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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