SSRN Id4325439

ISSN 2633-6626
Manchester Journal
of
Transnational Islamic Law & Practice
MJTILP
Volume 18
Issue 1
2022
Electronicpublications.org Ltd
Electronic copy available at: https://ssrn.com/abstract=4325439

Manchester Journal of Transnational Islamic Law & Practice
About:
The MJTILP (formerly the Journal of Islamic State Practices in International Law) was founded in
2005. The Journal is independent of any State or institutional affiliation with a truly diverse and global
editorial board. It is published twice a year by Electronicpublications.org Ltd; and available both in
electronic and printed forms.
Aims of the Journal:

The principal objectives of the Manchester Journal of Transnational Islamic Law & Practice (MJTILP)
are to provide a vehicle for the consideration of transnational forms of Islamic law and practice.
Transnationalism in Islamic law is taken broadly as communications and interactions linking Islamic
thoughts, ideas, people, practices and institutions across nation-States and around the globe. In recent
times, research in Islamic law has shaped narratives based on nation-States, demographics, diasporic
communities, and ethnic origins instead of developing around a central core. Contemporary issues of
Islamic law are increasingly linked to geographical locations and ethnic or parochial forms of religious
beliefs and practices. Expressions like American, European, British, Asian and Arab Islam have
widely gained acceptance.
Despite the growing importance of dialogue to develop shared understandings of issues facing Islamic
law and proposing coordinated solutions, the contemporary research and scholarship has not
developed harmoniously and remains piecemeal and sporadic. Researchers and practitioners of Islamic
law are drawn from a wide variety of subjects and come from various regions of the world but have
insufficient institutional support for sharing information and comparing experiences. Innovation in
various strands and paradigms of Islamic law and practice is stifled because there are limited spaces
where evolutionary, collaborative and interdisciplinary discourses can take place. This in turn hampers
the ability to build on past research and record best practices, negatively impacting a consistent and
orderly development of the field. There is a need to constitute a world community of Islamic law
scholars based on interactions and aspirations moving across linguistic, ethnic, geographical and
political borders.
The MJTILP is inspired by the need to fill these gaps. It provides a platform to legal and
interdisciplinary scholars and researchers for critical and constructive commentaries, engagements and
interactions on Islamic law and practice that are built upon configurations in contemporary contexts.
It welcomes contributions that look comparatively at Islamic law and practice that apprise and inspire
knowledge across national boundaries whether enforced by a State or voluntarily practiced by
worldwide Muslim communities. We are equally interested in scholarships on encapsulated cultural
worlds, diaspora, identity and citizenship that are embedded and circumscribed by religious ties. As it
has been the practice of the journal since its establishment in 2005, it also has a specific interest in
issues relating to the practice of Muslim States in international law, international law issues that may
concern Muslim countries, and all aspects of law and practice affecting Muslims globally.
Printed and bound by Antony Rowe Ltd. Eastbourne UK

ElectronicPublications.Org
ii

MJTILP
Volume 18
Issue 1
2022
ISSN 2633-6626
Editor-in-Chief
Dr Ahmad Ghouri, Senior Lecturer in Commercial Law & Director of Internationalization
University of Sussex, UK.
Deputy Editor-in-Chief
Dr Amna Nazir, Reader in Law & Associate Director Centre for Human Rights, Birmingham
City University, UK.
Dr Fatemeh Sadeghi Givi, Research Associate, Institute for Global Prosperity, University
College London, UK.
Associate Editors
Dr Muneer Abduroaf, Senior Lecturer, University of the Western Cape, South Africa.
Dr Zubair Abbasi, Associate Professor, Lahore University of Management Sciences,
Pakistan.
Dr Bader Aldosari, Assistant Professor, University of Prince Sattam Bin Abdul Aziz,
Kingdom of Saudi Arabia.
Dr Muhammad Asif Khan, Associate Professor, Department of Law, NUST, Islamabad,
Pakistan.
Dr Ahmed Al-Dawoody, Legal Adviser for Islamic Law and Jurisprudence at the
International Committee of the Red Cross (ICRC).
Dr Milad Dokhanchi, Queen’s University, Canada.
Dr Hossein Esmaeili, Associate Professor, Flinders University, Australia.
Dr Oumama Emad Ali Hamasha, Assistant Professor, University of Jordan.
Dr Muhammad Akbar Khan, Assistant Professor, International Islamic University, Pakistan.
Dr Mohammad Hedayati-Kakhki, University of Durham, UK.
Dr Sahar Maranlou, Lecturer, University of Essex.
Dr Tareq Moqbel, Research Fellow in the Study of Love in Religion, Regent’s Park College,
University of Oxford, United Kingdom.
Dr Eleni Polymenopoulou, Assistant Professor, Hamad Bin Khalifa University, Qatar.
Dr Ayesha Shahid, Assistant Professor, Coventry University, UK.
Dr Adnan Trakic, Associate Professor, Department of Business Law and Taxation, Monash
University Malaysia.
Dr Emine Enise Yakar, Associate Professor, Recep Tayyip Erdoğan University, Turkey.
Dr Abubakri Yekini, Lagos State University, Nigeria
Dr Ali Shirvani, Assistant Professor, Law School, Northwest University Xian, China.
Volume 18, Issue 1 (1) 2022

Dr Haroun Rahimi, Assistant Professor of Law, American University of Afghanistan,
Afghanistan.
Dr Salah Al-Ansari, Lecturer in Islamic Studies, Muslim College London, United Kingdom.
Dr Shahnaz, Assistant Professor, School of Law, University of Kashmir.
Assistant Editors
Diana Carina Azoitei, The University of Law, UK.

Afrin Khan, Assistant Professor, Kirit P. Mehta School of Law, NMIMS, India.
Amr Arafa Hasaan, PhD Candidate, The Amsterdam Center for International Law, University
of Amsterdam, The Netherlands.
Shahzeb Shahid, LLB University of the Punjab, Pakistan.
Muhammad Hassan, LLM, Institute of European Studies, Vrije University Brussels, Belgium.
Shaheer Ahmed, M.A. Arabic and Islamic Studies, Georgetown University, USA.
Dr Aishat Akere, PhD in Molecular Biology, University College London, UK.
Muhammad Hammad Sarwar, LLM, University of Amsterdam, The Netherlands.
Mashair Idris Kheiralla Sirour, PhD in Shariah, University of Khartoum, Sudan.
Beata Polok, PhD Candidate, Górnoslaska Wyzsza Szkola Handlowa, Poland.
Book Review Editor

Dr Kahlid Bashir, Lecturer, University of Aberdeen, UK.
Editorial Board
Prof Asma Afsaruddin, Indiana University, USA.

Prof Asad Q. Ahmed, University of California, Berkeley, USA.
Imam Qari Asim MBE, Leeds Makkah Masjid and DLA Piper, UK.
Prof Dr Mohd Ma’Sum Billah, King Abdul Aziz University, Kingdom of Saudi Arabia.
Prof Mohamed Elewa Badar, Northumbria University, UK.
Prof Ilias Bantekas, Hamad Bin Khalifa University, Qatar.
Prof Ann Black, University of Queensland, Australia.
Prof L. Ali Khan, Washburn University, USA.
Prof Bashar H. Malkawi, The University of Arizona, USA.
Prof Nakib Muhammad Nasrullah, University of Dhaka, Bangladesh.
Prof Muhammad Munir, International Islamic University, Islamabad, Pakistan.
Prof A F M Maniruzzaman, Portsmouth Law School, University of Portsmouth, UK.
Prof Jeff Redding, The University of Melbourne, Australia.
Prof Javaid Rehman, Brunel University, UK.
Prof Ihsan Yilmaz, Deakin University, Australia.
Prof Luqman Zakariyah, Federal University of Kashere, Gombe, Nigeria.
Prof Nehaluddin Ahmad, Sultan Sharif Ali Islamic University, Brunei Darussalam.
Faisal Kutty, Associate Professor, Southwestern Law School and Associate Professor of Law
Emeritus, Valparaiso University.

Volume 18 2022 Issue 1
Contents
Editorial:
Transnational Forms of Islamic Law
Fatemeh Sadeghi Givi (Deputy Editor-in-Chief) 6
Articles:
Could Common Law have Islamic Roots? Testing John Makdisi’s Hypothesis in the
Light of Section 6 of the Indian Specific Relief Act, 1963
Nizamuddin Ahmad Siddiqui & Abu Zar Ali 8
Religious Freedom and the Hijab Controversy: A Human Rights Perspective
Nehaluddin Ahmad, Hjh Hanan Binti Dato Haji Abdul Aziz, & Siti Nurdiyanah Binti
Edirahman 30
Constitutional Legitimacy of Islamic Law of Wills in South Africa

Mohamed Hoosain Sungay 52
Dissecting the Asia Bibi Case: A Critical Analysis of Blasphemy Law in Pakistan
Muhammad Sadiq Kakar 66
Conceptualisation of ‘Islamic State’ by Pakistani Scholars: From Idealism to

Minimalism
Shahbaz Ahmad Cheema 87
Understanding the Role of Processivism in the Formation and Interpretation of

Contract: A Comparative Assessment of Iranian Law of Contract
Mohammad Hosein Vakili Moghadam 110
State Laws and Sharīʿah Compatibility: Methodological Overview and Application to

Financial Laws
Habib Ahmed & Abdulazeem Abozaid 123
Mediating Disputes Involving Internally Displaced Persons: A Post-Mortem of the Boko

Haram Hostilities in Borno State of Nigeria
Francis Ohiwere Oleghe 140
Addressing the Phenomenon of Default: How Banks can Protect Against Default on
Credit under Conventional Banking and Islamic Principles

Bader Nasser Aldosari 155
Environmental Destruction and Armed Conflict: Protecting the Vulnerable Through

Islamic Law
Shebanee Devadasan 175
The Use of Weapons of Mass Destruction: A Comparison of the Restrictions and
Justifications in Islamic Law of Armed Conflict and International Humanitarian Law
Sophie Timmermans 188
Weapons of Mass Destruction and the Protection of the Environment Under Islamic
Law: Why the Irreconcilable Cannot Be Reconciled
Matthias Cuypers 208
The Implication of the Concept of Legal and Beneficial Ownership in Sukuk Structures
under the Nigerian Tax Regime
Hafsat Iyabo Sa’adu & Aishat Abdul-Qadir Zubair 220
Transitional Justice in Bangladesh: Recognition and Enforcement of Rights of the Rape

Victims of 1971 War
Anamika Modok 235
Fixing Minimum Wage in Pakistan: Comparative Analysis of the ILO Convention No.
131 and the Islamic Principles of Adal and Ihsan
Muhammad Amin 251
Emergence, Reasons and Prevention of Mob Lynching of Religious Minorities in India

