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This is the hard copy of the rough draft of the article
submitted on Blasphemy Laws in Pakistan. AS I do not
have the copy of the original article with me at this point
of time and if necessary can be provided by post to the
university directly upon request.
However I am submitting the draft copy which I had in
my computer.
2
BLASPHEMY LAWS IN PAKISTAN
Presentation by
Muhammad Mansoor Alam
Advocate.
B.A, LL.B(Hons) Wolverhampton
Dip. In Civil Litigation (Wol)
On Silver Jubilee Celebrations of
Multan High Court Bar Association Multan 1981-2006
An Indian government party criticized Pakistan's blasphemy law, (the Indian
news agency PTI reported), the day Catholic Bishop John Joseph was buried in
Pakistan after committing suicide in protest of the law and "expressed deep regret at the
repercussions of the blasphemy law in Pakistan, which caused a suicide of a bishop".
In views from South Asia (August 2002 Edition), Blasphemy laws in Pakistan
were considered and various recommendations were made for the Government of
Pakistan to modify the Blasphemy laws in to protect freedom of Speech and Freedom
to profess religion. As a result of this 107th Congress Resolution in the USA was passed
on 14th of February 2002 wherein violations in Pakistan with respect to the freedom of
individuals to profess and practice religion or belief were sensed with greater concern
and was referred to the Committee of International Relations.
The House Of Representatives called for the appeal in Martial Law Ordinance XX, to
release the prisoners jailed under Blasphemy Laws, repeal the 8th amendment declaring
Ahmadi’s ‘non-muslims’ under law along with the elimination of requirement to
declare religion in the passport, I.D cards and for getting admissions in educational
institutions. The resolution also called upon the president and the secretary of state to
raise violations of the freedom of thought, conscience, religion, or belief at every
appropriate level.
The concern was not only shown by U.S but also by other foreign countries demanding
Pakistan to amend or abolish its Blasphemy laws. This raises the question of existence
of Blasphemy laws and analysis of justification of Blasphemy laws in Pakistan and to
do so we have to go through the root of creation of ideology of Islamic Republic of
Pakistan.
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3
B)
Blasphemy Laws and Fundamental Rights in Pakistan
1-
Ideology of the Constitution of Islamic Republic of
Pakistan.
a)
Historical and Constitutional Background.
The Constitution of Islamic Republic of Pakistan has peculiar features, specially,
with reference to religion. Pakistan’s Constitution refers to the Constitutions of Sweden,
Norway, Denmark, Switzerland, Argentine, Greece, Iran, Iraq, Afghanistan and Syria in
this regard. The laws framed under the said constitutions depict of the principles of policy
laid down in the said constitutions. Religion has been made the basis of the principles of
policy as well as the laws enacted there under.
The preamble of the Constitution of the Islamic Republic of Pakistan starts with the
words:
“Whereas sovereignty over the entire universe belongs to Almighty Allah
alone, all the authority to be exercised by the people of Pakistan within the
limits prescribed by Him is a sacred trust”.
The preamble further provides:
“---Wherein the Muslims shall be enabled to order their lives in the
individual and collective spheres in accordance with the teachings and
requirements of Islam as set up in the Holy Quran and Sunnah: Wherein
adequate provision shall be made for the minorities freely to profess and
practice their religions and develop their cultures---”
Thus the preamble gives top importance to Islam and its principles governing all
spheres of life of the persons living in Pakistan (whether Muslim or non-Muslims). In the
modern states, specially, the secular states, sovereignty is to vest in the people and
democracy means the government of the people, for the people and by the people, while
the Constitution of Pakistan, although based on the same governing principle, yet it
specifically emphasize that sovereignty over the entire universe belongs to Almighty
Allah alone.
In case of Miss Benazir Bhutto v. Federation of Pakistan as reported in PLD 1988
S.C. 416, after analysing the preambles of 4 previous constitutions of Pakistan, the
sayings of the Father of Nation /Quaid-e-Azam Muhammad Ali Jinnah and also the
history of creation of Pakistan, it was finally observed as under:
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“This is in my view an affirmation of Two-Nation Theory. The concept of Islamic
Ideology is interwoven with the Ideology of Pakistan and is inseparable as it is the
foundation of Two Nation Theory, therefore “Integrity of Pakistan” not only includes
“Ideology of Pakistan” but also “Islamic Ideology”. Any invasion on “Integrity of
Pakistan” will inevitably lead to an invasion of its sovereignty and vice versa. I may
here state that maintenance of public order is an aspect of exercise of sovereignty”.
In the same judgment at pages 522 to 523, it was observed by the august Supreme Court:
“Ideology in Pakistan is based in Muslim Nationhood and includes Islamic Ideology,
which in clear terms in the Constitution means injunctions of Holy Quran and Sunnah
and was the principal factor in the principle of Muslim Nationhood, which resulted in
the partition of Sub-continent and also a Two Nation Theory”.
As will be discussed below, all laws in Pakistan are made on the above governing
principles, not merely to meet the exigencies of time but also for their moral welfare.
Therefore, whatsoever is done in the country is done with the realization that Allah is
watching from above and it is only benefiting and proper for man to act in accordance
with and in subservience to the will of Lord, the Sovereign of the Universe.
b)
Laws have to be in conformity with the principles of Islam.
Looking into the historical background of Pakistan, Two-Nation Theory is the
basis of creation of Pakistan. Two-Nation Theory rests for Muslim nationhood and
includes Islamic Ideology which, in clear terms, in the Constitution means injunctions of
Holy Quran and Sunnah. This theory ultimately resulted in partition of India and creation
of Pakistan and this all is enshrined in the preamble of the Constitution of Pakistan.
Article 2 of the Constitution in unequivocal terms declares:
“Islam shall be the State Religion of Pakistan”.
Besides the above principles of policy, the other Islamic provisions, which as
embodied in Article 227 (1) of the Constitution read with all existing laws have to be
brought in conformity with the injunctions of Islam as laid down in the Holy Quran and
Sunnah.
Article 227 of the Constitution reads as under:
“ Provisions relating to Holy Quran and Sunnah (1) of existing laws shall be brought in conformity with
the injunctions of Islam as is laid down in the Holy Quran and Sunnah, in this part referred to as the
injunctions of Islam, and no law shall be enacted, which is repugnant to such injunctions...”
Reference in this regard is made to the judgment of Supreme Court of Pakistan in
case of B.Z. Kaikos and others v. the President of Pakistan reported in PLD 1980
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S.C.160, wherein it has been observed:
“Islam ... not a priest dominated theorocracy ... principles of Islam ... neither hidden,
nor complicated or involved, nor impracticable ... Islamic Law capable of being
practiced, enforced, applied and adopted at all times and places only if understood and
interpreted in its true spirit keeping in view environments and circumstances of situation
at relevant time ...“
For the purpose, the Council of Islamic Ideology has been set-up, which makes
recommendations to bring the existing laws into conformity with the injunctions of Islam
and to also advice on questions referred to it in this respect. Under the Article 203 (A) to
203 (J), a Federal Shariat Court has been constituted with powers to examine and decide
any question in this respect on its own motion, on petition of any citizen of Pakistan or on
a move by the Federal or a Provincial Government.
c)
The Federal Shariat Court.
