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Mirza Mubarak Ahmad Nusrat, an Ahmadi, was arrested in 1989 for distributing Mubahila (Prayer Duel) pamphlets. He was offering his prayer in lock-up when opponent Mulla Ahmad Mian Hamadi visited the Police Station to inquire about the progress of his case. He immediately got infuriated seeing an Ahmadi offering his prayer and lodged a complaint against him. It took 11 years for the courts to pass judgement in this case. The full judgement passed by Judicial Magistrate on 20th May, 2000 is produced here.
Mr. Ardsher Cowasjee, a leading Pakistani columnist wrote a column highlighting this case. His column titled "Fellow-man" appeared in Daily Dawn on August 20, 2000. Excerpt from Mr. Cowasjee's column is produced below. You can find columns of Mr. Cowasjee on Daily Dawn's web site at http://www.dawn.com/weekly/cowas/cowas.htm
Helpless as we are, the least we all can do is to try to see that our fellow-man has enough to eat, enough water to drink, and is allowed to live freely and with dignity.
Fellow-man Mirza Mubarak Ahmad Nusrat : An Ahmadi of Mirpurkhas was arrested in 1989 for allegedly distributing a "Prayer Duel Pamphlet" and was detained in a police lock-up. While he was under detention Mullah Ahmad Mian Hamadi accused him of "offering prayers" and a criminal case (13/88) was registered against him at Tando Adam police station under Section 298 of the PPC. His trial lasted 11 years, his case being heard at various locations - Tando Adam, Sanghar, Hyderabad and Karachi. It was referred to the Sindh High Court on three occasions, and eventually the SHC ordered that the case be transferred to Hyderabad and heard there "at an early date."
On May 20 of this year judicial magistrate of Hyderabad, Fida Hassan Mughal, announced his decision and wrote :
"The point for my determination are as under : 1) Whether on 15/1/89 in between 2.30 to 5 p.m. in the lockup of police station Tando Amad, the above named accused being Qadiani offered prayers like Muslims with Sajdah and Rukoo with face towards Kabatullah Shareef by posing himself as Muslim. 2) What offence, if any, the accused has committed."
He "reached the conclusion that the prosecution has established its case against accused beyond all shadow of doubt." He convicted the accused "for an offence u/s 298 PPC but looking to the circumstances of the case as accused has suffered the agony of protracted trial for more than eleven years and also remained in jail from 8/2/89 to 29/4/89 when he appeared on bail, for the period of about 2 months and 21 days, I therefore sentence him for the period of 2 months and 21 days which he has already suffered as UTP by giving him benefit of section 382.B Cr.P.C. Accused has also to pay fine of Rs.3,000, in default thereof he shall have to suffer S.I. for one month more. The amount of fine is to be paid by accused within one month from today. Accused is present on bail. His surety will remain good till depositing amount of fine by accused. In case of non-payment of amount of fine within one month, the accused will be taken into custody by issuing his NBW and will be sent to jail to serve the period of sentence in default of payment of fine. "During the trial the accused and his advocate, Ali Ahmad Tariq, had to travel thousands of kilometers for their appearances in the various courts. The accused, a meticulous man, claimed that had he kept a proper log it would have shown that by January 2000 the total number of kilometers covered would have amounted to 98,840. Nusrat and his attorney may like to know that this distance is over twice the measurement of the equatorial circumference of Earth (40,076 km), the planet on which they exist.
Should we not all plead guilty for having made this man suffer for so long?
JUDGEMENT OF THE CASE
IN THE COURT OF JUDICIAL MAGISTRATE (I)
Mirza Mubarak Ahmad son of Mirza Abdul Ghani,
Crime No: 13/1989. P.S. T.Adam
Under Section 298, P.P.C.
J U D G E M E N T
The above named accused was sent by S.H.O. Police Station Tando Adam on: 8.2.89 to stand his trial in the above case before the Court of Civil Judge & FCM Tando Adam. The case received to this court by way of Transfer on 24.6.99 for disposal according to law.
The prosecution story in brief is that on 15.1.89 in between 2-30 to 3-00 p.m. in the lockup of Police station Tando Adam, accused being Qadiani offered pray with Sajdah and Rukoo with face toward Kabatullah Shareef by posing himself as muslim and injured the feelings of Muslims, hence this case.
Police papers were supplied to accused vide receipt Ex:1, Formal Charge against accused framed on 26.8.89 by the Learned Civil Judge & FCM Tando Adam at Ex:23, to which accused did not plead guilty and claimed to be tried.
