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.
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 “nonMuslim” 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.
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 nonMuslim 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. 2Section 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 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.
Section 295-A PPC
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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.
Section 295-B PPC.
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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.
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.”
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.”
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.” 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.”
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.” 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).”
Purposive construction is one of the important ways to give effect to the legislative intent and the courts are increasingly
applying this principle for interpretation of statutes.
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.
Section 295-C PPC
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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.
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 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
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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.” Pakistan has enacted various laws to curb hate speech. Section 11 of PECA is a part of that regime.
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.”
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.
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 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.
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.
Crl. Misc. No.27057/B/2021 Zaheer Ahmed Vs The State etc.
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