Proposed Amendments to Blasphemy Laws in Pakistan

The existing Blasphemy Laws of Pakistan are reproduced below together with the changes proposed by a private member's bill in Parliament (Sherry Rehman's bill).  Scroll down quickly to have an overview of our existing laws and the proposed changes. Proposed deletions are shown as strikethrough and proposed additions in (brackets).  This will give you a broad feel of what we are talking about.  I am sure most people have not seen the existing laws or the proposed changes in context of the existing laws.  (I have used Sherry Rehman's bill only as an example of changes that could be considered because it is the only one I know that is in the public domain.)

Then read the rest of my email which you will find after you have scrolled down.

EXISTING LAWS AND
PROPOSED AMENDMENTS TO THE BLASPHEMY LAWS

National Assembly of Pakistan

Amendments in Offences Related to Religion

Amendments in the Pakistan Penal Code and Criminal Procedure Code

Proposed by Sherry Rehman, MNA

Proposed deletions are shown as strikethrough and proposed additions in (brackets).

PAKISTAN PENAL CODE

(ACT XLV OF1860)

Chapter 15

Offences Relating to Religion

295. Injuring or defiling place of worship, with intent to insult the religion of any class: Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction damage or defilement as an insult to their religion shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten (two) years, or with fine, or with both.

295-B. Defiling, etc., of Holy Quran: Whoever wilfully defiles, damages or desecrates a copy of the Holy Quran or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life (shall be punishable with imprisonment of either description for a term which may extend to five years, or with fine or with both).

295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet: Whoever (maliciously, deliberately and intentionally) by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death (shall be punishable with imprisonment of either description for a term which may extend to ten years, or with fine or with both).

296. Disturbing religious assembly: Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious worship, or religious ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

297. Trespassing on burial places, etc.: Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sculpture, or any place set apart for the performance of funeral rites or as a, depository for the remains of the dead, or offers any indignity to any human corpse or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

298. Uttering words, etc., with deliberate intent to wound religious feelings: Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.

298-A. Use of derogatory remarks, etc., in respect of holy personages: Whoever (maliciously, deliberately and intentionally) by words, either spoken or written, or by visible representation or by any imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of any wife (Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (peace be upon him), or any of the righteous Caliphs (Khulafa-e-Rashideen) or companions (Sahaaba) of the Holy Prophet (peace be upon him) shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

298-B. Misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or places: (1) Any person of the Quadiani group or the Lahori group (who call themselves “Ahmadis” or by any other name) who by words, either spoken or written, or by visible representation (maliciously, deliberately and intentionally) –

(a) refers to or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as “Ameer-ul-Mumineen”, “Khalifatul-Mumineen”, Khalifa-tul-Muslimeen”, “Sahaabi” or “Razi Allah Anho”;

(b) refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (peace be upon him), as “Ummul-Mumineen”;

(c) refers to, or addresses, any person, other than a member of the family (Ahle-bait) of the Holy Prophet Muhammad (peace be upon him), as “Ahle-bait”; or

(d) refers to, or names, or calls, his place of worship a “Masjid”; shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

(2) Any person of the Qaudiani group or Lahori group (who call themselves “Ahmadis” or by any other name) who by words, either spoken or written, or by visible representation refers to the mode or form of call to prayers followed by his faith as “Azan”, or recites Azan as used by the Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

298-C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith: Any person of the Quadiani group or the Lahori group (who call themselves “Ahmadis” or by any other name), who directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

(298-E. Any advocacy of religious hatred that constitutes incitement to discrimination or violence shall be punishable with imprisonment of either description for a term which may extend to seven years, or with fine or with both.)

203. Giving false information respecting an offence committed: Whoever, knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

(203-A. Anyone making a false or frivolous accusation under any of the sections 295A, 295B and 295C, of the Pakistan Penal Code shall be punished in accordance with similar punishments prescribed in the section under which the false or frivolous accusation was made.)

THE CODE OF CRIMINAL PROCEDURE, 1898.

As amended by Act II of 1997

30. Offences not punishable with death. In the Punjab, the North-West Frontier, in Sind and in those parts of the Provinces in which there are Deputy Commissioners or Assistant Commissioners the Provincial Government may, notwithstanding anything contained in [sections 28 and 29. invest any Judicial] District Magistrate or any Magistrate of the first class with power to try as a Magistrate all offences not punishable with death (as well as offences falling under sections 295A, 295B and 295C of the Pakistan Penal Code).

190. Cognizance of offences by Magistrates. (1) Except as hereinafter provided, [any District Magistrate or a Sub-Divisional Magistrate or any other Magistrate specially empowered in this behalf] by the Provincial Government on the recommendation of High Court may take cognizance of any offence:

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police-officer;

(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion that such offence has been committed.