The Federal Shariat Court, as stated above, has been
constituted under Article 203(A) of the Constitution. It consists of eight Muslim Judges
headed by a Chief Justice. The qualifications of the Judges have been specified in Article
203 of the Constitution, whereby at least four of the Judges have to be either Judges of a
High Court or qualified to be Judges of the High Court while the remaining three have to
be Ulemas, who are well versed in Islamic Laws. The Chief Justice of this court has to be
a Judge of the Supreme Court of Pakistan or has to be qualified to be a Judge of the
Supreme Court or who is or has been a prominent Judge of a High Court. Under Article
203 (D), the Court has to examine and decide the question whether or not any law or
provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran
and Sunnah of the Holy Prophet and then gives its decision setting out reasons for its
opinion and also the extent to which such law or provision is so repugnant. The Supreme
Court of Pakistan, as reported in the case Government of N.W.F.P. v. Malik Said Kamal
Shah reported in PLD 1986 SC 360 held that, “...No law can be declared as repugnant
unless it is clearly brought out that the same is against some specific injunction either in
the Holy Quran or in the Sunnah”. Considering the same question, the Supreme Court of
Pakistan confirmed the said principles in its subsequent judgment in case of Haji Qurrat
Ali v. Government of N.W.F.P. reported in 1987 SCMR 945.
Benazir Bhutto’s case, reported in PLD 1988 S.C. 416, provides guidelines in this
regard. At page 520 of the said judgment, it has been observed:
“Chapter 1 & 2 of Constitution has provided auto-limitation or inbuilt restraints on the
exercise of fundamental rights guaranteed in chapters 1 & 2 - such auto-limitations or
inbuilt restraints not only provide protection to the rights themselves but also further the
interests of social solidarity sought to be achieved by the makers of the Constitution
mutually has to be beard even in the liberty and for that matter the appointment of
maximum opportunities for the orderly persuade happiness of a goal of progressive
itself, which is linked with the availability of restrains or individual liberty”
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2-
Concept of Fundamental Rights.
The concept of fundamental rights differs from society to society, state to state
and religion to religion. In one society, state and religion a right treated as fundamental
right may not be a right in the other society, state or religion. Embargos are placed on
various rights in various societies, states and religions. In every society and state, it is
dependent on the ideology of that particular society and state and more so by the
principles of the religions. The common factor in all the states, societies and religions is
dignity of religion, the prophet and the leaders of the religion. In secular societies &
states, these factors may not have any significance as is the case in United States and
India as far as the constitution and the laws are concerned, but the fact remains that the
people of even these states are strongly moved if any annoyance is caused to them by a
word of ridicule of their ideology and belief and even the laws of these states do have
sufficient provisions for the redress of such grievances / annoyances.
In India, a word against their religion, ideology and religious leaders is not
tolerated by the public and the laws of India do have provision for punishment to those
who ridicule by their words and acts directly or indirectly, their religion, ideology and
religious leaders. The incidents of mass action by various extremists Hindu groups made
against Muslims and by Muslims against Hindus and also in between the people
belonging to various sects are not uncommon. The judicial history of India provides
strong evidence of existence of penal laws to cater for such incidents. The case of
destruction of Babri Mosque is now pending in the Supreme Court of India. The division
of India into Pakistan and Bharat was a result of religious disputes / the difference of
ideologies. In several states a word against the government / the king has been made
punishable. Examples can be quoted from the laws and the case history of Japan, China,
Argentina, England, France and various other countries.
Freedom of speech and expression, no doubt, in all democratic countries is basic
right but invariably, an embargo has been placed on this right i.e. when exercise of this
right in an aggressive style causes annoyance to any person. This rule attains a greater
significance when laws are made to restrain people in general from exercising this right
in a particular manner, i.e. when a speech or expression directly or indirectly annoys the
public.
The following provisions of the Constitution of Islamic Republic of Pakistan
guarantee the fundamental rights:
Article 8: “(1) Any law or any custom or usage having the force of law, in so far as it is inconsistent
with the rights conferred in this Chapter, shall to the extent of such inconsistency, be void. (2) The
State shall not make any law which takes away or abridges the rights so conferred or any law made in
contravention of this law, shall to the extent of such contravention, be void--Article 9: “No person shall be deprived of life or liberty save in accordance with law”.
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Article 10: “(1) No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be
defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody
shall be produced before a Magistrate within a period of 24 hours of such arrest, excluding the time
necessary for the journey from the place of arrest to the court of the nearest Magistrate, and no such
person shall be detained in custody beyond the said period without the authority of a Magistrate --Article 19: “Every citizen shall have the right to freedom of speech and expression and there shall be
freedom of press, subject to any reasonable restrictions imposed by law in the interest of the glory of
Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign
States, public order, decency or morality, or in relation to contempt of court, commission of or
incitement to an offence”.
Article 20: “Subject to law, public order and morality- (a) Every citizen shall have the right to profess,
practice and propagate his religion: and (b) Every religious denomination and every sect thereof shall
have the right to establish, maintain and manage its religions institutions”.
Article 25: “(1) All citizens are equal before law and are entitled to equal protection of flaw. (2) There
shall be no discrimination on the basis of sect sex alone. (3) Nothing in this Article shall prevent the
State from making any such provision for protection of women and children”
a)
Minorities / Non Muslims
As already stated above, the preamble of the constitution of Pakistan says,
“ Wherein adequate provision shall be made for the minorities freely to
profess and practice their religion and develop their culture...”
In Chapter 2 respecting principles of policy, Article 36 relates to minorities and it reads
as under:
“The State shall safeguard the legitimate rights and interests of Minorities
including their due representation in the Federal and Provincial services”.
With regard to the question of application of Muslim Laws to Non-Muslims, in
case Abdul Rehman Mobashir and 3 others v. Syed Amir Ali Shah Bukhari & others, the
Lahore High Court of the Province of the Punjab of Pakistan as reported in PLD 1978
Lah 113 observed:
“Those Non-Muslims, who profess to be bound by the same law as the Muslims, are
also governed by the similar principles of justice, equity and good conscious.
Consequently the Muslim Laws shall be applied to Qadiyanis. However, this is subject
to the qualification that the court is bound to give effect, on this principle, to the
injunctions of Holy Quran and Sunnah but not to the opinion of others. ... Thus
opinions shall be judged by the court on the principles of justice and equity since no
court is bound to follow such opinions“.
Keeping in view the fundamental rights guaranteed in Chapter 1 of the
Constitution as already mentioned above, with specific reference to Article 8, 9, 19, 20,
25 & 36, the Minorities / Non-Muslims have all rights, which are enjoyed by Muslim
citizens in Pakistan. All are equal before the law and are bound to obey the law of the
land. The constitution itself provides certain restrictions on the exercise of rights and
which are for all the citizens of Pakistan, both Muslims and non Muslims and which are
meant for orderly society and welfare of the public as a whole. Rights of the minorities
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are further established by Article 21 of the Constitution reading as follows:
“ No person shall be compelled to pay any special tax, the proceeds of which are to be spent on the
propagation or maintenance of any religion other then his own”.
Concluding the discussion, it can be safely said that the Constitution of Pakistan
provides all basic rights as are enjoyed by the people the entire world subject to such
restrictions as are necessary in the peculiar circumstances and environments prevailing in
Pakistan.
b)
Freedom of Speech and Expression
Freedom of speech and expression has been guaranteed as a basic / fundamental
right in the Constitution of Pakistan under Article 19 of the Constitution but subject to
reasonable restrictions imposed by law. The Article reads as under:“Every citizen shall have the right to freedom of speech and expression, and therefore
shall be freedom of Press, subject to any reasonable restriction imposed by law in the
interest of glory of Islam or the integrity, security or defence of Pakistan or any part
thereof, friendly relations with foreign states, public order, decency or morality, or in
relation to contempt of court, commission of or incitement to an offence”
c)
Freedom of Speech and Expression in Foreign Countries.
