MUHAMMAD SHAKIR Versus State

ORDER

TARIQ SALEEM SHEIKH, J.--- Through this application the Petitioner seeks post-arrest bail in case FIR No. 997/2019 dated 24.10.2019 registered at Police Station Makhdoom Rasheed, District Multan, for an offence under section 295-B, P.P.C.

2. The prosecution case is that on 24.10.2019 at about 3/4:00 p.m. Allah Bakhsh son of Muhammad Nawaz informed the Complainant, Khizer Hayat, that the Petitioner had desecrated the Holy Quran by burying it in his house. He alleged that he also poured water over the soil and stamped it with his feet. The Complainant rushed to the police station with PWs Ghulam Shabbir, Muhammad Jaffar, Haji Muhammad Altaf, Muhammad Asif, Muhammad Nazir and Muhammad Rafique to bring the matter to their notice. In the meanwhile, a number of people gathered at the Petitioner s house and on the pointing out of Allah Bakhsh excavated copies of the Book from two of his rooms. One of them was in a bottle. The police arrived, seized those copies and registered FIR No. 997/2019, supra, against the Petitioner.

3. On 2.11.2020 when this application came up for hearing it was observed that it involved questions of public importance relating to Shariah. Therefore, office was directed to request the following scholars to assist the Court: i) Mufti Ghulam Mustafa Rizvi, Raees Dar-ul-Ifta, Jamia Anwaar-ul-Aloom, New Multan. ii) Mufti Abdul Hakeem, Mufti Dar-ul-Ifta, Jamia Khair-ul-Madaras, Chungi No.14, Multan. iii) Mufti Abdul Rehman Shaheen, Jamia Islamia Gulistan, Khanewal Road, Multan. iv) Allama Qazi Nadir Hussain Alvi, Principal, Jamia Shaheed Mazhari, Multan. v) Mufti M. Kashif Fareedi, District Khateeb Auqaf, Multan. vi) Prof. Dr. Abdul Qadoos Suhaib, Chairman, Department of Islamic Studies Bahauddin Zakriya University, Multan.

4. In addition to the foregoing, by the same order, notices were also issued to the Deputy Attorney General for Pakistan, Multan, the Additional Advocate General Punjab, Multan, and the President, High Court Bar Association, Multan.

5. On 10.11.2020 the learned counsel for the Petitioner requested that Mufti Hamid Saeed Kazmi while the Complainant desired that Mr. Arshad Saeed Kazmi (both from Madrassa Anwaar-ul-Aloom, Multan) be called. The Court acceded to their request and issued directive to the office accordingly.

6. Ch. Umar Hayat, Advocate, the learned counsel for the Petitioner, raised a preliminary objection that FIR No. 997/2019 was unauthorized. It could only be registered on a complaint made by order of or under authority from the Federal Government, or the Provincial Government or some officer empowered by them in this regard. On facts he submitted that the Petitioner was a devout Muslim and could not think of defiling the Holy Quran. He did not bury any extract of the Book in his house and the Complainant and his cohorts had manoeuvred a false case against him due to ulterior motives. He submitted that the Petitioner was behind the bars since 24.10.2019 and was not required by the police for further probe. His continuous incarceration would not serve any useful purpose. He prayed for his release on bail.

7. Mr. Adnan Latif, Deputy Prosecutor General, vehemently opposed this application. He contended that the Petitioner had not brought any material on record which might give an impression that the FIR against him was actuated with malice. He submitted that the Petitioner had willfully desecrated the Holy Quran and injured the feelings of not only the Complainant and the people in his neighborhood but the Muslims at large. He had committed a heinous offence and was not entitled to the concession of bail. He prayed for dismissal of this application.

8. Mehr Zamir Hussain Sandhal, Deputy Attorney General for Pakistan, submitted that the Petitioner s objection to the registration of FIR was misconceived. On merits he contended that there was ample incriminating evidence against the Petitioner so he had no case for bail.

9. Mr. Muhammad Ayub Buzdar, Assistant Advocate General Punjab, adopted the arguments advanced by the other two Law Officers.

10. Mr. Tahir Mehmood, Advocate, President High Court Bar Association, Multan, submitted that most Islamic scholars agreed that old copies of the Quran could be disposed of by burying them in a clean place away from a public path. The Petitioner had not incurred criminal liability even if he had buried some pages of the Book in his house. The prosecution must establish through reliable evidence that he also had mens rea. The learned counsel argued that it was a case of further inquiry within the meaning of section 497(2), Cr.P.C. which entitled the Petitioner to post-arrest bail. This Court should not withhold that concession merely because the alleged offence was heinous.

