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Herald Exclusive: The law of diminishing utility
Zaibunnisa was jailed in 1996 on blasphemy charges when Qari Hafeez, a cleric from Lahore, complained to the police that he had found torn pages of the Quran thrown in a drain. A medical board declared her mentally ill soon after her arrest, but she was still incarcerated. It was only in July 2010, 14 years after she was first sent behind bars, that the Lahore High Court ordered her release, but not on medical grounds. Her lawyer had convinced the court that there was no evidence linking her to the crime. After she was freed, Hafeez told the media that he had not named her as an offender and a police official reportedly told journalists that she had been arrested to defuse tension that had developed in the area over the defiling of the Quran.
That an innocent, mentally-challenged woman had to spend nearly a decade and a half in prison because the police made her a scapegoat is as much a comment on the ideological biases of judges, lawyers and law-enforcement agencies as it is a description of the multiple pressures they face in blasphemy cases. In almost all these cases, trial courts are either unwilling to give the accused the benefit of the doubt or are under pressure to dispense strict punishment even when, as in Zaibunnisa’s trial, evidence is not solid and incriminating.
Senior Supreme Court lawyer Abid Hassan Minto tells the Herald that hers is not an isolated case. “Many blasphemy cases go on for years,” he says. “Sometimes even bail applications are not taken up because judges and prosecution lawyers use delaying tactics to keep the accused in jail as long as they possibly can without his or her trial reaching a conclusion.” Naeem Shakir, a senior lawyer based in Lahore who has served as defence counsel in dozens of blasphemy cases, says the prosecution and even judges do not really want those accused of blasphemy to get justice. “Short of awarding the death penalty instantly, both lawyers and judges want to prolong the agony of the accused to the maximum,” he says.
The case of Wajihul Hasan, booked under blasphemy charges in 1999, tells a similar story. He could not get bail because the complainant, Lahore-based lawyer Ismail Qureshi, who is known for his extreme religious views, wields considerable influence in both the bench and the bar. A trial court awarded Hasan the death penalty in 2002, but no judgment was made on his appeal to the Lahore High Court (LHC) until 2010. It came as no surprise that Justice Ijaz Ahmed Chaudhry, the recently appointed LHC chief justice, upheld Hasan’s sentence and in his verdict praised Qureshi for his services to Islam and the cause of the honour of the Prophet of Islam. An appeal is now pending in the Supreme Court.
Aside from verdicts influenced by personal ideologies or external pressure, Shakir says blasphemy accused and their lawyers also face an extremely hostile situation within and outside courtrooms. “When I was defending Salamat Masih in a Gujranwala sessions court (see “Law Unto Themselves”) the entire passage from the court’s main gate to the door of the courtroom would be full of people carrying placards and banners demanding death for my client and raising incessant slogans against him as well as me.” At one stage, he says, the atmosphere became so aggressive that they had to ask the high court to shift the trial from Gujranwala to Lahore.
But Shakir says the situation is hardly different in Lahore. “During one hearing the prosecution produced some evidence, and when I wanted to see it the crowd in the courtroom made so much noise that the judge stopped me from taking notes on it and took it back from me,” he says. According to him, this was a clear violation of legal procedures that stipulate that no framing of charges can be complete unless the accused and his counsel hear all the charges and see the entire body of evidence. Shakir also claims that he and his family faced threats to their lives while he was working as defence counsel for another blasphemy accused, Gul Masih. “I became so scared for my son that I made it a point that he never went out unaccompanied.”
Apart from being under pressure due to this hostile environment, judges have also been swayed by their religious bias while deciding blasphemy cases. In two cases filed under the same subsection of the blasphemy laws, a court applied different yardsticks for a Muslim and a Christian. In 2008, Khwaja Sharif, the outgoing LHC chief justice, did not quash a case against a Christian woman, Martha Bibi, even after her counsel cited an earlier decision in which the same judge had quashed a case against one Qari Mohammad Yunus on the grounds, among others, that the complaint was not registered with the permission of the government, even though 295-C cases do not carry this requirement (see “What the Law Says”).
