"I believe the repeal option is still the best one, but…"
-- PPP MNA Sherry Rehman on pros and cons of the proposed amendments
By Alefia T. Hussain
The News on Sunday: Why amendments. Why haven’t you proposed repeal of these laws? Do you think the time for repeal has not yet come and conditions are not yet conducive?

The impure in the land of pure
Members of cast away communities are still falling prey to a centuries old cultural bigotry of untouchables
By Haroon Khalid
The Syeds, the Sheikhs, Juts and many more of such ‘high’ castes of Pakistan don’t normally permit marriages outside of their caste. The rationale behind such an approach is that consummation of such a union would result in an impure breed. Then, however, there are some people, in this land of pure, who believe that even the presence of an outsider in their vicinity would pollute their pureness.

followup

Shazia Masih’s case is a classic example of media apathy. The media turned it into a high-profile ‘murder’ case in January this year when it put the news of 12 or 13 year old Shazia dying in mysterious circumstances on the national television screens. In what was decidedly a one-sided coverage of the incident, public sympathies were evoked and the accused were castigated in the harshest terms possible. The accused family was booked under a murder charge.

And then the case was forgotten.

A couple of weeks back, the Additional Sessions Court acquitted Naeem advocate and his family of the charge on a single point -- that the girl, according to medical reports, was suffering from Septicemia. This was, at best, a second-page news and none found it necessary to follow it up. What was the family’s reaction? Was the case conducted satisfactorily? What about the forensic report? How is the mother and would she be interested in an appeal?

If anybody from the media had cared to follow this case up, he would be in for a rude surprise. The story of poverty is unending, with new twists and turns, and one the media would regret having missed. The presidential intervention in the case that came in the shape of five lac rupees caused a rift in the family. The husband and wife had a huge fight over it and the wife, Shazia’s mother, no longer lives with her husband. No prizes for guessing that the husband and his sons from his previous wife kept the money.

"We came to know through television channels that advocate Naeem and his family have been acquitted," says Bashir Masih, father of Shazia, who died because of alleged torture by her master’s family in one of the posh localities -- Defence Housing Authority (DHA) -- of Lahore this January.

Shazia’s parents lived in a one room house in a slum situated on the brink of a drain in Lahore’s Samanabad area. Belonging to a minority religious group, Shazia was hired by advocate Naeem Chaudhry’s family through a middleman six months before she died. She was getting Rs5,000 to 6,000 per month and stayed at her employers day and night.

According to Naeem, Shazia was already sick and they were having her treated by a doctor. A few days before she was admitted to hospital she also fell from two steps of stairs in the house, he says. However, Shazia’s family alleged that the child was tortured which led to her death and the family was informed when she died at Jinnah Hospital. President Asif Zardari announced Rs500,000 compensation to the victim family after the media picked up the issue.

Sitting on a broken wooden sofa in a dark shabby room, Shazia’s father Bashir says that his wife has left home after a dispute over the Rs500,000 compensation amount.

"We have been entertaining people here during the tragedy and the amount is my right. That is why it was deposited in my account against the demands of Nasreen, mother of Shazia, who wanted to grab the amount," Bashir, who married Nasreen after the death of his first wife, tells TNS.

Both the husband and wife had been filing police complaints against each other in order to get the money and pursuing Shazia’s murder case in court through separate counsels. "We have already spent the money by paying to counsels and now there is no money at all. That is why we are not filing appeal against Naeem’s acquittal," Bashir says, adding, "Nasreen is the main complainant in this case and she probably has also not taken up the issue properly."

"There is no medical evidence that the death of Shazia was due to violence or homicidal hence the accused persons are hereby acquitted from the charge," the judgment reads.

"Though I am free but I am still depressed because of what the media did to me and my family," Naeem tells TNS. "There was no torture on the girl. She was sick and we had been giving her medical treatment and her family was aware of it."

But there are a lot of question marks in the case. The accused have been acquitted on the basis of a medical report. "The cause of death as stated by the doctor was Septicemia which was outcome of a chronic inflammatory disease of lung. There was no apparent fatal injury seen on the body which can cause cracks," the medical report by the board constituted by the government reads.

The report, surprisingly, is contradictory to the postmortem report. "Both lungs were healthy but were having few petechial hemorrhages (bleedings)," the postmortem report says.

The postmortem report had also mentioned 18 injuries, mostly with some blunt and sharp-edged weapons. According to the post-mortem report, Shazia’s body was received in poor hygienic condition with all finger nails having fungal infections. Most of the injuries described in the postmortem report have been described reddish blue contused swelling; reddish brown abraded areas; and linear abrasions with reddish scabs and some abrasion with dark brown scab. All the incised wounds were skin deep only, the post-mortem report says.

Rashid Aziz, National Manager Legal Advisory Unit of SPARC (Society for the Protection of the Rights of the Child), a national NGO, says they are also examining the case of Shazia. Aziz stresses the need to declare domestic child labour as the worst form of child labour, urging the government to bring in legislation to stop this phenomenon.