11. This Court has also benefitted from the distinguished scholars who have attended the hearing of this application. Besides making oral submissions they have tendered memoranda which are made part of the record. Relevant excerpts from these memos are reproduced hereunder:

12. Mufti Muhammad Fareedi, District Khateeb Auqaf, Multan, did not submit any note in writing. However, his stance was also that disposal of worn out pages of the Quran in the manner elucidated by other scholars is permissible under the Shariah.

13. Arguments heard. Record perused.

14. I first take up the preliminary objection raised by the learned counsel for the Petitioner. Sections 195 to 199, Cr.P.C. contain special provisions for prosecution of certain offences. Section 196, Cr.P.C. is relevant for our present purpose which is reproduced hereunder for ready reference:

196. Prosecution for offences against the State.---No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (except section 127), or punishable under section 108-A, or section 153-A, or section 294-A, or section 295-A or section 505 of the same Code, unless upon complaint made by order of, or under authority from, the Central Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments.

15. The Petitioner is accused of an offence under section 295-B, P.P.C. which falls in Chapter XV of the Code (Of offences relating to religion). Since it does not figure in section 196, Cr.P.C., the restriction mentioned therein does not apply to it. Even otherwise, section 196, Cr.P.C. does not bar registration of FIR. It only restrains the Court from taking cognizance of the offence unless there is a complaint by the Federal or the Provincial Government.

16. Registration of FIR and taking cognizance of a case are two distinct concepts in criminal law. In Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others (2006 SCMR 483), the Hon ble Supreme Court of Pakistan explained:

Needless to add that the registration of an FIR and taking of cognizance of cases were two distinct and independent concepts under the criminal law; that if the intention of the law-maker was to put any clog on the registration of an FIR then the Legislature would have said so specifically and that if the law put a condition only on the taking of cognizance then it can never be read to imply prohibition on registration of FIRs.

17. Again, in Muhammad Nazir v. Fazal Karim and others (PLD 2012 SC 892), the apex Court held:

We may observe with respect that the learned Judge-in-Chamber of the Lahore High Court, Lahore, seems to have confused the expression cognizance appearing in section 195, Cr.P.C. with the expressions cognizable and non-cognizable finding mention in sections 154 to 157, Cr.P.C. and had also failed to appreciate that taking of cognizance of an offence by a court is a thing quite distinct from investigation of a reported offence by the police or any other investigation agency. The learned Judge-in-Chamber ought to have appreciated that the provisions of section 195(1)(c), Cr.P.C. deal only with taking of cognizance of an offence by a court and the same do not place any embargo upon reporting such an alleged forgery to the police, registration of an FIR in that regard or conducting of an investigation in respect of such an allegation.

18. In Ali Gohar and others v. Pervaiz Ahmed and others (PLD 2020 SC 427) the Hon ble Supreme Court explained that taking of cognizance is not the same thing as commencement of trial. Relevant excerpt is reproduced hereunder:

Given the above discussed ordinary meaning of cognizance of the case and the judicial opinion rendered thereon, it can plainly be stated that ATC would be said to take cognizance of the case when on the receipt of the challan along with the material placed therewith by the prosecution, it takes judicial notice thereon by the conscious application of mind and takes positive steps to indicate that the trial of the case is to follow. These steps need not necessarily be recorded as judicial orders. What is essential is that the orders so passed or steps taken reflect that ATC is to proceed with the trial.

Further reference may be made to Haq Nawaz v. The State and others (2000 SCMR 785), Wazir v. The State [PLD 1962 (W.P.) Lahore 405], Alam Din v. The State (PLD 1973 Lahore 304), Muhammad Bashir alias Bakola and 8 others v. Superintendent of Police, City Division, Lahore, and 9 others (2007 PCr.LJ 864), Syed Faraz Shah v. The State (2011 MLD 535) and Muhammad Siddique and another v. Province of Punjab and others (2020 PCr.LJ 197).

19. In view of the foregoing, the Petitioner s objection has no force and is, therefore, overruled.

20. Article 18 of the Universal Declaration of Human Rights (1948) recognizes freedom of conscience and the right to profess, practice and propagate religion as a fundamental right. However, this has a corresponding duty to respect thoughts and beliefs of other people. Scriptures and holy personages have central place in a religion and sect so they must also be respected. The Quran is the heart and soul for us, the Muslims, and we demand same veneration for it from all and sundry. Almighty Allah has highlighted the gloriousness of the Book in various verses. Some of them are cited below:

Had We sent down this Quran on a mountain verily thou wouldst have seen it humble itself and cleave asunder for fear of Allah. Such are the similitudes which We propound to men, that they may reflect. (Surah Al-Hashr, Verse 21) 1 2

