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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction) Present:
CRIMINAL APPEALS NO. 31-K TO 35-K of 1988.
(On appeal from the judgment of High Court of Baluchistan, Quetta, dated 22-12-1987 to 42/87). Cr. A. No. 31-K/88
Zaheeruddin ... Appellant
versus The State .. Respondent Cr. A. No. 32-K/88
Nasir Ahmed ... Appellant
versus The State ... Respondent Cr. A. 34-K/88
Abdur Rehman Khan ... Appellant
versus The State ... Respondent C. A. 35-K/88
Ch.Muhammad Hayat ... Appellant
versus The State ... Respondent CIVIL APPEALS NO. 149 AND 150 OF 1989.
(On appeal from the judgment of Lahore High Court, Lahore, dated 25-9-1984 passed in Intra Court Appeals No. 160/1984 and 158 of 1984)
C. A. No. 149/89
Mujib-ur-Rehman Dard ... Appellant
versus Pakistan through Secretary, Ministry of Justice & Parliamentary Affairs, Islamabad ... Respondent C. A. No. 150/89
CIVIL APPEAL NO. 412 of 1992.
(On appeal from the judgment of Lahore High Court, Lahore, dated 17-9-1991 passed in Written Petition No. 2089/1989.
For the Appellants in Cr. As. 31-K to 35-K/88:
Mr. Fakhruddin G. Ebrahim, Sr. Advocate.
Mr. Mujeebur Rahman, Mirza Abdul Rashid and S. Ali Ahmed Tariq, Advocates. For the State in Cr. As. 31-K to 35-K/88:
Mr. Ejaz Yousaf, Addl. Advocate General, Balochistan.
For Complainant in Cr. A. 31-K/88:
Raja Haq Nawaz, Advocate.
Mr. M.A.I.Qarni, Advocate-on-Record, (Absent). For Appellants in Cr. As. 119 and 150/89:
Mr. Fakhruddin G. Ebrahim, Sr. Advocate
Ch. Aziz Ahmed Bajwa, Advocate Ch. A. Wahid Saleem, Sr. Advocate Mr. Mujeebur Rahman, Advocate Mr. Hamid Aslam Qureshi, Advocate on Record. For Appellant in C. A. 412 of 1992:
Ch. Aziz Ahmed Bajwa, Advocate
Mr. C. A. Rehman, Advocate, Mr. Hamid Aslam Qureshi, Advocate-on-Record. For respondent/Federal Government in Civil Appeals No. 149 & 150/89 and 412/92:
Dr. Riazul Hassan Gilani, Senior Advocate - Only on 1-2-93 and 2-2-93.
Syed Inayat Hussain, Advocate-on-record - Only on 3-2-93, Mr. Gulzar Hassan, Advocate on record (Absent) Ch. Akhtar Ali, Advocate-on-Record. For Respondents to No. 1 to 3 in C.A. 412/92:
Mr. Maqbool Elahi Malik, Advocate-General Punjab,
Mr. M.M. Saeed Beg, Advocate. Rao Muhammad Yusuf Khan, Advocate-on-Record. For Respondent No. 4 in C.A. 412/92:
Mr. M. Ismail Quereshi, Senior Advocate,
Syed Abul Aasim Jafri, Advocate-on-Record (Absent) On Court Notice:
Mr. Aziz A. Munshi, Attorney general for Pakistan.
Mr. Mumtaz Ali Mirza, Deputy attorney general for Pakistan. Mr. Ejaz Yousaf, Additional Advocate-General Balochistan. Mr. M. Sardar Khan, Advocate-General, N.W.F.P. Mr. Maqbool Elahi Malik, Advocate-general, Punjab. Mr. Abdul Ghafur Mangi, Additional Advocate General Sindh. From General Puglci:
Maj. (Retd.) Amir Afzal Khan
Maj. (Retd.) Amin Minhas. Dates of hearing:
30-1-93, 31-1-93, 1-2-93, 2-2-93 and 3-3-93 (Rawalpindi).
Date of announcement of Judgment: 3-7-93
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SHAFIUR RAHMAN, J:-
Self-Shafiur Rahman, J.
(singed) ABDUL QADEER CHAUDHRY. J:
I have had the benefit of going through the draft judgment proposed to be delivered by my learned brother Shafiur Rahman, J., but with respect, I do not agree with the opinion of my learned brother.
The facts of the connected appeals have been fully enumerated in the proposed judgment and I need not repeat the same. So far as the present appeal is concerned, the facts giving rise to the proceedings are that the appellants belong to Ahmadis community, (Quadianis), a non-Muslim religious sect. The Ahmadis throughout the world had decided to celebrate the centenary of their religion, which was founded on 23rd March, 1889, in a befitting manner, commencing from 23rd March, 1989.
On 20th March, 1989, the Home Secretary, Government of Punjab, promulgated an order, under Section 144, Cr. P.C. banning the centenary celebrations, by the Quadianis in the Province of Punjab. The District Magistrate, Jhang, also passed another order dated 21st March, prohibiting the Quadianis of Jhang District, from undertaking the following activities:
It appears from the above, that what had been banned are the activities in public or in the view of the public, to save breach of peace and maintain the law and order.
The Resident Magistrate, Rabwah, informed the Ahmadia community to remove ceremonial gates, banners and illuminations and also ensure that no more writings will be done on the walls. He further informed that the prohibitions contained in the order dated 21st March had been extended till further orders.
The appellants challenged the above orders by way of Written Petition No. 2089 of 1989, seeking declaration that their right to recount the important events of the last hundred years of their community and to celebrate the same in a befitting manner could not be denied to them. It was stated that they had planned to do that by wearing new clothes, offering thanksgiving prayers, distributing sweets among children, serving food to the poor and to assemble for meetings, to express their gratitude to God Almighty for favors and bounties bestowed by Him in the last hundred years. They contended that all the activities noted above, being protected and guaranteed by Fundamental Right, as embodied in Article 20 of the Constitution of 1973, the impugned orders were unlawful. it was further stated that none of the ingredients of Section 144 was present to attract the impugned orders. One of the appellants who was also convicted under Section 298-B of PPC, for using a badge of ‘Kalima’ and for saying ‘Azan’ had filed another petition. This section 298-B and another 298-C had been inducted in the PPC, by the Ordinance XX of 1984.
The case came up before a learned Judge of the Lahore High Court, who in his judgment considered very concisely the legal and constitutional questions raised in the case and has rendered a very balanced judgment. We highly appreciate that the learned Judge relied, in this respect, on precedents from the jurisdiction, which are either secular or claim to be the champions of human rights. The controversy raised before the Court is, undoubtedly, of very sensitive nature, concerning one’s faith and belief and need a very dispassionate and careful approach, in order to inspire confidence and lend its judgment the necessary independence.
The main question involved is whether the impugned orders passed under Section 144 Cr. P.C. and the Ordinance XX of 1984 are violative of the Fundamental Right (Art. 20) as given in the Constitution of Pakistan, 1973.
