The Judiciary – 2000

2000

 

The role of judiciary

Whenever a callous and unjust law is brought into force, the role of the Judiciary is automatically brought into play. The Judiciary should always, and it does, as is the universal practice, try to remove or at least reduce its rigor so as to save the citizen from becoming a mauled victim of such a law. But it does not so happen in the Ahmadiyya case in Pakistan. The Criminal Jurisprudence requires a penal law to be very specific so as to put the citizen on guard, and to make him understand in the most unambiguous and certain terms where he stands vis-a-vis  that law. An ambiguous and uncertain penal law is not to be given any weight and is hence to be ignored by the Judiciary.

This basic principle was however not adhered to by the Judiciary for application in Ahmadiyya cases. The mulla took full advantage of the situation, and availing himself of the intentional ambiguity provided in the anti-Ahmadiyya Ordinance, started registeration of criminal cases against Ahmadis all over the country. The courts, instead of applying strictly the said principle of Criminal Jurisprudence and curbing the gross miss-use of the law, allowed the mulla free play in his nefarious practice, through their inaction generally and active guidance occasionally. The case of Mirza Khursheed Ahmad (PLD 1992 Lahore 1) can safely be referred to as a typical example in this regard. The Lahore High Court held in this case that, when an Ahmadi recites Kalima (Islamic creed) and says, “Muhammad-ur-Rasoolullah” (i.e. Muhammad is the Prophet of Allah) he really means at heart ‘Mirza Ghulam’; he thereby commits blasphemy; a case under section 295-C PPC entailing death penalty should therefore under such circumstances be registered against him. Since this decision, applications started pouring in to courts seized with 298-C PPC cases to change them into those of much harsher 295C PPC. The said High Court decision thus opened a floodgate of tyranny. This decision was subsequently reinforced by the Supreme Court decision in 1994 wherein the court observed: “ When an Ahmadi or Ahmadis display in public, or a placard, badge, or a poster, or writes on a wall or ceremonial gate, or bunting the Kalima (Islamic creed) or chant other Shaare Islam (Islamic epithets) it would amount to defiling the name of the Holy Prophet (p.b.u.h.).” The mulla carries this opinion in his pocket and shows it to the police to slam the vicious law on Ahmadi victims.

In 1997, the Parliament passed a new law, the Anti-Terrorism Act. It was ostensibly intended to curb terrorism in the country. In addition to the terrorist acts mentioned in the main body of the Act, a Schedule containing certain additional offences was annexed thereto. A power was given therein to the Government to make amendments to the Schedule as and when a need therefore was felt. The offences of 298-A (later deleted) and 295-A PPC were included in it. The Mulla, feeling that it was much easier, quicker and surer to get an Ahmadi convicted by Anti-terrorism court, started making applications for the transfer of such cases to these courts that are always willing to get these cases before them. An example in this respect can be quoted of the case of Ghulam Mustafa, Ahmadi against whom a case under section 295-A PPC was fabricated and registered. All that he had done was to explain Ahmadiyya position to an acquaintance who raised no objection to this conversation. It was in his post-arrest bail application that the session’s court of Dera Ghazi Khan made an observation that a case under section 295-C could have been made out. Feeling encouraged by this observation, the complainant made an application to the Anti-terrorism Court D.G. Khan for the transfer of the case to it. The court was readily receptive. It not only transferred the case to itself but it convicted and sentenced the accused to  rigorous imprisonment of thirteen years within only a fortnight of the receipt of the case.

This general trend has continued for the last sixteen years with occasional whiffs of fresh air from a few judicious and courageous officials of the world of judiciary. On the whole, the judiciary has acted in league with the establishment to suppress the Ahmadiyya community beyond the call of the statute book. The Year 2000 had its due share of this reprehensible contribution from the courts, the law officers and the bar. Some examples are cited below.

 

1.         In January 2000 Mahmood Ahmad Cheema, Civil Judge awarded two years’ imprisonment sentence to Mr Ataulla Waraich, Ahmadi of Chak 11/F.W. district Bahawalnagar under the anti-Ahmadiyya section PPC 298B for building a niche and minaret in an Ahmadiyya Mosque.