In support of its case prosecution examined PW 1, Complainant Ahmed Mian Hamadi at Ex:3, he produced his original written complaint at Ex:3/A, and copy of FIR at Ex:3/B, PW 2, Haji Wazir Mohd at Ex:4, PW 3, Arbab at Ex:5, and closed its side vide statement Ex:6. Statement of accused U/S 342 Cr.P.C. recorded at Ex:7, in which he claimed innocence however he did not examine himself on Oath U/S 340 (2) Cr.P.C. nor he lead defence.
I have heard Mr. Syed Ali Ahmed Tariq Advocate leaned Counsel for accused. Mr. Abid Hussain Learned P.I for the State with the assistance of Learned Counsel for Complainant and have also gone through the P & Ps.
The point for my determination are as under:-
F I N D I N G S
R E A S O N S
POINT NO: 1.
On this point prosecution examined in all three witnesses namely Complainant Ahmed Mian Hamadi and eye witnesses Haji Wazir Mohd and Arbab. I HAVE CAREFULLY PERSUED THE entire evidence adduced by the prosecution and find that all PWs have supported the prosecution version and corroberated the the testimony of each other. All the above PWs have stated very clearly that on 15-1-89 at 0230 or 03-00 P.M. they went to P.S. Tando Adam is connection with investigation of some crime at the call of SIP Maqsood where they saw accused who is Qadiani by Religion, offering Pray with Sajdah and Rukoo with face to wards Kabatullah Shareef by posing himself as Muslim, and has injured religious feelings of Muslims. There is no major contradiction or material discrepancies in the statement of above PWs. Though all the PWs and specially Complainant were subjected to lengthy Cross examination but defence failed to shake credibility. Mostly the questions put to the complainant were irrelevant and scandalous and such note were made during cross examination of complainant by learned Civil Judge & FCM Tando Adam. He also directed the learned counsel to relevant questions.
The learned counsel for accused argued that FIR was lodged with delay of about one month without any explanation He argued that the allegation against accused is that he offered pray with face toward Kabatullah Shareef, And offering pray is no offence under any section of PPC. He argued that place of incident is lockup of P.S. Tando Adam which is not a public place. He further argued that the complainant has admitted in cross that he is pursuing cases against accused in the Honourable High Court and other Courts which shows that he is in habit of making complaints. He argued that the complainant has further and admitted that according to sahai sitta there is no prohibition to offer pray in Mosque Nabvi as christain were also allowed to pray in Mosque Nabvi. He Further argued that complainant has admitted that it is ajar for him and other Muslims to injured the Religious of Qadiani which show his enmity with accused. He argued that PW Arbab is not an eye witness while P.W. Azam is witness in another case against accused which means that they are interested witnesses. He further argued that everybody can made Sajdah towards Kabatullah Shareef. He argued that PW 2, and 3 both have admitted that they offers prays behind complainant which shows that they are not independent witnesses. He argued that I.O. of the case did not appear in the court in support of prosecution. He argued that complainant used to pressurize accused at Tando Adam so also at Sanghar during trial of this case therefore this was firstly transferred to Tando Adam to Sanghar and then to this court on his application. He produced the copy of transfer order reported in N.L.R. 1990 Page 400.
He further argued that accused never preached nor professed and practice his faith as Muslim, He argued that the article 20 of constitution says that every citizen shall have right to propagate and profess his faith. In the last the learned Defence Council argued that in several cases of same nature Qadiani accused has been acquitted by various Courts of Sindh. He produced copy of judgment of 4th Additional District Judge Karachi South, Honorable Session Judge Sanghar, Third A.D.J. Nawabshah and also relied upon 1995 P. Cr. L.J. Page 755, 1994 P.Cr. L.J. Page 747 and 1993 ROMR page 152 and argued that accused may be acquitted Honorably.
The learned P.I. with the assistance of learned counsel for complainant has argued that all PWs have supported the prosecution, therefore accused may be convicted. They also submitted their written arguments.
