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SUPREME COURT JUDGMENT - MAJORITY JUDGMENT - JUSTICE SALEEM AKHTAR'S COMMENTS AND FINAL ORDER OF THE COURT

JUSTICE SALEEM AKHTAR'S COMMENTS

SALEEM AKHTAR, J: - The appellants have claimed protection of their right under Articles 19, 20 and 25 on the basis of being a minority as declared by the Constitution. They admit to be a minority in terms of the Constitution as distinguished from the Muslims. Their claim being that they should be treated equally under law like other minorities enjoying freedom of speech and expression and they should be allowed to profess, practise and propagate their religion. The first claim is covered by Articles 19 and 25 while the second one is based on Article 20.

2. Law permits reasonable classification and distinction in the same class of persons, but it should be founded on reasonable distinction and reasonable basis. Reference can be made to Government of Baluchistan V Azizullah Memon (PLD 1993 S.C. 341). The Quadianis/Ahmadis on the basis of their faith and religion as elucidated by my learned brother Abdul Qadeer Chaudhry J vis-a-vis Muslims stand at a different pedestal as compared to other minorities. Therefore, considering these facts and in order to maintain public order it was felt necessary to classify them differently and promulgate the impugned law to meet the situation. The classification being proper and reasonable, the impugned law does not offend Articles 19 and 25.

3. As regards applicability of Article 2A, I reiterate the view expressed in Hakim Khan's case (PLD 1992 S.C. 595).

4. The freedom of religion is guaranteed by Article 20 which includes the right to profess, practise and propagate. The over-riding limitation as provided by Article 20 is the law, public order and morality. The law cannot over-ride Article 20 but has to protect the freedom of religion without transgressing bounds of morality and public order. Propagation of religion by the appellants who as distinguished from other minorities having different background and history, may be restricted to maintain public order and morality. Therefore, their right to profess, practise, and propagate their religion cannot be restricted provided they profess, propagate and practise without adopting Sharia-e-Islam in a manner which doesnot offend the feelings of the Muslims.

5. I agree with my learned Shafiur Rahman J that clauses (a), (b) and (e) of section 298-C PPC do not offend Articles 19, 20 and 260(3).

6. As regards Section 298-C clauses (c) and (d), in my view they will not be violative of Article 20 provided they are acted upon by the Quadianis/Ahmadis without adopting any of the Sharia-e-Islam.

7. Consequently I would dismiss C.A. No.149/1989 and C.A. No.150/1989 and remand C.A. No.31-K/1988, 32-K/1988, 33-K/1988, 34-K/1988 and 35-K/1988 for re-trial.

In C.A. No.412/1992 in view of section 144(6) CrPC the District/Resident Magistrate had no jurisdiction to enforce the order under section 144 Cr.P.C for an unlimited period. It is therefore, partly allowed to that extent.

ORDER OF THE COURT

The Court by majority holds that all appeals preferred are liable to be dismissed and are hereby dismissed.

The convicts in Criminal Appeals 31-K to 35-K of 1989 who are on bail shall be taken into custody forthwith and they are required to undergo the remainder of the punishment awarded by the Court.

Sultan Sial