Mr Warraich is the president of the local Ahmadiyya Community. Case No. 302 was registered against him on September 8, 1999 under 298B at police station Chishtian Sadr for building a minaret and niche in an Ahmadiyya house of worship. The accuser was none other than a magistrate, namely Beqa Mohammad of Chishtian. It is noteworthy that the law 298B does not forbid Ahmadis to build minarets and niche in their places of worship.

Subsequent to Mr Warraich’s arrest, his plea for bail was rejected by the Judicial Magistrate, the Session Judge and Justice Nazir Akhtar of Lahore High Court. The latter, while rejecting the accused’s plea for bail, went out of his way to observe and direct:

The present case does not involve commission of an ordinary penal offence against one or more individuals but is an exceptional case involving commission of an offense against the society as a whole which may have national as well as international repercussion………I feel that the interests of justice would be adequately met if the trial court is directed to conclude the trial within a period of three months…… (and to) conduct proceedings on day to day basis.

Judge Nazir Akhtar is known for his declared opinion that there is no need of any law to punish a man who is guilty of defiling the name of the Holy Prophet, and anyone who commits blasphemy against the Prophet can be dispatched to hell (the daily Jang, Lahore of September 5, 1999). In the recent reshuffle, this judge was also invited to take oath under the PCO, which he did.

The Civil Judge was very mindful of the directions received from above and concluded the case within the prescribed period.

It is relevant to mention that the first mosque initially built by the Holy Prophet of Islam had no minaret nor a niche. Dr Omar Khalid, a well known Muslim scholar and a specialist in mosque architecture stated at a seminar in Lahore: “ Even if no minaret or niche is provided in a mosque, it makes no difference, as the real purpose of a mosque is to offer prayers. The Prophet’s Mosque initially had no minaret nor a niche; these were added later during the reign of Uthman, (The Daily Nawai Waqt, Lahore: January 24, 2000).

 

2.         In September 1997, Mulla Hamadi of Tando Adam, who is on government pay roll, approached a court to try the Supreme Head of the Ahmadiyya Community and Mr Kunwar Idrees, an ex provincial minister and Chief Secretary Sind, for blasphemy. The mulla based his case on an interview given by the ex-minister to the Daily Jang in which the latter presented a letter from the Supreme Head who quoted from the Holy Quran. According to the mulla, this injured the feelings of Muslims. The judge gave the verdict that there was a prima facie case that calls for a trial (under the law that prescribes death punishment).  Mr. Idrees obtained a Bail Order and got the case transferred to Karachi for hearing.

It may seem unbelievable but nevertheless it is true, that the federal authorities approached the provincial government to ask the Sind High Court to expedite trial proceedings. The Chief Justice accordingly instructed the trial court to complete the hearings within 3 months, and render a fortnightly progress report.

The defense applied to the court under Section 265 K that the case is not fit for hearing. The court rejected this plea.

 

3.         Mr Mirza Mubarak Ahmad Nusrat, an Ahmadi of Mirpur Khas (Sind) was arrested in 1989 for alleged distribution of a Prayer Duel pamphlet and was detained in a police lock-up. While under detention, Mulla Ahmad Mian Hamadi, accused him of offering prayers behind bars, and another criminal case No. 13/1989 was registered against him at Police Station Tando Adam under Section 298 PPC.

The accused faced prosecution during the last 11 years. His case was heard at various locations: Tando Adam, Sanghar, Hyderabad and Karachi. It was referred to the Sind High Court on three occasions. Eventually, the High Court ordered that the case be transferred to Hyderabad and decided early. Mr Fida Hussain Mughal, Judicial Magistrate (1) Hyderabad Sind heard the case and announced his decision on May 20, 2000. He declared that, “the prosecution has established its case against the accused beyond all shadow of doubt”. Convicting the accused of the charge of offering prayers in the Muslim way, he sentenced him to imprisonment for 2 months 21 days which were to be considered as already served for remaining in jail for the same period in 1989 prior to his release on bail. The accused was ordered to also pay a fine of Rs 3000, in default thereof he shall have to suffer imprisonment for one month more.

A few observations mentioned in the judgment are particularly significant and noteworthy. They deserve a mention and a comment.