The appellants raised the following propositions for consideration:
Before proceeding with the contentions as raised, it appears necessary to say, if the general law applied so far, gives everyone a right to the use of any word, name, and epithet etc., or, do there exist any recognized restrictions already? It will be appreciated that some of the epithets, descriptions and titles etc., as given in Section 298B have been used by Quran for specific personages (See 33; 32, 33:54 and 9: 100) while others undoubtedly and rather admittedly being used by the Muslims, for those mentioned there, exclusively for last about 1400 years. These epithets carry special meaning, are part of the Muslim belief and used for reverence. Any person using them for others, in the same manner, may be conveying impression to others that they are concerned with Islam when the fact may be otherwise.
It is to be noted that it is not only in Pakistan but throughout the world, that laws protect the use of words and phrases which have special connotations or meaning and which if used for other may amount to deceiving or misleading the people. The English Company Law lays down that a name must not be misleading or suggest a connection with the Crown, a Government Department, or a municipality, and only in exceptional circumstances will names be allowed which include “Imperial”, “Commonwealth”, “National”, or “International”. The use of word’s “Cooperative” and “Building Society” is also forbidden. The most important is the rule that the name will be refused registration if it is too like the name of an existing company. These provisions have been strictly applied and were never challenged in a Court of law or the Parliament.
Section 20 of the Indian Company Law also lays down that no company shall be registered by a name which, in the opinion of the Central Government, is undesirable and that a name which is identical with, or too nearly resembles, the name by which a company in existence has been previously registered, will be deemed to be undesirable by the Central Government. The Indian Constitution has similar Fundamental Rights as ours but we have not seen a single decision of any court there, declaring the restrictions violative of these rights.
A law for protection of trade and merchandise marks exists, practically, in every legal system of the world to protect the trade names and marks etc. with the result that no registered trade name or mark of one firm or company can be used by any other cancers and a violation thereof, not only entitles the owner of the trade name or mark to receive damages from the violator but it is a criminal offense also.
Here we may refer to English Law. It was held in J. Bollinger v. Costa Brava Wine Company Ltd. {1959} 3 W.L.R. 966] that “An injunction could be obtained to restrain the defendant from continuing a practice that was calculated to deceive, although there was no proof of an intent to deceive”.
The Chapter X of the Trade and Merchandise Mars Act, 1958, of India provides penalties for falsifying and falsely applying trade marks or for applying false trade marks, trade descriptions, etc., or for selling goods to which a false trademark or false description is applied.
The Chapter VXIII of the Indian and Pakistan Penal Codes, contains offenses relating to documents and to trade and property marks. Section 481 says “Whoever, marks any moveable property or goods or any, package or other receptacle containing movable property or goods, or uses any case, package or other receptacle having any trade mark thereon, in a manner reasonably calculated to cause it to be believed that the property or goods so marked or any property or goods contained in any receptacle so marked, belong to a person to whom they do not belong is said to use a false property mark. The offense is a fraud and is punishable with imprisonment of either description for a term which may extend to one year, or with fine or with both.
Laws similar to above have been in force in Pakistan, and no one challenged them on any ground. We may here refer to section 69 of the Trade Marks Act, 1940, which was applicable to the subcontinent of India. The amended section as now applicable in Pakistan is as under:
“69. Restraint of use of Royal Arms and State emblems: If a person, without due authority, uses in connection with any trade, business, calling or profession –
Provided that nothing in this section shall be construed as affecting the right, if any, of the proprietor of a trademark containing any such Arms, device, emblem or title to continue to sue such trade mark.” It is thus clear that intentionally using trade names, trade marks, property marks or descriptions of others in order to make believe others that they belong to the user thereof amounts to an offense and not only the perpetrator can be imprisoned and fined but damages can be recovered and injunction to restrain him issued. This is true of goods of even very small value. For example, the Coca Cola Company will not permit anyone to sell, even a few ounces of his own product in his own bottles or other receptacles, marked Coca Cola, even though its price may be a few cents. Further, it is a criminal offense carrying sentences of imprisonment and also fine. The principles involved are: do not deceive and do not violate the property rights of others.
Generally speaking, the people who are deceiving others with falsified names are being discouraged, even though the loss may be in terms of pennies. In our case, a law has been made to protect even the title an of Quaid-e-Azam, without any challenge from any quarter. However, in this Ideological State, the appellants, who are non-Muslims want to pass off their faith as Islam? It must be appreciated that in this part of the world, faith is still the most precious thing to a Muslim believer, and he will not tolerate a government which is not prepared to save him of such deceptions or forgeries.
The appellants, on the other hand, insist not only for a license to pass off their faith as Islam but they also want to attach the exclusive epithets and descriptions etc., of the very revered Muslim personages to those heretic non-Muslims, who are considered not even a patch on them. In fact the Muslim treat it as defiling and desecration of those personages. Thus, the insistence on the part of the appellants and their community to use the prohibited epithets and the ‘Shaa’ire Islam leave no manner of doubt, even to a common man, that the appellants want to do so intentionally and it may, in that case amount to not only defiling those pious personages but deceiving others. And, if a religious community insists on deception as its fundamental right and wants assistance of courts in doing the same, then God help it. It has been held by the United States Supreme Court in Cantwell vs. Connecticut (310 U - S - 296 at 306) that “the cloak of religion or religious belief does not protect anybody in committing fraud upon the public”.
Again, if the appellants or their community have no designs to deceive, why do not they coin their own epithets etc.? Do they not realize that relying on the ‘Shaairs’ and other exclusive signs, marks and practices of other religions will betray the hollowness of their own religion? It may mean in that even that their new religion cannot progress or expand on its own strength, worth and merit but has to rely on deception? After all there are many other religions in the world and none of them ever usurped the epithets etc., of Muslims or others. Rather, they profess and present their own beliefs proudly and eulogize their heroes their own way. I must, however, be mentioned here that there is no law in Pakistan which forbids Ahmadis to coin their own epithets. etc. and use them sort, whatever, against their religion.
It was argued that the finding of the Federal Shariat Court that the Ordinance is not contrary to Quran and Sunnah is of no consequence, so far as this Court is concerned.
The contention, however, has no merit. The Ahmadis have been declared non-Muslims by Article 260(3)(b) of the Constitution. This fact has further been affirmed by the Federal Shariat Court of Pakistan, in Mujibur Rehman vs. Federal Government of Pakistan and another (PLD 1985 FSC 8), for the reason that the Ahmadia do not believe in the finality of prophethood of Muhammad (Peace be upon him); they falsify a clear and general verse of Holy Quran by resort to its “Taweel“; and import into Islam, heretic concepts like shadowism, incarnation and transmigration.
They were, therefore, asked to restrain themselves from directly or indirectly posing as Muslims or claiming legal rights of Muslims.
The Federal Shariat court further held that the word “Sahabi” and “ahle-baith” are used by Muslims for companions and members of the family of Holy Prophet respectively, all of whom were the best Muslims. The Court observed that use of such epithets, which are exclusive for companions of Prophet, his wives and members of his family, by Quadianis in respect of the wives, members of the family, companions and successors of Mirza Ghulam Ahmad, amounts to defiling them and may deceive people that the bearers of such epithets are good Muslims. It was further stated that calling of ‘Azan’ and naming place of worship as ‘Masjid’ is considered a sure sign of the person calling ‘Azan’ or of persons congregating or praying in the mosque as being Muslims. It was thus held that the provisions of the Ordinance banning use of these epithets, expressions and preaching of religion, by the Ahmadis and the reiteration in the Ordinance that the Ahmadis cannot call themselves or pose to be Muslims in any manner directly or indirectly is in implementation of the constitutional objective.
