When a high court upholds the conviction and death sentence of a woman from a poor as well as politically and socially marginalised religious minority in a highly publicised case lodged under a deeply controversial blasphemy law, it is not an ordinary event.

Since the introduction of Section 295-C in the Pakistan Penal Code in 1986, the confirmation of the death sentence for Aasia Noreen, or Aasia Bibi as she is generally referred to, is the third such decision by the Lahore High Court (LHC) — in fact, by any high court in the country. The event, however, seems to have come and gone without any critical reaction from the intelligentsia, generally, and the lawyers, in particular. A court judgment such as this can be an important indicator of how blasphemy cases are being decided. It may also help enhance our understanding of the failure of the criminal justice system to protect the vulnerable. On both counts, the LHC decision warrants a critical analysis.

The verdict issued on November 5, 2014, is essentially based on the argument that the eye witnesses/complainants, Mafia and Asma, were not duly cross-examined during the proceedings of the trial court. The learned LHC judges, hearing the case, noted that the defense lawyers had not contested the allegation of blasphemous utterances by the accused. If an allegation is not contested by the defense lawyers, then, according to the law of the land, it must be considered to be true and admitted by the accused, the judges pointed out. Since direct evidence – that is, testimonies of the complainants – were coherent and confidence inspiring, therefore, conviction and sentence must be upheld, they concluded.

How can one, however, exclude altogether the possibility of ill will generated in the minds of the complainants against Aasia Bibi due to a quarrel over drinking water? Why should one presume that Aasia Bibi uttered the offensive words without having been provoked?

The LHC also demolished all legal and factual objections raised by Aasia Bibi’s counsels on the basis of apparently sound counter legal arguments. There were some serious arguments made in Aasia Bibi’s defense: firstly, the delay of five days in the filing of the First Information Report (FIR) raises the possibility of improvement in the stance of the complainants; secondly, the personal grudge of the complainants – who are also the only eyewitnesses of the alleged incident – against Aasia Bibi caused by an altercation over the sharing of drinking water; thirdly, the recording of evidence without adopting the standards of Tazkia-tu-Shahood (prescribed “Islamic” method of testing the propriety of witnesses in Hudood cases without which no one may be convicted and no sentence may be handed out). These grounds required more serious deliberation by the court.

It was in 1990 that the Federal Shariat Court declared (in a case filed by lawyer Ismail Qureshi) that blasphemy against the Prophet of Islam under section 295-C is a Hadd offence. According to religious interpretation, a Hadd offence is one for which the Quran has prescribed punishment that cannot be changed at all. The Federal Shariat Court declared that death was the mandatory punishment in the offence of blasphemy, thus rendering alternative punishment of life imprisonment, originally provided in Section 295-C, as ineffective. Though parliament has not changed the original wording of Section 295-C, the Federal Shariat Court’s decision has been adjudged by the superior courts to have attained finality. Conviction under Section 295-C, therefore, must only lead to the death sentence.

It is in this context that the necessity of Tazkia-tu-Shahood is of critical importance. The question one needs to consider is: if the principle of according finality to a declaration by a superior court must be followed in the Ismail Qureshi case, then should the same principle not be followed for Tazkia-tu-Shahood? In a judgment authored by a former chief justice of the Federal Shariat Court, Tanzilur Rahman, (in Sanaullah versus the State cited as PLD 1991 FSC 186) the Hadd punishment of cutting of hands for theft was set aside because the testimonies of the witnesses had not been recorded and, therefore, the allegation had not been proven according to the strict standards of Tazkia-tu-Shahood necessary for Hadd offences. There are several other such instances where the superior courts made Tazkia-tu-Shahood as the basis for changing or overturning the verdicts given by trial courts.

In Aasia Bibi’s case, the trial court did not apply the standard of Tazkia-tu-Shahood to assess the quality of testimonies of witnesses and complainants. Aasia Bibi’s counsels raised this point but the LHC dismissed it, referring to a 2002 Supreme Court verdict in a blasphemy case (Ayub Masih versus the State). The LHC argued the Supreme Court did not make any declaration on the question of Tazkia-tu-Shahood, therefore, by implication, there was nothing binding upon the LHC to follow so far as this particular ground for Aasia’s appeal was concerned.

