Aasia Bibi – More Sinned Against than Sinning
Recently a judgment was announced by the European Court of Human Rights in which it was categorically stated that disparaging religious doctrines by way of making statements against Prophet Muhammad (peace be upon him) was not freedom of expression. The Court concluded and carefully balanced the applicant’s right to freedom of expression with the rights of others to have their religious feelings protected and religious peace preserved within the society. The Court held that even in a lively discussion it was not compatible with Article 10 of the European Convention on Human Rights (ECHR) (particularly the freedom of expression) to wrap incriminating statements within an otherwise acceptable expression of opinion and claim that it rendered passable those statements when they were actually exceeding the permissible limits of freedom of expression.
Although the crux of this judgment is the protection of the sanctity of the Holy Prophet (peace be upon him), it is also to be noted that like freedom of expression, religious likes and dislikes are not limited to your own particular religion. Many judges who heard this case did not belong to a Muslim state, neither were they Muslims. The rationale is to accept what is right, with valid proof of it being right.
Five days after this judgment, on 31 October 2018, a similar decision, which also involved a debate on the religious sentiments of the Muslim and Christian community, was announced by the Supreme Court of Pakistan. The Supreme Court in a 56-page detailed judgment authored by the Chief Justice of Pakistan, Saqib Nisar, with a separate, concurrent opinion note from Justice Asif Saeed Khosa, acquitted Asia Bibi of blasphemy charges after accepting her appeal from 2015 against her sentence. As is the case with any evolutionary baby step that takes place in Pakistan, this judgment of the Supreme Court also prompted misguided Islamists to announce countrywide protests and vandalism. A newly formed religious “political party” known as Tehreek Labbaik Ya Rasool Allah (TLP) decided to lead riots and protests in the name of Islam and its beloved Prophet Muhammed (peace be upon him).
Without debating whether the ideology of those who use religion to lead protests is to cripple the state or declare the country’s honorable judges, Army Chief and Prime Minister to be punishable by death, we should first know the facts of the case – those facts which were not fabricated by the honorable judges, Army Chief or Prime Minister but by those who brought the complaint against Asia Bibi in the first place.
Aasia Bibi, on the fateful day, got involved in a quarrel with Mafia Bibi and Asma Bibi in the vicinity of the field owned by Muhammad Idrees over the fetching of water. Aasia Bibi had offered to fetch water. The offer was refused by the others and it was said that because she was a Christian they would never take water from her hands. A heated argument took place over this, some bitter words were exchanged between the parties and as a result of this disagreement the other women in connivance with the complainant, Qari Muhammad Salaam, ignited the situation and wrongly implicated Aasia Bibi in a blasphemy case. Furthermore, an alleged extra-judicial confession was obtained from Aasia Bibi, which was not voluntary and rather resulted out of coercion and undue pressure as she was forcibly brought before the complainant in the presence of a gathering of people threatening to kill her. Such a confession cannot be made the basis of a conviction.
Later, it was noticed that there was an inordinate delay of about five days in lodging of the first information report (FIR) which cast a serious shadow of doubt about the probity of witnesses. In fact, after deliberations, a false story was concocted by the witnesses and reported to the police. Despite all irregularities, Aasia Bibi still presented herself to the police. In her statement recorded by the police investigation officer she expressed full respect for the Holy Prophet (peace be upon him) and the Holy Quran. Since that day, a tale of lies and discrepancies was marketed by the complainant.
At first, it is to be noted that in order to establish a charge under blasphemy (Section 295-A, P.P.C), no court can take cognizance of any offence punishable under Section 295-A, unless the complaint is made by the order of, or under authority from, the central or provincial government or some officer empowered in that behalf by either of the two governments – in Aasia Bibi’s case, the procedural requirements laid down in the law had been ignored. Similarly, in a case involving the commission of an offence under Section 295-C PPC, no officer below the rank of a Superintendent of police is authorized to investigate the matter – in Aasia Bibi’s case, the procedure was bypassed and the investigation was conducted by a Sub-Inspector of police.
It is pertinent to mention here that admittedly, as is evident from the contents of the FIR and the statements of witnesses, there were 25-30 women present at the spot when the appellant allegedly passed blasphemous remarks against the Prophet Muhammad (peace be upon him), however, none of the other women, except Mafia Bibi and Asma Bibi, reported the matter to anyone.
Another important aspect of the matter is that the complainant, Qari Muhammad Salaam, in his statement admitted that the application for registration of FIR was drafted by an advocate, but he could not mention his name. This also casts doubt on the truthfulness of the story narrated in the FIR.
