Zaheer Ahmad Vs The State etc.

Form No.HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Crl. Misc. No.27057/B/2021 Zaheer Ahmed Vs The State etc.

S.No. of Order/ Date of order/ Order with signature of Judge and that of parties or counsel where necessary Proceeding proceeding

24.12.2021 Ms. Hina Jillani, Advocate, for the Petitioner in Crl. Misc. No.27057/B/2021.

Sh. Usman Karim-ud-Din, Advocate, for the Petitioners in Crl. Misc. No.28986/B/2021 & Crl. Revision No.53955/2021. Mr. Asad Ali Bajwa, Deputy Attorney General, and Syed Muhammad Haider Kazmi, Assistant Attorney General with Naveed Aslam/SI, FIA Cyber Crimes, Lahore.

Mr. Muhammad Shahid Tasawar Rao, Advocate, assisted by Mian Tabassum Ali, Advocate, for the Complainant.

Tariq Saleem Sheikh, J: Through this single order I propose to decide Crl. Misc. Nos. 27057/B/2021, 28986/B/2021 and Crl. Revision No. 53955/2021 as a common thread weaves through them.

Factual background

2.Muhammad Irfan (the “Complainant”) lodged a complaint with the Deputy Director, FIA Cyber Crimes, Lahore, to the effect that Mehmood Iqbal Hashmi (Petitioner in Crl. Revision No.53955/2021), Shiraz Ahmed (Petitioner in Crl. Misc. No.28986/B/2021), A. Vakeel Rajput and Attique had created a WhatsApp group under the name and style of “Sindh Salamat” for the propagation of the Quadiani community’s faith in contravention of law and dissemination of literature that was strident to the teachings of Islam, including the translation of the Holy Quran proscribed by the Government. The Complainant further submitted that the accused had added him in the group owing to which he was able to track their activities and take screenshots which he annexed with his complaint. The competent authority ordered Inquiry No. 953/2019 dated 18.06.2019 into the matter.

3.On 27.6.2019, the FIA received a source information that Mehmood Iqbal Hashmi, a follower of the Ahmedi faith, was involved in propagation of his religion in a manner prohibited by law and was keeping proscribed material which could be recovered if an immediate action was taken. Consequent thereupon, the Additional Director, Cyber Crimes, constituted a raiding party headed by Assistant Director Naeem Zafar, a hardware engineer, which went to Mehmood Hashmi’s house situated at 143/4, Asif Block, Allama Iqbal Town, Lahore. When they knocked the door Mehmood Hashmi came to answer the call himself. The raiding party held and searched him. He was carrying Cell No. 0300-9468153 which was checked by Naeem Zafar on the spot. He noticed that he had uploaded pdf. file of the proscribed translation of the Holy Quran authored by Mirza Tahir Ahmed on the Sindh Salamat WhatsApp group. Mehmood Hashmi was arrested and FIR No. 88/2019 dated 20.06.2019 was registered at Police Station FIA Cyber Crimes Wing, Lahore, for offences under sections 295-A, 298-C of the Pakistan Penal Code, 1860 (“PPC”) and section 11 of the Prevention of Electronic Crimes Act, 2016 (“PECA”). Later, sections 295-B, 295-C, 34 & 109 PPC were added.

4.Shiraz Ahmed is also named in the FIR. On 25.2.2021 the Investigating Officer obtained search warrant and went to Chak Chatha, Tehsil and District Hafizabad, with his team. Shiraz Ahmed was allegedly busy in his propagations. He was arrested and his cell phone, laptop, proscribed books and certain stationery were seized.

5.The name of Zaheer Ahmed (Petitioner in Crl. Misc. No.27057/B/2021) surfaced during investigation. Shiraz Ahmed disclosed that he provided him the banned content through WhatsApp No. 0321-8808063 which, according to the prosecution, was vouched by forensic report. Zaheer Ahmed was confined in the Camp Jail, Lahore, in FIR No.77/2020 at that time. He was arrested in the instant case on 27.2.2021.

6.Zaheer Ahmed and Shiraz Ahmed filed applications for post-arrest bail in the Sessions Court which were dismissed. They have now approached this Court for relief through Crl. Misc. Nos.

