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Zaheer-ud-Din is a case of divided opinion. But the ratio of majority vote is not clear. On convictions under criminal charges the majority appears to be 4:1, while on Constitutional issues it appears to be 3:2. The validity of order under 144 CrPC, was challenged in Mirza Khurshid Ahmad Vs Govt. of Punjab, (Civil Appeal No. 412/92). This appeal was accepted by Justice Shafi-ur-Rahman. Saleem Akhter J agreed with him on this question. The majority opinion did not advert to the question at all. So the opinion is 2:0. The appeal of Mirza Khurshid Ahmad was not only wrongly decided, the error is apparent on the face of the record and is in conflict with the clear text of the law. The majority opinion on Article 2A, cannot be considered good law because Hakim Khan was not considered by the majority opinion at all. It was neither dissented from, nor overruled. Commenting on this aspect of the judgment Justice Dorab Patel observed:
“As this view had been overruled a year earlier by the Supreme Court in Hakim Khan’s Case, Abdul Qadeer J (Abdul Qadeer Chaudhry) did not have the jurisdiction to over rule Hakim Khan’s Case. And even though two judges agreed with him, these three judges could not over rule Hakim Khan’s Case” 01
On the question of permissible restrictions, “subject to law’ the case of Jabindra Kishore was not considered. Commenting on this aspect of the judgment, Justice Dorab Patel says,
“The judge might have taken a different view, if he had considered the Supreme Court’s judgment in Jabindra Kishore’s case. He did not. That was unfortunate for another reason also. The legislature is presumed to be aware of the judgments of the country’s highest court. Now the right to profess one’s religion and the right of equality between citizens had been construed by the Supreme Court in Jabindra Kishore’s case and Waris Meah’s case (discussed earlier,), it follows that Article 20 and 25 of the 1973 Constitution had to be given the meaning placed on them by the Supreme Court in Jabindra Kishore’s Case and in Waris Meah’s case.” 02
Since the majority opinion in Zaheer-ud-Din neither considered nor over-ruled Jabindra Kishore, it seems we have two conflicting views from Supreme Court of Pakistan. The careless handling and misapplication of American Case Law has attracted adverse criticism from American legal circles. Zaheer-ud-Din suffers from many anomalies and needs to be thoroughly examined in some future case.
The legislation against Ahmadis created an imbalance in the society and has given rise to a culture of intolerance, which has led to increased sectarian hatred and violence. In fact most of the measures purportedly adopted by Zia-ul-Haq for Islamization, proved to be schismatic. This has led to the fragmentation of society and has dealt a serious blow to national solidarity. Religion has since been used as a political weapon.
The chief justice of High Court of Egypt Muhammad Said-al-Ashmawy in his “ISLAM AND THE POLITICAL ORDER” observed:
“God intended Islam to be a religion, but men have attempted to turn it into politics. Religion is general, universal, holistic; whereas politics is partial, tribal and limited in space and time. Hence, to restrict religion to politics is to limit it to a confined area and group, a specific region and moment. Religion tends to inspire man to the best that he can be; politics arouses his worst instincts, hence, to carry on politics in the name of religion is to transform the latter into conflicting groups and interminable struggle, it is to reduce it’s goal to a search for prestige, position of power and financial gains.” 03
Speaking of the relationship between state and religion James Madison said:
“It is proper to take alarm at the first experiment of our liberties….Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? 04
Cognizant of these fundamental realities, Quaid-e-Azam Muhammad Ali Jinnah was very clear, unequivocal and emphatic in his views on the equality of citizen and nature of the government. He stated:
“In any case Pakistan is not going to be a theocratic — to be ruled by priests with a divine mission. We have many non-Muslims-Hindus, Christians and Parsies-but they are all Pakistanis.” 05
In his speech as president of the constituent assembly of Pakistan he said:
“You are free, you are free to go to your temples. You are free to go to your mosques or any other place of worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State.” We are starting in the days when there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed or another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State.” 06
He further stated:
“Now I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual but in the political sense as citizens of the State.” 07
In saying so the Quaid was only echoing the spirit of the treaty of Madina where the Holy prophet (PBUH) treated all the components of the city of Madina including Jews and Muslims to be one political entity.
It is a curious phenomenon of history that patterns of religious persecution have closely followed one another in different times and places. In 1940, when Gobitiss case was decided and the court sustained compulsory flag salute, the decision was criticized severely, but, “some looked at the Court’s approval of the compulsory flag salute as a signal for the use of more repressive measures against the Witnesses. Shortly after the decision, Witnesses were beaten and driven from several communities. Many local school officials enforced the flag-salute requirement with increased vigor. “In several states the lower courts treated recalcitrant Witnesses’ children as delinquents and confined them to state reform schools. The Court itself thus became a weapon in the struggle for men’s minds.” 08
Similarly the decision in Zaheer-ud-Din sent wrong signals to the persecutors of Ahmadis. It was taken as a signal for the use of more repressive measures against Ahmadis and the graph of persecution touched high limits after the judgment.
The denial of self identification was followed by denial of right to profess religion of choice and curtailment of religious practices under 298-C PPC which was followed by interpretive broadening of denial of religious freedom by the judgments of courts which was further followed by converting the practice of religion by an Ahmadi into a terrorist activity, as the inclusion of section 295-A PPC in the schedule of Anti Terrorism Laws, in 1997, was used against Ahmadis. Ordinary cases under section 298C PPC pending in various courts, over a period of time, with no nexus with any terrorist activity were transferred to Anti Terrorist courts in order to procure quick convictions and long sentences. The Supreme Court has ruled in Mehram Ali’s Case, that in order to attract jurisdiction of the Anti-Terrorist Court, the offense must have some nexus with terrorism. But the lower courts without regard to the letter and spirit of law continue to charge Ahmadis under Anti-Terrorism Act. The denial of religious freedom is pervasive and unmistakable.
In a study organized by International Center For Human Rights And Democratic Developments in Pakistan it has been observed:
“While Ahmedis are physically attacked, killed, and their property destroyed by religious extremists, the State has failed to take action which would secure their lives, bodily integrity and property. The impression that this community can be harmed with impunity has encouraged acts of violence against it. Anti-Ahmedi hatred is preached openly, and none of the country’s laws has ever been invoked against those who have incited violence against them. Ahmedis have been targeted individually and collectively. There have been frequent incidents of Ahmedi villages being burnt, causing loss of life, property and vast displacement of population. Ahmedi places of worship are frequently attacked; burial grounds are desecrated; and congregation for religious purposes either attacked or threatened. State forces have never been deployed to protect the Ahmedis. Every time their assembly is threatened, the State prohibits such congregation through administrative orders on the pretext of preventing a law and order situation from developing.”
At times it appeared that in Pakistan state and clergy had merged their authority and none was available against the other to restore a balance in the society. As it is, the state seems to be using its political authority and apparatus to enforce change of theology by law. Ahmadis have suffered in silence and have suffered long. They have suffered the loss of suffrage and political rights. But in matters of faith and allegiance to Kalima Tayyeba they are prepared to lay their lives. They are an educated and disciplined community and do not believe in agitational methods. They have opted for the forensic battle. In such circumstances judiciary is the last hope of the citizens. It is an imperative need of the time, and the citizen has a right to expect, that the courts should not yield their essential role as protector of fundamental liberties. The courts that do not protect the rights of minorities will soon find themselves able to protect none.
The dissent in the Zaheer ud Din judgment is truly an appeal to the brooding spirit of law, to the intelligence of a future day. How distant is that future and when will that brooding spirit awaken?