Editor Zubair Abbasi comments on the Pakistan Supreme Court decision for Asia Bibi v. The State. The Pakistan Supreme Court’s decision to acquit Asia Bibi of blasphemy charges brought forth questions about evidence, judicial independence, procedure, and the state’s authority in matters of law and religion.
Summary
While acquitting Asia Bibi after finding inconsistencies in the statements of prosecution witnesses for the alleged offence of blasphemy, the judges of the Supreme Court of Pakistan emphasized that the protection of non-Muslim minorities is a religious obligation of the Muslim majority in Pakistan. They reminded the general public that tolerance is the basic principle of Islam which safeguards the fundamental right to freedom of thought, conscience and belief. This judgment has sent a clear message that only the State has the authority to prosecute for the offense of blasphemy through its courts, which are to administer justice in accordance with the principles enshrined in the law and the Constitution of Islamic Republic of Pakistan.
Commentary on the Judgment
Blasphemy is a serious offence but the insult of the appellant’s religion and religious sensibilities by the complainant party and then mixing truth with falsehood in the name of the Holy Prophet Muhammad (Peace Be Upon Him) was also not short of being blasphemous….1
The above observation of Justice Asaf Saeed Khan Khosa epitomizes the judgment of the Supreme Court of Pakistan in Mst. Asia Bibi v The State.2 The trial court convicted Asia Bibi to death for the offense of blasphemy, and the Lahore High Court confirmed her conviction. She appealed to the Supreme Court against her conviction. This note provides a brief commentary on the judgment of the Supreme Court by summarizing its main points.
A Bench of three judges unanimously accepted the appeal. Chief Justice Mian Saqib Nisar and Justice Asif Saeed Khosa wrote separate notes. The third judge, Justice Mazhar Alam Khan Miankhel, concurred without adding a separate note.
One of the remarkable features of this judgment is that the Chief Justice Mian Saqib Nisar started his note with Kalimah-e-Shahadat (oath of faith), which he described as “the essence of Islam and the recitation of which makes us Muslims….” This opening indicates that the Chief Justice felt it necessary to assure the general public that he himself is a good Muslim and that the acquittal of the appellant, in this case, does not reflect any weakness in his faith as a true believer of Islam.
In the next paragraph, the Chief Justice affirms that “Tolerance is the basic principle of Islam. It is a religious and a moral duty and further relates to the dignity of human beings, the equality amongst all creations of Allah and also to the fundamental freedom of thought, conscience and belief.”3 The last sentence depicts the pluralistic nature of the legal system of Pakistan which operates under the common law doctrine of precedent based on multiple sources such as constitutional law, Islamic law, and international human rights law.
Further, Chief Justice Nisar refers to the Qur’anic verse 2:256,4 to affirm that Islam guarantees freedom of religion. Over the next few pages, he quotes a number of additional verses of the Qur’an to establish that love, respect, and obedience of the Prophet is a fundamental part of Muslim faith. He asserted that, for this reason, “anything which in any way attacks any aspect of his sacred life, infuriates Muslims to an intolerable limit, resulting in extremely serious law and order situation, with grievous, disastrous consequences.”5 For this reason, he explains, the Pakistani parliament inserted Section 295-C in the Penal Code to prosecute blasphemy offenses before the court.
The Chief Justice further explains that Pakistani blasphemy laws have roots in colonial history. The opinion notes that it was in the historical context of the publication of a blasphemous pamphlet/book by a Hindu publisher Rajpal and the resulting agitation of Muslims that the British government inserted Section 295-A in the Penal Code of 1860, as amended in 1927. Furthermore, the Chief Justice refers to the efforts of the government of Pakistan at the United Nations to eliminate the instances of the blasphemy of the Prophet Muhammad.
The Chief Justice highlights several instances of the misuse of blasphemy laws in Pakistan, noting that, since 1990, 62 people have been killed as a result of blasphemy charges even before any trial since 1990. In the lights of these facts, he emphasized that only the State has the authority to punish for the offense of blasphemy. He referred to the judgment of the Supreme Court in the Mumtaz Qadri case (PLD 2016 SC 17) in which the Court held that it is the duty of the State to ensure that innocent persons are not prosecuted upon the allegation of the commission of blasphemy. It is only after providing this background that Chief Justice Nisar proceeded to evaluate the evidence which led him to acquit the appellant from the charges of blasphemy.