27057/B/2021 and 28986/B/2021 respectively. The case of Mehmood Hashmi is different. He was granted post-arrest bail by the Additional Sessions Judge, Lahore, vide order dated 22.8.2019. Subsequently, when the Investigating Officer added sections 295-B, 109 & 34 PPC in the FIR the Complainant moved an application under section 497(5) Cr.P.C for cancellation of his bail. The Additional Sessions Judge accepted it vide order dated 09.08.2021 whereupon Mehmood Hashmi was re-arrested. He has filed Crl. Revision No. 53955/2021 against the said order and seeks his release.

Arguments

7.Ms. Hina Jillani, Advocate, the counsel for Petitioner Zaheer Ahmed in Crl. Misc. No. 27057/B/2021, contended that the Complainant was a religiously motivated person predisposed against the Ahmedis. He was a witness in case FIR No. 245/2017 dated 15.03.2017 previously registered at Police Station Iqbal Town, Lahore, against two other members of that community. The learned counsel further contended that Zaheer Ahmed had neither committed the alleged offence nor had any connection with the other accused. He was arrested in FIR No. 77/2020 by the FIA and when the Lahore High Court granted him bail they framed him in the instant case (FIR No.88/2019) with the malafide intent to keep him incarcerated. Ms. Jillani next argued that section 196 Cr.P.C stipulated that the offence under sections 295-A PPC could be prosecuted only on the complaint of the Federal Government or the Provincial Government. Inasmuch as no such complaint had been filed, FIR No. 88/2019 could not be registered under that section. She maintained that sections 295-A, 295-B and 295-C PPC and section 11 of PECA were not attracted to the facts and circumstances while the other offences did not fall within the prohibitory clause of section 497 Cr.P.C.

8.Mr. Usman Karim-ud-Din, Advocate, the counsel for Petitioner Shiraz Ahmed in Crl. Misc. No. 28986/B/2021, adopted the arguments of Ms. Jillani and added that the offence, if any, falls within the ambit of section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011 (the “Quran Act”). He contended that since the

said Act was a special law it overrides the Pakistan Penal Code, which was a general law, and no FIR could be registered under sections

295-A, 295-B, 295-C PPC.

9.Mr. Usman Karim-ud-Din, Advocate, also represented Petitioner Mehmood Iqbal Hashmi in Crl. Revision No. 53955/2021. He submitted that the grounds on which the Additional Sessions Judge had cancelled the bail of the said Petitioner were illegal and unjustified. The screenshots from the cellphone of Zaheer Ahmed, which were trumpeted as the new incriminating material, were extremely dubious and Petitioner Mehmood Hashmi had no concern with them. Similarly, the court’s observation regarding tampering with evidence was fallacious. It was impossible for the said Petitioner to indulge in any such thing because his cellphone was with the FIA and he had no access to it. Mr. Usman argued that Petitioner Mehmood Hashmi had not misused the concession of bail in any manner so it could not be withdrawn.

10.The learned Deputy Attorney General vehemently opposed these petitions. He argued that the Quran Act was enacted to ensure error-free publication of the Holy Quran and proper disposal of damaged copies thereof. It had different object and scope and was not applicable to the instant case. He contended that the charge against the Petitioners was founded on documentary evidence which was authenticated by forensic report. All the sections mentioned in the FIR were fully attracted and no exception could be taken thereto. He maintained that the Petitioners had committed a heinous offence and were not entitled to bail.

11.The learned counsel for the Complainant, Mr. Muhammad Shahid Tasawar Rao, Advocate, argued on the same lines as the Law Officer.

Discussion

12.Chapter 2 of Part-II of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), sets out the Principles of Policy and Article 29(1) casts a duty on every organ,

authority and functionary of the State to act in accordance with those Principles and enforce them. Since Pakistan is an Islamic country, Article 31 obligates the State to provide an environment in which the Muslims could order their lives in the way required by their religion. Article 31 ordains:

31.Islamic way of life – (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.

(2)The State shall endeavour, as respects the Muslims of Pakistan,—

(a)to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran;

(b)to promote unity and the observance of the Islamic moral standards; and

(c)to secure the proper organization of zakat, ushr, auqaf and mosques.

