295C 298B bail accepted on grounds . police trespass in house | Sp did not investigation as required by law

295C 298B bail accepted on grounds . police trespass in house | Sp did not investigation as required by law | Constitutional rights.

SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:

Justice Qazi Faez Isa, CJ

Justice Muhammad Ali Mazhar

Justice Musarrat Hilali

Criminal Petition for Leave to Appeal No.1359 of 2023

[Against the order dated 10.11.2023 passed by the Islamabad High Court,

Islamabad in Crl. Misc. No.1627-B/2023]

Zubair Saeed Sabri/Sain Zubair Shah

…Petitioner

Versus

The State thr. A.G. Islamabad and another

…Respondents

For the Petitioner

Mr. Muhammad Ilyas Siddiqui, ASC

For the State

: Raja M Shafaqat Abbasi, DAG

M/s

Masood Bangash, SSP

(Investigation) and Rukhsar Mehdi, SP

(Investigation), Islamabad

Ch. M. Rafaqat Khokhar, Law Officer

Mr. Muhammad Hanif, Inspector/IO

For the Complainant:

: In-person

Date of Hearing

: 14 February 2024

O R D E R

Qazi Faez Isa, CJ. The petitioner seeks bail in case arising out of

FIR No.153/2023 registered at Police Station Hummak, Islamabad,

on 23 July 2023. The learned counsel for the petitioner submits

that as per FIR itself, no offence as envisaged under section 295-C

of the Pakistan Penal Code, 1860 (‘PPC’), is made out and the

complainant later himself submitted an application requiring that

the petitioner be charged with sections 295-A and 298-B of the

PPC. He, however, submits that the allegation which the

complainant levelled does not attract even these offences. He

further submits that the FIR was registered with a delay of twentyeight hours and the investigation was not undertaken by a

Superintendent of Police (‘SP’) as required by section 156-A of the

Code of Criminal Procedure, 1898 (‘the Code’).

The complainant alleged (as per FIR) that he went to the

petitioner, who was a Pir, to get dum and in his house he saw a

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panaflex banner on which there were photographs, allegedly, of the

Prophet and 12 Imams. The complainant does not disclose what

took place between him and the petitioner in the petitioner’s

house. The complainant then went to the police station and asked

the police to accompany him, and they entered into the petitioner’s

house, removed the panaflex from the wall and took it into

possession.

Since proper assistance was not provided by the Law Officer

and the Investigation Officer, a junior official, we sent for the

concerned SP and the Deputy Attorney-General. The Senior

Superintendent of Police (‘SSP’) accompanied them. We inquired

from the SSP and the SP whether a search warrant was obtained

before entering the petitioner’s house and they stated that a

warrant was not obtained. Since section 295-C of the PPC was

mentioned as the only offence in the FIR we inquired whether the

matter had been investigated by an officer of the rank of SP, as

required by section 156-A of the Code, and were told that this too

was not done.

An offence under section 295-C of the PPC must be

investigated by an officer not below the rank of SP, as stipulated by

section 156A of the Code, which is reproduced hereunder:

‘156A. Investigation of offence under section 295C,

Pakistan Penal Code.- Notwithstanding anything

contained in this Code, no police officer below the rank

of a Superintendent of Police shall investigate the

offence against any person alleged to have been

committed by him under section 295C of the Pakistan

Penal Code, 1860 (Act XLV of 1860)’

Article 4(1) of the Constitution of the Islamic Republic of

Pakistan (‘the Constitution’) mandates that individuals must be

treated in accordance with law, which includes section 156A of the

Code. And, Article 4(2)(a) states that ‘no action detrimental to the

life, liberty, body, reputation or property of any person shall be

taken except in accordance with law’.

The police were required to obtain a search warrant before

entering the house of the petitioner, but did not do so. The privacy

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of home shall be inviolable mandates Article 14(1) of the

Constitution, reproduced hereunder:

‘14(1). The dignity of man and, subject to law, the

privacy of home, shall be inviolable.’

