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Blasphemy Laws in Pakistan: Make them better if not change them

October 4, 2012

The paper reproduced below suggesting procedural changes in the ‘blasphemy laws’ is published here with permission from the author Amer Nadeem, Attorney at Law/ Legal Consultant; he has worked with various government organizations and NGOs on issues pertaining to human rights and has also initiated campaigns. Originally published December 19, 2010 at this blog.

This paper is based on compiling laws, reported cases and my personal experience as a lawyer engaged in a number of blasphemy cases and court proceedings. The suggestions contained here pertain to changes in procedure rather substantive laws, and can be helpful to prevent the innocent from being victimised by these laws, particularly the depressed and downtrodden sections of  society, including religious minority who are vulnerable to these laws. The essence of the law is always to reach the truth.

Blasphemy Laws in Pakistan: Make them better if not Change

By Amer Nadeem, Attorney at Law

Blasphemy in Modern World

The concept of blasphemous legislation is not novel in the modern world. In a number of countries the blasphemy acts or omissions as offences can be traced out. Ireland may be the most recent example. In January 2010, in Ireland the blasphemy law was enacted and now law of the land. In Ireland laws Blsaphemy is described as “publishing or uttering matter that is grossly abusive or insulting in relation to matters sacred by any religion, thereby intentionally causing outrage among a substantial number of adherents of that religion, with some defences permitted”.

In England all blasphemies against God, the Christian religion, the Holy Scriptures, and malicious revilings of the established church, were punishable by indictment. The common law offences of blasphemy and blasphemous libel were abolished by the Criminal Justice and Immigration Act 2008. Similarly, in a recent verdict by Supreme Court of Malaysia, the blasphemous laws of 1965 have been upheld. In United Arab Emirates & Bangladesh blasphemy is crime.

This offence has been enlarged in Pennsylvania, and perhaps most of the states, by statutory provision. Vide Christianity; 11 Serg. & Rawle, 394. 1 East, P. C. 3; 1 Russ. on Cr. 217. In France, before the 25th of September, 1791, it was a blasphemy also to speak against the holy virgin and the saints, to deny one’s faith, to speak with impiety of holy things, and to swear by things sacred. Merl. Rep. h. t. The law relating to blasphemy in that country was totally repealed by the code of 25th of September, 1791, and its present penal code, art. 262, enacts, that any person who, by words or gestures, shall commit any outrage upon objects of public worship, in the places designed or actually employed for the performance of its rites, or shall assault or insult the ministers of such worship in the exercise of their functions, shall be fined from sixteen to five hundred francs, and be imprisoned for a period not less than fifteen days nor more than six months. In Spain it is blasphemy not only to speak against God and his government, but to utter injuries against the Virgin Mary and the saints. {1}

Defamation of religion is an issue that has been repeatedly addressed by the United Nations since 1999. In that year, Pakistan brought before the United Nations Commission on Human Rights, under the agenda item on racism, a resolution entitled “Defamation of Islam.” The resolution expressed concern at the negative stereotyping of Islam, and urged the members of the United Nations to combat religious intolerance against Muslims. The Commission adopted the resolution after its title was changed to “Defamation of religions,” and its purport was changed to embrace all religions. Each year between 1999 and 2006, the Commission approved similar resolutions. In March 2006, the Human Rights Commission became the United Nations Human Rights Council. The UNHRC approved similar resolutions for 2006 and thereafter. Beginning in 2005, the United Nations General Assembly adopted annually a resolution entitled “Combating Defamation of Religions”. On 25 March 2010, 20 members of the UNHRC voted in favour of a resolution entitled “Combating defamation of religions”; 17 members voted against the resolution; 8 abstained; 2 were absent. {2}.

Publishing of caricatures in the newspapers of Sweden & Norway added with recent facebook pages issue have initiated a new debate on the laws of Blasphemy. Despite the fact that the presence of blasphemy laws is there in various countries of the world, a comparison of those clauses & practice with Pakistan scenario reveals two considerable factors; first the complaints of misuse of these laws are rare, second magnitude of sentence is mild in.Whereas in Pakistan, the scenario is entirely different.

{1}. http://legal-dictionary.thefreedictionary.com/blasphemy
{2}. http://www.answers.com/topic/defamation-of-religions-and-the-united-nations

Dawn of Blasphemy Laws in Pakistan

The history of blasphemy laws in Pakistan is as old as the advent of criminal penal laws. The ex-rulers of the sub continent, the Britishers were well aware of the religious sentiments of people of the land. It was land of five major religious communities; the Hindus, the Muslims, the Sikhs, the Buddhists and the Christians. The people were highly sensitive to protect their religious values. The element of orthodoxism blended with liberal saint preaching was order of the day.

