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III. The Decision in Zaheeruddin v. State
F. Ordinance XX Violates Islamic Law.

Although Pakistan has a common law tradition, it is also an Islamic theocracy. The Federal Sharia Court (Islamic Law Court) has the power to find a law in conflict with Islamic injunctions and declare the offending portions void. *210 Although the decisions of the Federal Sharia Court are non-binding on the Supreme Court, its decisions may be enforced by executive action and parliamentary acquiescence. *211 Since Islamization of the laws was a primary objective of Pakistan's 1973 Constitution, the conformity of a law to Islamic injunctions is a relevant issue in that country. *212 Prior to Zaheeruddin, Ahmadis unsuccessfully challenged Ordinance XX as un-Islamic in the Federal Sharia Court in Mujibur Rehman v. Pakistan. *213 The Pakistan Court mistakenly reaffirmed Mujibur Rehman in Zaheeruddin by stating that Ordinance XX conforms to Islamic law.

In Zaheeruddin, the Pakistan Court was confident that its decision conformed to Islamic law regarding freedom of religion and conscience, yet the Court did not cite support from the Holy Quran. *214 Instead, the Court placed the burden of finding specific support to those who challenge a law by stating:

The Holy Quran declares, “let there be no compulsion in [matters of] religion.” *217 Further, the Holy Quran recognizes, “to you be your Way [Religion], and to me mine.” *218 These verses demonstrate that Islam does not interfere with freedom of conscience and belief. *219 In addition, a Muslim is instructed to always approach, deal and speak to non-Muslims with wisdom and kindness. *220 The Holy Quran commands Muslims to “Let him who will, Believe, and let him who will, reject [the Truth].” *221 According to Islam, religion is solely a personal matter to be determined by the dictates of one's conscience.

Ordinance XX interferes with the freedom of religion and conscience established by Islam and directly infringes on the Ahmadis' right to freely practice their faith. The Holy Quran and Islamic law require the Pakistan Court to protect Ahmadis' freedom of religion and conscience. Ordinance XX, therefore, violates Islamic law.

The punishment of death for blasphemy in Section 295C of the Pakistan Penal Code also violates Islamic law. *222 In Islam, blasphemy is not a punishable offense. *223 Muslims are forbidden from harming those who are peaceful in their religious beliefs and practices. One may say anything against the religious sentiments of Muslims and the authorities of the Islamic State are restrained from reacting against these comments. *224 Blasphemy is only punishable by God in the Afterlife. *225 Islam, therefore, places no restrictions on freedom of conscience and belief and permits no earthly punishment for apostasy or blasphemy.

According to Islamic law, Ahmadis are allowed to believe and practice their faith freely. Any restriction placed on Ahmadis is therefore un-Islamic. *226 The Pakistan Court, therefore, violated Islamic injunctions.

