1993 S C M R 1718

[Supreme Court of Pakistan]

Present: Shafiur Rahman, Abdul Qadeer Chaudhry,

Muhammad Afzal Lone, Saleem Akhtar and
Wali Muhammad Khan, JJ

Criminal Appeals Nos. 31-K to 35-K of 1988

ZAHEERUDDIN and others---Appellants

versus

THE STATE and others---Respondents

(On appeal from the judgment of High Court. of Balochistan, Quetta, dated 22-12-1987 passed in
Criminal Revisions Nos.38 of 1987 to 42 of 1987).

Civil Appeals Nos. 149 and 150 of 1989

MUJIB-UR-REHMAN DARD and others---Appellants

versus

PAKISTAN through Secretary, Ministry of Justice and Parliamentary

Affairs, Islamabad and others---Respondents

(On appeal from the judgment of Lahore High Court, Lahore dated 25-9-1984 passed in Intra
Court Appeals Nos.160/1984 and 158 of 1984).

Civil Anneal No. 412 of 1992

Mirza KHURSHID AHMED and another---Appellants

versus

PUNJAB PROVINCE through Secretary, Home Department, Lahore

and 4 others---Respondents

(On appeal from the judgment of Lahore High Court, Lahore, dated 17-9-1991 passed in Writ
Petition No. 2089 of 1989).

Criminal Appeals Nos.31-K to 35-K of 1988 and Civil Appeals Nos.149 and 150 of 1989 and
Civil Appeal No. 412 of 1992, decided on 3rd July, 1993.
Per Shafiur Rahman, J.--

(a) Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition
and Punishment) Ordinance (XX of 1984)--

----Preamble---Constitution of Pakistan (1973), Arts. 185(3), 19, 20 & 25--- Leave to appeal was
granted to examine the vires of the Ordinance on the touchstone of Arts, 19, 20 & 25 of the
Constitution of Pakistan.

(b) Penal Code (XLV of 1860)---

----S. 298-C-- Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis
(Prohibition and Punishment) Ordinance (XX of 1984), S.3--?Constitution of Pakistan (1973),
Arts. 185(3), 19, 20 & 25---Leave to appeal was granted to examine the questions as to whether
wearing a "Kalma Tayyaba" badges by an Ahmadi amounted to "posing" as a Muslim so as to
come within the mischief of S.298-C, P.P.C.; whether charge against such Ahmadi was in
accordance with law, and if not what was its effect and whether S. 298-C, P.P.C. was violative of
Arts. 19, 20 & 25 of the Constitution of Pakistan.

(c) Criminal Procedure Code (V of 1898)---

----S. 144---Order passed under S. 144, Cr.P.C.---Assistant Commissioner, District Magistrate,

Resident Magistrate or the Home Department of the Government had no authority to extend
indefinitely till further orders an order passed under S.144, Cr.P.C.---Such an extended order
would be of no legal effect.

(d) Constitution of Pakistan (1973)---

----Art. 2A---Interpretation and effect of Art.2A on the other Constitutional provisions and as a
controlling and supervening provision.---[Interpretation of Constitution].

The role of the Objectives Resolution, 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 amending it through the amendment process laid
down in the Constitution itself.

The provisions of Article 2A were never intended at any stage 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 2A is not a supra-Constitutional provision. Because, if this be its true status then it 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.

Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD
1992 SC 595 quoted.

(e) Constitution of Pakistan (1973)---

----Art. Expression "Subject to law"---Connotation---Right to establish religious institutions

subject to law cannot and do not mean that such institutions may be abolished altogether by law.

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. Such intent cannot be attributed to the makers of the Constitution who in
their anxiety to regulate the lives of the Muslims of Pakistan in accordance with the Holy Qur'an
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.

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 nullified 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 that what Article 20
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.
Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and
Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957
SC 9 quoted.

(f) Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition
and Punishment) Ordinance (XX of 1984)---

----Preamble---President of Pakistan, in making the Ordinance and promulgating the same in

exercise of powers possessed by him at the relevant time, suffered from no Constitutional
restraints of Fundamental Rights or other provisions.

(g) Penal Code (XLV of 1860)---

----S. 298-C---Interpretation---Section 298-C, P.P.C. has been broken in clauses in order to make
its effect, examination and scrutiny easier.

(h) Penal Code (XLV of 1860)---

----S. 298-B(2)(b)---Anti-Islamic Activities of , the Quadiani Group, Lahori Group and Ahmadis
(Prohibition and Punishment) Ordinance (XX of 1984), S.3---Provision of S.298-B (2)(b), P.P.C.
has not made objectionable the "Azan" or the naming of the "Masjid" but doing of these by
Ahmadis or Quadianis alone.

(i) Penal Code (XLV of 1860)---

----S. 298-C(a) & (b)---Anti-Islamic Activities of the Quadiani Group, Lahori Group and
Ahmadis (Prohibition and Punishment) Ordinance (XX of 1984), S.3---Constitution of Pakistan
(1973), Art. 260(3)---Word "posing" occurring in S. 298-C(a), P.P.C. ---Meaning---If any
Ahmadi or Quadiani claims to be or gives out publicly to be a Muslim then he would be acting in
violation of the Constitutional provision contained in Art. 260(3)---Such a provision could
certainly be made within the framework of the Constitution and the Fundamental Rights an
offence.---[Words and phrases].

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-Muslims 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 gives
out publicly to be a Muslim then he would be acting in violation of the Constitutional provision
contained in Article 260(3). Section 298-C, clause (a), P.P.C. could certainly be made within the
framework of the Constitution and the Fundamental Rights an offence. This argument equally
applies to clause (b) of section 298-C of the P.P.C.

(j) Penal Code (XLV of 1860)---

----S. 298-C (a) (b) & (e)---Anti-Islamic Activities of the Quadiani Group, Lahori Group and
Ahmadis (Prohibition and Punishment) Ordinance (XX of 1984), S.3---Constitution of Pakistan
(1973), Arts. 19, 20 & 260(3)---Provisions of S.298-C (a) (b) & (e) are consistent with the
Constitutional provisions contained in Arts. 19, 20 & 260(3).

As regards clause (e) of section 298-C, the law cannot be said to be violative of
Fundamental Right of freedom of religion or speech where it punishes acts outraging the
religious feelings of a particular group or of the general public as such. No body 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).

Per Shafiur Rahman, J. [Minority view]---

Penal Code (XLV of 1860)---

----S. 298-C(c) & (d)---Anti-Islamic Activities of the Quadiani Group, Lahori Group and
Ahmadis (Prohibition and Punishment) Ordinance (XX of 1984), S.3---Constitution of Pakistan
(1973), Arts. 19, 20 & 25---Provisions of S. 298-C (c) & (d), P.P.C. as standing by themselves,
individually or the two together are violative of the Fundamental Rights of religion's 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.

Clauses (c) and (d) of section 298-C of P.P.C. 'standing by themselves, individually or the two
together would be violative of the Fundamental Rights of religion's freedom and of equality and
of the speech in so far 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 to the effect of clauses (a) and (b) then the acts 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, P.P.C. would be ultra vires the Constitution.