Jaswinder Kaur & Birendra Singh 269
Book Reviews:
Islamic Law and International Law: Peaceful Dispute Resolution Emilia Justyna Powell,
Oxford University Press, New York, 2020, 314 p. ISBN-13: 9780190064631
Cecilia M. Bailliet 284
Possessed by the Right Hand – The Problem of Slavery in Islamic Law and Muslim
Cultures Bernard K. Freamon, Volume: 8, Studies in Global Slavery, Brill, 2019, 516 p.
ISBN: 978-90-04-36481-3
Siraj Khan 289
Islamic Law of the Sea: Freedom of Navigation and Passage Rights in Islamic Thought
Hassan S. Khalilieh, Cambridge University Press, Cambridge, 2019, xvii + 270 pp.
ISBN: 978-1-108-48145-8
M. Jahanzeb Butt, Khadija Zulfiqar, and Yen-Chiang Chang 295
Islam: An Advanced Introduction Roberto Tottoli, Routledge, New York, 2021, 136 p.
ISBN 9780367491109
Talha Murat 297

A Contemporary Discourse on the Islamic Law of Civil Procedure Shaukat Hayat,
Shariah Academy International, The International Islamic University, Pakistan, 2011,
xv + 304 pp. ISBN: 978-969-8263-66-9
Gadah Alotaibi 300
The Right of a Sui-Juris Women to Make and Break a Marriage Contract Muhammad
Farooq, Eliva Press, Europe, 2021, 354 p. ISBN: 978-1636484341
Maryam Jamil 303
Legal Maxims in Islamic Law: Concept, History and Application of Axioms of Juristic
Accumulation Necmettin Kizilkaya, vol 15, Brill Nijhoff, 2021, xii + 312 pp. ISBN: 978-
90-04-44466-9
Zainab Saleem 305

Volume 18, Issue 1: 66-86, 2022
Dissecting the Asia Bibi Case: A Critical Analysis of Blasphemy Law in Pakistan
Muhammad Sadiq Kakar*
Abstract: This article critically analyses the case of Asia Bibi, a Christian woman who was
accused of blasphemy and given death sentence by the Additional Sessions Judge of Nankana
Sahib, Punjab in 2009 under Section 295-C of Pakistan Penal Code (PPC). In appeal, the
Lahore High Court upheld the trial court’s decision. Asia Bibi filed the second appeal in the
Supreme Court of Pakistan, which led to her acquittal and flying to Canada in 2018. This
acquittal, on one hand, saved Asia Bibi from execution and, on the other hand, prompted
extreme violence in Pakistan. The Tehreek Labbaik Pakistan (TLP), which is a religious-
political party, gained substantial public support in demanding execution of Asia Bibi alleging
her acquittal as a violation of Shari’ah. The hierarchic courts decisions have caused confusion
in society, which demands clarity on the issue of blasphemy as a crime and its prosecution in
Pakistan. The public is confused because the traditional religious scholars (Ulamā) have not
been able to clarify the legal and Shari’ah position on blasphemy in general and in the Asia
Bibi case in particular. After this case, many Pakistanis believe that the west encourages people
to commit blasphemy and then pressurise Pakistani courts to acquit them from criminal
charges. This article analyses the hierarchic judgements of Pakistani courts in the Asia Bibi
case in the light of Shari’ah principles to counter the extremist religious approach flamed by
TLP. Analysing the blasphemy law and its impacts on society in detail, this article examines
whether the trial of crime under Section 295-C PPC in Pakistani legal system is compatible
with the Shari’ah principles and the standards of international human rights law, which
Pakistan is bound to comply as a party to the relevant international conventions.
Keywords: Asia Bibi Case; Blasphemy Laws; Islamic Law; International Human Rights Law;
Tehreek Labbaik Pakistan; Pakistan
___________________________________________________________________________
I. INTRODUCTION
The blasphemy law of Pakistan is considered as one of the most controversial laws of the
country. It stays in the limelight both nationally and internationally, as international human
rights activists criticise these laws and demand the Government to repeal or amend it.1 The
whole Chapter XV2 of Pakistan Penal Code (PPC) deals with the offences against religion.
There are many provisions related to blasphemy,3 but the term “blasphemy law” in the context
of Pakistan often refers to Section 295-C of PPC,4 and it is translated as “Qanūn-e- Touhῑn-e-
* The Author is a Ph.D. (law) candidate in the Department of Public Law, Faculty of Law & Criminology at Vrije
Universiteit Brussel (VUB), Belgium. The author wishes to thank Prof. Dr. Stefaan Smis, Head of the Department
of Public Law (VUB), for valuable and thought-provoking discussions on the topic. All errors remain solely with
the author. Email: Muhammad.Sadiq@vub.be.
1
Human Rights Watch, ‘Pakistan: Repeal Blasphemy Law’ <https://www.hrw.org/news/2010/11/23/pakistan-
repeal-blasphemy-law> accessed February 2, 2022.
2
From Section 295 to 298-C of PPC.
3
Section 295-A and 295-B of PPC.
4
Section 295-C can be read as: “295-C: Use of derogatory remarks, etc. in respect of the Holy Prophet: Whoever
by words, either spoken or written, or by visible representations, or by any imputation, innuendo, or insinuation,
Volume 18, Issue 1 (66) 2022

Risālat” in Urdu. Basically Section 295 of PPC deals with different kind of crimes against any
religious group and includes, among other offences, insulting the religious feelings by
derogatory remarks against anyone of the Holy Prophets (Peace Be Upon All of Them).
In the instant case of blasphemy, Asia Bibi (the accused) is a Pakistani Christian woman, a
mother to two girls. She was accused of the blasphemous remarks against the Holy Prophet
Muhammad (Peace Be Upon Him - PBUH) and a criminal case First Information Report (FIR)5
No. 326 under Section 295-C of PPC was registered against her on 19th June 2009 at the Police
Station Saddar Nankana Sahib, Punjab, Pakistan.
The incident took place when she was working in the phalsa field of local property owner
Muhammad Idrees on 14th June 2009 with some other Muslim co-worker women. They
quarrelled over a glass of water, offered by the accused to her co-workers which they refused
to accept. Consequently, they exchanged some harsh words which were later alleged as
blasphemous remarks against the Holy Prophet Muhammad (PBUH) by the co-workers. Two
ladies namely, Mafia Bibi and Asma Bibi went back home after the work and discussed the
matter with the wife of the Imam6 of a local mosque namely Qari Muhammad Salaam (hereafter
the complainant). After five days on 19th June 2009, the complainant called the accused in a
huge gathering, 7 and questioned her about the occurrence of the incident and blasphemous
remarks. Allegedly, she confessed her guilt/crime in the gathering and asked for the acceptance
of her apology that she wanted to make. However, her apology was not accepted, and the
claimant lodged a complaint before the police and Asia Bibi got arrested on the same day,
following the registration of the FIR. This case brought the attention of international media to
Pakistan’s blasphemy laws when she was sentenced to death as the first woman who was
convicted to the death penalty under Pakistan’s blasphemy laws.8
This case also claimed the precious life of the Governor of Punjab and a well-known politician
Mr. Salman Taseer who openly supported the accused after the award of death penalty by the
Trial Court.9 Mr. Taseer did not consider the sensitivity of the issue and tried to make the issue
politicised, instead of helping the accused on the legal front in the Court of Appeal. He met
Asia Bibi in jail and announced in a press conference10 that he will get her pardoned by the
President of Pakistan.11 His support for Asia Bibi and comments about blasphemy law, calling
directly or indirectly, defiles the sacred name of the Holy Prophet (peace be upon him), shall be punished with
death, or imprisonment for life, and shall also be liable to fine”.
5
FIR means First Information Report under Section 154 of the Code of Criminal Procedure (CrPC) 1898.
6
Imam is a person who leads five-times daily prayers in a mosque and somehow influential in the religious matters
at village level.
7
Around 1300-1500 people. Thus, we cannot call it as a gathering for good cause or to know the reality of the
incident as the complainant claims, obviously it was a mob who were angry and wanted to harm the accused
because of the blasphemy allegation.
8
See, for example, Global News Report on the Story with her interview in 2020
<https://globalnews.ca/news/7251880/asia-bibi-canada-interview/> accessed April 23, 2021.
9
For more details, see <https://www.dw.com/en/pakistan-asia-bibi-and-the-countless-victims-of-blasphemy-
laws/a-46189842> accessed June 14, 2021.
10
To watch his press conference, visit <https://www.youtube.com/watch?v=zPBpl8e_e3Y> accessed June 18,
2021.
11
According to Article 45 of the Constitution of Islamic Republic of Pakistan 1973, the President has power to
suspend, remit or pardon any sentence passed by any competent authority.
Volume 18, Issue 1 (67) 2022

it a “black law”,12 provoked people. One of the official guards of Mr. Taseer called Malik
Mumtaz Hussain Qadri later killed him on January 04, 2011, in Islamabad.13
It appears that if Mr. Taseer had supported Asia Bibi in legal proceedings only, he would not
have the risk of being assassinated in the name of religion.14 Later on, Mumtaz Qadri confessed
his crime alleging the religious cause during his trial saying that Mr. Taseer’s statements in
support of Asia Bibi and remarks on blasphemy law had provoked him to commit the murder,15
as this amounted to commission of blasphemy according to his belief. The Court awarded death
penalty to Mumtaz Qadri on October 01, 2011,16 and he was executed on 29th February 2016.17
The crime of Mumtaz Qadri was appreciated by many religious groups in the society, which
depicts the inclination of the Pakistani people towards religious extremism. This article argues
that the views promoting such extremists’ opinions are incorrect as they are not in accordance
with the provisions of Islam. 18 The well-known and high-profile murder of Mr. Taseer is
directly related to the Asia Bibi case and portrays the sensitivity of the issue of blasphemy in
the Pakistani society. Unfortunately, the Government of Pakistan never considered discussing
this issue with the Ulamā (traditional Islamic scholars) and the leaders of religious political
parties to counter the extremists’ approach in this regard.
The Government did not take serious notice of extreme religious approach to blasphemy laws
after the Asia Bibi case. This approach has now endangered everyone’s security with regards
to frivolous allegations of blasphemy. Recently, a mob lynched a Sri Lankan citizen Priyantha
Kumara on self-judged accusation of blasphemy in Sialkot, Pakistan.19 Though, the Ulamā
condemned the painful incident, but did not play their role in raising awareness among the
people for respecting the law of the country, especially in blasphemy issues.
This article is structured as follows: it begins with the historical origins of the blasphemy laws
in the Part II, while Part III critically examines the judgments in Asia Bibi’s case and Part IV
highlights other relevant legal and social issues enhancing the violence in society, which the
Government had failed to handle. Part V of the article is devoted to critical evaluation of the
current law, judgments, and outrageous behaviour of the masses toward an alleged blasphemer.
The article concludes that the criminal trial under Section 295-C of PPC needs to be re-evaluate
in the light of Shari’ah and international human rights to counter the violence in society.
II. HISTORY OF THE LEGAL FRAMEWORK
Blasphemy laws or the laws dealing with offences defiling the religious places of others were
introduced by the British Government when they enforced Indian Penal Code in the Indian
subcontinent or British-India in October 1860.20 The Indian Penal Code had provisions related
12
More details available at <https://tribune.com.pk/story/99277/taseers-remarks-about-blasphemy-law> accessed
September 22, 2021.
13
See the news at <https://tribune.com.pk/story/98988/salman-taseer-attacked-in-islamabad> accessed June 18,
2021.
14
For more details, see BBC <https://www.bbc.com/news/world-south-asia-12111831> accessed June 08, 2021.
15
ibid.
16
See details at <https://www.dawn.com/news/663155/qadri-sentenced-to-death-for-killing-taseer> accessed
September 19, 2021.
17
Details available at <https://www.dawn.com/news/1242637> accessed September 23, 2021.
18
This extra-judicial killing shows that how the Pakistani society is intolerant in blasphemy allegations.
19
The incident took place on 3rd December 2021. Details can be read at <https://www.dawn.com/news/1661728>
accessed January 2, 2022.
20
Indian Penal Code 1860 was adopted in Pakistan after the separation of two countries: India and Pakistan.
Volume 18, Issue 1 (68) 2022