13.The Constitution also specifies who is a Muslim to make the things clear. Clause (a) of Article 260(3) states that “Muslim” means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him). Clause (b) of Article 260(3) further clarifies that “non- Muslim” is a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Budhist or Parsi community, a person of the Quadiani group or the Lahori group (who call themselves ‘Ahmedis’ or by any other name), or a Bahai, and a person belonging to any of the Scheduled Castes. These definitions apply to all enactments and other legal instruments unless there is anything repugnant in the subject or context.1

Article 260(3) of the Constitution.

14.The Petitioners are Ahmedis. FIR No.88/2019 accuses them of offences under sections 295-A, 295-B, 295-C, 298-C, 34 & 109 PPC and section 11 of PECA but they claim that is erroneous. According to them, the prosecution could at best invoke section 9 of the Quran Act or section 5 of the Criminal Law Amendment Act, 1932 (XXIII of 1932). Since these offences do not fall within the prohibitory clause of section 497 Cr.P.C., the Petitioners are entitled to bail in terms of the law laid down by the Hon’ble Supreme Court of Pakistan in Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). Let’s first look at this issue.

15.The preamble of the Quran Act states that the object of this statute is to ensure error-free publication of the Book and proper disposal of its damaged and worn out copies. Section 3 provides for registration of publishers and recording companies. Section 4 establishes the Quran Board and charges it with the duty to recommend steps for errorless printing, publication and recording of the Holy Quran and adds that the Rules may prescribe other functions for it. Section 5 is procedural. Section 6 criminalizes literal distortion of the text of the Ayah whether it is in a copy or record of the Holy Quran or any extract published in a text-book, a prayer book, a religious treatise or otherwise. Such distortion may be on account of change of word, or of sequence, or of Ea’rab that alters the meaning of the Ayah. Section 7 criminalizes translation, interpretation and commentary of the Holy Quran (or an extract thereof) by a non- Muslim contrary to the belief of the Muslims. The offences under sections 6 & 8 are punishable under section 9 with imprisonment for a term which may extend to three years, or with fine of not less than twenty thousand rupees, or with both.2 Section 10 stipulates that if the person guilty of an offence under section 9(1) is a company or other body corporate, every director, manager, secretary or other officer thereof would be liable unless he proves that the offence was committed without his knowledge and he exercised due diligence to prevent the same. It takes little effort to appreciate that the application Act XX of 2021 has substituted section 7 and amended section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011, with effect from 30.6.2021.

of the Quran Act is limited to printers and publishers. Even if one still has a doubt one may refer to sub-section (1) of section 9 which sets out the penalties for the offences. It says loud and clear:

Penalty.– (1) A printer, publisher or a proprietor of a recording company who contravenes any provision of this Act or the rules made thereunder, or a person in whose voice a record is prepared, or a person who has certified under sub-section (3) of section 5, a specimen copy of record of the Holy Quran which is not in conformity with the provisions of this Act, shall be punished with imprisonment which may extend to seven years but which shall not be less than three years or with fine which shall not be less than one hundred thousand rupees, or with both.

(emphasis added)

16.According to the Petitioners, the other provision that may be invoked in this case is section 5 of Act XXIII of 1932 which reads as follows:

5.Dissemination of contents of proscribed document.– (1) Whoever publishers, circulates or repeats in public any passage from a newspaper, book or other document copies whereof have been declared to be forfeited to Government under any law for the time being in force, shall be punished with imprisonment for a term which may extend to six months, or with fine, or with both.

(2)No court shall take cognizance of an offence punishable under this section unless the Provincial Government has certified that the passage published, circulated or repeated contains, in the opinion of the Provincial Government, seditious or other matter of the nature referred to in sub-section (1) of section 99A of the Code of Criminal Procedure, 1898 (V of 1898), or sub-section (1) of section 4 of the Press (Emergency Powers) Act, 1931 (XXIII of

17.Act XXIII of 1932 was enacted to supplement the criminal law and to that end to amend the Press (Emergency Powers) Act, 1931 (XXIII of 1931) and to further amend the Criminal Law Amendment Act, 1908 (XIV of 1908).3 A bare reading of section 5, above, evinces that it criminalizes dissemination of contents of proscribed document through any mode. It does not apply to the situation where the accused circulates the newspaper, or other document despite the ban and flouts the government’s order.4 The instant prosecution case falls in this category.

Preamble of Act XXIII of 1932.