In England freedom of speech though guaranteed by the courts since long, yet is
liable to reasonable restrictions. Odger says “Our present law permits anyone to say,
write, and publish whatever he pleases; but if he makes a bad use of this liberty, he must
be punished. If he unjustly attacks an individual, the person defamed may sue for
damages. If on the other hand the word written or printed or if morality were throughout
inculcated, the offender can be tried for the misdemeanour either by information or
indictment” (Libel and Slander by Odger Page 12). The great legal thinker Diecy pointed
out that the freedom of speech in England is controlled by the law of Libel and it appears
to be greatly circumscribed by different legislations, yet there is one great protection
which possesses in the matter and that is the right to be tried by injury in cases concerned
Libel. He finally observed:
“Thus in England, a man may publish anything which 12 of his country-men think is
not blameable, but that he ought to be punished, if he publishes that which is
blameable”.
Reference (1799), 27 St, Try, 642 at page 675.
Freedom of Speech and expression in UK.
The concept of freedom of speech is considered as one of the basic rights for a
proper working of a mature political constitution. As the British constitution is largely
unwritten, there has been no express legal basis for the freedom of expression in English
Law. With regard to individual liberties, citizen has been free to do as he or she pleases,
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subject to the restrictions imposed by the substantive law. Lord Goff observed in A.G v.
Guardian Newspaper Ltd (No. 2) (1990) 1 AC 109at 283-284:
“... We may pride ourselves on the fact that the freedom of speech has existed
in this country perhaps as long as, if not longer than, it has existed in any
other country in the world... we in this country (where everybody is free to do
anything, subject to the provisions of the law) proceed rather upon an
assumption of freedom of speech, and turn to our law to discover the
established exceptions to it.”
Since the enactment of the Human rights Acts 1998 which incorporated
key elements of the European Convention on Human rights, the courts now, will have to
interpret domestic legislation so as to ensure the compliance of the Art 10 of the
Convention which relates to the freedom of expression. Sec 12 of the 1998 Act deals with
the freedom of expression.
Within U.K, there are number of laws restraining freedom of expression to
balance the competing rights e.g. defamation (libel and Slander), blasphemy (See Below
in Detail), Racism (Public order Act 1986), Criminal libel (Goldsmith v. Pressdram
(1976) 3 WLR 191), Obscenity and so on and so forth.
At this point its important to note the provisions of the European Convention on
Human Rights to which U.K was one of the original signatories in 1953, but it was not
until 1998 ACT, by which the Convention became directly enforceable as a part of the
U.K’s domestic law.
The rights protected are:Art 2:
Right to life.
Art 3:
Prohibition of torture
Art 4:
Prohibition of slavery and forced labour
Art 5:
Right to liberty and security
Art 6:
Right to fair trial
Art 7:
No punishment without law
Art 8:
Right to respect for private and family life
Art 9:
Freedom of thought, conscience and religion
Art 10:
Freedom of expression
Art 11:
Freedom of assembly and association
Art 12:
Right to marry.
The courts approach towards common law restrictions imposed on individual
rights are yet to be seen in the light of Human Rights Act 1998.How ever there are
number of prior cases decided keeping Conventions in mind.
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In Bowman v. United Kingdom (1998) 26 EHRR1, the Court held that the
provisions of section 75 People Act 1983, were a restriction on the freedom of
expression. They were not ‘necessary in a democratic society’ as they were
disproportionate to the legitimate aim of securing equality between candidates. As a
result there had been a violation of Art 10.
In case of Steel v. United Kingdom (1998) 28 EHRR 603, five applicants had
been arrested and detained to prevent a breach of peace while participating in various
protest. It was found that the arrest of the 1st and 2nd were lawful under the English Law
where as the rest of them were arrested unlawfully.
In case of Hashman and Harrup v. United Kingdom (2000) 8 EHRC 104, the
court again considered the impact of a bind over on protesters. The Court held that a bind
over made to prevent behaviour contra bonos mores was not sufficiently precise to be
foreseeable in accordance with the law under Art. 10(2).
Freedom of Speech and Expression in India:-
Article 19 of the Constitution of India provides:
“(1)
All citizens shall have the right(a) To Freedom of speech and expression...
(2)
Nothing in sub-clause (a) shall affect the operation of any existing law, or prevent
the state from making any law, in so far as such law imposses reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interest of the sovereignty and
integrity of India, the security of state, friendly relations with foreign states, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an
offence”.
Freedom of expression is a ‘preferred right which is always very zealously
guarded by the court as observed by the court in Odyssey Communication Pvt Ltd v.
Lokvidyavan Sansthan (1988) 3SCC 410,414 para 5.
Under Art. 19(2), reasonableness is applied to each individual statute impugned
and abstract standard can be laid down. In the case of Madras v. VG Row (1952) SCR
597, 607, the court gave the following observations:
“ The nature of the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the context and the urgency of the evil
sought to be remedied thereby, the disproportion of the imposition, prevailing
the conditions at the time, shall all enter into the judicial verdict.”
In the case Express Newspaper Ltd. v. Union of India, reported in AIR 1958 SC
578, full bench of the Supreme Court of India observed:
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“In United States this fundamental right is based on the provisions contained in
amendment 1 of the Constitution and it would be therefore legitimate and proper to
refer to the decision of the Supreme Court of United States to embark in order to
appreciate the true nature, scope and extent of this right”.
As held in case reported as 268 U.S. 652 restrictions on right of speech and
expression were recognized by the superior courts of U.S.A. in words:
“Freedom of speech is guaranteed under the first amendment, but it does not confer an
absolute right to speech or publish without responsibility, whatever one may choose, or
unrestricted and unbridled license that gives immunity for every possible use of
language and prevents the punishment of those who abuse this freedom”.
In the same case, the superior judiciary of U.S.A. passed the following
observations and which were confirmed in cases reported in 47 SC.t 641 and 274 U.S
357:
“It is therefore clear that the power of a State in the exercise of its Police power to
punish those who abuse this freedom by utterances inimical the public welfare, tending
to corrupt public morals, incite to crime or disturb the public peace, is not open to
question”
The Supreme Court of India in case reported in AIR 1962 SC 305 on this very
issue made the following observation:
“Moreover the right to freedom of speech and expression carries with it the right to
punish and circulate ones’ ideas, opinions and views with complete freedom and by
resorting to any available means of publication, subject to such restrictions as could be
legitimately imposed under the clause”.
Thus in India, England and United States which are the most advanced
democratic societies, restrictions do exist and which have been given effect through their
courts as well. However, India & United States being secular states bother the least about
the annoyance caused by ridicule of religion on account of an act or word of a person.
Therefore, this right is guaranteed but with certain restrictions in all the societies and
countries. The restrictions however are dependent on the principles of policies of the
States concerned. Some give importance to religion and some do not. Imposition of
restrictions on the exercise of this right with respect to the glory of Islam, therefore,
cannot be taken as an exception to the general rule and cannot be termed to be a violation
of the Fundamental Rights as understood in the present day of the world.
d)
Approach of Pakistani Courts on Freedom of Speech and Expression
In case of Mirza Khurshid Ahmed & others v. Government of Punjab, as reported
in PLD 1992 Lah 1, considering the scope of freedom of religion, the Lahore High Court
observed:
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“Article 20, which guarantees to the citizens of Pakistan the
right, inter-alia, to profess their religion, is subject to other
provisions of the Constitution”
Therefore, Article 19, which specifically provides freedom of speech and
expression, is subject to any reasonable restriction imposed by law in the interest of glory
of Islam, becomes relevant. Pakistan, as already stated above, being an Islamic State,
follows the principles of Quran and Sunnah has to make all laws in the interest of the
glory of Islam and thus restrictions placed through Blasphemy Laws incorporated in the
Pakistan Penal Code vide section 295 to 298 (c) are legally and morally justifiable.