As regards ‘Shaa’ir of Islam’ (distinctive characteristics), the Court held that Islamic Charia does not allow a non-Muslim to adopt them and if an Islamic State, in spite of its being in power, allows a non-Muslim to adopt them (without embracing Islam), it will be its failure to discharge its duties. An Islamic state, like a secular state, thus has the power to legislate, to prevent non-Muslims from adopting Shaa’ire’ Islam, to propagate their own beliefs. As said above, such restriction will be meant to prevent unscrupulous and fraudulent non-Muslim from using the effective and attractive features of Islam in order to attract other non-Muslims not to Islam but to their own heretic fold. It was further held that claim could not be allowed to be pressed on the basis of the Fundamental rights.
It is to be noted that Mujibur Rehman and others had challenged the above order of the Federal Shariat court in the Shariat Appellate Bench of the Supreme Court (See: PLD 1988 S.C. (Shariat Appellate Bench) 167), under Article 203F of the Constitution but withdraw it later for the reasons best known to the appellants. This Court in that appeal held as under:
“Judgment of the Federal Shariat Court shall rule the field”. The present appeal has been filed and is being heard on the general side, under Art. 185 of the constitution.
The Chapter 3A of the Constitution was inducted in the Constitution on 26th May, 1980. It contains Articles 203A to Article 203J. The Article 203A of the Constitution lays down that the provisions of Chapter 3A shall have effect notwithstanding anything contained in the Constitution. Further Article 203G provides that “Save as provided in Article 203F, no court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court.”
These provisions when read together, would mean that a finding of the Federal Shariat Court, if the same is either not challenged in the Shariat Appellate Bench of the Supreme court or challenged but maintained, would be binding even on the Supreme Court. Consequently, the above given findings of the Federal Shariat Court cannot be ignored by this Court.
The next point needing consideration is whether Ordinance XX of 1984, expressly and is no uncertain terms, is total denial of religious freedom guaranteed under Article 20 of the Constitution to the Ahmadi citizens of Pakistan? In order to appreciate further the contention it is necessary to know the relevant law and the facts which mean to have denied the guaranteed religious freedom to the appellants’ sect.
Section 298B which is relevant to this case, reads as under:
“298B - Misuse of epithets, descriptions and titles etc., reserved for certain personages or places. (i) Any person of Quadiani group or the Lahori group (who call themselves “Ahmadis or by any other name) who by words, either spoken or written, or by visible representation,
shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
2. Any person of the Quadiani or Lahori Group (who call themselves ‘Ahmadis’ or by any other name) who by words either spoken or written, or by visible representation, refers to the mode or form of call to the prayers followed by his faith as ‘Azan’, or recites ‘Azan’ as used by Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine”.
Section 298C reads as under:
“Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith. Any person of Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name), who, directly or indirectly, poses himself a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine”. The contents of the Ordinance XX of 1984 have been reproduced above. They prohibit the community of the appellants to use certain epithets, descriptions and titles etc., mentioned therein. It may be mentioned that Mr. Fakhruddin G. Ebrahim, the learned counsel, did not challenge the validity of sub-section (a) of Section 298. the orders of the Home Secretary, the District Magistrate and the Resident Magistrate mentioned in the beginning of the petition banned their centenary celebrations, in the Province of Punjab, prohibiting them from the activities reproduced in Para. 3 above and asked them to remove ceremonial gates, banners and illuminations and further ensure that no further writings will be done on the walls. The purpose of the order has also been spelt out in the last direction to say, that no other activity which may directly or indirectly incite and injure the feelings of Muslims, shall be undertaken. The above restrictions, clearly mean such activities which might have been performed in the public or in public view and not those to be performed in private. The actions had been challenged in the High Court through Written Petitions, pleading violation of fundamental rights. The facts which were given by the appellants themselves and on which the orders were passed, will, therefore, be considered as undisputed.
Article 20 provides as hereinunder:
“Freedom to profess religion and to manage religious institutions. Subject to law, public order and morality
The fundamental right, relevant hence, is the ‘freedom to profess religion’ but it has been made ‘subject to law, public order and morality’. The courts of other countries, which have similar fundamental rights, have held that this right embraces two concepts; freedom to believe and freedom to act. Some of them held the former to be absolute but others said that, that too was subject to law etc. However, all are agreed that the latter, in the nature of things, cannot be absolute. According to them, conduct remains subject to regulation for the protection of the society. So the freedom to act must have appropriate definition to preserve the enforcement of that protection. The phrase ‘subject to law’, on the other hand, does neither invest the legislature with unlimited power to unduly restrict or take away the Fundamental Rights guaranteed in the Constitution, nor can they be completely ignored or by-passed as non-existent. A balance has thus to be struck between the two, by resorting to a reasonable interpretation, keeping in view the peculiar circumstances of each case, (See Jesse Cantwell etc. vs. State of Connecticut, 310 US 296) and Tikamdas and others vs. Divisional Evacuee Trust Committee, Karachi, PLD 1968 Kar 703 (F. B.)
The Supreme Court of America in the case of Reynolds vs. United States, (98 US 145) held that “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order …. Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.”
After taking the above view, the Supreme Court felt justified to ban polygamy, as it was being practiced by Mormons sect on the ground that it was a duty imposed on them by their religion and was not a religious belief or opinion. It must be noted here that the observations in the last part of the above paragraph are peculiar to America where the people and not Allah are the sovereign.