There is, in their stories, instruction for men endued with understanding. It is not a tale invented, but a confirmation of what went before it, a detailed exposition of all things, and a guide and a mercy to any such as believe. (Surah Yusuf, Verse 111) 1 3

(He hath made it) Straight (and Clear) in order that He may warn (the godless) of a terrible punishment from Him, and that He may give glad tidings to the believers who work righteous deeds that they shall have a goodly reward. (Surah Al-Kahf, Verse 2) 1 4

21. Section 295-B, P.P.C. seeks to preserve the sanctity of the Quran and stipulates that whoever willfully defiles, damages or desecrates its copy or an extract therefrom or uses it in a derogatory manner or for any unlawful purpose, shall be punishable with imprisonment for life. The word wilful is of fundamental importance in this section. According to the Black s Law Dictionary, a wilful act may be described as one done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. A wilful act differs essentially from a negligent act. The one is positive and the other negative. Thus, mens rea is one of the essential elements to constitute an offence under section 295-B, P.P.C.. Reference in this regard may usefully be made to Rimsha Masih v. Station House Officer, Police Station Ramna, and others (PLD 2013 Islamabad 1).

22. Considering the submissions made at the bar, in my opinion, there is a consensus among lawyers and religious scholars that subject to certain conditions Shariah recognizes burial as one of the modes to dispose of old and unusable copies of the Quran. If one goes by the contents of the FIR, in the instant case the Petitioner did not comply with those conditions. The learned Deputy Prosecutor General candidly admitted that there has never been any complaint against him that he was irreligious. Hence, the question as to whether he violated the prescribed conditions intentionally or due to ignorance must be left for the trial court. The Complainant, who was granted permission to address the Court, submitted that after burying the sacred papers the Petitioner poured water on the soil and stamped it with his feet. He contended that the said act depicted his bad intention. I am afraid, I cannot buy his argument at this stage. There can be several motives for it but the real one can be determined only after recording evidence. Criminal cases are not decided on assumptions.

23. The prosecution alleges that some pages of the Book excavated from the Petitioner s room were bottled. The Complainant contended that such a thing is done for enchantment. This was a derogatory and unlawful use of the Book within the meaning of section 295-B, P.P.C. and bail should be refused to the Petitioner on this ground alone. This Court specifically asked the Investigating Officer as to whether the Petitioner practiced sorcery or otherwise had a reputation of being a charmer, conjurer or enchanter but he replied in the negative. The Complainant also confirmed that he had no such antecedents. In the circumstances, this aspect also requires further inquiry as contemplated in section 497(2), Cr.P.C.

24. Indeed, the Petitioner is accused of a non-bailable offence but even in such a case this Court is competent to grant bail if there are sufficient grounds for further inquiry into his guilt. In Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182), the Hon ble Supreme Court of Pakistan held:

Normally, if reasonable grounds exist for believing that the accused has not committed a non-bailable offence he should not be tried at all for having committed any such offence. But if sufficient grounds for further inquiry into his guilt exist there would then be some justification for putting him on trial for the offence for which he is charged but in such an eventuality the law entitles him to bail during the pendency of the trial, subject of course, to cancellation of bail under section 497(5), Cr.P.C. on availability of the evidence or other sufficient cause.

25. Again, in Shahzaman and 2 others v. The State and another (PLD 1994 SC 65) the apex Court explained:

Section 497(2), Cr.P.C. provides that if it appears to the court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt, such accused shall be released on bail. Now what will constitute as sufficient grounds for further enquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the trial court subsequently after evaluation of evidence. Broadly speaking, the condition laid down in clause (2) of section 497, Cr.P.C. is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged.

Further reliance is placed on Khalid Saigol v. The State (PLD 1962 SC 495), Ch. Abdul Malik v. The State (PLD 1968 SC 349), Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) and Maulana Abdul Aziz v. The State (2009 SCMR 1210).

26. It is by now well settled that if an accused s case calls for further inquiry, he cannot be denied bail on the ground that the offence alleged against him is heinous. In Nasir Khan v. Waseel Gul and another (2011 SCMR 710) the Hon ble Supreme Court held:

It is true that respondent is one of the accused persons charged in a henious offence but it is equally true that mere heniousness of an offence does not disqualify an accused person from the relief of bail, if otherwise his case is found fit for grant of bail. In the instant case, bail has been granted to respondent for cogent and valid reasons which are not open to legitimate exception. In Suba Khan v. Muhammad Ajmal and 2 others (2006 SCMR 66) it was observed by this Court that "this Court in a number of cases interpreted the provisions of section 497(2), Cr.P.C. and held that main consideration for grant of bail under subsection (2) of section 497, Cr.P.C. is that if the Court on the basis of tentative assessment of evidence, forms an opinion that prima facie there were reasonable grounds to believe that accused has not committed an offence with which he was being charged, he would be allowed bail by virtue of subsection (2) of section 497, Cr.P.C. as of right."