"Currently, there is no law on domestic child labour in Pakistan as compared to India which has added domestic child labour in its Children Employment Act as the worst form of child labour a few years back," he says.

Shazia may be dead but if we don’t fill in the gaps in her story, many more Shazias will die like her.

Subject to transfer

This, as we kept stating, was a follow-up to our Special Report "Case for a secular Pakistan". Yet most of the feedback we received overstressed the need for Pakistan to be an Islamic state. We deliberately gave this view limited space because there was no point arguing for something which is firmly in place and faced no real threat from the opposing ideology. Secularism, indeed, is not the dominant discourse; we always knew that the secularists represented the minority point of view and this precisely is the reason why we provided this space.

The editorial rationale being that Pakistan, an Islamic state for all practical purposes, has not been able to create a just, plural and tolerant society in these 63 years. What we have instead is a sectarian society where the laws have not served the cause of justice for all Pakistanis. Hence the need to reopen the debate.

We wanted to address this fear of secularism and get nuanced opinion on the subject. To put it crudely, we wanted to question this common belief that secularism meant ladeeniat or no religion. Therefore much of what we printed on these pages was commissioned stuff.

We did manage to get a lot of analysis on what secularism actually means or how it essentially was a part of every religion but we have not been able to sufficiently address why is secularism associated with ladeeniat in people’s minds. Our sense is that this has to do with the Islamic world’s experiments with the idea in the twentieth century which, in the cases of Ataturk’s Turkey, Shah’s Iran and Nasser’s Egypt, were not the best examples of secularism. The persecution of religious forces and the extremism of these so-called secularists, more than anything else, may be responsible for the Muslims’ fear of secularism.

Just to get a drift of the kind of feedback we received from the opponents of secularism in Pakistan, Syed Burhan writes in his piece "…The Muslims must not emulate Akbar and Dara Shikoh’s attitude towards non-Muslims in their approach to the Western civilization… They must bolster their identity and thus carry the Pakistan Movement a step further by forging an alliance of Muslim countries on the pattern of Nato and EU…The liberal fringes of the Pakistani society would have to realise sooner or later that secularism simply cannot be imposed on a people whose worldview allows no bifurcation of the spirit and the matter, the sacred and the mundane; who understand Islam as a complete code of life ("Mukamal Zabtay-hayat") with a say in every field of human activity… Pakistan cannot afford further betrayal of its raison’detere. The confusion created about Pakistan’s identity at the behest of the West has led the country to the brink of destruction… The realisation of Pakistan Movement as a Pan-Islamic Movement would not only give us the ever elusive strategic depth vis-a-vis India and render separatism in Pakistan ‘sinful’ and therefore unthinkable but would also uplift the nation’s morale and cure many of its social problems…"

As said earlier, we did not want to give the dominant discourse any further space than it already has.

And there was the other view. Muhammad Azam Khan sent his feedback on Mahir Ali’s piece. It reads "…It is the State i.e. the Army that has been abetting, cajoling and wooing the religious right uninterrupted from 1958 onwards; political parties only got on the bandwagon….In fact, it would not be wrong to assume that Pakistan will become more and more Islamist and religious oriented society… in the rank and file of Pakistan Army; the lot that is now gradually taking over senior ranks are the product of ‘reverse indoctrination’ that started during Afghan war… Bangladesh’s Apex court has recently given a landmark verdict by separating state and mosque…this is not to mention the large scale shifting of business from our Holy land to that secular country. It is perhaps poetic justice; once we stole their jute to run our industries here; today our enterprises are moving there!"

We rest our case -- Ed

issue

Sherry Rehman, Member of National Assembly, has through a bill proposed amendments to certain sections of Pakistan Penal Code (PPC) along with a suggestion to introduce two new sections. These provisions prescribe punishments for Offences Relating to Religion. Her bill also includes changes to Code of Criminal Procedure (CrPC) regarding arrest, cognizance and trial of offences under these provisions.

Proposed changes to punishments

Section 295-A was introduced in 1927 apparently after the Ghazi Ilm Din episode to provide punishment for deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs. The maximum punishment under section 295-A was two years’ imprisonment of either description till 1991 when it was increased to 10 years. The bill proposes it to revert it to a maximum of two years.

Similarly, punishment for the offence of defiling of the Holy Qur’an under section 295-B introduced in 1982 by General Zia, is proposed to be reduced to imprisonment up to 5 years instead of life imprisonment.

Another blasphemy law, section 295-C, introduced in 1986 provided punishment of death or life imprisonment and fine for use of derogatory remarks in respect of the Holy Prophet (PBUH). However, a Federal Shariat Court judgment in 1990 (cited as PLD 1991 FSC 10) rendered alternative sentence of imprisonment for life under 295-C inapplicable and death sentence compulsory, after the Court found alternative punishment of life imprisonment under 295-C against the injunctions of Islam. Sherry Rehman’s bill proposes imprisonment of either description for 10 years, or with fine, or both as punishment under section 295-C.