The Supreme Court of India, in the Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra etc. (A.I.R. 1954 S.C. 282 at p. 291) approved the view similar to the above, and as taken by Latham CJ in the case from Australia, to say that:
“The provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery”. It has been observed at page 127 as under:
“In the United States the problems created by this provision have been solved in large measure by holding that the provision for the protection of religious is not an absolute, to be interpreted and applied independently of other provisions of the Constitution. The Supreme Court said in Jones v. Opelika (1942) 316 U.S. 584 at p. 593, with reference to the constitutional guarantees of freedom of speech, freedom of press and freedom of religion: “They are not absolutes to be exercised independently of other cherished privileges, protected by the same organic instrument. ” It was held that these privileges must be reconciled with the right of a State to employ the sovereign power to ensure orderly living “without which constitutional guarantees of civil liberties would be a mockery.” It has been further observed at page 130 as follows:
“The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, that the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.” Again at page 131, it has been observed as hereunder:
“John Stuart Mill in his Essay on Liberty critically examines the idea of liberty, and his discussion of the subject is widely accepted as a weighty exposition of principle. The author had to make the distinction which is often made in words between liberty and license, but which it is sometimes very difficult to apply in practice. He recognized that liberty did not mean the license of individuals to do just what they pleased, because such liberty would mean the absence of law and of order, and ultimately the destruction of liberty. He expressed his opinion as to the limits of liberty when he said: “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their member, is self-protection. ” At the same page it has been further observed that:
“It is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community.” The above observations were made while interpreting Section 116 of the Constitution which reads as follows:
“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.” At page 155 of the aforesaid case, the following observations are relevant:
“The constitutional provision does not protect unsocial actions or actions subversive of the community itself. Consequently the liberty and freedom of religion guaranteed and protected by the Constitution is subject to limitations which it is the function and the duty of the courts of law to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order.” It may, therefore, be necessary to know, what is religion, the freedom of which restricts the right of the Governments to legislate and take action. Scholars give different origins of the word. Religion is a complex of doctrines and practices and institutions. It is a statement of belief in God, in a world of spirits and a world or worlds that lie beyond the one in which we live. In its more colloquial sense, a religion is spoken of as a religion, e. g., Christianity or Islam, the religion of Jews or Catholics etc. In Davies vs. Beason (1 890 {133} US 333), the American Supreme Court defined it as under:
“The term ‘religion’ has reference to one’s view of his relation to his creator and the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus or form of worship of a particular sect, but is distinguishable from the latter.” The term is not expressly, defined in the Constitution of Pakistan as such but its meaning may be gathered from the definitions of ‘Muslim’ and ‘non-Muslim’, in its Article 260(3)(a) and (b), which are as under:
“260(3). In the Constitution and all enactments and other legal instruments, unless there is anything repugnant in the subject or context:
There is no definition of the term ‘religion’, in the Constitutions of India or America or Australia either. However, the Indian Supreme Court, in the case of Commissioner H.R.E. vs. Lakshmindra Swamiar (AIR 1954 S.C. 282), interpreted the term in the following manner:
“Religion is a matter of faith with individuals or communities and is not necessarily theistic. There are well known religions in India like Budhism and Jainism which do not believe in God. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion is conductive to their spiritual well being, but it will not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and mode of worship which are regarded as integral parts of the religion, and these forms and observance might even extend to matters of food and dress.” The Supreme Court went on to say, in para. 19 of the Judgment that:
“In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of Hindu prescribe that offering of food be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of the sacred texts or obligations to the sacred fire, all these would be regarded as parts of the religion and mere fact that they are expenditure of money … should not make them secular… ” The Court, after noting that the American and Australian Courts have declared in unrestricted terms, without any limitation whatsoever, the freedom of religion, observed that:
“the language of Articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to restrictions which the Constitution itself has laid down”. The Court then did go into the question whether certain matters appertained to religion and concluded by saying that:
“these are certainly not matters of religion and the objection raised with regard to validity of these provisions seem to be altogether baseless.” The same Court in Durghah Committee v. Hussain Ali (A.I.R. 1961 S.C. 1402) is para. 33, Gajendragadkar, J. Struck a note of caution and observed as under:
“Whilst we are dealing with this point it may not be out of place to strike a note of caution and observe that in order that the practice in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even secular practices which are not an essential and integral part of religion are apt to be clothed with a religious form and make a claim for being treated as religious practices. Similarly, even practices though religious may have spring from merely superstitious beliefs and may in that sense be extraneous and unessential accretion to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection may have to be carefully scrutinized; in other words, the protection must be confined to such religious practices as are an essential and integral part of it and no other. ” The same Court in Jagdishwaranand v. Police Commissioner, Calcutta (AIR 1984 S.C. 51) in para. 10, held as follows:
“Courts have the power to determine whether a particular rite or observance is regarded as essential by the tenets of a particular religion”. It has been seen above, in the judgments of foreign secular courts that though religious practices are protected by the term ‘freedom of religion’ yet only such practices are so covered as are integral and essential part of the religion. It is further held that it is for the courts to determine whether a particular practice, constitutes essential and integral part of the religion or not? In that view of the matter, these practices have to be stated and proved so, from the authentic sources, of the religion, to the satisfaction of the court.
The appellants, therefore, had to first enumerate the practices they intended to perform at the centenary celebrations and then show that they were essential and integral part of their religion, before the court could declare that they, as essential and integral part, were unlawfully denied by the impugned law or the executive orders? The appellants, however, have not explained how the epithets etc., and the various planned ceremonies are essential part of their religion and that they have to be performed only in public or in the public view, on the roads and streets or at the public places?
It will also be noted that if the impugned law is a valid piece of legislation, and the respondents had taken the impugned actions, in the interest of law and order, then unless it can be shown that the same were taken malfide or without factual justification, the question of denial of fundamental rights may not arise. The law on the point has been well settled in various jurisdictions and it may be useful to cite them.
Latham C.J. in Jehovah’s Witnesses case, Adelside vs. Commonwealth, referred to above, while dealing with the provisions of Section 116 of the Australian Constitution, which inter alia forbids the Commonwealth to prohibit “the free exercise of any religion” made the following observations:
Consequently, the court held that the doctrine expressed by Jehovah’s Witnesses as to the non-cooperation with the Commonwealth in terms of military obligation was prejudicial to the defense of the community and Section 116 did not give immunity to it. So the rule laid down there is that a law imposing civic duties could not be characterized as a law infringing religious freedom.
Justice Huges in Willis Cox. v. New Hampshire (1941 (312) US 569) also enlightened the same subject to say:
“A statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities, does not constitute an unconstitutional interference with religious worship or the practice of religion, as applied to a group marching along a sidewalk in single file carrying signs and playcards advertising their religious beliefs.” We have referred to the above view from such countries, which claim to be the secular and liberal, and not religious or fundamentalists. The same principles were applied by the Indian Supreme Court in Muhammad Hanif Qureshi and others vs. State of Bihar (AIR 1958 S.C. 73 1) to hold that certain laws banning slaughter of certain animals, did not violate the fundamental rights of Muslims under Article 25(l), as there was no material to substantiate the claim that the sacrifice of a cow on Bakr-ld-Day, was enjoined or sanctioned by Islam, to exhibit a Mussalman’s belief and idea.
The same Court in Acharya Jagdishwaranand Avadhutta etc. vs. Commissioner of Police, Calcutta, (AIR 1984 S.C. 51) held as follows:
“Even conceding that tandava dance has been prescribed as a religious right for every follower of Anada Marg it does not follow as a necessary corollary that tandava dance to be performed in the public is a matter of religious rite. Consequently, the claim that the petitioner has a fundamental right within the meaning of Article 25 or 26 to perform tandaya dance in public streets and public places is liable to be rejected.” The American Court held in the following cases that there was no violation of constitutional guarantee of freedom of exercise of religion. Mr. S. Sharifuddin Pirzada in his book “Fundamental Rights and Constitutional Remedies in Pakistan” (1966 Edition) at pp. 313-314 and 317 has observed as follows:
The above views, as they are prevalent, in the above jurisdiction, do go to show that freedom of religion would not be allowed to interfere with the law and order or public peace and tranquillity. It is based on the principle that the state will not permit anyone to violate or take away the fundamental rights of others, in the enjoyment of his own rights and that no one can be allowed to insult, damage or defile the religion of any other class or outrage their religious feelings, so as to give rise to law and order situation. So whenever or wherever the state has reasons to believe, that the peace and order will be disturbed or the religious feelings of others may be injured, so as to create law and order situation, it may take such minimum preventive measures as will ensure law and order.
