1994 P Cr (PLP)

Applicants Mirza Muhammad Din Naz, Chaudary Muhammad Ibrahim, Mahmood Ahmad Ashraf and Mashood Ahmad Nasir (in Criminal Bail Application No.1014 of 1993) and applicants Sheikh Abdul Qadir and Qazi Munir Ahmad (in Criminal Bail Application No.1036 of 1993), have approached this Court .for grant of pre-arrest bail in Crime No.102/93 under sections 295-A, 295-B and 298-C of P.P.C. registered at Police Station Tando Adam District Sanghar on 1-11-1993. Complainant Allama Ahmad Mian Hamadi addressed an application to S.P: Sanghar who endorsed it to the A.S.P. and S.T.B.O. Tando Adam who forwarded the same to S.H.O. Tando Adam to register the F.I.R. The facts given by the complainant are that on 2-9-1993 he received monthly magazine "Ansarullah" Volume 34, July 1993 issue, which is published at Rabwah Punjab and is edited by applicant Mirza Muhammad Din Naz. An article under the heading of "teachings of Holy Qur'an" is published at page 29 of the said magazine and similar other articles under different captions had appeared at pages 37, 40, 41, 47 and 61 and same verses of Holy Qur'an have also been published including the fascimile of Holy Qur'an on the title cover. It was also stated that by these publications, the applicants who are Editor, Publisher, Printers, etc., have injured the religious feelings of the complainant and other Muslims and have tried to deceive the Muslims by posing to preach the religion of Islam. The applicants/accused illegally claimed to be Muslims and used the verses of Holy Qur'an for their illegal purpose. After the F.I.R. was lodged, efforts were taken to arrest the applicants who approached this Court for pre -arrest bail. In Criminal Bail Application No.1014 of 1993 interim pre-arrest bail was granted to applicants on 11-11-1993 and in Criminal Bail Application No.1036 of 1993 interim pre-arrest bail was granted to the applicants on 15-11-1993 with notice to A.-G. Sindh. I have heard the learned counsel appearing for the parties and perused the contents of the F.I.R. as well as the articles published in monthly "Ansarullah" for the month of July, 1993. It has been contended by applicants' learned Advocate that the publication of various articles in the above-referred monthly journal, edited by Mirza Muhammad Din Naz, does not in any manner attract the provisions of sections 295-A, 295-B and 298-C of P.P.C. as none of the articles amount to a deliberate and malicious act intended to outrage religious feelings of any class by insulting its religion or religious beliefs, defiling of the copy of the Holy Qur'an or utterances of words with deliberate intent to wound religious feelings of any class. It is next contended that the monthly journal "Ansarullah" is published under a valid declaration given by the Government and the publication is regularly scrutinized by the Government and no objection is ever taken to these and such other publications. It has also been argued that all applicants are residents of Rabwah, District Jhang, Punjab and the purpose of filing F.I.R. at Tando Adam is to drag applicants to a far-off place so as to humiliate and disgrace them when the complainant knew that the publications which are objected, never attracted the provisions of penal code under which the F.I.R. was lodged. The learned Advocate has also shown malice against the police who have been following applicants to effect their arrest. The learned counsel has placed on record copies of orders in Criminal Bail Applications Nos.576 of 1992, 402 of 1992, 409 of 1992, 1644 of 1986, 776 of 1992 and 762 of 1992 and in all these applications pre-arrest bail was granted by this Court in respect of accused who were charged for similar offences. Mr. Zaheer Qureshi Advocate appearing for the State and Mr. Hashmat Ali Habib Advocate appearing for the complainant have opposed the confirmation of bail. It is contended by them that the publication of various articles amount to defiling the verses of Holy Qur'an and the contents of the F.I.R. which are based on the above publication, attract the provisions of sections 295-A, 295-B and 298-C of P.P.C., of which, offence under section 295-B is punishable to imprisonment for life and because the offence alleged is covered by the prohibitory clause of section 497 of Cr.P.C., the applicants are not entitled to pre-arrest bail. The learned counsel appearing for the State has referred to the case reported in 1993 S C M R 1718 and has argued that because Qadianis or Ahmadis or Lahoris are declared non-Muslims, they could not publish the verses of Holy Qur'an and because the publications are made by non-Muslims the same clearly amount to a deliberate and malicious act intended to outrage religious feelings of Muslims, defiling of the Holy Qur'an and uttering words with deliberate intent to wound religious feelings. The learned counsel have referred to various portions of the judgment of the Honourable Supreme Court and the main thrust of their arguments was that because the applicants are non-Muslims they could not publish such articles as they were under the Constitution, restrained from directly or indirectly posing as Muslims or claiming legal rights of Muslims. The learned counsel have even objected to the very word "Ansarullah" which means the "Helper of God" and applicants who are admittedly non-Muslims cannot claim themselves as the helpers of God. The last contention raised by the learned counsel is that the applicants have not shown mala fides against police nor their apprehended arrest and in the circumstances, application for pre-arrest bail before the High Court directly without approaching the Sessions Court would not be maintainable. In the case of Mujibur Rehman and 3 others v. Federal Government of Pakistan and another P L D 1985 FSC 8 the following questions came under considerations:-- (1) Does Islam entitle or allow anon-Muslim to declare the unity of Allah? (2) Does Islam entitle and allow a non-Muslim to acknowledge the Holy Prophet (p.b.u.h.) as truthful in his claim? (3) Does Islam entitle non-Muslim to acknowledge the Qur'an as furnishing a good Nizam-e-Hayat i.e., way of life and to treat it as worthy of obedience? (4) Is this permissible or not for a non-Muslim to act upon the Injunctions of the Holy Qur'an if he so likes? (5) If the answer be in the negative where is the Injunction in the Our'an and the Sunnah in support of the negation? (6) What course of action does the Qur'an propose or provide for a person who is not considered Muslim nor has any right to be so considered by believers, in the truthfulness of Qur'an in the Prophet hood of Muhammad Rasoolullah (p.b.u.h.) and the oneness of Allah." These points were dealt with by the Federal Shariat Court at page 93 as under:-- The first four questions posed by Mr. Mujibur Rehman have to be answered in the affirmative. There is no bar--Constitutional, legal or Sharii against the right of a non-Muslim to declare the unity of Allah, to acknowledge the Holy Prophet (p.b.u.h.) as truthful in his claim, to acknowledge the Qur'an as furnishing a good way of life and to act upon its Injunctions. The 5th question does not arise in view of the affirmative answer of the 4th question. A clear answer to the 6th question is that such a non-Muslim is to be dealt with like other minorities, subject to the conditions imposed by the Qur'an and the Sunnah which shall be considered at the appropriate place. I am, therefore, of the clear view that publication of articles in monthly "Ansarullah" of July, 1993 does not attract the provisions of sections A 295-A, 295-B and 298-C of P.P.C., but in any case it would be a matter requiring further enquiry at the trial. In taking this view I am benefited by the orders passed on various similar bail applications by the learned Judges of this Court who were pleased to grant pre-arrest bail to accused in said cases. Copies of such orders have been placed on record by applicants learned counsel. In the circumstances interim pre-arrest bail granted to the applicants is hereby confirmed. The applicants shall appear before the Investigating Officer and the Court as and when required. Any observations in this order shall not influence the learned trial Court while deciding the case. N.H.Q./M-1904/K Bail granted.