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Home Critical Analysis/Archives Report on the Situation of Ahmadi Muslims in Pakistan
Report on the Situation of Ahmadi Muslims in Pakistan

SUPREME COURT JUDGMENT — FULL APPEAL DETAILS AND PART 1 OF MINORITY JUDGMENT

IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)

Present:
Mr. Justice Shafiur Rahman
Mr. Justice Abdul Qadeer Chaudhry
Mr. Justice Mohammad Afzal Lone
Mr. Justice Saleem Akhtar
Mr. Justice Wali Mohammad Khan

CRIMINAL APPEALS NO.31-K TO 35-K OF 1988
(On appeal from the judgement of High Court of Baluchistan, Quetta, dated 22- 12-1987
passed in Criminal Revisions No.38/87 to 42/87).

Cr. A. No.31-K/88
Zaheeruddin ...... Appellant
    Versus
The State ...... Respondent

Cr.A No.32-K/88
Rafi Ahmed ...... Appellant
    Versus
The State ...... Respondent

Cr.A.33-K/88
Abdul Majid ...... Appellant
    Versus
The State ...... Respondent

Cr.A.34-K/88
Abdur Rehman Khan ...... Appellant
    Versus
The State ...... Respondent

Cr.A.35-K/88
Ch. Mohammad 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
and Parliamentary Affairs, Islamabad ...... Respondent

C.A.No.150/89
1. Sheikh Muhammad Aslam
2. Sheikh Muhammad Yousaf
3. Noor Muhammad Hashmi ...... Appellants
    Versus
1. Pakistan through Secretary
   Law and Parliamentary Affairs,
   (Law Division), Islamabad,
2. The State ...... Respondents

CIVIL APPEAL NO.412 of 1992
(On appeal from the judgment of Lahore High Court, Lahore, dated 17.9.1991, passed in Writ Petition No.2089/1989).

1. Mirza Khurshid Ahmed
2. Hakeem Khurshid Ahmed ...... Appellants
    Versus
1. Punjab Province through Secretary
   Home Department, Lahore, Lahore.
2. The District Magistrate, Jhang.
3. The Resident Magistrate Rabwa,
   Tehsil Chiniot, District Jhang.
4. Maulana Manzoor Ahmad Chinioti.
5. Abdul Nasir Gill ...... Respondents

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 Baluchistan.

For Complainant In Cr.A.31-K/88
Raja Haq Nawaz, Advocate.
Mr. M. A. I.Qarni,Advocate-on-Record (Absent)

For Appellants in C.As.149 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 2.2.1993.
Syed Inayat Hussain, Advocate-on-Record - only on 3.2.1993
Mr. Gulzar Hassan, Advocate on Record (Absent),
Ch. Akhtar Ali, Advocate on Record.

For Respondents No.1 to 3 in C.A.412/92
Mr. Maqbool Elahi Malik, Advocate-General Punjab.
Mr. M. M. Saeed Beg, Advocate.
Rao Mohammad Yusuf Khan, Advocate-on-Record.

For Respondent No.4 in C.A.412/92.
Mr. M. Ismail Qureshi, Sr. 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, Addl. Advocate-General Balochistan.
Mr. M. Sardar Khan, Advocate-General, N.W.F.P.,
Mr. Maqbool Elahi Malik, Advocate-General, Punjab.
Mr. Abdul Ghafur Mangi, Addl. Advocate General Sindh.

From General Public
Maj.(Rtd) Amir Afzal Khan
Maj.(Rtd) M. Amin Minhas

Date of hearing
30.1.1993, 31.1.1993, 1.2.1993,2.2.1993 and 3.3.1993 (Rawalpindi).

Date of announcement of Judgment.       3.7.1993.