The repeated use of the term “passage” in this section fully supports this interpretation.

18.In view of the foregoing, in my opinion, neither section 9 of the Quran Act nor section 5 of Act XXIII of 1932 apply to the present case and the Petitioners’ reference thereto is misconceived.

19.As adumbrated, the Petitioners have also questioned the applicability of sections 295-A, 295-B and 295-C PPC and section 11 of PECA to the cases on hand. However, before examining this objection it is necessary to see what these provisions are about.

Section 295-A PPC

20.Section 295-A PPC criminalizes deliberate and malicious acts intended to outrage religious feelings of any class of people by insulting its religion or religious beliefs. The said insult may be by words, spoken or written, or by visible representations. This section sets a high threshold. It is attracted where the insult, in addition to being deliberate and malicious, is intended to outrage the religious feelings of a community. In The Punjab Religious Book Society, Lahore v. The State [PLD 1960 (W.P.) Lahore 629] a Full Bench of this Court considered the scope of section 295-A PPC and ruled: “The ingredients of section 295-A of the Pakistan Penal Code [would be satisfied] only if it is established that the intention to insult the religious beliefs was deliberate and malicious. When the thing objected to on the ground that it outrages the religious feelings of others is extremely offensive and has no reliable source to justify its acceptance as correct, the Court will presume that it was done with the deliberate and malicious intention of insulting the religious beliefs of the followers of the religion to which or the founder of which the thing relates. The same presumption will be raised when the things objected to indicate that the argument in favour of one religion has sunk to the level of abuse to another. But while pronouncing on the question whether or not the thing which insults the religious belief of someone was said or done with the deliberate and malicious intention of insulting that religion or the religious beliefs of the followers of that religion, the Court has to put itself in the place of a neutral person, that is to say, a person who is neither connected with the religion of the person who is alleged to have outraged the religious feelings of someone nor with that of the person or persons whose religious feelings are stated to have been outraged. The Court has further to consider the thing from the point of view of a person who is not hypersensitive but is a person of normal susceptibilities.”

21.More often than not the accused takes the plea of freedom of speech to defend prosecution under section 295-A PPC. In the matter of the Book “Jesus in Heaven on Earth” and in the

matter of the petition of The Working Muslim Mission and Literary Trust, Lahore, and of the Civil and Military Gazette Limited, Lahore v. The Crown (PLD 1954 Lahore 724) a Full Bench of this Court held that even that freedom has a limit. One must stop where the speech or writing does not further the ends of palaver. This Court said: “The honest preaching of a creed, however, which a man sincerely believes will lead to the salvation of humanity, being an effort worthy of emulation, the injury attendant thereon may be ignored. But a limit must be drawn somewhere, and even a laudable effort knows limits. It is the limit where controversy ends and malice begins, that is to say, where the speech or writing does not further the ends of the controversy and says a thing which could be left unsaid without injuring the controversy, or saying it, not exactly ‘with sweets’, but with a little bitterness as can be brought to the occasion.”

22.In order to further explain the proposition the Full Bench approvingly cited the following excerpt from Starkie’s Law of Libel and Slander (1897):

“The law visits not the honest errors, but the malice of mankind. A willful intention to pervert, insult, and mislead others, by means of licentious and contumelious abuse applied to sacred subjects, or by willful misrepresentations or, artful sophistry, calculated to mislead the ignorant and unwary, is the criterion and test of guilt. A malicious and mischievous intention or what is equivalent to such an intention, in law, as well as morals, a state of apathy and indifference to the interest of society, is the broad boundary between right and wrong.”

Section 295-B PPC

23.This section ordains that “whoever wilfully defiles, damages or desecrates a copy of the Holy Quran or of an extract therefrom or uses it in a derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.” The Petitioners contend that this section refers to a physical act only. In order to appreciate this contention it is necessary to look at the meanings of the three verbs used in this provision.