The Muslim think that the birth of this Ahmadia community during the English rule, in the sub-continent, among the Muslim society, was a serious and organized attack on its ideological frontiers. They consider it a permanent threat to their integrity and solidarity, because the socio-political organization of the Muslim society is based on its religion. In that situation their using the above given epithets etc., in a manner which to the Muslim mind looks like a deliberate and calculated act of defiling and description of their holy personages, in a threat to the integrity of ‘Ummah’ and tranquillity of the nation, and it is also bound to give rise to a serious law and order situation, like it happened many a time in the past.
Allama lqbal says,
“I became suspicious of the Quadiani movement when the claim of new prophethood, superior even to the prophethood of the Founder of Islam, was definitely put forward, and Muslim world was declared ‘Kafir’ (infidel). Later, my suspicion developed into a positive revolt when I heard with my own ears an adherent of the movement mentioning the Holy Prophet of Islam in a disparaging language”. (See Thoughts and Reflection of Iqbal, page 297-1973 Edition). As a matter of fact, the Ahmadis, internally, had declared themselves the real Muslim community, by alienating and excommunicating the main body of Muslims, on the ground that as they did not accept Mirza Ghulam Ahmad as the prophet and the promised Messiah, they were infidels. The beliefs are held under the instructions of Mirza Ghulam Ahmad himself, who had declared:
There are scores of other similar writings, not only by Mirza Sahib himself but his so called ‘calipha’ and followers proving, without any shadow of doubt, that they are religiously and socially, a community separate and different from the Muslims.
Sir Muhammad Zafarullah Khan, who was the Foreign Minister of Pakistan, had refused to join the congregation, offering prayers, to pay last homage to the departed soul of Quaid-e-Azam, the father of the Nation, by saying that he may be considered as a Muslim Foreign Minister of a non-Muslim State or a non-Muslim Foreign Minister of a Muslim State (Daily Zamindar, Lahore, Feb. 8, 1950).
Mirza Ghulam Ahmad had forbidden his followers from marrying their daughters with non-Ahmadis and from praying along with them. According to him the main body of the Muslims could, at the most, be treated like Christians.
In fact Mirza Bashiruudin Ahmad, the second caliph and son of Mirza Sahib, is reported to have said:
“that through an emissary, I requested an English Officer that our separate rights be determined like those of the Parsees and Christians. The officer replied that they are minorities while you are in religious sect. On that I said that even Parsees and Christians are religious communities and if they can be given separate rights why not we.” (Alfazal Nov. 13, 1946). It is thus clear that according to Ahmadis themselves, both the section i.e., Ahmadis and the main body cannot be Muslims at the same time. If one is Muslim, the other is not. Further, the Ahmadis always wanted to be a separate entity and claim a status, distinct and separate from the others. The main body of Muslims also never wanted to stand with Ahmadis on the same pedestal. Way back, as reported above, the Ahmadis were prepared even to be treated as a minority with separate and distinct rights. They, as a religious community are, rather opposed to Muslims and have always endeavored not to mix with them. In fact they declared the whole Muslim ‘Ummah’ as infidels, as said above. However, they being an insignificant minority could not impose their will. On the other hand, the main body of Muslims, who had been waging a campaign against their (Ahmadis’) religion, since its inception, made a decision in 1974, and declared them instead, a non-Muslim minority, under the Constitution itself. As seen above, it was not something sudden, new and undesirable but one of their own choice; only the sides were changed. The Ahmadis are, therefore, non-Muslims; legally and constitutionally and are, of their own choice, a minority opposed to Muslims. Consequently, they have no right to use the epithets etc., and the ‘Shaa’ire Islam, which are exclusive to Muslims and they have been rightly denied their use by law.
As given above, the Constitution of Pakistan declares Ahmadis non-Muslims.. Undoubtedly, they are an insignificant minority, and have, because of their belief, been considered heretic and so non-Muslim, by the main body of Muslims. Apart from what has been said above, the right to oust dissidents has been recognized, in favor of the main body of a religion or a denomination, by the courts, and a law prohibiting such an action was declared ultra vires of the fundamental rights, by the Indian Supreme Court. Reference be made to the case of Sardar Syena Taher Saifudin Sahib vs. State of Bombay etc. (AIR 1962 S.C. 853), where it was also held in para. 40 as under:
“What appears, however, to be clear is that where an excommunication is itself based on religious grounds such as lapse from the orthodox religious creed or doctrine (similar to what is considered as hearsay, apostasy or schism under the Canon Law) or breach of some practice considered as essential part of the religious by the Dawoodi Bohras in general excommunication cannot but held to be essential part of the religion for the purpose of maintaining the strength of the religion. It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the community through its religious head, ‘of its own affairs in the matter of religion’. The impugned Act makes even such excommunication and takes away the power of the ‘Dni’ as head of the community to excommunicate even on religious grounds. It therefore clearly interfere with the right of Dawoodi Bohra community under cl. (b) of Art. 26 of the Constitution.”
“(41) That excommunication of the member of a community will affect many of his civil rights is undoubtedly true. This particular religious denomination is possessed of properties and the necessary consequence of excommunication will be that the excommunicated member will lose his right of enjoyment of such property. It might be though undesirable that the head of the religious community would have the power to take away in this manner the civil rights of any person. The right given under Art. 26(b) has not, however, been made subject to preservation of Civil rights. The express limitation in Art. 26 itself is that this right under the several clauses of the article will exist, subject to public order, morality and health. It has been held by this Court in 1958 SCMR 895; (AIR 1958 SC 255) that the right under Art. 26(b) is subject further to Cl. 2 of Art. 25 of the Constitution.” Even the Privy Council approved similar power of the main body of a religion in Hassan Ali and others v. Mansoon Ali and others (AIR 1948 PO 66) at para. 53. The following observations of their Lordships may be with advantage:
“The next question in whether the Dai-ul-Mutlao has the power of excommunication. It was undoubtedly exercised by Muhammad and the Imams. The grounds and effects of its exercise will later be considered. At the moment it is only necessary to say that there are instances of its exercise in the community from time to time by the Dais.” As said above, the Ahmadis, also always wanted to be a separate entity, of their own choice, religiously and socially. Normally, they should have been pleased on achieving their objective, particularly. When it was secured for them by the Constitution itself. Their disappointment is that they wanted to oust the rest of the Muslims as infidels and retain the tag of Muslims. Their grievance thus is that they have been excommunicated and branded as non-Muslims, unjustly. The reason of their frustration and dismay may be that now, probably, they cannot operate successfully, their scheme of conversion, of the unwary and non-Muslims, to their faith. Maybe, it is for this reason that they want to usurp the Muslim epithets, descriptions etc. and display ‘Kalima’ and say ‘Azan’ so as to pose as Muslims and preach and propagate in the garb of Muslims with attractive tenets of Islam. The label of non-Muslim seems to have become counter productive.
The urge by the Ahmadis to somehow retain, all the perceivable signs of Muslims seems necessitated to pass off their religion with the dubious stance and the message, as Islam and for that matter their defiance of the Ordinance is quite understandable. The Constitution, however, is in their way, as the Ordinance only fulfills its intent and object. In that event, claiming, propounding, pretending or holding out for a Quadiani that he is Muslim, without first denouncing his faith, is not only a clear violation of the Ordinance but also the Constitution. Events like that have been and may also be occurring in future, and be responsible for grave law and order situation, like the past.