JUDGMENT

SHAFIUR RAHMAN, J. — The question of law of public importance common to all these appeals is whether Ordinance No.XX of 1984 [The Anti-Islamic Activities of the Qadiani Group, Lahori Group and Ahmadies (Prohibition and Punishment) Ordinance, 1984] is ultra vires the Constitution. If not, whether the convictions recorded and the sentences imposed in five criminal appeals are in accordance with section 5 introduced by it.

2. Chronologically considered, Constitution Petition No.2591 of 1984 leading to Civil Appeal No.149 of 1989 was the first to be filed. It was filed on 30.5.1984 within a month and a half of the promulgation of the Ordinance XX of 1984 (which was promulgated on 26.4.1984). The reliefs sought therein were that the Ordinance

(i)
is of no legal effect and is void ab initio since the day it was promulgated;
(ii)
is ultra vires the Provisional Constitution Order,1981.

This Constitution Petition was dismissed in limine on 12.6.1984 treating Article 203-D of the Constitution to be a bar. An Intra Court Appeal was also dismissed in limine on 25.9.1984, by considering the various grounds taken therein on merits. Leave to appeal was granted on 28.12. to examine the vires of the Ordinance XX of 1984 on the touchstone of Fundamental Rights (Article 19 - Freedom of Speech, Article 20 - Freedom of Religion, Article 25 - Equality of citizens).

3. In 1984 Constitution Petition No.2309 of 1984 was filed in the High Court leading to Civil Appeal No.150 of 1989 before us. This petition was amended on 6.6.1984 and the following reliefs were claimed in it:

"The petitioner respectfully prays that -

(i)
the impugned Ordinance No.XX of 1984 is of no legal effect.
(ii)
the petitioner has the fundamental right to profess, practice and propagate his religion.
(iii)
It is further prayed that the Respondent may be directed not to take any action under the Ordinance, against the petitioner, till the final disposal of this writ petition".

This petition too was dismissed in limine on 12.6.1984 treating as barred by Article 203-D of the Constitution. The Intra Court Appeal was also dismissed in limine on 25.9.1984 after discussing all the grounds and without sustaining the bar of Article 203-D of the Constitution. As regards the violation of the Fundamental Rights, the Appeal Bench observed as hereunder:-

"If the Constitution of 1973 had been in force in its entirety the argument of the appellants would have been worth examination but this is not so, for three supra constitutional documents have since July, 1977 eclipsed the Constitution. The first in this context is the Proclamation of Martial Law which became effective on the 5th of July, 1977. It placed the Constitution in abeyance. The second is the Chief Martial Law Administrator's Order No.I of 1977, also known as the Laws (Continuance in Force) Order, 1977. Although clause (i) of Article 2 of this order inter alia did state that Pakistan would be governed as nearly as may be in accordance with the Constitution but then clause (iii) of the same Article placed all Fundamental Rights under suspension. The third document is the Provisional Constitution Order, 1981, promulgated on the 24th of March, 1981. Article 2 of this order has adopted certain provisions of the Constitution of 1973. It is significant to note that the adopted provisions do not include any of the Fundamental Rights, including Article 20 upon which the appellants rely. Thus the said Article like all other Fundamental Rights is not enforcible at present. It is, therefore, idle on the part of the appellants to suggest that the said Article continues to remain a rider on the Ordinance making power of the President. We would accordingly reject the contention of the appellants that even under the present constitutional position the President, while making an Ordinance still suffers from the limitations set out in the Fundamental Rights."

Leave to appeal was granted on 28.2.1989 in terms as in Civil Appeal No.149/1989 as above.

