MIAN NAZIR AKHTAR, J.- The petitioners seek bail in a case registered against them vide FIR No. 160 dated 21.11.1993 for an offence u/s 295-C of the PPC, at Police Station Piplan, District Mianwali. Riaz Ahmad, petitioner No. 1 is father of Basharat Ahmad, petitioner No. 2 and uncle of Qumar Ahmad and Mushtaq Ahmad petitioners Nos. 3 & 4.
2. The case was registered against the petitioners on a written application dated 17.11.1993 submitted by Muhammad Abdullah son of Muhammad Muzaffar to the S.H.O, of Police Station, Piplan in respect of an occurrence whish had taken place on 11.11.1993. The contents of the FIR are reproduced below:- {{ Urdu Text miss }}
2. The petitioners filed an application for grant of bail in the Court of the learned Session's Judge, Mianwail who dismissed the same vide the order dated 3.1.1994. A relevant part of the order is reproduced below:- "Whatever is stated above, prima facie amounts to defiling the sacred and exalted name of Holy Prophet Hazrat Muhammad (Peace be upon him) because in this manner his position is lowered to that of Mirza Ghulam Ahmad. Hence there are reasonable grounds for believing that the petitioners have committed an offence under section 395-C of the P.P.C., which falls within the prohibitory clause of Section 497 Cr.P.C.
3. The petitioners' learned counsel contends as under:-
(i) There is serious background of enmity against each petitioner. On 9.12.1991, Muzaffar, father of the complainant, moved an application before the District Magistrate for removal of Riaz Ahmed, petitioner No. 1, from the office of Lambardar as he belonged to Quadiani Sect and was not liked by the majority of residents of the area. His application was accepted vide order dated 6.6.1993.
Petitioner No. 1 went in appeal before the Commissioner, Sargodha Division who allowed it vide order dated 31.7.1993. Muzaffar, father of the complainant, went in revision before the Board of Revenue to assail the appellate order passed by the Commissioner, Sargodha Division which is still pending.
(ii) One Ghulam Qadir resident of Chak No. 15 made a report before the police on 4.6.1993 against Nazir Ahmad and Abdullah complainant and a few others for commission of the offence of trespass, criminal intimidation and mischief. After proper investigation, the police found the case to be false and recommended its cancellation. Thereafter, he filed a private complaint in the Court of Ilaqa Magistrate on 16.8.1993 Qamar and Mushtaq, petitioners Nos. 3 and 4 appeared as prosecution witnesses in the private complaint referred to above. After perusing the preliminary evidence, the Court summoned Abdullah etc. Vide order dated 31.10.1993 (Annexure-C/4).
(iii) The case against the petitioners is cooked up and an outcome of the above-referred enmity.
Moreover, the report was lodged with the delay of six days which makes the prosecution story doubtful.
(iv) The petitioners being 'Ahmadis' follow the teachings of Mirza Ghulam Ahmad, founder of Ahmadia community who never proclaimed to be equal to the Holy Prophet Hazrat Mohammad ( ).
In fact, none can make such a claim. Mirza Sahib had declared that he was subservient to the Holy Prophet Hazrat Muhammad ( ). Moreover, Mirza Sahib never directly compared himself with Rasool-c-Pak ( ). The writings of Mirza Sahib reflect profound reverence and love for the Holy Prophet Hazrat Muhammad ( ). In this connection, the following references may be seen:- #tbs Pag #the Sr. No._____ Name of Books
1. r I
2. io_iv. Ji3. r.r
4. t?Ch 5. In
6. r*i
7. ('61
8. v. i* i,i jp {{ Urdu text Table }}
(v) The petitioner's faith is that Mirza Ghulam Ahmad was merely "Mehdi Maood" or "Masih Maood" and nothing else.
(vi) The Full Bench has left the question as to whether the language used by the accused is derogatory to the Holy Prophet Hazrat Muhammad ( ) and constitutes an offence under section 295 of the P.P.C, to be decided by the trial Court. Hence this Court should not examine this question.