The contention that the impugned Ordinance is vague and oppressive has not even been supported by the appellants. It may be useful to reproduce section 298-C again for ready reference:
Section 298-C reads as under:
“Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith.
8Any person of Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name), who, directly or indirectly poses himself a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept to his faith, by words either spoken or written, or by visible representation or in any manner whatsoever outrages, the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.” The objection is taken specifically to the phrase “…poses himself a Muslim…his faith as Islam…”. According to Black’s Law Dictionary, ‘vague’ means indefinite; uncertain; not susceptible of being understood. Under this principle a law which does not inform a person of what is commended or prohibited is unconstitutional, being violative of the ‘due process’. The judgments from Indian jurisdiction and Ghulam Zamir v. A.B. Khondkar (P.L.#. 1965 S.C. 156), cited by the appellants, also have no bearing on the case. It is argued that the phrase “who, directly or indirectly, poses himself as a Muslim or calls, or refers to, his faith as Islam…” is too broad and wide, and too undetermined and volatile and too indefinite and uncertain, for anybody to understand and anticipate what acts are being prohibited by the Legislature. Consequently, it is urged that it cannot be called a law and must be struck down as such.
There may be no dispute about the proposition that if a law goes beyond the frontiers that are fixed for a legislature or where a law infringes a fundamental right, or a law, particularly, criminal, is vague, uncertain or broad, it must be struck down as a void law, to the extent of the objection. The appellants, however, have not shown or demonstrated as to where is that vagueness. In order to succeed, the appellants ought to have shown that the constituents of the offense, as given in the law are so indefinite that line between innocent and condemned conduct cannot be drawn or there are attendant dangers of arbitrary and discriminatory enforcement or that it is so vague on the fact of it that common man must necessarily guess at its meaning and differ as to its application.
According to the dictionary, ‘pose’ means to claim or propound. In this case the law is addressing the members of Quadiani or Lahori group. They have a historical background of serious conflict with the main body of Muslims, for the beliefs the relevant of which may be discussed later. These have already been discussed in some details in the judgment of Mujibur Rehman (PLD 1985 FSC 8) and also in the judgment of the High Court. The Ahmadis claim Mirza Sahib is himself a prophet and those who do not believe in and follow him are infidels. The right to the use of the above mentioned epithets etc., by the Ahmadis, for those connected with Mirza Sahib, is on account of that connection alone and is to be seen in that light.
So it will only be a question of fact, to be proved by evidence, that the accused did use the epithets etc., or if his attitude or conduct amounted to that what is provided in the law. The appellants are, undoubtedly Ahmadis, and are non-Muslims according to the Constitution. Their use of the ‘Shaa’ire Islam’ etc., thus amounts to either posing as Muslims or to deceive others or to ridicule. In any case, the fact whether, they were posing as such can be clearly proved. They, therefore, have not made out a case and are raising only a controversy without a sound basis. Undoubtedly, there is no vagueness in the law at all.
The Pakistan Penal Code which is mostly the same as Indian Penal Code, contains offense of personation, in sections 140, 170, 171, 171D, 205, 229 and 416. This offense is somewhat similar to the one under discussion and its wording may also be considered to test the plea raised.
Section 140 says whoever, not being a soldier, sailor or airman in the Military, Naval or Air Service of the Government of Pakistan, wears any garb or carries any token resembling any garb or token used by such a soldier, sailor or airman … shall be punished….
Section 171 similarly makes offense wearing garb etc. used by a class of public servants. These two sections rely on visible indicators.
Section 171D, makes offense even applying for a voting paper or votes in the name of another person whether living or dead, The evidence in that case will be only of that conduct.
Section 205 is a different brand altogether. It provides; whoever falsely impersonates another, and in such assumed character makes any admission or statement … shall be punished…
Section 229 creates an offense to become of juror by impersonation or otherwise. Last is section 416, ‘to cheat by impersonation’ by pretending to be some other person.
No objection of the nature, as raised by the appellants, has ever been taken by any one against any of the above sections, since 1860, when this code was promulgated and enforced, though these sections deal with a similar subject but may not claim the precision demanded by the appellants. Even no court ever suggested any vagueness or other deficiency, so as to hinder their administration. The phrase mentioned above thus does not suffer from any such defect.
The impugned Ordinance, on the other hand, gives the actual epithets, the descriptions and also titles and other requirements sought to be protected or imposed. It is also stated that they cannot be used for entities or situations other than those for whom they have been prescribed. The Ahmadis have been desecrating them and using them for their own leaders and practices etc., to deceive the people that they are also of the same type status and the calibre. This practice not only deceived innocent, simple and not-well-informed people but also created law and order situation throughout the period. The legislation was, therefore, necessary, which in any way does not interfere with the religious freedom of the Ahmadis; for it only prohibits them from using those epithets etc., on which they have no claim of any nature. It does not prohibit them from coining their own.
We may test the plea further in the light of some foreign jurisdiction. The United States Supreme Court observed in Lanzetta vs. New Jersey, (306 U.S. 451, 1939) that vagueness is a constitutional vice conceptually distinct from overbreadth in that an overbroad law need lack neither clarity nor precision, and a vague law need not reach activity protected by the first amendment. As a matter of due process, a law is void on the face of it, if it is so vague that persons:
“of common intelligence must necessarily guess at its meaning and differ as to its application”. (See 30 Connally vs. General Construction Co. (1926) 269 U.S. 385, 391). Such vagueness occurs when a legislature states its prescriptions in terms so indefinite that line between innocent and condemned conduct becomes a matter of guess work and that the discretion of law enforcement officials, with the attendant dangers of arbitrary and discriminatory enforcement, be limited by explicit legislative standards. The plea gather no help from the above either, as the contents of the law, in the light of the Constitution and the ‘Shasire Islam’ seem to be precise and clear. The law is not vague in any juristic sense.
It has also been discussed in detail above that legislation just to preserve law and order has never been considered oppressive in any country of the world. Again, no legal system in the world will allow a community, howsoever vocal, organized, affluent or influential it may be, to cheat others of their faith or rights, usurp their heritage and to deliberately and knowingly do such acts or take such measures as may create law and order situation.
The other submission raised on behalf of the appellant that the word ‘law’, used in the phrase ‘subject to law’, in Article 20, means ‘positive law’ and not Islamic law. Reliance was placed on the following cases decided by this Court:
Asma Jilani case, PLD 1972 SC 139 Brig. (Retd) F.B. Ali vs. The State, PLD 1975 SC 506; Federation of Pakistan v. United Sugar Mills, Ltd., Karachi, PLD 1977 SC 397; Fauji Foundation vs. Shamimur Rehman, PLD 1983 SC 457. The contention, however, has not impressed us at all. The term ‘positive law’, according to Black’s Law Dictionary, in the law actually enacted or adopted by proper authority for the government of an organized jural society. So this term comprises not only enacted law but also adopted law. It is to be noted that all the above noted cases were decided prior to the induction of Article 2A in the Constitution, which reads as under:
“2A. Objectives Resolution to form part of substantive provisions. The principles and provisions set out in the Objective Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.” It was for the first time in the Constitutional history of Pakistan, that the Objective Resolution, which hence-forth formed part of every constitution as a preamble, was adopted and incorporated in the Constitution, in 1985, and made its effective part. This was an act of the adoption of a body of law by reference, which is not unknown to the lawyers. It is generally done whenever a new legal order is enforced. Here in this country, it had been done after every martial law was imposed or the constitutional order restored after the lifting of martial law. The legislature in the British days had also adopted the Muslim and other religious and customary laws, in the same manner, and they were considered as the positive laws.