4. Nazir Ahmad Taunsvi an active Muballigh reported at Police Station City Quetta on 17.3.1985 at 6.20 p.m. that on receiving information he went to the Bazar, found Mohammad Hayat appellant in Criminal Appeal No.35-K of 1988, a Quadiani by faith, wearing a badge of Kalma Tayyaba and claiming to be a Muslim. A case under Section 298-C of the Pakistan Penal Code was registered. On trial he was convicted under section 298-C PPC and sentenced to imprisonment till the rising of the court and a fine of rupees three thousand or in default 3 months simple imprisonment. His appeal and revision were dismissed. Leave to appeal was granted on 12.9.1988 to examine the following questions of law:-

"(1)
Whether wearing a “Kalma Tayyaba” badge by an Ahmadi amounts to “posing” as a Muslim so as to come within the mischief of Section 298-C, Pakistan Penal Code;
(2)
Whether the charge framed against the petitioners was in accordance with law, and if not what is its effect; and
(3)
Whether Section 298-C, Pakistan Penal Code is violative of Fundamental Rights Nos.19, 20 and 25?".

5. Nazir Ahmad Taunsvi, lodged two other such reports on 27.3.1985. One (FIR No.49/85). One (FIR No.49/85) made similar complaint against Zaheeruddin (Appellant in Cr.A. 31-K/88) having encountered him at 1.00 pm. in the Bazar with a badge of Kalma Tayyaba and claiming himself to be a Muslim. On trial he was convicted under section 298-C of Pakistan Penal Code and sentenced to one year's rigorous imprisonment and a fine of Rupees one thousand failing which one month's rigorous imprisonment. His appeal and revision against conviction and sentence failed. The other report (FIR No.50/85) was directed on similar facts against Abdur Rehman (Appellant in Cr.A.34-K/88) who he encountered in the Bazar at 3.30 p.m. He was also convicted and sentenced to one year's R.I. and a fine of rupees one thousand or in default one month's R.I. His appeal and revision failed. In both these appeals the leave to appeal was granted as in Criminal Appeal No.35- K/1988.

6. On 11.4.1985, Haji Baaz Muhammad a shopkeeper lodged a report (FIR No.59/85 City Quetta) complaining that a customer came in his shop with a badge of Kalma Tayyaba. He disclosed his name as Majid (appellant in Cr.A.No.33-K/88) and claimed to be a Quadiani. On trial he was convicted under section 298-C of Pakistan Penal Code and sentenced to one year's R.I. and a fine of rupees one thousand or in default one month's R.I. His appeal and revision failed. He was granted leave to appeal in terms as in Criminal Appeal No.35-K/1988.

7. On 8.5.1985, Muhammad Azim another shopkeeper lodged a report (FIR No.74/1985 P.S. City Quetta) complaining that Rafi Ahmed (appellant in Cr.A.32-K/88) appeared before him with a badge of Kalma Tayyaba though he was a Qadiani. He was tried and convicted under section 298-C of Pakistan Penal Code and sentenced to one year's R.I. and a fine of rupees one thousand or in default one month's R.I. His appeal and revision failed. He was granted leave to appeal as in Criminal Appeal No.35-K/1988.

8. A Constitution Petition (No.2089/1989) was filed on 12.4.1989 challenging the decision of the Punjab Government dated 20.3.1989, its implementation by District Magistrate Jhang by order dated 21.3.1989 and its extension till further orders by order dated 25.3.1989 by Resident Magistrate. The effect of these decisions/orders was that the Quadianis in District Jhang were prohibited from indulging in following activities:-

I..)
Illumination on buildings and premises;

II..)

Erection of decorative gates;

III..)
Holding of processions and meetings;
IV..)
Use of loudspeaker or megaphone;
V..)
Raising of Slogans;
VI..)
Exhibition of badges, buntings and banners etc;
VII..)
Distribution of Pamphlets and pasting of posters on the walls andwall-writings;
VIII..)
Distribution of sweets and service of food;
IX..)
Any other activity directly or indirectly which may incite and injure the religious feelings of Muslims".

The High Court by an exhaustive judgment dismissed this petition. Leave to appeal was granted (Civil Appeal No.412 of 1992) by reference to order granting leave in Civil Appeals No.149/89 and 150/89.