The laws of Pakistan including Blasphemy Laws are in conformity with the
principles of Islam, which give prime importance to Holy Quran and Sunnah of the Holy
Prophet. It also provides complete protection to Non-Muslims residing in Pakistan.
Religions of all citizens have been given full importance. Muslims have to be dealt with
in accordance with the principles of Islam individually and collectively while NonMuslims have to be governed by same principles but their personal matters are to be
decided in accordance with principles of their respective religions. For the purpose laws
exist duly considered by all forums and are being given full effect to by the courts of
Pakistan.
While deciding the famous case of Muhammad Khalil v. the State reported in
PLD 1962 Lah 850, the question of discrimination between Muslims and Non-Muslims
and between sects and also between different classes of people was clarified in the
following words:
“---section 153 (a), PPC deals with different “Classes” of people and not with
different “Sects” - primary purpose for a book to fall within mischief of section
295 (a) PPC must be to malicious deranging feelings of a particular class, book
containing objectionable material injuring feelings of Muslims “in general” but
not falling under section 153 (a) or 295 (a) - held did not fall within the mischief
of section 153 (a) and 295 (a) PPC”.
Thus the Blasphemy Laws are not meant for being used specifically against NonMuslims / Minorities but are binding on all citizens of Pakistan including Muslims.
In another case Zaheer-ud-Din and others v. the State reported in 1993 SCMR
1718 considering the right of freedom of religion visa vis Blasphemy Laws, the Supreme
Court of Pakistan observed:
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“---Art. 20--- Penal Code (XLV of 1860), Sc. 298-B & 298-C--- Freedom of religion--Principles---Freedom of religion is not allowed to interfere with the law and order or
public peace and tranquillity---Freedom of religion is based on the principle that the
State will not permit anyone to violate or take away the Fundamental Rights of others, in
the enjoyment of his own rights and that no one can be allowed to insult, damage or
defile the religion of any other class or outrage their religious feelings, so as to give rise
to law and order situation---Whenever the State has reasons to believe, that the peace
and order will be disturbed or the religious feelings of others may be injured, so as to
create flaw and order situation, it may take such minimum preventive measures as will
ensure law and order. (P.1765)DD”.
3-
BLASPHEMY LAWS IN PAKISTAN
Coming to the Blasphemy Laws, in specific, Chapter XV of Pakistan Penal Code
becomes relevant. Its sections 295 to 298 (C) provide for punishments of various offences
in this regard. The said provisions read as under:-
Sec.295.
Injuring or defiling place of worship, with intent to insult the religion of any class.
Whoever, destroys, damages or defiles any place of worship, or any object held sacred by any
class of persons with the intention of thereby insulting the religion of any class of persons or
with the knowledge that any class of persons likely to consider such destruction, damages or
defilement as an insult to their religion, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
Sec295-A.
Deliberate and malicious acts intended to outrage religious feelings of any class by
insulting its religion or religious beliefs. Whoever, with deliberate and malicious intention
of outraging the religious feelings, of any class of the citizens of Pakistan, by words, either
spoken or written or by visible representations insults or attempts to insult the religion or the
religious beliefs of that class, shall be punished with imprisonment of either description for a
term which may extend to (Ten) years, or with fine of with both.
Sec.295-B.
Defiling, etc. of copy of Holy Quran. Whoever wilfully defiles, damages or desecrates a
copy of the Holy Quran or of an extract there from or uses it in any derogatory manner or for
any unlawful purpose shall be punishable with imprisonment for life.
Sec.295-C.
Use of derogatory remark etc., in respect of the Holy Prophet: Whoever by words, either
spoken or written, or by visible representation, or by any imputation, innuendo, or
insinuation, directly or indirectly, defiles the sacred name of the Holy prophet Muhammad
(peace be upon him) shall be punished with death, or imprisonment for life, and shall also be
liable to fine.
Sec.296.
Disturbing religious assembly. Whoever voluntarily causes disturbance to
any assembly lawfully engaged in the performance of religious worship, or
religious ceremonies, shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or with
both.
Sec.297.
Trespassing on burial place, etc. Whoever, with the intention of wounding the feelings of
any person, or of insulting the religion of any person, or with the knowledge that the feelings
of any person is likely to be insulted thereby.
Commits any trespass in any place of
worship or on any place of sepulture, or any place set apart for the performance of funeral
rites or as a depository for the remains of the dead, or offers any indignity to any human
corpse, or causes, disturbance to any person assembled for the performance of funeral
ceremonies. shall be punished with imprisonment of either description for a term which
may extend to one year, or with fine or with both.
Sec.298.
Uttering words, etc. with deliberate intent to wound religious feelings. Whoever, with
the deliberate intention of wounding the religious feelings of any person utters any word or
makes any sound in the hearing of that person or makes any gesture in the sight of that person
or places any object in the sight of that person, shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or with both.
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Sec.298-A
Use of derogatory remarks, etc. in respect of holy personages. Whoever by words, either
spoken or written, or by visible representation, or by any imputation, innuendo or insinuation,
directly or indirectly, defiles the sacred name of any wife (Ummul Mumineen), or members
of the family (Ahle-bait), of the Holy Prophet (Peace Be Upon Him), or any of the righteous
Calliphs (Khulafa-e-Raashideen) or companions (Sahaaba) of the Holy Prophet (Peace Be
Upon Him) shall be punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
Sec.298-B
Misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or
places. (1) Any person of the Qadiani group or the Lahori group (who call themselves
‘Ahmadis’ or by any other name) who by words, either spoken or written, or by visible
representation- (a) refers to, or addresses, any person, other than a Caliph or companion of
Holy Prophet Muhammad (Peace Be Upon Him),as‘Ameer-ul-Mumineen’, ‘Khalifat-ulMumineen’,Khalifat-ul-Muslimeen, ‘Sahaabi’ or ‘Razi Allah Anho’; (b) refers to, or
addresses, any person, other than a wife of the Holy Prophet Muhammad (Peace Be Upon
Him), as Ummul-Mumineen; (c) refers to, or addresses, any person, other than a member of
the family (Ahle-bait) of the Holy Prophet Muhammad (Peace Be Upon Him), as Ahle-bait;
or (d) refers to, or names, or calls, his place of worship as Masjid; (2) Any person of the
Qadiani group or Lahori group (who call themselves ‘Ahmadis’ or by any other name) who
by words, either spoken or written, or by visible representation, refers to the mode or form of
call to prayers followed by his faith as ‘Azan’ or recites Azan as used by the Muslims, shall
be punished with imprisonment of either description for a term which may extend to three
years and shall also be liable to fine.
Sec.298-C
Person of Qadiani group, etc., calling himself a Muslim or preaching or propagating his faith.
Any person of the Qadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by
any other name), who, directly or indirectly, poses himself as a Muslims, or calls, or refers to,
his faith as Islam, or preaches or propagates his faith, or invites other to accept his faith, by
words, either spoken or written, or by visible representations or in any manner whatsoever
outrages the religious feelings of Muslims shall be punished with imprisonment of either
description for a term which may extend to three years and shall also be liable to fine.
Thus sections 295, 295-A, 296, 297 & 298 of Pakistan Penal Code provide
punishment if the offender does an act in violation of the said provisions with respect to
any religion i.e. Christianity, Hinduism, Buddhism, Islam or any other religion. Section
298-A, 298-B and 298-C Pakistan penal Code were added by virtue of Ordinances
promulgated in 1980 and 1984 respectively after the superior courts pronounced
judgments to the effect that Qadianis and Ahmadis, who had been posing themselves as
Muslims but did not believe the Holy Prophet Muhammad (Peace Be Upon Him) as
being the last Prophet. This mater was considered in detail by the august Supreme Court
of Pakistan in two cases of Zaheer-ud-Din and others v. State and Mujeeb-ur-Rehman v.
