11/13/2018 Hanafi Jurists and the Punishment for Non-Muslim Blasphemers | ICRAA

Hanafi Jurists and the Punishment of Non-Muslim

Blasphemers
Waqar Akbar Cheema*

Abstract

Lately Pakistan’s blasphemy laws have been subject to much controversy. Critics often times go on to hit the very
substance and origin of the laws. In this backdrop the opinions of the Hanafi jurists are usually misunderstood and
misquoted. In this article we analyze how the opinions of Hanafi jurists relate to the incumbent Pakistani laws and how
some of the criticism is based on misunderstanding of that relationship.

1. Introduction
In the wake of recent events in Pakistan the issue of punishment for blasphemy has once again come to the limelight.
Going beyond the particular details of recent events certain quarters have voiced their dissent about the substance of
Pakistan’s blasphemy laws.[1] While the procedural details of the law and its execution are hardly being discussed the
said quarters have stirred a debate on the very essence of the law. Javed Ahmed Ghamidi is an avid critic of the
blasphemy law. Arafat Mazhar, a self-styled researcher, has published a series of articles on the issue. Like Ghamidi,
Arafat Mazhar also makes a reference to the opinions of classical Hanafi scholars suggesting that according to them there
is no punishment for non-Muslims blasphemers. Keeping aside the actual merits of the claim, this line of argumentation
from these quarters is interesting as when it comes to even the most fundamental issues of Islam, they attach no value to
the classical Islamic scholarship and have no qualms in adopting positions that are completely alien to the classical
Islamic tradition. When it comes to academic study of Islam, their discourse is more in line with the Orientalist tradition of
‘religious studies’ rather than with the classical tradition of Islamic scholarship.

While we leave the principle treatment of this utilitarian, fatwa-shopping approach towards the Islamic juristic tradition for
another occasion, here we shall dwell on the details of the opinions of the Hanafi School regarding the punishment for a
non-Muslim blasphemer.

2. Opinion of Early Hanafi Scholars

Early Hanafi scholars were generally of the opinion that it is not required to execute a non-Muslim for blasphemy.
Blasphemy, they argued, was a lesser sin compared to disbelief which was already tolerated of him. However, he was to
be disciplined.

Al-Tahawi (d. 321/933) writes;

‫ ﻓﺈﻧﻪ ﻳﺆدب وﻻ ﻳﻘﺘﻞ‬:‫وﻣﻦ ﻛﺎن ﻣﻦ ذﻟﻚ ﻣﻦ أﻫﻞ اﻟﺬﻣﺔ‬

And when a person from the people of covenant (ahl al-dhimma) reviles the Prophet (‫ )ﷺ‬he is disciplined but not
killed.[2]

They did not say it was altogether impermissible to kill a dhimmi for blasphemy rather they held that it was the ruler’s
discretion to execute him if it was deemed politically expedient.[3]

[Here it may be noted that if there is one thing that the recent fiasco proves it is that blasphemy is highly sensitive issue
and there must be no leniency once the crime is judiciously proven.]

Referring to a report on killing of a blaspheming Jewish woman Abu Hanifa’s prominent student, Muhammad bin Al-Hasan
Al-Shaibani (d. 189/804) writes:
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‫ ﻓﻼ س ﺑﻘﺘﻠﻬﺎ‬،- ‫إن ﻛﺎﻧﺖ ﺗﻌﻠﻦ ﺑﺸﺘﻢ رﺳﻮل ﷲ – ﺻﻠﻰ ﷲ ﻋﻠﻴﻪ وآﻟﻪ وﺳﻠﻢ‬
If she openly reviles the Messenger of Allah – on him be the peace and blessings of Allah – there is nothing wrong in
killing her.[4]

Therefore, the statements of early Hanafi scholars on not killing a dhimmi for blasphemy ought to be considered as
explaining the obligatory; what is obligatory is not to kill a blasphemer, but to discipline and punish him another way.
[5] This, however, does not mean it is altogether impermissible to execute such a blasphemer.

Commenting on Al-Tahawi’s statement that a blasphemer from amongst the dhimmis shall not be killed Abu Bakr Al-
Jassās (d. 370/980) writes:

‫وﱂ ﻳﻮﺟﺐ ﻋﻠﻴﻬﻢ ﻗﺘﻼ‬

It is not obligatory (lam yujab) to kill them.[6]

Likewise, referring to Ibn Mu’id’s opinion reflecting the view of Al-Tahawi et al., Ibn ‘Abidin (d. 1252/1836) states:

‫ ﺑﻞ ﺳﻴﺎﺳﺔ ﻣﻔﻮﺿﺔ اﱃ رأي اﻹﻣﺎم ﻳﻔﻌﻠﻬﺎ ﺣﻴﺚ رأي ﺎ اﳌﺼﻠﺤﺔ‬,ً‫ﻳﺮاد ﺑﻘﻮﻟﻪ “وﱂ ﻳﻘﺘﻠﻮا” أي ﺣﺪاً ﻟﺰوﻣﺎ‬
 
His statement “dhimmis will not be killed” means they shall not be killed obligatorily as a hadd rather for expedience
according to the discretion of the ruler when he finds in it public interest.[7]

