Mumtaz Qadri’s bogus defence

Published: September 28, 2011

The defence for Mumtaz Qadri, the self-confessed murderer of slain Punjab governor Salmaan Taseer, has adopted a simple strategy to save the remorseless killer. Taseer’s statements were “unbecoming of a Muslim” and therefore Qadri, a devout Muslim, could not control his emotions and resorted to an instantaneous act. For good measure, the court hearing the case was also told that Taseer’s statements could have inflamed the passions of any Muslim which means that even if Qadri had not committed this heroic act, someone else would have.

So, Qadri’s lawyers are presenting his act as sudden provocation, automatism in legal terms, meant as a defence by negating the existence of actus reus, the actual act of committing a crime. This is supplemented by referring to religion, religious teachings and the sanctity of the Prophet (PBUH) not just to ground the automatism plea but to appeal to the court’s own conscience and piety.

Implied in this is also a veiled threat that some issues stand above and beyond the law and institutional hierarchy and must be treated on a touchstone other than that which placed Taseer in a position of authority. Ironically, this effect is to be achieved by referring to Taseer’s alleged conduct as violative of the blasphemy law and the inability — or unwillingness — of the state to proceed against him which, in this case, forced Qadri to act on his own. The inevitability of Taseer’s murder is argued by the defence as “if Qadri had not killed him, someone else would have”.

It should be clear that Qadri’s lawyers are cleverly relying on chunks of law even as their underlying argument is grounded in the justification of the act as being religious and supra-legal and therefore not to be judged on the basis of legalities.

The problem with this defence is not just its logical inconsistency but also the fact that Qadri’s act, from what we know, does not fall under the automatism plea. He murdered Taseer in cold blood and with meticulous planning. He was waiting for an opportunity and when he found it, he unleashed his fire power on a defenceless, unsuspecting man.

The questions, therefore, do not relate to provocation. Even if we factor out common legalities, we are left with at least two questions: what does the tradition say about someone killing a person he is entrusted to protect and do so through deception, which is what Qadri did? Two, is it acceptable defence under Islamic law if someone says that he executed another person because the latter had done something un-Islamic and the state didn’t act, forcing him to take the law into his own hands?

My queries to some scholars tell me that the tradition is clear on both counts. For instance, most exegetes believe that the Holy Quran (8:72) points out that jihad, even against those who were opposing the Prophet (pbuh) and oppressing Muslims, was not permitted in violation of a treaty. In effect they agree that a promise or trust must be honoured. Qadri broke the trust through deception.

Similarly, taking the law into one’s own hand is strictly prohibited by all mainstream Sunni jurists (for example, Qazi Abu Bakr Jassas in his Ahkam al-Quran points out that jihad or implementing hadd cannot be permitted without the authority of the ruler, in modern times the state, not the clerics and certainly not by a semi-literate policeman.

On both counts the exegetes say the crime committed by Qadri may be punishable by death. This makes sense because if it is accepted that the organising principle under Islam is the state then it cannot be argued that because the state did not act an individual has the right to do so. One doesn’t need to be a logician to see the chaos such an argument would unleash on a collection of people. In fact, going by what we are witnessing, one doesn’t require conceptual finesse to understand it. There is enough empirical evidence for even a village idiot to appreciate the consequences of such an approach.

But let’s assume for the sake of the argument that Taseer had crossed a line. Exegetes agree that he would still have the luxury of a trial and a defence. Let’s now assume that Qadri is right in saying that the state did not act against Taseer. He, like any other citizen of this country, could have taken the issue to the court. But he did not because he wanted to emerge a hero and in this country that means committing a spectacular act of violence in the name of Islam. He is already a hero, a murderer raised to the level of a saint that is even respected by the jail staff.

Imagine if he is let off.

Published in The Express Tribune, September 29th, 2011.

 

Reader Comments (35)

  • Feroze
    Sep 28, 2011 - 11:02PM

    God help PAKISTAN if the court falls for this line of defence that this satanical killers lawyers have presented.

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  • curious1
    Sep 28, 2011 - 11:12PM

    In the presence of several witnesses a murderer is living in a jail with five star amenities as a hero with the protection of some religious mafia that civil and military might can’t enforce law but delays. What a banana Islamic Republic!

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  • M Baloch
    Sep 28, 2011 - 11:28PM

    If you can justify 500 Shias are killed in Quetta because state didn’t act while they were eating big cakes imported from Iran why do you object when when Taseer sb. was having a dinner at an expensive restaurant having imported items from EU & USA? Isn’t it trange logic, paradoxical rationalism..!
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  • John B
    Sep 28, 2011 - 11:36PM

    Let the PAK answer these questions honestly.