Penal Code (XLV of 1860)---

----S. 298-C---Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis
(Prohibition and Punishment) Ordinance (XX of 1984), S.3--?Wearing a badge having "Kalma
Tayyaba" inscribed on it by an Ahmadi does not per se amount to outraging the feelings of
Muslims nor does it amount to his posing as a Muslim ---Ahmadi wearing such badge on being
questioned and interrogated having given the reply that he was Muslim would not be an offence
under the law.

For an Ahmadi to wear a badge having "Kalma Tayyaba" inscribed on it does not per so
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 Tayyaba". 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 Tayyaba" as Muslims in the existing
situation. As regards the allegation that on being questioned and interrogated Ahmadis 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 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 so when 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.

??????????? The exhibition or use of "Kalma Tayyaba" correctly reproduced, properly and
respectfully exhibited cannot be made a ground per se for action against those who use "Kalma
Tayyaba" 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 Tayyaba" 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 objectionable conduct cannot be
objected to.

Penal Code (XLV of 1860)---

----Ss.298-B (2)(d) & 298-C (c) & (d)---Anti-Islamic Activities of the Quadiani Group, Lahori
Group and Ahmadis (Prohibition and Punishment) Ordinance (XX of 1984), S.3---Constitution
of Pakistan (1973), Arts. 19, 20 & 25--?Provisions of S. 298-B (2) (d) and S. 298-C (c) & (d) are
ultra vires the Fundamental Rights contained in Arts. 20 & 25 of the Constitution.--?[Vires of
legislation].

Per Abdul Qadeer Chaudhry, J.; Muhammad Afzal Lone and Wall Muhammad Khan, JJ.
agreeing.--

(k) Penal Code (XLV of 1860)---

----S. 298-B---Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis
(Prohibition and Punishment) Ordinance (XX of 1984), S.3--?Constitution of Pakistan (1973),
Art. 260 (3)---Epithets, descriptions and titles etc. as given in S. 298-B, P.P.C. carry special
meaning, are part of the Muslim belief and used for reverence---Any person using such epithets,
descriptions and titles for others, in the same manner, may be conveying impression to others
that they are concerned with Islam when the fact maybe otherwise---Ahmadis being
non-Muslim, legally and Constitutionally were of their own choice, a minority opposed to
Muslims and had no right to use the epithets etc. and the "Shaaire Islam" which were exclusive
to Muslims and Ahmadis had been rightly denied the use of such epithets by law.
 Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD
1978 Lah. 113; Mujibur Rehman and 3 others v. Federal Government of Pakistan and another
PLD 1985 FSC 8; The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282; Ratilal Panchanad Gandi
and others v. State of Bombay and others AIR 1954 SC 388; Ramanasraman by its Secretary G.
Sambasiva Rao and others v. The Commissioner for Hindu Religious and Charitable
Endowments, Madras AIR 1961 Mad. 265; Rehmat Aslam v. The Crown PLD 1952 Lah. 578;
Mazhar Ali Khan, Printer & Publisher of the Daily "Imroze" v. The Governor of the Punjab PLD
1954 Lah. 14; Khizar Hayat and 5 others v. The Commissioner, Sargodha Division and another
PLD 1965 Lah. 349; Qasu and 2 others v. The State PLD 1969 Lah. 48; Messrs Hirjina & Co.
(Pakistan) Ltd., Karachi v. Commissioner of Sales Tax Central, Karachi 1971 SCMR 128;
Muhammad Ali v. State Bank of Pakistan, Karachi and another 1973 SCMR 140; Miss Benazir
Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Miss Asma Jilani v. The
Government of the Punjab and another PLD 1972 SC 139; Pakistan through Secretary, Cabinet
Division, Islamabad and others v. Nawabzada Muhammad Umar Khan (deceased) now
represented by Khawaja Muhammad Khan of Hoti and others 1992 SCMR 2450; Mujibur
Rehman and 3 others v. Federal Government of Pakistan and another PLD 1985 FSC 8; Capt.
(Retd.) Abdul Wajid and 4 others v. Federal Government of )Pakistan PLD 1988 SC 167; Mst.
Aziz Begum and others v. Federation of Pakistan and others PLD 1990 SC 899; Thoughts and
Reflections of Iqbal" edited with notes by Syed Abdul Wahid, pp. 246 to 306 and Mirza
Khurshid Ahmad and another v. Government of Punjab and others PLD 1992 Lah. 1 ref.

(l) Constitution of Pakistan (1973)---

----Arts. 260(3)(b)---Penal Code (XLV of 1860), Ss. 298-B & 298-C---Ahmadis are
non-Muslims inter alia for the reason that they falsify a clear and general verse of Holy Qur'an
by resort to its "Taweal" and import into Islam, heretic concepts like shadowism, incarnation and
transmigration ---Ahmadis were therefore asked to restrain themselves from directly or indirectly
posing as Muslims or claiming legal rights of Muslims.

(m) Constitution of Pakistan (1973)---

----Part II, Chap. 3A [Arts.203-A-203J]---Finding of the Federal Shariat Court, if the same is
either not challenged in the Shariat Appellate Bench of the Supreme Court or challenged but
maintained, would be binding even on the Supreme Court.

(n) Constitution of Pakistan (1973)--- .

----Art. 20---Phrase "subject to law" in Art. 20---Connotation---Penal Code (XLV of 1860), Ss.
298-B & 298-C---Freedom to profess religion has been made subject to law, public order and
morality---Such right in the nature of things is not absolute but conduct remains subject to
regulation for the protection of society.

The "freedom to profess religion" has been made "subject to law, public order and morality".
This right in the nature of things, cannot be absolute. Conduct remains subject to regulation for
the protection of the society. So the freedom to act must have appropriate definition to preserve
the enforcement of that protection. The phrase "subject to law", does neither invest the
legislature with unlimited power to unduly restrict or take away the Fundamental Rights
guaranteed in the Constitution, nor can they be completely ignored or bypassed as non-existent.
A balance has thus to be struck between the two, by resorting to a reasonable interpretation,
keeping in view the peculiar circumstances of each case.

PLD 1989 Jour. 17; Fundamental Law of Pakistan by A.K.Brohi, p. 317 and Jibendra Kishore
Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance
and Revenue (Revenue) Department, Government of East Pakistan PLD 1957 SC 41 ref.

(o) Constitution of Pakistan (1973)--

----Arts. 20 & 260(3)(a) (b)---Penal Code (XLV of 1860), Ss. 298-B & 298-C--?Freedom of
religion---Term "religion"---Meaning---Religious practices though are protected by the term
"freedom of religion" yet only such practices as are integral and essential part of the
religion---Court has to determine whether a particular practice, constitutes essential and integral
part of the religion or not---Such practices have to be stated and proved so from the authentic
sources of the religion, to the satisfaction of the Court.