This was the stage, when the chosen representatives of people, for the first time accepted the sovereignty of Allah, as the operative part of the Constitution, to be binding on them and vowed that they will exercise only the delegated powers, within the limits fixed by Allah. The power of judicial review of the superior courts also got enhanced.
The above mentioned constitutional change has been acknowledged and accepted as effective by the Supreme Court. Mr. Justice Nasim Hasan Shah, considering the changed authority of the representatives of the people, in the case, Pakistan v. Public at Large, (PLD 1987 SC 304 at p. 356), stated as follows:
“Accordingly, unless it can be shown definitely that the body of Muslims sitting in the legislature have enacted something which is forbidden by Almighty Allah in the Holy Quran or by the Sunnah of the Holy Prophet or of some principle emanating by necessary intendment therefrom no Court can declare such an enactment to be un-Islamic”. Mr. Justice Shafiur Rahman, in his judgment in the same case, also relied on the Article 2A (Objectives Resolution), in forming his view at pages 361 and 362, of the above judgment, as follows:
“The concept of delegated authority held in trust enshrined in verse 58 has invariably and consistently been given an extended meaning. Additionally all authority being delegated authority and being trust, and a sacred one for that matter, must have well defined limits on its enjoyment or exercise. In the Holy Quran more so, but also both in the Western and Eastern jurisprudence delegated authority held in trust has the following attributes:
This aspect was made absolutely clear by the Supreme Court in Federation of Pakistan vs. N.W. F. P. Government (PLD 1990 S.C. 1172 at page 1175) in the following words:
“It is held and ordered that even if the required law is not enacted and/or enforced by 12th of Rabi-ul-Awwal 1411 A.B., the said provision would nevertheless cease to have effect on 12th Rabi-ul-Awwal. In such state of vacuum, vis-à-vis, the statute law on the subject, the common Islamic law/the Injunctions of Islam as contained in Quran and Sunnah relating to offenses of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforesaid.” It is thus clear that the Constitution has adopted the Injunctions of Islam as contained in Quran and Sunnah of the Holy Prophet as the real and the effective law. In that view of the matter, the Injunctions of Islam as contained in Quaran and Sunnah of the Holy Prophet are now the positive law. The Article 2A, made effective and operative the sovereignty of Almighty Allah and it is because of that Article that the legal provisions and principles of law, as embodied in the Objectives Resolution, have become effective and operative. Therefore, every manmade law must now conform to the Injunctions of Islam as contained in Quran and Sunnah of the Holy Prophet(pbuh). Therefore, even the Fundamental Rights as given in the Constitution must not violate the norms of Islam.
It was also argued that the phrase ‘glory of law’ as used in Article 19 of the Constitution cannot be availed with regard to the rights conferred in Article 20. Article 19 which guarantees freedom of speech, expression and press makes it subject to reasonable restrictions imposed by law in the interest of glory of Islam etc., and decency or morality. The restrictions given therein cannot, undoubtedly, be imported into any other fundamental right. Anything, in any fundamental right, which violates the Injunctions of Islam thus must be repugnant. It must be noted here that the Injunctions of Islam, as contained in Quran and the Sunnah, guarantee the rights of the minorities also in such a satisfactory way that no other legal order can offer anything equal. It may further be added that no law can violate them.
It is not correct to say that ‘Azan’ is not mentioned in the Ordinance. In fact sub-section (2) of Section 298-B is exclusively devoted to it. As about the use of ‘Kalima’ by the Ahmadis, in the light of the Ordinance, reference be made to Section 28-C. The ‘Kalima’ is a covenant, on reciting which a non-believer enters the fold of Islam. It is in Arabic form, is exclusive to Muslims who recite it, not only as proof of their faith but very often, for spiritual well being. The ‘Kalima’ means there is no God but Allah and Muhammad is His Prophet. The belief of Quadianis is that Mirza Ghulam Ahmad is (God forbid) Muhammad incarnate. Mirza Ghulam Ahmad wrote in his book, Aik Ghalti Ka Izala, page 4, 3rd Edition, published Rabwah, that:
“in the revelation of verse 48:29, (Muhammad is Allah’s Apostle …. ) Allah named him Muhammad”,. 81. In the ‘Akhbar Badar’, Qadian, dated October 25, 1906, there is a poem, written by Qazi Zahooruddin Akmal, former editor of ‘Review of Religions’, a couplet of which states:
“Muhammad has come back to us, with higher glory and one who wants to see Muhammad accomplished, should go to Qadian. ” This poem was read to Mirza Sahib and he appreciated it. Again in Arbaeen, vol. 4 page 17, he wrote:
“The rays of sun cannot be endured now and we need soothing light, which I am, in the form of Ahmad’. In Khutba Ilhamia, page 171, he declared:
“One who distinguishes between me and Muhammad, he has neither seen me nor known me.” Mirza Ghulam Ahmad further announced:
“I am the accomplishment of the name of Muhammad, i.e. I am shadow of Muhammad”. (See Ha’shin Haqiqatul Wahi, page 72): “I am in view of the verse 62:3 (It is He who has sent forth among the unlettered an apostle of their own to recite to them His revelations to purify them and instruct them in scriptures and wisdom … ); I am the same last Prophet incarnate and God named me in Braheene Ahmadia’ Muhammad and Ahmad, and declared me as personified Muhammad…… (See Aik Ghalti Ka Izala, pages 10-11, published Rabwah).
“I am that mirror which reflects exactly the person and the prophethood of Muhammad”. (Nazulul Masih, page 48, published Qadian, 1909.) In the light of what has been said above, there is general consensus among Muslims that whenever, as Ahmadi recites or displays ‘Kalima’, he proclaims that Mirza Ghulam Ahmad is the Prophet who should be obeyed and the one who does not do that is an infidel. In the alternative, they pose as Muslims and deceive others. Lastly, they either ridicule Muslims or deny that the teachings of the Holy Prophet (pbuh) do not govern the situation. So whatever the situation, the commission of the offense, one way or the other, may be proved.
82. Not only that Mirza Sahib, in his writings, tried to belittle the glory and grace of the Holy Prophet(pbuh), he even ridiculed him occasionally. In Ha’shia Tuhfa Golria’ page 165, Mirza Sahib wrote that:
“the Holy Prophet could not conclude that propagation of Islam and I complete the same”. Again said:
“the Holy Prophet could not understand some of the revelations and he made many mistakes. (See Izalatul Auham, Lahori Press)”. He further said:
“the Holy Prophet had 3 thousands miracles” (See Tuhfa Golria page 67 - published Rabwah) “while I have one million signs”. (See Braheen Ahmadia, page 56). “The Holy Prophet used to eat cheese made by Christians to which they added the pig’s fat”. Mirza Bashir Ahmad wrote in his book ‘Kalimatul Fasal’ page 113, that:
“when Mirza Sahib was bestowed with prophethood, he had attained all the spiritual heights of the Muhammad’s Prophethood and was qualified to be called Prophet incarnate and he went so ahead that he stood side by side with Muhammad (pbuh).” There are many more writings like that but this record may not be burdened further.
