then Muslims are likely to be misled. The petitioner's learned counsel had urged that in order to avoid deception to Muslims the words "BAITUL AHMADIA were written M over the main entrance of the disputed building. As discussed above, this does not altogether obviate possibility of deception to Muslims because illiterate persons cannot read the said words and yet others may not either notice the same or understand their true import. When questioned whether the petitioner was prepared to add the words " QADIANI GROUP" after the words BAITUL AHMADIA " he replied in the negative. In Muhammad Aslam's case reference was also made to the judgment of Hon'ble Supreme Court reported as "Nasir Ahmad v. The State" (1993 SCMR 153) whereby the bail refusing order of the High Court was set aside.,The said case pertained to the use of certain expressions like"ASALUMU ALIKUM BISMILLAH ARHMAN NIRAHIM and INSHALLAH etc. by the QuadIanis in a marriage invitation card. Bail was allowed by the Supreme Court of Pakistan as the Court had got the impression that ex facie use of these expressions did not create in a Muslim or for that matter anyone else any of the feelings of hurt, offence or provocation etc. It was held, "It is only when the person reading or hearing them goes deep into the background of the person using them and brings his own special knowledge of faith, beliefs and latent intentions of such an accused that the alleged results are likely to follow". It was felt that this exercise could be done at the trial after recording of evidence. However, in the present case, the very construction of the disputed building like a Muslim mosque, prima facie,. makes out the offence.

20. In the case of Asghar Masih and another v. The State (1995 PCr.LJ 544) it was held that the Court can make only a tentative assessment of evidence at the, bail stage which should neither damage the case of the prosecution nor of the accused. In the case of 'Sikandar A. Karim v. The State" (1995 SCMR 387) the Hon'ble Supreme Court was pleased to hold that in a case not falling within the prohibitory clause of section 497 of the Cr.P.C. bail cannot be withheld on the ground that the offence falls under the category of crimes against society; that the Court should avoid making observations which might prejudice an accused in his defence at the trial. In the case of "Syed Ahmad Ali Rizvi etc. v. The State" (PLD 1995 SC 500) it was held that grant of bail is not a favour or concession but is a right of the accused which is regulated by law; that Courts as custodian of citizens' liberty are duty bound to examine the case with care and caution and mere technicalities should not stand in the way of doing justice.

21. Coming to the judgments cited by the complainant's learned counsel, the first one pertains to the case of "Muhammad Azad Khan v. The State" (1988 PCr.LJ 1245) in which it was held that even in a case not falling within the prohibitory clause of section 497 of the Cr.P.C. an accused person could not claim bail as a matter of right and that each case had to be decided on its own facts. In the case of "The State v. Muhammad Nazir and others" (PLD 1991 Lahore 433) it was observed that although the superior Courts have been of the view that in cases involving offences punishable with less than 10 years' imprisonment the Courts should ordinarily lean towards grant of bail but it should never be taken to mean that the accused persons could claim bail as of right or that the Court should release them on bail as a matter of mere routine and that distinction between the bailable and non bailable offences had to be honoured by the Courts of law and cannot be set at naught. It was further held:

"The concerned Court is, in fact, required to apply its judicial mind to the gravity of the offence allegedly committed; the circumstances which led. to the commission of such an offence; the damage consequently caused or the effects likely to be cast on the individuals or the society at large; the status of the accused person; his state of mind as depicted by the nature of the crime committed and the manner of the commission of the same; that past conduct of the accused person; the possibility of the absconsion of the accused and the possibility of his repeating the offence or the apprehension 'of his tampering with the evidence and, thereafter, to exercise the discretion vesting in it in accordance with the principles of equity, the dictates of morality and the other accepted norms governing the Court. "

In the case. of "Tariq Bashir and 5f others v. The State" (PLD 1995 SC 34) the Hob'ble Supreme Court held that bail in non‑bailable offences not falling within the prohibitory clause could be declined only in extraordinary and exceptional cases, for example:‑‑

"(a) Where there is likelihood of abscondence of the accused;

(b) Where there is apprehension of the accused tampering with the prosecution evidence;

(c) Where there is danger of the offences being repeated if the accuses is released on bail; and

(d) Where the accused is a previous convict."