9. Mr. Fakhruddin G. Ebrahim, Sr. Advocate, the learned counsel for the appellants in five Criminal Appeals (Cr. Appeals No.31-K to 35-K/1988) has mainly taken up the constitutional vires of the Ordinance XX of 1984. According to him, Ordinance XX of 1984 is oppressively unjust, abominably vague, perverse, discriminatory, product of biased mind, so mala fide 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 categorised the Quadianis and Ahmadis as non-muslim, by clause (3) of Article 260 proceeds further to distinguish from among non-muslims the Quadianis 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 Kalma Tayyaba, 36 for reciting Azaan, 251 for preaching religion, 676 for posing as a muslim, 52 for using arabic expressions like "_______" 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 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 versus Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lahore 113), Mujibur Rehman and 3 others versus 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 223 of the Constitution to emphasise that Article 20 of the Constitution is one of those provisions of the Constitution which cannot be suspended even during the emergency. One the question as to what is religion, the learned counsel has referred to The Commissioner, Hindu Religious Endowments, Madras versus Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 S.C. 282), Ratilal Panachand Gandhi and others versus State of Bombay and others (AIR 1954 S.C. 388) and Ramanasramam by its Secretary G.Sambasiva Rao and others versus The Commissioner for Hindu Religious and Charitable Endowments, Madras (AIR 1961 Madras 265). He has also referred to "Fundamental Rights and Constitutional Remedies in Pakistan by S. Sharifuddin Pirzada" - page 319 relating to former Article 10 (Freedom to profess religion and to manage religious institutions), and to Mr. Justice Tanzil-ur-Rehman's view on Article 20 published as "Constitution and the Freedom of Religion" in PLD 1989 Journal 17. He has also referred to "Fundamental Law of Pakistan by A. K. Brohi" page 317 and to Article "Quaid-e-Azam's Contribution to the Cause of Human Rights" by Mr. Justice Dr. Nasim Hasan Shah published in PLD 1977 Journal page 13 paras 6 and 17 wherein rights enshrined in Article 20 of the Constitution have been dealt with. 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 decisions of the Supreme Court in Jibendra Kishore Achharyya Chowdhury and 58 others versus The Province of East Pakistan and Secretary Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 S.C.9 at page 41), Messrs East and West Steamship Company versus Pakistan (PLD 1958 S.C. 41), and Sarfraz Hussain Bokhari versus District Magistrate, Kasur and others (PLJ 1983 SC 348). 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 S 198, Haji Ghulam Zamin and another versus A. B. Khondkar and others (PLD 1965 Dacca 156 at page 180), K.A. Abbas versus The Union of India and another (AIR 1971 S.C. 481, at page 497) and State of Madhya Pradesh and another versus Baldeo Prasad (AIR 1961 S.C. 293).

Finally, the learned counsel has referred to the opinion formed with regard to this law by the International Community in the form of reports submitted by the International Committee of Jurists in 1987 (pages 103 to 115) and Amnesty International in 1991.

10. Mr. Mujeebur 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 Kalma Tayyaba. 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 Kalma Tayyaba or for that matter wearing of a badge of Kalma Tayyaba was considered to be one of permissible practices of the Quadianis 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. In support of this proposition he has referred to Maxwell on the Interpretation of Statutes (Twelfth Edition) by P.St.J. Langan - page 293 and Crawford's Statutory Construction page 334. Another principle invoked by him is that being a penal statute, a strict construction has to prevail and has to be preferred and for this reliance has been placed on Rehmat Aslam versus The Crown (PLD 1952 Lahore 578), Mazhar Ali Khan, Printer & Publisher of the Daily "Imroze" versus The Governor of the Punjab (PLD 1954 Lahore 14), Khizar Hayat and 5 others versus The Commissioner, Sargodha Division and the Deputy Commissioner, Sargodha (PLD 1965 Lahore 349), Qasu and 2 others versus The State (PLD 1969 Lahore 48), Messrs Hirjina and Co.(Pakistan) Ltd., Karachi versus Commissioner of Sales Tax Central, Karachi (1971 S.C.M.R. 128) and Muhammad Ali versus State Bank of Pakistan, Karachi and another (1973 S.C.M.R. 140).

