“1. The allegation in the two petitions as elaborated at the Bar that the impugned Ordinance violates the freedom of faith of the Qadianis of either persuasion and restrains them from practicing their religion or affects their right of worship is not correct. The said Ordinance does not interfere with the right of the petitioners or other Qadianis to profess and practice their religion in accordance with the provisions of the Constitution and the Injunctions of the Holy Qur’an and the Sunnah. They are at liberty to profess Qadianism or Ahmadism as their religion and to profess their faith in Mirza Ghulam Ahmad of Qadian as a Prophet or the Promised Messiah or the Promised Mahdi. They are also at liberty to practice their religion and worship inter alia in their places of worship according to the tenets of their religion.

2. The impugned Ordinance is consequential to the Constitutional Amendment of 1974, by which the Qadianis, whether belonging to the Lahore Group or others were declared non-Muslims in accordance with the dictates of Islamic Sharia. In implementation of the Constitutional fiat, which was disregarded with impunity by the Qadianis, they have been restrained by the impugned Ordinance from directly or indirectly calling or posing themselves as Muslims or calling their faith as Islam. To call their places of worship by the name of Masjid (Mosque) and to call people to prayers by calling Azan which (name for the place of worship and method for calling people to prayers) are exclusive for the Muslims and distinguish Muslims from non-Muslims, amounts to posing as Muslims. By the said name and the said call to prayers the unwary among the Muslims are likely to be deceived and to offer their prayers behind a non-Muslim Imam in a non-Muslim place of worship. The prohibition against calling their places of worship as Masjid or calling Azan for prayer is thus consequential to the declaration of the Ahmadis or Qadianis as non-Muslims or prohibition against posing them as Muslims. The Qadianis can call their places of worship by any other name and call the adherents of their religion to prayer by use of any other method. This does not amount to interference with the right to profess or practice their religion.” ¹

“In Mujeeb-ur-Rehman vs. Federation of Pakistan Ordinance XX (which prohibits Ahmadis from calling themselves Muslims) was challenged before the Federal Shariat Court as being repugnant to the Qur’an and Sunnah. The case was heard by the judges and a ‘short order’ announcing the determination by the five judges was made in August 1984, with reasons to be given at a later date. The Chief Justice who presided at the hearing was Mr. Aftab Hussain. By the amendment to Article 203-C(4B) with effect from 2 March 1985, the President was empowered to assign a judge to any other office or perform such other functions as the President deems fit. As described earlier, Mr. Aftab Hussain was asked to accept appointment as Advisor to the Ministry of Religious Affairs. He declined, and was deemed to have retired. The judgment of Rehman’s case was later delivered and reported, by four judges only. There is no reference to the fact that five judges heard the case and made a preliminary determination. ” ²

“There is hardly any cavil with this argument of Mr. Mujeeb-ur-Rehman.” ³

“The Court also held in the case of Muhammad Riaz etc. Vs. Federal Government etc. (1) that in public law it was not bound by the doctrine of Taqleed. This is sufficient to assuage the apprehensions of Mr. Mujeeb-ur-Rehman.” ⁴

“The first four questions posed by Mr. Mujeeb-ur-Rahman have to be answered in the affirmative. There is no bar — Constitutional, legal or Sharai against the right of a non-Muslim to declare the unity of Allah, to acknowledge the Holy Prophet (P.B.U.H.) as truthful in his claim, to acknowledge the Qur’an as furnishing a good way of life and to act upon its Injunctions. The 5th question does not arise in view of the affirmative answer of the 4th question. A clear answer to the 6th question is that such a non-Muslim is to be dealt with like other minorities, subject to the conditions imposed by the Qur’an and the Sunnah which shall be considered at the appropriate place.” ⁶

“The Muslim Sharia affords full protection to the practice of religion by the non-Muslims as well as to its profession.” ⁷

“Islam teaches absolute tolerance in matters of religion and leaves it to the conscience of a man to accept the religion of Islam. No compulsion in this respect is allowed in Islam.” ⁸

“All these arguments are however hardly relevant since the impugned law does not force the Qadianis to change their belief and to be converted to Islam.” ⁹