to offences against religious places in Chapter XV (Sections 295 – 298). 21 The British
Government enforced these provisions to keep the “public order” among different religious
groups in British-India. The British Government inserted another Section 153-A to Indian
Penal Code in 1898 criminalising the offences against the public tranquillity. These provisions
had remained the same until 1924, when a Hindu publisher in Lahore, Raj Pal,22 published a
book containing blasphemous and disrespecting remarks against the Holy Prophet Muhammad
(PBUH).23 The Sindh Bench of Lahore High Court, while acquitting Raj Pal, held that “Section
153A was not meant to stop polemics against a deceased religious leader, however, scurrilous
and in bad taste such attack might be!”. 24 This decision infuriated Muslims and they
subsequently demanded the criminalisation of acts hurting someone’s religious feelings. 25
Thus, the British Government was compelled to include another Section 295-A to Indian Penal
Code26 criminalising the “insult or attempt to insult the religion or religious beliefs” of any
class of people “with deliberate and malicious intention of outraging the religious feelings” of
that class. It is hard to claim that this law protected the religious feelings of minorities as well
and they could also initiate criminal proceedings against anyone who tried to hurt religious
feelings of others.27
This law stayed the same in Pakistan as well, until Mr. M. Ismail Qureshi, advocate of the
Supreme Court of Pakistan, challenged it in the Federal Shariat Court of Pakistan (FSC) 28 in
1984. Mr. Qureshi filed a petition in the FSC,29 challenging Section 295-A to be in opposition
to the Islamic injunctions to the extent of blasphemy punishment.30 The FSC heard the petition
and reserved the judgment, meanwhile the Petitioner drafted a bill for the new law and
convinced Apa Nisar Fatima31 to present it in the Parliament.32 The bill was passed by the
Parliament in 1986 and Section 295-C was inserted in PPC and the punishments of “death
penalty or imprisonment for life” were prescribed for committing blasphemy about the Prophet
Muhammad (PBUH). Mr. Ismail Qureshi again challenged Section 295-C of PPC in 1990
through another petition33 in the FSC claiming that the two punishments provided in Section
295-C were not in accordance with the injunction of Islam. He argued that the punishment for
21
Section 295 relates to ‘defiling a place of worship’. Section 296 is about ‘disturbing religious assembly’. Section
297 gives provisions about ‘trespassing on burial places’, while Section 298 deals with ‘uttering words etc.’, with
the deliberate intension to wound the religious feelings of someone.
22
Raj Pal was sentenced under section 153A of Indian Penal Code by the Trial Court and his sentence was reduced
by the Court of Sessions and at the end he was acquitted by the Sindh Bench of Lahore High Court.
23
Mohammad Nafees, “Blasphemy Laws in Pakistan: A Historical Overview”, Centre for Research at Security
Studies, Islamabad. 15, see <https://crss.pk/wp-content/uploads/2010/07/Report-on-Blasphemy-Laws-.pdf>
accessed February 14, 2022.
24
AIR 1927 Lah 250.
25
Ismail Qureshi, Qānūn-e-Tauhῑn-i-Risālat (Law of Blasphemy) (Lahore: Al-Faisal Publisher 2006) 303.
26
Criminal Law Amendment Act (XXV of 1927). The idea of a new law on the issue was generated by
Muhammad Ali Jawhar in the backdrop of the acquittal of Raj Pal by the Lahore High Court. He proposed a new
legislation to fill the vacuum in the law. See Qureshi (n 25) 40.
27
Section 295-A had prescribed punishment of imprisonment for two years. Pakistan enhanced this punishment
to ten years. See, Section 295-A of Pakistan Penal Code.
28
The Federal Shariat Court was established in 1980. Under Article 203-D of the Constitution of Islamic Republic
of Pakistan, its jurisdiction is to “examine and decide the question whether any law or provision of law is
repugnant to the injunctions of Islam”. The FSC decisions are binding on the Government unless the Government
successfully appeals to the Shariat Appellate Bench of the Supreme Court of Pakistan.
29
Shariat Petition no. 1/L/84 of 1984.
30
Qureshi (n 25) 365.
31
As she was a member of the National Assembly of Pakistan then.
32
Qureshi (n 25) 334.
33
Ismail Qureshi v The Government of Pakistan, PLD 1991 FSC 10.
Volume 18, Issue 1 (69) 2022

blasphemy can only be the death penalty as a Ḥadd punishment in Islamic law, 34 and the
punishment of “imprisonment for life” was repugnant to the injunctions of Islam for this
crime.35 The petition was heard by full bench of the Court, and the Court also invited some
Ulamā as juris consults.36 Some of these scholars assisted the Court with the opinions of Ḥanafῑ
jurists in detail about the Ḥadd punishment, advising that death penalty cannot be awarded to
a non-Muslim in blasphemy, especially when we are considering it as a Ḥadd.37 But the Court
agreed with the opinion of Mr. Qureshi and decided that the crime of blasphemy is a Ḥadd in
Islamic law and the only punishment for that is death penalty, which cannot be altered or
commuted.38 The FSC directed the Government to remove the “imprisonment for life” from
Section 295-C of PPC. 39 However, the Federal Government failed to make the necessary
amendment by the prescribed deadline, 40 and the punishment of life imprisonment stood
repealed through the force of FSC decision.41 Therefore, the death penalty has become the only
punishment for blasphemy in Pakistan.
III. DECISIONS OF COURTS AT DEFERENT LEVELS
In the Pakistani legal system, the Sessions Judge (or the Additional Sessions Judge) has power
to deal with the cases punishable with death penalty.42 A Court of Sessions first tries the case
and after the judgment the accused and the complainant have a right of two appeals, first to the
High Court (HC) and the second appeal to the Supreme Court of Pakistan (SC).
A. Trial Court’s Decision in Asia Bibi Case
The additional Sessions Judge (ASJ) Nankana Sahib conducted the judicial trial. The
Superintendent of Police, Muhammad Amin Bukhari, finished the investigation to ensure the
impartiality of the investigation,43 but he neither visited the place of occurrence nor did he
34
Ḥadd is a term of Islamic criminal law which means “the Right of Allah”. It is the first category of crimes, and
its punishment is decided and fixed in the Holy Quran and Sunnah, which cannot be altered to any other
punishment by legislatures or any Muslim scholar. Ḥadd applies to some specified crimes where the pure right of
Allah is violated like drinking alcohol and fornication etc.
35
He challenged two issues, the second issue was that the name of Prophet Muhammad (PBUH) is mentioned in
the section and the section does not cover the other Messengers of Allah, while under Islamic law, defiling anyone
of the Messengers is a Ḥadd crime and the culprit should be punished. He argued that these two changes must be
made in the section as is it repugnant to the injunctions of Islam in its present shape. The FSC accepted his both
pleas and directed the Federal Government accordingly.
36
It is a practice in Federal Shariat Court that it invites experts to assist the Court in matters related to their
expertise. The jurisconsult assists the FSC as an amicus curiae does in other courts.
37
Ismail Qureshi v The Government of Pakistan (n 33) [6 to 10].
38
Qureshi (n 25) 335.
39
The Government filed an appeal against the decision of the FSC in the Shariat Appellate Bench of the Supreme
Court, and later withdrawn the appeal when the petitioner convinced the then Prime Minister of Pakistan Mr.
Mian Muhammad Nawaz Shareef. See, Muhammad Mushtaq Ahmad, ‘Pakistani Blasphemy Law between Hadd
and Siyasah: A Plea for Reappraisal of the Ismail Qureshi Case’ 18, see
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3161330> accessed March 29, 2022.
40
The Federal Government was directed to change the Section 295-C according to the judgement latest by April
30, 1991. The then Government of Pakistan failed to make any amendment or reverse the judgement by an appeal
to the Shariat Appellate Bench of the Supreme Court of Pakistan. Therefore, the decision and judgement of the
Federal Shariat Court of Pakistan become effective and binding after April 30, 1991.
41
The Section 295-C of PPC still has the phrase “Imprisonment for Life”, but it has no legal effect.
42
See Section 28, Section 31 (2) and Schedule II of the CrPC.
43
In 2014, the Government of Pakistan inserted a new section 156-A in CrPC. to ensure that the investigation
must by unbiased in blasphemy cases under section 295-C of PPC and police officer below the rank of
Superintendent of Police is not entitled to investigate the case. See for more details: International Commission of
Volume 18, Issue 1 (70) 2022

interrogate the people who were in the vicinity when the incident took place. This fact was not
denied by the prosecution at any stage. The Court recorded the statements, where all
prosecution witnesses44 focused on her extra-judicial confession made before the mob, in their
statements except the two eyewitnesses namely, Mafia Bibi45 and Asma Bibi.46 Shockingly,
the eyewitnesses in their statements, not only entirely suppressed the exchange of harsh words
with the accused, but they also denied any altercation during the cross-examination. In contrast,
Asia Bibi firmly denied the blasphemy allegations against her in the statement made before the
Trial Court.47 She informed the Court about the quarrel and the exchange of harsh words which
led her to blasphemy charges, and she showed full respect for the Holy Prophet Muhammad
(PBUH) and the Holy Quran. She said, “my forefathers had been living in this village and I am
also 40 years old, and no complaint likewise never existed against me”.48 The prosecution also
gave-up the evidence of its two witnesses during the trial as it was considered unnecessary, and
the Court was satisfied with the prosecution about giving up the witnesses. Though this attitude
by of the prosecution is common in Pakistan, but it should not have been overlooked by the
Trial Court in this case which had gained the attention of international media.
The Trial Court also stated that the accused did not produce her own witnesses under Section
340 (2) the Code of Criminal Procedure, to refute the allegations of blasphemy. The evidence
could not be presented by the defence as the circumstances of the case were unusual. The
accused is from a religious minority group of Pakistan.49 It was improbable that a co-worker
from the Muslim majority would testify in her defence, considering the social pressure
instigated by the extremists. While the same Court disregarded the fact that out of all women
working in the field at the time of occurrence, only two sisters appeared before the Court for a
testimony against the accused. These two witnesses were the same women who got into the
quarrel with the accused and thus had personal grudges with her. At the end of the trial, she
was sentenced to death by the Additional Sessions Judge Nankana Sahib on 8th November
2010.
B. Appeal to the Lahore High Court
After the conviction, an appeal was filed before the Lahore High Court Lahore, Punjab,50 that
was heard by a learned Division Bench of the LHC. The High Court dismissed the appeal on
the grounds discussed below.
Jurists, ‘On Trial: The Implementation of Pakistan’s Blasphemy Laws’ (Geneva, Switzerland Nov. 2015) 14, see
<https://www.refworld.org/pdfid/565da4824.pdf> accessed October 12, 2021.
44
Prosecution brought seven witnesses before the Trial Court. Only two of them claimed to be eyewitnesses
namely Mafia Bibi (PW-2) and Asma Bibi (PW-3); other witnesses, the complainant himself (PW-1), Muhammad
Afzal as a witness of extra-judicial confession (PW-4) and three policemen (PW 5-6-7). Whereas two witnesses
namely, Mukhtar Ahmad and Yasmin Bibi were given up. The owner of the field Muhammad Idrees was also
examined as a Court Witness (CW-1).
45
Prosecution Witness No. 2.
46
Prosecution Witness No. 3‫۔‬
47
Her statement was recorded under section 342 of CrPC before the Court.
48
Mst. Asia Bibi v the State & another, Criminal Appeal No. 2509/2010 [6]. Her statement was also reproduced
in the High Court’s judgement.
49
Pakistani society is very much safe for the minorities unless any local extremist religious leader involves against
them, which was the complainant in the instant case.
50
Mst. Asia Bibi v the State & another. HCJD/C-21, Murder Reference No. 614 of 2010 & Criminal Appeal No.
2509 of 2010, (it is a Capital Sentence Reference which wrongly mentioned as Murder Reference in the record).
Volume 18, Issue 1 (71) 2022