    The individual is charged under common law. So we all agree the confession of murder should bear some punishment.

    What if the same case is brought before the Sharia court? Won’t his argument have credibility then?

    If a psychiatrist raised in a secular society can be brain washed to kill his own colleagues in Fort Hood, Texas, how does Qadri’s defense become bogus in PAK?

    He is not the underlying problem. If his defense is bogus, the Asia Bibi and her companions should be released. Asia Bibi and Qadri cases are as interlinked as Taseer and Bhatti’s assassinations. Recommend

  • Seher
    Sep 28, 2011 - 11:42PM

    Just goes to show where our country stands and what it has become. A place where murderers are given the status of a ‘Hero’. A place where religious tolerance is ‘Zero’. A place where people get away committing the most heinous of crimes. A place where there is absolutely no law and order.

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  • Nadir Khan
    Sep 29, 2011 - 1:02AM

    Two thumbs up Ejaz Sahib !!!

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  • Deb
    Sep 29, 2011 - 1:54AM

    @Seher

    ‘A place…’ A place…’ A place….’ no matter what you think this place is or was, it has become a place that ‘Jinnah worked for’ not ‘the place he wanted’.
    Understand the difference!

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  • Noor Nabi
    Sep 29, 2011 - 2:18AM

    You make a good argument in your article. But, at the end of the day, not only will Qadri be let off but will also emerge as a hero of a sick and perverse society.

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  • Salman Arshad
    Sep 29, 2011 - 2:20AM

    So you support the blasphemy law and you are being so kind as to advocate the necessity of a trial for Taseer.

    If the blasphemy law is legitimate, its basic principle is legitimate, and Qadri has done the right thing.
    It is pretty obvious that Taseer would not have been punished for his utter blasphemy.
    The blasphemy law is supported by anecdotes from the Prophet’s life itself, and from those of the later Khalifas. Going against them is definitely blasphemy.

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  • Nadeem Qadri
    Sep 29, 2011 - 2:31AM

    In a country where major political parties have militant wings, State sponsors Jihad in individual capacity and on sectarian grounds, Militants are considered strategic assets, what’s the issue with the only murder of Mumtaz Qadri, who bravely confessed it, and even if he gets released.

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  • Mirza
    Sep 29, 2011 - 3:11AM

    After this case rapists in Pakistan would have a easy defense. If I would not have raped that woman (who was alone and not in Burka) somebody else would have done it. So much for this degenrate society!

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  • Khan
    Sep 29, 2011 - 3:27AM

    An example must be made of Quadri. This is why the death penalty exists, for cases like this, when a single man thinks he is the law. He is a blot on Islam and deserves no mercy. Go to hell Quadri. God may have mercy on you but we humans will not.

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  • wahab
    Sep 29, 2011 - 5:25AM

    If Qadri is not hanged, releigious extremism will be promoted in Pakistan and any one will kill the other person and blame him for blasphemy.

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  • Adil
    Sep 29, 2011 - 9:47AM

    It just shows how spineless and shameless as a society we have become. Condoning a murder for whatever reasons highlights the sickening state of affairs of our country

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  • vasan
    Sep 29, 2011 - 10:10AM

    Wahab : Religious extremism is already widely prevalent in pakistan and need not be promoted any more. It has become a bush fire spreading far and wide. Damages done are quiet high. Qadri’s punishment will only show that the state is against any individual taking the law unto himself. Any other religious tilt to this case will get Qadri free and the wild fire would have fuel added to it.

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  • Fateh Mohammed
    Sep 29, 2011 - 10:33AM

    Logic of provocation should be unacceptable , murder of a human being illegally can not be justified on any ground except through the application of law . Those who are not tired of repeating that an individual or human ‘ s murder is equivalent to the murder of humanity , they are nowhere to be seen . Look at Taliban the standard bearer what respect do they have for human life on the streets ,schools and hospitals of Pakistan . They will understand the need to be balanced thoughtful and tolerant only through German and Japanese treatment .Theses are now normal nations in an international system .Recommend

  • Hassan K Bajwa
    Sep 29, 2011 - 10:48AM

    @ Salman

    I fail to see how anecdotes of the Prophet’s (PBUH) life trumps the fundamental principles of the Quran and Islam. Fact is the that utter mercilessness of the blasphemy laws, the dismissal of the concept of intent and the insistence upon the death penalty goes completely against the fundamental merciful, tolerant and just nature of Quranic teaching.
    To say that anecdotes carry enough weight to abrogate and dismiss basic fundamental islamic principles is in fact a far far greater blasphemy than anything the alleged blasphemers have ever accomplished. You are in essence choosing the intolerance and vindictiveness of these anecdotes over the mercy and peace of the Quran. Puhleeze!