State reported in 1993 SCMR 1718. The final decision of the court on the basis of the
majority view was as under:
“---Clause (e) of section 298 --- section 298-C (a, b & e----) Anti-Muslim
activities of Qadianis group, Lahori group and Ahmadis (Prohibition and
Punishment) Ordinance (XX) of 1984, section 3--- Constitution of Pakistan
(1973), Articles 19, 20 & 260 (3) --- provisions of section 298-C (a, b & e)
are consistent with the Constitutional provisions contained in Article 19, 20
& 260 (3).
As regards Clause (e) of section 298-C, the law cannot be said to be violation of
fundamental rights of freedom of religion or speech, where it punishes because of
outraging the religious feelings of a particular group or of general public as such. No
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15
body has a fundamental right or can have one of outraging the religious feelings of others
while propagating his own religion or faith. Therefore, clauses a, b & e, as found in
section 298-C are consistent with the Constitutional provisions contained in Article 19,
20 & 260 (3)”.
Mr. Justice Shafi-ur-Rehman, however, gave a dissenting note as under:
“...Anti-Islamic activities of Qadiani group, Lahori group and Ahmadis (Prohibition &
Punishment) Ordinance (XX) of 1984, section 3 ... Constitution of Pakistan 1973,
Articles 19, 20 & 25 ... provisions of section 298-C (c & d) as standing by themselves,
individually or the two together are violative of the fundamental rights of religious
freedom and of equality and of the speech as they prohibit and penalize Ahmadis and
Qadianis from preaching or propagating their faith by words written or spoken or by
visible representation .... However, if the acts mentioned in clause-c & d are
accompanied as what is provided in clause-e or has effect to the clause-a & b, then acts
will be penal under these relevant clauses and not under clauses-c & d, To this extent,
clauses - c & d of section 298-C PPC cannot be ultra vires of the Constitution”.
However, in view of majority decision, all the above provisions stand declared as
in conformity with the Constitution of Pakistan and as not violative of any Fundamental
Right.
The objections are raised with respect to section 295-B, 295-C PPC only, which
have been inserted by virtue of Ordinance No. I of 1982 and Act No. III of 1986. The
first pertains to defiling etc. of copy of the Holy Quran while the second is in relation to
of derogatory remarks etc., in respect of Holy Prophet Muhammad (peace be upon him).
The courts of Pakistan however, have not found these as ultra vires the constitution or
against the Fundamental Rights of speech & expression and the liberty of religion. As has
been demonstrated below, cases are coming up and are being decided on merits, holding
the same as Law in conformity with the constitution and the jurisprudence of Islam.
a)
Procedure for Trial
Under the Code of Criminal Procedure, as is in force in Pakistan, an aggrieved
person has to lodge his complaint before the Police for registration of case, where after
investigation into acquisitions is made by the Investigating Officer. In case solid evidence
is available, he has to place the case before court for trial.
Cases under section 295, 295-A, 296, 297, 298, 298-A, 298-B & 298-C, P.P.C,
are tried by the court of Magistrate, while the cases punishable under sections 295-B &
295-C of P.P.C, in which a greater punishments are provided, are tried by the court of
Sessions which always consist of senior and experienced Judges. Chapter XXII-A of the
Code of Criminal Procedure deals with trial before High Courts and Courts of Sessions
and provides procedure for the same.
Under section 265 (C) of Cr.P.C., before the start of trial the accused is to be
compulsorily provided with a copy of first information report (FIR), the police report, the
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statements of all the witnesses, which the prosecution intends to produce against the
accused and also a copy of the inspection note at least seven clear days before the start of
trial. The accused is always free to inspect the court record for preparation of his defence.
The court under section 265 (D&E) of Cr.P.C, apprises the accused of the charge against
him and then has to record the plea of the accused in this regard i.e. whether he confesses
or denies the said charges.
Section 265F, 265G and 265H P.P.C, deals with the manner of recording
evidence, summing of the case by the prosecutor and the defence of the final judgment of
the court. The said provisions read as under:
265F. Evidence for prosecution.
(1) If the accused does not plead guilty or the court in tits discretion does not convict
him on his plea, the court shall proceed to hear the complainant (if any) and take all such
evidence as may be produced in support of the prosecution: Provided that the Court shall not
be bound to hear any person as complainant in any case in which the complaint has been
made by a Court.
(2) The Court shall ascertain from the public prosecutor or, as the case may be, form
the complainant, the names of any persons likely to be acquainted with the facts of the case
and to be able to give evidence for the prosecution, and shall summon such persons to give
evidence before it.
(3) The Court may refuse to summon any such witness, if it is of opinion that such
witness is being called for the purpose of vexation or delay or defeating the ends of justice.
Such ground shall be recorded by the Court in writing.
(4) When the examination of the witnesses for the prosecution and the examination
(if any) of the accused are concluded, the accused shall be asked whether he means to adduce
evidence.
(5) If the accused puts in any written statement, the Court shall file it with the
record.
(6) If the accused, or any one of several accused, says that he means to adduce
evidence, the Court shall call on the accused to enter on his defence and produce his
evidence.
(7) If the accused or any one or several accused, after entering on his defence,
applies to the Court to issue any process for compelling the attendance of any witness for
examination or the production of any document or other things, the Court shall issue such
process unless it considers that the application is made for the purpose of vexation or delay or
defeating the ends of justice such ground shall be recorded by the Court in writing.
265G. Summing up by prosecutor and defence.
(1) In case where the accused, or any one of several accused, does not adduce
evidence in his defence, the Court shall on the close of the prosecution case and examination
(if any) of the accused call upon the prosecutor to sum up his case where after the accused
shall make a reply.
(2) In cases where the accused, or any one of the several accused examines evidence
in his defence, the Court shall, on the close of the defence case, call upon the accused to sum
up the case where after the prosecutor shall make a reply.
265H. Acquittal or conviction.
(1) If in any case under this Chapter in which a charge has been framed the Courts
finds the accused not guilty, it shall record an order of acquittal.
(2) If in any case under this Chapter the Court finds the accused guilty the Court
shall, subject to the provisions of Section 265-1, pass a sentence upon him according to law.
Under section 265 (F), the prosecution, is thus, called upon to produce its
witnesses and the accused is given full opportunity to cross-examine such witnesses so
that he may shatter their testimony and establish his innocence. The accused is also given
opportunity to make oral or written statements, which are made part of the record. After
close of the prosecution evidence, the accused is called upon to produce its witnesses and
the accused is given full opportunity to cross-examine such witnesses so that he may
shatter their testimony and establish his innocence. The accused is also given opportunity
to make oral or written statements, which are made part of the record. After close of the
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prosecution evidence, the accused is called upon to enter defence and to produce his
documentary or oral evidence. After close of the defence by the accused, the court
proceeds to hear both the prosecution and the defence, i.e. the accused and then decides
the case on the basis of the principles as laid down in law and the superior courts. No
discrimination is made between Muslims and Non-Muslims during this whole process of
trial. The courts always take a serious and strict view of any violation of the above
mandatory procedure. If any violation is found, no matter the accused has been tried for
committing violation of a Blasphemy Law, is acquitted. For example, in case of Qari
Muhammad Younus v. the State, reported in 2001 YLR 484, the Lahore High Court on
technical grounds extended benefit to the accused and acquitted him.
b)
Standard of Proof and Evidence
The law contained in the Evidence Act called as the Qanoon-e-Shahadat governs
the standard of proof. The accused is taken as a favourite child of law and is presumed
innocent unless held guilty by the court. Article 117 of Qanoon-e-Shahadat reads as
under:
“(1) Whoever desires any court to give a judgment as to any legal right or liability dependent on the
existence of facts, which he asserts must prove that those facts exist.