It was 1860, when the law of Penal Code was enacted in the sub-continent. The Code after partition of sub-continent was titled as Pakistan Penal Code. The chapter XV (fifteen) pertains to the blasphemous laws. It was part of the original code of 1860. The chapter consists of four sections. They numbered from 295 to 298. However, in preceding years a number of additional sub-clauses were added. Basic purpose of the chapter was to provide punishments, which are rather mild in their nature, for injuring the religious feelings of any citizen of the land. These punishments were ranging from one to two years. The mense rea (bad intention) was essence of the offences.

The act of injuring or defiling place of worship with the intention to insult the religion of any class is declared an offence. The punishment for the offence is provided in section 295 of Pakistan Penal Code as two years or fine or both. The offence is cognizable, bailable and non compoundable.

To disturb a religious assembly including worship or ceremonies is an act of offence under section 296 of Pakistan Penal Code. The punishment provided in the clause is one year or fine or both. The offence is declared as cognizable, bailable and non compoundable, as amended in 1927.

The legislators of that time was conscious even to the extent that the trespassing on any burial / funeral place or humiliate a dead body was declared as an offence under section 297 of Pakistan Penal Code. The punishment provided for the offence is one year sentence, or fine or both. The offence is declared cognizable, bailable and non compoundable.

At the last but not least, the act of wounding the religious feelings of any person is declared as an offence under section 298 of Pakistan Penal Code with the punishment of one year sentence or fine or both. The offence is declared non cognizable, bailable and compoundable.

In the coming years of the reign of the Britishers, the circumstances and ground realities compelled the rulers to bring new stern blasphemy laws to meet with the unavoidable needs of the day. It was 1927, when the act of outraging/insult the religious feelings/beliefs of any person of the land was declared as crime. The section 295 A was added with punishment of ten years as sentence or fine or both. The offence is non cognizable, non bailable and non compoundable. The offence was declared as offence against state, private person can not initiate proceedings against the accused. Under section 196 of Criminal Procedure Code, it is only the state or provincial government who can take up the matter to the court.

During the days of Military Dictator Gen. Zia-ul-Haq a number of sections in the blasphemy laws were added in Pakistan Penal Code. In 1982, defiling or desecrating of Holy Quran was declared as offence with punishment of imprisonment of life (25 years) via section 295 B. In 1986, through 295 C the blasphemy of Holy Prophet Muhammad (PBUH) was declared offence with death penalty or imprisonment of life. These two sections are cognizable, non compoundable and non bailable. Furthermore, in 1980, the blasphemous remarks or acts towards companion (SAHABA), family members of Holy Prophet (PBUH) was declared as an offence punishable with three years of sentence, in section 298-A. Whereas, in 1984, certain activities and practices of Qadyani group were declared unlawful via section 298 B and 298 C both with three years sentence.

Nature of Offences……. Cognizable and Non Cognizable

In Pakistani criminal procedure laws, offences are divided into two categories, cognizable and non cognizable. Cognizable offence means an offence in which Police can register direct criminal case, initiate the investigation and arrest the accused without interference of the court. In these offences Police has unfetter powers to proceed on getting information that a cognizable offence has been committed. In the cases the Police officer is not required to consult or inform or get permission from the concerned magistrate/judge. In these matters whole the process of the registration of the criminal case, investigation, arrest of the accused and other relevant proceedings lie with the whims and caprice of Police officials. {1}

In non cognizable offence Police can not register the criminal case or proceed investigation without permission of the magistrate/judge. In these offences, on receiving information through any means or informer, the Police official is duty bound to refer the matter with informal to the magistrate. Then it is court to go through the matter/information of the offence, if the court deems fit case of further proceeding then the Police is permitted by the magistrate to investigate and/or arrest the accused. {2}

It can be safely said that in non cognizable offences possibilities of booking innocent persons in the cases is dim. A preliminary enquiry like proceeding is conducted by the magistrate/judge, then criminal proceedings are initiated. As it is mentioned above that the offences of 295 A and 298 of PPC is non cognizable, whereas other offences are cognizable.

{1} (For reference sec 4 F, 154 and 156 of Cr.P.C.)
{2} (For reference sec 155 of Cr.P.C.)

Who are the victims?

Lahore High Court Division Bench while acquitting an accused of 295 C of PPC, who was under death penalty, referred a report of news paper as under {1}:

“It appears that ever since the law became more stringent, there has been an increase in the number of registration of the blasphemy cases. A report from theDaily Dawn of 18th July, 2002, says that between 1948 and 1979, 11 cases of blasphemy were registered. Three cases were reported between the period 1979 and 1986. Forty four cases were registered between 1987 and 1999. In 2000, fifty two cases were registered and strangely, 43 cases had been registered against the Muslims while 9 cases were registered against the non Muslims, The report further states that this shows that the law was being abused more blatantly by the Muslims against the Muslims to settle their scores. Because the police would readily register such a case and without checking the veracity of the facts and without taking proper guidance from any well known and unbiased religious scholar, would proceed to arrest an accused. That an Assistant Sub Inspector or a Moharrir was academically not competent to adjudge whether or not the circumstances constitute act of blasphemy.”