Without obtaining a search warrant the privacy of the

petitioner’s home was violated. Article 8 of the Constitution gives

paramountcy to the Fundamental Rights (including Article 14),

which cannot be abridged, and if any law is made in contravention

thereof it states that it shall to such extent be void.

Since we are dealing with offences under chapter XV of the

PPC, that is, offences relating to religion, in this case relating to

Islam, it would be appropriate to also consider relevant Islamic

injunctions. Verse 27, chapter 24 (An-Nur) of the Holy Qur’an

requires, that:

عَلَىٰ ٓ وَ تُسَل ِّمُوا ْ تَسۡ تَأۡ نِسُوا ْ حَتَّىٰ بُیُوتِكُمۡ غَیۡرَ بُیُوتًا تَدۡخُل ُوا ْ لاَ ءَامَنُوا ْ ل َّذِینَ ٱ یَٰ ٓ أ َیُّھَا

1 أ َھۡ لِھَاۚ

‘Believers do not enter houses other than your own

until you have asked permission…’

In this case the requisite permission was the search warrant,

which was not obtained.

When the police itself do not abide by the law it is a matter of

grave concern. And all the more so when a citizen’s liberty is

involved. It is noted that in such cases the complainant, rather

than the police, takes the lead, and also effectively takes over the

investigation. This is done in complete derogation of the law and

the Constitution. The SSP stated that he will ensure that in future

the law is strictly followed. He further states that he will be

examining whether disciplinary action is required to be initiated

against the delinquent policemen.

Since the alleged offence is against religion matters have to

be examined in that context. Article 2 of the Constitution

stipulates that, ‘Islam shall be the State religion of Pakistan’ and

Article 227(1) of the Constitution requires that:

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‘227. (1)

All existing laws shall be brought in

conformity with the Injunctions of Islam as laid down

in the Holy Quran and Sunnah, in this part referred to

as the Injunctions of Islam, and no law shall be

enacted which is repugnant to such Injunctions.’

Mention may also be made of Article 31(1) of the Principles of

Policy chapter of the Constitution which requires that Muslims be

enabled to lead an Islamic way of life:

‘31. (1)

Steps shall be taken to enable the

Muslims of Pakistan, individually and collectively, to

order their lives in accordance with the fundamental

principles and basic concepts of Islam and to provide

facilities whereby they may be enabled to understand

the meaning of life according to the Holy Quran and

Sunnah.’

No less a person than a rightly guided Caliph, Hazrat Umar

bin Khattab (may Allah be pleased with him), dropped the charge

of alcohol being consumed by Muslims in their house because the

house was not legally entered.2 And, ‘To promote unity and the

observance of the Islamic moral standards’ is prescribed by Article

31(2)(b) of the Constitution. The police, in entering the petitioner’s

house without a search warrant, violated the law, Islamic

Injunctions and moral standards.

Every Muslim should aspire to the moral standards of

Prophet Muhammad (peace and blessings of Allah be upon him),

the last Messenger of Almighty Allah. The Holy Qur’an itself

testifies to his great moral character:

3 عَظِیمٖ خُل ُقٍ لَع َلَىٰ وَ إ ِنَّكَ

‘And you have an excellent character.’

10.

In Pakistan, which is an Islamic Republic, unfortunately at

times for profit, vendetta or personal publicity Islamic Injunctions

2 Abu ‘Abdillah Muhammad bin Ahmad al-Qurtubi, al-Jami‘ li-Ahkam al-Qur’an

(Beirut: Mu’assasat al-Risalah, 2006), vol. 19, pp. 400-401.

3 Holy Qur’an, Al-Qalam (68), verse 4.

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are negated. The Holy Qur’an requires Muslims to emulate the

exemplary character of the Messenger of Allah:

4 حَسَنَةٞ أ ُسۡ وَ ةٌ ๡َّ ِ ٱ رَ سُولِ فِي لَكُمۡ كَانَ ل َّقَدۡ

‘You have indeed in the Messenger of Allah an example

of beautiful conduct.’