[(2) The Provincial Government may empower any Magistrate to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try or send to the Court of Session for trial; provided that in case of Judicial Magistrate, the Provincial Government shall exercise this power on the recommendations of the High Court.]

[(3) A Magistrate taking cognizance under sub-section (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial.]

((3) All offences falling within sections 295A, 295B and 295C of the Pakistan Penal Code shall exclusively be taken cognizance of by the Court of Sessions and tried by the High Court).

193. Cognizance of offences by Courts of Sessions. (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction [unless the case has been sent to it under section 190 sub-section (3) (and as expressly provided for under section 190 of the Code).

(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial.

201. Procedure by Magistrate not competent to take cognizance of the case. (1) If the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint for presentation to the proper Court with an endorsement to that effect.

(2) If the complaint has not been made in writing such Magistrate shall direct the complainant to the proper Court (provided that if a complaint is made in writing to a Magistrate under sections 295A, 295B or 295C of the Pakistan Penal Code, he shall not take cognizance of it and forward it to the proper Sessions Court with an endorsement to that effect and in case the complaint has not made in writing, such Magistrate shall direct the complaint to the proper Sessions Court).

[202. Postponement of issue of process. (1) Any Court, on receipt of a complaint of an offence of which it is authorized to take cognizance, or which has been sent to it under Section 190, sub-section (3), or transferred to it under Section 191 or Section 192, may, if it thinks fit, for reasons to be recorded postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by [any Justice of the Peace or by] a police-officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200.

(2) A Court of Session may, instead of directing an investigation under the provisions of sub-section (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.

(3) If any inquiry or investigation under this section is made by a person not being a Magistrate [or Justice of the Peace] or a police-officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police-station, except that he shall not have power to arrest without warrant.

(4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath.]

((5) Notwithstanding anything contained in the preceding subsections any complaint made under sections 295A, 295B and 295C of the Pakistan Penal Code shall be filed at and taken cognizance of by a Court of Sessions and tried by the High Court, whereas the procedure laid down in the preceding subsections shall be followed).

203. Dismissal of complaint. [The Court] before whom a complaint is made or to whom it has been transferred or [sent] may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry if any under section 202 there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing.

STATEMENT OF OBJECTIVES AND REASONS

Member in Charge

Sherry Rehman, MNA

Amendments to the Blasphemy Laws are long overdue. These must include a rationalization of punishments under the offences relating to religion. Vague terminology in these laws has led to their wide mis-use for the persecution of others. The sentences must be reduced so that the incentive to use these laws to settle scores is taken away. Sentences that promote justice rather than open the doors to religious persecution will be respected and applied properly, and it is these that must be rationalized in pursuit of Constitutional guarantees for protection of all citizens under the law. The ascertainment of malicious intent must also be made when charges are brought against an accused person. The absence of demonstrating premeditation in all such charges has led to a widespread abuse of such laws, where innocent people have suffered trials and tribulations at the hands of their accusers who use these laws to pressure the accused for personal or material gain. The absence of such a clause does not take into account the concept of mens rea, which is central to procedures in all criminal offences.

It is equally important that those making false or frivolous allegations under section 295A, 295B and 295C of the Pakistan Penal Code must also be punished, as misuse of religion to harm others and put them through agony is a serious offence. The Pakistan Penal Code must also be amended to include a new section for making any advocacy of religious hatred that constitutes incitement to discrimination or violence an offence.

The Pakistan Penal Code 1860 and the Criminal Procedure Code, 1898 are the major statutes relating to criminal law in Pakistan. While the PPC deals in defining all the offences and mentions their punishments, the Criminal Procedure Code acts as a procedural law, providing machinery for the punishment of offenders against the substantive criminal law. The two codes are read together, and amendments to the CrPC are essential to ensure the effectiveness of amendments to the PPC. Any bill seeking to make amendments that work for justice delivery on the ground must amend these two statutory codes together.

Amendments must be made in the Criminal Procedure Code to ensure protection of Pakistan’s minorities and vulnerable citizens, who routinely face judgments and verdicts at the lower courts where mob pressure is often mobilized to obtain a conviction. It must be ensured that a court of Sessions take cognizance of an offence made under sections 295A, 295B and 295C of the Pakistan Penal Code on complaints filed before it, so that the complainant takes full responsibility of the consequences in case the accusations are false or frivolous. All complaints under sections 295 A, 295 B and 295 C should be made before a Court of Sessions and subsequently tried by the High Court, because trials by High Courts are likely to strengthen the possibility for justice. Given that the intent of this Bill is to avoid miscarriages of justice in the name of Blasphemy, it should be the aim of a just society, as enshrined in our Constitution and Islam, to try all such cases at the High Courts which are always under a higher degree of public scrutiny.