I have considered the arguments advanced by both sides and have also gone through the R & Ps and find that the arguments of learned defence counsel that FIR was lodged with delay of one month without an explanation has no force, for the reasons that complainant had made written complaint to SHO on the same day without any delay and as per contents of FIR EX: 3/B, the SHO has submitted such report to SSP Sanghar and after receipt of Order of SSP Sanghar he Registered the FIR on. 6.1.89 which shows that there is no delay on the part of complainant. The arguments of learned Counsel, that as per allegation against accused he has offered pray while offering of pray is no offence Under any section of PPC, this arguments has also got no force for the reasons that allegation against accused is that he has offered pray with face towards Kabatullah Shareef by offering Rukoo & Sajdah like Muslims and being Qadiani he posed himself as Muslim and injured the feeling of Muslims. 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, and when a person of Qadiani or Ahmedi do any act by posing himself as Muslim, then it is an offence U/S 298 C.P.C. The arguments of learned counsel that the place of incident is not a public place has also no offence for the reasons that Section 298 C.P.C. provides punishment for a persons that of Qadiani and Ahmedi group who poses himself as Muslims. There is nothing in this section that if a person of above group posses himself as Muslim at private place then it is no offence. The person of Qadiani and Ahmedi Group if poses himslef as Muslims, irrespective of public or private place then it is an offence U/S 289 C.PP.C. The arguments of learned counsel that PW2, Arbab is not an eye witness and PW Azam is also witness is another case against the accused has also got no force for the reason that PW2, Arbab has denied in cross the suggestion of learned counsel that he had not seen the accused, offering pray. While statement of PW Azam has not been recorded in present case. The arguments of learned counsel that both the witnesses have admitted that they offer pray behind complainant therefore they are interested witnesses has also no force, for the reasons that offering pray behind complainant does not mean that they are interest witnesses. The above witnesses have stated very clearly that they were called at P.S. by SIP Maqsood in connection with investigation of some case where they saw accused offering pray like Muslims. The arguments of Learned Counsel the I.O. did not appear in support of prosecution case is also without force, for the reasons that the complainant had moved an application U/S 540 C.P.C. for calling process server to verify the death of I.O. and the notice of above application was also given to the learned Counsel but at that time he did not challenge the death of I.O. Though application of complainant U/S 540 CR. P.C. was dismissed but not challenging the death of I.O. at that time by learned counsel means that he has admitted that I.O. has been expired. Therefore at this stage he can not take the benefit by saying that I.O. did not appear in support of prosecution Case.
The Learned counsel further argued that Article 2 of Constitution provides every citizen a right to profess and practice his faith therefore offering pray by accused is no offence, as every body can do Sajdah towards Kabatullah Shareef. No doubt the Constitution has provided every citizen to profess and practice according to his faith and religious but it is not case against accused that he was offering pray according to his own faith. The case against accused is that he was offering pray by Sajdah and rukoo with face towards Kabatulah Shareef as Muslims by posing himself as Muslim which is an offence U/S 298 CPPC. It is held in 1993 SCMR Page 1718 (J.J) that Ahmedi's are Non-Muslims according to constitution. Their use of the Shaaire Islam thus amounts to either posing as Muslim, or to deceiving others or to ridicule. Pray is not only Shaaire Islam but is also declared as foundations of religion by Islam. Therefore it is clear that offering prayer like Muslims by accused being Ahmedi means that he has used the Shaaire Islam, which amounts to posing himself as Muslim, The learned Counsel relied upon the Judgment of various courts of A D. Js. And D.J. in Sindh. Thouth the Judgement of above courts are not binding upon this court but then too I have gone through the above Judgments and find that these are totally on different footings. The learned Counsel also relied upon 1995 PCP D.J. Page 755 but this citation too does not attract to the facts of present court as the cited authority is on murder cases while the case in hand is U/S 298 C.P.P.C. The other authorities relied upon by learned counsel are also distinguishable from the facts of present case as all the above authorities are on bail stage while case in hand is at final stage.
The accused in his Statement Recorded U/s. 342 Cr. P.C. at Ex: 7 has not denied offering prayer on the date time and place alleged by the prosecution but his plea in that according to article 20 of constitution every citizen has a right to profess and practice his faith according to tenet of his Religion which cause no annoyance or injury to Religion of other persons therefore allegation against him are totally false. Above statement of accused shows that he has not denied the allegation with which he has been charge. Even he did not state that he had not offer prayer like Muslims. In the light of above discussion I find that prosecution has successfully proved its case against accused through Statement of reliable and Truthfull witnesses and nothing could be brought on record by defence to disbelieve the testimony of above P.Ws Accordingly point No. 1 is answered in affirmative.
POINT NO: 2.
In the light whatever discussed above I reached the conclusion that the prosecution has established its case against accused for a offence U/S 298 PPC but looking to the circumstances of the case as accused has suffered the agony of protracted trial for more than eleven years and also remained in jail from 8.2.89 to 29.4.89 When he appeared on bail, for the period of about 2 months and 21 days, I therefore sentence him for the period of 2 months and 21 days which he has already suffered as UTP by giving him benefit of section 382.B Cr. P.C. Accused has also to pay fine of Rs. 3,000/- in default thereof he shall have to suffer S.I. for One month more. The amount of fine is to be paid by accused within one month from today. Accused is present on bail his surety will remain good till depositing amount of fine by accused. In case of Non Payment of amount of fine within one month, the accused will be taken into custody by issuing his N.B.W. and will be sent to Jail to serve the period of sentence in default of payment of fine.
Announced in open court.
Given under my hand and seal of this court 20th day of May 2000.
(FIDA HUSSAIN MUGHAL)