‘Allama Ibn ‘Abidin al-Shami,5 a renowned Hanafi jurist,

went to great lengths to state that Muslims should emulate the

Prophet’s example by following his teachings, and should not try

hard to find wrongdoing. We must also strive to protect the

excellent reputation of the Last Messenger of Almighty Allah and

abide by what he did, accepting the repentance of one who repents:

‘It is not for us to impose punishments and other

means of deterrence on the basis of our personal

inclinations. Rather, we are bound to act on what

appears to be the law of our Prophet (peace and

blessings of Allah be upon him)… We cannot say that

our love for the Prophet (peace and blessings of Allah

be upon him) demands of us to kill the one who used

foul language against him even after he repents since

the foremost prerequisite of love is to follow, not to

innovate. We fear that on the Day of Resurrection the

Prophet (peace and blessings of Allah be upon him)

might be the first one to ask about the murder of such

a person. Therefore, after the accused repents, we

must refrain from punishing him and to leave his

matter to his Master who knows all that lies in his

heart, as the Prophet (peace and blessings of Allah be

upon him) would accept from people their outward

embracing of Islam and would leave their decision to

the One Who knows all secrets.’6

11.

Prophet Muhammad (peace and blessings of Allah be upon

him) was not just a great blessing for Muslims but also for all

creatures:

4 Holy Qur’an, Al-Ahzab (33), verse 21.

5 1198 AH/1783 CE – 1252AH/1836 CE.

6 Muhammad Amin Ibn ‘Abidin al-Shami, Tanbih al-Wulah wa al-Hukkam (Cairo:

Dar al-Athar, 2007), p. 90.

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7 وَ مَآ أ َرۡ سَلۡ نَٰ كَ إ ِلاَّ رَ حۡ مَةٗ ل ِّلۡ ع َٰلَمِینَ

‘We sent you not, but as a Mercy for all creatures.’

He called upon his followers to emulate the Kindness of the

Creator:

8 كُل ِّھِ الأْ َمْرِ فِي الرِّ فْقَ یُحِ بُّ إ ِنَّ ဃَّ َ

‘Allah loves kindness in all matters.’

9 مَا لا یُعْطِي عَلَى الْعُنْفِ الرِّ فْقِ عَلَى وَ یُعْطِي الرِّ فْقَ ، یُحِ بُّ إ ِنَّ اللهَ رَ فِیقٌ

‘Allah is kind, He loves kindness, and He rewards

kindness, but does not reward harshness.’

12.

When the believers were in a very small minority and the

Prophet and his companions were persecuted in Mecca they

sought safety in Madina.

10 Mecca was conquered11 but this was

done without spilling a drop of blood. The Prophet issued a

general amnesty to all, including his oppressors and to Islam’s

enemies.12

13. At the Battle of Badr13 some of the bitterest enemies of

Prophet Muhammad (peace and blessings of Allah be upon him)

were captured. The Prophet showed mercy and clemency to all,

even to Suhayl bin ‘Amr who had vociferously denounced him. A

companion suggested that a few of his teeth be pulled out to

teach him a lesson. Ibn Ishaq, the first biographer of the Prophet,

recorded the Prophet’s response:

14 مَ قَامًا لاَ تَذ ُمُّھُ. لاَ أ ُمَ ث ِّلُ بِھِ فَیُمَ ث ِّلُ ဃَّ ُ ب ِي وَ إِنْ كُنْتُ نَبِی̒ا. إنَّھُ عَسَى أ َنْ یَقُومَ

‘Were I to do this, Allah would do the same to me,

although I am His messenger. He may one day attain

such a status that you will no longer condemn him.’

