Asia Bibi’s case has finally reached its legal conclusion. Notwithstanding the small formality of the review petition, the scope of which is very narrow (restricted only to “errors floating on the surface of the record”), the case has now been decided, in terms of our Constitution and the law. As was expected, the judgment has drawn deeply conflicting reactions from different segments of our society. And, unfortunately, these reactions (as opposed to the substance of the judgment itself) have become the real story across our media and national discourse.

But days like these come by far too infrequently to be distracted by the reaction of mob on our streets. So, let us take this moment to discuss the judgment itself, and what it means for a country like Pakistan.

At the very outset, it needs to be recognized that this judgment has laid bare two entrenched realities of Pakistan: 1) that the crevice between tolerance and barbarianism still simmers as an active volcano under the surface of our society; and 2) that the honorable Court, and its judgments, remain non-negotiable in the face of all eruptions.

Before commenting on these facets, it is pertinent to first delve into the substance of the honorable Supreme Court’s judgment itself. Especially because, most of the people commenting on the judgment, seem to not have taken the time to read it.

Briefly, the facts as narrated in the judgment, are as follows: On 14.06.2009, Asia Bibi, a Christian woman, was working in the fields (plucking falsas), where she had some argument with a few women (i.e. Mafia Bibi and Asma Bibi), who claim that she (allegedly) uttered blasphemous words against the Holy Prophet (SAWW) and the Holy Quran. The alleged event was narrated to Qari Muhammad Salaam (the Complainant), who convened a public meeting on 19.06.2009, in which Asia Bibi (allegedly) confessed to her crime. As a result, Qari Salaam lodged a complaint before the police, resulting in registration of FIR No. 326.

The trial commenced before a court of competent jurisdiction, in which the prosecution produced seven witnesses (including Qari Muhammad Salaam/complainant (PW 1), two eye witnesses of the occurrence i.e. Mafia Bibi (PW 2) and Asma Bibi (PW 3), a witness of extra judicial confession Muhammad Afzal (PW 4) and three police witnesses (PW 5 to 7)). In her defence, Asia opted not to lead any evidence. Instead, her statement stated that the extra-judicial confession had been obtained under duress, that she had “great respect and honour [for] the Holy Prophet (PBUH) as well as Holy Quran”, whereas this episode had transpired “over fetching water which was offered by me to bring for them, but they refused saying that since I am Christian, they will never take water from my hand.” [sic]

After reviewing the evidence, the trial court convicted Asia Bibi for blasphemy, under section 295-C of PPC, and sentenced her to death, along with fine of Rs. 100,000/=. Thereafter, a Capital Sentence Reference No. 614/2010 was forwarded to the honorable High Court, for confirmation or otherwise, whereas Asia Bibi filed her appeal against conviction. The honorable High Court upheld the sentence of death, against which an appeal was filed before the honorable Supreme Court.

The Apex Court, headed by the honorable Chief Justice, along with the next Chief Justice (Asif Saeed Khosa, J), painstakingly evaluated all the evidence available on the record, to conclude that the prosecution had entirely failed in establishing their case “beyond reasonable doubt”, and thus Asia Bibi stands acquitted.

To be honest, it is slightly disconcerting that the judgment of the Court, authored by the honorable Chief Justice, starts with a declaration of faith, and spends the first 14 paragraphs clarifying that the Court, and its judges, hold the Prophet (SAWW) in the highest of esteem. This is disconcerting because the Court, or any of its judges, should not feel the need to declare their personal faith, before acquitting someone of blasphemy charges. There is no doubt – nor can there be – that the judges of our Court hold the Prophet (SAWW) in the highest possible respect, and abide by the dicta of our religion. In any case, the judges were not in the dock… only Asia Bibi was.

But, in the prevalent circumstances, one can sympathize with the need for members of the honorable Court to declare their own faith, before delivering the legal aspects of the judgment.

On the legal front, judgment of the honorable Chief Justice, and the concurrent note of Justice Khosa, aptly summarizes the reasons for acquittal of Asia Bibi. Specifically, in this regard, the honorable Court identifies four primary reasons for acquittal: 1) there was inordinate delay (of 5 days) in the registration of the FIR; 2) the prosecution evidence had a plethora of irremediable contradictions in the testimony of witnesses; 3) the extra-judicial confession of Asia Bibi had been obtained in suspect circumstances, and under duress; and 4) the prosecution had failed in proving their case “beyond reasonable doubt”.

To this end, Justice Asif Khosa, in his concurring note, points out that Mafia Bibi and Asma Bibi, in their respective statements, “categorically denied the fact that an altercation/quarrel took place between the appellant and them”, whereas this fact of “critical importance” was only revealed through the statement of SP Investigation and Muhammad Idrees (owner of falsa fields). Justice Khosa, after reviewing the relevant testimonies, concludes that “Mafia Bibi and Asma Bibi had no regard for the truth and they were capable of deposing falsely” under oath.

Equally importantly, in regards to the extra-judicial confession, Justice Khosa observes that “the evidence produced by the prosecution about where the public gathering had been held, how many people had participated in that gathering, who had brought the appellant to the gathering, how the appellant was brought to the gathering and the time consumed in the meeting has been found by me to be replete with glaring contradictions exposing complete falsity of the said part of the prosecution’s story.”

The honorable Court, through Justice Khosa’s judgment also expresses its disappointment on the manner in which the investigation was done, and in which the trial was concluded. Justice Khosa points out that “the glaring and stark contradictions in the evidence produced by the prosecution in respect of every factual aspect of this case [...] lead to an irresistible and unfortunate impression that all those concerned in the case with providing evidence and conducting investigation had taken upon themselves not to speak the truth or at least not to divulge the whole truth. It is equally disturbing to note that the courts below had also, conveniently or otherwise, failed to advert to such contradictions and some downright falsehood.”

In conclusion, almost as a cautionary tale Justice Khosa’s judgment quotes the agreement, entered into under the name and signature of the Prophet (SAWW) himself, in which the Christians have been granted immunity by the Muslims. Specifically, the Court points out how, in 628 A.D., a ‘Covenant’ was entered into between the Prophet (SAWW) and a delegation from St. Catherine’s Monastery, referred to as “The Promise to St. Catherine”, which, in part, reads as follows: “This is a message from Muhammad ibn Abdullah, as a covenant to those who adopt Christianity, near and far, we are with them…. No one of the nation (Muslims) is to disobey the covenant till the Last Day (end of the world).”

If this does not make the religious right reconsider its position on Asia Bibi… maybe nothing will.

But perhaps the most important lesson from this entire episode has been the steadfastness of the honorable Supreme Court, and the tenacity of its judicial verdict. In a case which had already resulted in the assassination of former Governor Salman Taseer, former Federal Minister Shehbaz Bhatti, and had resulted in the upheaval following Mumtaz Qadri’shanging, there was every reason for the honorable Court to cower in front of mob-pressure. Lesser courts, with weaker judges, may have been tempted to convict Asia (and gain favor with the conservatives). At the very least, there was reason to simply sit on the appeal, without announcing a judgment, just to avoid the wrath of religious militancy.

But that is not the present day Pakistan. That is not the present Court. This Court, without fear of favor, has the moral and legal courage to announce tough decisions, in accordance with law. And this, above all, is a reason to celebrate.

 

The writer is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School.

 saad@post.harvard.edu

@SaadRasooll