Further reliance is placed on Husnain Mustafa v. The State and another (2019 SCMR 1914), Mumtaz Imtiaz v. The State and another (2012 YLR 1110) and Shabbiran Bibi v. The State and another (2018 PCr.LJ 788).

27. Since the UN Declaration of Human Rights of 1948, 1 5 the concept of bail has found a place in the human rights jurisprudence. 1 6 In Imtiaz Ahmed and another v. The State (PLD 1997 SC 545) the Hon ble Supreme Court held:

It is, therefore, quite clear that refusal of bail to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial. Such refusal cannot be justified on any high principles of ethics or morality. It may be stated here that both under the Anglo-Saxon concept of criminal jurisprudence as well as Islamic dispensation of criminal justice, the initial presumption of innocence of an accused charged with a criminal offence is not dislodged until he is proved guilty. Article 9 of the Constitution of Islamic Republic of Pakistan also provides that a person will not be deprived of his life and liberty except in accordance with the law. Therefore, bail cannot be refused in a case by way of punishment.

28. Again, in Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others (PLD 2020 SC 456), the apex Court held:

While dealing with the question whether or not bail is to be granted to an accused, it has to be kept in mind that the object of bail is to secure the attendance of the accused at the trial. The object is neither punitive nor preventive. Imprisonment of a person and deprivation of his liberty, cannot be described other than being a punishment, unless no less restrictive alternative is available to ensure that the accused will stand trial when called upon to do so. All civilized societies recognize the principle that punishment comes only after conviction, and the presumption of innocence subsists with the accused till he is handed down punishment after trial. It hardly needs any reiteration that the detention either pre-trial or during trial causes great hardship.

29. The Petitioner is behind the bars since 24.10.2019. His trial is not likely to be concluded in the foreseeable future. His continuous incarceration would be like punishing him before conviction.

30. For what has been stated above, this application is allowed. The Petitioner is admitted to post-arrest bail subject to his furnishing bail bond in the sum of Rs.500,000/- (Rupees five hundred thousand) with two sureties in the like amount to the satisfaction of the learned trial court.

31. Before parting with this order I may make an additional note. In 2011, while repealing the Publication of Holy Quran (Elimination of Printing and Recording Errors) Act, 1973, the Punjab Assembly enacted the Punjab Holy Quran (Printing and Recording) Act, 2011. The said Act provides for constitution of a Quran Board comprising prominent Ulema, Huffaz and Qaris of all schools of thought among the Muslims. In exercise of the powers conferred by section 11 of the Act, the Government has framed the Punjab Holy Quran (Printing and Recording) Rules, 2011. Rule 7(9) stipulates that the Quran Board shall make appropriate recommendations:

(a) For error-free printing and publication or recording of the Holy Quran and shall, subject to the directions of the Government, supervise the work of error-free printing and publication or recording of the Holy Quran;

(b) For the disposal of damaged or worn out or torn papers of the Holy Quran and other papers containing sacred printed material; and

(c) For the establishment of Quran Mahal.

It is important to note that the Rules are completely silent about the composition, functions and object of establishing the Quran Mahal.

32. As of today there is no institutionalized procedure for disposal of worn out copies of the Book which not only causes sacrilege but also leads to law and order situations. The learned Assistant Advocate General has submitted a copy of letter dated 30.1.2020 sent by the Punjab Quran Board to the Ministry of Religious Affairs and Interfaith Harmony, Government of Pakistan, but in my opinion the steps taken by the Board are inadequate and appear to be ad hoc arrangements. Accordingly, the Government of Punjab is directed as follows: i) To establish a framework for proper disposal of the holy scripts in the province in consultation with the Punjab Quran Board within six months from the date of announcement of this order; and ii) To launch public awareness campaign in print and electronic media.

33. The Chief Secretary, Punjab, shall submit compliance report to this Court through the Deputy Registrar (Judicial) of the Bench.

34. I acknowledge valuable assistance rendered by the learned counsel and the distinguished scholars.

MH/M-93/L Order accordingly.

12 The Glorious Quran (Text, Translation and Commentary by Abdullah Yusuf Ali).

13 ibid

14 ibid

15 Pakistan is a signatory of the Declaration.

16 Vaman Narain Ghiya v. State of Rajasthan (AIR 2009 SC 1362).