(vii) At any rate, the petitioners' faith has necessarily to be seen while determining the question as to whether, prima facie, they have committed the offence alleged against them. The petitioner's learned counsel particularly relied on para-5 of the judgment in the case of Nasir Ahmed V The State (1993 SCMR 153) which is reproduced below:- "After hearing the learned counsel for the parties at some length, we find that serious question which requires examination is whether "defiling" takes place ex facie by the written or spoken words or the act of the person accused of the offences or that this is to be seen keeping in view the totality of the milieu, including necessarily the faith, the intention, the object and the background of the person using them. We have got the impression prima facie that ex-facie, use of these expressions does not create in a Muslim, or for that matter anyone else, any of the feelings of hurt, offence or provocation etc. Etc. Nor is it derogatory to the Holy Prophet Muhammad (peace be upon him) or the Muslims. It is only when the person reading or hearing them goes deep into the background of the person using them and brings his own special Knowledge of the faith, beliefs and latent intentions of such an accused that the alleged results are likely to follow.
4. On the other had, Mr. Nazir Ahmad Ghazi, learned Assistant Advocate-General submits as under:-
(i) The police investigation shows that the occurrence had actually taken place.
(ii) Admittedly, there is civil litigation between Muzaffar, father of the complainant, and Riaz Ahmed, petitioner No. 1. However, despite the said litigation, Muzaffar or his son Abdullah never came forward with such allegations earlier. Moreover, if he wanted to involve him in a false case, he could have involved him under any other provision of the Penal Code and would not have gone to the extent of falsely bringing in the sacred name of the Holy Prophet Hazrat Muhammad ( ) who is dearest to his heart and soul, like any other Muslim.
(iii) Even if some hostility exists between the complainant and the accused party, there is no enmity or hostility between the accused persons and the three eye-witnesses who are independent and fully supported the complainant's version during the course of investigation.
(iv) The delay in reporting the matter, in the circumstances of the present case, docs not adversely affect the prosecution case. Had the complainant been a liar he would have conveniently stated that the occurrence had taken place on 17th of November, 1993 when the report was actually lodged. The police is competent to conduct investigation even before formal registration of the FIR.
The case docs not involve any recovery or circumstantial evidence. Hence, the delay docs not affect the veracity of the prosecution case. The case entirely depends upon the oral evidence furnished by the complainant and the three eye-witnesses. If the witnesses are believed then it is not possible to say that the occurrence had not taken place. Even in ordinary criminal cases, delay per se, is not sufficient to throw out the prosecution case, if reliable evidence regarding commission of the offence is available. Reliance is placed on the following judgments:-
(i) Taj Muhammad alias Tajoo Vs. The Slate (1991 P.Cr.L.J. 2167)
(ii) Ch. Muhammad Vs. S.H A. Rahim Yar and 2 others (1977 P.Cr.LJ. 2)
(iii) Harsan Vs. The State (P.L.J. 1989 Cr.C. Kar. 283)
(iv) Gul Nawaz Lone and another Vs. S.H.O. (PLD 1990 Lah. 428)
(v) Ghulam Siddique Vs. SHO Sadder Dera Ghazi Khan & 8 others (P.L.J. 1979 Crl. Cases 32)
(vi) Muhammad Hassan Vs. SSR, Faisalabad & 7 others (1992 P.Cr.LJ. 2307)
(vii) Alam Sherand 5 others Vs. The State (1975 P.Cr.LJ. 1188).
(v) The petitioners' learned counsel has contended that nobody can claim equality with or , superiority over the Holy. Prophet Hazrat Muhammad and that the petitioners being followers of Mirza Ghulam Ahmad can never think of uttering the words attributed to them in the FIR. However, the words used by the petitioners are not merely their own words but are the part of the teachings of Mirza Ghulam Ahmad, In this connection, Para 82 of the judgment in the case of Zabir-ud-Din Vs. The State (1993 SCMR 1718) may be seen. The language used by the accused is almost the same which has been used by Mirza Ghulam Ahmad in his book "Barahin-e-Ahmadia" Vol. V Chapter-II (Nushratul Haq) page 56 and "Haqat-ul-Wahi" page 67. The words uttered by the accused arc in accord with their faith.