The kindness and sagacity of the Prophet was proved right; Suhayl

bin ‘Amr helped conclude the peace treaty of Hudaybiyah at a time

7 Holy Qur’an, Al-Anbiya’ (21), verse 107.

8 Sahih al-Bukhari, Kitab Istitabat al-Murtaddin, Hadith No. 6528.

9 Sahih Muslim, Kitab al-Birr wa al-Silah wa al-Adab, Hadith No. 2593.

10 27 Safar, 14th Year of the Prophethood/12 September 622 CE.

11 17 Ramadan 8 AH/8 January 630 CE.

12 ‘Abd al-Malik Ibn Hisham al-Himyari, as-Sirah an-Nabawiyyah (Cairo:Mustafa

al-Babi, 1955), vol. 2, p. 412.

13 17 Ramadan 2 AH/13 March 624 CE.

14 As reported by Ibn Ishaq’s disciple Ibn Hisham. Ibid.

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when he had not converted to Islam. After he embraced Islam he

participated in many battles defending Muslims.15

14.

Undoubtedly, it was the excellent character of the Prophet,

emulated by the early Muslims that ensured Islam spreading

throughout the world in a very short time. The miracle of its

success lay in the conduct of its adherents; their honesty, love and

empathy for all humanity. The ignorant and those inimical to Islam

astounded by Islam’s success retorted (without proof) that it was

spread by the sword. Unlike the Christian European Empires the

Muslim Ottoman Empire lasted the longest, for 600 years. The

principle at its core and one which sustained it was inclusivity and

tolerance; strict adherence to the Qur’anic command - ‘there is no

compulsion in religion’ –

Hatred, bitterness and .– لدِّینِ ٱ فِي إ ِكۡ رَ اه َ لاَ ٓ 16

violence rarely, if ever, brought anyone into Islam – the abode of

peace – nor brought deviants on to the straight path - ال ِّراص َط ُ ال َمست ِق یم .

Instead all it does is to strengthen the resolve of Islam’s detractors

and those inimical towards Muslims.

15. Section 295-C of the PPC, for which the petitioner was

initially charged, is a capital offence. If the complainant’s

allegations were accepted in their entirety, even then this offence

was not made out. It is, therefore, surprising that the police

mentioned this offence in the FIR, which can only mean that they

did so under pressure of the complainant or for ulterior purposes.

The only other explanation could be their gross incompetence. In

all offences against religion the particulars of the offence must be

clearly stated. Merely levelling such a charge attracts great odium

because even if the accused is subsequently found to be not guilty,

becomes inconsequential as his life has already been destroyed.

16.

The offences levelled against the petitioner are those relating

to the religion of Islam, therefore, it was necessary to consider

some relevant Islamic injunctions. We now proceed to determine

15 Abu al-Hasan ‘Ali al-Jazari, Usd al-Ghabah (Beirut: Dar al-Kutub al-‘Ilmiyyah,

1993), vol. 2, p. 585.

16 Holy Qur’an, Al-Baqarah (2), verse 256.

17 The phrase ‘straight path’ appears in many verses of the Holy Qur’an,

including the following: Al-Fatiha (1), verse 5; Al-Hajj (22), verse 54; Ash-Shoora

(42), verse 5

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whether the petitioner should be given bail. The police entered the

petitioner’s house but did so without first obtaining a warrant;

which is all the more surprising as the police was not rushing to

prevent a murder or apprehend a suspect from fleeing. The illegal

entry of the police into the petitioner’s house also brings into

question anything recovered by the police from his house, which is

another legal transgression.

17.

In this case the charge was also amended to sections 295-A

and 298-B of the PPC. The petitioner has remained incarcerated

for over seven months but his trial is nowhere near conclusion.

18.

All the aforesaid factors entitle the petitioner to bail.

Accordingly, the petitioner is admitted to bail in the subject case

on furnishing bail bond and one surety in the sum of fifty

thousand rupees to the satisfaction of the Trial Court. This petition

is converted into an appeal and allowed by setting aside the

impugned order in these terms.

Chief Justice

Judge

Islamabad

14 February 2024

Syed Farhan Shah

Approved for Reporting

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