Faith and practice: Beyond reasonable doubt — II —Hina Hafeezullah Ishaq

There have been no executions, reportedly, in blasphemy cases by the courts but people have been killed by vigilantes. This law is often misused in order to settle personal vendettas and to derive personal and political gain.

Ahmadiyya Times | News Watch | Int'l Desk
Source/Credit: Daily Times | Pakistan
By Hina Hafeezullah Ishaq | October 21, 2011

Part I of this article can be read here: Beyond reasonable doubt — I —Hina Hafeezullah Ishaq

Instead of creating confusion on the issue, we will be better advised to focus on the facts and prevent the abuse of law, and that means all laws

In October 1990, the Federal Shariat Court (FSC) in a judgement discussed the blasphemy law in detail, with the assistance of several juriconsults. The honourable court also elaborated on the concept of ‘mens rea’, ‘criminal intent’ and ‘motive of crime’ in Islam as well as under common law. It was held that in cases of ‘hadd’ (punishment ordained by the Holy Quran and the Sunnah) and ‘qisas’ (punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-e-amd), the motive of crime has nothing to do with criminal intent; however, it does matter in penal cases. It was also held that according to Islamic law an offence will only be liable to ‘hadd’ if there was an express intention to commit the same; if there is even the slightest doubt then the penalty of ‘hadd’ cannot be imposed.


This judgement was the outcome of two Shariat Petitions filed in 1984 and 1987 against the punishment for the offence in section 295-C, wherein it was challenged that “the alternate punishment of life imprisonment therein is repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH)”.

After discussing the relevant verses of the Holy Quran and various traditions, the honourable bench came to the conclusion that as pertained to the offence in section 295-C of the Pakistan Penal Code (PPC), the only possible penalty was mandatory death. However, it was also held that, in light of Surah Al-Imran, Ayat 84:

(Para 3:84) “Say: We believe in Allah, and in what has been revealed to us and what was revealed to Abraham, Ismail, Isaac, Jacob, and the Tribes, and in (the Books) given to Moses, Jesus, and the Prophets, from their Lord; We make no distinction between one and another among them, and to Allah do we bow our will (in Islam).” Equal respect of all the Prophets of Allah is mandatory and obligatory on all Muslims, being a pivotal and inseparable part of the tenets of Islam. In view of this, the legislature was told to apply the blasphemy law to all Prophets and religions, including the death penalty. The legislature never implemented the FSC suggestion for amendment in the said clause. Though the words life imprisonment (as alternate punishment) still exist on the statute books, they have ceased to have effect in light of that judgement. An appeal was filed against this judgement before the honourable Supreme Court of Pakistan; however the same was dismissed, as the appellant who had filed the appeal was no longer alive, in the year 2009, by a five member Special Shariat Appellate Bench, thereby making the death penalty for the offence of blasphemy, mandatory. It is worth mentioning that the Sharif government also appealed the FSC judgement but later withdrew its petition.

In an earlier criminal appeal filed before the honourable Supreme Court in 2002, the contention that the offence of blasphemy fell within the purview of ‘hadd’ and thus the evidence for conviction should fit the prescribed criteria for ‘Tazkiatul-Shahood’ (merit of the witness), although raised, was never pressed. However, the honourable Supreme Court in its judgement dilated upon the rule of ‘benefit of doubt’, which it was again held, as had been consistently before, could not be ignored as prudence demanded it and the ‘benefit’ should go to the accused in the absence of conclusive proof of guilt. This was fortified by the Hadith that “the mistake of Qazi (judge) in releasing a criminal is better than his mistake in punishing an innocent”, also evident in the maxim that “it is better that 10 guilty persons be acquitted rather than one innocent be convicted”. The honourable Supreme Court also held that an accused could not be compelled to make a statement on oath and no adverse inference could be drawn against him if he opts not to.

The courts are the custodians of our rights. There have been no executions, reportedly, in blasphemy cases by the courts but people have been killed by vigilantes. This law is often misused in order to settle personal vendettas and to derive personal and political gain.

According to the National Commission for Justice and Peace, for the period commencing 1986 to August 2009, 974 cases have been registered u/s 295-B and 295-C of the PPC; 479 of these were against Muslims, 340 against Ahmedis, 119 against Christians,14 against Hindus whilst 10 against Others.

In my humble view, there is no need to repeal the blasphemy law, neither is there a need to amend the punishment prescribed in the PPC. What needs to be done is that keeping in view the Islamic injunctions, the process of investigation and evidence need to be taken up quite a few notches, if not miles; many innocent are convicted while many guilty are set free due to the “inefficiency, inaptitude, apathy and perfunctory working on the part of the Police Officials and the way they collect evidence”. In 2002, a double bench of the honourable Lahore High Court directed the inspector general (IG) of police, Punjab, to entrust the investigation of blasphemy cases to at least two gazetted police officers, with knowledge of Islamic jurisprudence, with the option to add a religious scholar of ‘known reputation and integrity’. It was directed that the police could only proceed further if this team was satisfied that blasphemy had in fact been committed.

Another way to prevent misuse is for the legislature to add appropriate provisions to the Criminal Procedure Code 1898, on similar lines as has been done in the procedure of complaint in case of zina (not rape) under the Hudood Ordinance, whereby no direct FIR should be registered, and the complainant and the eye-witnesses should approach the Sessions Court. Further, it is suggested that, with the consultation of religious scholars, the criteria and requirement of ‘Tazkiatul-Shahood’ be made mandatory in the cases of blasphemy. Another step to check the abuse of the law would be to mandatorily enforce section 194 PPC against making a false charge of blasphemy, which reads:

“Giving or fabricating false evidence with intent to procure conviction of capital offence:

Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause any person to be convicted on an offence which is capital 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 ten years, and shall also be liable to fine; if innocent person be thereby convicted and executed: and if an innocent person be convicted and executed in consequence of such false evidence the person who gives such false evidence shall be punished either with death or the punishment hereinbefore described.”

Also, the blasphemy law should be extended to cover all Prophets and religions. This whilst reflecting our commitment to our faith, including our belief in all the Books and Prophets of Allah, should also curtail false cases against minorities, as well as giving them an equal opportunity to have an adequate recourse to the law in order to protect their sentiments, beliefs and religion.

Death as a punishment is awarded in heinous and grave cases; the punishment for blasphemy in Christianity and Judaism was and still is stoning. What is it in Islam is a moot point, interpretations varying by jurisdiction and different schools of thought. Instead of creating confusion on the issue, we will be better advised to focus on the facts and prevent the abuse of law, and that means all laws. The blasphemy law is used against Muslims more than it is used against the minorities; neither is commendable or can be condoned. That said, I am all for the death penalty for those who blaspheme, duly awarded by the courts and not individuals, who commit this grave offence in respect of Prophet Mohammad (PBUH), as well as that of the other Prophets and Books, regardless of religion, creed or caste; but the proof of guilt, as Islam ordains, should be ‘beyond reasonable doubt’.

(Concluded)

The writer is an advocate of the high court


Read original post here: Beyond reasonable doubt — II —Hina Hafeezullah Ishaq