This is clearly a case of selective use of judgments by the Lahore High Court. In an interview with this writer, one of the counsels for Aasia Bibi said the facts in Ayub Masih’s case were so clear that the court did not find the need to examine the quality of evidence. So, the question of Tazkia-tu-Shahood never arose in that case. Similarly, according to him, the defense counsels also cited the Sanaullah case to strengthen their argument about the application of Tazkia-tu-Shahood but the LHC judges have chosen to ignore that. The counsel said the defense team, too, had cited Ayub Masih case, but only to strengthen the argument pertaining to delay in the registration of FIR.

The question one needs to consider is: if the principle of according finality to a declaration by a superior court must be followed in the Ismail Qureshi case, then should the same principle not be followed for Tazkia-tu-Shahood?

Let us assume that no conclusive jurisprudence has emerged from the Supreme Court on the question of application of Tazkia-tu-Shahood. Would not, in that case, be a high court entitled to carefully examine this serious legal question and adjudicate on it? How could the LHC dismiss this critical question, especially when constitutionally guaranteed rights to personal freedom and right to life were at stake?

In its decision, ironically, the LHC judges acknowledged that the non-application of Tazkia-tu-Shahood at the trial court was a serious objection but they then decided not to consider it to set aside the trial court order. Their reasoning was that the legislature had not passed any law to lay down the process for Tazkia-tu-Shahood. Legislation, however, also did not exist when the Federal Shariat Court decided to set aside Hadd punishment in the Sanaullah case. The Federal Shariat Court, indeed, has prescribed a detailed procedure for applying Tazkia-tu-Shahood in that case but that precedent was ignored.

To say there is no binding precedent from the Supreme Court on this question is simply not true. In Daniel Boyd versus the State (cited as 1992 SCMR 196), the Supreme Court had discussed the procedure to be adopted for application of Tazkia-tu-Shahood. In that case, it set aside Hadd punishment on the ground, among others, that witness testimonies were not recorded according to the standard procedure of Tazkia-tu-Shahood. Also, isn’t it that questions decided by the Federal Shariat Court regarding application of “Islamic injunctions” attain finality when not set aside by the Supreme Court?

Yet the LHC did not consider this verdict — perhaps because the counsels of the appellant, Aasia Bibi, did not present the judgment in support of their argument. This, however, should not be the reason for including or omitting an argument while deciding the matter of someone’s life and death.

In Ayub Masih’s case, the Supreme Court set aside the conviction on the ground, among others, that there was a delay of six hours between the alleged incident and the registration of its FIR, suggesting the possibility of fabrication and false implication.

In the Aasia Bibi case, the trial court dismissed the possibility of fabrication by saying that the complainants/eyewitnesses were women who usually hesitate in approaching the police. They had to seek support from male elders and, therefore, the delay of five days in the registration of FIR was justified. The LHC implicitly agreed with this reasoning by the trial court.

The LHC judgment stated that the question of delay in reporting the matter to the police “is immaterial especially when the … direct evidence, produced by the prosecution, is consistent, coherent and confidence-inspiring”. Let us see whether the direct account of the circumstances of the case is indeed confidence-inspiring.

*To say there is no binding precedent from the Supreme Court on this question is simply not true. In Daniel Boyd versus the State (cited as 1992 SCMR 196), the Supreme Court had discussed the procedure to be adopted for application of *Tazkia-tu-Shahood**

There were seven prosecution witnesses and one court witness whose statements have been recorded in the trial. According to the police, out of the 20-25 women workers who were present in a field of berries where the alleged offence was committed, only one or two of them were questioned by the police. One of the women questioned by the police, Yasmin Bibi, was initially chosen to be a prosecution witness but was dropped by the prosecution in the course of the proceedings for the vague reason that her testimony was unnecessary. The trial court and the LHC did not ask any questions regarding her withdrawal as a witness. If the defense counsel had also failed to raise a point about her testimony, why didn’t the court call her as a court witness?

One of the witnesses, a prayer leader, stated a meeting of the villagers was held at the house of one Mohammad Mukhtar — another prosecution witness who was eventually dropped during the proceedings. His testimony could have shed light on the controversial matter of the delay in the registration of the FIR and its possible fabrication.

In the Aasia Bibi case, the trial court dismissed the possibility of fabrication by saying that the complainants/eyewitnesses were women who usually hesitate in approaching the police.

Out of the eight witnesses recorded, only two claimed to be eyewitnesses. They claimed to have heard the accused uttering the blasphemous words. Everyone else’s testimony was based on hearsay, including that of the prayer leader, Salam, who was approached by the two eyewitnesses to report the matter to the police.