    But let’s for argument’s sake say that the blasphemy laws are fine. How does anything in the Quran justify a vigilante killing of an unarmed man? How does islam view killing without due process and without the chance for the accused to defend his statements? How can one justify murder?

    Fact is that the Quran does NOT accept such behavior, which is why Qadri has mounted his bogus “temporary insanity” defence. If he were tasked with proving his innocence by islamic law, he would not have a leg to stand on. That’s why his lawyers are in fact asking the judiciary to IGNORE the fact that he committed murder because he’s such a “good muslim”. Their defence rests on whether Taseer deserved to be killed and not on Qadri’s right to do so. You see they cannot in any way prove that he was entitled to committing murder. They can only plead to the judge that since Taseer “deserved” it, the judge should ignore the Quranic prohibition of vigilante violence, and set Qadri free because he cannot be held accountable for his actions.

    I doubt i can feel much more disgust for him and his supporters than i do now.

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  • Sajid
    Sep 29, 2011 - 11:08AM

    How about if someone from us chokes Qadri to death and upon arrest say, “If I wouldn’t have killed him, someone else would have”. If Qadri deserves death penalty on urgent basis here.

    Who are the lawyers working on putting Qadri to rest? give us their arguments soon

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  • Abhi
    Sep 29, 2011 - 12:08PM

    This is really difficult to digest this kind of argument from the people who supported the fatwa of killing Salman Rushdi or Norway cartoonist. If the fatwa was not wrong then how come Qadri killing Salmaan Tasir is wrong?

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  • Ali
    Sep 29, 2011 - 12:16PM

    welcome to pakistan.

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  • Feroz
    Sep 29, 2011 - 1:16PM

    How can any criminal be absolved of his crime because he could not control his emotions. If he did it on Religious grounds his punishment should be doubled because he brought great disrepute to Islam. What about those Mullahs who exploited his emotions and fellow police personnel who hid details of his plot ? Are they not accessories to Murder ?

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  • Parvez
    Sep 29, 2011 - 1:32PM

    Nicely argued. To any sane person there is no doubt of the crime and what the punishment should be. The defence has put forward an argument as described by you, what also has to be taken into account is what the defence does not say and the mortal judge has to be brave enough to face.

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  • Hasan
    Sep 29, 2011 - 3:26PM

    May Allah Almighty have this Qadri, a dark spot on our Religious and National pride, hanged till death.

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  • ali
    Sep 29, 2011 - 3:47PM

    musmtaz qadri did well.i appreciate him.we are with him.he is ou hello.i know beter Mr.salman taseer.salman taseer deserves thatRecommend

  • Sal
    Sep 29, 2011 - 4:14PM

    Just a clarification on the legal terminology. The defence of provocation or automatism negates the mens rea…not the actus reus. Mens rea in simple terms is the mental element involved in the committing of a crime. It can either be classified as the intention to commit a crime or the state of recklessness as to whether the crime is committed or not.

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  • Asad Shairani
    Sep 29, 2011 - 5:48PM

    Expecting rationality and reasoning from the nation Ejaz Sb? Best of luck sir.

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  • AQ
    Sep 29, 2011 - 9:15PM

    Hang him in public so no one dares to kill any human. Defence team should be prosecuted for their hate mongering and threatening arguments.

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  • Sep 29, 2011 - 10:35PM

    This is a good piece by one of the most readable writers in Pakistan. The law only allows for such a defence if there is a ‘grave and sudden’ provocation. Mind you it has to be grave and sudden. Examples are when a man finds his wife and her lover in a ‘compromising’ position and kills one or both. Here the alleged provocation was not sudden at all even if could be argued to be grave according to Qadri’s counsel. This was a premeditated cold blooded murder. All said and done I still have doubts if Qadri will ever be punished for his crime. The trial court might convict him but then there is the High Court and the Supreme Court whose performance has not been too encouraging to say the least. All we can do is to hope for the best.

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  • Anwar Raza (Ollie)
    Sep 30, 2011 - 7:10AM

    I support Qadri’s freedom. That will give me chance to be “temporary insane” and give him a ticket to heaven myself. It is a promise from a person who keeps his words.

