مذہب سے متعلقہ مقدمات کی تفتیش کے بارے سپریم کورٹ کی ہدایات

 Supreme Court ordered that copy of this order be sent to the Prosecution Department of all the four provinces and of the Islamabad Capital Territory for information and compliance to ensure that the investigation of offences relating to religion, under Chapter XV of the Pakistan Penal Code, are conducted in accordance with the law and Constitution of the Islamic Republic of Pakistan as highlighted and explained herein.

Unfortunately, such cases receive wide publicity which has an adverse effect and may also jeopardize a fair trial. Irresponsible and sensational broadcasts and publications repeat what allegedly the accused had said or done; those repeating this may themselves be committing the same offence. Offences relating to religion are very serious offences and a section 295-C offence prescribes only the punishment of death. Therefore, utmost care must be exercised by all concerned that no injustice in the administration of justice takes place. Courts have taken notice of the fact that many a time false allegations are leveled to settle personal scores and cases are also registered for mischievous purposes or on account of ulterior motives.

Corroboration means support or confirmation and corroborative evidence is some evidence other than the one it confirms.13 Corroboration minimizes errors in judicial proceedings and is dictated by prudence. The object of corroboration is to ensure the conviction of the guilty and to prevent that of innocents. However, corroboratory evidence does not convert an unreliable witness, or evidence, into a reliable one. In this case there is only the testimony of the four friends against the petitioners. We should bear in mind the seriousness of the offences and that in respect of a section 295-C offence the only prescribed punishment is death. Therefore, prudence requires that their statements, which at this stage appear improbable, be corroborated by other evidence, which could be circumstantial, documentary and/or scientific. Islamic jurisprudence also considers the necessity of corroboration in certain cases.

An accused person’s Fundamental Right to a fair trial and due process must also be ensured, and all the more so in cases for which severe punishments are prescribed. There have been instances when tempers were provoked and enflamed by provocateurs, and a mob was collected and enraged to take the law into its own hands, to hurt and even kill the accused, before he was ever adjudged guilty. The law prohibits the taking of the law into one’s hands, let alone to cause hurt or death, and this protection is also fully applicable to one who may be guilty. In Islamic jurisprudence even if a person has been found guilty and sentenced to death, the sentence cannot be executed by one who is not so authorized, and if he kills the convict, he is liable for the offence of iftiyat (wasting the right of the State) and is to be punished

Islamic jurisprudence considers offences relating to religion to be offences against God; they pertain to the rights of God in the terminology of Islamic jurists who categorize these offences as hadd offences. To establish the guilt of an accused in a hadd offence, as per Islamic jurisprudence, requires the highest, or best, form of evidence, and any doubt exonerates the accused.

A well-known authentic hadith narrated by several companions of the Prophet (peace and blessings be upon him) states:

‘Avoid punishments in case of doubt.’ The Second Rightly-Guided Caliph, Umar ibn al-Khattab (Allah be pleased with him), reiterated this principle in the following words:

‘Avoid punishments as far as you can.’21 This Court in a case under section 295-C PPC recognized this principle by stating that ‘It will not be out of place to mention here that this [benefit of doubt] rule occupies a pivotal place in Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h.) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”.’

Wael B. Hallaq (1955-), Professor in Islamic Law at the Institute of Islamic Studies of McGill University, aptly observes: ‘

The severe sanctions applied to hudud offences were intended to deter (zajr) and were thus infrequently implemented in practice. … Their commission, when not punished in this world, landed the offender in eternal Hellfire, an eschatological notion that tended to engender moral compliance on a deep psychological level. The extreme economy with which hudud were invoked was motivated by the maxim, generated from a Prophetic hadith, that they had to be “averted at the existence of the slightest doubt”.’

Abiding by Islamic jurisprudential principles, applying the constitutionally guaranteed right to fair trial and due process, and acting prudently to ensure that an innocent is not convicted wrongly in respect of offences relating to religion, when there is only the improbable oral testimony of witnesses, then there must be corroboration. Oftentimes righteous zeal, moral outrage, and/or indignation also steers the prosecution to a pre-determined destination by eclipsing the general standard of proof in criminal cases; that is, beyond reasonable doubt.

Criminal Petition No. 883-L of 2022
Salamat Mansha Masih. Vs The State and another.
23-08-2022