Given that one of the principle tenets of Islam is to ensure justice to all, it is incumbent to therefore amend these man-made laws introduced in Pakistan by a dictator’s Ordinance, without parliamentary consultation or public debate.

What is Mens rea?

Mens rea is Latin for "guilty mind".  In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind be also guilty".

Many serious crimes require the proof of mens rea before a person can be convicted.  In other words, the prosecution must prove not only that the accused committed the offence (actus reus) but that he did it knowing that it was prohibited; that his act was done with an intent to commit the crime.

Resuming my e-mail:

As you will have noticed, blasphemy is covered in the Pakistan Penal Code (PPC) in 4 sections, Sections 295 to 298. Section 295 pertains to injuring or defiling place of worship with intent to insult the religion of any class. Punishment: 2 years or fine or both.

Section 295-A was added in 1927 to cover deliberate and malicious acts intended to outrage religious feelings of any class. Punishment: 10 years or fine or both.

Section 295-B was added in 1982 to cover defiling, damaging, or desecration of the Holy Quran. Punishment: life imprisonment.

Section 295-C was added in 1986 to cover use of derogatory remarks in respect of Holy Prophet. Punishment: death or life imprisonment and also fine.  In 1992 life imprisonment was removed and death became the only punishment.

It is interesting to note that Sections 295, 295-A and 295-B require that an offence must be a consequence of the accused's intent, but in Section 295-C (derogatory remarks against the Holy Prophet) there is no condition of intent.

Now, how much of the above is Allah's law and how much is man-made law?

I believe everyone agrees that blasphemy is condemned by Allah and hence prohibition of blasphemy is Allah's law. But does everyone agree that Allah has decreed specific punishments for the various categories of blasphemy?

For instance, does everyone agree that punishment of 2 years or fine or both for defiling a place of worship is Allah's law?

Does everyone agree that punishment of 10 years or fine or both for outraging religious feelings is Allah's law?  Does everyone agree that punishment of life imprisonment for defiling, damaging or desecration of the Holy Quran is Allah's law?

And finally, does everyone agree that death penalty is the only punishment for derogatory remarks against the Holy Prophet?  Is there consensus among all ulema, fuqaha, and scholars not only in Pakistan but throughout the Islamic world?  It is worth remembering that life imprisonment was an alternate punishment during General Zia's time.

Has Allah decreed that intent to cause offence is a requirement for all categories of blasphemy except for derogatory remarks against the Holy Prophet?

I am surprised to find that blaspheming God is not covered specifically in Pakistan's blasphemy laws.  It seems to me this offence would come under Section 295-A with punishment of 10 years or fine or both.

Would it be contrary to Allah's law if intent is added to Section 295-C just as they are in Sections 295, 295-A and 295-B?  Would it be contrary to Allah's law if punishment for advocacy of religious hatred is added to the PPC?  Would it be contrary to Allah's law if punishment for false or frivolous accusation of blasphemy is added to the PPC?

Lets now turn to Pakistan's blasphemy laws covered under the Criminal Procedure Code (CrPC).  Currently blasphemy under Sections 295, 295-B and 295-C is considered a cognizable offence in Pakistan which means the Police can directly register a FIR (First Information Report), initiate the investigation and arrest the accused without warrant or getting permission from the magistrate or judge.

It is proposed that all blasphemy offences be considered non-cognizable, i.e. the Police cannot register a FIR or start investigation or arrest the accused without the court's permission. If after a preliminary enquiry the court deems the complaint fit for further processing the Police is permitted by the magistrate to investigate and/or arrest the accused. This will ensure that the complainant takes full responsibility of the consequences in case the accusation are false or frivolous.

I don't believe any of the above CrPC details are part of Allah's law, they are clearly man-made laws. It is relevant to point out that blasphemy under Sections 295-A and 298 of the PPC are non-cognizable offences under our current laws and the Police cannot register a case or arrest the accused without the court's permission.

Lastly, blasphemy cases currently are heard by the Sessions Court where mob pressure is often brought to bear on the judge to obtain a conviction.  It is proposed that all blasphemy complaints should made before a Sessions Court but tried by the High Court because trials by the High Courts will strengthen the possibility for justice because cases at the High Court are always under a higher degree of scrutiny.

Again I don't believe treating a blasphemy complaint as a cognizable or non-cognizable offence is part of Allah's law and nor is hearing the case by the Sessions Court or the High Court anything to do with Allah's law. 

Conclusion:  I am at a loss why so many people claim the entire body of Pakistan's Blasphemy Laws are God-given laws and not a word can be changed.  I believe we need to have the facts of Pakistan's blasphemy laws before us so that a calm and reasoned discourse can begin among sincere people who want to do everything possible to ensure Adl and Insaaf.

WHAT DO YOU THINK?

Best regards,

Yousuf