The LHC concluded that the perusal of FIR and the statements of eyewitnesses reveal a
blasphemy case against the appellant. The prosecution has produced direct evidence 51 and the
evidence of extra-judicial confession.52 The prosecution produced only two eyewitnesses who
narrated the occurrence,53 and others as witnesses of extra-judicial confession. The LHC stated:
“The minute perusal of cross examination upon this eyewitness reveals an astonishing
fact that she has not been cross examined by the defence qua the supra reproduced
pivotal part of her incriminating statement against the appellant. We are surprised
that not even a single suggestion was put to witness to rebut this part of statement,
constituting the offence of blasphemy alleged against the appellant”.54
The High Court also held that the statement of Mafia Bibi about the utterance of blasphemous
words by the appellant remained unrebutted hence, admitted. 55 It shows that the defence had
not defended their case with sufficient gravity and the relevant aspects of the prosecution case
remained unrebutted. The LHC relied on Hon’ble Supreme Court’s decision in Hafiz Tassaduq
Hussain v Lal Khatoon case, in which the Court held that, “if material fact is deposed in
examination in chief and it is not subjected to the cross-examination, same is to be deemed to
have been admitted”.56 Reference to this case law, the LHC considered unrebutted allegations
of blasphemy as admission. But it is much clear that the unrebutted facts cannot be considered
as admission especially in criminal cases where the prosecution is required to prove its case
beyond any doubt. The Supreme Court also held the same in the latest case Nadeem Ramzan v
The State, and the Court stated: “the part of the statement which stays unrebutted amounts to
an admission, does not attract in criminal cases”.57
While discussing the non-appearance of other co-workers present in the field, as witnesses in
investigation or before the Trial Court, the High Court said this argument does not favour the
defence58 and observed that it is not necessary to present a large number of witnesses as already
dilated by another Hon’ble Bench of this Court in a similar case titled Haji Bashir Ahmad v
The State. the Court held that:
“To constitute offence under S.295-C, PPC, number of witnesses were not required and
it was not necessary that such abusive language against Holy Prophet (PBUH) should
be made loudly in public or in a meeting or at some specific place, but statement of
single witness that somebody had made utterance with the contempt of Holy Prophet
(P.B.U.H) even inside the house was sufficient to award death penalty to such
contemnor”.59
The High Court’s conclusion about the non-appearance of the other co-workers as witnesses
does not follow the principle relied upon. Both the cases are different in their facts and
circumstances. In the former case the accused did not enter a quarrel and the exchange of harsh
and loud words. While in the instant case, both parties exchanged harsh and loud words resulting
51
Only two eyewitnesses; Mafia Bibi and Asma Bibi.
52
Mst. Asia Bibi v the State & another (n 50) [12].
53
Mst. Asia Bibi v the State & another, Criminal Appeal No. 2509/2010 [12]. See detailed statements (examination
in chief) of Mafia Bibi and Asma Bibi.
54
ibid.
55
ibid.
56
Hafiz Tassaduq Hussain v Lal Khatoon, PLD 2011 SC 296, wherein the Supreme Court of Pakistan has
discussed Article 132 of Qanun-e-Shahadat Order, 1984.
57
Nadeem Ramzan v The State, 2018 SCMR 149.
58
Mst. Asia Bibi v. the State & another (n 50) [14].
59
Haji Bashir Ahmad v The State, 2005 YLR 985.
Volume 18, Issue 1 (72) 2022

in the quarrel between them. Considering the circumstances of both cases, the above-mentioned
settled principle should not be applied in the present case. However, the High Court rejected
her appeal on 16th October 2014, upholding the decision of the Trial Court.
C. Supreme Court of Pakistan’s Verdict
After the rejection of her appeal by the HC, her lawyer filed the second appeal in the Supreme
Court of Pakistan in 2015.60 The appeal was heard in 2018 by three most senior judges of the
Supreme Court of Pakistan,61 and all of them allowed the appeal and acquitted her from the
said conviction. The said judgement was written by the then Chief Justice of Pakistan, Justice
Mian Saqib Nisar, and Justice Asif Saeed Khan Khosa. In the opening paras of the judgement,
the Chief Justice wrote about the teaching of Islam and Islamic principles about the blasphemy
and stated that whoever commits blasphemy, must be punished according to the law, but it is
also against the Islamic principle that every accused of blasphemy is entitled to be punished.62
The Court tried to counter the extremists’ approach in the country that every accused of
blasphemy is guilty and must be punished. The Chief Justice also discussed a brief history of
the blasphemy laws of Pakistan and the FSC judgement as a current law of the country that the
only punishment for blasphemy is death penalty.
The SC observed the issue of extra-judicial confession and held that the alleged extra-judicial
confession was not voluntary, thus not sufficient basis of conviction. 63 The SC further stated
that the case of the prosecution revolved around the extra-judicial confession and the statements
of two ladies. There were admittedly 25-30 ladies present in the field while the alleged
blasphemous remarks were uttered. None of the other ladies reported the matter to anyone
except these two sisters and Yasmin Bibi who eventually gave up and did not testify in the
Trial Court.64 This created a doubt in the prosecution story and the benefit of doubt is extended
to the accused. The Supreme Court has discussed detailed analysis of all contradictions and
doubts in the prosecution case.65
While concluding the judgement, the Chief Justice wrote:
“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. … It is held that the appellant is
entitled to the benefit of the doubt as a right”.66
Although the second author of the Judgement, Justice Asif Saeed Khan Khosa, agreed with the
judgement written by the Chief Justice, but analysed the contradictions among the statements
of the prosecution witnesses in detail. He pointed out that it was alleged in FIR that Asia Bibi
60
Mts. Asia Bibi v The State etc., Criminal Appeal No. 39-L of 2015.
61
Mr. Justice Mian Saqib Nisar (Chief Justice), Mr. Justice Asif Saeed Khan Khosa, and Mr. Justice Mazhar Alam
Khan Miankhel.
62
Mts. Asia Bibi v The State etc., Criminal Appeal No. 39-L of 2015 [12 & 14].
63
ibid [24].
64
ibid [28].
65
ibid [31 to 41].
66
ibid [41].
Volume 18, Issue 1 (73) 2022

was a Christian preacher, but this assertion was not mentioned by anyone of the prosecution
witnesses during the trial.67 This depicts that labelling her a preacher was just to play with the
sentiments of Muslim people and to gain their religious support.
Justice Khan also grieved for the fact that the incident began with a quarrel which led to the
exchange of abusive words, but the eyewitnesses entirely suppressed this fact in examination-
in-chief and denied in their cross-examination. This attitude of the eyewitnesses caused serious
doubts about the case because they were capable of deposing falsely with no regard for the
truth. The quarrel was categorically reported by the Investigating Officer and the Landowner
in the Trial Court. It began when the Muslim co-workers refused to accept water from the
Christian colleague, the accused.68
The Supreme Court of Pakistan overturned the decision of the Trial Court and allowed the
appeal against the said conviction and acquitted the accused on 31st October 2018.69 In 2019,
Asia Bibi moved to Canada with her family where she was granted asylum.70
Following the judgement, anarchy and riots by the religious extremists took place in the
country. The Ulamā considered it a biased verdict influenced by the International Community.
However, they ignored the fact that they were also compelling the Court through their protests,
riots and other means. Several traditional religious scholars recorded their statements on media
criticising the Court and the Judgement. On the other hand, the decision of the Supreme Court
was appreciated by the international media.71
The western media and organisations were primarily concerned with the Supreme Court’s
judgment met with protests. The protests were legitimised through conspiracy theories and the
Ulamā, playing the leading role in the protests, also believed those theories to be true. The
Ulamā, including the lead protestants, argued that; first, the two lower courts convicted her and
awarded death penalty, then how could the Supreme Court release her on the mere basis of
‘benefit of doubt’; and secondly, the verdict of the Supreme Court was solely on the grounds
of the formalities and technicalities of the legal procedure of Pakistan despite the crime which
has been alleged against her.
IV. LEGAL AND SOCIAL REPERCUSSIONS OF THIS CASE
Several legal and social issues were involved in the case which affected many rights of the
accused during and after the trial. The legal issues led the Ulamā to misconstrue the matter.
Furthermore, the social issues played a vital role in the extremists’ protests which took place
throughout the country. Many Ulamā criticised the verdict of the SC. One of those late Mufti
Zarwali Khan from Karachi 72 said after the verdict in a lecture, “I will prove before the
Supreme Court of Pakistan that she is liable to death penalty”.73
67
Mts. Asia Bibi v The State etc., Criminal Appeal No. 39-L of 2015. See second part of the judgement written by
Justice Asif Saeed Khan Khosa, [4].
68
ibid [9].
69
Details can be seen at <https://nation.com.pk/E-Paper/islamabad/01-Nov-2018> accessed June 20, 2021.
70
She shared her story with a news channel in 2020, visit <https://globalnews.ca/news/7251880/asia-bibi-canada-
interview/> accessed April 23, 2021.
71
See Amnesty Report at <https://www.amnesty.org/en/latest/news/2018/10/pakistan-aasia-bibi-verdict-is-a-
landmark-victory-for-religious-tolerance/> accessed June 9, 2021.
72
He was very famous religious scholar of the country, founder and head of a MADRASA called Ahsan-ul-Uloom
Karachi and was teacher of thousands of Ulamā in the country.
73
It is a sad reality of our society that despite the influence of these Ulamā in society, they even do not know the
legal system of the country, the factual questions and proofs arrive and discuss in the Trial Court not in the
Volume 18, Issue 1 (74) 2022