Messrs East and West Steamship Company v. Pakistan PLD 1958 SC 41; Sarfraz Hussain
Bokhari v. District Magistrate, Kasur and others PLD 1983 SC 172; Interpretation of Statutes, p.
339, S. 198 and Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca
156 ref.

(p) Constitution of Pakistan (1973)---

----Art. 20---Criminal Procedure Code (V of 1898), S.144---Penal Code (XLV of 1860), Ss.
298-B & 298-C---Freedom of religion---Action under S. 144, Cr.P.C. and Ss. 298-B & 298-C,
P.P.C.---Validity---If the authorities had taken action under a valid piece of legislation, in the
interest of law and order, then unless it could be shown that the same was taken mala fide or
without lawful factual justification, the question of denial of Fundamental Rights would not
arise.

KA. Abbas v. The Union of India and another AIR 1971 SC 481; State of Madhya
Prcdesh and another v. Baldeo Prasad AIR 1961 SC 293; Jurists in 1987, pp. 103 to 115;
Amnesty International in 1991; Abdur Rahman Mobashir's case PLD 1978 Lah. 113; Maxwell
on Interpretation of Statutes by P.S. J. Langan, Twelfth Edn., p.293 and Crawford's Statutory
Construction, p.334 ref.

(q) Constitution of Pakistan (1973)---

----Art. 20---Penal Code (XLV of 1860), Ss. 298-B & 298-C---Freedom of religion
---Principles---Freedom of religion is not allowed to interfere with the law and order or public
peace and tranquility---Freedom of religion is based on the principle that the State will not
permit anyone to violate or take away the Fundamental Rights of others, in the enjoyment of his
own rights and that no one can be allowed to insult, damage or defile the religion of any other
class or outrage their religious feelings, so as to give rise to law and order situation ---Whenever
the State has reasons to believe, that the peace and order will be disturbed or the religious
feelings of others may be injured, so as to create law and order situation, it may take such
minimum preventive measures as will ensure law and order.

(r) Penal Code (XLV of 1860)---

----Ss. 298-B & 298-C---Constitution of Pakistan (1973), Art. 260(3)--?Claiming, propounding,

pretending or holding out for a Quadiani that he was Muslim without first denouncing his faith,
was not only a clear violation of the law but also the Constitution.

(s) Vires of legislation---

---- Criminal law---When a criminal law can be struck down as a void law on the ground of its
being vague, uncertain or broad.

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. In order to succeed, it has to be shown that the
constituents of the offence, as given in the law are so indefinite that line between innocent and
condemned conduct cannot be drawn or there are attendant dangers of arbitrary and
discriminatory enforcement or that it is so vague on the face of it that common man must
necessarily guess at its meaning and differ as to its application.

Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD
1992 SC 595 ref.

Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and
Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957
SC 9 distinguished.

(t) Penal Code (XLV of 1860)---

----Ss. 298-B & 298-C---Constitution of Pakistan (1973), Art. 260(3)---Word

"pose"---Meaning---Ahmadis being non-Muslims use of Shaaire Islam etc. by them amounts to
either posing as Muslims or to deceive others or to ridicule.

Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Hokhari and 4 others PLD 1978
Lab. 113 ref.

(u) Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis
(Prohibition and Punishment) Ordinance (XX of 1984)---

----Preamble---Penal Code (XLV of 1860), Ss. 298-B & 298-C---Constitution of Pakistan

(1973), Art. 20---Ordinance is not at all vague but gives the actual epithets, the descriptions and
also titles and other requirements sought to be protected or imposed and does not in any way
interfere with the religious freedom of Amhadis.

There is no vagueness in the Anti Islamic Activities of the Quadiani Group, Lahori Group
and Ahmadis (Prohibition and Punishment) Ordinance, 1984 at all.

Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and
Punishment) Ordinance, 1984 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 desecrating 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 caliber. 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.

Vagueness, in a statute occurs when a legislature states its proscriptions in terms so

identified that line between innocent and condemned conduct becomes a matter of guesswork
and that the discretion of law enforcement officials, with the 'attendant dangers of arbitrary and
discriminatory enforcement be limited by explicit legislative standards. 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.

Lanzetta v. New Jersy 306 US 451, 1939 and Connally v. General Construction Co. (1926) 269
U.S. 385, 391 ref.

(v) Interpretation of statutes---

---- Criminal law---Vagueness in such law when occurs.

Vagueness occurs when a legislature states its proscriptions in terms so indefinite that
line between innocent and condemned conduct becomes a matter of guesswork and that the
discretion of law enforcement officials, with the attendant dangers of arbitrary and
discriminatory enforcement, be limited by explicit legislative standards.

(w) Penal Code (XLV of 1860)---

----Ss. 298-B & 298-C---Anti-Islamic Activities of the Quadiani Group, Lahori Group and
Ahmadis (Prohibition and Punishment) Ordinance (XX of 1984), Preamble ---Legislation just to
preserve law and order cannot be considered oppressive---Any community, however vocal
organised, affluent or influential it may be would not be allowed 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.
Lanzetta v. New Jersy 306 US 451, 1939 and Connally v. General Construction Co. (1926) 269
US 385, 391 ref.

(x) Constitution of Pakistan (1973)---

----Arts. 20 & 2A---Word "law" used in phrase "subject to law" means "positive law' which
further means the law actually enacted or adopted by proper authority for the Government of an
organised jural society.

Black's Law Dictionary ref.

Asma Jilani case PLD 1972 SC 139; Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 506;
Federation of Pakistan v. United Sugar Mills Ltd., Karachi PLD 1977 SC 397 and Fauji
Foundation v. Shamim-ur-Rehman PLD 1983 SC 457 ref.

(y) Constitution of Pakistan (1973)---

----Art. 2A---Objectives Resolution which was Preamble of the Constitution and made effective
part of the Constitution was an act of the adoption of a body of law by reference which is
generally done whenever a new legal, order is enforced.

(z) Constitution of Pakistan (1973)---

----Art. 2A---Effect---Effect of adoption of Objectives Resolution as Art. 2A in the Constitution

by the chosen representatives of the people as the operative part of the Constitution, is the
acceptance of sovereignty of Allah to be binding on them who vowed that they will exercise only
the delegated powers within the limits fixed by Allah---Such adoption also enhanced the power
of judicial review of the superior Courts.

Pakistan v. Public at Large PLD 1987 SC 304 at pp. 361-362 and Federation of Pakistan v.
N.-W.F.P. Government PLD 1990 SC 1172 ref.

(aa) Constitution of Pakistan (1973)---

----Art. 2A & Part II, Chap. I [Arts. 8 to 28]---Constitution by adoption of Objectives Resolution
in form of Art. 2A has adopted the Injunctions of Islam as contained in Qur'an and Sunnah of the
Holy Prophet as the real and the effective law---Fundamental Rights as given in the Constitution,
therefore, must not violate the norms of Islam as anything in any Fundamental Right which
violates the Injunctions of Islam must be repugnant to such norms.

