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SUPREME COURT JUDGMENT — MAJORITY JUDGMENT — JUSTICE ABDUL QADEER CHAUDHRY'S COMMENTS (Contd.)
The Muslims think that the birth of this Ahmadis community during the English rule in the subcontinent, among the Muslim society, was a serious and organised attack on its ideological frontiers. They consider it a permanent threat to their integrity and solidarity, because the socio-political organisation 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 desecration of their holy personages, is a threat to the integrity of 'Ummah' and tranquility 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 Iqbal says, "I become 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. This belief is held under the instructions of Mirza Ghulam Ahmad himself, who had declared :
a) "Every Muslim loves my books, benefits from the contents thereof and accepts them except those who are offsprings of whores and prostitutes and whose hearts have been sealed." (Aainae Kamalaat, pages 547 and 548.)
One may note the language of a "prophet" and the effect it can have on the addressees.
b) There are many more examples of the language like the above but just one more may suffice for the present: "My enemies are swines and their women are worse than bitches." (Najmul Huda by Ghulam Ahmad, page 10).
c) Quoting Mirza Ghulam Ahmad, his second caliph, Mirza Bashiruddin Ahmad (also his son), in his address to the students, as reported in Alfazal, 30th July, 1931, advised them as to their relationship with the main body of Muslims, as under :-
"This discussion has been going on since the days of Mirza Ghulam Ahmad whether the Ahmadis should have their permanent places of theological learning or not. One view was against it. Their argument was that the few differences between the Ahmadis and Muslims had been resolved by Hazrat Sahib and he has taught the reasons also. As regards the others they can be learnt in the other schools. The other view was for it. Then Mirza Sahib came to clarify that it was incorrect to say that the differences of Ahmadis with the Muslims were only about the death of Jesus Christ and some other issues. According to him the differences encompassed the entity of Almighty Allah, the person of the Holy Prophet, Quran, Prayers, Fasting, Pilgrimage and Zakat. He then explained every item in detail."
d) "It has been revealed to me by Allah that any one who does not follow you, does not covenant his allegiance to you and rather opposes you, he is a rebel of Allah and his prophet and shall be entrusted to the fire of Hell." (Advertisement in Meyarul Akhyar - from Mirza Ghulam Ahmad Quadiani, page 8).
e) Addressing his followers Mirza Sahib stated: "Remember, that Allah has informed me that it is prohibited for you, to offer prayers in the leadership of the ones who deny me, believe me or reject me. Rather, your leader in prayers should be one from amongst you." (Arbaeen No.3 page 28 footnote).
f) "Now it is clear and it has been repeatedly said in revelations about me that I have been sent by Allah, ordained by Allah, am a delegates of Allah, have come from Allah and you have to believe whatever I say otherwise you will go to Hell." (Anjame Atham by Mirza Ghulam Ahmad Quadiani, page 62).
g) "Those who are my opponents have been included in the list of Christians, Jews and infidels. "(Nazoolul Masih, Quadian, 1909).
h) "One who does not believe in me does not believe in Allah and the Holy Prophet, as their prophesy about me is there." (Haqiqatul Wahi, 1906, page 163-164).
i) When somebody is said to have asked Mirza Ghulam Ahmad as to what is the harm to offer prayers in the leadership of those who did not consider him infidel, he in a long reply concluded that "a long advertisement be published by such leaders of prayers, about those declaring me an infidel and then I shall consider them a Muslim so that you may follow them in prayers…." (Badar, 24th May, 1908, as recorded in Majmua Fataava Ahmadia, Vol. I page 307).
j) "Almighty Allah has revealed to me that anyone who has received my message and has not believed in me is an infidel." (See the letter of Mirza Ghulam Ahmad to Dr. Abdul Rahim Khan Patialvi, Haqiqatul Wahi page 163).
k) "One who mischeviously repeats that Mirza Sahib's prophesies about the death of Atham were incorrect and that the Christians won the debate and instead of acting justly and fairly, and accepting my victory, raises allegations, he shall be considered to be fond of being known as the illegitimate and not a legitimate issue". (Anwarul Islam, by Mirza Ghulam Ahmad, page 30).
There are scores of other similar writings, not only by Mirza Sahib himself but his so called 'caliphs' 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 alongwith them. According to him the main body of the Muslims could, at the most, be treated like Christians.
