The top court Thursday expunged several controversial passages from its previous verdict in the Mubarak Sani bail case, accepting the federal government's plea and effecting a 'corrective' process.
The Supreme Court expunged controversial paras paragraphs after thoroughly and patiently hearing arguments from prominent religious scholars from all schools of thought.
It is pertinent to note that religious scholars did not contest the top court's decision to grant bail to Mubarak Sani but only confined their grievance to certain controversial paras included in the verdict.
These controversial paras pertained to permission granted to members of the Ahmadiyya Community or Qadyanis to preach their beliefs.
A three-judge bench headed by Chief Justice Qazi Faez Isa and comprising Justice Aminud Din Khan and Justice Naeem Akhtar Afghan heard the government's plea and explanations provided by various religious scholars.
Among the prominent religious scholars who addressed the court included Jamiat-e-Ulma-e-Islam (JUI) head Maulana Fazalur Rehman, Mufti Taqi Usmani, Allama Jawad Naqvi, Mufti Haneef Qureshi, Dr Atta Ur Rehman and others argued. Religious scholar and former chairman of the Ruet-e-Hilal Committee, Mufti Muneeb Ur Rehman, also made his representation.
During the hearing, Chief Justice Isa remarked that they were not infallible and that if they had made a mistake, it should be corrected.
Advocate Hafiz Ahsan Khokhar, counsel for Senator Professor Sajid Mir, argued that all the paragraphs of the February 6 and July 24 orders issued by the top court merit expungement. He argued that Qadianis were declared non-Muslims through the second constitutional amendment passed by the Parliament.
He further contended that later, certain amendments were introduced in the Pakistan Penal Code, including the insertion of sections 295 and 298-C, through which Qadianis were prohibited from adopting a semblance to Islamic virtues, and that this was upheld by a five-member bench of the Supreme Court in 1993.
Advocate Khokhar argued that, according to the Constitution and the law, the top court's judgment cannot grant Qadianis permission to preach their religion even covertly or in a cloaked fashion, adding that the court totally ignored these aspects in its two verdicts on the matter.
"Thus, it is important that written observations on the subject should be declared as non-existent and both orders be recalled," contended Advocate Khokhar.
He said that if this is not done, it will create permanent confusion in the future. Hence, the court should consider this submission and decide the matter accordingly under Article 187 of the Constitution.
He added that by expunging all relevant paragraphs, the top court would uphold the Constitution.
Attorney General for Pakistan (AGP) Usman Awan informed the court that the Parliament and certain religious leaders had urged the federal government to approach the top court on the matter again after the July 24 verdict.
While acknowledging that a "second review" of the original verdict was not possible, the AGP noted that the government had approached the court in accordance with the Code of Civil Procedure.
The top judge asked Mufti Usmani - who was attending the hearing via video link - to identify the "mistakes" and "objections" to the verdict.
"Our country is an Islamic state where references to the Holy Quran and the Hadith are made in judicial decisions. I am not immune to making any mistake," CJP Isa stated.
Mufti Usmani, however, requested that only two paragraphs, no. 7 and no. 42, from the July 24 revised verdict be expunged and that the part where the court accepted to omit the charges against the accused be amended.
Paragraph 42 stated: "Details of the Constitutional and legal provisions and judicial precedents have proved that after declaring both groups of Ahmadis as non-Muslims, according to the Constitution and law, they have the right to practice their religion and express and preach it, provided that they will neither use religious terms for Muslims in public nor present themselves as Muslims in public.
"However, they have the right to 'privacy of home' in their houses, places of worship, and specific private institutions within 'reasonable limits' prescribed by law."
Mufti Usmani, while explaining his stance, maintained that the term "tableegh" (to preach) was used in paragraph 42, which implied that Sani was granted "unconditional permission. "
When summoned to the rostrum, Maulana Fazlur Rehman supported Mufti Usmani's requests and called for revising the Supreme Court's entire verdict.
"If you think Mubarak Sani deserves to be bailed [per law] then it is a different matter, but all charges must be retained against his blasphemous actions," Maulana Fazl said while addressing the top judge.
He said Sani's trial should continue, as the Council of Islamic Ideology (CII) recommended.
After hearing the opinions of various religious scholars who attended the proceedings, the court announced that it would omit certain paragraphs in admission to the CII's recommendations and the scholars' opinions. It added that the expunged paragraphs "will not be cited as precedent" in any future verdict.
It further directed the trial court to review the sections imposed against Sani in the light of the law.
What was the Mubarak Sani case controversy?
The top court had overturned the conviction of sacrilege accused Sani, who sought deletion of certain charges framed against him in a case filed under the Punjab Holy Quran (Printing and Recording) (Amendment) Act.
In its judgment, the court noted that the offence that the defendant—Mubarak Sani—was accused of committing in 2019 was not criminalised until 2021. Consequently, the apex court set aside his conviction and ordered his immediate release.
After the verdict, the provincial government filed a review petition against the SC's verdict under Article 188 of the Constitution. However, on July 24, the top court declared that it did not deviate in any way from the decisions of the Federal Shariat Court (FSC) and the Supreme Court in approving bail for the accused.
The verdict favouring Sani drew outrage among religious circles, and a debate erupted in the National Assembly's Standing Committee on Law and Justice. Both the treasury and opposition benches agreed that the federal government should file a review petition in the Supreme Court.
In addition to the Punjab government's plea seeking the omission of certain portions of the court's July 24 revised verdict, the federal government filed a miscellaneous plea on August 17 following directives from Prime Minister Shehbaz Sharif.
In its petition, the Punjab government maintained that some leading clerics and members of Parliament had requested the federal government to approach the top court and highlight certain portions of the verdict which they said merited correction.
It further maintained that certain conclusions and observations made in other parts of the judgment appeared to be a mistake and were inconsistent with previous rulings of the highest court.