Courts Must Exercise Extreme Caution When Dealing With Matters Of Faith: SC

In judgement on a blasphemy case, Chief Justice Qazi Faez Isa holds that freedom of faith is among the fundamental tenets of Islam but Quranic mandate gets forsaken when tempers flare

Courts Must Exercise Extreme Caution When Dealing With Matters Of Faith: SC

Chief Justice of Pakistan Qazi Faez Isa has observed that Prophet Muhammad (PBUH) was told by the Almighty Creator that he is required to convey only the Message and that he should not compel people to believe in Him.

Chief Justice Isa cited Surah Ar-Ra'd (Chapter 13, verse 40) and Surah Yunus (Chapter 10, verse 99) of the Holy Quran to substantiate his observation.

He further observed that freedom of faith is one of the fundamental tenets of Islam. "But sadly, in matters of religion, tempers flare up, and the Quranic mandate is forsaken," Chief Justice Isa said.

He made these observations in a five-page judgment while deciding a case on deleting charges against a man accused of blasphemy. The charges deleted included section 7, read with section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011, Sections 298-C and 295-B of the Pakistan Penal Code (PPC).

An FIR was lodged against the petitioner, Mubarik Ahmed Sani, accusing him of distributing/disseminating a proscribed book – Tafseer-e-Sagheer. 

The court was informed that distributing/disseminating proscribed books was declared an offence under the Punjab Holy Quran (Printing and Recording) (Amendment) Act in 2021. However, the FIR alleged that the petitioner had committed the act in 2019, two years before the act was declared as an offence. 

The court's order noted that the original law had been examined and the changes made to it. It determined that the arguments of the petitioner's counsel that the offence was incorporated into law in 2021 were correct.

Subsequently, Chief Justice Isa observed in the judgment that the courts must exercise extreme caution when dealing with matters of faith. "Religious compulsion also violates the Divine scheme of accountability in the Hereafter." 

While citing verses from Surah An-Nahl and Surah Yunus, the judgement observed that the Holy Quran requires that all matters of significance should be pondered over and reflected upon. 

"All those concerned with this case should have done so. Instead, they were eager to demonstrate that the Holy Quran was desecrated and that God's Last Messenger (peace and blessings of Almighty Allah be upon him) was denigrated."

It added that the translation of Verse 9 of Surah al-Hijr reads, "We have, without doubt, sent down the Message; and we will assuredly guard it."

The top court held that the principle of there being no compulsion in religion mentioned in the Holy Quran is enshrined in the Constitution as a fundamental right that cannot be derogated from, circumvented or diluted.

"If only the functionaries of the state had heeded the Holy Quran, considered the Constitution and examined the law, then the FIR would not have been registered in respect of the above mentioned offences." 

The top court directed to delete section 7, read with section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011 and Sections 298-C and 295-B of the PPC from the list of charges framed against Mubarik Ahmed Sani.

"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."

According to the order, the counsel representing the complainant read out the FIR. "But nothing is stated therein to constitute offences under sections 298-C and 295-B of the PPC. The challan is also silent in this regard." 

The court held that the charges were framed on June 24, 2023, by the Additional Sessions Judge, Lalian, to the extent of charging the petitioner for the offences under sections 298-C and 295-B of the PPC "did not accord with the provisions of Chapter XIX of the Code of Criminal Procedure, 1898 ('the Code'), which pertain to charge".

The top court further said that this case is not one wherein the charges could be altered or where the petitioner could be convicted on lesser offences than those listed 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 top court held.

In a separate petition, Sani requested the court grant him bail. Ruling on that petition, the top court held that since the petitioner has already served the maximum prescribed imprisonment for the offence, six months, keeping him incarcerated for any further period would violate many of his fundamental rights. 

"Article 9 of the Constitution stipulates that a person shall not be deprived of his liberty save in accordance with law; the law no longer permits his detention. And, Article 10-A 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 were found guilty."

The top court regretfully noted that when dealing with cases about 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 about personal property.

The top court granted bail to the petitioner upon providing a personal bond in the sum of Rs5,000.

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain