Pakistani Blasphemy Law between Hadd and Siyasah: A Plea for Reappraisal of the Ismail Qureshi Case

Abstract

Pakistan has many provisions in its penal code about offences against religion, but focus of the academia has generally been on the provisions regarding insulting remarks about the Prophet (peace be on him). These particular provisions were introduced in the Pakistani law by the Parliament but then the Federal Shariat Court declared that the punishment of imprisonment for life was repugnant to Islamic injunctions and that only death punishment could be awarded for this offence. It further held that this punishment was ╒add and that it could not be commuted or pardoned even if the convict was proved to have repented. The present paper examines this law from the perspective of the Hanafi jurisprudence and finds many lacunae in the law. Exploring the manuals of the jurists, it concludes that Islamic law distinguishes between the consequences of blasphemy committed by a Muslim and blasphemy committed by a non-Muslim. The former attracts the rules of apostasy, including the possibility of suspension of punishment when the convict repents, and the latter is governed by the general doctrine of siyasah, which gives the government the authority to prescribe appropriate punishment that can be pardoned if the convict shows remorse. Moreover, as opposed to the existing Pakistani law, the principles of Islamic law make mens rea an essential ingredient of this offence. Hence, the Pakistani blasphemy law needs substantive revision in the light of the principles of Islamic law, as expounded by the Hanafi school.