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SUPREME COURT JUDGMENT — MINORITY JUDGMENT CONTINUED
20. Ordinance XX of 1984 which is being examined was promulgated by the President on the 26 of April, 1984 "in pursuance of the proclamation of the fifth day of July, 1977, and in exercise of all powers enabling him in that behalf". In making the Ordinance and promulgating it the then President suffered from no constitutional restraints of Fundamental Rights or other provisions. His will was supreme. The entire Ordinance has not been subjected to scrutiny in these proceedings. The portions which have received pointed attention and challenge relate to section 3 of the Ordinance adding new sections 298-B and 298-C in the Pakistan Penal Code Act (XLV of 1860), and are reproduced hereunder :-
(1) "298-B. Misuse of epithets, descriptions and titles, etc. reserved for certain holy personages or places. (1) Any person of the 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:-
(2) Any person of the Quadiani group 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 prayers followed by his faith as "Azan", or recites Azan as used by the 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."
(2) "298-C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith. - Any person of the Quadiani group or the Lahori group (who call themselves "Ahmadis" or by any other name), "who directly or indirectly,"
"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 298-C has been broken in clauses in order to make its effect, examination and scrutiny easier.
21. This Ordinance XX of 1984 by its section 2 provides that "provisions of this Ordinance shall have effect notwithstanding any order or decision of any Court." This section has its background and reference to the case of Abdur Rahman Mobashir and 3 others versus Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lahore 113) where the tenets of Quadiani or Ahmadi faith were examined in great detail with a view to ascertain what rights others could have in challenging them, prohibiting or preventing them or in avoiding them. However, it is not necessary to reproduce the conclusions drawn therein because it stands over-ridden by this Ordinance XX of 1984 and in any case the test is the Fundamental Right, a constitutional provision and not a civil right which was in issue in that case. Nevertheless it must be stated that it is a very exhaustive and illuminative judgment on the subject.
22. The learned counsel for the appellants has taken exception to the provision (d) and subsection (2) of section 298-B of the PPC as introduced by the ordinance. It concerns the naming of the place of worship by the Quadianis and Ahmadis as "Masjid" and calling of "Azan". Historically this has been shown in the Lahore High Court case to be a tenet or a practise of Ahmadis or Quadianis not of recent origin or device and adopted not with a view to annoy or outrage the feelings and sentiments of non-Ahmadis and non-Quadianis. Being an essential element of their faith and not being offensive per se prohibition on the use of these by them and making it an offence punishable with imprisonment and fine violates the Fundamental Right of religious freedom of professing, practising and propagating and of Fundamental Right of equality in as much as only Quadianis or Ahmadis are prevented from doing so and not other religious minorities. It is not the "Azan" or the naming of the "Masjid" which has been made objectionable by law but doing of these by Ahmadis or Quadianis alone.
23. The learned counsel for the appellants has taken strong exception to Section 298-C clause (a) of the PPC on the ground that the word "posing" is abominably vague and incapable of judicial enforcement. We are not inclined to agree with him because already in the language of law the words like "fraud", "misrepresentation", "deception", "cheating" which have a wide undefined connotation are in use and have meaning similar to that of "posing". With the constitutional mandate in the background providing that Ahmadis and Quadianis shall be for the purposes of law and constitution dealt with in this country as non-Muslim prevents them from giving themselves out as Muslims. Such a provision is in advancement of the constitutional mandate and not in derogation of it. Therefore, if any Ahmadi or Quadiani claims to be or given out publicly to be a Muslim then he would be acting in violation of the constitutional provision contained in Article 260(3). Such a provision could certainly be made with the framework of the Constitution and the Fundamental Rights an offence. This argument equally applies to clause (b) as made out above of Section 298-C of the PPC.
24. As regards clause (e) of section 298-C, the law cannot be said to be violative of Fundamental Right of religion or speech where it punishes acts outraging the religious feelings of a particular group or of the general public as such. Nobody has a Fundamental Right or can have one of outraging the religious feelings of others while propagating his own religion or faith. Therefore, clauses (a), (b) and (e) as found in Section 298-C are consistent with the constitutional provisions contained in Articles 19, 20 and 260(3).