(vi) Prima facie, the language used by the accused constitutes an offence under section 295-C of the P.P.C which falls within the prohibitory clause of Section 497 of the Cr.P.C. The petitioners have lowered the position of the Holy Prophet to that of Mirza Ghulam Ahmad who is not a Muslim within the meaning of Article 260(3) (a) of the Constitution of Pakistan. Moreover, Mirza Ghulam Ahmad was planted to serve the interests of British imperialism and any one who treats him as equal to Hazrat Mohammad dishonours the Holy Prophet.
(vii) The question whether the petitioners have committed the offence shall be finally decided by the trial Court but at bail stage a tentative appraisal of the material can be made and a prima facie view formed regarding commission of the offence.
6. There is considerable force in the argument of the learned Assistant Advocate-General that the delay in reporting the matter to the police, in the circumstances of the present case, is not sufficient to doubt the prosecution case. The case docs not involve any circumstantial evidence or recovery and depends upon ocular testimony furnished by the complainant and the three eye- witnesses. In ordinary criminal cases promptness of F.I.R is insisted upon to avoid deliberations before reporting the matter to the police and to enable the Investigating Agency to secure circumstantial evidence in order to ascertain the correctness or otherwise of the complainant's version. Moreover, there was nothing to stop the complainant from alleging that the occurrence had taken place on 17.11.1993 (when the written complaint was submitted before the S.H.O). As regards investigation conducted before formal registration of the FIR, suffice it to say that while dealing with this aspect of the matter the Full Bench of this Court vide its order dated 25.4.94 had held, "receipt and recording of FIR is not a condition-precedent to setting in motion of criminal investigation and that illegality committed in this respect docs not, per se, vitiate the arrest or the trial". Hence at this stage, I am not inclined to doubt the veracity of the complainant due to the delay in reporting the matter to the police.
7. The facts narrated by the petitioners' learned counsel do establish background of hostility between the petitioners and the complainant as well as his father, Muzaffar. In the facts and circumstances of a particular case, it may be possible to hold, even at bail stage that probably an accused person has been roped in due to past enmity or hostility with the complainant party.
However, in the present case I am not persuaded to hold so far the following reasons:
(a) The hostility between Muzaffar father of the complainant dates back to 9.12.1991 when he had moved an application before the District Magistrate for removal of Riaz Ahmed, petitioner No. 1 from the office of Lambardar. Since then he or for that matter his son did not attempt to involve him in any criminal case, either to create a ground for his removal or otherwise to wreak vangeance upon him.
(b) Despite civil and criminal litigation, no untoward incident had taken place between the parties from December, 1991 till before the present occurrence which had taken place on 11.11.1993.
(c) The case is supported by three other witnesses namely Nazir Ahmed son of Babu Khan, Muhammad Qamar son of Muhammad Hassan and Qadir Ahmed son of Nazir Ahmad, who do not seem to have any motive to falsely depose against the accused-petitioners.
(d) The Investigating Officer has come to the conclusion that the occurrence narrated in the FIR had taken place.
8. Therefore, I am not inclined to agree with the petitioners' learned counsel that the case is entirely cooked up due to past hostility of the complainant party against the petitioners. Any how, the above view is purely tentative and it would be open to the trial Court to decide the matter finally in the light of the evidence adduced by the parties. The petitioner's learned counsel did not argue whether the language said to have been used by the petitioners was, in any manner derogatory to Hazrat Mohammad ) and whether it amounted to defiling his exalted and sacred name. He namely urged that the prosecution case was false and a product of past enmity. More-over, his attempt was that at bail stage this Court should not go into this question and leave it to be decided by the trial Court, more-so when in the present case the Full Bench of this Court had also preferred the same course vide its order dated 25.4.1994.