In blasphemy cases, a common argument raised by the religious parties and the extremist
groups is that the non-Muslims or some secular74 Muslims deliberately commit blasphemy to
highlight their case in international media, so they could seek asylum in Europe or any other
western country. Though the point cannot be completely denied, but the attention of
international media is caught by the extremism and the biasness in blasphemy cases. The
prejudice results in violation of the accused’s rights and causing their lives at risk. The
Government also never reviewed this issue with the Ulamā for their discussion to approve
Ḥanafῑ School’s 75 opinion for the punishment to a non-Muslim accused, 76 to elude the
coverage of such cases internationally. The primary concern of the western communities is
death penalty as the violation of international human rights.
Undoubtedly, the Pakistani society has no tolerance in blasphemy cases and is too sensitive
towards the Holy Prophet Muhammad (PBUH). The religious extremist parties manipulate the
religious feelings and incite people for violent protests against accused to be hanged.
Apparently, in Pakistani legal system, there are several sections in PPC which deal with false
allegations and false evidence and provide punishments for a person who intricates an innocent
person in any criminal case.77 Unless the aggrieved person himself applies for a legal action,
unfortunately, the courts are unable to initiate criminal proceedings against those alleging
innocent people criminally.
Another objection to the verdict raised by Tehreek Labbaik Pakistan and repeated the same in
all protests, that the Supreme Court of Pakistan released the accused Asia Bibi due to
international pressure. But the fact is, if we agree with the said statement about the international
pressure on the Court, then how we can ignore the internal pressure on the Court, as well as the
risk of the judges’ lives from this religious extremism. The internal pressure could claim the
judges’ or their family lives which is witnessed in the same and many other cases. Right after
the Supreme Court’s verdict, Peer Afzal Qadri, leader of TLP, issued a Fatwa78 in his speech
during a protest that, “all three judges of the Supreme Court must be killed by any Muslim”,
and he encouraged and asked their official bodyguards to kill them because of this verdict as
he believed it un-Islamic.79 This was one of the toughest decisions for the judges of the SC to
look for a poor lady and decide the matter as per law, so, justice to be prevailed. To explain
this situation, I must borrow the sentence of Justice William Murray,80 who said in 1772,81 “let
justice be done though the heavens fall”. The scenario of the Asia Bibi case and internal
pressure on the judges could literally fall the heavens, after the said decision. However, the
Supreme Court and secondly no famous scholar came forward during the trial of the case. They all appeared when
she filed an appeal in the Supreme Court which is the moral and legal right of the accused to challenge the legality
of the judgement in the superior court. His lecture can be found at
<https://jamiaahsan.com/audio?year=2018&category=2> accessed March 20, 2021.
74
Unfortunately, secular does not mean in its true spirit as found in the Europe. In Pakistan, secularism starts from
irrational objections on Islam.
75
Ḥanafῑ school is one of the four famous Schools of Islamic Law: namely, Ḥanafῑ, Shafi’ῑ, Malikῑ, Ḥanbalῑ.
76
According to Ḥanafῑ jurist, the death penalty as a Ḥadd cannot be awarded to non-Muslims in blasphemy crime.
For more details, see: Muhammad Mushtaq Ahmad, ‘Pakistani Blasphemy Law between Hadd and Siyasah: A
Plea for Reappraisal of the Ismail Qureshi Case’, see
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3161330> accessed June 29, 2021.
77
See Chapter XI of PPC, particularly section 211, which deals with the false allegations and institution of
criminal proceedings in cases where death punishment is involved.
78
Fatwa is a religious legal opinion about any matter that it is allowed in Islamic law, to do so.
79
His speech can be watched on YouTube at <https://www.youtube.com/watch?v=jKweByd7Y9E> accessed
November 15, 2021.
80
Former Lord Chief Justice of England and Wales.
81
The details can be read at <http://faculty.allard.ubc.ca/pue/historybook/school06a.html> accessed 10 June
2021.
Volume 18, Issue 1 (75) 2022

judges of the Supreme Court stood with the cause for justice. The Ulamā of all sects condemned
the verdict of the Supreme Court and found supporters within their sects, as sectarianism also
played a substantial role in this case. Likewise, most Brailvῑ sect’s lawyers supported Tehreek
Labbaik Pakistan based on their sectarian affiliation and beliefs.
Keeping in view the situation of the country followed by the verdict of the Supreme Court, the
Government of Pakistan should have handled the opposition, stirred by many Ulamā, that led
the country-wide protests and riots, stimulating an aura of extremism in the name of religion
among common people. Consequently, the propaganda comprising the conspiracy theory
against the judgement excavated its roots in the Country. Had the Government arranged an
indoor conference with the Ulamā to satisfy them about the verdict, they would not have called
for protests which triggered the extremism in the Country to the point of no return. The
Government of Pakistan completely failed to deal with the existing issues and extreme religious
violence in the country. The Government did not even try to counter this extremists’ approach
and narratives. Several Muftis of Pakistani society threatened the Government about Asia Bibi
and instigated people to kill everyone who was allegedly involved in any blasphemous act and
never brought them before the court of law.
V. ANALYSIS OF THE COURT DECISIONS IN ASIA BIBI CASE
Pakistan is constitutionally bound to follow the Shari’ah principles in the legal system, as
mentioned in the Article 227 of the Constitution of Islamic Republic of Pakistan which says:
“all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in
the Holy Quran and Sunnah, in this part referred to as the Injunctions of Islam, and no law shall
be enacted which is repugnant to such Injunctions”, thereby Shari’ah is the supreme law of the
country.82 On the other hand, in criminal justice system, being a party to many instruments of
international human rights law, Pakistan is also bound to protect the human rights within its
territorial jurisdiction as per international standards. However, this case contains, apart from
the other flaws, several violations of Shari’ah principles and international human rights
documents.
A. Shari’ah Appraisal of the Case
It is crucial to evaluate the arguments of all the courts and the objections raised by Ulamā on
the Supreme Court’s judgement in the light of Shari’ah and the international human rights
instruments ratified by Pakistan. Undoubtedly, this case pushed Pakistani society to the brink
of religious extremism in blasphemy cases. In a famous Hadith of the Holy Prophet
Muhammad (PBUH), an acute principle of the Islamic penal law has been discussed. The
Hadith is, Aishah (R.A) narrated that the Messenger of Allah (PBUH) said:83 “Avert the legal
penalties84 from the Muslims as much as possible, if he has a way out then leave him to his
way, for if the Imam85 makes a mistake in forgiving, it would be better than making a mistake
82
Article 227 of the Constitution of the Islamic Republic of Pakistan.
83
Words of the Ḥadith are:
ْ ‫ئِفي‬
ِ‫ِالعُقُوبَة‬ ْ ‫ئِف‬
َ ‫يِالع َ ْفوِ َخ ْي ٌرِم ْنِ َأ ْنِي ُْخط‬ َ ‫امِ َأ ْنِي ُْخط‬ َ ِ‫ط ْعتُ ْمِ َفإ ْنِكَانَِِلَ ِهُِ َم ْخ َرجٌِ َف َخ ُّلوا‬
َِ ‫سبيلَهُِِ َفإنِِاإل َم‬ ْ ‫اد َْر ُءواِ ْال ُحدُودَِعَن‬
َ َ‫ِال ُمسْلمينَ ِ َماِا ْست‬
84
The word “Hudood – singular-Hadd” in this Hadith, Ḥadd does not mean legal penalties as translated by the
translator. The term Hudood cannot be translated as legal penalties because Hadd is just one category of the legal
penalties.
85
Sovereign, ruler, or judge.
Volume 18, Issue 1 (76) 2022

in punishment”.86 These words recurring in many Ahādith (singular – Ḥadῑth)87 of the Holy
Prophet Muhammad (PBUH), demonstrate and suggest, whenever the right of Allah is
violated,88 the authorities must try to save the offender from the Ḥadd punishment even if there
is a little chance to save. The ruler or the judge is suggested to avoid the Ḥadd punishments to
the accused as much as possible.89
There are several jurisprudential questions of Islamic law involved in this case but surprisingly
neither the High Court nor the Supreme Court highlighted these questions.
1. Blasphemy as Ḥadd Crime in Pakistani Legal System
As discussed above, the only punishment for blasphemy is death penalty as Ḥadd in Pakistan.90
Mr. Ismail Qureshi argued in FSC that the only punishment will be death and life imprisonment
part of the Section 295-C is an un-Islamic punishment and repugnant to the principles of
Islamic law. The FSC agreed with petitioner but missed to incorporate the whole package of
Ḥadd from Islamic law rather than mere punishment. In Islamic law, Ḥadd punishment also
requires a particular criteria and fixed standard of evidence to prove the crime and no other
piece of evidence can prove the offence of Ḥadd. But FSC overlooked to discuss the criterion
of evidence for Ḥadd crime, which led towards an un-Islamic and unjust punishment in some
cases, particularly in the instant case.
The classical Islamic law considers blasphemy as apostasy and declares Ḥadd punishment for
it. The FSC primarily relied on the legal evidence of Islamic law about the punishment of
apostasy and declared blasphemy as Ḥadd crime. 91 But then the FSC failed to discuss the
question: how the punishment of apostasy can be given to a non-Muslim?92 Surprisingly, the
Court also concluded that repentance would not suspend the punishment of blasphemy, which
is against the settled principle of Islamic law that the repentance is acceptable in apostasy
(blasphemy) and the punishment would be suspended. In the author’s opinion, the Court
presumed that the crime of blasphemy also violates the personal rights of the Holy Prophet
Muhammad (PBUH), and no one can pardon this right. 93 Hence, the FSC implicated different
opinions of the jurists belonging to different schools of Islamic law and has not followed a
particular legal theory. The Federal Shariat Court also failed to analyse the opinions of the
Ḥanafῑ jurists and their legal principles.94
86
Hadith No. 1424, English Translation of Jami’ At-Tirmidhi, Compiled by Imam Hafiz Abu Eisa Mohammad ibn
Eisa At-Tirmidhi, Translated by Abu Khaliyl (USA), vol 3, 208 (Darussalam 2007), visit
<https://bawar.net/data0/books/5a0465616b254/pdf/Jami%20at-Tirmidhi%20Vol.%203%20-%201205-
1896%20English%20Arabic.pdf > accessed June 17, 2021.
87
Another Ḥadῑth of the Holy Prophet Muhammad (PBUH), “The mistake of Qazi judge, in releasing a criminal
is better than his mistake in punishing an innocent”. (Sunan Al-Baihaqi vol 8, 184).
88
Which initiates the Ḥadd punishment under Islamic Penal Law.
89
Because Ḥadd is pure violation of the right of Allah, no individual or society rights are involved in the crime
of Ḥadd.
90
The FSC missed the view of Ḥanafῑ Jurists who do not consider blasphemy as a Ḥadd for non-Muslims, in all
circumstances.
91
Ismail Qureshi v The Government of Pakistan (n 33) [17 & 21] [27 – 32].
92
ibid. [24 & 25], the Court mentioned many incidences of death punishment during the lifetime of the Holy
Prophet Muhammad (PBUH) and his Companions for those who committed blasphemy. However, the Court did
not examine these instances in detail and did not distinguish between the legal status of these various culprits
residing in that territory.
93
ibid [26]. For more details, see: Mushtaq Ahmad (n 76) 40.
94
If the Government had not withdrawn the appeal in the Shariat Appellate Bench of the Supreme Court of
Pakistan, these issues may have been taken into consideration by the SC. Two well-known scholars of Islamic
Volume 18, Issue 1 (77) 2022