3. Does covenant of protection preclude capital punishment?

Without reflecting Arafat Mazhar refersto statements from a number of scholars that blasphemy does not break a
dhimmi’s covenant of protection. Apparently, he thinks it means a dhimmi cannot be capitally punished for blasphemy. As
a matter of fact breaking of the covenant of protection (naqḍ al-‘ahd) is not a precondition for capital punishment.
Accordingly to Hanafi jurists the covenant (‘ahd/dhimma) does not break even if a dhimmi commits rape or murder as
evident from a number of statements referred to, but not fully and faithfully translated by Arafat Mazhar. Al-Qaduri’s (d.
428/1037) statement, for instance, goes as:

‫وﻣﻦ اﻣﺘﻨﻊ ﻣﻦ أداء اﳉﺰﻳﺔ أو ﻗﺘﻞ ﻣﺴﻠﻤﺎ أو ﺳﺐ اﻟﻨﱯ ﻋﻠﻴﻪ اﻟﺼﻼة واﻟﺴﻼم أو زﱏ ﲟﺴﻠﻤﺔ ﱂ ﻳﻨﻘﺾ‬
‫ﻋﻬﺪﻩ‬
If one refused to pay jizya, murdered a Muslim, reviled the Prophet (‫ )ﷺ‬or fornicated with a Muslim woman, his
covenant would not break.[8]

If breaking of the covenant is a precondition for capital punishment do such statements then imply that a dhimmi cannot
be executed even if he commits murder and rape? The preposterity of such a suggestion is evident. A number of scholars
have, therefore, clarified that covenant of protection in its own right does not preclude the possibility of capital
punishment.

The Ottoman era Palestinian Hanafi jurist Khair Al-Din Al-Ramli (d. 1081/1670) said;

‫ﻻ ﻳﻠﺰم ﻣﻦ ﻋﺪم اﻟﻨﻘﺾ ﻋﺪم اﻟﻘﺘﻞ‬

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That the covenant does not break no way entails refraining from applying the capital punishment.[9]

Ibn ‘Abidin also states this in his discussion on the issue using the very same words.[10] Similarly, Zafar Ahmad ‘Uthmani
(d. 1394/1974) writes;

‫ ﻓﺎﻋﺮف ذاﻟﻚ‬,‫ ﻛﻤﺎ ﰱ اﻟﻘﺼﺎص وﻏﲑﻩ‬,‫وﻟﻴﺲ ﻣﻦ ﺿﺮورة ﺟﻮاز اﻟﻘﺘﻞ وإﻫﺪار اﻟﺪم ﻛﻮﻧﻪ ﺣﺮﺑﻴﺎ‬
Know that, it is not a requirement for the permissibility of killing and shedding of the blood that the person be a
hostile enemy (harabi) as (killing is permissible) in the case of retribution and other issues.[11]

In fact ‘Uthmani lashes out at Ibn Hazm (d. 456/1063) for insinuating that the Hanafi position on blasphemy not breaking
the covenant entails against the capital punishment.[12]

3.1 Covenant of Protection and laws regarding blasphemy

That blasphemy does not break the covenant of protection applies where the covenant is general and has no stipulations
regarding blasphemy. Discussing the differences of scholars on the issue Al-Tahawi writes:

‫ﻟﻮ ﱂ ﻳﺸﱰط ﱂ ﻳﺴﺘﺤﻞ دﻣﻪ ﺑﺬﻟﻚ‬

If not stipulated (that it will break the covenant) blasphemy will not make shedding the blood of a dhimmi
permissible.[13]

Likewise, commenting to a narration implying blasphemy breaking of covenant of protection Al-Tahawi says:

‫إﺳﻨﺎدﻩ ﺿﻌﻴﻒ وﳛﺘﻤﻞ أن ﻳﻜﻮن ﺷﺮط ﻋﻠﻴﻬﻢ أن ﻻ ﻳﻜﻮن ﻫﺬا ﻣﻨﻬﻢ‬

It’s chain of narrators is weak and possibly there was a stipulation that they would not be among those who do it.[14]

These comments aptly prove that even early Hanafi scholars carefully considered the idea of blasphemy related
stipulation in the covenant for the dhimmis. Ibn ‘Abidin concluding the discussion based on statements of Al-Ramli and Al-
Shurunbulali (d. 1069/1659) writes:

‫أن ﻋﻘﺪ اﻟﺬﻣﺔ ﻻ ﻳﻨﺘﻘﺾ ﲟﺎ ذﻛﺮوﻩ ﻣﺎ ﱂ ﻳﺸﱰط اﻧﺘﻘﺎﺿﻪ ﺑﻪ ﻓﺈذا اﺷﱰط اﻧﺘﻘﺾ‬
As stated by the scholars the covenant of protection does not break when it has no stipulations regarding blasphemy.
But when it is made conditional the covenant breaks.[15]

Since it is the constitution that guarantees the basic rights to religious minorities, any punishments under the law must be
considered stipulations to the covenant of protection. And there is no bar on putting such conditions to the protection
mechanism that do not infringe basic civil liberties.

3.2 Other Hanafi views on blasphemy and the covenant of protection

Not only that the covenant of protection does not preclude capital punishment Hanafi jurists are not even unanimous that
a blasphemer’s covenant does not break. Though the popular (mashḥūr) Hanafi opinion is that blasphemy does not break
the covenant of protection of dhimmis another opinion is that it actually does.