9. It is settled law that for purposes of disposal of a bail petition, tentative assessment of the material on the record has to be made. In this connection I may refer to the judgment of the Hon'ble Supreme Court in the case of Khalid Javed Gitan v. The State (PLD 1978 SC 256).
10. According to the allegations made in the FIR, the petitioners had stated that Mirza Ghulam Ahmed was a true prophet, not in any manner lesser in dignity than Hazrat Muhammad While comparing him with the Holy Prophet (Hazrat Muhammad they stated that number of miracles of Hazrat Muhammad was three thousand but that of Mirza Ghulam Ahmad was three lacs.
12. It is not unlikely that a Quadiani would utter, the above refcered words because the same are also found in the writings of Mirza Ghulam Ahmad. The number of three thousand miracles of the Holy Prophet Hazrat Mohammad is mentioned in Mirza Ghulam Ahmad's Book Tohfa Golarvia, contained in book "Roohani Khazain" Vol. 17 page 153. The relevant part reads as under:- {{ Urdu text miss }}
12. As regards himself, originally Mriza Ghulam Ahmad gave the number of his miracles as over three thousand and thereafter gave higher number of one lac, three lacs and ten lacs in his different books. The relevant extracts from his books are given below:- jjI -Utu* J/ ^^CIT Im ^^< _ I f J** I ' ^ CXJ. The- u* up*^ UC/#tbs n-itW 11 / a J&f /J* #the -jft* J* {{ Urdu text }} Mirza Ghulam Ahmad was not satisied even with his claim of three lac miracles and that at another place laid a claim that number of Allah's signs (miracles) in respect of his prophecies exceeded ten lacs. The relevant part from his book Baraheen Ahmadia is given below:- {{ Urdu Text miss }}
13. The petitioner's learned counsel strongly urged that the petitioners merely believe that Mirza Ghulam Ahmad was Maseeh Maud and Mehdi Maud and nothing else. He was subservient to the Holy Prophet Hazrat Muhammad ( ) and was lower to position of Rasool-e-Pak ( ) Mr. Nazir Ahmad Ghazi the learned Assistant Advocate General with equal force repudiated the above argument of the petitioner's learned counsel and urged that petitioners are admittedly Quadiani who believe that Mirza Ghualm Ahmad was a Prophet and had acquired this status with the stamp of the holy Prophet Hazrat Muhammad ( ) and had all the qualities of earlier Prophets including Hazrat Muhammad ( ). In this connection he referred to the pamphlet captioned as " " written by Mirza Ghulam Ahmad. The contents of the pamphlet fairly support the contention of the learned A.A.G. He also referred to the following quotation from Mirza Ghulam Ahmad's book Nazool-e-Maseeh. {{ Urdu text miss }} Mirza Shaib had attributed to him self a number of Quranic verses revealed in respect of Hazrat Mohammad. A few references are given below:- {{ Arabic text miss }} Further Mirza Ghulam Ahmad claimed that he deserved Darood-o-Salam and. That his followers could legitimately write with his name (for reference see Arbain No. 2 page 6). The Book Tazkira" which according to the Qadianis consists of revelations of Mirza Ghulam Ahmad contains the following one at page 777 " " Mirza Ghulam Ahmad has also referred to the following cultivation in his Book ( ) Chapter 4 page 74-75. {{ Arabic Text miss }} Thus it becomes abundantly clear that according to the claims of Mirza Ghulam Ahmad he was a Prophet, was named as Muhammad and Ahmad by Allah, was sent as was Muhammad incarnate reflecting the complete image and Prophethood of Hazrat Muhammad and deserved Darood-o- Salam like the Holy Prophet Hazrat Muhammad . Hence it was not unlikely for the petitioners to have declared that Mirza Ghulam Ahmad was not lesser in his dignity or status than the Holy Prophet Hazrat Mohammad . The petitioner's learned counsel has referred to a number of books of Mirza, Ghulam Ahmad in which he has expressed deep reverence and love for the Holy Prophet Hazrat Mohammad . A few references are quoted below:- {{ Urdu text miss }} If the faith of the followers of Mirza Ghulam Ahmad is confined to his above referred writings in which love and reverence for the Holy Prophet has been expressed, no Muslim can have any grievance against them. But unfortunately there are other writings of Mirza Ghulam Ahmad in which he not only ventured to claim complete equality and identity with the Holy Prophet Hazrat Mohammad .) but also showed disrespect to Him. This aspect of the matter was considered by the Hon'ble Supreme Court of Pakistan in the case of Zaheer-ud- Din (relied upon by the learned Assistant Advocate General). The court was 546 Cr.C. ' Key Law Reports 1994 pleased to observe in para 82 of the judgment, "Not only that, Mirza Sahib, in his writings tried to be little the glory and grace of the Holy Prophet (peace be upon him), he even ridiculed him occasionally". In this connection the Hon'ble Supreme Court was pleased to refer to the following quotations from books of Mirza Ghulam Ahmad.
