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Blasphemy law revisited
By I.A. Rehman
Thursday, 29 Jul, 2010
Is it not time for the learned ulema to re-examine their thesis that the blasphemy law can stop private citizens from killing suspects? — File Photo
The recent killing of two blasphemy accused in police custody and the case of a mentally unstable woman who spent 14 years in confinement on a charge she could not understand have underscored the need to revisit the blasphemy law.
For reasons of space only a few issues will be addressed in this article. The first question is: has Section 295-C of the Pakistan Penal Code (PPC) achieved the declared objective of preventing vigilante justice? This because one of the main arguments in support of the blasphemy law was that it would prevent private citizens from killing blasphemy suspects.
In a preface to Namoos-i-Risalat, an account of the making of 295-C by Advocate Ismail Qureshi, Al Faisal Publishers, Lahore, 1994, former Supreme Court judge and former president Rafiq Tarar declared: “If this law is not there the doors to courts will be closed on the culprits and the petitioners provoked by them, and then everyone will take the law in his own hands and exact revenge from the criminals. As a result anarchy will prevail in the country.”
In 1994, the Lahore High Court declared that if Section 295-C of the PPC were struck down the old system of killing a culprit on the spot could be revived. Can the claim that Section 295-C prevents non-state violence against blasphemers and suspects survive an empirical study? No one has ever been executed for blasphemy under court orders. On the other hand there is a long list of suspects/accused/convicts killed precisely in the manner 295-C was supposed to prevent.
Naemat Ahmar of Faisalabad was killed by a student. Tahir Iqbal died in mysterious circumstances in prison. Manzur Masih was gunned down outside the Lahore High Court. Buntu Masih was fatally wounded while in police custody. Sajjad Farooq, a hafiz-i-Quran, was killed by a mob in Gujranwala. Mohammad Yusuf, a former member of Zia’s Majlis-i-Shura, was killed in prison. Zahid, accused of desecrating the Quran was killed by a police constable. Mushtaq Zafar and Sanaullah, two blasphemy accused on bail, were shot dead. Samuel Masih, charged under 295-A, was attacked and fatally wounded in a TB clinic. Ashiq Nabi was shot dead in Nowshera because his wife alleged that he had desecrated the Holy Quran. Jagdish was lynched in a Karachi factory and a computer operator of Gujrat was killed by a policeman. And Anees Mallah was killed in a Sindh prison because he had rammed his motorbike into the gate of a pandal set up for a quasi-religious meeting.
Is it not time for the learned ulema to re-examine their thesis that the blasphemy law can stop private citizens from killing suspects? Surely they do not wish their faith to be defamed.
Another question pending resolution is whether an unintended offence under 295-C should be liable for the death penalty. Advocate Ismail Qureshi, the main architect of Section 295-C, himself pleaded for an amendment to the provision so as to bring it ‘in accordance with the Quran and Sunnah’. “If the provision is maintained in the present form,” he wrote, “there is a danger of ‘ambiguity’ and legal complications”.
Here he was affirming the view expressed by the Council of Islamic Ideology in 1984 that only a deliberate act of blasphemy could be punishable with death. However, the burden of proving that an offence was unintended was to be on the accused. The same opinion was expressed by Maulana Riazul Hasan Nuri, adviser to the Federal Shariat Court. The Lahore High Court also said so in 2007. Does this not call for an amendment to Section 295-C?
A third issue in debate is the controversy over the application of the blasphemy law to non-Muslims and the non-implementation of the direction in the Shariat Court’s 1990 verdict to the effect that blasphemy against any prophet other than the Holy Prophet of Islam (PBUH) should also be liable for the death penalty. Off and on some members of the minority communities have raised this issue.
In 1994 the Lahore High Court had also dealt with this question and declined relief on the ground that the Federal Shariat Court had already given a clear directive. The blasphemy law has also created serious problems for the judiciary, especially the subordinate courts. In almost each case brought before them they come under such heavy pressure from agitators that they are afraid of applying their minds to the papers before them. This has again been confirmed by the case of Zainab Bibi (released after 14 years of unwarranted confinement).
Some years ago the Lahore High Court acquitted a mentally unsound man who had been awarded the death sentence by the trial court. Justice Tasadduq Husain Jilani passed strictures on the trial court for ignoring a certificate from a hospital describing the accused person’s condition which was on record. Unless those who make a living or gain social status by initiating prosecution on blasphemy charges stop gheraoing the courts many more sick persons may have to share Zainab’s fate. Among the other problems faced by courts are questions related to the accused person’s conduct after the alleged crime or his belief.
For instance, while acquitting a man who had been awarded the death sentence for blasphemy a division bench of the Lahore High Court in 2002 observed: “If a Muslim, through an affidavit, admits that he has not committed any contempt, then there is no reason to doubt his sincerity and submission.” The court also expressed concern over the rise in blasphemy cases and suspected an element of mischief.
The same court, while allowing bail to a person accused of desecration of the Quran under Section 295-A in 2006, ruled that in case of disrespect to the Holy Quran a complaint could only be filed by a government or an authorised officer, a ruling that is rarely respected. In 2007, while acquitting a man who had been awarded the death penalty by the trial court the Lahore High Court ruled that if a person’s remarks fell within a sect’s definition of blasphemy but other sects thought differently, he could not be convicted of blasphemy. The courts could not intervene in such sectarian controversies.
At the same time the courts face dilemmas when evidence against an accused is not strong enough to justify capital punishment while he is not completely innocent either. This difficulty is often faced in cases where death penalty is the only punishment prescribed for an offence. It is clear that after two decades of painful experimentation a review of the PPC chapter on offences against religion can be deferred only at the risk of causing miscarriage of justice in many more cases, especially now that Section 295-C has become a weapon in sectarian wars, and is bringing a bad name to Pakistan, its people, its parliament and its judicial system.
The argument for the repeal of the blasphemy law has never been fairly rebutted but if those who matter cannot withdraw it they can at least meet the objections to the existing legal provision that have been raised by courts and the advocates of 295-C themselves.