[mbaueee]

The law of 295-C was passed as a Hudd Offense in 1991 on the basis that all four schools of thoughts, specially the Hanafi Law which is recognized by Supreme Court as the dominant maslak, declares it as such for both Muslims and Non Muslims.

Over the past 8 months I have seen Ulamas in my countries from the Hanafi Maslak lie through their teeth number of times that this law is in accordance with the dominant Hanafi Position.

I want to share some of my research with the brothers on the forum, bit by bit. discussing the authenticity of each bit with all of you. Mind you all the dar ul iftas in lahore of deoband have confirmed this research but are not willing to go public with this. Surprisingly Jamia Binoria in Karachi have uploaded a fatwa which totally contradicts 295-C but the head of the Madrassa has been one of the staunchest supporters of it

First of all, the Hanafi Position on Sabb-e-Rasool

The Hanafi Position in fact is quite contrary to 295-C. It believes punishment to non muslims is on discretion of the judge, it is not a hudd offense. Only a habitual offender MAY be given a capital punishment as a tazeeri punishment. And for Muslims it is apostasy which will become a hudd only if the muslim does not seek pardon within 3 days.

Elaboration:

The following Hanafi Jurists allowed for repentance/pardon for Muslims as well as Non Muslims offenders of Blasphemy.
• Imam Abu Hanifa
• Imam Abu Yusuf
• Imam Tahawi
• Imam Thauri
• Allama Kasani
• Allama Shami/Imam Ibn Abidin
• Allama Zahid-Alkasuri
• Maulana Abdul Haye Farangi
• Malana Ahmad Raza Khan Barelvi
• Malana Rasheed Ahmad
• Malana Muhammad Yaqub
• Malana Muhammad Mansoor Ali Murad
• 450 Scholars who validated the fatwa in 19th century as explained before
• Maulana Mufti Muhammad Zahid, Sheikh ul Hadith Jamia Islami Imadia Faisalabad
• Mufti Muhammad Isa Khan Gormani a Deobandi scholar (Monthly ‘al-Shariah’, March 2011)



Imam Abu Hanifa
Imam Abu Hanifa said “non muslim will not be killed on the basis of shatam-e-rasool. The crime of shirk that he is already committing, that in itself is a much bigger crime.
This was narrated by Imam Khatabi in his book Ma`alim al-sanan `ala sunan Abi Dawud

Imam Abu Hanifa believes that a non muslim Shatam-e-Rasool (the one who commits blasphemy against Prophet Muhammad PBUH) will not be killed in punishment. ‘
Imam Abu hanifa and his students believe that Sabb o Shatam (Blasphemy against Prophet Muhammad PBUH) does not result in breaking of the (dhimmi) contract and will not result in his death. However public blasphemy will result in a punishment like other prohibited acts (like reading their own books loudly). Imam Al-Tahawi narrated the same opinion from Sufian Thauri. However, it is permissible to extend this punishment to death as a punishment if the subject repeats the offense repeatedly (habitual offense) and the hakim-e-wakt feels it is necessary to give the death penalty.”

Both of the above from Assarim Maslool – by Imam Ibn e Taymiyyah

“Imam Abu Hanifa, Imam Thauri and the people of Kufa are of the opinion that dhimmi (non muslim) who commits blasphemy against the Prophet Muhammad PBUH will not be killed. The shirk that he is already committing is a much bigger crime (and we don’t kill him for that). However they can be punished in a tazeeri (a punishment that is not a hudd) manner in order to teach him better manners” –
Allama Qazi Ayyaz Malik in Ash-Shifa Batareef Huquq Al-Mustafa

Imam Abu Yusuf

Abu Yusuf writes in Kitab al-Kharaj “If a Muslim abuses the Prophet (sws), calls him a liar or ascribes blemishes to him he becomes kāfir of the Almighty Allah. His wife is permanently separated from him. If he repents [he will be spared]. Otherwise he will be executed. The same is the ruling regarding such a woman. However, Abū Ḥanīfa [differs on this issue and] says that woman will not be killed. Rather she will be forced to reenter Islam.”
Note: This book, Kitab al-Kharaj was written as an extended letter to Haroon Al-Rashid and therefore is written as a consultation to the State

Imam Thauri and Imam Tahawi

Imam Nawawi in his book ‘al-Majmu’ sharh al-Muhadhdha’ writes that
“Imam Al-Tahawi wrote in favor of his teachers’ opinion on the issue of sabb-e-rasool using the Hadith narrated by Syedna Anas (RA) for istidlal. Prophet Muhammad PBUH did not kill those who said Assam o Alaikum (instead of Assalam o Alaikum as a way of abuse). Imam Al-Tahawi further states that if a Muslim commits such blasphemy, he will be commiting an act of apostacy. However, non muslims are already committing greater crime in the form of their kufr. This is the reason Prophet Muhammad PBUH did not kill them.”

Imam Tahawi wrote in Muktasar Al-Tahawi also quited in Rasael Ibn Abidin by Imam Ibn Abidin
‘Those non muslims with whom there is a contract, if they commit blasphemy against the Prophet Muhammad PBUH, it does not result in the breaking of their contract. They will be asked to not repeat this offense again. If they do it again, then they will be punished but not killed”

Imam Ibn Abidin
Imam Ibn Abidin is one of the most important authorities in Hanafi Madhab after the first generation of scholars. His book radd-ul-mukhtar is seen as an authority in issuing fatwas and investigating the popular opinions in hanafi madhab over various issues. He has discussed the matter of sabb-e-rasool in great detail in this book as well as in Rasael-Ibn-Abidin.

Imam Ibn Abidin explains that the first Hanafi Scholar who claimed that the repentance of one who commits sabb-e-rasool will not be accepted was Bazazi in the 15th century AD. There is not a single Hanafi Scholar before him that has said something along the same line. Imam Ibn Abidin further explains that even Bazazi seems to have mis-interpreted the legal opinions of other scholars.
In Majmua-Rasael-Ibn Abidin, explains that a non muslim can only be killed in Hanafi Madhab if the subject is a habitual offender and in a rebellious manner persistently tries to set himself against the Muslims as a sarkhish.
Al-Haskafi’s stance in Durr al-Mukhtar was refuted and elaborated on by Ibn Abidin. Ibn Abidin was a great admirer of Al-Haskafi in general but refutes the idea that the blasphemy of Prophet Muhammad PBUH in itself demands a punishment as Prophet’s own right. For muslims, he believed, this was a matter of apostasy. He believed that Prophet Muhammad PBUH forgave a number of people who had abused and injured him before accepting Islam like Abu Sufyan and others. This meant that the criminal will not be punished as a result of carrying out the right of Prophet Muhammad PBUH.
Ibn Abidin explains that an opinion in Al-Bazzaziya and Al-Shifa has been misunderstood. He claimed that blasphemer can only be killed in the case where he refuses to repent.
For Muslims, Imam Ibn Abidin explains that the Hanafi Opinion is that he is to be given a chance to repent as in the case of apostacy. (Rasael Ibn Abidin)

Consensus/Ijma of 450 Hanafi Scholars in the 19th Century
Maulana Mansoor Ali wrote a series of legal opinions clarifying the Hanafi Positions in the midst of criticism from Wahabi circles. These opinions were validated by 450 Hanafi Scholars and is one of the most beautiful examples of Ijma within a Legal Madhab. He writes in this book Fatah-al-Mubeen and I paraphrase that the phrase ‘Kanaat Tashtimu’, where in the past continuous grammar tense has been used, is a proof that only habitual offenders in blasphemy may be killed on the orders of the judge. One time offenders are not to be killed as per the authentic Hanafi Position.


Note: I have a lot of source material scanned. If anyone can let me know how that can be uploaded over here?