The Constitution has adopted the Injunctions of Islam as contained in Qur'an and Sunnah of the
Holy Prophet (p.b.u.h.) as the real and the effective law. In that view of the matter, the
Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) are now
the positive law. 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
Objectives Resolution, have become effective and operative. Therefore, every man-made law
must now conform to the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy
Prophet (p.b.u.h.). Therefore, even the Fundamental Rights as given in the Constitution must not
violate the norms of Islam.

Anything, in any fundamental right, which violates the Injunctions of Islam must be repugnant.

Pakistan v. Public at Large PLD 1987 SC 304 pp.361-362 Federation of Pakistan v. N.-W.F.P.
Government PLD 1990 SC 1172 ref.

(bb) Constitution of Pakistan (1973)---

----Arts. 20 & 19---Phrase "Glory of Islam" as used in Art. 19 cannot be availed with regard to
the rights conferred in Art. 20 nor the same can be imported into any other fundamental right.

Article 19, Constitution of Pakistan (1973) 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, be imported into any other
fundamental rights.

(cc) Constitution of Pakistan (1973)---

----Art. 36---Protection of minorities---Injunctions of Islam, as contained in Qur'an and the

Sunnah, guarantee the rights of minorities also in such satisfactory way that no other legal order
can offer anything equal.

(dd) Penal Code (XLV of 1860)---

----S. 298-C---Whenever an Ahmadi recites or displays "Kalma", commission of offence under

S.298-C, P.P.C., one way or the other, may be proved.

There is general consensus among Muslims that whenever, an Ahmadi recites or displays
"Kalma", 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
(p.b.u.h.) do not govern the situation. So, whatever the situation, the commission of the offence,
one way or the other, may be proved.

(ee) Penal Code (XLV of 1860)---

----S. 298-C---When an Ahmadi or Ahmadis display in public, on a play-card, a badge or a

poster or write on walls or ceremonial gates or buntings, the "Kalma" or chant other Shaarie
Islam it would amount to publicly defiling the name of Holy Prophet (p.b.u.h.) and also other
Prophets, and exalting the name of Mirza Ghulam Ahmad which action infuriates Muslims
causing serious breach of peace.

(ff) Constitution of Pakistan (1973)--- .

----Arts. 20, 36 & 260(3)---Penal Code (XLV of 1860), Ss. 298-B & 298-C--?Freedom to profess
religion ---Ahamdis like other minorities are free to profess their religion---Limitations.

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 orders. 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
regards the faith.

Ahmadis will not 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.

(gg) Penal Code (XLV of 1860)---

----Ss.298-B & 298-C---Anti-Islamic Activities of the Quadiani Group, Lahori Group and
Ahmadis (Prohibition and Punishment) Ordinance (XX of 1984), Preamble ---Constitution of
Pakistan (1973), Art.20---Anti-Islamic Activities of the Quadiani Group, Lahori Group and
Ahmadis (Prohibition and Punishment) Ordinance, 1984 and Ss. 298-B & 298-C, Penal Code are
not ultra vires the Constitution neither Art.20 of the Constitution is attracted to the provisions.

Per Saleem Akhtar, J.---

(hh) Constitution of Pakistan (1973)---

----Arts.19, 20 & 25---Law permits reasonable classification and distinction in the same class of
persons, but it should be founded on reasonable distinction and reasonable basis.

Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD 1978
Lah. 113 ref.

(ii) Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis
(Prohibition and Punishment) Ordinance (XX of 1984)---

----Preamble---Penal Code (XLV of 1860), Ss.298-B & 298-C---Constitution of Pakistan (1973),

Arts.19, 25 & 260(3)---Quadianis/Ahmadis on the basis of their faith and religion vis-a-vis
Muslims stand on a different pedestal as Compared to other minorities ---Classification of
Ahmadis being proper and reasonable, in order to maintain public order, Anti-Islamic Activities
of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance,
1984 is not violative of Arts.19 & 25 of the Constitution.
(jj) Constitution of Pakistan (1973)---

----Art.20---Penal Code (XLV of 1860), Ss.298-B & 298-C---Right to profess, practise and
propagate their religion by Ahmadis cannot be restricted provided they profess, propagate and
practise without adopting Shaaria-e-Islam in a manner which does not offend feelings of
Muslims.

The freedom of religion is guaranteed by Article 20, Constitution of Pakistan (1973) which
includes the right to profess, practise and propagate. The overriding limitation as provided by
Article 20 is the law, public order and morality. The law cannot override Article 20 but has to
protect the freedom of religion without transgressing bounds of morality and public order.
Propagation of religion by the Ahmadis who as distinguished from other minorities having
different background and history, may be restricted to maintain public order and morality.
Therefore, their right to profess, practise and propagate their religion cannot be restricted
provided they profess, propagate and practise without adopting Shaair-e-Islam in a manner
which does not offend the feelings of the Muslims.

(kk) Penal Code (XLV of 1860)---

----S.298-C(a)(b) & (e)---Constitution of Pakistan (1973), Arts.19, 20 & 260(3) ---Provisions of

S.298-C (a)(b) & (e), P.P.C. do not offend Arts.19, 20 & 260(3) of the Constitution of Pakistan
(1973).

(ll) Penal Code (XLV of 1860)---

----S.298-C (c) & (d)---Constitution of Pakistan (1973), Art.20---Provisions of S.298-C (c) &
(d), P.P.C. will not be violative of Art.20 of the Constitution of Pakistan (1973), provided they
are acted upon by the Quadianis/Ahmadis without adopting any of the Shaari-e-Islam.

Fakhruddin G. Ebrahim, Senior Advocate, Mujeebur Rahman, Mirza Abdul Rashid and S. Ali
Ahmed Tariq, Advocates for Appellants (in Cr. As. No. 31-K to 35-K of 1988).

Ejaz Yousaf, Addl. Advocate-General, Balochistan for the State (in Cr. As. 31-K to 35-K of
1988).

Raja Haq Nawaz, Advocate and M. A. I. Qarni, Advocate-on-Record (absent) for the
Complainant (in Cr. A. 31-K of 1988).

Fakhruddin G. Ebrahim, Senior Advocate, Ch. Aziz Ahmed Bajwa, Ch. A. Wahid Saleem,
Senior Advocate, Mujeebur Rahman, Advocate Hamid Aslam Qureshi, Advocate-on-Record for
Appellants (in Cr. As. 149 and 150 of 1989).

Ch. Aziz Ahmed Bajwa, Advocate, C. A. Rehman, Advocate and Hamid Aslam Qureshi,
Advocate-on-Record for Appellants (in Cr.A. 412 of 1992).
Dr. Riazul Hassan Gilani, Senior Advocate (only on 1-2-1993 and 2-2-1993), Syed Inayat
Hussain, Advocate-on-Record (only on 3-2-1993), Gulzar Hassan, Advocate-on-Record (absent)
and Ch. Akhtar Ali, Advocate?-on-Record for Respondent/Federal Government (in Civil
Appeals Nos.149 and 150 of 1989 and 412 of 1992).

Maqbool Elahi Malik, Advocate-General Punjab, M. M. Saeed Beg, Advocate and Rao
Muhammad Yousuf Khan, Advocate-on-Record for Respondents Nos. l to 3 (in Cr. A. 412 of
1992).