24.Defile: According to Merriam-Webster Online Dictionary, the term “defile” means “to make unclean or impure: such

as (a) to corrupt the purity or perfection of; (b) to violate the chastity or virginity of; (c) to make physically unclean especially with something unpleasant or contaminating; (d) to violate the sanctity of;

(e)sully, dishonour.” The Chambers English Dictionary describes the said term as: “to make foul or filthy; to pollute or corrupt; and to violate.”5 Black’s Law Dictionary says that “defile” means to “make dirty; to physically soil; to make less pure and good, especially by showing disrespect; to dishonor; to make ceremonially unclean; to desecrate; to morally corrupt (someone); Archaic. To debauch (a person); to deprive (a person) of chastity.”6

25.Damage: According to Merriam-Webster Online Dictionary, the term “damage” means “loss or harm resulting from injury to person, property, or reputation.” The Oxford Advanced Learner’s Dictionary describes the said term as: “(a) physical harm caused to sth which makes it less attractive, useful or valuable; (b) harmful effects on sb/sth: emotional damage resulting from divorce, damage to a person’s reputation.”7 Black’s Law Dictionary says that “damage” means “loss or injury to person or property; esp., physical harm that is done to something or to part of someone’s body <actionable damage resulting from negligence>; by extension, any bad effect on something.”8

26.Desecrate: As per Merriam-Webster Online Dictionary, the term “desecrate” means “(a) to violate the sanctity of, profane; (b) to treat disrespectfully, irreverently or outrageously.”9 The Oxford Advanced Learner’s Dictionary says that “desecrate” means “to damage a holy thing or place or treat it without respect.” Black’s Law Dictionary describes the said term as: “to divest (a thing) of its sacred character; to spoil, defile, or profane (a sacred thing).”10

27.Purposive construction is one of the important ways to give effect to the legislative intent and the courts are increasingly The Chambers English Dictionary, 12th Edition, p. 405.

Black’s Law Dictionary, 11th Edition, p. 534.

Oxford Advanced Learner’s Dictionary, 8th Edition, p. 380.

Black’s Law Dictionary, 11th Edition, p. 488.

Oxford Advanced Learner’s Dictionary, 8th Edition, p. 410.

Black’s Law Dictionary, 11th Edition, p. 560.

applying this principle for interpretation of statutes. In Carter v. Brad Bear, (1975) 3 All ER 158, 161, Lord Diplock said:

“If one looks back to the actual decisions of the House of Lords on question of statutory construction over the last 30 years one cannot fail to be struck by evidence of a trend away from the purely literal towards the purposive construction of statutory provisions.”

28.In Shailesh Dhairyawan v. Mohan Balkrishna Lulla [(2016) 3 SCC 619] the Supreme Court of India elucidated the concept of purposive interpretation as follows:

“The principle of ‘purposive interpretation’ or ‘purposive construction’ is based on the understanding that the court is supposed to attach that meaning to the provisions which serve the ‘purpose’ behind such a provision. The basic approach is to ascertain what is it designed to accomplish. To put it otherwise, by interpretative process the court is supposed to realize the goal that the legal text is designed to realize. As Aharon Barak puts it:

‘Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.’

“Of the aforesaid three components, namely, language, purpose and discretion ‘of the court’, insofar as purposive component is concerned, this is the ratio juris, the purpose at the core of the text. This purpose is the values, goals, interests, policies and aims that the text is designed to actualize. It is the function that the text is designed to fulfil.”

29.In JS Bank Limited, Karachi, and others v. Province of the Punjab through Secretary Food, Lahore, and others (2021 SCMR 1617) the Hon’ble Supreme Court of Pakistan held:

“Moreover, the legal text must be interpreted in the context of its purpose. This Court has consistently ruled that a purposive rather than a literal approach to interpretation is to be adopted while interpreting statutes. An interpretation which advances the purpose of the Act is to be preferred rather than an interpretation which defeats its objects. Reference can be made to the judgments reported as Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh, and 2 others (2018 SCMR 1885) and Rab Nawaz Dhadwanai Advocate and others v. Rana Muhammad Akram Advocate and others (PLD 2014 Lahore 591).”

