The thin red line: The blasphemy law and concept of defamation

Mere allegation or accusation does not warrant any action on the part of the prosecuting agency.

KARACHI: When it comes to blasphemy, the burden of proof lies on the person who registers the case. But if the accusation is proven false, the complainant stands liable for damages and a defamation suit can be filed against them.

However, this is one of the many laws that are flouted. This opinion was shared by three lawyers who are considered scholars of Islamic law, including a former judge of the Federal Shariat Court Justice (retd) Shafi Mohammedi.

Justice Mohammedi held that the police should collect sufficient, believable and strong evidence which can stand up in a court of law. Mere allegation or accusation, he told The Express Tribune, does not warrant any action on the part of the prosecuting agency. The police, he believes, take advantage of these situations and exploit both sides by taking bribes.

First we must understand the difference between an act of blasphemy and an unbecoming attitude, urged the retired judge. Blasphemy is a specific act and can be against any prophet according to the Islamic concept. This difference must be clearly understood otherwise scores of actions could be deemed blasphemous.

Justice (retd) Mohammedi recommended extreme caution in registering a blasphemy case. He pointed out a judgment in a court of Andhra Pradesh, India, where the court held that if there are four witnesses to an alleged Zina, then the accused shall be prosecuted. And if the number of witnesses is less than four then the complainant as well as his witnesses shall be tried for Qazaf (false accusation and unreliable evidence). The punishment for registering a false or concocted case under section 182 of the Criminal Procedure Code is only six months or a fine of Rs1,000.

Muhammad Farooq advocate, a lawyer practicing on the criminal side, told The Express Tribune defamation law has yet to be developed in Pakistan as most of the false allegations come from the police, and once a person is rescued from their clutches, he prefers to remain silent instead of filing a defamation and libel suit, said Farooq.

Islam gives credence to the will and intention of a person. According to Justice (retd) Mohammedi, the ‘blasphemy’ incident in Hyderabad involving a doctor does not fall in the sphere of blasphemy. He said that every day we trample newspapers and other printed material which carries part of the name of those we consider holy, but no one is prosecuted.

While speaking to The Express Tribune, lawyer Shoua-un-Nabi also said that the blasphemy law is not limited to the Prophet Muhammad (pbuh) but also extends to any messenger of Allah. He added, however, that there is a procedure for lodging a complaint, and, besides the complainant, two witnesses of ‘strong’ reputation are mandatory to support a blasphemy allegation. The requirement of mandatory witnesses is there so no one is trapped by an ill-motivated person, he said.

Lawyer Shamsuddin Khalid Ansari commented on the Hyderabad matter, saying it was a matter of discourtesy and nothing more. The current incidents, the lawyer said, are blown out of proportion to downplay the actual violation of Sharia laws. He spoke of Justice Cornelius who said in one of his speeches that the deterrence provided by punishment under Islamic injunctions is a blessing for society. Ansari noted an American law which gives capital punishment to anyone proven to have blasphemed against prophet Hazrat Issa (AS).

Ansari believes that utmost care should be taken when such an allegation is made, and, before a case is registered, the person accused should be given every opportunity to clear their name. In an Islamic system, Ansari said, the complainant and the accused are to be treated equally. If a complainant believes that another person has blasphemed, reputable ulema must be consulted to consider if the act falls within the ambit of blasphemy.

All three Islamic jurisprudence scholars agreed that instigating a false action was strictly forbidden in Islam. They stressed that only the state machinery is permitted an appropriate action against a blasphemer. Under no circumstances, the three said, should a mob decide the fate of an accused blasphemer.

According to the available statistics, in Pakistan 1,274 people have been charged with offences under the blasphemy laws from 1986 to 2010 with none of them tried to the end or convicted, warranting the framing of a comprehensive law to protect the rights of a complainant and accused equally.

Published in The Express Tribune, January 6^th, 2011.