M. Ismail Qureshi, Senior Advocate and Syed Abul Aasim Jafri, Advocate-on-Record (absent)
for Respondent No.4 (in Cr. A. 412 of 1992).

Aziz A. Munshi, Attorney-General for Pakistan, Mumtaz Ali Mirza, Deputy Attorney-General
for Pakistan, Ejaz Yousaf, Additional Advocate General Balochistan, M. Sardar Khan,
Advocate-General, N: W.F.P., Maqbool Elahi Malik, Advocate-General, Punjab and Abdul
Ghafur Mangi, Additional Advocate-General, Sindh on Courts' Notice.

Maj. (Retd.) Amir Afzal Khan and Maj. (Retd.) M. Amin Minhas for General Public.

Dates of hearing: 30th, 31st January; 1st, 2nd February and 3rd March, 1993.

JUDGMENT

SHAFIUR RAHMAN, J.---The question of law of public importance common to all these
appeals is whether Ordinance NOXX of 1984 [The Anti-?Islamic Activities of the Qadiani
Group, Lahori Group and Ahmadis (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
28-2-1989 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, practise 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. l 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.149/19$9 as above.

4. Nazir Ahmed 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 Muhammad
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, P.P.C. 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" badges 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 petitioner 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 Ahmed Tanusvi, lodged two other such reports on 27-3-1985. One (FIR No. 49/85)
made similar complaint against Zaheeruddin (appellant in CIA. 31-K/88) having encountered
him at 1-00 p.m. 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 CIA.
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 on 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 CIA. 32-K/88) appeared before him
with a badge of Kalma Tayyaba though he was a Quadiani. 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 m 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 and wall-?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, Senior 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 1983 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 categorized 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 up to
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' ?Aslamoalakum? ?Nasurminallah? ?Meladunnabi? 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 and permissible
both under the Constitution and the law as held in Abdur Rahman Mobashir and 3 others v. Syed
Amir Ali Shah Bokhari and 4 others (PLD 1978 'Lahore 113), Mujibur Rehman and 3 others v.
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 233 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. On the
question as to what is religion, the learned counsel has referred to The Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR
1954 SC 282), Ratilal Panachad Gandhi and others v. State of Bombay and others (AIR 1954 SC
388) and Ramanasramam by its Secretary G. Sambasiva Rao and others v. The Commissioner
for Hinud Religious and Charitiable 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 v. The Province of East Pakistan
and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD
1957 SC 9 at page 41) Messrs East and West Steamship Company v. Pakistan (PLD 1958 SC
41), and Sarfraz Hussain Bokhari v. District Magistrate, Kasur and others (PLD 1983 SC 172).
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 v.
A.B. Khondkar and others (PLD 1965 Dacca 156 at page 180), K.A. Abbas v. The Union of
India and another (AIR 1971 SC 481 at page 497) and State of Madhya Pradesh and another v.
Baldeo Prasad (AIR 1961 SC 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
agreement 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 v. The Crown (PLD 1952 Lahore 578), Mazhar Ali Khan, Printer
and Publisher of the Daily "Imroze" v. The Governor of the Punjab (PLD 1954 Lahore 14),
Khizar Hayat and 5 others v. The Commissioner, Sargodha Division and the Deputy
Commissioner, Sargodha (PLD 1965 Lahore 349), Qasu and 2 others v. The State (PLD 1969
Lahore 48), Messrs Hirjina and Co. (Pakistan) Ltd., Karachi v. Commissioner of Sales Tax
Central, Karachi (1971 SCMR 128) and Muhammad Ali v. State Bank of Pakistan, Karachi and
another (1973 SCMR 140).

Mr. Mujeebur Rahman, the learned counsel also contended that the word "oath" has to be read in
its context and the principle of "Nosciture 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 Ahmed 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 that on the strength of Miss Benazir Bhutto v.
Federation of Pakistan and another (PLD 1988 SC 416) Fundamental Rights could even then be
invoked for challenging the vires of the Ordinance XX of 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 v. The
Government of the Punjab and another (PLD 1972 SC 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 v. 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
v. Federal Government of Pakistan and another (PLD 1985 Federal Shariat Court 8) and Capt.
(Retd.) Abdul Wajid and 4 others v. Federal Government of Pakistan (PLD 1988 SC 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 Mst. Aziz Begum and others v. 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
concepts 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
consequence of the Constitutional amendment and if the Constitutional amendment stands so
will ill that logically follows from it including the provisions of the Ordinance XX of 1984.

It was further contended by' the learned counsel representing 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 on 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 Injunctions. 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 recognized 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 rituals 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-?Nabuwwat 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 mis-description 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 in clause (3) of Article 260 of the Constitution and recognizes 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 NOXX 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 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 rind mention in Mirza Khurshid Ahmad and another v. 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 was 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."

Articles 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 be 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 v. 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 2A 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 v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC
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. Any 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 indeals 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 amending 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 stage 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 of
1984 qualifies as law for the purposes of Article 20 of the Constitution. Therefore, the impugned
provisions thereof will hold good notwithstanding 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 Yishore Achharyya Chowdhury and 58
others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue)
Department, Government of East Pakistan (PLD 1957 SC 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, MF. 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 nullified 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".

20. Ordinance XX of 1984 which is being examined was promulgated by the President on the
26th 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,--
(a) ......................................
(b) ......................................

(c) ......................................

(d) refers to, or names, or calls, his place 6f worship as `Masjid';

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) 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--

(a) "poses himself as a Muslim",

(b) "or calls, or refers to, his faith as Islam",

(c) "or preaches or propagates his faith, by words, either spoken or ' written",

(d) "or invites others to accept his faith, by words, either spoken or written, or by visible
representations", .

(e) "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".

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 v. 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 overridden 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 sub-
section (2) of section 298-B of the P.P.C. 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 practice 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 inasmuch 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 P.P.C. 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 gives 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 within 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 P.P.C.

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 I articles of the
Constitution, clauses (c) and (d) of section 298-C of P.P.C. as reproduced above standing by
themselves, individually or the two together would be violative of the Fundamental Right of
religion's 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 acts 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, P.P.C. N 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-Nabuwwat 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 Nos. 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
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 objectionable conduct cannot be
objected to.

29. Our difficulty in handling these 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 Nos. 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 Nos. 149 of 1989 and 150 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.

ABDUL QADEER CHALJDHRY, J.---I have had the benefit of going through the draft
judgment proposed to be delivered by my learned brother Shafiur Rahman, J. but with respect, I
do not agree with the opinion of my learned brother.

The facts of the connected appeals have been fully enumerated in the proposed judgment
and I need not repeat the same. So far as the present appeal is concerned, the facts giving rise to
the proceedings are that the appellants belong to Ahmadia Community, (Quadianis), a
non-Muslim religious sect. The Ahmadis throughout the world had decided to celebrate the
centenary of their religion, which was founded on 23rd March, 1889, in a befitting manner,
commencing from 23rd March, 1989.