(2) When a person is bound to prove existence of any fact, it is said that burden of proof lies on that
person.
Illustration: (a) ‘A’ desires a court to give judgment that ‘B’ shall be punished for a crime which
‘A’ says ‘B’ has committed - ‘A’ must prove that ‘B’ has committed crime---“
The High Court of Karachi in case Ghulam Abbas v. State, as reported in 1990
Cr.L.J 88, held that burden of proof in Criminal Cases remains at all times on prosecution
except when he pleads his case as falling within any of the exceptions of PPC. Burden of
proving that a person has committed any offence under Blasphemy Laws lies very
heavily on the prosecution and the benefit, if any, always goes to the accused. No
presumption in this regard is drawn against the accused or in favour of the prosecution.
In case of Mst. Shamshad v. the State, reported in NLR 1998 Criminal 385, the
full bench of the Supreme Court of Pakistan observed as under:
“Burden of proof in criminal cases beyond a reasonable doubt squarely rests on
the prosecution. Such burden would not be discharged by weaknesses found in
defence case. Mere fact that defence version is not believed by the court, cannot
lend pretence to prosecution case, if prosecution otherwise has failed to discharge
its burden”.
In the same judgment improper conduct of investigation was strongly condemned
and the concerned SHO / Investigating Officer was made accountable in the following
words:
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“Conduct of investigation in an improper manner by SHO. He making omission
which required an inquiry be conducted by his superior officers because only in
that case his real motive behind the same could be established --- it was high time
that such Police Officers are made accountable and a strong disciplinary action
against SHO be called for”
Under Article 132, 133, 138 & 140 reading as follows, of the Qanoon-e-Shahadat,
after examination in chief of a prosecution witness, the accused is given full opportunity
to cross-examine him:
Art.132.
Examination-in-chief, etc. (1) the examination of a witness by the party who calls him
shall be called his examination-in-chief. (2) The examination of a witness by the adverse
party shall be called his cross-examination. (3) The examination of a witness subsequent
to the cross-examination by the party, who called him, shall be called his re-examination.
Art.133.
Order of examination. (1) Witnesses shall be first examined-in-chief, then (if the
adverse party so desires) cross-examined then (if the party calling him so desires) reexamined. (2) The examination and cross-examination must relate to relevant facts but
the cross-examination need not be confined to the facts to which the witness testified on
his examination-in-chief. (3) The re-examination shall be directed to the explanation of
matters referred to in cross-examinations and, if news matter is, by permission of the
Court, introduced in re-examination, the adverse party may further cross-examine that
matter.
When leading questions may be asked. Leading questions may be asked in crossexamination.
Art.138.
Cross-examination as to previous statements in writing. A witness may be crossexamined as to previous statements made by him in writing or reduce into writing, and
relevant to matters in question, without such writing being shown to him, or being
proved; but, if it is intended to contradict him by the writing, his attention must, before
the writing can be proved, be called to those parts of it which are to be used for the
purpose of contradicting him.
Art.140.
The Lahore High Court of Punjab while considering the case of Senator Lt.
General (Rtd) Saeed Qadir V. State, reported in PLD 1997 Lah 26, observed:
“Cross-examination being a legal engine invented for discovery of truth, full latitude
should be given to the accused”
This right was further emphasized in another case by the Lahore High Court i.e.
in Nusrat V. State as reported in 1997 MLD 1358, in words:
“Right to cross-examine is not an empty formality but a valuable right conferred by law”.
The accused during cross-examination is always at liberty to ask questions from
the witness to test his veracity to discover who he is and what is his position in life or to
shake his credit by injuring his character, although the answer to such questions might
tend directly or indirectly to criminate him or might expose or tend directly or indirectly
to expose him a penalty or forfeiture. In case, he is able to shake the credit worthiness of
the witness, the prosecution is debarred under Article 149 of the Qanoon-e-Shahadat to
bring further evidence for nullifying the effects of such answers during crossexamination. In case the witness makes false answers to the questions during crossexamination, the accused is given a chance to prove the factor of correctness of such
questions.
c)
Principles of Evidence under Islamic Jurisprudence
The Qanoon-e-Shahadat enacted in 1984 incorporates all the principles of
evidence existing in the Islamic Jurisprudence. The Council of Islamic Ideology and the
Federal Shariat Court analysed the Evidence Act of 1872 framed by the British Empire
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19
and agreed with it almost in total but suggested to add a few clauses i.e. respecting
decision of cases on the basis of oath. The clauses of the Evidence Act, were, however,
re-numbered by virtue of the Qanoon-e-Shahadat Order 1984.
The basic principle of Islamic Jurisprudence is that a person accused for
commission of an offence is innocent unless proved guilty by un-impeachable evidence
produced by the prosecution. Burden of proof lies very heavily and always on the
prosecution / complainant & which never shifts on to the accused. For this very reason, a
person against whom the prosecution has levelled charges of committing an offence is
called as “Accused” unless he is proved guilty. The competency and ability to give
evidence is also very strict in the Islamic Laws. A person involved in commission of
bigger sins or who is an habitual liar or who is reputed to be a liar or whose evidence is
tainted with any kind of infirmity is never taken and treated as a truthful / reliable
witness.
d)
Bail in Blasphemy Cases.
The courts in Pakistan have always considered every case on merits while
deciding the question of bail in cases under the Blasphemy Laws. If a case is made out on
merit, bail is always granted. Mirza Mubarak Ahmed Nusrat v. The State, reported in
NLR 1999 SD 588, is a case wherein the accused person was charged with offences
under section 295-C and 298-C PPC on the basis of FIR (First Information Report)
registered on complaint of Majlis Amal Khatm-e-Nabuwat containing acquisition of
offence of distributing Mubalaha Literature requiring indirect proof of accused’s
Mensrea. The Karachi High Court admitted accused to bail on the ground that his case
required further inquiry under section 497 (2) Cr. P.C. Likewise in case titled Naseer
Ahmed vs. The State, reported in NLR 1993 SD 147, the charge against the accused was
of committing offence under section 295-C i.e. the defiling the sacred name of Holy
Prophet (Peace Be Upon Him). The Supreme of Pakistan strictly interpreting the word
defiling allowed bail to the accused. In another case titled Sh: Abdul Qadir alias Abul
Fazal Rashid etc., NLR 1994 Kar 382, the High Court Karachi held the petitioner’s /
accused entitled to pre-arrest bail in a case registered under section 295-A, 295-B and
295-C of PPC, for publication of verses of Holy Quran by Ahmadis in their publications.
Their interim pre-arrest bail was confirmed.
The above precedents prove in unambiguous terms that wherever a fit case is
found, the courts of law in Pakistan never hesitate to grant the relief of bail to the accused
persons even though charged under Blasphemy Laws. However, in case, evidence is
available against the accused and he is fully involved in the case, such relief, obviously,
cannot be granted. The propaganda being made in the West that whosoever is involved in
a case under Blasphemy Laws, is kept in confinement and is always refused bail is,
therefore, totally incorrect.
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e)
Mensrea requirement in Blasphemy Cases.
After trial and hearing the arguments of both the sides, the courts in Pakistan have
always strictly considered and analysed whether the accused had a guilty mind / intention
while committing offences under Blasphemy Laws. If the prosecution fails to establish
mens rea, the accused is always held entitled to benefit of doubt. In case titled
“Muhammad Ismail Qureshi vs. Pakistan” as reported in PLD 1991 FSC 10, The Federal
Shariat Court of Pakistan defined mensrea gave a detailed explanation of what constitutes
mensrea in blasphemy cases.
f)
Standard of Proof and Evidence in Blasphemy Cases.
