Pakistan court decision about demolishing Ahmadi Muslim Mosques Minaratescourt-decision-minarates-demolition-is-against-ppc
Form No.HCJD/C-121 ORDER SHEET LAHORE HIGH COURT, LAHO JUDICIAL DEPARTMENT
S.No. of Order/ Proceeding
Crl. Misc. No.5151/B/2023
Imran Hameed etc. Vs
Date of order/ proceeding
The State etc.
Order with the signature of the Judge and that of parties or counsel where necessary________
10.04.2023 Sh. Usman Karim-ud-Din, Advocate, with the Petitioners.
Mr Muhammad Mustafa Chaudhry, Deputy Prosecutor General, with Usman/ASI.’
Ch. Waris Ali Saroya, Advocate, for the Complainant.
Tariq Saleem Sheikh, J. – On 11.11.2022, Irfan Ilyas (the “Complainant”) filed a written complaint with the SHO, Police Station City Wazirabad, stating that the Qadianis had built a worship place near Hakim Bakers in Moti Bazar consisting of a room with a minaret, which is an architectural feature and a religious symbol important to Islam. According to him, it was an insult to the religious feelings of the Muslim population of the locality and a perpetual source of pain and anguish for them. Since the Petitioners were managing the affairs of that worship place, they were liable under the law. Based on this complaint, the SHO registered FIR No.699/2022 dated 11.11.2022 against the Petitioners for offences under sections 298-B and 298-C of the Pakistan Penal Code, 1908 (PPC). The Petitioners have applied for pre-arrest bail in that case by this application under section 498 Cr.P.C.
2. The learned counsel for the Petitioners contends that the
contents of FIR No.699/2022 supra do not constitute any offence under the Pakistan Penal Code, 1860, including sections 298-B and 298-C. He further submits that the worship site (known as Bait-ul-Zikar) was constructed in 1922, while sections 298-B and 298-C were inserted in the Penal Code through Ordinance XX of 1984. The Petitioners are just the members of the Management Committee of p Bait-ul-Zikar. Even if constructing a mosque-like structure is illegal,
they cannot be peosecuted on the facts of the instant case, Sections 295-B and 295-C do not apply retroactively.
3. The learned Deputy Prosecutor General and the omplainant’s counsel have vehemently opposed this application. They contend that it is illegal for Qadianis to build their place of worship in the traditional Muslim mosque style. Even though Bait-ul-Zikar was established in 1922, the Petitioners were obligated to change its outlook and pull down the minaret, which is identified with a Muslim mosque, following the promulgation of Ordinance XX of
1984. Since this has not been done, it constitutes a continuing offence and the Petitioners, as the current custodians, can be prosecuted.
4. In rebuttal, the Petitioners’ counsel submits that there is
no allegation in the FIR that the Petitioners have ever posed themselves as Muslims or called the disputed place of worship a Masjid (mosque). The words “Bait-ul-Zikar” have been clearly written in Urdu at its main entrance, so no Muslim mistakenly takes it
as a mosque.
5. I have heard the learned counsel and gone through the
record. In Zaheeruddin and others v. The State and others (1993 SCMR 1718), the Supreme Court of Pakistan held that sections 298-B and 298-C PPC, which were enacted by Ordinance XX of 1984, are intra vires the Constitution of 1973 and do not offend Article 20 thereof. In this case, the primary question that requires consideration is whether the contents of the FIR and the evidence gathered during the investigation attract sections 298-B and 298-C PPC.
6 The Complainant has lodged FIR No.699/2022 under
sections 298-B and 298-C PPC. Section 298-B forbids the members of the Qadiani Group or the Lahori Group (who call themselves Ahmadis) from using epithets, descriptions and titles designated for certain holy personages. It also prohibits them from referring to, naming or calling their place of worship as Masjid, or by oral or written words or by visible representation referring to the call to prayers as “Azan” or reciting it like Muslims. Section 298-C criminalizes public propagation of the Qadiani/Ahmadi religion by
any member of that community posing himself as Muslim or referring to his faith as Islam, thereby outraging the religious sensitivities of Muslims.