  1. The Magistrate found that the “accused, being Qadiani offered pray like Muslims with Sajdah (prostration) and Rukoo (bent forward) with face towards kabatullah Shareef (in Mecca), by posing himself as Muslim”. He writes: “No doubt offering pray by any person as per his own faith is no offence but when hurt has been caused the feelings of other persons then it becomes an offence,… (stet.)”. Having said that he found the accused ‘Guilty’, although he offered prayers as per his own faith. It appears that the only yardstick the magistrate had was the simple ‘statement’ of a Mulla that his feelings were hurt.
  2. Some unsympathetic authorities question Ahmadis’ right to practice their faith in public just like other denominations. Why don’t you do it in private – they ask. Well, the magistrate would not permit even that. He wrote: “There is nothing in this section (of law) that if a person of above group (Ahmadi) poses himself as muslim at private place then it is no offence. The person of Qadiani and Ahmadi Group if poses himself as muslims, irrespective of public or private place, then it is an offence U/S 298C PPC”.
  3. The magistrate went on to remark: “Their (Ahmadis’) use of Shaaire (practice) Islam thus amounts to either posing as Muslim, or to deceiving others or to ridicule”. Well, here is a bowl that is hotter than the soup. The magistrate would not allow Ahmadis to worship like a Muslim. Mullas are not the sole proprietors of obscurantism, prejudice and irrationality.

It is also noteworthy that this trial went on for over 11 years. The accused and his attorney, Mr Ali Ahmad Tariq, Advocate traveled tens of thousands of kilometers to make court appearances. Mr Nusrat, the accused kept meticulous records, and he claimed in January 2000 that by then he had traveled 98,840 kilometers to appear in various courts in this trial. The prime prosecution witness died early during the trial. Another witness admitted in the court that he decided to appear as a witness at the urging of Mulla Hamadi, and perhaps for that reason he had lost his eyesight without any disease or any other apparent reason. The decision in this case is very significant for the reason that it forbids Ahmadis to worship and declares it a crime in Pakistan. It is also expressive of the dangerous influence of mullas on the establishment.

 

The Judiciary takes the role of mullas

The Judiciary takes the role of mullas

4.   Justice Nazir Akhtar of Lahore High Court is not alone in giving free vent to his prejudice against Ahmadis. Justice Iftikhar Ahmad Cheema of Rawalpindi Bench of the same Court, while hearing a case, addressed the following remarks to an Ahmadi: “According to the Constitution of Pakistan and the Truth in Islam, Qadianis are outside the pale of Islam. No doubt, Qadianis consider us ‘infidels’ in their hearts, but we call them ‘infidels’ openly. Our Constitution also does the same; and as a Judge, I cannot compromise in view of my belief”. The Daily Khabrain; November 29, 2000.

Well, here is another judge, who goes by his religious beliefs in giving legal decisions – and says so.

5.         A  magistrate at Qasur awarded imprisonment terms of one year each to three Ahmadis in two religious cases and also fined them Rs. 5000 each, on 11 October, 2000.

The first case had been going on since 1987 against Sh. Muhammad Yusuf. He was accused of displaying Quranic verses at his shop and the Kalima (Islamic Creed) at his door.

Messers Mohammad Hussain and Muhammad Sadiq, father and son, were co-accused in the second case. They were accused of displaying the Kalima (Islamic creed) on their house.

6.         Approximately two years ago, Dr Saeed of Jaranwala, district Faisalabad was charged for preaching. Later, it was a magistrate who took the initiative to apply the Blasphemy section PPC 295C to the case. It was a vindictive and baseless action; no Ahmadi is ever blasphemous against Prophet Muhammad whom Ahmadis consider their own Prophet.

Additional Session Judge, Jaranwala heard the case. The defense took the plea that PPC 295C was not applicable in this case. On April 12, the judge rejected the plea.

If the government and judiciary does not mind following up such absurd cases in courts, it should not complain of the unmanageable burden of court cases and shortage of judges. It should blame only itself.