Furthermore, there were many discrepancies in the statements of witnesses. Firstly, during her cross-examination, Mafia Bibi stated that there were more than 1000 people at the time of the public gathering but this was not mentioned in her previous statement. Secondly, during her cross examination she stated that the public gathering took place at her father’s house but the same was not mentioned in her previous statement. Thirdly, during her cross examination she stated that many ulemas (religious clerics) were present at the public gathering but it was not mentioned in her previous statement.
Muhammad Afzal (a witness) also made deviated statements multiple times. Firstly, in his examination-in-chief he stated that he was in his house when Mafia Bibi and Asma Bibi along with Qari Muhammad Salaam and Mukhtar Ahmed (villager) came to him and narrated the whole occurrence to him, but it was not mentioned previously. Secondly, during his examination-in-chief he stated that the public gathering took place at the house of Mukhtar Ahmed, but this was not mentioned in his previous statement. Thirdly, during his examination-in-chief he stated that the appellant was brought to the public gathering, but it was not mentioned in his previous statement.
Like the others, Qari Muhammad Salaam also changed his earlier complaint that was submitted before the police for registration of FIR. Firstly, during his examination-in-chief he stated that he was present in the village when Mafia Bibi, Asma Bibi and Yasmin Bibi came to him and informed him of the occurrence, and that at the same time Muhammad Afzal and Muhammad Mukhtar were also present there. However, in his complaint he stated that Mafia Bibi, Asma Bibi, Yasmin Bibi and others informed him of the occurrence alongside other people of the village. Secondly, he further stated that the public gathering took place at the house of Mukhtar Ahmed, but the same was not mentioned in his complaint. Thirdly, he stated that the appellant was brought to the public gathering, but it was not mentioned in his complaint.
In answering the question of how many persons were present at the time of the public gathering, each witness provided his or her own figures. The complainant Qari Salaam stated that there were a hundred people, Mafia Bibi held that there were more than a thousand persons, Asma Bibi answered with more than two thousand persons, whereas Muhammad Afzal gave the number of two hundred to two hundred and fifty persons.
While answering the question of venue and where the public gathering took place, another fluctuated series of lies was projected. According to Qari Salaam and Muhammad Afzal, the gathering took place at Mukhtar Ahmed’s house, Asma Bibi stated that the gathering took place at Rana Razzaq’s House, whereas another witness stated that the gathering was held at the dera (house) of Haji Ali Ahmed.
Another continuous series of blunt lies was presented by the witnesses while mentioning distance between the venue of the public gathering and the house of Aasia Bibi, and then regarding who brought Aasia Bibi from her house to the venue. It was noted that all witnesses had different answers.
Another conflicting statement also prevailed between the other witnesses and Qari Muhammad Salaam. Witnesses stated that the matter was brought to the notice of the complainant on the same day, 14 June 2009, while Qari Salaam Muhammad during his cross-examination stated that he was informed of the occurrence on 16 June 2009.
Another material contradiction was noticed regarding the submission of the application to the police and the registration of FIR. At the bottom of the FIR, it was mentioned that the FIR was registered by Mehdi Hassan, SI Police at bridge canal Chandarkot at 5:45 pm. Conversely, Qari Muhammad Salaam in his statement mentioned that the FIR was registered by delivering the application to the SHO concerned. However, Muhammad Rizwan, SI Police stated that Qari Muhammad Salaam presented the cmplaint before him upon which he then formally registered as the FIR.
It is also of grave importance that the confessional statement obtained from Aasia Bibi was not obtained by the police or any investigative institution of the government but by the witnesses themselves. Therefore, the learned High Court disregarded the extra-judicial confession for the reason that the evidence of extra-judicial confession was furnished by the witnesses. Courts have repeatedly held that evidence of extra-judicial confession is a fragile piece of evidence and utmost care and caution has to be exercised in placing reliance on such a confession.
Conclusively, it should be remembered as a well settled principle of law that the one who makes an assertion has to prove it. Thus, the onus rests on the prosecution to prove guilt of the accused beyond reasonable doubt throughout the trial. The presumption of innocence prevails throughout the case until such time that the prosecution, based on evidence, satisfies the court beyond reasonable doubt as to accused being guilty of the offence alleged against him or her. There cannot be a fair trial – which is itself the primary purpose of criminal jurisprudence – if the judges have not been able to clearly elucidate the rudimentary concept of standard of proof that the prosecution must meet in order to obtain a conviction.
Blasphemy is a serious offence and the insult of the Aasia Bibi’s religion and religious sensibilities by Qari Muhammad Salaam and other witnesses by mixing truth with falsehood in the name of the Holy Prophet Muhammad (peace be upon him) was also not short of being blasphemous. It would not be wrong to say, as Justice Asif Saeed Khosa also highlighted in his concurrent note quoting Shakespeare’s King Leare that Aasia Bibi was “more sinned against than sinning”.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
Quite interestingly emphasised by keeping the cases
according to the criminal jurisprudence and evidence act