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    Wednesday, 15 March 2017

    Offences against religions and Punishments

    Injuring or defiling place of worship, with intent to insult the religion of any class
    Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 295

    The purpose of this penal provision is to prohibit on the pain of punishment any act injuring the feelings of any class of people based on or emanating from religious beliefs or notions. It is quite plain that people can be or made to be highly susceptible on religious grounds or by appeal to their sentiments on that score.

    The word 'defile' in the section cannot be confined to the idea of making dirty. It must also be extended to ceremonial pollution. The mud image of Lord Ganesa or any objective representation of a similar kind is held sacred by certain classes of Hindus even though the image may not have been consecrated. The breaking of such an image in a public meeting with the avowed intention to insult the feelings of certain section of Hindu Community would Prima facie amount to an offence under S. 295.

    Demolition of mosque
    A case under this section may be registered against all the persons who had either committed or abetted the offences of trespass into or demolition of the mosque with the knowledge that by their wrongful acts religious feelings of the petitioners and other Muslims would be injured.

    Intention
    The essential ingredient of an offence under S. 295 is that the accused must act with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion. Thus where the accused, a Muslim threw a burning cigarette on the Viman' (an object held sacred by the Hindus) in a procession taken out by the Hindus but the cigarette did not was held, that the accused was guilty under S. 295/511, Penal Code as it must be taken that the accused had intentionally thrown the cigarette with the criminal intention contemplated under S. 295.

    Class of persons
    A class of persons would certainly be a body of persons. But in order that a body of persons might form a class, there must be a principle of classification, and even two persons would be sufficient to form a class, if those two persons according to the principle of classification adopted, form a group distinct from any other group.

    Sacred place or thing
    Where the land, on which a they're used as. a mosque had been built, had not been dedicated for that purpose by its owner, no mosque could be said to have been built there and therefore a person who demolishes such a structure cannot be convicted under section 295.

    Place not sacred
    Drawing water from a roadside well by caste mahars does not amount to an offence falling under S. 295, the well not being an object held sacred by any class of persons.

    Conviction and sentence
    An accused charged with an offence under S. 295, Penal Code cannot be convicted under S. 297 by virtue of S. 238, Criminal P.C. as the latter offence cannot be treated as a minor offence in relation to an offence under S. 295, Penal Code.

    Deliberate and malicious' acts intended to outrage religious feelings "Class by insulting its rehkion or religious believers.
    Whoever, with deliberate and malicious intention of outraging Words, religious feelings of any class of the (the citizens of Pakistan), by words, either spoken or written, or by visible 'representations insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to (ten years), or with fine, or with both. Section 295-A.

    Scope and applicability

    In order to bring a matter under S. 295-A it is not the mere matter of discourse or the written expression but also the manner of it, which has to be looked to. In other words, the expressions should be such as are bound to be regarded by any reasonable man as grossly offensive and provocative and maliciously and deliberately intended to outrage the feelings of any class of citizens.

    Intention
    Every act of insult to or attempt to insult religion or religious beliefs of a class of persons will not amount to an offence under S. 295-A. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class will not come under this section.

    Defence in action under section 295-a
    It is no defence to a charge under S. 295 that there are writings similar to the one in question in other countries and that no action has been taken against them, or that the author had incidentally attacked other religious belief, or that the accused was writing a book in reply to the one written by one professing another religion who had attacked his own religion.

    Complaint
    For the offences mentioned in S. 106, Cr.P.C. it is for the appropriate Government alone to decide whether a particular person should be prosecuted or not. When the complaint is made, the trial Magistrate has to take it on its face value, as it is, without entering upon an inquiry into the allegation whether ultimately the offence falls under section 295-A, P.P.C. or 298, P.P.C. The complaint against the petitioner under section 295-A, P.P.C. not having been filed by an appropriate Government as required by law but an unauthorized person, the trial Magistrate will have no power to record preliminary evidence. The proceedings before the trial Court are therefore clearly without jurisdiction.

    Defiling, etc. of copy of Holy Quran
    Whoever willfully defiles, damages or desecrates a copy of the Holy Qur'an or of an extract there from or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life. Section 295-B

    Defiling of Holy Quran
    The word 'defile' is of general import not confined to a limited meaning to the extent of spiritual aspect and honor but also the physical show of respect which actually is a declaration to the honor and greatness to its teachings and thoughts. The Holy Qur'an being a sacred book necessarily is to be given full honor and high place both in body and mind. The word "defile" would include both animate and inanimate objects and is not restricted in meaning to acts that would make an object of faith, only unclean as a material object but extends to acts done in relation to all objects of faith, visible or invisible, rendering such objects ritually impure It is to be noted in this context that physical respect of the Holy Qur'an and spiritual feelings with it teachings cannot be separated from each other. Spiritual respect is a matter of understanding of an individual with reference to his knowledge and wisdom which is not common, but to show physical respect and honor to the Holy Qur'an is a legal, religious and moral duty of a person. Spiritual respect and honor is matter of an individual relating to his thinking whereas physical honor and respect is a matter of his action visible.