Ibn ‘Abidin writes;

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‫ ﻧﻌﻢ‬,‫ﻣﺎ ﲝﺜﻪ اﻻﻣﺎم اﻟﻌﻴﲏ واﶈﻘﻖ اﺑﻦ اﳍﻤﺎم ﻣﻦ ﺣﻴﺚ اﻻﻧﺘﻘﺎض اﻳﻀﺎَ ﻓﻠﻴﺲ ﺧﺎرﺟﺎَ ﻋﻦ اﳌﺬﻫﺐ ﻟﻜﻠﻴﺔ‬
‫ﻫﻮ ﺧﻼف اﳌﺸﻬﻮر‬
Al-‘Ayni and Ibn al-Humam’s research that blasphemy actually nullifies the covenant is not altogether outside the
school, though it is at variance with the popular opinion.[16]

Similarly, Abu Bakr al-Jassās states in his commentary to Qur’an 9:12:

‫وﻇﺎﻫﺮ اﻵﻳﺔ ﻳﺪل ﻋﻠﻰ أن ﻣﻦ أﻇﻬﺮ ﺳﺐ اﻟﻨﱯ ﺻﻠﻰ ﷲ ﻋﻠﻴﻪ وآﻟﻪ وﺳﻠﻢ ﻣﻦ أﻫﻞ اﻟﻌﻬﺪ ﻓﻘﺪ ﻧﻘﺾ‬
‫ﻋﻬﺪﻩ‬
The evident meaning of the verse is that from whosoever of the people of covenant disparage with regards to the
Prophet (‫ )ﷺ‬becomes known his covenant will be nullified.[17]

Another prominent Hanafi scholar Abu Al-Barākat Al-Nasafi (d. 710/1310) states in his commentary to the same verse;

‫إذا ﻃﻌﻦ اﻟﺬﻣﻲ ﰱ دﻳﻦ اﻹﺳﻼم ﻃﻌﻨﺎ ﻇﺎﻫﺮ اﺟﺎز ﻗﺘﻠﻪ ﻷن اﻟﻌﻬﺪ ﻣﻌﻘﻮد ﻣﻌﻪ ﻋﻠﻰ أﻻ ﻳﻄﻌﻦ ﻓﺈذا ﻃﻌﻦ‬
‫ﻓﻘﺪ ﻧﻜﺚ ﻋﻬﺪﻩ وﺧﺮج ﻣﻦ اﻟﺬﻣﺔ‬
When a dhimmi openly disparages Islamic faith (its tenets or personalities) it becomes permissible to execute him
because the covenant with him entailed that he would not revile Islam. But when he does his covenant shall break
and he shall be excluded from the protection (thus promised).[18]

Commenting to the hadith report about killing of the Jewish woman who used to revile the Messenger of Allah (‫)ﷺ‬, a
Hanafi hadith exegete Al-Muzhiri (d. 727/1327) writes:

.‫وﻓﻴﻪ دﻟﻴﻞ ﻋﻠﻰ أن اﻟﺬﻣﻲ إذا ﱂ ﻳﻜﻒ ﻟﺴﺎﻧﻪ ﻋﻦ ﷲ ﺗﻌﺎﱃ ورﺳﻮﻟﻪ ودﻳﻨﻪ ﻓﻬﻮ ﺣﺮﰊ ﻣﺒﺎح اﻟﺪم‬
It is evidence that when a dhimmi does not hold his tongue from disparaging Allah, His Messenger, and His faith he
becomes a combatant killing whom is permissible (harabi mubah al-damm).[19]

Subcontinent scholars have adopted the same view, albeit with some clarities and adjustments. Shah Wali Ullah Al-
Dehlawi (d. 1176/1763) referring to the same narration about the Jewish woman writes:

‫وذﻟﻚ ﻻﻧﻘﻄﺎع ذﻣﺔ اﻟﺬﻣﻲ ﻟﻄﻌﻦ ﰲ دﻳﻦ اﳌﺴﻠﻤﲔ واﻟﺸﺘﻢ واﻹﻳﺬاء اﻟﻈﺎﻫﺮ‬
This is for the fact that disparaging the faith of the Muslims, and open reviling and trouble-making break the
dhimmi’s covenant of protection.[20]

Syed Amir ‘Ali Malihabadi[21] adopts the same opinion in short notes to the Qur’an and so do Ashiq Ilahi Madani[22]and
Ahmad Sa’id Dehlawi.[23]

Ashraf ‘Ali Thanwi (d. 1362/1943), known as Hakim al-Ummah, reconciling the popularly known positions of Hanafi and
Shafi’i schools, states in the last of his works published within his lifetime – Bawadir Al-Nawadir:

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Hanafis and Shafi’is differ on the issue. For long I understood that the two positions can be reconciled by saying that
the criticism is of two kinds; first is genuine research in support of one’s religion and this does not break the
covenant for upholding one’s religion is included in practicing it and second is by the way of reviling and disparage
and this does break the covenant for it is more than simply following [and upholding] one’s religion. This is proven
by the verse, “And if they break their oaths after they have made a covenant, and speak evil of your Faith, then
fight the leaders of infidelity, since their oaths are nothing, so that they may desist,” (Qur’an 9:12) Then in the work
of al-Shami I found an interpretation close to it. And all praise be to Allah.[24]

In the same vein Mufti Muhammad Shafi’ (d. 1396/1976) writes under Qur’an 9:12;

Some commentators have interpreted the words: ‘speak evil of your faith’ to mean that speaking evil of the Faith of
Muslims is included under contravention of pledge. A person who speaks evil of Islam and the Shariah of Islam
cannot continue to be a party to the treaty with Muslims. But, according to a consensus of Muslim jurists, it means
vilification that is done to insult and belittle Islam and Muslims, openly and publicly. Honest intellectual criticism
while conducting research into problems and rulings remains exempt from its purview – then, it is not supposed to
be vilification in its lexical sense.

Therefore, for non-Muslim citizens of Dar al-Islam, any honest intellectual criticism can be allowed, but what cannot
be allowed is vilification, contempt, insult or outrage against Islam.[25]

Likewise, Mufti Muhammad Taqi ‘Usmani discussing the reason for killing of Ka’b bin Ashraf states;

,‫ وﺟﺎز ﻗﺘﻠﻪ‬,ً ‫ ﻓﺼﺎر ﳏﺎر‬, ‫وﺑﺴﺐ اﻟﻨﱮ‬

ّ
For disparaging the Prophet (‫ )ﷺ‬he became a hostile enemy (muharab), and his murder became permissible.[26]

4. Punishment for non-Muslim blasphemers in the history of Subcontinent

Since early days of Muslim conquest of northern India, the predominant juristic affiliation of the Muslim people and rulers
has been with the Hanafi fiqh. This fact is attested by fatwa compilations made under Slave King Dynasty and later
monarchs.[27]

4.1 Punishment for blasphemy in the Sultanate and Mughal eras

There is evidence for executions under blasphemy laws in the Sultanate period of Muslim rule in Subcontinent.[28] A
Hindu by the name of Bodhan was executed under Sikandar Lodhi.[29] In the Mughal era, even during the reign of Akbar,
or at least the early years of it, blasphemers were executed.[30] And under Shah Jahan, “blasphemy was once again
made a criminal offence. A Hindu who was alleged to have behaved disrespectfully towards the Qur’an was executed.
Chhaila, a Brahman and provincial qānūngo of Berar, lost his head because he was similarly accused of disrespectful
language towards the Prophet.”[31]

In 1734 a Hindu boy, Haqiqat Rai, was sentenced to death by a Qadi in Lahore for making blasphemous remarks about
the Messenger of Allah (‫ )ﷺ‬and his daughter, Fatimah (may Allah be pleased with her).[32]

4.2 Opinions of pre-modern and recent Hanafi scholars of the Subcontinent

Contrary to bogus claims of critics like Arafat Mazhat, many Hanafi scholars of the Subcontinent have consistently
affirmed the opinions of death sentence for the guilty of blasphemy. Opinions of some prominent scholars are presented
below.

4.2.1 Qadi Than Ullah Panipatti

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The well-known commentator of Qur’an and a student of Shah Wali Ullah, Qadi Thana Ullah Panipatti (d. 1225/1810)
records the following in his brief on essential jurisprudence;

‫اﻟﮩﺪی در ﺑﺤﺮ اﻟﻤﺤﯿﻂ ﮔﻔﺘہ ﮐہ در ﺟﻨﺎب ﭘﺎک ﺳﺮور ﮐﺎﺋﻨﺎت ﺻﻠﯽ ﷲ ﻋﻠﯿہ وﺳﻠﻢ دﺷﻨﺎم‬ٰ ‫ﻋﻼﻣہ ﻋﻠﻢ‬
‫دﮨﺪ ﯾﺎ اﮨﺎﻧﺖ ﮐﻨﺪ ﯾﺎ در ﻋﻤﺮے از اﻣﻮر دﯾﻦ او ﯾﺎ در ﺻﻮرت ﻣﺒﺎرک او ﯾﺎ در وﺻﻔﮯ از اوﺻﺎف‬
‫ﺷﺮﯾﻔہ او ﻋﯿﺐ ﮐﻨﺪ ﺧﻮاه ﻣﺴﻠﻤﺎن ﺑﻮد ﯾﺎ ذﻣﯽ ﯾﺎ ﺣﺮﺑﯽ اﮔﺮﭼہ از راه ﮨﺰل ﮐﺮده ﺑﺎﺷﺪ آں ﮐﺎﻓﺮ اﺳﺖ‬
‫ ﺗﻮﺑہ او ﻣﻘﺒﻮل ﻧﯿﺴﺖ و اﺟﻤﺎع اﻣﺖ ﺑﺮ آﻧﺴﺖ ﮐہ ﺑﮯ ادﺑﯽ و اﺳﺘﺨﻔﺎف ﮨﺮﮐﺲ از اﻧﺒﯿﺎء‬،‫واﺟﺐ اﻟﻘﺘﻞ‬
.‫ﮐﻔﺮ اﺳﺖ ﺧﻮاه ﻓﺎﻋﻞ او ﺣﻼل داﻧﺴﺘہ ﻣﺮﺗﮑﺐ ﺷﻮد ﯾﺎ ﺣﺮام داﻧﺴﺘہ‬

Allama ‘Alam Al-Huda writes in Baḥr Al-Muḥīt: One who hurls abuses at sanctity of Prophet (‫ )ﷺ‬or blasphemes him
or disparages him in any religious matter or speaks ill of his physical appearance and that of his noble personality,
whether he is believer or, (a disbeliever) dhimmi or a harbi, whether he does it for sake of humor is condemnable
to death, and his repentance shall not be accepted. And it is on this we have consensus of Ummah. And this applies
to blasphemy of all the Prophets regardless whether the person doing it (claims to actually) consider it permissible or
impermissible.[33]

4.2.2 Ashraf ‘Ali Thanwi

In November 1931, Ashraf ‘Ali Thanwi was asked about a non-Muslim blasphemer who had sought forgiveness and
promised to be careful in future. This resulted in dispute among Muslim community whether his excuse should be
accepted. When asked for his opinion, Ashraf ‘Ali Thanwi replied that it was in fact case of peace-making (sulh), and since
Muslims were not in power ‘getting the blasphemer sentenced to death is impossible and at most fine or imprisonment
would be given’ through legal prosecution, therefore, in the ‘absence of Muslim rule’ Muslims could accept the culprit’s
apology and make peace.[34] This shows according to Thanwi the due punishment for blasphemer under Muslim rule is
death.