 

Bails denied

The impact and tyranny caused by the Anti-Ahmadiyya and religious laws can be toned down considerably by releasing the victims on bail during the period of judicial process. This relief is denied often to Ahmadis by magistrates and trial courts. In numerous instances the victims have to approach the High Courts for bail. Occasionally when judges of the high courts also reject their appeal, the accused have to go to the Supreme Court for relief. It is not rare that justice is delayed even at the apex court. In the case of the ‘Mianwali Four’, the victims of the Blasphemy Law had to wait for four years and one month in prison before a bench of the Supreme Court eventually decided to release them on bail. In the trial that followed, the judge found them Not Guilty. Some of the Ahmadis who were denied the relief of Bail during the Year 2000 are mentioned below. It need not be repeated that majority of the criminal accusations were false and fabricated.

  1. Dr. Abdul Ghani and Mr. Munir Ahmad charged under 295A and arrested in September 1999 were denied bail even by the Supreme Court. Dr. Ghani was found Not Guilty in November 2000 and released after 1 year and two months in prison for nothing.

Mr. Munir Ahmad is still in prison. He is 70 years old.

  1. Civil Judge, Kamran Basharat refused to grant bail on 18 October to Mr Asad Zahur, Ahmadi, who had been charged under PPC 298B and 298C for addressing the Head of the Ahmadiyya Community as Ameerul Momineen i.e. the Leader of the faithful. The accuser remained behind bars to face the trial that may go on for years.
  2. Additional Session Judge Bhalwal refused, on October 31, to confirm the Bail of Messers Manzur Qadir Khan and Muhammad Idrees, Ahmadis, who had been accused of preaching. The former is the president of the local Ahmadiyya Community while the letter is the religious teacher. The police arrested the two Ahmadis.
  3. Mr. Munir Ahmad of District Faisalabad was charged under PPC 295B in a fabricated and false case on 20 September 2000. He is a school teacher. The Session Court has rejected his plea for release on bail. He remains in prison.
  4. Mr Abdus Sami and two others were charged under the anti-Ahmadiyya Law PPC 298C on 29 August 2000. They were arrested. Their plea for bail was rejected by the magistrate and later by the Sessions Court. They were kept in the prison at Multan.
  5. Mr Asad Zahur was targeted under the notorious Ordinance, sections 298 and 298C. They arrested him in September. His plea for bail was rejected by the magistrate, and subsequently by the Additional Session Judge Sialkot on November 4, 2000. He is behind bars at Sialkot prison.
  6. Three Ahmadis namely Messers Zafar Iqbal, Saleem Ahmad and Mubashir Ahmad of L Plot, District Okara were booked in June under PPC 324 and 34. They had been granted temporary bail. When they approached the magistrate for confirmation of the bail, he confirmed that of Mr Mubashir Ahmad, but refused to confirm those of the other two. These were arrested by the police and sent to a lock-up.
  7. The plea of Bail of four Ahmadis of village Bhauru who are behind bars for the last six months after the incident in which Mr Abdul Latif, an Ahmadi was murdered, was rejected by the Session Judge Sheikhupura on November 28.
  8. The Anti-terrorism Court rejected the Bail plea of 5 Ahmadis of Takht Hazara who are the complainants and witnesses in the case in which 5 Ahmadis were murdered by rioters.

 

A Mulla in the garb of a judge

Judge Nazir Akhatr of Lahore High Court can be credited with openness if nothing else. He is frankly immodest and unblushing about his obscurantist opinions and views. He finds the rule, “a judge gives his opinion only through his judgments” too restrictive, so he continues to give vent lewdly to his spiteful and vulgar ideas in public. Three recent specimens from the national press:

‘The Ghazi Ilm Din Shaheed law is available to respond to any blasphemy against the Prophet’, Justice Nazir Akhtar

The Daily Khabrain, Lahore: 28 August 2000

(Note: Ilm Din was a Muslim who in pre-partition days murdered a Hindu who committed blasphemy against the Holy Prophet. Judge Akhtar raises Ilm Din’s act of murder to the status of Law itself.)

‘Unity of the Muslim Umma is essential to safeguard the doctrine of Khatme Nabuwwat. Ghazi Ilm Din law is available to deal with apostates’. Justice Nazir Akhtar

The Daily Insaf : 28 August 2000

(Note: The judge, thus has openly instigated and urged the common Muslim to murder Ahmadis)

‘We shall slit every tongue that is guilty of insolence against the Holy Prphet’. Justice Mian Nazir

The Daily Din; 28 August 2000

Justice Nazir Akhtar is perhaps the only judge of a high court, in the whole world, who openly promotes terrorism on religious grounds. According to a press report, he has recently moved up in the ladder to become the senior most judge at Lahore High Court, after the Chief Justice.