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  • Anwar Raza (Ollie)
    Sep 30, 2011 - 7:12AM

    Please send me the names of defence lawyers, if you care..

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  • Not a Mountain Rat
    Oct 1, 2011 - 10:58PM

    @salman arshad : Why was no blasphemy registered agianst Taseer.Even I support Blasphemy laws, but not in the manner they are implemented in Pakistan.Its Zia’s laws, not Islam’s.

    Salman Taseer only said that Blasphemy Law shouldn’t be misused agisnst illiterate ignorants.

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  • Abu Huzefa
    Oct 2, 2011 - 9:55PM

    Any one can provide justice to 7000 Karachi citizen whose are killed by target killer in last three.

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  • A. Rauf Yusuf
    Oct 8, 2011 - 7:00PM

    Ijazhaidar has, as usual, written a well-reasoned and balanced article. However , I feel there are some further pertinent points to make.
    (1) Was this so ” zealous” Muslim asked whether he had any  knowledge of the Quran: was he confronted with the verses Al-Isra 33 which forbids any one to take a human life which Allah has made sacred and Al-Nisa 93 which promises awesome and lasting suffering In hell and Allah’s rejection for those who deliberately killed a believer ( irrespective of whether he was a sinner or not- we all are). I would frame and put these verses up on the walls of his cell so that he faces them all the time.  Also is there anywhere in the Quran any sanction for an individual to take on himself the role of prosecutor, judge and executioner.
    (2) Is there any such permission in Hadith  or Sunna. The 6 or 8 persons executed by order of the Holy Prophet were sentenced only after due process of law and discussion by a legally constituted authority ( the Holy Prophet himself ( pbuh) who was the supreme judge). And the the charges were grave and serious of treason, spying, warfare or of inveterate, vile ,unremitting propaganda, especially by scurrilous poetry ( not some ordinary misdemeanour). And the task was given to selected persons– it was not left open to any Tom, Dick or Harry. Compare that to the thousands he pardoned from Badr to the conquest of Mecca . Why do we not follow his humane and compassionate example.
    (3) was it established that Salman Taseer did commit blasphemy – because if his opinion that the law as it stands needs to be amended is blasphemy then all sensible Muslims are guilty. If there was no blasphemy then Mumyaz Qadri has no leg to stand upon! Qadri can in no way be compared to Ilm Din Shaheed because his sacrifice was made when we were under British rule and there was no protection against blasphemy.
    (4) I would ask these questions of the demonstrators in support of Qadri and of the various ulema. I shudder at the calibre of the lawyers who protested who seem to be as ignorant of Pakistani law as of the Quran.
    (5) Al-Tawbah 31 warns us not to make our rabbis and priests our lords. Indeed they are distorting our liberal humane and compassionate religion. We should always remember that 300 million Muslims live under non-Muslim rule, let them not be held hostage to our behavior,
    (6) Qadri’s action has intimidated most editors, reporters, and aware Muslims from any rational discussion of Islam — a very dangerous and perverse fallout because nobody could feel safe from another “zealous” Qadri.

    Sent from my iPad

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  • Muhammad younis
    Oct 8, 2011 - 9:35PM

    Well looks like Qadri has chickened out at the prospect of facing the hang man’s noose

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  • A. Rauf Yusuf
    Oct 10, 2011 - 6:50PM

    .”An afterthought: The more I ponder over Qadri’s crime the more perturbed I get by the limitless and dangerous implications of his precedent. I have only quoted the Quran or the S unnah, you and your editor have published it but some clone of Qad.ri may not agree with us and decide our views are un- Islamic and set out to punish us. It is even possible that he may decide that denying that the Holy Prophet( pbuh) is a true prophet is the ultimate blasphemy and all non- Muslims are to be eliminated!
    I took a little census and (unsurprisingly?) foumd that most of them were not familiar with the above verses especially Al-nisa93 even tho they recited the Quran daily as part of their devotions. One possible way to counter this is to publicize these verses that people become familiar with them. That may cast doubt in the minds of the would-be shaheeds that insteadvof being welcomed by eager ‘ Hurs’ in paradise, they will instead face Allah’s wrath, His rejection, and awesome suffering in hell.
    The crime was committed in the name of religion and, I repeat, it should be fought also on that level, disabuse Qadri of the belief he has done a good deed but rather he disobeyed  Allah’s commands and did a heinous, deplorable deed.
    I appeal to you.Ijazhaidar, to use your influence to publicize these verses through the newspapers and to have them displayed in every madressah — nobody should be able to object to Quranic verses.

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