SC acquits Aasia Bibi, orders immediate release

Published: October 30, 2018
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Aasia Bibi. PHOTO: REUTERS/FILE

Aasia Bibi. PHOTO: REUTERS/FILE

ISLAMABAD:  

The Supreme Court on Wednesday overturned the conviction of 50-year-old Aasia Bibi, who was facing execution for blasphemy.

She has been in jail since June 2009 and awarded death sentence by two judicial forums — a sessions court which was upheld by the Lahore High Court.

“The judgments of the high court as well as the trial court are reversed. Consequently, the conviction as also the sentence of death awarded to the appellant is set aside and she is acquitted of the charge.

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“She be released from jail forthwith, if not required in any other criminal case,” the judgment that was announced by Chief Justice of Pakistan Mian Saqib Nisar, read.

The Courtroom Number 1 was packed to capacity. However, besides lawyers and the media persons, a few clerics were also present in the courtroom. Stringent security arrangement were made around the Supreme Court premises to ward off any untoward incident.

The three-judge bench headed by the chief justice and comprising Justice Asif Saeed Khosa and Justice Mazhar Alam Khan Miankhel reserved the judgment.

The chief justice has authored the 34-page judgment.

“Blasphemy is a serious offence but the insult of the appellant’s religion and religious sensibilities by the complainant party and then mixing truth with falsehood in the name of the Holy Prophet Muhammad (Peace Be Upon Him) was also not short of being blasphemous.

“It is ironical that in the Arabic language the appellant’s name Aasia means ‘sinful’ but in the circumstances of the present case she appears to be a person, in the words of Shakespeare’s King Lear, “more sinned against than sinning,” says Justice Khosa in his additional note.

Justice Khosa, while endorsing the chief justice ruling, further noted that the glaring and stark contradictions in the evidence produced by the prosecution in respect of every factual aspect of this case, noticed by him, lead to an irresistible and unfortunate impression that all those concerned with providing evidence and conducting investigation in the case had taken upon themselves not to speak the truth or at least not to divulge the whole truth.

“It is equally disturbing to note that the courts below had also, conveniently or otherwise, failed to advert to such contradictions and some downright falsehood.”

The judge said that from that perspective insulting the appellant’s (Aasia) religion by her Muslim co-workers was no less blasphemous.

“The Muslim co-workers of the appellant had violated the command of Almighty Allah by insulting the Deity believed in and the religion followed by the appellant and, even if the prosecution’s allegations against the appellant were to be accepted as correct, the stated reaction to the same by the appellant was not different from that warned about by Almighty Allah”, says Justice Khosa.

The chief justice, while authoring the main verdict, says that entirety of the prosecution case revolved around the statement of two women — namely, Mafia Bibi (PW2) and Asma Bibi (PW3) and the extrajudicial confession of the appellant (Aasia Bibi).

The said (PW’s) stated that the appellant, in the presence of other Muslim ladies, passed derogatory remarks against the prophet Muhammad (Peace Be Upon Him)

The CJP notes that admittedly, as is evident from the contents of the FIR and also the statements of the witnesses, there were 25-30 women present at the spot when the appellant allegedly passed blasphemous remarks; however, none of the other women except the two reported the matter to anyone. “This creates doubt regarding the prosecution story.”

Regarding extrajudicial confession of Aasia Bibi, the chief justice in his verdict held that evidence of extrajudicial confession “is a fragile piece of evidence, and utmost care and caution has to be exercised in placing reliance on such a confession”.

“In this very instant case, the appellant (Aasia) was brought to a gathering of potentially hundreds of people, she was alone at the time, tensions were running high, and it was an intimidating environment, the appellant may well have felt threatened and vulnerable; thus, the alleged extrajudicial confession made by the appellant, even if presumed to have been made by her before such public gathering, cannot be termed a voluntary action and nor it can be relied upon to form the basis of a conviction, especially for capital punishment,” says the judgment.