2. Standard of Evidence in Blasphemy or Ḥadd Crime
All schools of Islamic law agreed that Ḥadd requires a very tough, fixed, and high standard of
testimony to prove the crime and award Ḥadd punishment. But, from the past several years
neither any High Court nor the Supreme Court of Pakistan ever raised the question of testimony
in blasphemy cases to award Ḥadd punishment. The accused’s case required such examination
of witnesses because if we agree with the FSC and consider blasphemy as Ḥadd crime in all
circumstances, then the procedure of evidence under the Qanoon-e-Shahadat Order 1984 of
Pakistan, contradicts with the required tough criteria of evidence for Ḥadd under Islamic law.
The only criterion of Islamic law which is incorporated into the QSO is the passing of Tazkiyat
al-Shuhūd95 test by the witnesses. Although, according to Article 17 of QSO 1984, it states that
competence of witnesses shall be determined in accordance with principles of Islamic law, but
it does not include all details required for testimony in Ḥadd cases.
All four schools of Islamic law unanimously agreed that the testimony of females is not
acceptable in the Ḥudood (singular - Ḥadd) crimes. Al-Kāsānī96 and Badr al-Dīn Al-’Aynī97
from the Ḥanafῑ jurists, Abū al-Ḥusayn Yaḥyā b. Abū al-Khayr al-Yamanī98 and Al-Māwardī99
from Shāfi’ῑ jurists, Abū Muḥammad Muwaffaq al-Dīn al-Maqdisī100 and from Ḥanbalῑ jurists
and Al-Imām Mālik b. Anas al-Aṣbaḥī101 explicitly stated that Ḥadd punishment cannot be
awarded on the testimony of women. Blasphemy is considered a Ḥadd crime by the FSC in
1990, then the criteria for evidence must also be incorporated from the principles of Islamic
law. In the instant case, the testimony of two women is not acceptable for the blasphemy crime
to award Ḥadd punishment.102 Therefore, awarding death penalty to the accused was clearly
illegal and unjust as per Islamic law as well as international human rights law. 103 The High
Court and the Supreme Court could have raised the jurisprudential question of only female
eyewitnesses in the Ḥadd case. If the punishment is claimed to be based on Islamic law, then
the procedure for evidence and testimony must also be purely based on the same legal system.
3. Blasphemy Crime and Mens Rea
Another jurisprudential question is about mens rea in the criminal matters. If we consider
blasphemy as a Ḥadd crime under Shari’ah, whether mens rea will be still required or it will
be crime of strict liability? The petitioner himself had the opinion that mens rea is a necessary
law, Muhammad Taqi Usmani and Muhammad Karam Shah al-Azhari were members of the SAB-SC at that time,
and they could have rectified the problems in this judgment.
95
Tazkiyat al-shuhūd is an Islamic concept which means the witnesses must be of that caliber which satisfied the
court and there are certain conditions to fulfill that criteria.
96
‘Alā’ al-Dīn Abū Bakr b. Mas’ūd al-Kāsānī (d. 587 A. H). Badā’i’ al-Ṣanā’i’ fī Tartīb al-Sharā’i’, (Beirut: Dār
al-Kutub al-’Ilmiyyah 2nd edn 1986) vol 6, 279.
97
Abū Muḥammad Badr al-Dīn Maḥmūd b. Aḥmad b. Mūsā al-’Aynī (d. 855 A.H.), al-Banāyah Sharḥ al-
Hidāyah (Beirut: Dār al-Kutub al-’Ilmiyyah, 2000) vol 6, 358.
98
Abū al-Ḥusayn Yaḥyā b. Abū al-Khayr b. Sālim al-Yamanī (d. 558 A.H.), al-Bayān fī Madhhab al-Imām al-
Shāfi’ī (Jeddah: Dār al-Minhāj, 2000) vol 13, 324.
99
Abū al-Ḥasan ‘Alī b. Muḥammad al-Māwardī (d. 450 A. H.), al-Ḥāwī al-Kabīr fī Fiqh Madhhab al-’Imām al-
Shāfi’ī Sharḥ Mukhtaṣar al-Muzanī (Beirut: Dār al-Kutub al-’Ilmiyyah, 1999) vol 17, 07.
100
Abū Muḥammad Muwaffaq al-Dīn Abullāh b. Aḥmad b. Muḥammad al-Maqdisī (d. 620 A. H.), al-Kāfi fī Fiqh
al-Imām Aḥmad (Beirut: Dār al-Kutub al-’Ilmiyyah, 1994), vol 4, 90 and 282.
101
Mālik b. Anas al-Aṣbaḥī (179. A.H.) al-Mudawwanah al-Kubrā. (2nd edn, Beirut: Dār al-Kutub al-’Ilmiyyah
1994) vol 4, 9.
102
Direct evidence or eyewitnesses, other indirect witnesses are not admissible in Ḥadd crimes under Islamic law.
103
International human rights law declares men and women equal in all aspects and these arguments from the
classical jurists of Islamic law is purely for the instant case and to highlight the flaws in blasphemy law of Pakistan.
Volume 18, Issue 1 (78) 2022

element for the crime of blasphemy.104 According to the FSC in its primarily arguments in the
judgement, the mens rea is a necessary element for every crime including the crime of
blasphemy as a Ḥadd,105 and clearly stated that “shariah recognizes an offence liable to Ḥadd
only if it is accompanied by an express intention. Shari’ah also waives the penalty of Ḥadd if
any doubt occurs therein”.106 The FSC also stated, if the blasphemous words are clear and
express, even then the accused must be allowed to explain his intention.107 But unexpectedly
the FSC while concluding the judgment did not mention mens rea as a necessary element for
the crime which made blasphemy as a strict liability crime in Pakistani legal system. It is an
alarming situation that, now the courts consistently impose death penalty where the offence
under 295-C is proven, they do not require proof of specific intent to defame the Holy Prophet
(PBUH) as a requisite condition to prove the offence under Shari’ah and common law. The
absence of mens rea, an important element of criminal cases, created a lot of problems in
blasphemy cases in Pakistan. Unlike Section 295-C, the other Sections of PPC related to the
offences against religion, particularly 295-A and 295-B, explicitly include the prerequisite of
mens rea in the text.
B. Domestic Legal System and International Human Rights Law
Pakistan being a party to many international treaties is bound to comply with the objectives of
all those treaties, but unfortunately, several violations have been noticed by international
organizations in the past years. Being a dualist state,108 the international treaties do not directly
apply to the country’s legal system to be claimed in the domestic courts as a right, but Pakistan
is bound to incorporate international treaties into domestic legal system by new legislation in
the parliament. The basic concern of international media and organizations in Asia Bibi case
was to protect the accused rights which are violated being the accused of blasphemy case.
1. Legal Status of Extra-Judicial Confession
Pakistani legal system, Shari’ah, as well as the international human rights law do not recognize
extra judicial or forced confession, but facts of this case show that the accused was brought
before the angry mob to confess the allegations of blasphemy. Yet, the leadership of Tehreek
Labbiak Pakistan and Ulamā criticised the verdict of the SC by emphasising on her extra-
judicial confession.109 There is also a possibility that she was promised the acceptance of her
apology if she confesses the allegations in front of all people. Obviously, a gathering of
hundreds of people demanding a confession is a threatening situation for anyone facing such
situation. Thus, she did what had been asked by them to save herself from their anger. 110
Therefore, the confession in such daunting circumstances could not be termed as voluntary and
without coercion. Being an illiterate woman, she was unaware of the consequences of her
confession that put her behind the bars for several years. The Trial Court must have considered
the circumstances of her confession before relying on it for passing the judgement of capital
punishment. This issue was questioned and debated by the then Chief Justice of Pakistan during
the hearing.111
104
Qureshi (n 25) 400.
105
Ismail Qureshi v The Government of Pakistan (n 33) [37 & 49].
106
ibid [48].
107
ibid [59 & 60].
108
Article 141 of the Constitution of Islamic Republic of Pakistan.
109
See the interviews of some leaders in the newspaper on very next day after the Supreme Court of Pakistan’s
verdict at <http://ummat.net/2018/11/01/page-3.php> accessed June 18, 2021.
110
Mts. Asia Bibi v The State etc., Criminal Appeal No. 39-L of 2015 [24].
111
ibid [42, 43 & 44].
Volume 18, Issue 1 (79) 2022

The question of validity of an extra-judicial confession was also raised by the Supreme Court
because this matter was entirely ignored by the subordinate courts. While conferring this
question, the Supreme Court held that such confessions cannot be accepted in criminal cases
as per the legal system of the country according to the Qanun-e-Shahādat Order, 1984.112 The
Trial Court not only relied on the extra-judicial confession but also ignored the binding
precedents113 of the Supreme Court where the Apex Court has evidently declared that an extra-
judicial confession is a fragile piece of evidence with no legal worth or a corroborative to other
evidence.
The law only accepts the confession of an accused made before a competent court. Confession
before a police officer,114 a complainant or any crowd is not admissible in the eyes of law. Then
how could a confession before a huge angry gathering can be acknowledged, particularly in
blasphemy cases where the punishment is death penalty. Awarding death penalty based on such
confession was a complete failure of the Trial Court in the prevalence of justice, regardless of
the societal pressure.
One fundamental right of the accused is the right against self-incrimination, the law prohibits
forced confession and the accused’s right against self-incrimination is preserved
internationally. Which means that if the accused wants to admit the crime, it must be
voluntarily, free from all kinds of coercion and torture. The International Covenant on Civil
and Political Rights (ICCPR-1966)115 and the Convention against Torture (CAT-1984),116 both
prohibit forced confession. The Convention Against Torture clearly states that forced statement
shall not be invoked as evidence in any proceeding. 117 The international human rights law
considers such forced confession as an act against human dignity and violation of the human
rights.118 Torture does not include only physical one, but also the mental torture of threatening
with any harm or death, which is commonly known as coercion. Psychological torture is also
prohibited under the international human rights law documents. Some courts at international
112
Article 37 clearly states that if any confession is made out of an inducement or threat, it is irrelevant before the
court in criminal proceedings. Complete article can be read as: “A confession made by an accused person is
irrelevant in a criminal proceeding, if the making of the confession appears to the Court that it has been caused
by any inducement, threat or promise having reference to the charge against the accused person, proceeding from
a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would
appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him”.
113
Nasir Javaid v State (2016 SCMR 1144), Imran alias Dully v The State (2015 SCMR 155), Hamid Nadeem v
The State (2011 SCMR 1233), Muhammad Aslam v Sabir Hussain (2009 SCMR 985), Sajid Mumtaz and others
v Basharat and others (2006 SCMR 231), Ziaul Rehman v The State (2000 SCMR 528) and Sarfraz Khan v The
State and 2 others (1996 SCMR 188).
114
See Article 38 of Qanun-e-Shahadat Order, 1984.
115
Pakistan signed the ICCPR in April 2008 and ratified on 23 rd Juna 2010, visit
<https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND> accessed
February 2, 2022.
116
Pakistan signed the treaty in April 2008 and ratified it on 23 rd June 2010, visit
<https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&clang=_en#EndDec>
accessed February 2, 2022.
117
Article 15 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment -
1984. Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10
December 1984 entry into force 26 June 1987.
118
See article 2 of “Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment” Adopted by General Assembly resolution 3452 (XXX) of 9
December 1975.
Volume 18, Issue 1 (80) 2022