On 20th March, 1989, the Home Secretary, Government of Punjab, promulgated an

order, under section 144, Cr.P.C. banning the centenary celebrations, by the Quadianis in the
Province of Punjab. The District Magistrate, Jhang also passed another order dated 21st March,
prohibiting the Quadianis of Jhang District, from undertaking the following activities:--

"(i) Illuminations on buildings and premises;

(ii) Erection of decorative gates;

(iii) Holding of processions and meetings;

(iv) Use of loudspeakers and megaphones;

(v) Raising of slogans;??

(vi) Exhibition of badges; buntings and banners etc.;

(vii) Distribution of pamphlets and pasting of posters on the walls and wall writings;

(viii) Distribution of sweets and service of food;

(ix) Any other activity directly or indirectly which may incite and injure the feelings of
Muslims."

It appears from the above, that what had been banned are the activities in public or in the view of
the public, to save breach of peace and maintain the law and order.

The Resident Magistrate, Rabwah, informed the Ahmadia Community to remove ceremonial
gates, banners and illuminations and also ensure that no more writings will be done on the walls.
He further informed that the prohibitions contained in the order dated 21st March had been
extended till further orders.

The appellants challenged the above orders by way of Writ Petition No. 2089 of 1989, seeking
declaration that their right to recount the important events of the last hundred years of their
community and to celebrate the same 'in a befitting manner could not be denied to them. It was
stated that they had planned to do that by wearing new clothes, offering thanks-giving prayers,
distributing sweets among children, serving food to the poor and to assemble for meetings, to
express their gratitude to God Almighty for favours and bounties bestowed by Him in the last
hundred years. They contended that all the activities noted above, being protected and
guaranteed by Fundamental Right, as embodied in Article 20 of the Constitution of 1973, the
impugned orders were unlawful. It was further stated that none of the ingredients of section 144
was present to attract the impugned orders. One of the appellants who was also convicted under
section 298-B of P.P.C., for using a badge of `Kalima' and for saying `Azan' had filed another
petition. This section 298-B and another 298-C had been inducted in the P.P.C. by the Ordinance
XX of 1984.

The case came up before a learned Judge of the Lahore High Court, who in his judgment
considered very concisely the legal and Constitutional questions raised in the case and has
rendered a very balanced judgment. We highly appreciate that the learned Judge relied, in this
respect, on precedents from the jurisdiction, which are either secular or claim to be the
champions of human rights. The controversy raised before the Court is, undoubtedly, of very
sensitive nature, concerning one's faith and belief and need \a very dispassionate and careful
approach, in order to inspire confidence and lend its judgment the necessary independence.?

The main question involved is whether the impugned orders passed under section 144, Cr.P.C.
and the Ordinance XX of 1984 are violative of the Fundamental Right (Art. 20) as given in the
Constitution of Pakistan, 1973?

The appellants raised the following propositions for consideration--

(a) The finding of the Federal Shariat Court that the Ordinance is not contrary to Qur'an and
Sunnah, is of no consequence, so far as this Court is concerned.
?
(b) The Ordinance expressly and in no uncertain terms, is total denial of religious freedom
guaranteed under Article 20 of the Constitution to, the Ahmadi citizens of Pakistan.

(c) The Ordinance is vague and uncertain and also oppressive.

(d) That the word `law' used in phrase `subject to law' in Article 20 means positive law and not
Islamic law.

(e) The phrase `glory of Islam' as used in Article 19 of the Constitution cannot be availed in
respect of the rights conferred in Article. 20.

(1) Use of a badge of `Kalima' and saying `Azan' are not covered by the Ordinance. ????

(g) The impugned orders issued under section 144, Cr.P.C., violate the appellants' fundamental
rights about religion and are, therefore, violative of Article 20 of the Constitution.

Before proceeding with the contentions as raised, it appears necessary to say, if the general law
applied so far, gives everyone a right to the use of any word, name and epithet etc. or, do there
exist any recognised restrictions already? It will be appreciated that some of the epithets,
descriptions and titles etc., as given in section 298-B have been used by Qur'an for specific
personages (See 33: 32, 33: 54 and 9: 100) while others undoubtedly and rather admittedly are
being used by the Muslims, for those mentioned there, exclusively, for the last about 1400 years.
These epithets carry special meaning, are part of the Muslim belief and used for reverence. Any
person using them for others, in the same manner, may be conveying impression to others that
they are concerned with Islam when the fact may be otherwise.

It is to be noted that it is not only in Pakistan but throughout the World, that laws protect the use
of words and phrases which have special connotations or meaning and which if used for other
may amount to deceiving or misleading the people. The English Company Law lays down that a
name must not be misleading or suggest a connection with the Crown, a Government
Department, or a municipality, and only in exceptional circumstances will names be allowed
which include "Imperial", "Commonwealth", "National", or' "International". The use of words
"Cooperative" and "Building Society" is also forbidden. The most important is the rule that the
name will be refused registration if it is too like the name of an existing company. These
provisions have been strictly applied and were never challenged in a Court of law or the
Parliament.

Section 20 of the Indian Company Law also lays down that no company shall be registered by a
name which, in the opinion of the Central Government, is undersirable and that a name which is
identical with, or too nearly resembles, the name by which a company in existence has been
previously registered, will be deemed to be undersirable by the Central Government. The Indian
Constitution has similar Fundamental Rights as ours but we have not seen a single decision of
any Court there, declaring the restriction violative of these rights.

A law for protection of trade and merchandise marks exists, practically, in every legal system of
the world to protect the trade names and marks etc. with the result that no registered trade name
or mark of one firm or company can be used by any other concern and a violation thereof, not
only entitles the owners of the trade name or mark to receive damages from the violator but it is
a criminal offence also.
Here we may refer to English law. It was held in J. Bollinger v. Costa Brava Wine Company Ltd.
(1959) 3 W.L.R. 966 that "An injunction could be obtained to restrain the defendant from
continuing a practice that was calculated to deceive, although there was no proof of an intent to
deceive".

The Chapter X of the Trade and Merchandise Marks Act, 1958, of India provides penalties for
falsifying and falsely applying trade marks or for applying false trade marks, trade descriptions,
etc. or for selling goods to which a false trade mark or false description is applied.

The Chapter XVIII of the Indian and Pakistan Penal Codes, contains offences relating to
documents and to trade and property marks. Section 481 says "Whoever, marks any movable
property or goods or any case, package or other receptacle containing movable property or
goods, or uses any case, package or other receptacle having any trade mark thereon, in a. manner
reasonably calculated to cause it to be believed that the property or goods so marked or any
property or goods contained in any receptacle so marked, belong to a person to whom they do
not belong is said to use a false property mark." The offence is a fraud and is punishable with
imprisonment of either description for a term which may extend to one year, or with fine or with
both.

