ERROR AT THE APEX - After The 2nd Amendment

Abdul Rahman Mubashir:

In the case of Abdul Rahman Mubashir the Court summarized the plaintiffs’ claim in the following words:

It is alleged in paragraph No. 2 of the plaint that the defendants’ place of worship is known as a mosque (Masjid) and they perform prayer in it which resembles the prayer in Shariat and includes Azan, Namaz, Qyam, Sajood, Ruku’, reading of the Qur’an, saying Darood-o-Salam on the Holy Prophet and invoking benediction (دعا). It is further alleged in paragraph No. 5 that a mosque is a place of worship which is exclusive for the Muslims and no infidel has a right to construct it or to make his places of worship resemble it (mosque) in any manner or make his place of worship face Ka’ba. A mosque in short is inaccessible in Islam to those beyond its pale. Similarly, Namaz and other modes of prayer are provided only for Muslims. No non-Muslim can carry on prayer in the manner in which the Muslims perform them. Namaz is also a Shiar that is a rite and a ceremony exclusively reserved for the Muslims and a person calling the Azan consequently must be a person belonging to the Islamic faith.

The Lahore High Court in that case held that the contention was not supported by any Qur’anic injunction, tradition, or opinion of Imams (i.e., the founders of the different juristic schools of thought). The Court held that Islam is a religion of tolerance leaving non-Muslims free to profess and practice their religions. The Court repelled the contention that non-Muslims could not construct their places of worship in any manner resembling a mosque, or call it by name of Masjid, or say Azan in it, and perform his prayer in it in same manner as ordained for Muslims. The Court also held that there was nothing objectionable in worship of One God in manner taught by the Prophet of Islam, and that it gave no cause of action to Muslims.

The Court did not “accept” the contention that the adherents of any particular religious sect are at liberty to prevent the adherents of another religious sect from carrying on religious procession or from assembling for public worship in public streets on the ground that such worship had not hitherto been carried on and that it was opposed to their religious feelings. And held that “it would be unreasonable to allow one sect or class to exclude another on the ground that by the performance of certain rites they have appropriated a public street, or any portion thereof, for their religious processions or worship.”

Dealing with another argument the court observed:

“The learned counsel for the respondents argued that to allow the non-Muslims to offer prayer and to call Azan is an interference with شعائراسلام. I agree that these are شعائر but I am unable to appreciate that adoption of these شعائر non-Muslims is interference with them. They are as good شعائر for the Qadianis too since they consider them necessary as a matter of conscience to perform the duty of obedience to Allah.”

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Sh. Ghias Muhammad while arguing on behalf of plaintiff/respondent referred to an Indian case Saifuddin Saheb v. State of Bombay' and argued that preservation of continued existence of a denomination is also a civil right and continued existence of Islam presupposes that the dissidents may be excluded from the place of worship of that religious denomination. The Indian case dealt with ex-communication and its consequences and had declared a law, depriving a religious body of its right to ex-communicate its members, as ultra vires under Articles 25 and 26 of the Indian Constitution. Sh. Ghias Muhammad wanted to infer from this case that for maintaining the continued existences of a denomination it is legally justifiable not only to exclude the dissidents but also to restrain them from carrying out their practices.’ Repelling this argument the court observed that

“The authority ‘deals only with the right to preserve continued existence of a denomination by excommunicating the dissidents and excluding them from its place of worship. It does not confer any right on such denomination to interfere with the mode of worship of the ex-communicated dissident or with the place of worship constructed separately by him. It does not give any right to the denomination, after passing the order of excommunication, to have anything to do with the manner in which the ex-communicated dissident performs religious rites of worship according to his conscience.”

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The court found that Islam leaves non-Muslims free to profess and practice their religion and enjoy complete autonomy in regard to their religious tenets and injunctions.

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Reaching the heart of the controversy the court observed that:

“Except for some other minor differences the Qadianis do believe in the mission of Prophet Muhammad^(PBUH) and the Holy Qur’an and traditions. In this view they call their places of worship as Masjid, they perform prayers (Namaz) in the manner ordained for the adherents of Qur’an and call their congregation to prayer by shouting Azan. The prayer in the plaint that they should be barred from constructing their mosque as facing Ka’aba or by imitating the construction of Muslim mosque or calling Azan or offering their prayers in the manner of Muslims and performing رکوع prostration سجدہ and Tash’had will amount to interfering with their religion, which Islam, as a religion of tolerance does not allow. On the other hand Islam leaves the non Muslims free to profess and practice their religion لکم دینکم ولی دین ”

⁷

Dealing with the question whether the Islamic principles of justice, equity and good conscience could be applied to non-Muslims or Qadianis, the court observed that:

“Although the Islamic Law cannot be applied to non-Muslims in general, my answer to the above question would be in the affirmative. The reason is that like Muslims, this section of non-Muslims claims to be bound by the Law of Qur’an and Sunnah. In such circumstances, I have no manner of doubt left that at least those non-Muslims who profess to be bound by the same Law as the Muslims, will also be bound by similar principle of justice, equity and good conscience. Consequently, the Muslim Law shall apply to them.”

⁸

This judgment of the Lahore High Court was not challenged before Supreme Court and became final. It was thus established that notwithstanding the argument based on sharia, such claims to restrain Ahmadis from Muslim practices were in conflict with fundamental rights and could not be justified either under the Constitution or under Islam. That settled the controversy for a while.