On February 6, 2024, the Supreme Court of Pakistan issued a two-judge decision (which included the chief justice), releasing on bail an applicant who was arrested and charged with “distributing/disseminating a proscribed book” — the Tafseer-e-Sagheer, an Urdu commentary on the Holy Quran attributed to the Ahmadi Muslim minority community. The community is considered heretical by the majority of the Sunni population and has been declared constitutionally non-Muslim in Pakistan. The applicant was charged under section 7 read with section 9 (which specifies the penalty for the crime) of the Punjab Holy Quran (Printing and Recording) Act, 2011:
7. Translation or interpretation of the Holy Quran contrary to belief of Muslims.– Where, in a copy or record of the Holy Quran, or in any extract thereof published in a text book, a prayer book, a religious treatise or any other book, an Ayah is translated, interpreted or commented upon, disseminated, uploaded, shared, produced, reproduced, converted into portable document through any information system or electronic device into cyberspace by any person contrary to the belief of Muslims, the author, the printer or publisher, or the person who prepared the record, downloader, creator, possessor, modifier, disseminator whatsoever, whether or not registered under this Act, shall, unless he proves that such translation, interpretation, commentary, dissemination, uploading, sharing, production, reproduction or conversion occurred only owing to a printing or mechanical error, be liable to punishment provided for in section 9.
Section 9 provides that anyone who violates section 7 is punishable 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 [about US$357], or with both.”
The applicant was also charged under 295-B (defiling of the Quran) and 298-C (Ahmadis preaching and propagating their faith) of the Pakistan Penal Code, 1860.
Judgment of the Court
The court first found that the offense was added to the Law in 2021 in accordance with the Punjab Holy Quran (Printing and Recording) (Amendment) Act, while the charge was brought against the defendant in 2019, thus violating Article 12(1) of the constitution, which protects against retrospective punishment. (Decision ¶¶ 2 & 3.)
The court also removed the sections of the penal code from the charges against the applicant, as “neither the FIR [first information report] nor the police report (challan), submitted after investigation by the police, allege that the petitioner had done any of the acts mentioned therein to constitute these offences.” (¶ 4.)
The court went on the declare that “[c]ourts must exercise extreme caution when dealing with matters of faith.” The court cited several verses of the Holy Quran concerning “the principle of there being no compulsion in religion” and held that “[f]reedom of faith is one of the fundamental tenets of Islam. But sadly, in matters of religion tempers flare up and the Qur’anic mandate is forsaken.” The court also observed that the Quranic principle of no compulsion in religion is “enshrined in the Constitution as a Fundamental Right,” including under Article 20, which protects “the right [of every citizen] to profess, practice and propagate his religion.” (¶¶ 6–9.)
The court also found that if the charge were to be altered to charge the applicant under section 5 of the Criminal Law Amendment Act, 1932, which punishes dissemination of prescribed documents, because the applicant “has already served out the maximum imprisonment of six months prescribed for the offence if he is found to be guilty of having committed it, keeping him incarcerated would violate” his fundamental rights to liberty, a fair trial and due process, and treatment in accordance with the law. (¶¶ 11–15.)
At the end of the judgment, the court concludes that “[w]e regretfully note that in dealing with cases pertaining to offences against religion facts give way to emotions, as seems to have happened in this case too, and individual complainants supplant the State, even though the very nature of these offences is not against an individual or with regard to personal property.” (¶ 16.)
Reaction to the Ruling
According to AFP the ruling went unnoticed for two weeks “before it was highlighted by social media accounts linked to the Tehreek-e-Labbaik Pakistan party.” An online campaign and protests led by religious organizations and political parties were conducted targeting Supreme Court Chief Justice Qazi Faez Isa. On February 22, 2024, the Supreme Court issued a press release stating that to “run a campaign against judges or the judiciary on the pretext of criticism is regrettable and violates the principle of free speech enshrined under Article 19 of the Constitution.” On February 23, it was reported that the Punjab government has challenged the Supreme Court decision in a review petition that, among other things, “contended that Para nine of the judgment regarding Article 20 of the Constitution needs to be modified to the extent that the rights of the citizen as ‘envisaged under the said article were not absolute and subject to the law, morality and public order.’” On February 26, 2024, a three-member bench of the court that is reviewing the original decision issued an order, in which it noted that “parties to the case may take any objection to the order dated 6 February 2024 which is under review.” (Order ¶ 3.) In addition, other applicants who want to join the case to review the decision, including the religious political party Jamaat-e-Islami, “may file their written opinions with regard to the said order to the extent only of the interpretation of Constitution of the Islamic Republic of Pakistan and/or the Injunctions of Islam.” (Order ¶ 3.) The order also includes notices to a number of Islamic institutions in the country, including the Council of Islamic Ideology Pakistan, to provide an opinion on the judgment regarding the “injunctions of Islam.” (Order ¶ 4.) Lastly, the order also apparently allows amicus briefs to be submitted, as it states that “anyone else [who] wants to submit a written opinion for the guidance of this Court … may also do so.” (Order ¶ 4.)
Tariq Ahmad, Law Library of Congress
March 11, 2024
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