210	Forte, supra note 23, at 37 (citing Pak. Const. of 1973, arts. 203C, 203D (amended 1982)). General Zia ordered the establishment of the Sharia Court. Id.
211	Id. Upon a finding by the Federal Sharia Court that a law is un-Islamic, the President is directed to take the necessary steps to assure the law is brought into conformity with Islamic law. Id. (citing Pak. Const. of 1973, arts. 203C, 203D (amended 1982)).
212	See Forte, supra note 23, at 36-37.
213	P.L.D. 1985 F.S.C. 8 (Pak. 1985).
214	Zaheeruddin, 1993 S.C.M.R. at 1773-74.
215	Id. at 1773-74 (quoting Pakistan v. Public at Large, PLD S.C. 304, 356 (1987) (Pak.)). The Pakistan Court, absent a showing to the contrary, assumed its decision to be based on Islamic principles. The Court had no foundation for this assumption. The Court assumed consistency with Islamic law without doing the necessary research.
216	The Holy Quran is the principal source of Islamic Law. Zakaria, supra note 31, at 309 (listing the sources of Islamic law). There is no debate on the authenticity of the Holy Quran and its authority amongst Muslims. Karen Armstrong, Muhammad 48 (1992). The author does not wish to engage in a discussion involving the sunna or hadith (traditions of the Prophet Muhammad). Although there are many Prophetic traditions which favor the Ahmadi viewpoint, there is much debate amongst Muslims as to the authenticity of certain traditions. See Adbullahi An-Na'im, Ph.D., The Rights of Women and International Law in the Muslim Context, 9 Whit. L. Rev. 491, 491 n.1 (1987). To spare the reader from a long discussion establishing the authenticity of such traditions, the author is satisfied with referring to the Holy Quran alone to establish that Ordinance XX and the Blasphemy Law of Section 295C violate Islamic law. Any prophetic traditions which are cited are derived solely from non-Ahmadi Muslim sources, in order to avoid disputes regarding authenticity. For a brief introduction to the four schools of Sunni Muslim jurisprudence, see Zakaria, supra note 31, at 305. For a discussion on what some of the founders of the schools wrote regarding blasphemy and apostasy, see Forte, supra note 23, at 44-49.
217	Holy Quran (Ali), supra note 17, at 2:256.
218	Id. at 6:109. “Now have come to you, from your Lord proofs (to open your eyes); If any will see, it will be (for the good of) his own soul: If any will be blind, it will be to his own (harm).” Id. at 6:104.
219	Syed Muzaffar-ud-Din Nadvi, Human Rights and Obligations (In Light of Quran and Hadith) 61 (1987).
220	Id. “[O Prophet] Invite (all) to the Way of thy Lord with wisdom and beautiful preaching; And argue with them in ways that are best and most gracious: For thy Lord knoweth best, who have strayed from His Path, and who receive guidance.” Holy Quran (Ali), supra note 17, at 16:125 (some capitalization omitted). The Holy Quran demonstrates that Muslims are only permitted to employ force if they are wronged or they are repelling oppression by stating, “And if ye punish, let your punishment be proportionate to the wrong that has been done to you: But if ye show patience, that is indeed the best (course) for those who are patient.” Id. at 16:126 (some capitalization omitted). Islam allows only the taking up of arms against persecution. The Holy Quran, when it gave permission for Muslims to fight their enemies, stated the following: “Fight in the cause of Allah those who fight you but do not transgress limits; for Allah loveth not transgressors. And slay them wherever ye catch them, and turn them out from where they have turned you out; for persecution is worse than slaughter; but fight them not at the Sacred Mosque [the Ka'aba in Mecca, Saudi Arabia], unless they (first) fight you there; …” Id. at 2:190-91 (emphasis added) (some capitalization omitted). Muslims may therefore fight in response to persecution or in self-defense but shall not be aggressors or oppressors. The Pakistan Government's oppression of Ahmadis is thus clearly un-Islamic.
221	Id. at 18:29. “Say [O Prophet] " … Now Truth hath reached you from your Lord! Those, who receive Guidance, do so for the good of their own souls; those who stray, do so to their own loss: And I [Muhammad] am not (set) over you to arrange your affairs." Follow the inspiration sent unto thee, and be patient and constant, till Allah, do decide: for He is the Best to decide.” Id. at 10:108-09 (some capitalization omitted). Verily We have the Book [the Holy Quran] to thee in Truth, for (instructing) mankind. He, then, that receives guidance benefits his own soul: But he that strays injures his own soul. Nor art thou [Muhammad] set a Custodian over them. Id. at 39:41 (some capitalization omitted).
222	S.A. Rahman, The Punishment of Apostasy in Islam 1-8 (1972), cited in Forte, supra note 23, at 50.
223	Apostasy is mentioned thirteen times in the Holy Quran. Lang, supra note 16, at 208. All of the verses assure that the apostate's punishment lies with God in the Hereafter or Afterlife. See also Hazrat Mirza Tahir Ahmad, Murder in the Name of Allah 74-92 (1989); Muhammad Zafrulla Khan, Punishment of Apostasy in Islam 24-33 (London Mosque n.d.) (establishing that there is no punishment for blasphemy or apostasy according to Islam). “Let not those grieve thee who rush headlong into Unbelief: not the least harm will they do to Allah: Allah's Plan is that He will give them no portion in the Hereafter, but a severe punishment.” Holy Quran (Ali), supra note 17, at 3:176 (some capitalization omitted). A recorded tradition tells of a Christian who converted to Islam during the lifetime of the Prophet Muhammad and served for a short time as one of his scribes and who later recanted and returned to his prior faith. Lang, supra note 16, at 209 (citing Sahih Bukhari 93:48 (n.d.)). After returning to his Christian faith, the recanter was heard making the blasphemous claim, "Muhammad knew nothing except what I wrote for him." Id. The Christian was never killed or murdered and eventually died of natural causes. Id. Pakistan has no formal law prohibiting apostasy, “but blasphemy serves as a surrogate in suppressing those who dissent from Islam by word or deed.” Forte, supra note 23, at 49. The death sentence for blasphemy satisfies mullahs' demands for the death penalty for apostasy. Id. at 50. The historical support cited by mullahs for punishing apostasy comes from the “Apostasy Wars,” commissioned by the Prophet Muhammad and carried forth by his first successor, Abu Bakr Siddiq, after the death of Muhammad. See Khan, supra at 41-44. See also Forte, supra note 23, at 44-45. Modern historians believe, however, that these wars were not launched to battle religious heresy but were directed at preventing non-Muslim tribes from repudiating their fiscal obligations to pay yearly taxes. See Elia S. Shoupani, Ph.D., Al-Riddah and the Muslim Conquest of Arabia 107-49 (1973).
224	“Whoever kills a Dhimmi [a non-Muslim living in an Islamic State], shall not get [or smell] the odour of … Paradise, though it is smelt from a distance of forty year's journey.” Nadvi, supra note 219, at 42 (citing Bukhari Sharif). “Allah has forbidden me [Muhammad] to oppose any Dhimmi or any body else.” Id. (citing Mishkat Sharif (Kitab-ul-Fitan)). Muslims are forbidden from oppressing and murdering non-Muslims living in an Islamic State.
225	See supra note 223.
226	See supra notes 218-21 and accompanying text.