83. It is the cardinal faith of every Muslim to believe in every Prophet and praise him. Therefore, if anything is said against the Prophet, it will injure the feelings of a Muslim and may even incite him to the breach of peace, depending on the intensity of the attack. The learned Judge in the High Court has quoted extensively from the Ahmadi literature to show how Mirza Ghulam Ahmad belittled also the other Prophets, particularly, Jesus Christ, whose place he wanted to occupy. We may not, however, repeat that material but two examples may suffice. Mirza Ghulam Ahmad wrote:
“The miracles that the other Prophets possessed individually were all granted to Muhammad (pbuh). They all were then given to me as I am his shadow. It is for this reason that my names are Adam, Abraham, Moses, Noha, David, Joseph, Soloman, John, and Jesus Christ… ” (Matfoozaat Vol. 3, page 270, Printed Rabwah). About Jesus Christ he stated:
“The ancestors of Jesus Christ were pious and innocent? His three paternal grand mothers and matemal grandmothers were prostitutes and whores and that is the blood he represents.” (Appendix Anjaame Atham, note 7). Quran, on the other hand, praises Jesus Christ, his mother and his family. (See 3: 33-37, 3:45-47, 19:16-32). Can any Muslim utter anything against Quran and can anyone who does so claim to be a Muslim? How can then Mirza Ghulam Ahmed or his followers claim to be Muslims? It may also be noted here that, for his above writings, Mirza Sahib could have been convicted and punished, by an English Court, for the offense of blasphemy, under the Blasphemy Act, 1679, with a term of imprisonment.
84. Again, as for the Holy Prophet Muhammad (pbuh) is concerned:
“…every Muslim who is firm in his faith, must love him more than his children, family, parents and much more than any one else in the world.” (See Al-Bukhari, Kitabul Eeman, Bab Hubbul Rasool Min-al Eeman). Can than anyone blame a Muslim if he loses control of himself on hearing, reading or seeing such blasphemous material as has been produced by Mirza Sahib?
85. It is in this background that one should visualize the public conduct of Ahmadis, at the centenary celebrations and imagine the reaction that it might have attracted from the Muslims. So, if an Ahmadi is allowed by the administration or the law to display or chant in public, the Shaa’re Islam’, it is like creating a Rushdi’ out of him. Can the administration in that case guarantee his life, liberty and property and if so at what cost? Again, if this permission is given to a procession or assembly, on the streets or a public place, it is like permitting civil war. It is not a mere guesswork. It has happened, in fact many a time, in the past, and had been checked at cost of colossal loss of life and property (For details, Munir’s report may be seen). The reason is that when an Ahmadi or Ahmadis display in public, on a placard, a badge or a poster or write on walls or ceremonial gates or huntings, the ‘Kalima’, or chant other ‘Shaa’ire Islam’ it would amount to publicly defiling the name of Holy Prophet(pbuh) and also other Prophets, and exalting the name of Mirza Sahib, thus infuriating and instigating the Muslims so that there may be a serious cause for disturbance of the public peace, order and tranquillity and it may result in loss of life and property. The preventive actions in such situations are imperative in order to maintain law and order and save loss or damage to life and property particularly of Ahmadis. In that situation, the decisions of the concerned local authorities cannot be overruled by this Court, in this jurisdiction. they are the best Judges unless contrary is proved in law or fact.
86. The action which gave rise to the present proceedings arose out of the order of the District Magistrate, passed under section 144 Cr. P.C. The Ahmadia community who are the predominant residents of Rabwah were informed of the order of the District Magistrate through their office bearers, by the Resident Magistrate and directed to remove ceremonial gates, banners and illuminations and further ensure that no further writing will be done on the walls. The appellants could not show that the above practices are essential and integral part of their religion. Even the holding of centenary celebrations on the roads and streets was not shown to be the essential and integral part of their religion.
87. The question whether such a requirement is a part of freedom of religion and if they are subject to public safety, law and order etc. has already been discussed in detail, in the light of the judgments from countries like Australia, and the United States, where the fundamental rights are given top priority. We have also quoted judgments even from India. Nowhere the practices which are neither essential nor, integral part of the religion are given priority over the public safety and the law and order. Rather, even the essential religious practices have been sacrificed at the altar of public safety and tranquillity.
88. It is stated by the appellants that they wanted to celebrate the 100 years Ahmadia movement in a harmless and innocent manner, inter alia, by offering special thanks-giving prayers, distribution of sweets amongst children, and servicing of food to the poor. We do not find any order stopping these activities, in private. The Ahmadis like other minorities are free to profess their religion in this country and no one can take away that right of theirs, either by legislation or by executive orders. They must, however, honor the Constitution and the law and should neither desecrate or defile the pious personage of any other religious including Islam, nor should they use their exclusive epithets, descriptions and titles and also avoid using the exclusive names like mosque and practice like ‘Azan’, so that the feelings of the Muslim community are not injured and the people are not mislead or deceived as regard the faith.
89. We also do not think that the Ahmadis will face any difficulty in coining new names, epithets, titles and descriptions for their personages, places and practices. After all, Hindus, Christians, Sikhs and other communities have their own epithets etc., and are celebrating their festivals peacefully and without any law and order problem and trouble. However, the executive, being always under a duty to preserve law and order and safeguard the life, liberty, property and honor of the citizens, shall intervene if there is a threat to any of the above values.
90. It may be mentioned here that the learned single Judge has passed a detailed and well-reasoned order and has sagaciously and candidly taken into consideration judgments from such foreign jurisdictions which would infuse confidence in this hypersensitive, non-Muslim minority, i.e. Ahmadis. Therefore, we instead of further burdening the record, would adopt his reasoning also. The Ordinance is thus held to be not ultravires of the Constitution. The result is that we find that neither is Article 20 of the Constitution attracted to the facts of the case nor is there any merit in this Appeal. The appeal is dismissed.
91. As a result of the above discussion, the connected appeals are also dismissed.
Self Abdul Qadeer Chaudhry, J. Self Muhammad Afzal Lone, Jr. Self Wali Muhammad Khan, J.(signed) SALEEM AKHTAR, J.: -
In C. A. No. 412/1992 in view of section 144(6), the District/Resident Magistrate had no jurisdiction to enforce the order under section 144 Cr. P.C. for an unlimited period. It is therefore partly allowed to that extent.
Self Saleem Akhtar, J.
(Signed) ORDER OF THE COURT
The Court by majority holds that all appeals preferred are liable to be dismissed and are hereby dismissed.
The convicts in Criminal Appeals 31-K to 35-K of 1989 who are on bail shall be taken into custody forthwith and they are required to undergo the remainder of the punishment awarded by the Court.
Self Shafiur Rahman, J.
Self Abdul Qadeer Chaudhry, J. Self Muhammad Afzal Lone, J. Self Saleem Akhtor, J. Self Wali Mohammad Khan, J. Self Shafiur Rehman ACJ Announced in Chamber
Islamabad, 3/7/93 APPROVED FOR REPORTING
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