In the present case as observed above, the offence is a continuing one and the a petitioner had refused to change or modify the apparently offending structure of the disputed building. In the case of "Muhammad Afzal and another v. The State" (1977 SCMR 278) the Hon'ble Supreme Court of Pakistan held that the offence under section 17 of Ordinance VII of 1979 did not fall within the prohibitory clause but it did not mean that the accused were entitled to be released on bail as a matter of course. In this case the bail granting order passed by the Sessions Court was recalled by the High Court and the Honourable Supreme Court of Pakistan upheld the order passed by the High Court. In the case of "Imtiaz Ahmed and another v. The State" (PLD 1997 SC 545) the Honourable Supreme Court was pleased to hold in respect of offence not falling under the prohibitory clause of section 497 of the Cr.P.C. that the Court may decline to admit an accused to bail if there exists a recognized exceptional circumstance. The relevant part from para.7 of the order is reproduced below for ready reference:

"I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. in the absence of an exceptional circumstance may be followed, but in the latter category, the Courts should be strict in exercise of discretion of bail. "

In the case of "Kanwar Khalid Younus and another v. The State" (PLD 1995 Karachi 347) a Division Bench had held that the mere fact of an offence being punishable with less than 10 years' imprisonment would not by itself entitle the accused to grant of bail. Similar views were expressed in the cases of "Pir Bakhsh and 4 others v. The State" (1999 PCr.LJ 111) and "Muhammad Saeed v. The State" (PLD 1999 Karachi 345).

22. The offences under sections 298‑Band 298‑C of the P.P.C. do not fall within the prohibitory clause of section 497 of the Cr.P.C. but this fact alone does not entitle the petitioner to claim bail as of right as held in a P number of Judgments referred to above. In a case involving commission of a non‑bailable offence, bail can be refused if possibility or danger of commission of another offence by the accused. (See "Muhammad Iqbal v. The State (PLD 1963 (W.P.) Lahore 279) and Tariq Bashir and 5 others v. The State (PLI) 1995 SC 34). Again in the case of Imtiaz Ahmad and another the Honourable Supreme Court has held that in cases involving commission of an offence against the society as whole, the Court should be strict in the exercise of discretion of bail. The present case does not involve commission of an ordinary penal offence against one or more ‑individuals but is an exceptional case involving commission of an offence against the society as a Q whole which may have national as well as international repercussions: As mentioned above, at one stage, the petitioner's counsel had stated in a fair manner that the objectionable minarets etc. would be pulled down but after obtaining instructions from the petitioner, he stated that the petitioner was not ready to modify the offending structure. He added that the decision to modify the building could be taken by "Jamaat‑e‑Ahmadia". Does it indicate that the act/offence committed by the petitioner has got the approval of "Jamaat‑e‑Ahmadia"? The act committed by the petitioner has outraged the religious feelings of the Muslims and serious law and order situation might be created if the petitioner is released on bail. Therefore, keeping in view the nature of the offence which is continuing one, the petitioner's own conduct, the peace and tranquillity of the society and the principles governing grant of R bail in a non‑bailable offence, I am not persuaded to allow bail to the petitioner. Additionally, the petitioner's personal safety cannot be ignored either. The act committed by the petitioner has received wide publicity and the atmosphere in the area is highly charged with emotions. In the case of Barkat Ali v. The State 1996 SCMR 1956 bail was refused by the Peshawar High Court to an accused in a case under section 295‑C of the P.P.C. among others, for the reason that after release on bail he might not be hurt by someone . Special leave to appeal against the said order was refused by the Hon'ble Supreme Court by holding that the reasons given by the learned Judge for rejecting the bail plea of the' petitioner did not suffer from any infirmity. I feel that the interests of justice would be adequately met if the trial Court is directed to conclude the trial within a short period.

22. For the foregoing discussion, the petition is dismissed with a direction to the trial Court to conclude the trial expeditiously preferably within a period of three months. For this purpose the Court may conduct proceedings on day‑to‑day basis.

23. Before parting with the order I may add a note of caution (in the light of the dictum of the Hon'ble Supreme Court in the case of Mahmood Ahmad and others v. The State 1995 SCMR 1242) that the observations made above are tentative in nature and primarily meant for disposal of the bail petition and will not, in any manner, bind the trial Court in coming to its own independent conclusion in the light of the material placed before it and the evidence produced by the parties during the trial.

M.B.A./A‑51/L Petition dismissed.