Mr. Mujeebur Rahman, the learned counsel also contended that the word "oath" has to be read in its context and the principle of "Noscitur a Sociis" gets attracted. There cannot be any enlargement of the context, meaning or scope by bringing in what is not mentioned therein. He has interpreted, and applying the principle of "Ejusdem Generis" restricted the operation of the statute to what is expressly mentioned. He considers, what is mentioned after the word "or" is enumerative, illustrative, stipulative and exhaustive. On his reasoning the convicts were guilty of no offence in spite of their admitting on the factual plane that they were wearing such badges and were Quadianis.

11. Mr. Aziz Ahmad Bajwa, Advocate, the learned counsel for the appellants in Civil Appeal No.412 of 1992 in arguing his case mainly confined himself to the provisions of Provisional Constitution Order, 1981 to make out a case on the strength of Miss Benazir Bhutto versus Federation of Pakistan and another (PLD 1988 S.C. 416 = PLJ 1988 S.C. 306) Fundamental Rights could even then be invoked for challenging the vires of the Ordinance XX 1984 because it could not be in violation of Article 20 of the Constitution which was suspended. The Supreme Court having conceded the limited right to the Martial Law Administrator in Miss Asma Jilani versus The Government of the Punjab and another (PLD 1972 S.C. 139) could not permit his making of such a statute. It was additionally under clause (3) of Article 227 of the Constitution violative of the personal law of the Quadianis. Ordinance XX of 1984, according to the learned counsel, was malicious and on that account not a good law at all in view of the decision of this court in Pakistan, through Secretary, Cabinet Division, Islamabad and others versus Nawabzada Muhammad Umar Khan (deceased) now represented by Khawaja Muhammad Khan of Hoti and others (1992 SCMR 2450).

12. Syed Riazul Hassan Gilani, Advocate, the learned counsel representing the Federal Government has raised a preliminary objection based on the decisions of the Federal Shariat Court and of the Shariat Appellate Bench of this Court reported in Mujibur Rehman and 3 others versus Federal Government of Pakistan and another (PLD 1985 Federal Shariat Court 8) and Capt.(Retd) Abdul Wajid and 4 others versus Federal Government of Pakistan (PLD 1988 S.C. 167) respectively. According to him Ordinance XX of 1984 was directly challenged before the Federal Shariat Court on the ground of its being repugnant to the injunctions of Islam and violative of the Fundamental Rights. The Federal Shariat Court had negatived the contention and the Shariat Appellate Bench of the Supreme Court had while allowing the withdrawal of the appeal held that the judgment of the Federal Shariat Court shall remain in the field. In view of the decision of the Supreme Court in Ms. Aziz Begum and others versus Federation of Pakistan and others (PLD 1990 SC 899) the decision of the Shariat Appellate Bench of the Supreme Court will hold the field and is not open to examination or review by the Supreme Court otherwise. The only course open was for the appellants to seek a review of that judgment instead of reopening the question decided in that jurisdiction.

The learned counsel for the Federal Government has on merits taken us to "Thoughts and Reflections of Iqbal" edited with notes by Syed Abdul Wahid from pages 246 to 306 in order to highlight that unity of God and finality of Prophet (peace be upon Him) are the two basic conepts of Islam and eroding anyone of them would justify the exclusion of those doing so from the community. This according to the learned counsel justified the constitutional amendment introduced unanimously by clause (3) in Article 260 of the Constitution. On the same principle, the protective measures adopted by Ordinance XX of 1984 will be treated as a mere logical consequences of the constitutional amendment and if the constitutional amendment stands so will all that logically follows from it including the provisions of the Ordinance XX of 1984.

