Sherry Rehman’s Proposed Bill to amend Offences Relating to Religion

Please read advocate Asad Jamal’s article ‘Some called-for changes‘, published in The News on Sunday, Dec 12, 2010, commenting on Sherry Rehman’s bill seeking amendments to blasphemy laws Pakistan. Below, his summary of the proposed bill in tabular form making it easier to understand:

Proposed amendments to punishments under Pakistan Penal Code (PPC)

Section Offence Existing punishment Proposed punishment
295-A Use of derogatory remarks, etc. in respect of holy personage— punishable with Imprisonment of either description up to ten years or with fine or with both Imprisonment of either description up to two years or with fine or with both
295-B Difiling of copy of Holy Quran Imprisonment for life Imprisonment of either description for 5 years or fine or both
295-C Use of derogatory remarks, etc. in respect of the Holy Prophet Death or life imprisonment[1] and fine Imprisonment of either description for 10 years, or with fine, or both

Proposed addition of words to blasphemy provisions in PPC.

The additional words (maliciously, deliberately and intentionally) are meant to introduce element of intention and malice to the offences under 295-C, 298-B & 298-C.

Section 

Existing provision Proposed
295-C Use of derogatory remark etc.’ in respect of the Holy Prophet: Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.” Use of derogatory remark etc.’ in respect of the Holy Prophet: Whoever maliciously, deliberately and intentionally, by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with imprisonment of either description for 10 years, or with fine, or with both.”
298-A 298-A Use of derogatory remarks, etc. in respect of holy personages. Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of any wife (Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (Peace Be Upon Him), or any of the righteous Caliphs (Khulafa-e­Raashideen) or companions (Sahaaba) of the Holy Prophet (Peace Be Upon Him) shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 298-A Use of derogatory remarks, etc. in respect of holy personages. Whoever by words, either spoken or written, or by visible representation, maliciously, deliberately and intentionally or by any imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of any wife (Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (Peace Be Upon Him), or any of the righteous Caliphs (Khulafa-e-­Raashideen) or companions (Sahaaba) of the Holy Prophet (Peace Be Upon Him) shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
298-B 

298-B. Misuse of epithets, descriptions and titles, etc. reserved for certain holy personages or places. (1) Any person of the Qadiani group or the Lahori group (who call themselves Ahmadis or by any other name) who by words, either spoken or written, or by visible representation— 

298-B. Misuse of epithets, descriptions and titles, etc. reserved for certain holy personages or places. (1) Any person of the Qadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name) who by words, either spoken or written, or by visible representation maliciously, deliberately and intentionally[2]

Proposed new offences to be added to Pakistan Penal Code

Section Offence Proposed Punishment 

203-A False accusations under sections 295-A, 295-B, 295-C PPC Similar/[3] Same/identical as provided under the said sections.
298-E[4] Advocacy of religious hatred etc constituting discrimination Imprisonment of either description up to seven years, or with fine, or with both.

Procedural amendments proposed in the Code of Criminal Procedure (CrPC)

Section Existing Provision Proposed addition/change 

30. Offences not punishable with death: Notwithstanding anything contained in Sections 28 and 29, the Provincial Government may invest any Magistrate of the First Class with power to try as a Magistrate all offences not punishable with death. Add at the end after word ‘death’: “as well as offences falling under sections 295A, 295B and 295C of the Pakistan Penal Code.’’
193 (2) 193. Cognizance of offences by Courts of Session: (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the [case has been sent to it under Section 190, sub-section [(2)]. 

Add after sub-section 2: “and as expressly provided for under section 190 of the Code’’
201 201. Procedure by Magistrate not competent to take cognizance of the case. (1) If the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint for presentation to the proper Court with an endorsement to that effect. 

(2)       If the complaint has not been made in writing such Magistrate shall direct the complainant to the proper Court.