    Ahmedis publishing verses of Holy Quran
    Qadianis hold Holy Qur'an and its text in high esteem, relish its recitation, derive spiritual enlightenment and guidance from Quranic verses and with that end in view them, inscribe or exhibit Quranic verses at their place of worship. Such an act would not tantamount to desecration or derogation of Allah's Book or unlawful or wrongful use of Quranic verses within meaning of S. 295-B. Publication of verses of Holy Qur'an by Ahmedis in their publications, would not constitute an offence under sections 295-A, 295-B, 295-C.

    Intention
    An act of defiling or desecrating if done consciously. and deliberately with or without the intention to damage and destroy the honor, respect and greatness in the eye of public in general or with the purpose to satisfy one's own feelings shall be a willful act bringing the case within the purview of S. 295-A, P.P.C. But where accused an illiterate person took the plea that some unknown person had given him cigarette filled in with charas which he smoked by which he became intoxicated and senseless and somebody put Nimaz Mutarajjam in his pocket which later on turned to an ugly scene , resulted into the occurrence. He was acquitted.

    Proof and conviction
    Where accused had been taken into custody in bus when he as uttering derogatory language for the Holy Qur'an and produced a copy of it from the bag with a pair of shoes placed by him in his feet in the bus. Accused had been proved to be mentally fit and was apprehended on the spot with the recovered articles. Prosecution witnesses were truthful and inspired confidence. Conviction and sentence of accused were upheld.

    Use of derogatory etc. in respect of the holy prophet
    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 (Peace Be Upon Him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.' Section 295-C.

    Reference to Sessions Court
    Reference of case to Sessions Court would be legal when Magistrate at the time of writing judgment came to the conclusion that offence committed by accused was not one under section 298-A, P.P.C. (triable buy Magistrate but was one under section 295-C, P.P.C. (triable by Sessions Court).

    Value of F.I.R.
    First information Report is not a substantive piece of evidence and can only be used as corroboration or contradiction of the complainant's statement which he makes before the Court on oath. Prosecution in criminal cases is duty bound to prove its case against the accused beyond reasonable doubt and this duty does not change or vary even in a case where r. o defence is taken by the accused. Anything going in favour of accused must be taken into consideration and the benefit of the same, if any, be extended to him not as a matter of 'grace but as a matter of right. Where prosecution had failed to produce the best evidence as the most important witness regarding the recovery of the alleged photograph from the accused had been withheld without nay rhyme or reason which led to the presumption that in case he was produced he could not have supported the prosecution case. Possibility of the accused having been implicated in the case with some ulterior motive also could not be ruled out. Accused were acquitted.

    Comparing Mirza Ghulam Ahmed to holy prophet
    Where accused Qadianis allegedly used derogatory language about Holy Prophet Hazrat Muhammad (Peace by upon him) and openly declaring that Mirza Ghulam Ahmed was not lesser in his position and status than Holy Prophet Hazrat Muhammad (Peace by upon him). They also attributing to Mirza Ghulam Ahmed higher number of miracles that those performed by Holy Prophet Hazrat Muhammad (Peace by upon him). Accused had Prima facie committed offence under section 295-C.

    Intention
    Mens rea must be proved for conviction under this section. Where Ahmedis were charged with offences under section 295-C, 298-c, of the code on accusation of offence for distributing Mubahila literature required indirect proof of accused's mens rea, before a Prima facie case could be said to exist against the accused.

    Insane accused
    Where law recognizes only those mental abnormalities as a defence plea which render a person incapable of knowing either the 'nature of the act or that what he is doing is no wrong and contrary to law.

    Proof of offence and sentence
    Where complainant had failed to report the incident for two days and had kept blasphemous material with him for a period of one year. Case against accused persons was set in motion by registration of case the application of complainant. The complainant appeared as a witness on oath before the Trial Court and expressed his desire not to pursue the case due to prevalent circumstances and keeping in view the danger to his life and was declared hostile as he was intentionally suppressing the truth. Complainant in reply to the cross-examination stated that application for registration of the case against accused persons was in his own handwriting and bore his signatures and occurrence narrated therein had, in fact, taken place and he did not apprehend any danger from the accused. Complainant again appeared before the Court along with another application stating therein that he wanted to pursue the case and had given power of attorney to his counsel to represent him during the proceedings before High Court. It was not held that he was not a reliable witness and his evidence did not advance the case of prosecution in any manner nor could the F.I.R. lodged by hid' be taken as a substantive piece of evidence, for he had failed to narrate the facts incorporated in the F.I.R. before the Court. It was held that such being a serious contradiction which reflected on veracity of the witnesses and mad their statements doubtful. The accused was acquitted.

    Sentence

    In case of use of derogatory remarks etc, in respect of Holy Prophet (Peace Be Upon Him) alternate punishment of life imprisonment as provided in section 295-C, being repugnant to the Injunctions of Islam as given in Holy Qur'an and Sunnah, Federal Shariat Court directed that the words "life imprisonment" were to be deleted from section 295-C, with a further direction that a clause may further 'be added to section 295-C so as to make the same acts or things when said about other Prophets, also an offence with the same punishment by 30th April, 1991. Thus the words "or imprisonment for life" occurring in S. 295-C, P.P.C. have lost their efficacy with effect from 30-04-1991 and now the sentence for the offence is only death.
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    Item Reviewed: Offences against religions and Punishments Rating: 5 Reviewed By: Usman Ali
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