Likewise, in mid-1932 some Christian Missionaries in Rangoon published blasphemous material about the Holy Prophet
(‫)ﷺ‬. ‘Abdul Majid Daryabadi brought to the issue to Thanwi’s notice. Thanwi not only showed his resolve for writing to
‘ulama of Burma for taking necessary steps regarding this issue his reply further exhibits that like Daryabadi he too held
that death penalty was the due punishment for a blasphemer in line with opinion of the majority (jamhūr) as stated in
Ṣārim al-Maslūl and Al-Shifa.[35]

Mufti Kifāyat Ullah Dehlawī’s (d. 1372/1952) answer to a similar question suggests the same.[36]

4.2.3 Fatwas that never were; Reality of the alleged ‘systematic consensus’
Arafat Mazhar has gone further to claimthat a systematic/formally organised consensus was reached among the Hanafi
scholars of Subcontinent that a non-Muslim may not be killed for insulting the Prophet (‫)ﷺ‬. His evidence is a 19th century
text written by one Mansur ‘Ali titled, “Fatḥ al-Mubīn fī Kashf Makā’id Ghayr Muqallidīn ma’ ḍamīma Tanbīh al-
Wahhabiyīn” [The Elaborate Exposition on Revealing the Conspiracies of Non-Muqallids – along with the addendum
Warning to the Wahhabis.][37] It is an apologetic work written in wake of the criticism from the so-called Ahl Hadith
school of thought that certain opinions in the Hanafi fiqh are not based on Prophetic hadith. The issue of non-Muslim
blasphemer is also covered in the book. To refer to such a work in a discussion on preferred opinion in the Hanafi school
is either absolute naivety or rank ignorance.

As for the claim that the said works section about non-Muslim dhimmi blasphemer, where the author tries to show the
hadith basis of Abu Hanifa’s opinion that blasphemy itself does not lead to breaking of the covenant, was also approved of
by some 450 scholars, one can, at the most, take it with a pinch of salt. Without trying to check the validity of the claim
that it was vetted by 450 scholars it must be noted that those who approved this text only approved it for its elaboration
that Abu Hanifa’s view was also in reality based on his understanding of Qur’an and hadith. And every just and
reasonable Muslim agrees that the opinions of all the leading jurists were in essence based on Qur’an and hadith. It is,
however, altogether a different exercise to analyse different opinions and decide about their comparative strength.

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However, Arafat Mazhar paints the scenario in a completely different colour as if all the scholars who approved of the
book read every single page of it and confirmed it. But this suggestion is simply untenable. A cursory look at the
statements of endorsement given at the end of the book make it abundantly clears as to how far the approvals go. Their
might have been someone who read the book in full and accordingly stated, majority of the scholars categorically stated
that they did not see the book except sparingly.

Abdul Hay Al-Lucknawi gave his views after reading the parts of the book ‘here and there.’[38] Some scholars stated that
they ‘read some quotes here and there,’[39] another stated ‘the few pages I got chance to read were correct.’[40]Other
commentators gave their views after reading ‘selected parts’ of the book, some after reading ‘several’[41] or ‘assorted
parts’ of the book.[42] Rashid Ahmad Gangohi, one of the founders of the Deoband school, said he read ‘most parts’ of
the book[43] whereas Qadi Lahore only saw its ‘different sections.’[44] While a certain Mufti wrote that he only ‘had a
cursory view’ of the book, the imam of Badshahi Mosque went as far as explicitly stating that he ‘was unable to get know
this book in full.’[45]

After getting to know the details and the background of the issue at hand, the reality of Arafat’s consensus claim is
exposed. Where it is not even known whether the scholars actually read the passages of the book Fatḥ al-Mubīn related
to the subject at hand or not, Arafat Mazhar is making claims of ‘systematic ijma’ on the same.

5. Caution against confusing the details about a non-Muslim blasphemer with those about
an originally Muslim blasphemer
It is important not to confuse the details of the opinions of Hanafi jurists regarding a non-Muslim blasphemer with their
take about a Muslim ending up committing blasphemy.

5.1 Accepting the repentance

Many Hanafi scholars equated blasphemy with apostasy and treated a blasphemer like other apostates and, therefore,
opined for accepting his repentance. Ibn ‘Abidin treated the subject at length in his treatise on the subject. However, the
opinion on accepting the repentance of blasphemer-apostate cannot be extrapolated to cases involving a non-
Muslim/dhimmi blasphemer. Ibn ‘Abidin himself highlighted the difference between an originally Muslim and a non-Muslim
blasphemer in terms of accepting the repentance claim.[46]

5.2 Difference between man and woman

The blasphemer-apostate analogy implies difference in treatment towards man and woman. Whereas an apostate man
must be executed if he does not repent, an apostate woman is not be killed in any case, according to Hanafi jurists.
However, this again relates only to case of an originally Muslim person committing blasphemy. As for non-Muslims there
is no such distinction.[47] The statement of Abu Hanifa’s student Muhammad Al-Shaibani regarding a female Jewish
blasphemer quoted above signifies the same.

