ISLAMABAD: Monday’s proceedings of Mumtaz Qadri’s appeal against his death sentence provided a glimpse into the minds of the members of the Supreme Court bench, when they held that the court would determine whether criticism of the blasphemy law amounted to blasphemy.

“We have to look into whether the deceased (Salmaan Taseer) indeed committed the act of blasphemy or he commented adversely on the effects of the blasphemy law,” observed Justice Dost Mohammad Khan, a member of the bench that is hearing two identical appeals against the Islamabad High Court judgment of March 9, accepting Qadri’s plea to annul the sections of the Anti Terrorism Act (ATA), 1997, which he was charged under for the assassination of the former Punjab governor.

Headed by Justice Asif Saeed Khosa, the bench had taken up two appeals; one moved by Advocate Mian Nazir Akhtar on behalf of Mumtaz Qadri, and another moved by the federal government against the IHC verdict.

Elite Force personnel who stood by as Qadri killed Taseer ‘still in service’

The high court had dismissed Qadri’s petition against the award of a death sentence under the Pakistan Penal Code (PPC), but had accepted his application to void Section 7 of the ATA.

The federal government had approached the Supreme Court to re-include the terrorism charges against Qadri, whereas he had approached the court for a reduction in his sentence.

Given the prevailing constitutional and legal setup, Justice Dost Mohammad observed, can the accused be given the right to judge on his own cause and commit murder in uniform of a person who was under his protection, especially when there is no evidence of him having committed blasphemy, save a few press clippings.

These questions need to be focused upon, Justice Dost Mohammad emphasised adding that the impression he had gathered from reading the facts of the case was that the deceased governor was talking about the defects in the blasphemy law, which were sometimes misused for personal benefit.

In any democratic government, the nation has the right to criticise any law made by the parliament because it was made by representatives of the people, Justice Khosa observed, and illustrated his argument with the example of the 21st amendment.

The establishment of military courts was challenged before the Supreme Court on the grounds that no provision can be inserted in the Constitution that infringes upon the independence of the judiciary or establishes a parallel judiciary, Justice Khosa explained, adding that some judges had upheld the amendment, while some had declared it unconstitutional.

But the act of challenging the amendment does not mean that the petitioners flouted the Constitution and therefore should be tried for high treason, the judge observed, giving the example of the Zina (Hudood) Ordinance, which he said was misused to such an extent that it had to be amended in 2005 by providing safeguards against its exploitation.

Qadri’s counsel Mian Nazir Akhtar, however, argued that laws made during the democratic period will remain subordinate to Islamic dictates and no restrictions could be placed in the application of the blasphemy laws.

Section 295(C) may have been inserted into the Criminal Procedure Code (CrPC) in 1986 by a dictator, but the victim (Taseer), Mr Akhtar said, had committed a sacrilegious act, which no one could be allowed to do.

The counsel argued that the accused was a straightforward man who had a justification for killing the former governor, admitting that whatever he did was in accordance with the dictates of the Holy Quran and the Sunnah of the Holy Prophet (peace be upon him), because he was convinced that the victim had committed blasphemy by calling the blasphemy law “a black law”.

The counsel argued that Qadri was, at the time of the murder, in the company of other Elite Force personnel who did nothing, as if they were satisfied with what Qadri had done and only arrested the accused after he voluntarily turned himself in.

At this Justice Khosa, inquired whether any disciplinary action had ever been taken against the rest of the members of the force and whether they were still in active service. Islamabad Advocate General Mian Rauf, appearing on behalf of the state, told the court that the men were still in service.

The court will resume hearing the matter on Tuesday.

Published in Dawn, October 6th , 2015

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