25. On the reasoning that has been adopted in interpreting these relevant articles of the Constitution, clauses (c) and (d) of section 298-C of PPC as reproduced above standing by themselves, individually or the two together would be violative of the Fundamental Right of religious freedom and of equality and of the speech in so far as they prohibit and penalise only the Ahmadis and Quadianis from preaching or propagating their faith by words written or spoken or by visible representation. Invitation to one's own faith when it is not accompanied by any other objectionable feature cannot be condemned. However, if the acts mentioned in clauses (c) and (d) are accompanied with what is provided in clause (e) or has the effect of clauses (a) and (b) then the act will be penal under these relevant clauses and not under clauses (c) and (d). To this extent clauses (c) and (d) of section 298-C PPC as reproduced in the judgment and as interpreted would be ultra vires the Constitution.
26. So far as the five appeals arising out of criminal trial (Criminal Appeals 31-K to 35-K/88) are concerned, we find that three of them have originated in the complaint of Nazir Ahmad Taunsvi directly concerned with the Khatm-e-Nubuwwat movement who made a grievance of the fact that certain persons were roaming about in the Bazar with the badges of 'Kalma Tayyabba' exhibited on their chest. They were known to be Quadiani.
Some of them on being questioned said that they were Muslim. This act of theirs of wearing a badge of the 'Kalma Tayyabba' was taken to be their posing as Muslim. This conviction is defective because in view of the discussion and findings already recorded for an Ahmadi to wear a badge having 'Kalma Tayyabba' inscribed on it does not per se amount to outraging the feelings of Muslims nor does it amount to his posing as a Muslim. It was admitted and is common knowledge that those who are Muslim do not in order to prove their religion of Islam wear badges of the 'Kalma Tayyabba'. This is done by those who are constitutionally classified as non-muslims. Therefore, there should be no element of posing or representation by non-Muslims by wearing the 'Kalma Tayyabba' as Muslims in the existing situation.
27. As regards the allegation that on being questioned and interrogated they gave the reply that they were Muslims while in fact they were Quadiani or Ahmadis, that too will not be an offence under the law. Posing involves voluntary representation. In giving reply to a question one does not respond voluntarily but as would appear from the circumstances of these cases under threat or duress. One may hide his religion in public to protect himself physically preferring the lesser evil of criminal prosecution or one may avoid and give an evasive reply. This conduct will not be reprehensible, particularly when so the person asking the question has no authority in law to ask these questions or to exact a correct reply, nor the statement is being made on oath.
28. The other two Criminal appeals (Criminal Appeals No.32-K and 33-K of 1988) relate to reports lodged by individuals not so connected with any religious movement as such. They felt offended and insulted only because the 'Kalma Tayyabba' badge was worn by the persons known to be Ahmadi or Quadiani. There was no representation by words of mouth or otherwise by those by those wearing the 'Kalma Tayyabba' badges that they were Muslims and not Quadianis or Ahmadis.
The exhibition or use of 'Kalma Tayyabba' correctly reproduced, properly and respectfully exhibited cannot be made a ground per se for action against those who use 'Kalma Tayyabba' in such a manner. If for ascertaining its peculiar meaning and effect one has to reach the inner recesses of the mind of the man wearing or using it and to his belief for making it an offence then the exercise with regard to belief and the meaning of it for that person and the purpose of using and exhibiting the 'Kalma Tayyabba' would be beyond the scope of the law and in any case it will infringe directly the religious freedom guaranteed and enjoyed by the citizens under the Constitution, where mere belief unattended by unobjectionable conduct cannot be objected to.
29. Our difficulty in handling appeals has been that the respondents have by and large argued the matter as if the vires of the impugned portions of the Ordinance are being tested for their inconsistency more with injunctions of Islam than for their inconsistency with the Fundamental Rights. This has brought in religious scholars volunteering to assist the court generating lot of avoidable heat and controversy at the argument and post argument stage.
30. The result of the above discussion is that the Criminal Appeals No.31-K/1988 to 35-K/1988 are allowed, the conviction and sentence of the appellants is set aside. Further, the provisions of clause (d) and subsection (2) of section 298-B and portions (c) and (d) of section 298-C of the Pakistan Penal Code, reproduced in paragraph 20 of the judgment, are declared to be ultra vires the Fundamental Rights 20 and 25.
31. Civil Appeals No.149 of 1989 are also partly allowed to the extent the portions of the Ordinance XX of 1984 have been held to be ultra vires the Fundamental Rights 19, 20 and 25. No order is made as to costs.