level clearly held that “In the terms of the international norms prohibiting torture, this can be
either physical or psychological”.119
If all these documents prohibit torture in all situations to force the accused for confession during
the investigation and the trial. In this case, she was forced by the mob and extremists who were
impliedly asking and forcing her to confess, which resulted the death conviction in the Court.
This so-called alleged confession was being mentioned and highlighted throughout the case
from the complainant/prosecution side as well as from the lower judiciary. Even after the
verdict of the Supreme Court, it was highlighted by the Ulamā and religious leaders in all
protests.
2. Asia Bibi Case and the Right of Fair Trial
The right of fair trial is an inherent right of every accused. It was also severely violated in the
case. The extremist groups were following the case and a lot of people attended every hearing
along with the complainant. A dogma proven by the extremists in the society intimidated the
trial judge to take the case as a matter of religious faith.
The trial of blasphemy cases conducted by Sessions Judges in Pakistan is against the standard
of international human rights law. The IHRL endorses the right of fair trial by Article 14 of the
International Covenant on Civil and Political Rights 1966 (ICCPR).120 The right of the fair trial
does not only mean to provide the right of defence during the trial but also to protect the whole
judicial process from any influence and pressure. Pakistan, being a party to the ICCPR, is
responsible to ensure the right of fair trial and to take every measure for the fairness of the trial
particularly in the blasphemy cases. These cases involve threats not only to the accused but to
the judges as well. The judges are unable to follow the required standard of a fair trial when
they receive threats for themselves or their family members. In Pakistan, the fair trial or
independence of judiciary often understood narrowly to the absence of establishment power
and political interferences in the judicial proceedings. But the international standard for a fair
trial is wider, encompassing the protection of judges from harassment, threats, reprisal, or
attack. It is an important right of the accused to be tried by an impartial and independent judicial
system.121 There has been ample discussion in Pakistan on judicial independence particularly
after the Lawyers’ Movement in 2007. 122 The Supreme Court of Pakistan has repeatedly
emphasized the importance of judiciary for the protection of human rights. In 2012, the Court
held:
“… there could be no democracy without basic human rights and fundamental freedoms
as its foundation, and there could be no protection and enforcement of human rights
and fundamental freedoms without the existence of an independent judiciary”.123
119
Inter-American Court of Human Rights, Maritza Urratia v Guatemala, Judgement of Nov. 27. 2003 [78]
available at <https://www.corteidh.or.cr/corteidh/docs/casos/articulos/seriec_103_ing.pdf> accessed October 15,
2021.
120
For more details, see Article 14 of the ICCPR which describes and protects many rights for the accused person.
121
The Bangalore Principles of Judicial Conduct, adopted by United Nations office on Drugs and Crimes, noted
by the UN Commission on Human Rights. (Vienna 2018) available at
<https://www.unodc.org/documents/ji/training/bangaloreprinciples.pdf> accessed October 22, 2021.
122
The lawyers’ movement played vital role in the independence of judiciary in the country and helped to reinstate
the former Chief of Pakistan, Justice Iftikhar M. Chaudhry. See for the details <https://www.nonviolent-
conflict.org/pakistans-lawyers-movement-2007-2009/> accessed October 20, 2021.
123
PLD 2012 SC 923 [6].
Volume 18, Issue 1 (81) 2022

It is an international standard for judges to be impartial and free from fear of reprisals for the
fair trial, so they would decide the cases as per the law. The UN Basic Principles for judiciary
contain impartiality as one of the fundamental values inherent in the judicial function.124
The impartiality of the court is an international legal standard for any court.125 The Human
Rights Committee has stated in the context of the Article 14 (1) of ICCPR, “impartiality of the
court implies that judges must not harbour preconceptions about the matter put before them,
and that they must not act in ways that promote the interests of one of the parties”.126 Yet, in
the instant case, the accused was titled as a “Christian Preacher”.127 This title asserted by the
prosecution was neither proved nor admitted during the trial, thus, depicting the prejudice of
the Trial Court towards this case.
During the trials of blasphemy cases in Pakistan, the courtrooms are crowded with aggressive
people chanting slogans against the accused. These people commonly have affiliations with
religious extremists’ parties. Of course, the conduct of a crowd impacts the hearing and
ultimately the fairness of the proceedings, which requires “the absence of any direct or indirect
influence, pressure or intimidation or intrusion from whatever side and for whatever
motive”.128 The UN Human Rights Committee has also noted that the hearing is not fair if “the
defendant in criminal proceedings is faced with the expression of a hostile attitude from the
public or support for one party in the courtroom that is tolerated by the court…”.129
In this case, the complainant being a local religious influential person had brought a number of
people to the court on every hearing to intimidate the judge. Despite the defects in the
prosecution case and their evidence, the additional Sessions Judge Nankana Sahib convicted
the accused. Without a doubt, the judgment was influenced by the attendees.
The Trial Court ignored the fact that the FIR was lodged with the delay of five days. The delay
in lodging the FIR goes always against the prosecuting party. Nonetheless, the Court stated in
the judgement that the delay was satisfactory because in view of the gravity and sensitivity of
the allegation, the complainant himself verified the incident and then registered the criminal
case against her.130 The question of the verification of a crime prior to its registration by an
unauthorized person remained unanswered in the judgement. Furthermore, two issues
regarding the facts of the case were entirely overlooked by the Trial Court. First, the extra-
judicial confession which was made in front of a huge crowd. According to the law, such
confession is not considered as a wilful confession, free from coercion and influence. Secondly,
the Trial Court failed to consider the fact that the accused was illiterate, and there is no plausible
explanation by the prosecution that an illiterate Christian woman could know the particular
details of the life of the Prophet Muhammad (PBUH). It is a known fact that she was a poor
lady, working in the field on daily wages to feed her family. Even a Muslim woman of her
124
Principle No 02, The Bangalore Principles of Judicial Conduct, adopted by United Nations office on Drugs
and Crimes, noted by the UN Commission on Human Rights. (Vienna 2018) available at
<https://www.unodc.org/documents/ji/training/bangaloreprinciples.pdf> accessed October 22, 2021.
125
Article 14 (1) of the ICCPR.
126
UN Human Rights Committee, Arvo. O Karttunen v Finland, Communication 387/1989 (Views adopted on 23
October 1992), UN Document CCPR/C/46/D/387/1989 (Jurisprudence) [2 & 7].
127
Mst. Asia Bibi Verses the State & another. HCJD/C-21, Murder Reference No. 614 of 2010 & Criminal Appeal
No. 2509 of 2010 [3].
128
See, Human Rights Committee, Nicholas v Australia, UN Doc. CCPR/C/80/D/1180/2002 (2004), [7.5]; and
UN Human Rights Committee, General Comment No. 32, UN Doc. CCPR/C/GC/32, 2007 (Human Rights
Committee, General Comment 32) [25].
129
ibid.
130
For more details, See the judgement passed by the Trial Court.
Volume 18, Issue 1 (82) 2022

class does not know those details about the Prophet’s (PBUH) life. Hence, it is quite improbable
that an illiterate poor Christian woman would pass the alleged blasphemous remarks about the
personal life of the Prophet Muhammad (PBUH). Moreover, her social and educational
background was not considered in the whole case. However, both the questions should have
been conferred by the Trial Court to comprehend the circumstances of the case.
VI. INTERNATIONAL PRESSURE AND OUTLOOK
This case of blasphemy law had many ups and downs in its history. It was appreciated from
one perspective and criticised from other outlooks. At the outset, the Trial Court’s decision of
the death penalty was emphasised in the national media and criticised by many organizations
at international level. However, this situation changed vice versa with the Supreme Court’s
verdict.131
Some Western politicians and scholars argue that this law has been used against religious
minorities because of their faith and thus, demand the protection of minorities. While they also
demand the complete abolishment of blasphemy laws from the penal system of Pakistan.
Protection of minorities is an undeniable issue, but the misuse of blasphemy law only against
the minorities based on their faith is not the reality. Amnesty International in its report about
the impact of the blasphemy laws of Pakistan,132 jumbled three different issues/crimes which
are stated in three sub-Sections of Section 295 of PPC (PPC).133 According to the statistics,134
from 1987135 to 2017, a total number of 1549 blasphemy cases have been registered across the
Country and 720 of them were against the Muslims.136 They faced criminal charges and 39
Muslim accused have been killed extra-judicially simply because of the blasphemy charge.137
The extremists have no concern with the faith of an accused. Whoever is accused of blasphemy,
whether Muslim or not, can be a target of extremists and can get killed. Hence, it is unlikely
that this law has always been used only against the religious minorities.
As briefly discussed above, a layperson in Pakistan believes, for one reason or other, that the
international community deliberately encourages people to commit blasphemy against Islam
or against the Holy Prophet Muhammad (PBUH). The leaders of some extremists’ groups keep
affirming their belief against the West by stressing over the speeches of western leaders about
the blasphemous remark and campaign. However, the European Court of Human Rights has
always played a vital role in clarifying its neutral position specially about Islam and the
religious feeling of Muslims. In numerous judgements, the Court has held that although the
“freedom of expression” under the Article 10 of the European Convention on Human Rights
1950 is protected but it should not exceed from its limits. The Court also held that the Article
9 of the Convention guarantees the “freedom of thought and religion” that is not exempt from
131
Amnesty International appreciated the Supreme Court’s verdict as religious tolerance, available at
<https://www.amnesty.org/en/latest/press-release/2018/10/pakistan-aasia-bibi-verdict-is-a-landmark-victory-for-
religious-tolerance/> accessed October 24, 2021.
132
Amnesty International Report, “As Good as Dead” The Impact of the Blasphemy Laws in Pakistan, available
at <https://www.amnesty.org/download/Documents/ASA3351362016ENGLISH.PDF> accessed April 23, 2021.
133
Section 295-A is dealing with “Deliberate and malicious acts Intended to outrage religious feelings of any class
by insulting Its religion or religious beliefs” and 295-B deals with “Defiling, etc., of Holy Qur’an” and section
295-C is about the blasphemy of the Holy Prophets (PBU).
134
Centre for Social Justice, “Rescuing the Innocent Captives”, available at
<http://csjpak.org/pdf/Resucing%20the%20Innocent%20Captives%20(Position%20Paper).pdf> accessed
January 2, 2022.
135
Since the section 295-C inserted in Pakistan Penal Code.
136
Centre for Social Justice (n 134).
137
ibid.
Volume 18, Issue 1 (83) 2022