{1} P L D 2002 Lahore 587

Misuse of Blasphemy Laws
The blasphemy laws in Pakistan are being misused in mostly cases. Thanks to the uneducated, unskilled and ill motivated Police Officials dealing with the criminal cases, defective investigation and ignorance of law and procedure are the root cause of misuse of blasphemy laws in Pakistan. In the last pages it has already mentioned that with the enhancement of punishments the number of registered cases are at high. The malice of complainant and ill will investigation in the most cases are self evident from the fact that in ninety percent cases the accused of blasphemy laws are acquitted. The above stated position has mentioned in a number of High Court judgments. Even Lahore High Court went ahead to give some procedural directions to the Police.

Increase in the number of registration of blasphemy cases and element of mischief involved therein calls for extra care at the end of the Prosecuting Officers. Failure, inefficiency and incompetence of the Investigation in handling the case of blasphemy is there. Lahore High Court, in circumstances, directed the Inspector-¬General of Police of the Province to ensure that whenever such a case is registered, the same may be entrusted for purposes of investigation to a team of at least two Gazetted Investigating Officers preferably those conversant with the Islamic Jurisprudence and in case they themselves are not conversant with Islamic law, a scholar of known reputation and integrity may be added to the team and the team should then investigate as to whether an offence is committed or not and if the team comes to the conclusion that the offence is committed, the police may only then proceed further in the matter. Trial in such a case be held by a Court presided over by a Judicial Officer who himself is not less than the rank of District and Sessions Judge. {1}

{1} P L D 2002 Lahore 587

There is no secret that the blasphemy laws are being used to dig out the personal grudges and enmity between the parties. It is a strange fact that in a number of cases blasphemy clauses are added with the offence of theft, robbery, murder etc. It is difficult to understand that what is the nexus between blasphemy act and theft or robbery or murder. It seems that sometime the complainant to meet their desire to involve the culprits/accused in an offence of heinous nature, the blasphemy clauses are added.

Decades ago in the late 80s in the district of Larkana, an armed feud took place between two tribes. Both the tribes had history of old enmity. In the conflict, one tribe attacked other with deadly weapons caused fire armed injuries, set their houses on fire and snatched valuable goods with them. The Police registered case against 79 nominated accused and 30 unidentified accused persons under the offences of attempt to murder, burning houses and dacoity. Just to aggravate the case section 295 was added. There was no act of blasphemy but the clause was added. {1}

There was a dispute between the caretaker/employ of Muslim Oqaf government of Pakistan and a claimant of Gaddi Nasheen of a shrine in Jhang. Suddenly a conflict took place on the distribution of money in saving box of the shrine. The claimant of the Gaddi/Shrine registered a criminal case of blasphemy against the caretaker of the shrine. The Supreme Court of Pakistan turned down version of the complainant and declared the case as out come of personal enmity. {2}

In Lahore, there were criminal cases between two Christian persons, N and A. The A was witness against N and his father in a criminal case. The N and his father were accused persons in the case. N converted to Islam and after three months registered a blasphemy case against A, just to pacify his old grudge. The case was based on previous enmity and false one. {3}

{1} 1990 P Cr. L J Page. 609
{2} 2007 SCMR Page 1931
{3} 2005 P Cr. L J Page.1636

In Muzaffargarh, on enmity of two parties four persons were murdered, element of sectarianism was also there. The case was registered for the offence of murder, attempt to murder, illegal arms and blasphemy clause. The contention to the extent of blasphemy act was not accepted. {1}

In Talla Gang, the violence erupted between the followers of two sects. The Police on the application of one sectarian group registered criminal case against the other group. The case was registered on the offences of theft, set the building and vehicle on fire, damage to property, attempt to murder and the clause of 295 of PPC was also added in the case. {2}

A street dispute arouse in Jalaal Pur Jattan, Gujrat, between two sects. Each was claimant of the street and wanted to open a door in the street. On this issue a quarrel took place. One sectarian group was able to register criminal case of blasphemy clause along with other offences. {3}

In Sindh, one was able to get registered a criminal case against his opponent on kidnapping, grievious injury/hurt, theft and blasphemy clause was also added. Obviously, it was to enhance the magnitude of the case and sensitize it. Sindh High Court turned down the complainant’s version. {4}