30.Article 31 of the Constitution has been reproduced above in extenso. Under this Article the State of Pakistan has a bounden duty not only to secure correct and exact printing and publishing of the Holy Quran but also to protect it from distortion through misinterpretation. Therefore, every word used in section 295-B PPC must be interpreted to achieve that object. The term “defile” therein connotes not only physical disrespect to the Holy Quran but also all acts that may seek to pollute it’s meaning or teachings. American Jurisprudence states:

“A strict construction of penal statute does not require the words to be construed so narrowly as to exclude cases that may be said to be fairly covered by them. The words used need to be given their narrowest meaning, or the less extended of two meanings, or their primary meaning, or indeed, any meaning other than their full meaning. Mere verbal nicety, or forced construction, is not to be resorted to in order to exonerate persons plainly within the terms of the statute. Although the statute is penal, courts may disregard captions and even the demands of exact grammatical propriety. In short, although criminal statutes are to be strictly construed in favour of the defendant, the courts are not authorized so to interpret them as to emasculate the statutes.”11

Section 295-C PPC

31.This section criminalizes sacrilege against Holy Prophet Muhammad (peace be upon him) whether it is by words, spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation.

32.The learned counsel for the Petitioners contend that the expression “words, either spoken or written, or by visible representation” used in section 295-A and 295-C PPC indicate that a person can be prosecuted only if he is the speaker, author or originator of the offending material. He cannot be held liable if he is merely a part of the chain of transmission. I am afraid, such an interpretation would be a violence not only to the letter of the statute but also the legislative intent. Religion is a sensitive matter for every class of people almost everywhere in the world. The object of Chapter XV PPC is to keep every community at bay and maintain law and order in American Jurisprudence, Vol. 50, p 435-6.

the society. To hold that a person may transmit any offensive material if he is not the author thereof would be a recipe for disaster.

Section 11 of PECA

33.There is no universal definition of “hate speech”. However, some multilateral treaties such as the International Covenant on Civil and Political Rights (ICCPR) define its contours leaving the States to address the issue through domestic legislation while “balancing rights to freedom of expression with rights to dignity, equality and safety.”12 Pakistan has enacted various laws to curb hate speech. Section 11 of PECA is a part of that regime.

34.Section 11 of the PECA ordains that whosoever prepares or disseminates information, through any information system or device, that advances or is likely to advance interfaith, sectarian or racial hatred, shall be punished with imprisonment or fine or with both. PECA does not define the term “disseminate” so one has to refer to other sources. Meriam-Webster Online Dictionary says that “disseminate” means “(a) to spread abroad as though sowing seed: (b) to disperse throughout.” According to the Black’s Law Dictionary, the word “dissemination” means: “(a) the act of spreading, diffusing, or dispersing; esp., the circulation of defamatory matter; (b) the extension of the influence or establishment of a thing, such as an idea, book, or document.”13 It is pertinent to point out that section 11 of PECA does not lay down any condition regarding number of people. Therefore, the offence would be constituted where the accused transmits objectionable material even to one individual.

35.The question as to whether an administrator can be held criminally liable for the objectionable material posted by the members of the group has been considered in many cases. The preponderance of opinion is that the group administrator provides a platform to select persons and opportunity to share posts. If he does not contribute or is not directly involved in dissemination of objectionable material, he cannot be prosecuted unless there is a specific penal provision Countering Online Hate Speech, (UNESCO), 2015.

Black’s Law Dictionary, 11th Edition, p. 594.

creating vicarious liability or it is proved that there was common intention or pre-arranged plan and the group administrator and the members were acting in concert. In Kishor v. The State of Maharashtra and another, [(2021) 2 AIR Bombay R (Criminal) 574], the Bombay High Court held:

“In the absence of specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group. A group administrator cannot be held vicariously liable for an act of member of the group, who posts objectionable content, unless it is shown that there was common intention or pre-arrange of plan and such member and the WhatsApp group administrator were acting in concert pursuant to such plan. Common intention cannot be established in a case of WhatsApp service user merely acting as a group administrator. When a person creates a WhatsApp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group. We are not examining the issue of liability of an administrator if he is a creator of objectionable content, as it is not arising in the facts of the present case”.

36.At this juncture it is necessary to point out that sections 195 to 199 Cr.P.C. contain special provisions for prosecution of certain offences. Section 196 Cr.P.C. is relevant for our present purpose which enjoins that no court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (except section 127), or punishable under sections 108-A, 153-A, 294-A, 295-A or section 505 of the said Code, unless upon complaint made by order of, or under authority from, the Federal Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments. The law is well settled that section 196 Cr.P.C. does not bar registration of FIR. It only restrains the court from taking cognizance of the offence unless there is a complaint by the Federal or the Provincial Government. In Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others (2006 SCMR 483) the Hon’ble Supreme Court explained:

“Needless to add that the registration of an FIR and taking of cognizance of cases are two distinct and independent concepts under the criminal law ... if the intention of the law-maker was to put any clog on the registration of an FIR then the Legislature would have said so specifically and that if the law put a condition only on the taking of cognizance then it can never be read to imply prohibition on registration of FIRs.”