Tahir Iqbal’s case is another instance of how prominently personal biases figure in blasphemy cases. A Muslim who converted to Christianity, Iqbal was arrested under blasphemy charges in Lahore in December 1990. He was denied bail despite his lawyer’s contention that his client was paralytic. The sessions court judge who dismissed the bail application on July 7, 1991 passed the following order: “Learned counsel for the petitioner has conceded before me that the petitioner has converted to Christianity. With this admission on the part of petitioner’s counsel there is no need to probe further into the allegations… Since conversion from Islam to Christianity is in itself a cognisable offence involving serious implication, I do not consider the petitioner entitled to the concession of bail at this stage.” The judge was unaware, and did not want to be informed, that there is no law in Pakistan that makes conversion from Islam to any other religion an offence. In July 1992, Iqbal was found dead in jail under mysterious circumstances. His lawyer believes he was poisoned.
In at least one blasphemy case, the high court recorded in detail how the sessions court had completely disregarded legal procedure. When Salamat Masih, a 13-year-old Christian, appealed against his 1995 death sentence, Justice Arif Iqbal Bhatti of the LHC pointed out glaring gaps in the trial, declaring that the sessions court had disregarded legal requirements for examining and verifying evidence and had based its judgment on tenuous grounds. Bhatti was later gunned down for exonerating Salamat Masih and his co-accused (see “Law Unto Themselves”).
This is not the only case in which a higher court of appeal has noted inconsistencies in the trial at the lower level. In 16 out of 17 reported blasphemy cases in which final verdicts have been announced by the High Court, Federal Shariat Court or Supreme Court since 1980, the accused were acquitted. In all 16 cases, appellate courts pointed out weaknesses and flaws in the prosecution’s case and pointed to the questionable veracity of evidence as a major factor in final acquittals. They also found various violations of legal procedure and other problems with investigations, collection of evidence and preparation of the prosecution’s case that proved instrumental in defeating or weakening the case. In two-thirds of the cases, courts found that personal enmity, religious rivalry and property disputes were important factors in the registration of blasphemy cases in the first place.
But in many cases, intimidation does not end even after punishment has been meted out. Despite having served their sentences, convicts in blasphemy cases live under perpetual fear for their lives. Amin Masih, 45, was convicted for blasphemy in 1999 and awarded imprisonment. His appeal was never taken up. He completed his sentence in 2004, but even now he cannot return to his village. The last time he met his old parents was seven years ago. He does not meet any of his brothers and sisters and does not attend family get-togethers for fear of being hunted down. He now lives under an assumed identity after a minority rights organisation got him a new job and a new residence.
His case offers clear insight into the problems with blasphemy-case trials. First, a mob mobilised through mosques gathered to kill him immediately after his business competitor alleged that he had committed blasphemy. It was only after some village elders took him into their protective custody that his life was saved. Once the trial began, religious activists would throng the courtroom during each hearing. His appeal against conviction was never taken up by the high court.
That Amin Masih will immediately run into trouble if he goes back to his village is evident from what happened to Zahid Shah. A resident of Chak Jhumra near Faisalabad, Shah was charged under the blasphemy laws soon after converting to Christianity. His family claimed he was mentally unstable. In 1997 he was granted bail but still had to stay away from his village and relatives for the next several years. When finally he returned in July 2002, he was dragged out of his brother’s house by a mob that beat him with iron rods and stoned him to death.
What the history of blasphemy cases in Pakistan overwhelmingly points to is the suffering of those who languish for years in jail because of faulty trials, biased proceedings, hostile crowds howling in and outside courtrooms, and inordinate delays in the hearing of appeals. All this makes these cases a nightmare not just for the accused but also for any defence counsels. There are only a handful of lawyers among thousands of trained attorneys in Lahore who are willing to defend those accused of blasphemy in a court of law, Shakir tells the Herald.
All this leads to the most important question about the blasphemy laws: Have they discouraged incidents of blasphemy or have they simply contributed to the fracturing of society? “We need to ponder over whether these laws are creating social and religious harmony or dividing society into religions and sects and putting people into the conflicting categories of ‘conservative’ and ‘liberal,’” says Yunus Alam, who heads the Multan-based Minority Rights Commission of Pakistan. Data suggests that the number of registered blasphemy cases has increased consistently with every passing decade since the 1980s (see “Law Unto Themselves”), and extrajudicial killings, mob justice and unfair trials suggest that they have become tools for religious persecution, minority-bashing and, of late, suppressing freedom of speech. n
— Asad Jamal is a Lahore-based lawyer who deals with minorities and other human rights issues
— Additional reporting by Muhammad Badar Alam