By: Shakeel Anjum
ISLAMABAD: The police have held prayer leader of Mera Jafar Khalid Jadoon Chishti liable to criminal conspiracy in the case of a Christian girl, Rimsha Masih, who was arrested on his complaint about alleged burning of a holy scripture, by adding Section 120-B of the Pakistan Penal Code (PPC) to Section 295-B, the police sources told The News.
The complainant in the case, Malik Amaad, who disappeared from the scene, had also been found guilty of the abetment and had been booked under Section 120-B of PPC, the sources said, adding that the police were making efforts to arrest him.
Rizwan Abbasi, a high court lawyer, when contacted by this scribe for legal opinion in the case said the case could be discharged by the court of law under Section 249 of the Criminal Procedure Code (CrPC) at any stage if the complainant did not appear before the court to record his statement.
Abbasi said that Khalid Jadoon Chishti’s case was on much more higher pedestal, as both ingredients — mens-rea and actus reus — are present in his case. Moreover, he pointed out that the cleric had learnt the Quran by heart and was adult, well educated in religious subject and well-versed with knowledge about Islam and sanctity of Holy Quran but despite these facts he wilfully damaged pages of Holy Quran and the police had evidence in the shape of eyewitnesses, who stated before the court and police that they witnessed the cleric ripping off pages of Holy Quran, which clearly made him liable to the offence under Section 295-B of PPC.
When he intended to fabricate evidence to involve some other person, Abbasi said, it aggravated the situation and he was liable under Section 194 of PPC, which says: “Whoever gives or fabricates false evidence, intending thereby to cause, are knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital punishment by any law for the time being in force shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and shall also liable to fine.”
The legal expert said the basic principle of Islamic jurisprudence was intention as deeds depended on intention. Similarly, he said, the basic canon of criminal jurisprudence was ‘mens-rea’ (intention) but mens-rea alone was not sufficient to fix criminal liability until and unless it was followed by ‘actus reus’ (action/behaviours). He said that mens-rea and actus reus constituted some offence but in the absence of any of the ingredients, there was no offense.
Section 295-B says: “Whoever wilfully defiles, damages or desecrates copy of Holy Quran or extracts there from or uses it in any derogatory manor or for any unlawful purpose shall be punishable with the imprisonment for life.”
So the word ‘wilfully’ was mens-rea and rest was actus reus in this case, the legal expert said, adding that in the present case there were lot of gray corners. As far as the culpability of juvenile accused was concerned, he said: “Is there an iota of evidence against the juvenile accused that she has committed an offence ‘wilfully’? If no evidence is available about mens-rea on part of the juvenile accused, she is liable to be discharged from criminal liability forthwith.”
The police, however, denied of having any evidence to prove that Rimsha committed the offence wilfully.
In these circumstances, when the police had not any witness who watched Rimsha while burning pages inscribed with holy scripture, actus reus was also absent in this case because there was no eyewitness who deposed before the police that he had seen the juvenile accused defiling, damaging or desecrating the holy scripture and one could not be charged with such a heinous crime on the strength of extrajudicial confession of the accused before the complainant, the legal expert argued.
On the contrary, Abbasi said, this extrajudicial confession of Rimsha was liable to be resolved in her favour because of her immaturity, illiteracy and being mentally retarded while she was underage and belonged to Christianity were mitigating factors and the question whether she was aware of her act that she would not have mentioned it before the inimical complainant. Abbasi averred that both her arrest and continuous detention were illegal.
The police, in the present scenario, should prepare to discharge the report against Rimsha, the legal expert opined. At the same time, he added, the court might take suo moto notice of the detention of the female juvenile accused in prison.