In a district of Punjab, on account of old enmity one alleged that his opponent ceased to be Muslim and had converted to another religion. He requested for the registration of criminal case against his opponent on the charges of blasphemy. The opponent appeared in the court and stated that he is staunch Muslim. The court refused to accept the blasphemous version. {5}

{1} 2005 YLR Page 1856
{2} 2001 P Cr. L J Page 1981
{3} 1993 P Cr. L J Page 2410
{4} 1994 P Cr. L J Page 1760
{5} 2006 YLR Page 1766

Even a serving Major General of Army, who was posted as chairman WAPDA in 1977, was victim of blasphemy laws. While addressing in WAPDA house Lahore, to the employees on the topic of completion of Tarbela Dam project. The chairman was emphasizing that it would be a great service to Pakistan if the project be completed within time and dedication. Hot words were exchanged with some employees. The chairman was victim of blasphemy allegation. He was sacked from his job. However, Lahore High Court exonerated him from the charges of blasphemy and dropped the criminal proceedings against him. {1}

In Nawab Shah, Sindh, the Police officials were holding a search picket on a street. Some persons were ordered to be stopped for checking. A quarrel and exchange of abusive language took place there between the police and the persons. Illegal arms were recovered from the persons. Out of the grudge the Police registered case of offences in illegal arms, abstracting Police Officials from their duty and blasphemy clause 295 A of PPC. Sindh High Court acquitted all the accused from the charges with stern remarks against the Police Officials on their ill willed conduct. {2}

Beside personal enmities, ignorance of law and procedure are also one of the causes of misuse of these laws. Like in case of 295 A of PPC criminal case can be registered by an authorised officer of the Provincial government. A private person cannot be complainant/informer in the offence. Practice transpires another story. In a number of cases the legal procedure was over looked either by ignorance or with malice. {3}

{1} PLD 1978 Lahore Page 1082
{2} 2005 P Cr. L J Page 1683
{3} 2010 MLD Page 235, PLD 2005 Lahore Page 631, 2003 YLR Page 3137

Even in a number of cases incompetency on the part of Police was havoc for the accused persons, allegedly involved in the blasphemy cases. In the district of Sibbi, Balochistan, accused was booked in the blasphemy case on the statement of another accused. The investigation was defective. The Trial Court sentenced the accused person as life imprisonment. Quetta High Court acquitted all the accused declaring them innocent. {1}
In the city of Pasroor, Sialkot, a blasphemy case was registered. The Police arrested the accused and without proper investigation sent him in Jail. Whole the process was completed within less than 24 hours. Lahore High Court declared whole investigation and process null and void, acquitted the accused. {2}

Women are rarely booked in blasphemy cases. In the town of Raiwind, Lahore, a blasphemy case under 295 and 295 A of PPC and other clauses was registered against Sardaran Bibi. The complainant in the case alleged that the lady was used to give Taveez Ganda and she scribe Holy Verses in the process. It was version of the complainant that the lady committed blasphemy. The Lahore High Court did not agree with the version. {3}

Similarly, in another case in Changa Maanga, Lahore, a woman named Martha Bibi was booked in blasphemy offences. {4}

{1} PLD 2009 Quetta Page 1
{2} 2003 YLR Page 2422
{3} 2007 P Cr. L J Page 342
{4}2008 YLR Page 274

What To Do?

In the forgoing pages I have endeavoured of my best to avoid my personal findings or views. Purpose of this paper is to show a simple picture regarding the blasphemy laws, procedure and reported cases. At the stage some suggestions can be beneficial to mend the system. All efforts intend to save the innocents from the clutches of obsolete procedure and rotten investigation process.

  • Blasphemy offences be declared as non cognizable offences. In the case Police would be duty bound to refer the matter to the Court. The Magistrate/Judge would thrash out the veracity of the complaint/allegation. In case magistrate/judge finds the allegation true, the Police would be allowed to proceed/investigate.
  • The directions of Lahore High Court in P L D 2002 Lahore 587 be implemented in letter and spirit. In the direction, the Court has ordered IG Punjab to ensure that whenever a blasphemy case is registered, the case be investigated by a team, consisting of at least two Gazetted Investigating Officers preferably those conversant with the Islamic Jurisprudence and in case they themselves are not conversant with Islamic law, a scholar of known reputation and integrity may be added to the team and the team should then investigate as to whether an offence is committed or not and if the team comes to the conclusion that the offence is committed, the police may only then proceed further in the matter. Trial in such a case be held by a Court presided over by a Judicial Officer who himself is not less than the rank of District and Sessions Judge.
  • To sensitize and train the Police Officials regarding the blasphemy laws with the history background and true spirit of the clauses and procedure of investigation. With focus on apprising them how the laws are being misused.
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