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Home Critical Analysis/Archives ERROR AT THE APEX
On The Way To Supreme Court
Mujeeb-ur-Rahman & Others
The Federation Of Pakistan
The Federal Shariat Court lost no time in taking up the case and took up the case during the vacation. At the time Justice Aftab Hussain, who was the author of the judgment in Abdur Rahman Mubashir case, was the Chief justice of Federal Shariat Court. A full court comprising of five judges including two Ulema heard the case for more than 14 days at a stretch. There were lengthy arguments on both sides. The court dismissed the petition by a short order which reads:
“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]
While the draft of the detailed judgment was being circulated among the judges the Chief Justice of Federal Shariat Court was transferred to work as Advisor to the Ministry and on his refusal to accept the position stood retired by virtue of Article 203-C(b) of the Constitution as amended by Gen. Zia-ul-Haq.
The detailed judgment was thus signed by four judges and made no mention about the fate of the fifth Judge.
The judgment attracted the following comment from International Commission of Jurists:
“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]
The Chief Justice who was unceremoniously sent home during the period when he was to hand in the detailed judgment in the case, subsequently went on record and stated that Zia-ul-Haq had tried to have his judgment changed.
Justice Aftab stated that after a tour of Sudan he was staying in Saudi Arabia for Umra where he received the information that he had been relieved from the Federal Shariat Court and had been appointed as an Advisor to the Ministry of Religious Affairs. On his return to Pakistan he declined to accept this position.
At the hearing before the Federal Shariat Court the present author argued the case of the petitioners and contended that the function of Federal Shariat Court was to remove repugnancy of any law with the Quran and the Sunnah of the Holy Prophet (P.B.U.H.). The court accepted the proposition of the petitioner and said:
“There is hardly any cavil with this argument of Mr. Mujeeb-ur-Rehman.” [3]
It was also argued that what the Qur’an and the Sunnah has declared as lawful could not be made unlawful by the State. The present author laid stress on the necessity of ignoring Taqleed and reaching directly the text of Qur’an and Sunnah to discover a rule of law. The court accepted this position and reassuring the petitioners observed:
“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]
On the question of freedom of belief and right to practice one’s religion, the present author formulated some questions to direct the attention of the court to the basic issue involved. In the language of the court these questions were:
Does Islam entitle and allow a non-Muslim to declare the unity of Allah?
Does Islam entitle a non-Muslim to acknowledge the Holy Prophet (P.B.U.H.) as truthful in his claim?
Does Islam entitle a non-Muslim to acknowledge the Qur’an as furnishing a good Nizam-e-Hayat i.e. way of life and to treat it as worthy of obedience?
Is this permissible or not for a non-Muslim to act upon the Injunctions of the Holy Qur’an if he so likes?
If the answer be in the negative where is the Injunction in the Qur’an and the Sunnah in support of this negation?
What course of action does the Qur’an propose or provide for a person who is not considered Muslim nor has any right to be so considered by believers, in the truthfulness of Qur’an, in the Prophet-hood of Muhammad Rasoolullah (P.B.U.H.) and the oneness of Allah. [5]
Dealing with these questions, the court observed:
“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 court was clear and categorical in its finding that:
“The Muslim Sharia affords full protection to the practice of religion by the non-Muslims as well as to its profession.” [7]
And further that
“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]
Having accepted all these arguments the court observed that:
“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]
About the epithets the court observed:
“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]
Dealing with the ban on Azan the present author mainly relied upon verses 5:2 and 41:33 of the Holy Our’an. In the verse 5:2 “best of utterance” refers to Azan, which cannot be made punishable. It was further argued that if a religious practice is common between Muslim and non-Muslim it cannot be denied to non-Muslim and that according to Qur’anic mandate Muslims are required to cooperate with non Muslims in such matters. It was also argued on the authority of Qur’anic text that sacred rites are not to be desecrated or denied just because non-Muslims wish to carry them out. Azan was such a sacred rite. It was also argued, again on the authority of Quranic text, that Muslims should cooperate with non Muslims on the basis of a common denominator.
Confronted with the thrust of the argument based on the unimpeachable Qur’anic text at one stage the Counsel for the Federation found no escape but to argue that the particular portion of the verse of the Qur’an stood repealed. The court noted these arguments and referring to Verse 5:2 the Court observed:
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]
The court did not record any finding as to which of the two contending views prevailed with the court. Nor did it record any reason either for accepting or for rejecting one view or the other and felt content merely with the recording of the two views. The inference is obvious. The petition was nevertheless dismissed and it was held that:
“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]
The present author based his argument about the right to preach and propagate on the Qur’anic text and cited a large number of classical and modern commentaries of Qur’an to support his contention. Referring to the present author’s contention the court observed:
“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]
The court further observed:
“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]
The court finally held:
“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.”
An appeal was filed from this judgment before the Shariat Appellant Bench of the Supreme Court which was taken up in the year 1990. In the peculiar circumstances [*] the appellants felt constrained to withdraw the appeal. The appeals were allowed to be withdrawn by the Supreme Court. The learned Chief Justice observed:
“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]
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