“The provisions banning the use of these epithets and expressions is ‘in implementation of the Constitutional provision and a consequence of the reiteration in this Ordinance of the principle that Qadianis cannot call themselves or pose to be Muslims in any manner directly or indirectly.” ¹⁰

The question is whether Shia’ar (signs) of Allah referred to therein were the characteristics or signs of the polytheists or they were of Muslims. Mujeeb-ur-Rehman quoted authorities from the opinion of the commentators for supporting the view that the characteristics or Shaa’ir referred to in this verse were of the polytheists but Mr. Riazul Hasan Gilani relied upon the other set of opinions. The opinion of Pir Muhammad Karam Shah, now a Judge of the Supreme Court Shariat Bench in his well-known commentary Ziaul Qur’an favours the opinion of Mr. Mujeeb-ur-Rahman.” ¹¹

“There are some views that this verse has been abrogated.” ¹²

“In view of verse 9:28 and the rules emanating from it non-Muslims can be ‘stopped from pursuing a Shia'ar which is common among Muslim and non-Muslims.” and further observed that “the Azan by a non-Muslim is not covered by the expression ‘best of utterance’ (حسن قول) and if “a person can be res-trained from that Shia'ar he can also be punished for violation of the restrained order.” ¹³

“It is not necessary to reproduce them as the meanings of these verses are clear that the Muslims can ask the Polytheists and non-Muslims to give argument in favour of their strong belief.” ¹⁴

“But Mr. Mujeeb-ur-Rahman’s argument is that this gives the non-Muslims a right to preach his religion to convert them. We do not agree with this even as a remote possibility.” ¹⁵

“All these verses relate to the principles of Tableegh or propagation of Islam and the manner and method to be used for such propagation. The principle is that when talking to a non-Muslim for the purpose of propagating Islam one should be gentle and polite and should not only demonstrate logically and rationally all good points in Islam but also let the non-Muslim place his view about the good points in his own religion before him. It is necessary that a view point of the non-Muslim about his own religion should be plainly put forward so as to enable Muslims to refute them and to demonstrate the superiority of Islam over the conceptual philosophy of the other religion. In fact the Qur’an does not only allow such free discourse among two persons but asks the Muslims to challenge the non-Muslim to bring forth the arguments in favour of his belief as is clear from the word (ھاتوابرھانکم) (bring your arguments), which is suggestive of the inability of the non-Muslims to give any such argument.” ¹⁶

“These verses and commentaries also are not sufficient for holding in favour of the fundamental rights of non-Muslims to propagate and preach their religion among Muslims. Despite this it is for the Islamic State to allow the non-Muslims to preach their religion as has been done in Article 20 of the Constitution but this can be allowed if the non-Muslims preach ‘as non-Muslims and not by passing off as Muslims. It is for the legislature to lay down other conditions also.” ¹⁷

“As a result of the declaration which was the result of a unanimous demand of the Muslims it was not possible for the Qadianis to call themselves Muslims or to propagate Islam of their concept as true Islam but they showed the least respect for the Constitutional Amendment and continued as before to call their faith as Islam.” ¹⁸

In short, the court accepted the contention that the case was to be decided on the basis of Qur’an and Sunnah, and not on the basis of taqleed, the court had also no cavil with the principles of interpretation. The court also accepted the freedom of conscience and religion granted by Islam. The four out of six questions posed by the petitioners were also answered in the affirmative. On one point there was no escape but to resort to the enormity of declaring a verse of Qur’an to have been abrogated and yet the court dismissed the application, because the Constitutional amendment was “the result of unanimous demand of Muslims” and “it was not possible for the Qadianis to call themselves Muslims or to propagate Islam of their concept as true Islam.”

“Coming to the appeals before us, as indicated already, the appellants challenged the impugned law before the Federal Shariat Court on the touch-stone of ‘Islamic Injunctions’. It has the jurisdiction under article 203-D of the Constitution to declare it as repugnant to them, as distinguished from jurisdiction by the other superior courts to annul a law on the ground of repugnancy to a fundamental right, as guaranteed under the Constitution.” (emphasis provided). The matter was thus left to be resolved on the touch-stone of the Constitutional Law.” ¹⁹