(i) "The Holy Prophet could not conclude the propagation of Islam and I Complete the same".
(Hashia Tohfa Golarvia page 165)
(ii) "The Holy Prophet could not understand some of the revelations and he made many mistakes"
(Izalatul Auham, published by Lahori Press).
(iii) "The Holy Prophet had 3 thousand miracles" (Tohfa Golarvia page 67 published at Rabwah).
(iv) I have one million signs" (Brahcem Ahmadia Page 56).
The Hon'ble Supreme Court further noted that the belief of the Quadiani's is that Mirza Ghulam Ahmad is (God forbid) Muhammad incarnate. In this connection, reference was made by the Court to the following quotation from Mirza Sahib's Khutbah Ilhamia (page 171) "One who distinguishes between me and Muhammad, he has neither seen me nor known me".
Since the Qadianis believe in the totality of the teachings of Mirza Ghulam Ahmad which include his claim of possessing all the qualities and titles of honour of the Holy Prophet, they feel no hesitation in declaring him as a Prophet, not lesser in position, dignity or honour than the Holy Prophet Hazrat Muhammad ( ). The learned Assistant Advocate General has urged that such a declaration is derogatory to the Holy Prophet Hazrat Muhammad ( ) because Mirza Ghulam Ahmad and his followers are non-Muslims under the provisions of Article 260(3)(a) & (b) of the Constitution of Pakistan and are treated so by the Muslims Umma through-out the world. He posed a question as to how the greatest Prophet of Allah can be relegated to the position of an imposter and a non- Muslim, who was essentially planted to serve the cause of the British Imperialism? To substantiate his assertion, the learned A A.G. Has referred to the following writings of Mirza Ghulam Ahmad:- jlS Jt ^Vi/dr Jibuti^J? ^3 i>lr.A-i*i-S\4- O?) (freez'd (f f ^ utf* uH ^ cZ/cT/' ^ ^ (c^i^) {{ Urdu text }}
14. Before proceeding further it would be advantageous to examine the provisions of section 295-C of the PPC which read as under:- S. 295-C :- "Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (may peace be upon him) shall be punished with death, or imprisonment for life, and shall be liable to fine".
After the pronouncement of the Federal Shariat Court in the case of Muhammad Ismaeel Qureshi vs. Pakistan through Secretary Law & Parliamentary Affairs (PLD 1991 FSC 10),the words" or imprisonment for life" in section 295-C of the PPC have lost their efficacy w.e.f 30.4.1991. Therefore, now the sentence for the offence is only death.
14. The word "defile" means "to corrupt purity or perfection of; to debase; to make ceremonially unclean; to pollute; to sully; to dishonour".
(Black's Law Dictionary Fifth Edition page 380).
"To violate the sacredness or sanctity of; to desecrate, profane; to sully the honour of, to dishonour".