The court also noted that there is no denial of the fact that the FIR was registered with a delay of five days. “The only explanation given by the complainant for such an inordinate delay is that the occurrence took place on June 14, 2009, but the same was brought to his knowledge by Mafia Bibi (PW.2), Asma Bibi (PW.3) and Yasmin Bibi (given up PW) on June 16, 2009; during the period — from 16.6.2009 to 19.6.2009 — he as well as other people of the area kept on investigating the matter and after being satisfied that the occurrence had taken place, they reported the matter to the police for registration of the FIR.

The judgment says that in the absence of any plausible explanation, this court has always considered the delay in lodging of the FIR to be fatal and casts a suspicion on the prosecution story, extending the benefit of doubt to the accused.

“If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused. Thus, we are of the view that in the facts and circumstances of the case, the explanation given by the prosecution is not plausible.”

The court also noted that the complainant (PW-1) in his statement admitted that the application for registration of the FIR was drafted by an advocate; however, he could not mention his name. “This also casts doubt on the truthfulness of the story narrated in the FIR.”

“The mere presence of the appellant as well as the witnesses at the place of alleged occurrence alone is not sufficient to prove the occurrence of the offence. The defence has not contested the matter on the basis that the appellant was not present in the field, rather it has taken the plea that the appellant and witnesses were present in the field in question when the altercation took place between them, and in that resentment the witnesses had falsely implicated her (the appellant) with the help and support of the complainant.”

The court also said that astonishingly, 25-30 women were present at the spot but none of them except Yasmin Bibi (given up PW) supported the prosecution version before the complainant, and she too did not opt to appear in the witness-box to depose against the appellant.

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The verdict says that there were many discrepancies/ inconsistencies in the statements of the prosecution witnesses, which is tantamount to cast further doubts on the coherence of the evidence pertaining to the questions set out as who informed the complainant about the occurrence of such; who was present at the time of disclosure regarding the allegation made against the appellant; how many people were present at the time of the public gathering; where did the public gathering took place; what was the distance between the place of the public gathering and the house of the appellant; and how and who brought the appellant to the public gathering.

“All these contradictions are sufficient to cast a shadow of doubt on the prosecution’s version of facts, which itself entitles the appellant to the right of benefit of the doubt.

“It is a well-settled principle of law that for the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty. If a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right.”

The court says that it is a well-settled principle of law that one who makes an assertion has to prove it. Thus, the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt throughout the trial.

“Presumption of innocence remains throughout the case until such time the prosecution on the evidence satisfies the court beyond reasonable doubt that the accused is guilty of the offence alleged against him. There cannot be a fair trial, which is itself the primary purpose of criminal jurisprudence, if the judges have not been able to clearly elucidate the rudimentary concept of standard of proof that prosecution must meet in order to obtain a conviction. Two concepts, i.e., “proof beyond reasonable doubt” and “presumption of innocence” are so closely linked together that the same must be presented as one unit.”

If the presumption of innocence is a golden thread to criminal jurisprudence, then proof beyond reasonable doubt is silver, and these two threads are forever intertwined in the fabric of criminal justice system.

As such, the expression “proof beyond reasonable doubt” is of fundamental importance to the criminal justice: it is one of the principles which seeks to ensure that no innocent person is convicted. Where there is any doubt in the prosecution story, benefit should be given to the accused, which is quite consistent with the safe administration of criminal justice.

Further, suspicion howsoever grave or strong can never be a proper substitute for the standard of proof required in a criminal case, i.e., beyond reasonable doubt. In the presence of enmity between the accused and the complainant/witnesses, usually a strict standard of proof is applied for determining the innocence or guilt of the accused.

“If the PWs are found inimical towards the accused, she deserves acquittal on the principle of the benefit of the doubt. Keeping in mind the evidence produced by the prosecution against the alleged blasphemy committed by the appellant, the prosecution has categorically failed to prove its case beyond reasonable doubt,” says the chief justice.

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Justice Khosa noted that there was a general consensus among the prosecution witnesses that the public gathering was held on Friday and it had commenced its proceedings around noon time.

If the proceedings had continued for two to two-and-a-half hours, then the participants of the gathering, including some religious scholars and imams of mosques, might have missed their Friday prayers which was not expected of them.

Counsel for Aasia, Saiful Malook, while talking to The Express Tribune, said that her client got justice in the end and the case has been proven false. “All credit goes to the chief justice and Justice Asif Saeed Khosa.”

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