7- There are two reported cases which considered the
application of sections 298-B and 298-C PPC where Qadianis were arrested for designing their worship place resembling a mosque. The decisions, however, are inconsistent. In Muhammad Aslant v. The State (1998 PCr.LJ 522), the accused, who were Qadianis, were booked under sections 298-B & 295-C PPC for inscribing Kalima Tayyaba and Quranic Verses on the walls of their prayer place. It was argued that the mosque-like design of the Qadianis’ place of worship tends to deceive the general body of the Muslims. This Court held: “This statement, however, seems to have little substance, the reason being that Qadianis seldom conceal the identity of their worship place, and it is publicly known to all those around that a particular place is the centre of worship of the Qadianis and not that of the Muslims, called a mosque in its familiar term. No question of the Muslims falling prey to any confusion about the identity of such a building arises.” As a result, the Court admitted the accused to post-arrest bail. In Ata Ullah v. The State (PLD 2000 Lahore 364), the accused, a Qadiani, had constructed a worship place with minarets, arches (Mehrab) and a crest, similar to what the Muslims have for their mosques but had inscribed the words “Baitul Ahmedia” at its main gate. Police searched the building, recovered several books of the Qadiani religion and the Holy Quran, and booked them under sections 298-B and 298-C PPC. The Court held that by erecting minarets, arches, and a crest, the accused made visible representation to the public that the building in question was a Muslim mosque, which is culpable under section 298-B(l)(d) PPC. Writing “Baitul Ahmadia” atop the entrance would not absolve him of the charge. The Court observed that the said writing does not completely exclude the possibility of deception of Muslims because illiterate people cannot read those words, while others may not either notice them or understand their significance. Regarding section 298-C PPC, the Court stated that it was also attracted prima facie because the accused had harmed the sensibilities of Muslims by erecting a structure that
looked like a typical Muslim mosque. The Court declined the accused’s application for post-arrest bail.
It is settled law that when there are conflicting views of two Benches of equal strength, the matter should be referred to a larger Bench. I would have followed that path in the normal course, but this case has a distinguishing feature. Admittedly, Bait-ul-Zikar, the subject of FIR No.699/2022, was constructed in 1922, when the Petitioners were not even bom. The prosecution invokes the doctrine of continuing offence to hold them liable.
9. Black’s Law Dictionary, Fifth Edition (Special Deluxe)
“Continuing” means enduring, not terminated by a single act or fact; subsisting for a definite period or intended to cover or apply to successive similar obligations or occurrences. “Continuing offence” means the type of crime which is committed over a span of time. As to the period of the statute of limitation in a continuing offence, the last act of the offence controls for the commencement of the period. A “continuing offence” may consist of separate acts or a course of conduct but which arises from that singleness of thought, purpose or action which may be deemed a single impulse. A “continuous crime” consists of a continuous series of acts which endures after the period of consummation, such as, the offence of carrying concealed weapons. In the case of “instantaneous crimes”, the statute of limitation begins to run with the consummation. In contrast, in the case of continuous crimes, it only begins with the cessation of the criminal conduct or act.”1 2 2
10. A research article defines “continuous crime” as that
specific form of legal unity of offence in which a crime is committed through multiple actions or inactions at different times based on a unique criminal intent and against a unique passive subject. Thus, to qualify as a continuous offence, a penal act must meet the following conditions: “the presence of a unit of a passive subject, the unit of an active subject, the performance of multiple actions or inactions that represent the contents of the same crime, at different periods of time and, last but not least, the condition that these actions or inactions be
performed with a unique criminal intent … The continuous form of > legal unity of offence necessitates thoroughly examining each element of its content as a whole (as a unique crime) and of every deed that
enters into its composition (as the plurality of acts)”3 The scholar
further states that the causal relationship must be proven or follow
from the very materiality of the deed, depending on the classification o e crime into one of the categories: material and formal crimes; or crimes of danger and violence.
11. Let’s examine some judicial decisions to see how the courts have dealt with the concept of a continuing offence. In Bglkrishna__Savalrain Pujari and others v. Dnyaneshwar Maharajsansthan and others (AIR 1959 SC 798), the Supreme Court of India observed that a continuing offence is an act which creates a continuing source of injury and holds the perpetrator liable for the continuation of that injury. If a wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the offending act continues. If the wrongful act is of such a kind that the injury caused by it continues, then the said act constitutes a continuing wrong. As a result, the distinction between the two wrongs depends upon the effect of the injury. In State of Bihar v. Deokaran Nenshi [(1972) 2 SCC 890 : AIR 1973 SC 908], the Supreme Court held that a continuing offence is distinguishable from the one committed once and for all because it is susceptible to continuance. It results from a failure to obey or comply with a rule or its requirement. It entails a punishment, the liability for which continues until the rule is obeyed or complied with. The offence is committed each time such disobedience or non-compliance happens. The element of continuity is lacking in an offence that occurs when an act or omission is committed once and tor all. In Bhagirath Kanoria and others v. State of M.P. (AIR 1984 SC 1688), the Supreme Court stated that a continuing offence does not have a fixed connotation and added that the question of whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and, most importantly, the purpose which is intended to be achieved by designating the specific act as an offence. In Udai Shankar Aw as tin v. State ofU.P. [2013 (2) SCC 435], the Supreme Court observed that
the term “continuing offence” is not defined in the Indian Code of Criminal Procedure because it cannot be given a fixed meaning. The Court held that for a continuing offence to take place, the ingredients of the crime must persist even after the period of consummation. In Trilok Chand v. C.N, Srivastava and others (AIR 1961 All. 88), the High Court stated that “continuing offence” continues from moment to moment without interruption or break. The phrase “continuing offence” should be understood in the same way as “continuing breach of contract” and “continuing the wrong independent of contract” in section 23 of the Limitation Act, 1908.