(The Oxford English Dictionary Volume-Ill page 136).
16. A bare reading of the above provision of law makes it clear that any word either spoken or written, or visible representation or any imputation which defiles the sacred name of the Holy Prophet Hazrat Muhammad ( ) directly or indirectly or by any innuendo i.e. Latent defamation, amounts to an offence under section 295-C of the Code. The petitioners, on the one had, had asserted that the position and status of Mirza Ghulam Ahmed was not less than that of Hazrat Muhammad ( ) and on the other, stated that number of miracles of Mirza Ghulam Ahmed was three lacs while that of the Holy Prophet Hazrat Muhammad ( ) three thousand. The argument of the learned Assistant Advocate General that the petitioners dishonoured the Holy Prophet Hazrat Muhammad ( ) by relegating his position to that of Mirza Ghulam Ahmad, who was not a "Muslim" within the meaning of Article 260(3)(a) of the Constitution of Pakistan and was a false claimant of Prophethood according to the firm belief of the Muslim Umma, has considerable force. Prima facie, the petitioners appear to have committed an offence under section 295-C of the PPC, The mere fact that Mirza Ghulam Ahmad in a number of his books (referred to by the petitioners' learned counsel) had expressed profound love and respect for the Holy Prophet Hazrat Muhammad ( ) is not enough to exonerate the petitioners who, according to the FIR had used derogatory language about the Holy Prophet Hazrat Muhammad ( ) and ventured to say that Mirza Ghulam Ahmad was not lesser in dignity or status than the Holy Prophet Hazrat Muhammad ( ). The offence being punishable with death falls within the prohibition of Section 497 of the Cr.P.C.
17. The petitioners' learned counsel heavily relied on the judgment in the case of Nasir Ahmad Vs. The Slate (1993 SCMR 153) to urge that the question whether the petitioners had committed an offence u/s 295-C of the PPC may be left to be decided by the trial Court and that petitioners may be allowed bail at this stage. Of course, the final determination of the question regarding commission of the offence has to be done by the trial Court but at this stage a tentative view can be formed on the basis of the material on the record. Moreover, the facts of the precedent-case are entirely different. In the said case certain Shabir-c-lslam were used by the Qadianis in a marriage invitation card. It was felt that deeper probe regarding the faith intention etc. Of the accused was needed, It was observed that the use of the expressions like by any person, prima facie, "docs not create feelings of hurt, offence or provocation etc. Etc. Nor is it derogatory to the Holy Prophet Muhammad (P.B.U.H)". It. Was further observed, "It is only when the person reading or hearing them goes deep into back-ground of the person using them and brings his own special knowledge of the faith, beliefs and latent intentions of such an accused that the alleged results arc likely to follow". Meaning thereby that the alleged results of hurt or provocation to Muslims or defilement of the sacred name of the Holy Prophet were likely to follow after going into the back- ground of the accused, their faith, beliefs and intentions. Hence in the peculiar circumstances of the case, the Hon'ble Supreme Court left the matter to be decided by the trial court and allowed bail to the accused persons. The facts of the present case arc singularly different. The petitioners who are Qadianis had allegedly used derogatory language about the Holy Prophet and openly declared that Mirza Ghulam Ahmad was not lesser in his position and status than the Holy Prophet.
They also gave higher number of miracles of Mirza Ghulam Ahmad apparently to place him on a higher spiritual pedestal. Therefore, in the present case the petitioners prima-facie appear to have committed ay offence u/s 295-C of the P.P.C.
18. For the foregoing discussion, I am not inclined to grant bail to the petitioners at this stage.
Resultantly, their bail petition is dismissed. However, in order to avoid prejudice to them due to delay in conclusion of the trial, the trial court is directed to give priority to this case over others and make every effort to conclude the trial expeditiously, preferably, within a period of three months.
19. It is clarified that the trial court shall independently decide the case in the light of the material or evidence adduced by the parties without being influenced by the observations made above.