It was further contended by the learned counsel representating the Federal Government that the expression "subject to law" in Article 20 of the Constitution implies necessarily the injunctions of Islam. The Fundamental Rights, therefore, enshrined in Article 20 of the Constitution have to be further controlled and contained by the Injunctions of Islam. The injunctions of these aspects of the religion being clearly brought out and having been incorporated in Article 260(3) of the Constitution, no such right as is claimed by the appellants, can be allowed to be exercised publicly to the annoyance, detriment and subversion of the Islamic faith. Additionally it is contended that what the Article 20 of the Constitution guarantees is the propagation and preaching of one's own faith and not the subversion and the mutilation of somebody else's religion. In doing what the appellants have been found to be doing or claiming a right to do, they are only subverting and mutilating the religion of others living in Pakistan and not in fact observing their own religion. It is, according to the learned counsel for the Federal Government, an obligation of the State under Article 31 to preserve, protect and strengthen the Islamic Ideology against every other.

It was also contended that the State power can be exercised to avoid clash of ideologies in the matter of religion and the State can exercise the power of preventing those who are encroaching on it by keeping them within contentment or limits by prohibiting certain parts which are likely to create law and order problem.

Finally the learned counsel for the Federal Government pointed out that what the impugned Ordinance (XX of 1984) accomplishes is all within the ambit of Islamic Injunction. It establishes, and reinforces the Prophethood of Muhammad (peace be upon him). It protects the prayers and the mosques. It prohibits "Ilhaad" or subversion of the religion and it protects against hurting the religious feelings of others in majority. These are all laudable objects recognised by the Injunctions of Islam and permitted by the constitutional provisions in Islamic State. In this background, both on the constitutional plane, on the grounds of public order and morality, the provisions made in the impugned Ordinance (XX of 1984) are not violative of any of the rights of the appellants. He also pointed out to the main features of the Ordinance and Article 20 of the Constitution in order to demonstrate that the observance of the ritual by the individual and the protection of the institutions by the religion both were covered by Article 20 and the Ordinance only made that protection concrete, descriptive and certain by specifications, enumerations and descriptions.

13. Mr. Ismail Qureshi, Advocate, representing the Tahafuz-e-Khatm-e-Nubuwwat Group contended that Article 260(3) of the Constitution having declared the Quadianis as non-muslim, any attempt to pose as muslims by them is violative of the provisions of the Constitution and it is that practising fraud or misdescription which is sought to be controlled by Ordinance XX of 1984.

Article 20 confers no absolute right to profess religion but it has to be in conformity with other provisions and public morality. In that context, the impugned Ordinance advances what is provided is clause (3) of Article 260 of the Constitution and recognises and protects both the religion of the majority as well as of the declared minority. In that context, the proceedings taken under Article 144 of the Criminal Procedure Code were appropriate and justified besides that order under section 144 Cr. P.C. was limited to a period of less than a week and there could be no objection subsisting over it.

14. The chronological history of the Constitution Petitions under consideration clearly gives the impression that except for Constitution Petition No.2089 of 1989 (now Civil Appeal No.412 of 1992 before us) all other matters related to events taking place in 1984 and early 1985 when the Fundamental Rights were not available for challenging the proceedings. It is for this reason that in the very first matter (Civil Appeal No.149 of 1989) the challenge to Ordinance No.XX of 1984 was by reference to the Provisional Constitution Order of 1981. However, the convictions in the criminal cases had taken place in July, 1986 and at that time Fundamental Rights were in full force and could be invoked for avoiding the conviction notwithstanding that the events reported related to a period when the Fundamental Rights were not enforceable. In any case, therefore, these matters are required to be examined and are being examined on the touchstone of the constitutional provisions as contained in the revived Constitution and the Fundamental Rights contained therein.