 

Quick disposal of criminal cases

On September 9, Mr Ashiq Jaura, the Judicial Magistrate Chiniot was due to hear 40 cases involving Ahmadis from Rabwah (Chenabnagar). At the court appearance, the magistrate stated that he had received orders from the District and Session Judge that all cases that were registered prior to 1990 must be immediately decided. “Hence I would hold the hearings on daily basis”, he said.

A few days afterwards, the pres splashed the following news:

The High Court orders all cases against Qadianis to be decided by a given date.

The Civil Court, Chiniot has been ordered to announce decisions by 15 October.

48 cases were registered against Qadianis prior to 1990. A number of accused are abroad.

The Daily Ausaf; September 13, 2000.

Orders issued to decide cases of Chenab Nagar Qadianis by October 15.

The Daily Jang: September 12, 2000.

The news were correct. The magistrate subsequently held the hearings almost daily. The 48 cases, that have been going on for more than 10 years are going to be decided within a few weeks. The magistrate could not meet his target date of October 15. But he is trying his best for speedy trials that are still going on.

 

All is not necessarily well that ends well

A good news arrived from Mianwali in September 2000. Judge Khadim Hussain gave his decision in the famous Blasphemy Case of the Mianwali Four. He declared them Not Guilty. In order to avoid any untoward incident in the courts’ premises at the time of announcement of the decision, a unit of the Elite Force was at hand to deter the mullas who were lurking around. Men of the Punjab Police were also standing by in the courtroom, with handcuffs available, in case the judge gave the verdict of ‘guilty’. The accused, who were fending for their lives, heaved a sigh of relief when they heard the decision. A short resume of this important case would be in order at this occasion – many of the features of this case are typical.

A case was registered against four Ahmadis, namely, Messers Riaz Ahmad, Basharat Ahmad, Qamar Ahmad and Mushtaq Ahmad of Chak No.15/D, Mianwali on 21 November 1993, under Section 295C i.e. the Blasphemy Law, and they were arrested. However, there was a noteworthy background to this case.

There had been a dispute between the main accused, Mr. Riaz Ahmad, Ahmadi and the plaintiff, Muhammad Abdullah over the post of Numberdar (village chief). Mr. Riaz Ahmad had been Numberdar of the village for a long time; the plaintiff applied to authorities to have him removed from this post because Riaz was an Ahmadi. The Deputy Commissioner gave the verdict against Mr. Riaz. However, on appeal, the Commissioner gave the ruling that there is no prohibition in law for an Ahmadi to be Numberdar. Under these circumstances, the plaintiff contrived an easier and more effective plan to deal with his rival, in that he got registered a concocted case of Blasphemy against Mr. Riaz Ahmad and his relatives. Thus the four were arrested the same day and placed in Mianwali jail.

An application for their release on bail was filed in the court of Additional Session Judge, Mianwali. On December 7, 1993, the date of hearing, the plaintiff with the help of Mulla Akram Toofani and his gang created a noisy situation outside the court. The case was sent up to the court of Session Judge. The hearing there was postponed a number of times. On 3 January 1994 the date of hearing, mullas gathered in a large number at the court premises. The Sessions Court rejected the bail applications of the accused.

The bail application was then moved in Lahore High Court. After hearing, the judge decided to send this case to the Chief Justice and requested that a larger Bench of judges should be constituted to give their comment on some pertinent questions arising from the Blasphemy Law. The Bench heard the case in April 1994. The judges upheld and defended the Blasphemy Law. This law was defended on various grounds including, “If the provisions of Section 295-C were repealed or declared to be ultra vires of the Constitution, the time old method of doing away with the culprits at the spot would stand revived”. (“The Nation” and “The News International” of April 27, 1994)

Subsequently the bail application was heard afresh by Justice Nazir Akhtar on 25 May. Assistant Advocate General Mr. Nazir Ghazi, representing the State, vehemently opposed the grant of bail to the accused. He argued that if an insult were uttered about the Holy Prophet, Muhammad, we would not look into the intentions behind such an utterance. Thus according to this ranking officer of the law, the complainant’s opinion on insult could not be questioned by the defense and the latter’s intentions or explanation were not relevant. The Judge then rejected the bail application. The accused stayed on in prison.

