The glaring lapses at the level of trial court and high court in Aasia bibi’s case have reached before the Supreme Court
Finally, Aasia Bibi is free - after nine long years in confinement. Last Wednesday night she was flown on a special flight from Multan to Islamabad amid tight security. On death row since November 2010, when a trial court convicted her of committing blasphemy under section 295-C of the Pakistan Penal Code, her trial in the Supreme Court lasted a year. The Lahore High Court (LHC) dismissed the appeal against the sentence in mid-2014. Four years later, on October 30, 2018 the SC ultimately decided the appeal in her favour.
A critical review of the case shows glaring lapses in judgment by the trial court and Lahore High Court much before it reached the highest court of the land. For one, the decision would have come much earlier had the trial court - the primary forum to contest blasphemy cases in Pakistan - heard the case fairly and not violated the proceedings. The other two courts - LHC and SC -- are appellate forums.
The most obvious legal slip by the trial court was not questioning and cross-examining the witnesses properly. It decided the case almost one-sidedly. For example, the contradicting statements of witnesses, including two sisters, were not exposed in cross-examination by the defence counsel. The issue was raised in the Lahore High Court by the defence counsels but the court dismissed it.
Given that Supreme Court is the last forum of appeal, the judges decided that Aasia Bibi deserves to be granted ‘benefit of doubt’ -- because the sentence in this crime is only and only death penalty.
Generally, it is maintained that blasphemy cases are contested under pressure from religious groups. But should this bar the defence from thoroughly cross-examining the witnesses? It is also commonly assumed that judges face similar kinds of pressure and leave matters for the appellate courts to decide. However, there are a number of trial court judgments in regards to blasphemy where the accused person was set free on the basis of evidence and pleading by the defence counsel. Here the 2007 case of an old Christian man, Walter Fazl, who was accused of desecrating the Holy Quran, comes to mind. The court concluded that the case was ill-intentioned, and concocted to grab the man’s property.
Another major legal point identified by the SC in the Aasia Bibi verdict is not following defined rules to investigate blasphemy cases. "We shall consider the validity of the proceedings in absence of permission from the concerned Government. In this regard, it is to be noted that under Section 196 of the Criminal Procedural Code no court could take cognizance of any offence punishable under Section 295-A, Pakistan Penal Code unless the complaint was 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, but there was no requirement under the said Section for taking cognizance of the offence under Section 295-C of PPC. Besides, it was contended by the learned counsel for the petitioner that as per Section 156-A of CrPC, in a case involving the commission of offence under Section 295-C PPC, no officer below the rank of a Superintendent of Police is authorized to investigate into the matter. In the instant case, as is evident from its statement, a violation of Section 156-A of CrPC had been committed," the SC writes in its judgment.
It is also noted that blasphemy accusations are hurriedly registered by the police and due procedure is left for later. Likewise, rather than the local jirga accusing Aasia Bibi of committing blasphemy, the superintendent of police should have investigated the case first and then lodged a complaint. In a blatant legal blunder, the police authorities did not object to a jirga hearing the case; in fact it also relied on evidence gathered by it and endorsed its statements. Possibly, at this stage, the police wanted to prevent mob justice, extrajudicial killing and abuse of law.
Another legal aspect of the case highlighted by the SC is the suspicious delay of five days in registering this extremely sensitive case. "There is no denial of the fact that the FIR was registered with a delay of 5 days… it is to be noted that in absence of any plausible explanation, this Court has always considered the delay in lodging of FIR to be fatal [to the case] and castes a suspicion on the prosecution story, extending the benefit of doubt to the accused… Furthermore, FIR lodged after conducting an inquiry loses its evidentiary value," the judgment reads.
"Such conflict between judgments of different tiers of courts is not surprising. It happens in many cases," says Barrister Syed Ali Zafar. He adds that the lower courts record evidence in a particular way while the appellate court sets aside their findings by discarding or reinterpreting that same evidence and applying the law in another manner.
In the Aasia Bibi case, he further adds, the judges did nothing extraordinary, "except fulfilling their duty to do justice because no one can be punished without proof. What the common mind fails to understand is that if there was no evidence then why did the two lower courts find her guilty?"
Also read: An administrative failure?
Zafar thinks that this is clearly due to inadequacies in the justice system. "Pakistan needs to improve it." He cites poor prosecution, faulty investigation, and shifting of responsibility as main reasons for the faulty justice system. "In such sensitive cases like blasphemy damages are important and prosecution must be held for these damages. We must set examples by penalising prosecution and investigation, if they are at fault."
Lawyer Asad Jamal objects to the use of Islamic verses and proving of faith by justices in the Aasia Bibi case. "We do not need to prove our faith while writing judgments in such cases. These are legal matters and must be dealt legally."
Jamal says, the SC should have highlighted the mistake of previous courts in their judgments to set an example for future. "These lacunas identified in the previous judgments should have been expressed strongly to set the record right for the future, setting examples for the lower judiciary. There was no accountability of high and trial level court in clear words."
He believes this is the time for the state to "wake up". "There is need to put barriers and filters to prevent such cases from becoming high-profile. The government must think about it."