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Home Critical Analysis/Archives ERROR AT THE APEX
In the Supreme Court
At the Supreme Court hearing the case on behalf of the Ahmadis was mainly argued by Justice (Retired) Fakharuddin G. Ibrahim. His contentions were summed up in the minority judgment in the following words:
“Mr. Fakhruddin G. Ebrahim. Senior Advocate, the learned counsel for the appellants in six Criminal Appeals (No. 31-K to 36-K/1988) has mainly taken up the Constitutional vires of the Ordinance XX of 1984. According to him. Ordinance XX of 1983 [sic*] is oppressively unjust, abominably vague, perverse, discriminatory, product of biased mind, so malafide, and wholly unconstitutional being violative of Articles 19, 20 and 25 of the Constitution. According to the learned counsel the Constitution, having by its second amendment categorized the Qadianis and Ahmadis as non-Muslim, by clause (3) of Article 260 proceeds further to distinguish from among non-Muslims the Qadianis and Ahmadis with a view to impose on them prohibitive restrictions, on their religious practices, utterances and beliefs. According to the learned counsel, 1790 criminal cases have been registered against this specific minority upto 1992 and are pending in Courts; 84 for offering daily prayers, 691 for use of Kalima Tayyeba, 36 for reciting Azaan,  251 for preaching religion.  676 for posing as Muslim,  52 for using Arabic expressions like السلام علیکم”,  نصرمن اللہ”,  میلادالنبی”, etc. This according to the learned counsel amounts to a serious inroad on the right of speech, on the right to profess and practice one’s religion and amounts to serious discrimination. The practices for which this minority is being prosecuted have been declared to be religious practices of the minority and permissible both under the Constitution and the law as held in Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lahore 113), Mujeeb-ur-Rehman and 3 others v. Federal Government of Pakistan and another (PLD 1985 Federal Shariat Court 8 at pages 89 and 93). In addition, the learned counsel contended that Enforcement of Shari’ah Act, 1991 (Act X of 1991) permits the non-Muslims to practice their religion. He has also drawn our attention to Article 233 of the Constitution to emphasize that Article 20 of the Constitution is one of those provisions of the Constitution which cannot be suspended even during the emergency.” [1]
Adverting to other contentions of the learned counsel the minority opinion observed:
“The learned counsel has also explained the limited meaning which has been given to the expression “subject to law” used in Article 20 of the Constitution in the decision of the Supreme Court in Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 SC 9 at page 41), and Sarfraz Hussain Bokhari v. District Magistrate, Kasur and others (PLD 1983 SC 172). On the question of vagueness of the law and the specious meaning that can be given to the expression “posing as a Muslim”, the learned counsel has referred to Crawford’s “Statutory Construction—Interpretation of Statutes”, page 339, 5. 198, Haji Ghulam Zamin and another v. A.B. Khondkar and others (PLD 1965 Dacca 156 at page 180), K.A. Abbas v. The Union of India and another (AIR 1971 SC 481 at page 497) and State of Madhya Pradesh and another v. Baldeo Prasad (AIR 1961 SC 293).” [2]
The criminal matters were argued by the present author. His contentions were briefly summed up in the minority judgment in the following words:
“Mr. Mujeeb-ur-Rahman, Advocate, the learned counsel for the appellants in Criminal Appeals has dealt with the interpretation of the provisions of the Ordinance XX of 1984 with a view to exclude the criminal cases that were registered for wearing badges of Kalima Tayyeba. His argument on the subject is that this law had its background in the decision of the Lahore High Court reported as Abdur Rahman Mobashir’s case (PLD 1978 Lahore 113). Recital of Kalima Tayyeba or for that matter wearing of a badge of Kalima Tayyeba was considered to be one of permissible practices of the Qadianis and in the law under consideration it has not been expressly excluded. He has invoked, therefore, the principle that express mention of certain practices for making them an offence would certainly in criminal statute imply necessarily the exclusion of all others not expressly mentioned.” [3]
The argument was supported by a large number of precedents, which were taken note in the minority opinion. Dealing with word ‘pose’ in section 298-C it was contended that the article or in this section is illustrative and stipulative. It was thus contended that the offence of posing was only restricted to the case of an Ahmadi if he calls his ‘faith as Islam or refers to his faith as Islam or calls himself a Muslim.
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