6. Hanafi jurists and capital punishment by the way of ta’zir

The foregoing assertion that a non-Muslim blasphemer may be given capital punishment by the way of ta’zir may raise a
question as to how is this possible when Hanafi scholars are known to have held that upper limit for ta’zir is thirty-nine
lashes. In reality, however, Hanafi scholars are very liberal in application of ta’zir and impose no general restrictions to it. It
is held that ta’zir can range from a frowning look to capital punishment. Hadith reports mentioning execution – in general
and not stoning to death – of those involved in bestiality or making incestuous marriages have been explained by Hanafi
scholars as ta’zirand manifestation of judico-political (siyasa al-shar’ia) proceedings.

In his treatise about Abu Hanifa’s position regarding one who makes incestuous marriage that he does not get
standard hadd for adultery (i.e. stoning to death or hundred lashes) but shall be killed Abdul Hayy Al-Lucknawi (d.
1304/1887) writes:

‫ ﻛﻴﻒ ﳚﻮز ﲪﻞ اﻟﻘﺘﻞ ﻋﻠﻰ اﻟﺴﻴﺎﺳﺔ ﻣﻊ أن اﳊﻨﻔﻴﺔ ﻣﺼﺮﺣﻮن ن اﻟﺘﻌﺰﻳﺮ دﻳﺐ دون‬:‫ﻓﺈن ﻗﺎل ﻗﺎﺋﻞ‬
‫ ﻓﺈن اﻟﺘﻌﺰﻳﺮ ﻗﺪ ﻳﻜﻮن ﻟﺼﻔﻊ ﻋﻠﻰ‬،‫ ﻫﺬا إذا ﻛﺎن اﻟﺘﻌﺰﻳﺮ ﻟﻀﺮب‬:‫اﳊﺪ أﻛﺜﺮﻩ ﺗﺴﻌﺔ وﺛﻼﺛﻮن ﺳﻮﻃﺎ؟ ﻗﻠﻨﺎ‬
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،‫ و ﻟﻨﻔﻲ ﻋﻦ اﻟﺒﻠﺪة‬،‫ و ﳊﺒﺲ‬،‫ وﺑﺸﺘﻢ ﻏﲑ اﻟﻘﺬف‬،‫ وﺑﻨﻈﺮ اﻟﻘﺎﺿﻲ ﻟﻪ ﺑﻮﺟﻪ ﻋﺒﻮس‬،‫ وﺑﻔﺮك اﻷذن‬،‫اﻟﻌﻨﻖ‬
‫ و ﻟﻀﺮب وﺑﻐﲑ ذﻟﻚ … ﻓﺎﳌﺮاد ﻣﻦ ﻗﻮﳍﻢ أن أﻛﺜﺮﻩ ﺗﺴﻌﺔ وﺛﻼﺛﻮن ﺳﻮﻃﺎ أﻧﻪ ﻻ ﻳﺰﻳﺪ ﻋﻠﻴﻪ إذا‬،‫و ﻟﻘﺘﻞ‬
‫اﺧﺘﺎر اﻟﻀﺮب‬
If it be asked: How can killing be done by the way of siyasa when Hanafis categorically state that disciplining by the
way of ta’zir is less than hadd i.e. it is maximum thirty-nine lashes? We say it applies only when ta’zir is given
by the way of hitting, because ta’zir may be given by slapping on the neck, twisting of the ear, frowning look by the
judge, verbal assault other than allegation, imprisonment, exiling from the land, killing, hitting, and in other ways …
Their statement that ta’zir is maximum thirty-nine lashes means it cannot be exceeded when hitting is chosen as
method of ta’zir.[48]

This clarification removes the apparent disparity between two positions of the Hanafi jurists.

7. Summary and Conclusion

When Hanafi jurists say that a non-Muslim blasphemer is not to be killed they only mean it in the sense of obligation i.e.
they say it is not obligatory to kill him/her; they do not say it is impermissible to kill such people.

According to popular Hanafi opinion blasphemy, like homicide and rape does not break the covenant of protection. In any
case, the covenant is not an impediment for capital punishment.

Moreover, the Hanafi scholars observe that if the covenant of protection has relevant stipulations blasphemy can in fact
nullify the covenant. In the contemporary arrangement it is the constitution that guarantees the basic rights, therefore,
punishment under any constitutionally valid law makes the whole point on protection covenant irrelevant to the discussion.

There is another opinion within the Hanafi school that blasphemy does in fact break the covenant of protection. Prominent
later scholars like Al-Nasafi, Ibn Al-Humam, Al-‘Ayni, and Shah Wali Ullah held this opinion.

In Subcontinent the predominantly Hanafi juristic tradition has seen blasphemers executed from Sultanate era through the
Mughal rule right up to the colonial occupation.

A Hanafi school opinion on the acceptance of repentance of an originally Muslim blasphemer rests on the blasphemer-
apostate analogy and, therefore, does not extend to non-Muslims. Likewise, the special dispensation for women does not
apply to non-Muslim women blasphemers as it also rests on the blasphemy-apostasy relation.

With regards to non-Muslims the substance of current blasphemy laws of Pakistan is not against any of the Hanafi
school’s recognized positions.