Further reference may be made to Haq Nawaz and others v. The State and others (2000 SCMR 785); Muhammad Nazir v. Fazal Karim and others (PLD 2012 SC 892); and Ali Gohar and others v. Pervaiz Ahmed and others (PLD 2020 SC 427). Thus, the objection of Ms. Jillani regarding inclusion of section 295-A PPC in FIR No.88/2019 at the time of its registration is repelled.

The cases on hand

37.It is trite that at the bail stage the court should only make a tentative assessment of the evidence collected by the Investigating Agency.14 I would, therefore, avoid a detailed appraisal lest it may prejudice the trial.

38.The Petitioners created a WhatsApp group by the name of Sindh Salamat. Perusal of the screenshots of the conversation between them and other members reflects that its purpose was to provide a platform for propagation of the Quadiani religion. During investigation it was found that Mehmood Hashmi shared Tarjama Quran (written by Mirza Tahir Ahmed) while Shiraz Ahmed shared Quran Shareef ki vo tees Ayat and Khutba Juma in the group. On 9.5.2019 Zaheer Ahmed forwarded Masla Khatum-e-Nabuwat with Mehmood Hashmi. Besides, Zaheer Ahmed sent four books in pdf. form namely, (a) Nisab Waqf-e-Nou, (b) Islami Usool ki Philosophy, (c) Rohani Khazaen key Mutalia ka Chart, and (d) Mahmuds Aameen to Shiraz Ahmed.

39.The Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmedis (Prohibition and Punishment) Ordinance (XX of 1984) introduced some new offences in Chapter XV of the Pakistan Penal Code, 1860, inter alia including sections 298-B and 298-C PPC that prohibit these communities from posing as Muslims and preaching or propagating their religion. In Zaheeruddin and others v. The State and others (1993 SCMR 1718) the Hon’ble Supreme Court has held that the said Ordinance is intra vires the Khalid Javed Gillan v. The State (PLD 1978 SC 256); and Riaz Ahmed and 3 others v. The State (PLD 1994 Lahore 485).

Constitution. In the circumstances, prima facie, the creation of the Sindh Salamat group was illegal.

40.Mehmood Hashmi and Shiraz Ahmed plead that they were mere administrators of the group so they were not liable for any illegal activity in it. I am afraid, the contention is misconceived. As noted earlier, the Petitioners created the Sindh Salamat in furtherance of a common intention. They had a pre-arranged plan and were acting in concert so they are jointly liable. Even otherwise, during investigation it has been found that Mehmood Hashmi and Shiraz Ahmed also shared the verboten content from their Cell Nos. 0300- 9468153 and 0304-8955230 respectively.

41.According to the learned Deputy Attorney General, the Government has proscribed Mirza Tahir Ahmed’s Tarjama Quran and the other books and treatises mentioned above. The Quran Board, in its meeting held on 24.1.2017, also delivered an opinion that they grossly misinterpret the Holy Quran and “defile” it. The evidence available on record prima facie shows that the Petitioners knew fully well that the literature in their hands was offensive in many ways and would incite hatred and disturb communal peace. Interestingly, they repeatedly cautioned each other from carrying prints-outs/hard copies thereof while travelling. Despite all the knowledge they chose to disseminate it.

42.The prosecution has charged the Petitioners with a range of offences. I have discussed the legal provisions in detail and highlighted that every offence has its own ingredients though there may be some overlapping. Keeping in view the evidence available on record, there appears to be little escape from sections 295-B, 295-C and 298-C PPC and section 11 of the PECA read with sections 109/34 PPC. However, section 295-A PPC has a different connotation and further inquiry is required to determine the Petitioner’s guilt to that extent.

43.The instant case falls within the prohibitory clause. Therefore, the Petitioners are not entitled to the concession of bail. All these petitions are dismissed.

(Tariq Saleem Sheikh) Judge Approved for reporting

Judge Naeem