15. So far as Civil Appeal No.412 of 1992 arising out of Constitution Petition No.2089 of 1989 is concerned, it related substantially to a transitory matter namely, the order passed under Section 144 Cr. P.C. which was passed on 21.3.1989 and was to remain in force till 25.3.1989. Thereafter an order of the Resident Magistrate was brought under challenge which was passed on 25.3.1989 whereunder on the instructions of Assistant Commissioner Chiniot this order of 21.3.1989 was given an indefinite extension in time till further orders. Both these orders and the challenge to them find mention in Mirza Khurshid Ahmad and another versus Government of Punjab and others (PLD 1992 Lahore 1 at pages 14 to 16). The justification for the order dated 21.3.1989 was gone into. Its validity upheld. As regards the order of the Resident Magistrate, it did not receive that attention which it should have on the legal plane. There is no authority possessed by the Assistant Commissioner, the District Magistrate, the Resident Magistrate or the Home Department of the Government to extend indefinitely till further orders an order passed under section 144 Cr.P.C. This part of the order recorded by the Resident Magistrate referring to an order by the Assistant Commissioner had to be declared as without lawful authority and of no legal effect. None of the counsel appearing at the hearing, not even the Advocate-General, has been able to sustain this order recorded by the Resident Magistrate. Hence, the Appeal (Civil Appeal No.412 of 1992) is allowed to this extent with no order as to costs.

16. Taking up the constitutional provisions relevant to the subject under examination, clause (3) of Article 260 of the Constitution is of importance. It is reproduced in extenso as hereunder:-

"In the Constitution and all enactments and other legal instruments, unless there is anything repugnant in the subject or context, -
"(a)
"Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him); and
(b)
"non-Muslim" means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Budhist or Parsi community, a person of the Quadiani group or the Lahori group (who call themselves "Ahmadis" or by any other name), or a Bahai, and a person belonging to any of the scheduled castes."

Article 20 of the Constitution in the Chapter of Fundamental Rights, which requires pointed attention, is reproduced hereunder:

"20. Freedom to profess religion and to manage religious institutions. Subject to law, public order and morality,
(a)
every citizen shall have the right to profess, practise and propagate his religion; and
(b)
every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions."

Article 19 and 25, which have also been referred to for providing strength, meaning and effect to the Fundamental Right contained in Article 20, relate to Freedom of speech, etc. (Article 19) and Equality of citizens before law (Article 25).

17. On the basis of Article 2-A of the Constitution having been made a substantive part of our Constitution, an argument was advanced that the other provisions of the Constitution should all be read, interpreted and applied as if they are additionally subordinate to and controlled by injunctions of Islam. Even the Fundamental Rights invoked in these appeals and the others not in issue should also interpreted as if subordinate to injunctions of Islam. The further argument thereafter is that as held by the Federal Shariat Court in Mujibur Rehman and 3 others versus Federal Government of Pakistan and another (PLD 1985 FSC 8) the Injunctions of Islam clearly prohibit what the appellants are alleged to have done or are doing as a matter of religious ceremony, or practice.

On this reasoning it follows, according to the contenders, that the impugned law is neither violative of any of the constitutional provisions nor of the Fundamental Rights invoked in these cases.

18. The effect of introduction of Article 2-A of the Constitution and its becoming a substantive provision of the Constitution has been considered at great length by this court in Hakim Khan and 3 others versus Government of Pakistan through Secretary Interior and others (PLD 1992 S.C. 595). Its effect on the other constitutional provisions and as a controlling and supervening provision has been considered as per Dr. Nasim Hasan Shah, J. (now the Chief Justice) in the following words:-