criticism but there is a difference between critical denial of others’ religious beliefs and
enflaming religious intolerance, which is incompatible with respect to the freedom of thoughts.
In several cases, the Court did not agree with the applicants who were charged with blasphemy
or disparaging religious doctrines in different countries within the Court’s jurisdiction.
The European Court of Human Rights (ECtHR) Strasbourg, France,138 has a strong viewpoint
towards the Article 10 of the European Convention on Human Rights (ECHR) 1950, regarding
the freedom of expression. Though Pakistan is not within the jurisdiction of the ECtHR, but
we must know its methodology and appreciate its neutrality regarding Islam to counter the
extremists’ narratives built on fallacious conspiracy theories about the European Union. The
ECtHR viewpoint is relevant for the discussion to question the propaganda constantly used in
the protests which took place after the SC decision in Asia Bibi case.
In 2018, The European Court of Human Rights played an important role in stabilising the
Article 9139 and the Article 10140 of the European Convention on Human Rights, 1950. The
European Court of Human Rights again discussed the “freedom of expression” and its limits
in the case E.S. vs Austria,141 where the Article 10 of the Convention was involved. An Austrian
national, Mrs. E.S. was charged in August 2010 by the Vienna Public Prosecutor for
committing and inciting hostile act against the religious community 142 when she made
derogatory remarks against the Holy Prophet Muhammad (PBUH) in a seminar. In February
2011, the Vienna Regional Criminal Court changed her conviction from Article 283 to Article
188 of the Criminal Code and convicted her for “disparaging religious doctrines”. The Court
stressed that “anyone who wished to exercise their rights under the Article 10 of the ECHR [to
freedom of expression] was subject to duties and responsibilities, such as refraining from
making statements which hurts others without any reason and therefore did not contribute to a
debate of public interest”. She attacked the Muslim religious views by blasphemous remarks
about the Prophet Muhammad (PBUH). E.S. appealed the Regional Court’s Decision and
argued that her statement was based on facts, and it was within the scope of the Article 10 of
the Convention, a protected right under the ECHR. The Vienna Court of Appeal dismissed her
appeal referring to the cases143 of the European Court of Human Rights and stated that her act
was not only provocative but also an intended attack on the Prophet of Islam. The Vienna Court
of Appeal also stated that “the permissible limits were exceeded where criticism ended, and
138
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in
1959 to deal with alleged violations of the European Convention on Human Rights 1950.
139
Article 9 can be read as: “Freedom of thought, conscience and religion (1) Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either
alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching,
practice and observance. (2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations
as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the rights and freedoms of others”.
140
Article 10 can be read as: “Freedom of expression (1) Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing
of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by
law and are necessary in a democratic society, in the interests of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary”.
141
E.S. v Austria App. No. 38450/12 (ECHR, 25 October 2018), visit
<https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-187188%22]}> accessed October 25, 2021.
142
Under Article 283 of the Criminal Code.
143
İ.A. v Turkey, App. No. 42571/98 (ECHR, 2005) and Aydın Tatlav v Turkey, App. No. 50692/99, (ECHR,
2006), visit <https://globalfreedomofexpression.columbia.edu/cases/i-a-v-turkey/> accessed October 25, 2021.
Volume 18, Issue 1 (84) 2022

insults or mockery of a religious belief or person of worship began”. She filed the second appeal
to the Supreme Court. The Court also dismissed her appeal and stated that the conviction of
the Regional Criminal Court was justified, and her right “freedom of expression” was not
violated.144 The Court also mentioned that the ECHR had stated that “in the context of religion
member States had a duty to suppress certain forms of conduct or expression that were
gratuitously offensive to others and profane”. Considering the circumstances and the context,
the Court concluded that she tried to defame the Prophet of Islam, which is a criminal act in a
democratic society within the meaning of the Article 10 of the Convention.
She moved toward the European Court of Human Rights, arguing that her right under the
Article 10 of the Convention infringed by the conviction in Austria. The Austrian Government
submitted its reply to the Court and stated that the criminal conviction of the said person was
legitimate, and limitation to her right under the Article 10 is lawful to protect religious peace
and the rights of others. The Government also submitted that E.S.’s statement was insulting
and provocative and were “incompatible with the values of tolerance, social peace and non-
discrimination”. Consequently, the Court rejected her application and stated that her statement
about the Prophet of Islam was not protected within the right to freedom of expression as argued
by the applicant, those words were evidently exceeding the permissible limits for the freedom
of expression.145 The Court concluded that the domestic courts comprehensively examined the
applicant’s statement and sensibly balanced her rights to freedom of expression with the rights
of others to have their religious feelings shielded.146 Therefore, the Austrian Courts’ judgments
are reasonable and are not in violation of the Article 10 of the Convention.147
Pakistani society is completely unaware of these cases and the approach of the European Court
of Human Rights, where the Court explicitly held that the right to freedom of expression has
limits in a democratic society and the religious feelings of others are also protected.
Unfortunately, the leaders of religious political parties, particularly Tehreek Labbaik
Pakistan, 148 always emphasises the western politicians’ speeches provoking the extremists’
narrative across the country, rather than to observe the legal framework and Court’s approach
about the issue.
VII. CONCLUSION AND RECOMMENDATIONS

The Supreme Court’s verdict in the Asia Bibi case was ethically and legally appropriate as
per Shari’ah law and the instruments of international human rights law. However, this decision
played a significant role to further instigate the extremist views on the issue of blasphemy in
Pakistan. It should not be ignored that this case has changed the history of Pakistani society
and shifted the society towards religious extremism, which was at its lowest in the last three
decades. Once again, scholars and the Government have a huge responsibility to counter the
narrative of extremism and save society from religious extremism. The main issue was the
144
The Supreme Court also referred the following cases of ECtHR: Otto-Preminger-Institut v Austria App. No.
13470/87 (ECHR, 1994), Wingrove v the United Kingdom App. No. 17419/90 (ECHR, 1996) and Giniewski v
France, App. No. 64016/00, (ECHR, 2006), visit <https://globalfreedomofexpression.columbia.edu/cases/otto-
preminger-institut-v-austria/> and <https://globalfreedomofexpression.columbia.edu/cases/wingrove-v-united-
kingdom/> accessed October 25, 2021.
145
E.S. v Austria (n 141) [54 & 55].
146
ibid [57].
147
ibid [58].
148
For more details about TLP and its extremist ideology, see the Supreme Court of Pakistan’s decision in a Suo
Moto Case No. 7/2017, the judgement was written by Mr. Justice Qazi Faez Isa and announced on 6 th February
2019, visit <https://khalidzafar.com/wp-content/uploads/2019/02/DOWN-LOAD-PDF-Version-of-full-
judgement-.pdf> accessed March 30, 2022.
Volume 18, Issue 1 (85) 2022

failure of the Government to tackle it and the Government could immediately arrange a meeting
with the leading and known Ulamā on this issue to brief them in all aspects and get them on
board to play a positive role in the society to inform and educate people. Now, this extremist
approach must be countered in Pakistan with the help of the international community. Other
legal issues related to substantive and procedural law must be put before the parliament of
Pakistan for discussion and necessary amendments. The international community can help
Pakistan by discussing and explaining the “freedom of expression” at the international level
because the extremist approach for the blasphemy laws of Pakistan is directly related to the
behaviour of the international community. The researchers and academicians should analyse
the blasphemy cases within the framework of Shari’ah specifically for Ḥadd crimes.
In this landmark judgement, the Supreme Court of Pakistan seemed to agree and be satisfied
with the punishment for blasphemy in Pakistan, but it has failed to discuss the jurisprudential
questions regarding evidence for Ḥadd punishment in classical Islamic law. Therefore, the
blasphemy laws in the Pakistani criminal system require a considerable revision considering
the principles of Shari’ah. The Supreme Court noted the misuse of blasphemy law against
minorities but did not propose safeguards for the protection of minorities from false allegations.
The current blasphemy laws neither differentiate between the legal consequences of blasphemy
committed by a Muslim or non-Muslim to award Ḥadd punishment, nor do they fulfil the
required fixed high standard of evidence for Ḥadd punishment in Islamic law. According to
Islamic law, a high standard of proof for Ḥadd and mens rea are necessary for blasphemy
punishment and both are missing from the blasphemy law in Pakistan. This is the root cause of
the problem with this law. The Federal Shariat Court combined different principles of various
schools of Islamic law on blasphemy, which necessitate a reappraisal of the judgment of the
Honourable Supreme Court. Further, the international community should avoid such acts
which could cause violence and provoke the extremists’ narratives. Lastly, the approach of the
European Court of Human Rights towards freedom of expression must be emphasised in
Pakistani society to counter the propaganda against the West.
Volume 18, Issue 1 (86) 2022

SSRN Id4325439

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

SSRN Id4325439

Uploaded by

Copyright:

Available Formats

ISSN 2633-6626

Electronic copy available at: https://ssrn.com/abstract=4325439

Aims of the Journal:

Printed and bound by Antony Rowe Ltd. Eastbourne UK

Electronic copy available at: https://ssrn.com/abstract=4325439

Volume 18, Issue 1 (1) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

Diana Carina Azoitei, The University of Law, UK.

Book Review Editor

Prof Asma Afsaruddin, Indiana University, USA.

Volume 18, Issue 1 (2) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

Volume 18 2022 Issue 1

Religious Freedom and the Hijab Controversy: A Human Rights Perspective

Constitutional Legitimacy of Islamic Law of Wills in South Africa

Conceptualisation of ‘Islamic State’ by Pakistani Scholars: From Idealism to

Understanding the Role of Processivism in the Formation and Interpretation of

State Laws and Sharīʿah Compatibility: Methodological Overview and Application to

Mediating Disputes Involving Internally Displaced Persons: A Post-Mortem of the Boko

Volume 18, Issue 1 (3) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

Environmental Destruction and Armed Conflict: Protecting the Vulnerable Through

Transitional Justice in Bangladesh: Recognition and Enforcement of Rights of the Rape

Emergence, Reasons and Prevention of Mob Lynching of Religious Minorities in India

Volume 18, Issue 1 (4) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

Volume 18, Issue 1 (5) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

Muhammad Sadiq Kakar*

Volume 18, Issue 1 (66) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

Volume 18, Issue 1 (67) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

II. HISTORY OF THE LEGAL FRAMEWORK

Volume 18, Issue 1 (68) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

Volume 18, Issue 1 (69) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

III. DECISIONS OF COURTS AT DEFERENT LEVELS

A. Trial Court’s Decision in Asia Bibi Case

Volume 18, Issue 1 (70) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

B. Appeal to the Lahore High Court

Volume 18, Issue 1 (71) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

Volume 18, Issue 1 (72) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

C. Supreme Court of Pakistan’s Verdict

While concluding the judgement, the Chief Justice wrote:

Volume 18, Issue 1 (73) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

IV. LEGAL AND SOCIAL REPERCUSSIONS OF THIS CASE

Volume 18, Issue 1 (74) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

Volume 18, Issue 1 (75) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

V. ANALYSIS OF THE COURT DECISIONS IN ASIA BIBI CASE

A. Shari’ah Appraisal of the Case

Volume 18, Issue 1 (76) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439

1. Blasphemy as Ḥadd Crime in Pakistani Legal System

Volume 18, Issue 1 (77) 2022

Electronic copy available at: https://ssrn.com/abstract=4325439