Five days after the incident of the alleged blasphemy had taken place on June 19, 2009, the prayer leader called a gathering of villagers and interrogated Aasia Bibi. The prayer leader claimed it was during that gathering that Aasia Bibi confessed to making the derogatory remarks. It was on the basis of this confession that he lodged the FIR on behalf of the two eyewitnesses.

Different accounts of the gathering of villagers – as provided by the prayer leader and the two eyewitnesses – do not corroborate each other. For example, the prayer leader said the gathering was held at the house of Mohammad Mukhtar, and there were 100 villagers present. One of the eyewitnesses, Asma, testified that there were 2,000 people in the gathering. She also said the gathering was held at the house of one Rana Razzaq. Her sister, Mafia, told the trial court that the public meeting was held at the residence of her father, Abdul Sattar, and there were more than 1,000 people present in it. Another witness, Mohammad Afzal, said there were about 200-250 people in the meeting which was held at the house of Mohammad Mukhtar. Would one not be justified in questioning the coherence and consistency in these accounts?

The LHC verdict stated that there was no evidence of any “previous” enmity between Aasia Bibi and the complainant/eyewitnesses. It may be true. How can one, however, exclude altogether the possibility of ill will generated in the minds of the complainants against Aasia Bibi due to a quarrel over drinking water? Why should one presume that Aasia Bibi uttered the offensive words without having been provoked? There also can be no presumption that such words had to be blasphemous.

The trial judge had a particularly interesting view on this question. Aasia Bibi’s stance is that the blasphemy case against her was a result of a quarrel where hot words were exchanged between herself and the two complainants, Asma and Mafia, after they refused to accept water from her on account of her being a Christian. This is denied by the complainants. According to the trial court judge, even if it is accepted that the altercation started with the refusal to accept water by the Muslim women, which the Muslim women deny, then it had to result in blasphemous words by the Christian woman. “So, the question arises, what type or nature of the hot words would be there in between the Christian and Muslim ladies when the quarrel started from the refusal of drinking water by the Muslim ladies from the hands of a Christian lady. So, the phenomena was [sic] ultimately switched into religious matter and hot words should had [sic] not been other than the blasphemy”. [sic]

When a high court considers the grounds of an appeal, it is also supposed to carefully analyse the trial court’s judgment. Nowhere in the LHC order was the possibility of bias in the trial court’s verdict considered — even when it is floating clearly on the surface. If there is any coherence and consistency anywhere in the case, it is in the determination to sentence Aasia Bibi to death. In several judgments by the Supreme Court and the Federal Shariat Court, including in the cases of Sanaullah and Daniel Boyd, mentioned earlier, it has been clearly laid down, on the basis of several precedents from early Islamic jurisprudence, that wherever there is even an iota of doubt, Hadd punishment should not be applied.

Different accounts of the gathering of villagers – as provided by the prayer leader and the two eyewitnesses – do not corroborate each other.

In their remarkable study of the US Supreme Court’s decision-making process, titled The Choices Justices Make, Lee Epstein and Jack Knight assert that judges are both sophisticated and strategic when they make their judgments. According to the authors, judges, in the context of the United States, maximise their personal public-policy preferences while simultaneously satisfying external observers that the court is legitimately staying within the bounds of the law. The authors of the judgment in Aasia Bibi’s appeal have adopted a similar methodology — showing both strategic pragmatism and legal sophistication. The bench that heard the appeal comprised a senior judge – with more than four years of work experience at the LHC – and a junior judge who was elevated to the LHC only this year and is yet to be confirmed.

Blasphemy cases are hard to decide given that the state cannot provide protection to the judges and lawyers involved. In at least one previous instance, a LHC judge, Arif Iqbal Bhatti, was assassinated for acquitting a blasphemy accused. Recently, Rashid Rehman, a Multan-based lawyer who took up the case of a blasphemy accused after he failed to engage a counsel was shot dead in his office.

In a situation such as this, where all other institutions of the state waver in supporting the weak and the vulnerable, isn’t it still fair to expect that the high courts will come up with bold judgments in blasphemy cases to address that imbalance?

This article was originally published in the Herald's December 2014 issue under the headline 'A berry-picker's trial'. To read more subscribe to the Herald in print.

The writer is a lawyer based in Lahore.