"This rule of interpretation does not appear to have been given effect to in the judgment of the High Court on its view that Article 2A is a supra-Constitutional provision. Because, if this be its true status then the above-quoted clause would require the framing of an entirely new Constitution. And even if Article 2A really meant that after its introduction it is to become in control of the other provisions of the Constitution, then most of the articles of the existing Constitution will become questionable on the ground of their alleged inconsistency with the provisions of the Objectives Resolution............... Thus, instead of making the 1973 Constitution more purposeful, such an interpretation of Article 2A, namely that it is in control of all the other provisions of the Constitution would result in undermining it and pave the way for its eventual destruction or at least its continuance in its present form. .....................The role of the Objectives Resolution, accordingly in my humble view, notwithstanding the insertion of Article 2A in the Constitution (whereby the said Objectives Resolution has been made a substantive part thereof) has not been fundamentally transformed from the role envisaged for it at the outset; namely that it should serve as beacon light for the Constitution-makers and guide them to formulate such provisions for the constitution which reflect ideals and the objectives set forth therein.................. In practical terms, this implies in the changed context, that the impugned provision of the Constitution shall be corrected by suitably mending it through the amendment process laid down in the Constitution itself".

As per Shafiur Rahman, J. it was considered as hereunder:

"The provisions of Article 2A were never intended at any state to be self-executory or to be adopted as a test of repugnancy or of contrariety. It was beyond the power of the Court to have applied the test of repugnancy by invoking Article 2A of the Constitution for striking down any other provision of the Constitution. (Article 45)".

19. Another preliminary legal argument against the case set out by the appellants was that Fundamental Right 20 which was invoked was itself subject to law and Ordinance No.XX 1984 qualifies as law for the purposes of Article 20 of the Constitution. Therefore, the impugned provisions thereof will hold good notwithstandintg any apparent or substantial conflict with its provisions. This argument or such an argument has been adequately and effectively dealt with by the Supreme Court as early as January, 1956 in Jibendra Kishore Achharyya Chowdhury and 58 others versus The Province of East Pakistan and Secretary, Finance and Revenue (Revenue Department, Government of Pakistan 1957 S.C. 9 at page 41) in the following words:

"There can be no doubt that these drastic provisions of the Act strike religious institutions at their very root, and the question is whether, that being the effect of the provisions, they constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution? In the High Court, Mr. Brohi's bold and categorical assertion that the rights referred to in Article 18 are "subject to law" and may therefore be taken away by the law, succeeded. That assertion has been repeated before us, but I have not the slightest hesitation in rejecting it. The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law. I am unable to attribute any such intent to the makers of the Constitution who in their anxiety to regulate the lives of the Muslims of Pakistan in accordance with the Holy Quran and Sunnah could not possibly have intended to empower the legislature to take away from the Muslims the right to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions, and who in their conception of the ideal of a free, tolerant and democratic society could not have denied a similar right to the non-Muslim citizens of the State. If the argument of Mr. Brohi is sound, it would follow, and he admitted that it would, that the legislature may today interdict the profession of Islam by the citizens because the right to profess, practise and propagate religion is under the Article as much subject to law as the right to establish, maintain and manage religious institutions. I refuse to be a party to any such pedantic, technical and narrow construction of the Article in question, for I consider it to be a fundamental canon of construction that a Constitution should receive a liberal interpretation in favour of the citizen, especially with respect to those provisions which were designed to safeguard the freedom of conscience and worship. Consistently, with the language used, constitutional instructions should receive a broader and more liberal construction than statutes, for the power dealt with in the former case is original and unlimited and in the latter case limited, and constitutional rights should not be permitted to be nulified or evaded by astute verbal criticism, without regard to the fundamental aim and object of the instrument and the principles on which it is based. If the language is not explicit, or admits of doubt, it should be presumed that the provision was intended to be in accordance with the acknowledged principles of justice and liberty. Accordingly, in doubtful cases that particular construction should be preferred which does not violate those principles. In the light of these rules of construction of constitutional instruments it seems to me that what Article 18 means is that every citizen has the right to profess, practise and propagate his religion and every sect of a religious denomination has the right to establish, maintain and manage its religious institutions, though the law may regulate the manner in which religion is to be professed practised and propagated and religious institutions are to be established, maintained and managed. The words "the right to establish, subject to law religious institutions" cannot and do not mean that such institutions may be abolished altogether by the law".

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