In fact Mirza Bashiruddin 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 a 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 sections 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 endeavoured 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 compaign 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 recognised, in favour 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 to made to the case of Sardar Syedna 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 heresy, 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 'Dai' as head of the Community to excommunicate even on religious grounds. It therefore, clearly interferes with the right of Dawoodi Bohra Community under cl.(b) of Art. 26 of the Constitution."
"(41) That excommunication of a 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 thought 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. Mansoor Ali and others (AIR 1948 PC 66) at para 53. The following observations of their Lordships may be reproduced with advantage:-
"The next question is whether the Dai-ul-Mutlaq has the power of excommunication. It was undoubtedly exercised by Mohammad 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. May be, 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 seem 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:-
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 to 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 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 fairly inform a person of what is commanded or prohibited, is unconstitutional, being violative of the 'due process'. The judgments from Indian jurisdiction and Ghulam Zamir V. AB. 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 undertermined 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 offence, as given in the law are so indefinite that line between innocent and condemned conducted 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 back ground 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 offence of personation, in sections 140, 170, 171, 171D, 205, 229 and 416. This offence 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 offence wearing garb etc. used by a class of public servants. These two sections rely on visible indicators.
Section 171D, makes offence 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 breed altogether. It provides; whoever, falsely personates another, and in such assumed character makes any admission or statement….shall be punished….
Section 229 creates an offence to become a juror by personation or otherwise. Last is section 416, 'to cheat by personation' 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 descrating 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 Connally Vs. General Construction Co- (1926) 269 U.S. 385, 391).
Such vagueness occurrs when a legislature states its proscriptions in terms so indefinite that line betwen 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 gathers no help from the above either, as the contents of the law, in the light of the Constitution and the 'Shaaire 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, organised, 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
The contention, however, has not impressed us at all. The term 'positive law', according to Black's Law Dictionary, is the law actually enacted or adopted by proper authority for the government of an organised 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 henceforth formed part of every Constitution as a preamable, 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.H. the said provision would nevertheless cease to have effect on 12th Rabi-ul-Awwal. In such state of vaccum, vis-a-vis, the statute law on the subject, the common Islamic law/ the Injunctions of Islam as contained in Quran and Sunnah relating to offences 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 Quran 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 Objective Resolution, have become effective and operative. Therefore, every man- made 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 Ahmadies, 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, (Mohammad is Allah's Apostle …..) Allah named him Mohammad".
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:
"Mohammad has come back to us, with higher glory and one who wants to see Mohammad 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, be declared:
"One who distinguishes between me and Mohammad, he has neither seen me nor known me."
Mirza Ghulam Ahmad further announced:
"I am the accomplishment of the name of Mohammad, i.e. I am shadow of Mohammad".(See Ha'shia 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' Mohammad and Ahmad and declared me as personified Mohammad….". (See Aik Ghalti Ka Izala, pages 10-11, published Rabwah). "I am that mirror which reflects exactly the person and the prophethood of Mohammad". (Nazulul Masih, page 48, published Qadian, 1909).
In the light of what has been said above, there is general consensus among Muslims that whenever, an 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 offence, 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 the propagation of Islam and I complete the same."
"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 Mohammad's Prophethood and was qualified to be called Prophet incarnate and he went so ahead that he stood side by side with Mohammad (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, Noah, David, Joseph, Soloman, John and Jesus Christ….." (Malfoozaat 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 maternal grand mothers were prostitutes and whores and that is the blood he represents." (Appendix Anjamme 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 Ahmad 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 offence of blasphemy, under the Blasphemy Act, 1679, with a term of imprisonment.
84. Again, as far the Holy Prophet Mohammad (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 then 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 visualise 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 playcard, a badge or a poster or write on walls or ceremonial gates or buntings, the 'Kalima', or chant other 'Shaa'ire Islam,' it would amount to publically 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 tranquility 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 the public safety and tranquility.
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 serving 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 order. They must, however, honour the Constitution and the law and should neither desecrate or defile the pious personage of any other religion 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 misled 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 honour of the citizens, shall intervene if there is a threat to any of the above values.
90. It may be maintioned 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 hyper-sensitive, 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.