.
References & Notes:
[*] Significant part of this paper is based on Ahmad Shamil’s Urdu article; Qanun Tauhin-i-Risalat aur Mister Arafat
Mazhar ka Tarz-i-Tahqiq
.
[1] Pakistan Penal Code, Section 295

[2] Al-Jassās, Abu Bakr, Sharh Mukhtasar Al-Tahawi, (Beirut: Dar Al-Basha’ir Al-Islamiya, 2010) Vol.6, 142

[3] The reference is to the concept of al-siyasa al- shari’ya i.e. judico-political administration. Siyasa is neither ad hocnor
ultra vires to Shar’ia as ordinarily understood. Wael B. Hallaq alludes to its nature and significance in Islamic legal
tradition:

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The imperative of upholding justice as embodied in the Shar’ia thus had to be reconciled with the demands and
expediency of political rule, for it was widely recognized that the latter’s failure would be assured without the backing
of the former. Yet, it was equally and fully recognized that, without the sovereign’s juridico-political administration
(siyasa shar’iyya), the Shar’ia would also become a hollow system. (Shar’ia, Theory, Practice,
Transformations(New Delhi: Cambridge University Press, 2009) 198-199)

For more on this listen to Dr. Jonathan AC Brown’s lecture “Is there Justice Outside God’s Law?: Making Sense of the
Boundaries of the Sharīʿah in Islamic Civilization”

[4] Al-Sarakhsi, Muhammad bin Ahmad, Sharh Al-Siyar Al-Kabir, (Beirut: Dar Al-Kotob Al-Ilmiyah, 1997) Vol.4, 188; It may
be pointed out that the statement comes from the discussion related to ahl al-harb, i.e. non-Muslims who are neither
dhimmis nor in some peace deal with Muslims. However, the qualifying evidence for this statement is a narration related
to a woman from amongst the Jews of Madina who had accepted the authority of the Prophet (‫)ﷺ‬. Taking these two facts
into consideration the implication is that blasphemy breaks the covenant. cf. Al-Shami, Ibn ‘Abidin, Majmu’a Al-Rasa’il,
(Istanbul: Dar S’adat, 1325 AH) Vol.1, 355

[5] Recently, an audio tape of Mufti Taqi ‘Usmani has attracted attention wherein he points out that according to Hanafi
jurists a non-Muslim blasphemer is not to be killed rather he is to be punished in some other way. In the light of what
follows it is evident that he also meant to describe only what is obligatory. His statement cannot be construed to suggest
that it is impermissible to kill a non-Muslim blasphemer.

[6] Al-Jassās, Abu Bakr, Sharh Mukhtasar Al-Tahawi, Vol.6, 142

[7] Al-Shami, Ibn ‘Abidin “Tanbīh al Wulāt wal Hukkām ‘ala Ahkām Shātim e Khair il Anām” included in Majmu’a Al-
Rasa’il, (Istanbul: Dar S’adat, 1325 AH) Vol.1, 356 and 353; see also Al-Shami, Al-Radd al-Muhtar, (Beirut: Dar Al-Fekr,
1992) Vol.4, 215; Al-Saharanfuri, Khalil Ahmad, Bazl Al-Majhud fi hal Abi Dawud, (Beirut: Dar Al-Kotob Al-Ilmiyah, n.d.)
Vol.17, 301; ‘Uthmani, Zafar Ahmad, ‘Ila’ Al-Sunan, (Karachi: Idara Al-Qur’an wa Al-‘Ulum Al-Islamiya, 1415 AH) Vol.12,
547

[8] Al-Qaduri, Abu al-Hussain, Al-Mukhtasar, (Beirut: Dar Al-Kotob Al-Ilmiyah, 1997) 237

[9] Al-Shami, Ibn ‘Abidin, Radd al-Muhtar, (Beirut: Dar al-Fekr, 1992) Vol.4, 215

[10] Al-Shami, Ibn ‘Abidin, Majmu’a Al-Rasa’il, Vol.1, 353

[11] ‘Uthmani, Zafar Ahmad, ‘Ila’ al-Sunan, Vol.18, 257;

[12] ibid., Vol.12, 540

[13] Al-Tahawi, Mukhtasar Ikhtilaf Al-‘Ulama, (Beirut: Dar Al-Basha’ir Al-Islamiya, 1417 AH) Vol.5, 505

[14] ibid., Vol.5, 506; Also see, Al-Khazraji, Jamal Al-Din, Al-Lubab fi Jam’ bain Al-Sunna wa Al-Kitab, (Damascus: Dar Al-
Qalam, 1994) Vol.2, 766

[15] Al-Shami Ibn ‘Abidin, Al-Radd Al-Muhtar, Vol.4, 214; also see ‘Uthmani, Zafar Ahmad, ‘Ila’ al-Sunan, Vol.12, 548, 555

[16] Al-Shami, Ibn ‘Abidin, Majmu’a Al-Rasa’il, Vol.1, 354

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[17] Al-Jassās, Abu Bakr, Ahkam al-Qur’an (Beirut: Dar Ihya al-Turath al-‘Arabi, 1405) Vol.4, 275

[18] Al-Nasafi, Abu Al-Barkāt, Madarik al-Tanzil wa Haqa’iq Al-Ta’wil, (Beirut: Dar Al-Kalim Al-Tayyib, 1998) Vol.1, 667

[19] Al-Muzhiri, Al-Hussain bin Mahmud, Al-Mafatih fi Sharh Al-Masabih, (Kuwait: Dar Al-Nawadir, 2012) Vol.4, 241

[20] Al-Dehlawi, Wali Ullah, Hujjat Allah Al-Balighah, (Beirut: Dar Al-Jeel, 2005) Vol.2, 256

[21] Malihabadi, Amir ‘Ali, Mawahib Al-Rahman, (Lahore: Maktaba Rashidiya, 1977) Vol.3, 63

