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Home Critical Analysis/Archives ERROR AT THE APEX
On The Way To Supreme Court
Challenge on Constitutional Grounds
Zaheer ud Din and Others
The State
The text of the Ordinance was bad enough but its application was worse. A large number of prosecutions of Ahmadis were started under garb of this Ordinance—section 298(C). These criminal cases came up before courts and a good number of cases resulted in convictions and appeals were brought against the conviction orders.
In the province of Baluchistan, five Ahmadis were charged under section 298(C) for wearing badges of Kalima Tayyeba and were convicted and sentenced to terms of imprisonment. Their appeals before the Sessions failed and a Revision Petition was filed in the High Court of Baluchistan. In the Revision Petition amongst other things it was contended that Kalima Tayyeba has not been expressly mentioned in section 298-C and therefore conviction for displaying a badge of Kalima Tayyeba was illegal. The Constitutional vires of Section 298-C was also challenged on the ground that it violated the guarantee of religious freedom. It was also contended that on the principle of strict construction of criminal statutes the offence under 298-C could not be extended to what is not specifically mentioned in the section. It was further contended that in the background of Abdul Rahman Mubashir it must be assumed that the omission to mention Kalima Tayyeba was deliberate and purposeful. The legislature was fully aware that Kalima Tayyeba is cardinal to Ahmadiyya belief. It was also contended that the word ‘pose’ in Section 298-C was too vague and overbroad and was therefore void. Alternately it was argued that the word ‘pose’ must be assigned a definite and restricted meaning. It was argued therefore that article ‘or’ used several times in section 298-C had been used mostly in explanatory, illustrative and stipulative sense. Law Lexicons were cited in support of this contention. An attempt was thus made to restrict the application of section 298-C.
Professor Antonio R. Gultaire who was visiting Quetta about the same time when the case was being argued in Baluchistan High Court recorded his impressions in his book ‘Conscience and Coercion’ It may be useful to reproduce a small para from the book.
“It is under the foregoing Section 298(c) that most of the Ahmadis arrested have been charged and imprisoned. On the surface it is so incredibly unreasonable and malevolent that I analyzed it at length to see if it could be interpreted in a milder light so as to soften some of its deleterious impact on the Ahmadis (and. implicitly, on one’s judgment of the present-day Pakistani justice system). I discovered, subsequently, that Mujeeb-ur-Rahman. one of the principal advocates for the embattled Ahmadis had in fact submitted an appeal to the High Court at Quetta in which he argued (in far more adequate legal fashion) some of the same points. Though the arguments would not have abrogated this pernicious anti-Ahmadi legislation, they would have served to reduce the number of specific charges under which Ahmadis could be prosecuted.” [4]
Dealing with the submissions of the present author, the court formulated the moot question “Whether by wearing a badge of Kalima Tayyeba the petitioners who were Qadianis have committed an offence within the meaning of section 298(C) PPC.” The court examined the argument based on interpretation of statutes and noted the case law cited at the bar and the arguments advanced at the hearing. Interpreting Ordinance XX in the historical background and with reference to the pre amble the court observed:
“It starts with the preamble “Whereas it is expedient to amend the law to prohibit the Qadiani Group, Lahori Group and Ahmadis from indulging in anti-Islamic activities.” and held that “since the Qadianis continued in indulging in anti-Islamic activities, the Ordinance was primarily meant to curb the activities of Qadianis from indulging in anti-Islamic activities.” [5]
The court further observed:
“The aforesaid amendment provided two sections 298-B and 298-C in Pakistan Penal Code. Section 298-B, PPC is admittedly particular in its contents and certain actions have been forbidden under law, which have already been mentioned in clause (1), sub-clauses (a) to (d) of section 298-B and sub-clause (2) provides punishment for the same. But the legislature further felt it necessary to add section 298-C which covers the general behavior and conduct of Qadianis towards Muslims.” [6]
Thus the court held that wearing badges of Kalima Tayyeba amounted to posing as Muslims and was punishable under the law. The convictions were upheld and the Revision Petition was dismissed.
An appeal was taken to Supreme Court where following questions were raised and the leave to Appeal was granted to consider these questions.
Whether wearing a “Kalima Tayyeba” badge by a non Muslims amounts to posing as Muslim so as to come within the mischief of section 298-C PPC.
Whether the charge framed against the petitioners was in accordance with law, and if not, what is its effect; and
Whether section 298-C PPC is violative of fundamental rights No. 19, 20 and 25.
The judgments of the Lahore High Court in Mujeeb-ur-Rehman Dard Vs Federation of Pakistan and Mohammad Aslam Vs. Federation of Pakistan were also challenged in the Supreme Court. Leave to Appeal was granted, and cases were ordered to be heard along with the Quetta cases as identical Constitutional questions were involved.
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