The precedents mentioned below do establish that in every case under Blasphemy
Law, the court has to see evidence and evaluate the same in accordance with the
principles and the law governing the land. It is always seen in each and every case
whether the prosecution has succeeded in discharging its burden of proving the case
against the accused and whether the accused in entitled to benefit of doubt because of any
infirmity in the prosecution evidence & the principles which have already been discussed
and stated above. In case of Abdul Rehman vs. State, reported in 2001 MLD 1203,
registered under sections 295-B, 295-C and 298-A, the prosecution evidence was found
worth reliance by the High Court of Quetta in the following words:
“The appreciation of evidence --- torn pieces of Holy Quran were recovered from the accused --witnesses deposed that the accused used to pass indecent remarks against the Holy Prophet, Khulfa-eRaashedeen and Ahle Bait --- of the prosecution witnesses who had fully supported the case against the
accused, had neither relationship with each other nor were inimical or biased towards the accused --no reason was found in circumstances for them to depose against the accused on oath --- prosecution
had proved its case against the accused beyond any shadow of doubt ---“.
In case of Qari Muhammad Younus v. State, reported in 2001 YLR 484, where
the accused was charged for committing offence under section 295-C of P.P.C, the
Lahore High Court acquitted the accused after analyzing the entire prosecution evidence
and giving benefit of doubt to the accused in the following words:
“---The accused had denied the allegations levelled against him - complainant party and
the accused party belonged to two rival religious groups, deep rooted enmity between
them and were also proceeded under section 107 / 151 Cr.P.C.---prosecution evidence
was based on hearsay evidence - no person from the members of the meeting in which the
words in question were uttered by the accused, had been examined --- possibility of false
implication of accused, therefore, could not be ruled out”.
The accused acquitted
of the charge.
SHO Police Station Ali Pur Chatha registered a case under sections 295-B and
295-C / 109 PPC vide FIR No. 523 on 25-11-1999 against Issa Masih and his father
Hussain Masih, stating that some torn pieces of the Holy Quran were found in the court
yard of his house and some derogatory remarks were also written against the Prophet
(Peace Be Upon Him). The accused namely Hussain Masih and Issa Masih moved the
petition in High Court Lahore for to quash of the proceedings / FIR. The High Court after
considering the evidence collected by the Investigating Officer and finding the same as
insufficient quashed the FIR and acquitted both the said Christian accused. This case is
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21
reported in 2001 P.Cr.L.J 1003. In case of Riaz Ahmed v. the State, reported in PLD
1994 Lahore 485, a strict interpretation was made regarding the word defile used in
section 295-C of PPC. The Full Bench of the Lahore High Court observed as under:“---Section 295-C --- word “Defile” occurring in section 295-C PPC means to corrupt
security or protection to debase, to make ceremonial unclean, to pollute, to sully, to
violate the sacredness or sanctity of, to discreet, to profane, to sully the honour of, and
to dishonour”
Thus, a very strict interpretation was made asking the prosecution to prove the
case on the above standard. The courts, as such, have to act on the basis of clear and
above board evidence and not on mere presumptions and surmises. Religious passions are
not in the minds of the courts while deciding such cases.
The analysis of the above provisions of law in the light of the judgments
pronounced by the superior courts of Pakistan in unambiguous terms establishes that
before convicting a person under Blasphemy Laws, a strict analysis of the evidence with
regard to intentions of the accused and of his acts alleged to be falling within the mischief
of any of the provisions and the prosecution must prove on record the guilt of the accused
through reliable and unimpeachable evidence.
Blasphemy Laws in Foreign Countries.
Most of the hard lined Muslim States have the same kind of Blasphemy
laws as in Pakistan. The Constitution of Pakistan itself refers to Iran, Afghanistan, Saudi
Arabia and so on.
While comparing the Blasphemy laws in Pakistan it is most appropriate to draw
some attention to the Western and secular states.
Blasphemy Laws in United Kingdom.
The House of Lords in R v. Lemon (1979) AC 617 defined blasphemy as
involving the vilification of Christ, the Christian religion, the Bible, or any subject sacred
to Christians. The existence of common law offence is highly symbolic restriction on free
speech, largely reflecting the special position of the established church with in the state.
As Lord Sumner stated in Bowman v. Secular Society (1917) AC 406,
“Blasphemy was the criminal because it tended to ‘shake the fabric of society
generally’.
However there have been very few examples of prosecution for blasphemy in
recent times. One such example is R v. Bow Street Magistrates, exparte Choudhary
(1991) 1QB 429, where the Divisional Court refused an application for judicial review of
the magistrates’ refusal to issue a summons for blasphemy in respect of Sulman Rushdie
book Satanic Verses. The Court noted that since the Law Commission had recommended
the abolition of the blasphemy offence altogether, there is no use to extend the offence to
other religions. However it should be noted that the Law Commission based their
recommendation on the fact that the most serious blasphemy offences could now be dealt
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with under Public Order offences. And the 2nd reason for the abolition was the change in
the society, which was more or less a multi cultural and it was thought to be inappropriate
to give special protection to Christian religion.
However the Blasphemy (Abolition) Bill never reached its second reading stage
in House of Lords. As noted above the European Convention on Human Rights does
contain a provision on freedom of religion and U.K’s blasphemy laws are indirectly
relied upon ECHR, as in the refusal of the grant of the film certificate to a video titled
Visions of Ecstacy.
Blasphemy Laws in India:In India these laws are dealt with under Article 19(2) of the Constitution.
Indian courts have uphold a provision which prohibited an election candidate from
advocating (or not voting) for any person on the ground of his religion or community in
the case of Dr Ramesh Yashwant Prabhoo v. Prabhakar Kashinath (1996) 1 SCC 130.
The court held in the case that,
“The words ‘decency’ and ‘morality’ in Art 19(2), which permits the freedom
of expression to be limited, should not be confined to sexual morality alone.
The Indian Constitution was explicitly secular. Further promoting hatred
between classes of citizens tended to create public unrest and disturb public
order. Given their influence, politicians had a particular duty to circumspect
in their language.”
As noted above there are number of incidents which amounted to blasphemy and the
measures adopted by the authorities and the government are in fact a breach to
fundamental rights. It cannot be said that these measures should not be adopted but the
issue here is to maintain law and order in the country such steps are necessary.
As noted above the case of Sulman Rushdie book on Satanic Verses, the Iranian
Government issued a Fatwa (declaration) for a reward on Sulman Rushdie on the grounds
of Blasphemy.
4)
MISUNDERSTANDINGS ABOUT BLASPHEMY LAWS.
Misunderstandings have existed in the West about Islam, its principles and
jurisprudence. People of secular minds backed up by forces having motives of defaming
Islam and Pakistan in particular, but having little knowledge about the laws, the
procedure and decisions of courts are giving air to these misunderstandings. Islam is not
being looked into in its true prospective.
The movement by the International Humanist and Ethical Union at present on
Internet and Press is not based on correct facts and circumstances prevailing in Pakistan.
Dr. Younus Sheikh faced investigation and then trial for committing offence under
section 295-C of Cr.P.C. The court proceedings were held in normal independent style.
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He was found guilty by the trial court on the basis of evidence produced before the court.