Laws similar to above have been in force in Pakistan, and no one challenged them on any
ground. We may here refer to section 69 of the Trade Marks Act, 1940, which was applicable to
the sub-continent of India. The amended section as now applicable in Pakistan is as under:--

"69. Restraint of use of Royal Arms and Stat emblems.---If a person, without due authority,
uses in connection with any trade, business, calling or profession--

(a) the Royal Arms or Government Arms (or arms so closely resembling the same as to be
calculated to deceive) in such manner as to be calculated to lead to the belief that he is duly
authorised so to use the Royal Arms or Government Arms, or

(b) name, title and semblance of Quaid-i-Azam Muhammad Ali Jinnah and any variations
thereof or any device, emblem or title in such manner as to be calculated to lead to the belief that
he is employed by, or supplies goods to, or is connected with, His Majesty's Government or the
Federal Government or any Provincial Government or any department of any such Government,
or

(c) the emblem, the official seal and the name or any abbreviation of the name of the United
Nations or any subsidiary body set up by the United Nations or of the World Health Organisation
in such manner as is to be calculated to lead to the belief that he is duly authorised by the
Secretary-General in the case of the United Nations or by the Director-General of the World
Health Organisation in the case of that Organisation to use that emblem, seal or name,

he may, at the suit of any person who is authorised to use such Arms or such device, emblem or
title or of the Registrar, be restrained by injunction from continuing so to use the same:
Provided that nothing in this section shall be construed as affecting the right, if any, of the
proprietor of a trade mark containing any such Arms, device, emblem or title to continue to use
such trade mark."

It is thus clear that intentionally using trade names, trade marks, property marks or descriptions
of others in order to make believe others that they belong to the user thereof amounts to an
offence and not only the perpetrator can be imprisoned and fined but damages can be recovered
and injunction to restrain him issued. This is true of goods of even very small value. For
example, the Coca Cola Company will not permit anyone to sell, even a few ounces of his own
product in his own bottles or other receptacles, marked Coca Cola, even though its price may be
a few cents. Further, it is a criminal offence carrying sentences of imprisonment and also fine.
The principles involved are; do not deceive and do not violate the property rights of others.

Generally speaking, the people who are deceiving others with falsified names are being
discouraged, even though the loss may be in terms of pennies. In our case, a law has been made
to protect even the title and semblance of Quaid-e-Azam, without any challenge from any
quarter. However, in this Ideological State, the appellants, who are non-Muslims want to pass off
their faith as Islam ? It must be appreciated that in this part of the world, faith is still the most
precious thing to a Muslim believer, and he will not tolerate a Government which is not prepared
to save him of such deceptions or forgeries.

The appellants, on the other hand, insist not only for a licence to pass off their faith as Islam but
they also want to attach the exclusive epithets and descriptions etc., of the very reverred Muslim
personages to those heretic non? Muslims, who are considered not even a patch on them. In fact
the Muslims treat it as defiling and desecration of those personages. Thus the insistence on the
part of the appellants and their community, to use the prohibited epithets and the "Shaa'ire Islam
leave no manner of doubt even to a common man, that the appellants want to do so intentionally
and it may, in that case amount to not only defiling those pious personages but deceiving others.
And, if a religious community insists on deception as its fundamental right and wants assistance
of Courts in doing the same, then God help it. It has been held by the United States Supreme
Court in Cantwell v. Connecticut (310 U.S. 296 at 306) that "the cloak of religion or religious
belief does not protect anybody in committing fraud upon the public".

Again, if the appellants or their community have no designs to deceive, why do not they coin
their own epithets etc.? Do not they realise that relying on the `Shaairs' and other exclusive signs,
marks and practices of other religions will betray the hollowness of their own religion. It may
mean in that event that their new religion cannot progress or expand on its own strength, worth
and merit but has to rely on deception. After all there are many other religions in the world and
none of them ever usurped the epithets etc., of Muslims or others. Rather, they profess and
present their own beliefs proudly and eulogies their heroes their own way. It must, however, be
mentioned here that there is no law in Pakistan which forbids Ahmadis to coin their own epithets
etc. and use them exclusively and there is no other restriction of any sort, whatever, against their
religion.

It was argued that the finding of the Federal Shariat Court that the Ordinance is not contrary to
Qur'an and Sunnah, is of no consequence, so far as this Court is concerned.
The contention, however, has no merit. The Ahmadis have been declared non-Muslims by
Article 260(3)(b) of the Constitution. This fact has further been affirmed by the Federal Shariat
Court of Pakistan, in Mujibur Rehman v. Federal Government of Pakistan And another (PLD
1985 FSC 8), for the reason that the Ahmadis do not believe in the finality of prophet-hood of
Muhammad (peace be upon him); they falsify a clear and general verse of Holy Qur'an by resort
to its `Taweel' and import into Islam, heretic concepts like shadowism, incarnation and
transmigration. They were, therefore, asked to restrain themselves from directly or indirectly
posing as Muslims or claiming legal rights of Muslims.

The Federal Shariat Court further held that the word "Sahabi" and "Ahle-Bait" are used by
Muslims for companions and members of the family of Holy Prophet respectively, all of whom
were the best Muslims. The Court observed that use of such epithets, which are exclusive for
companions of Prophet, his wives and members of his family, by Quadianis in respect of the
wives, members of the family, companions and successors of Mirza Ghulam Ahmad, amounts to
defiling them and may deceive people that the bearers of such epithets are good Muslims. It was
further stated that calling of `Azan' and naming place of worship as `Masjid', is considered a sure
sign of the person calling `Azan' or of persons congregating or praying in the mosque as being
Muslims. It was thus held that the provisions of the Ordinance banning use of these epithets,
expressions and preaching of religion, by the Ahmadis and the reiteration in the Ordinance that
the Ahmadis cannot call themselves or pose to be Muslims in any manner directly or indirectly,
is in implementation of the Constitutional objective.

As regards `Shaa'ir of Islam' (distinctive characteristics), the Court held that Islamic Sharia does
not allow a non-Muslim to adopt them and if an Islamic State in spite of its being in power,
allows a non-Muslim to adopt them (without embracing Islam), it will be its failure to discharge
its duties. An Islamic State, like a Secular State, thus has the power to legislate, to prevent
non-Muslims from adopting Shaa'ire-Islam, to propagate their own beliefs. As said above, such
restriction will be meant to prevent unscrupulous and fraudulent non-Muslims from using the
effective and attractive features of Islam in order to attract other non-Muslims not to Islam but to
their own heretic fold. It was further held that claim could not be allowed to be pressed on the
basis of the Fundamental Rights.

It is to be noted that Mujibur Rehman and others had challenged the above order of the Federal
Shariat Court in the Shariat Appellate Bench of the Supreme Court (see PLD 1988 SC (Shariat
Appellate Bench) 167), under Article 203F of the Constitution but withdrew it later for the
reasons best known to the appellants. This Court in that appeal held as under:--

"Judgment of the Federal Shariat Court shall rule the field:"

The present appeal has been filed and is being heard on the general side, under Art. 185 of the
Constitution.