Bail application was then moved in the Supreme Court of Pakistan on 20 July 1994. The defense took the plea that the accusation was a false one. The Chief Justice ordered that the petition be heard by a larger Bench of the court.

For more than 1-1/2 years, the Supreme Court was not able to give a date for hearing the case. The accused stayed on in prison for over four years awaiting release on bail. Mother of two of the accused died during their stay in prison. The appalling conditions of Pakistani jails are well known. As the breadwinners were in prison, their families faced acute financial problems. Their situation remained distressing and pathetic. Eventually they were released on bail in December 1997.

Subsequently the case dragged on for more than two and half years. Fearful of their lives, two of the accused, Basharat Ahmad and Qamar Ahmad left the country and took refuge in a foreign land. Mr Riaz Ahmad and Mushtaq Ahmad had to flee from their village. They became refugees in their own country. They could not till their lands to make a living and became dependants along with their families. Four years of imprisonment and seven years of their criminal trial has left them exhausted and feeling old before their time. Although they have been finally declared Not Guilty, who and how one is to account for the mutilation of 7 prime years of their lives? It has been a painful experience not only for them and their families but also for the entire Ahmadiyya Community who shared their plight of unjust detention and trial. Only Allah can mitigate their sorrows and rehabilitate them physically and emotionally. In the presence of the black Blasphemy Law, they remain vulnerable. Someone has to only write a fabricated complaint of blasphemy on a piece of paper and arrange two false witnesses of which there is no shortage around, and the victims could again be in courts and prison for years.

God has His own ways of retribution. The accuser and his accomplices were not present in the court at the time of announcement of the decision. The judge asked as to their whereabouts, to which the prosecutor replied that they were locked up at the time in a prison on a charge of murder.

 

The judge’s decision and remarks

Mr. Mian Khadim Hussain, the Judge acquitted the Mianwali accused of the charge on September 9, 2000 in the dire circumstances described above. Some extracts from his Judgment of this historic case are interesting:

“26. In the light of the above discussion, this court has come to the conclusion that firstly this is case of no evidence, secondly that the complainant party have made the sentiment of the Muslims as tool for the worldly benefit and aim and also used the name of Hazrat Muhammad (Peace Be Upon Him) for this purpose. The evidence of the prosecution is based on previous enmity, litigation and interested and false witnesses are produced to prove this case of punishment of death which has also created doubts and the prosecution has also failed to prove the case beyond any shadow of doubt rather they have falsely implicated the accused present persons in the present case.

27. The accused while recording their statement u/s 342 Cr. P.C. has clearly mentioned that Mirza Ghulam Ahmad was a servant of Rasool-e-Pak (the Holy Prophet of Islam) which has impressed this court positively to believe that in fact the accused have been involved by the complainant party for their worldly aim and they choosed section 295C PPC for this purpose, but failed to prove the same.”

In this case, the role of the police, the deputy commissioner, some officers of the lower judiciary and the Law Department, some judges of the High Court and the Supreme Court was not laudable – to say the least. It is doubtful if the souls of the authors of the Blasphemy Law, General Zia and Prime Minister Junejo are going to rest in peace either. It is hoped that someday someone will find time to write a book on this case and expose all that is evil and disgraceful in the official and clerical world in present day Pakistan. Hats off, however, to judges like Mian Khadim Hussain who have the courage to be just and who dare speak the truth. May they prosper in life here and Hereafter.

 

The bar acts timid

There is no shortage of advocates and lawyers in Pakistan. Normally, many of them are found waiting in their offices for clients. In the wake of Takht Hazara incident and the recent police action against Ahmadis there, the accused approached a few criminal law lawyers at Sargodha to defend them in the court. They all expressed their inability to take up Ahmadis’ defense. Apparently, they do not have any professional objection; they are only afraid of incurring mullas’ displeasure.

 

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