He was given a fair trial. He was awarded sentence and under the law of the land. He had
a right to appeal in High Court within seven days, which period is prescribed under the
law for all cases where death sentence is awarded by a court. He filed appeal in the High
Court within time. A division bench of the High Court shall decide the appeal purely on
merits, i.e. on the basis of evidence produced on record. It is pertinent to note that in
appeal Dr. Younus Sheikh has not said a word against the conduct of the trial, and
independence of the Judge. After arrest he was confined in Jail in normal conditions,
which cannot be said to be barbaric or inhuman. In the Internet Message, the said Agency
has not taken note of the fact that the trial court as well the superior courts have acquitted
several persons but have convicted only a few, where the charge was established beyond
doubt. The said internet message reflects of the prejudiced mind against Pakistan.
The case of Ayub Masih was also tried on merits and having been found guilty of
the charge, he was awarded the sentence. Appeal against the judgment was heard by two
Judges of the High Court. The case stood fully established and proved against him. The
evidence on record could not be impeached by the accused resulting in dismissal of the
appeal.
The murder of Arif Iqbal Bhatti was because of other reasons about which
detailed investigation is underway. To link up his murder with his decision of acquitting
certain accused of a Blasphemy case is clearly a malafied approach.
The Union sponsoring the above movement should first of all collect true and
correct facts from the courts and then decide the matter. Simply basing on fake
information, which mostly is hearsay, it will not be justified to form definite opinion
about Pakistan judiciary and the legal system.
5
Conclusion:
As already discussed above, in Pakistan Muslims are a dominant majority. They
practice Islam in true sense and are concerned about the glory of Islam, their Holy Book
Quran, their Holy Prophet Muhammad (Peace Be Upon Him) and all their religious
leaders. Pakistan society is not a secular society. Pakistan was created on the basis of
Two-Nation Theory. Derogatory remarks against the Holy Prophet and the Holy Book
are not tolerable and if such an incident takes place, it definitely disturbs the public at
large creating a law and order situation and which itself is a justification for enforcement
of Blasphemy Laws. This action on the part of the Government has all sort of legal
covers nationally and internationally. Judgments of the superior courts of England, India
and United States in support can be referred and have already been cited above. However,
as already stated above and in any case if the judgments respecting Blasphemy Cases are
looked at in detail, it will be clear that no one has ever been convicted without a solid
proof, a fair trial and in violation of any law. Besides, it should also come in the
knowledge of critics that a few have been convicted while hundreds have been acquitted
Alam Mansoor
24
by the same courts. The said laws are applicable to both Muslims and Non-Muslims. All
citizens of Pakistan have rights and have liabilities as well and have to follow the law at
the same time. Blasphemy Laws are, therefore, justified and in fact a necessity in view of
the circumstances prevailing in Pakistan.
C)
Bibliography
The preamble and Chapter 1, 2, 3-A & Part IX of Constitution of Islamic Republic of
Pakistan
Chapter XV of Pakistan Penal Code of 1860
Chapter 21-A of Criminal Procedure Code of Pakistan of 1998
Chapter IX & X of Qanoon-e-Shahadat 1984 previously named as Evidence Act 1872
Libel & Slander by Odger
Privacy and Freedom of Expression, by Richard Clayton & Hugh Tomlinson Oxford
Publications
Fundamental Rights in Europe, By Robert Black burn& Jorg Polkaiewicz.
Obligations Law ofTort, HLT Publications.
Constitutional Law HLT Publications.
Total Words : 10572
No of pages : 32
D
Table of Cases and Statutes.
Miss Benazir Bhuttoo v. Federation of Pakistan, PLD 1988 S.C. 416,522,523. 2&4
B.Z. Kaikos & others v. The President of Pakistan, PLD 1980 S.C. 160
03
Govt. of N.W.F.P. v. Malik Said Kamal Shah, PLD 1986 S.C. 360
04
Haji Qudrat Ali v. Govt. of N.W.F.P., 1987 SCMR 945
04
Abdul Rehman Mobashir and 3 others v. Syed Amir Ali Shah Bukhari & others, PLD
1978 Lah 113
08
1799), 27 St, Tr, 642 at Page 675
09
A.G v. Guardian Newspaper Ltd (No. 2) (1990) 1 AC 109at 283-284:
10
Goldsmith v. Pressdram(1976) 3 WLR 191
10
Bowman v. United Kingdom(1998) 26 EHRR1
11
Steel v. United Kingdom(1998) 28 EHRR 603
11
Hashman and Harrup v. United Kingdom(2000) 8 BHRC 104
11
Odyssey Communication Pvt Ltd v. Lokvidyavan Sansthan (1988)
3SCC 410,414 para 5.
12
Madras v. VG Row (1952) SCR 597, 607
12
Express Newspaper Ltd v. Union of India, AIR 1958 S.C. 578
12
368 U.S. 652, 47 SC.p 641 and 274 U.S 357:
12&13
AIR 1962 S.C. 305
13
Mirza Khurshid Ahmed v. Govt. of Punjab, PLD 1992 Lah Page 1
14
Muhammad Khalil v. The State, PLD 1962 Lah Page 850
15
Zaheer-ud-Din & others v. State 1993 SCMR 1718
15&18
Mujeeb-ur-Rehman v. State 1993 SCMR 1718
18
Qari Muhammad Younus v. State 2001 YLR 484
21&26
Ghulam Abbas v. State, 1990 P.Cr.L.J. 88
22
Mst. Shamshad v. State, NLR 1998 Cr. 385
22
Senator Lt.General (Rtd) Saeed Qadir v. State PLD 1997 Lah 26
23
Nusrat v. State, 1997 MLD 1358
24
Mirza Mubarak Ahmed Nusrat v. State, NLR 1999 SD 588
25
Sh:Abdul Qadir alias Abul Fazal Rashid etc., NLR 1994 Kar 382
25
Naseer Ahmed v. State, NLR 1993 SD 147
25
Muhammad Ismail Qureshi v. Pakistan PLD 1991 FSC 10
26
Abdul Rehman v. State 2001 MLD 1203
26
Hussain Masih & another Vs. SSP Gujranwala, 2001 P.Cr.L.J. 1003
27
Alam Mansoor
25
Riaz Ahmed v. State, PLD 1994 Lah 485
R v. Lemon (1979) AC 617
Bowman v. Secular Society (1917) AC 406,
27
28
28
R v. Bow Street Magistrates, exparte Choudhary (1991) 1QB 429
28
Dr Ramesh Yashwant Prabhoo v. Prabhakar Kashinath (1996) 1 SCC 130
29
E
Table of Statutes:
Preamble of the Constitution of Pakistan.
01,07.
The Constitution of Pakistan.
Art 2
03
Art 8-10
07,08
Art 19
07,08,09,14
Art 20
07,08,14
Art 21
08
Art 25
07,08
Art 36
07
Art 227
03
art 203 (A) to (J)
03,04
Pakistan Penal Code (PPC)
Art 295-298(c)
14,16,17,18,19,25,26,27,30.
Chapter XV
16
Criminal Procedure Code of Pakistan
(Cr.P.C)
20,21
Sec 265
20
Sec 497
25
Qanoon-e-Shahadat (Evidence Act) Act
Sec 117
23
Sec 132,133
23
Sec 138
23
Sec 140
23
Qanoon-e-Shahadat Order 1984
24
Art 19 of The Constitution of India
12,29
Human Rights Act 1998
10,11
Public Order Act
10
European Convention on Human Rights
10
Art 2--12
11
.Internet Sites.
South Asian Human rights documentation centre, “ Time to put Pakistan’s Blasphemy laws on trial” Dated
Feb 15, 2002.
“ Pakistan: Blasphemy laws should be abolished”, News release issued by International Secretariat of
Amnesty International,
August 21, 2001.
“Pakistan: Demand the overturning of death sentences in Blasphemy cases”, Article by Women living
under Muslim laws.
Alam Mansoor