Physical attributes resembling mosques constructed on places of worship of the Ahmadiyya Community that are older than the blasphemy law cannot be forcibly altered or otherwise prosecuted under that law nor can they be treated as a continuing offence.
This was determined in a verdict issued by a single-member Lahore High Court (LHC) bench on Thursday. The verdict was issued by the court as it heard a petition moved by the caretakers of a century-old Ahmadi place of worship in Wazirabad seeking pre-arrest bail. The petitioners sought bail after being booked by the Wazirabad City police in November 2022 on the complaint of citizen Irfan Ilyas.
According to the verdict, an FIR was filed under the blasphemy law, with sections 298-B and 298-C applied over a place of worship built by the Ahmadiyya community in Moti Bazar, Wazirabad, with a minaret. Since the minaret is considered to be an architectural feature and religious symbol important to Islam, it was contended in the FIR that the builders of the property had violated the relevant sections of the blasphemy law and had insulted the "religious feelings of the Muslim population of the locality and a perpetual source of pain and anguish for them".
The petitioners contended that the structure had been constructed in 1922 when such a construction was not considered a crime. They added that such constructions on places of worship for the Ahmadiyya community were not declared a crime until 1984.
Moreover, they argued that even if the minarets constitute a crime, they are only caretakers of the building and thus cannot be prosecuted for its construction.
During hearings, the counsel for the defendants -- who had lodged the FIR -- and the Deputy Prosecutor General (representing the state) argued that even though the building was constructed in 1922, the petitioners failed to change its outlook and pull down the minarets after the law was introduced in 1984, "it constitutes a continuing offence and the petitioners, as current custodians, can be prosecuted.
The court noted conflicting examples of past cases where similar charges were brought. Since both decisions were given by a judicial bench of similar strength, the matter would normally have to be referred to a larger bench.
However, the judge noted that this case differed in how the building in question had been constructed over a hundred years ago, "when the petitioners were not even born."
The court subsequently approved the application for pre-arrest bail of the petitioners.
Minarets and Islam
In the verdict, the court pondered whether minarets were a clear Islamic or Muslim symbol.
Noting that the essence of the complaint against the petitioners was the construction of an Islamic-style minaret on their worship place, it said that "the minaret is a religious symbol for Muslims, but it is also an architectural feature."
"The earliest mosques lacked minarets. At the time of the Holy Prophet Muhammad (PBUH), the call to prayer (Azan) was made from the highest roof near the mosque," it said, adding that varying theories exist about the origin of minarets.
"Some scholars think that early Muslims adopted Greek watch towers to call people to prayer, which Muslims used for their own purposes before deciding to create their own architectural structure," it said.
"Others believe that the Ziggurat Towers of the Babylonian empire inspired the minaret."
On constructing minarets on places of worship for Ahmadis, the court believed that "the law does not mandate that the structures built before the promulgation of Ordinance XX of 1984, by which these provisions were introduced, should be razed or altered."
It continued that the petitioners are just the caretakers. "I wonder if they can be punished for an architecture crafted a hundred years ago," it said.
On the issue of the matter being a "continuing offence", the court offered long deliberation on the subject before concluding that the doctrine was not applicable.
"I cannot understand how the doctrine of continuing offence is attracted to the facts and circumstances of the instant case," it said, adding that the burden is on the prosecution to prove the alleged violators intended to cause harm or had knowledge of wrongdoing (mens rea) to culminate in actus reus (criminal act).
"Where an actus reus may be brought about by a continuing action, it is sufficient that the accused had mens rea during its continuance, albeit he did not have mens rea at its inception," the verdict read, adding, when the building was constructed, its design did not violate any law.
"They have not committed any continuing act to bring about actus reus now," it added.
The court questioned the inclusion of the blasphemy charges, noting that the community did not attempt to call their worship place a mosque or have otherwise done anything that may hurt the feelings of Muslims.
The court also asked why the complainant in the case remained silent about the matter for 38 years before approaching the authorities.
The Ahmadiyya Community in Pakistan has hailed the verdict.
"The Lahore High Court, Lahore, in an order issued today, August 31, 2023, has barred the authorities from changing the structures of the Ahmadiyya places of worship," read a statement issued by a spokesperson of the Ahmadiyya community.
The official added that in its verdict, the Lahore High Court has laid down in Paragraph 16 of the Judgement that Section 298-B and 298-C of the PPC do not mandate the structures of the Ahmadiyya places of worship built before the Ordinance XX of 1984 to be razed or altered.
The official continued that an active hate campaign is underway against the Ahmadiyya Community, resulting in the desecration of dozens of Ahmadiyya places of worship in the last three to four years.
"In this year alone, 22 Ahmadiyya places have been desecrated," the spokesperson said.
In light of Thursday's verdict, the official said that the community expects the police to perform their duty and protect the Ahmadiyya places of worship.
"A duty which not only they have been found negligent of but also has to partake in the ongoing desecrations."