Justice Khosa started his note with the narration of the facts of the case. He identified the weaknesses in the prosecution’s case by highlighting the delay in the registration of the First Information Report; inconsistencies in the statements of prosecution witnesses; and the context of the criminal complaint in which two young sisters accused Asia Bibi of the offence of blasphemy after their exchange of hot words over the refusal of the two sisters to drink water fetched by her because she was a Christian. After a detailed evaluation of the evidence and contentions of the lawyers of prosecution and defence, Justice Khosa concluded:
The glaring and stark contradictions in the evidence produced by the prosecution in respect of every factual aspect of this case, noticed by me above, lead to an irresistible and unfortunate impression that all those concerned in the case with providing evidence and conducting investigation had taken upon themselves not to speak the truth or at least not to divulge the whole truth. It is equally disturbing to note that the courts below had also, conveniently or otherwise, failed to advert to such contradictions and some downright falsehood.6
This attitude, according to Justice Khosa, was in stark contrast with the Qur’anic injunctions which ordain firm standing for justice and strictly prohibit distortion of testimony.7
Despite coming to the same conclusion, the difference in the tone of the language of the two judges is apparent. Chief Justice Nisar dedicated half of his judgment to contextualizing the blasphemy laws in Pakistan and to highlighting the importance of religious tolerance in Islam. By contrast, Justice Khosa minutely dissected the evidence and exposed contradictions and inconsistencies in the statements of prosecution witnesses. In their separate notes in this judgment, both judges tried to balance the tension between the administration of justice through the application of the law and public sentiment demanding the strictest possible punishment for the offence of blasphemy. Given that the appellant belonged to the minority community of Christians in Pakistan, Chief Justice Nisar concluded his note with the following saying of the Prophet (peace be upon him):
Beware! Whoever is cruel and hard on a non-Muslim minority, or curtails their rights, or burdens them with more than they can bear, or takes anything from them against their free will; I (Prophet Muhammad) will complain against the person on the Day of Judgment. (Abu Dawud)8
Similarly, Justice Khosa referred to the charter of the Prophet (peace be upon him) granted to a delegation from St. Catherine’s Monastery in which all Christians were declared to be allies of Muslims and their ill-treatment was equated with the violation of God’s covenant.9 In this way, both judges sent a clear message to the general public that the protection of minorities in Pakistan is a religious obligation of the Muslim majority.
[1] . Asia Bibi v The State, Criminal Appeal N0.39-L at 55, https://beta.shariasource.com/documents/3381.
[2] Asia Bibi, Criminal Appeal N0.39-L, at 55.
[3] Asia Bibi, Criminal Appeal N0.39-L, at 2.
[4] “There should be no compulsion in religion. Surely, the right way has become distinct from error.” Asia Bibi, Criminal Appeal N0.39-L, at 2.
[5] Asia Bibi, Criminal Appeal N0.39-L, at 8-9.
[6] Asia Bibi, Criminal Appeal N0.39-L, at 50.
[7] “O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just, that is nearer to righteousness. And fear Allah; indeed, Allah is acquainted with what you do” (Q. 5:8). “So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever, with what you do, acquainted” (Q. 4:135). Asia Bibi, Criminal Appeal N0.39-L, at 50.
[8] Asia Bibi, Criminal Appeal N0.39-L, at 34.
[9] Asia Bibi, Criminal Appeal N0.39-L, at 54.
Dr. Abbasi completed DPhil at Oxford University. Currently, he is is an Assistant Professor at the Lahore University of Management Sciences (LUMS). He taught Comparative Law, and Islamic Law Reform as a visiting Assistant Professor at the American University in Cairo during Spring 2017. His current research project explores the contribution of the Federal Shariat Court and the Shariat Appellate Bench, Supreme Court in the application and development of Islamic Jurisprudence. He is the Chief Editor of the LUMS Law Journal and recently published a book Family Laws in Pakistan (Oxford University Press 2018) as the lead author.