[22] Madani, ‘Ashiq Ilahi, Anwar Al-Bayan – Illuminating Discourses on the Noble Qur’an, Translated by Afzal Hussain
Elias (Karachi: Darul Ishaat, 2005) Vol.2, 426

[23] Dehlawi, Ahmad Sa’id, Kashaf Al-Rahman, (Karachi: Maktaba Rashidiya, n.d.) 300

[24] Thanwi, Ashraf ‘Ali, Bawadir al-Nawadir, (Lahore: Idara Islamiat, 1985) 108-109; Apparently, here Thanwi referred to
what Ibn ‘Abidin al-Shami has quoted from some Shafi’i scholars;

‫ ن ﻗﺎل إﻧﻪ ﻟﻴﺲ ﺑﺮﺳﻮل أو ﻗﺘﻞ اﻟﻴﻬﻮد ﺑﻐﲑ ﺣﻖ أو ﻧﺴﺒﻪ إﱃ اﻟﻜﺬب‬،‫إذا ذﻛﺮﻩ ﺑﺴﻮء ﻳﻌﺘﻘﺪﻩ وﻳﺘﺪﻳﻦ ﺑﻪ‬
‫ﻓﻌﻨﺪ ﺑﻌﺾ اﻷﺋﻤﺔ ﻻ ﻳﻨﺘﻘﺾ ﻋﻬﺪﻩ أﻣﺎ إذا ذﻛﺮﻩ ﲟﺎ ﻻ ﻳﻌﺘﻘﺪﻩ وﻻ ﻳﺘﺪﻳﻦ ﺑﻪ ﻛﻤﺎ ﻟﻮ ﻧﺴﺒﻪ إﱃ اﻟﺰ أو‬
.‫ﻃﻌﻦ ﰲ ﻧﺴﺒﻪ ﻳﻨﺘﻘﺾ‬
If a non-Muslim mention the Prophet (‫ )ﷺ‬in negative tone saying what is part of his religion like saying that he was
not a Prophet or that he killed the Jews unjustly or that he made a false claim to Prophethood then to some of the
scholars this does not break the covenant. As to mentioning him in a way that is not part of his religion or beliefs like
attributing to him illicit sex or attacking his lineage then it does break the covenant. (Al-Shami, Ibn ‘Abidin, Radd al-
Muhtar, Vol.4, 214)

Bawadir al-Nawadir was published only a week before Thanwi’s death. Therefore, it is safe to conclude that his opinion
quoted here reflects his final understanding of the issue, and overrides any suggestion to the contrary from his earlier
works.

[25] Shafi’, Muhammad, Ma’arif al-Qur’an, (Karachi: MaktaDarulUlum, n.d.) Vol.4, 321

[26] ‘Usmani, Muhammad Taqi, Takmila Fath al-Mulhim, (Beirut: Dar Ihya’ al-Turath, 2006) Vol.3, 178

[27] For details see, Bhatti, Muhammad Ishaq, Bar-i-Saghir mein ‘Ilm Fiqh, (Lahore: Kitab Sarai, 2009)

[28] Sharma, Sri Ram, The Religious Policy of the Mughal Emperors, (Bombay: Asia Publishing House, 1972) 6, 16

[29] ibid., 21

[30] ibid., 31

[31] ibid., 117; see also, Sangar, Satya Prakash, Crime and Punishment in Mughal India (Delhi: Sterling Publishers, 1967)
171

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[32] Latif, Syed Muhammad, Tarikh-i-Lahore, (Lahore: Takhliqat, n.d.) 324; also see, Najjar, Bakshish Singh, Punjab
Under the Later Mughals, (Lahore: Book Traders, 1972) 279 and Bazm-i-Urdu, Lahore Guide, (Lahore: Rifah Aam
Press, 1909) 61-62

[33] Panipatti, Thana Ullah, Ma La Budda Minhu, (Kanpur: Matba’ Majidi, 1327AH) , the statement actually comes from
Panipatti’s translation of chapter “Kalimat Kufr” of an earlier work titled Fatawa Burhani which he appended to his own
brief on other general topics of fiqh.

[34] Thanwi, Ashraf ‘Ali, Imdad al-Fatawa, (Karachi: Makataba Darul ‘Ulum, 2010) Vol. 4, 166-167

[35] Daryabadi, ‘Abdul Majid, Hakim ul Ummat: Nuqush wa Ta’surat, (Lahore: Maktaba Madina, n.d.) 213-215, Maqala 44,

[36] Dehlawi, Kifayat Ullah, Kifayat al-Mufti, (Karachi: Darul Ishat, 2001) Vol.1, 94-95

[37] ‘Ali, Mansur, Fatḥ al-Mubīn fī Kashf Makā’id Ghayr Muqallidīn ma’ ḍamīma Tanbīh al-Wahhabiyīn, (Farangi Mahal: Dar
Al-‘Ilm wal ‘Aml, n.d.)

[38] ibid., 467

[39] ibid., 468, 470

[40] ibid., 468

[41] ibid., 476

[42] ibid., 488, 494

[43] ibid., 487

[44] ibid., 501

[45] ibid., 502

[46] Al-Shami, Ibn ‘Abidin, Majmu’a Al-Rasa’il, Vol.1, 355

[47] ibid.

[48] Al-Lucknawi, ‘Abdul Hayy, Al-Qawl Al-Jazim fi Saqut Al-Hadd bi Nikah Al-Maharim, (Lucknow: Matba’ Yusufi, n.d.) 35-
36

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