Add proviso: 

Provided that if a complaint is made in writing to a Magistrate under sections 295A, 295B and 295C of the Pakistan Penal Code, he shall not take cognizance of it and forward it to the proper Sessions Court with an endorsement to that effect and in case the complaint has not made in writing, such Magistrate shall direct the complainant to the proper Sessions Court.”

202 

202. Postponement of issue of process. (1) Any Court, on receipt of a complaint of an offence of which ‘it is’ authorized to take cognizance, or which has been sent to it under Section 190, sub-section (3), or transferred to it under Section 191 or Section 192, may, if it thinks fit, for reasons to be recorded postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by any justice of Peace or by a police-officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. 

Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200.

(2) A Court of Session may, instead of directing an investigation under the provisions of sub-section (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood- of the complaint.

(3) If any inquiry or investigation under this section is made by a person not being a Magistrate, or justice of Peace or a police-officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police-station, except that he shall not have power to arrest without warrant.

(4)        Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath.

 

add subsection (5) to say, ‘’Notwithstanding anything contained in the preceding subsections any complaint made under sections section 295A, 295B and 295C of the Pakistan Penal Code shall be filed at and taken cognizance of by a Court of Sessions and tried by the High Court, whereas the procedure laid down in the preceding subsections shall be followed.’’
190(3) 

New provision

 

none

All offences falling within sections 295A, 295B and 295C of the Pakistan Penal Code shall exclusively be taken cognizance of by the Court of Sessions and tried by the High Court.”

Further proposal

Section 196 (Prosecution of offences against the State) of CrPC bars courts from taking cognisance of offences against the state unless complaint was made by order of, or under authority from, the concerned Government. It may safely be assumed that it was done so as a requirement of public policy. After section 295-A was introduced to the PPC, an amendment to section 196 CrPC was made, which barred courts from take cognisance of offences under 295-A as well. It was only logical to have included section 295-B, 295-C and 298 and its sub-sections under scope of section 196 of CrPC by introducing amendment. This omission has caused confusion during proceedings for blasphemy cases because offences under these sections are in the same nature as 295-A. Therefore, I propose that in addition to granting power to Court of Sessions to take cognizance of such offences, an amendment to section 196 CrPC is also required in the proposed bill. Sections 295-B, 295C and 298 of PPC with its sub-sections, be included within the scope of existing section 196 of CrPC.


[1] Federal Shariat Court’s judgment of 1990 rendered alternative punishment of life imprisonment inapplicable.

[2] The words used in sections 295-C and 298-A of PPC have connotations too wide and vague, making the law liable to abuse. I suggest that it would be appropriate that words occurring after ‘or by visible representation,’ in section 295-C & 298-A i.e. “or by any imputation, innuendo, or insinuation, directly or indirectly” be dispensed with to make the scope of the provision clearer, though only by a margin. It will further reduce chances of abuse.

[3] Word same or identical should be used instead of similar

[4] 298-E should be numbered 298-D

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3 Responses

  1. Thanks for this! A great breakdown for someone like me who hates this monstrosity but sometimes can’t wrap my head around the details. Rehman’s amendment might be a welcome step towards placating both the mullah politicos and those who want to see this bill erased from our law books, but it seems to me – from reading this – that it’s just a STEP; we have a long way to go

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  2. It is a great step indeed though a very small one toward loosening the evil hold of theocracy on the polity of the Pakiland which started with the Second Amendment in the Constitution reducing it virtually to a ‘takfiri fatwa’.

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  3. I am a lay man knowing little of the legal intricacies of jurisprudence but I wonder whereas there is much stress on intention, called mens rae in legal jargon, there is no provision in the law to require the establishment of the bona fide of the accuser. My point is why any dick and harry with ulterior motives, having no genuine cause of action, is given the right to accuse somebody of blasphemy. Perhaps even a person like Abuiehb can accuse any body of blasphemy to get all genuine Muslims exterminated or at least make them go through the tyranny of police and judiciary, which seem to be hand in glove with the theocracy for obvious reasons.

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