Harsh punishments introduced since General Zia’s reign have been criticised by legal experts on grounds that they seem to have increased the number of complaints and compounded the problem. A division bench of Lahore High Court expressing dissatisfaction over the use of the blasphemy laws had to implicitly acknowledge that the harsher punishments instead of remedying the mischief seemingly had led to greater incidence (P L D 2002 Lahore 587).

Moreover, compulsory death sentence has been said to be contrary to the right to life, guaranteed in the Constitution of Pakistan as well international human rights instruments, as it leaves no discretion with judicial authorities to deliver lesser punishments in doubtful cases or in mitigating circumstances.

Proposed changes in the wording

The second change that the bill proposes is introduction of the element of intention to sections 295-C, 298-B, 298-C by adding words maliciously, deliberately and intentionally. It may be recalled that 298-A, 298-B, and 298-C were introduced through Anti-Islamic Activities of the Qadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance in 1984. Thus, section 295-C will read as follows:

"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 imprisonment of either description for 10 years, or with fine, or with both". The existing provision had rendered the offence under these sections a strict liability in which showing criminal intent seemed to have been ignored. As a result, it was easier for the courts to pronounce death sentences. The addition of words maliciously, deliberately and intentionally, takes care of this particular lapse in the existing laws.

The words used in sections 295-C and 298-A have connotations too wide and vague, making the law liable to abuse. It would therefore be appropriate that words occurring after ‘or by visible representation,’ in section 295-C PPC i.e. "or by any imputation, innuendo, or insinuation, directly or indirectly" be dispensed with to make the scope of the provision clearer, though only by a margin. It will further reduce chances of abuse.

Existing 298-C is worded in such wide terms that it leaves practically no room for the Ahmedis to exercise religious freedom guaranteed under the Constitution as well as obligatory upon the state under the International Covenant on Civil and Political Rights. The inclusion of maliciously, deliberately and intentionally, will bring in some improvement.

Proposed new offences and their punishment

The proposed bill introduces two new offences: (a) identical punishment to the complainant for false accusations under sections 295-A, 295-B, 295-C PPC (same punishment as in these sections); Incorporation of section 203-A is intended to take care of abuse of insult laws by providing for identical punishments; however, it would be appropriate to use word same in the proposed new section 203-A instead of word similar; (b) imprisonment of either description up to seven years, or with fine, or with both for advocacy of religious hatred constituting incitement to discrimination or violence. The proposed new section 298-E should be numbered as 298-D.

Some existing provisions in the PPC such as sections 153-A, 153-B, 505 and 506 do take care of some aspects of hate speech such as disturbance to inter-communal harmony, criminal intimidation, such as threats made to Aasiya Masih’s life, but not specifically the aspect of discrimination. It is common to see pamphlets and audio/video tapes/programmes being distributed and banners put up demanding from the government and inciting people to demand for the exclusion of members of certain religious communities from important positions (mostly Ahmedis). It seems the element of incitement to discrimination is intended to remedy this kind of mischief in particular.

Procedural changes

We have seen that a change introduced to CrPC (section 156-A) which made it mandatory for the investigation as regards cases under section 295-C to be carried out by a police officer not below the rank of SP has had little impact on such cases as made clear by the Aasiya Masih’s case.

The proposed bill therefore also recommends that only Court of Sessions may only take cognisance of offences falling within sections 295-A, 295-B and 295-C of the PPC to be introduced by new section 190(3) to be incorporated in CrPC. It also recommends that such cases may only be tried by a high court. Further, the police will not be allowed to arrest persons accused under these provisions (amendments to Schedule II under CrPC).

Already, Section 196 (Prosecution of offences against the State) of CrPC bars courts from taking cognisance of offences against the state unless complaint was made by order of, or under authority from, the concerned Government. It may safely be assumed that it was done so as a requirement of public policy. After section 295-A was introduced to the PPC, an amendment to section 196 CrPC was made, which barred courts from take cognisance of offences under 295-A as well. It was only logical to have included section 295-B, 295-C and 298 and its sub-sections under scope of section 196 of CrPC by introducing amendment. This omission has caused confusion during proceedings for blasphemy cases because offences under these sections are in the same nature as 295-A. In addition to granting Court of Sessions to take cognizance of such offences, an amendment to section 196 CrPC is also required in the proposed bill.

Not many people know that these amendments are important because the blasphemy laws, in their present shape, have created serious problems for the judiciary, especially the subordinate courts. In almost each case, the courts come under such heavy pressure from the mobs outside the courtrooms that they are afraid of applying their judicial minds to the case before them.

Therefore, it is suggested in the bill that the trial court for some offences should be the high courts. Trial in high courts, it is assumed, besides minimising the impact of mob pressures, can also put the police investigation on the right track.

Another procedural amendment proposes to add sections 295-A, 295-B and 295-C of the Pakistan Penal Code to the section 30 of CrPC which empowers the Provincial Government to invest any Magistrate of the First Class with power to try as a Magistrate all offences not punishable with death. This will allow a certain degree of flexibility to the government in appropriate cases where trial in the high court may not be feasible for practical reasons.

asadjamal2006@gmail.com