The Chapter 3A of the Constitution was inducted in the Constitution on 26th May, 1980. It
contains Articles 203A to Article 203J. The Article 203A of the Constitution lays down that the
provisions of Chapter 3A shall have effect notwithstanding anything contained in the
Constitution. Further Article 2036 provides that "Save as provided in Article 203F, no Court or
tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or
exercise any power 'or jurisdiction in respect of any matter within the power or jurisdiction of the
Court'

These provisions when read together, would mean that a finding of the Federal Shariat Court, if
the same is either not challenged in the Shariat Appellate Bench of the Supreme Court or
challenged but maintained, would be binding even on the Supreme Court. Consequently, the
above given findings of the Federal Shariat Court cannot be ignored by this Court.

The next point needing consideration is whether Ordinance XX of 1984, expressly and in no
uncertain terms, is total denial of religious freedom guaranteed under Article 20 of the
Constitution to the Ahmadi citizens of Pakistan? In order to appreciate further the contention it is
necessary to know the relevant law and the facts which mean to have denied the guaranteed
religious freedom to the appellants' sect.

Section 298-B which is relevant to this case, reads as under:--

"298-B.--Misuse of epithets descriptions and titles etc. reserved for certain personages or
places ---(1) Any person of 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--

(a) refers to or addresses, any person, other than a Caliph or companion of the Holy Prophet
Muhammad (peace be upon him), as "Amirul Mumineen , `Khalifa-tin-Muslimeen', Sahaabi', or
`Razi Allah Anho';

(b) refers to, or addresses, any, person other than a wife of the Holy Prophet Muhammad (peace
be upon him), as `Ummul Mumineen';

(c) refers to, or addresses, any person, other than a member of the family (ahle-bait) of the Holy
Prophet Muhammad (peace be upon him), as Ahle-bait; or

(d) refers to, or names, or calls his place of worship as `Masjid';

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) Any person of the Quadiani 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 the prayers followed by his faith as `Azan', or recites 'Azan' as used by 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:'

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 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 contents of the Ordinance XX of 1984 have been reproduced above. They prohibit the
community of the appellants to use certain epithets, descriptions and titles etc. mentioned therein.
It may be mentioned that Mr. Fakhruddin G. Ebrahim, the learned counsel, did not challenge the
validity of subsection (a) of section 298. The orders of the Home Secretary, the District
Magistrate and the Resident Magistrate mentioned in the beginning of the petition banned their
centenary celebrations, in the Province of Punjab, prohibiting them from the activities
reproduced in para. 3 above and asked them to remove ceremonial gates, banners and
illuminations and further ensure that no further writings will be done on the walls. The purpose
of the order has also been spelt out in the last direction to say, that no other activity which may
directly or indirectly incite and injure the feelings of Muslims, shall be undertaken. The above
restrictions, clearly mean such activities which might have been performed in the public or in
public view and not those to be performed in private. The actions had been challenged in the
High Court through writ petitions, pleading violation of fundamental rights. The facts which
were given by the appellants themselves and on which the orders were passed, will, therefore, be
considered as undisputed.

Article 20 provides as hereunder:--

"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."

The fundamental right, relevant hence, is the `freedom to profess religion' but it has been made
`subject to law, public order and morality'. The Courts of other countries, which have similar
fundamental rights, have held that this right embraces two concepts; freedom to believe and
freedom to act. Some of them held the former to be absolute but others said that, that too was
subject to law etc. However, all are agreed that the latter, in the nature of things, cannot be
absolute. According to them, conduct remains subject to regulation for the protection of the
society. So the freedom to act must have appropriate definition to preserve the enforcement of
that protection. The phrase `subject to law', on the other hand, does neither invest the legislature
with unlimited power to unduly restrict or take away the Fundamental Rights guaranteed in the
Constitution, nor can they be completely ignored or by?passed as non-existent. A balance has
thus to be struck between the two, by resorting to a reasonable interpretation, keeping in view the
peculiar circumstances of each case. See Jesse Cantwell etc. v. State of Connecticut 310 US 296
and Tikamdas and others v. Divisional Evacuee Trust Committee, Karachi P L D 1968 Kar. 703
(F.B.).

The Supreme Court of America in the case of Reynolds v. United States 98 US 145 held that
"Congress was deprived of all legislatible power over mere opinion, but was left free to reach
actions which were in violation of social duties or subversive of good order ... Laws are made for
the Government of actions, and while they cannot interfere with mere religious beliefs and
opinions, they may with practices".

After taking the above view, the Supreme Court felt justified to ban polygamy, as it was being
practised by Mormons sect on the ground that it was a duty imposed on them by their religion
and was not a religious belief or opinion. It must be noted here that the observations in the last
part of the above paragraph are peculiar to America where the people and not Allah are the
sovereign.

The Supreme Court of India, in the Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra etc. A I R 1954 SC 282 at p. 291 approved the view similar to the above, and as
taken by Latham, CJ. in the case from Australia, to say that:--

"The provision for protection of religion was not an absolute protection to be interpreted and
applied independently of other provisions of the Constitution. These privileges must be
reconciled with the right of the State to employ the sovereign power to ensure peace, security
and orderly living without which Constitutional guarantee of civil liberty would be a mockery."

It has been observed at page 127 as under:--

"In the United States the problems created by this provision have been solved in large measure
by holding that the provision for the protection of religion is not an absolute, to be interpreted
and applied independently of other provisions of the Constitution. The Supreme Court said in
Jones v. Opelika (1942) 316 US 584 at p.593, with reference to the Constitutional guarantees of
freedom of speech, freedom of press and freedom of religion; `They are not absolutes to be
exercised independently of other cherished privileges, protected by the same organic instrument'.
It was held that these privileges must be reconciled with the right of a State to employ the
sovereign power to ensure orderly living `without which Constitutional guarantees of civil
liberties would be a mockery'."

I has been further observed at page 130 as follows:--

"The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, that
the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of
licentiousness, or justify practices inconsistent with the peace or safety of this State."

Again at page 131, it has been observed as hereunder:--

"John Stuart Mill in his Essay on Liberty critically examines the idea of liberty, and his
discussion of the subject is widely accepted as a weighty exposition of principle: The author had
to make the distinction which is often made in words between liberty and licence, but which it is
sometimes very difficult to apply in practice. He recognized that liberty did not mean the licence
of individuals to do just what they pleased, because such liberty would mean the absence of law
and of order and ultimately the destruction of liberty. He expressed his opinion as to the limits of
liberty when he said: `The sole end for which mankind are warranted, individually or
collectively, in interfering with the liberty of action of any of their members, is self? protection'."

At the same page it has been further observed that:--

"It is consistent with the maintenance of religious liberty for the State to restrain actions and
courses of conduct which are inconsistent with the maintenance of civil government or
prejudicial to the continued existence of the community."

The above observations were made while interpreting section 116 of the Constitution which
reads as follows:--

"The Commonwealth shall not make any law for establishing any religion, or for imposing any
religious observance, or for prohibiting the free exercise of any religion, and no religious test
shall be required as a qualification for any office or public trust under the Commonwealth."

At page 155 of the aforesaid case, the following observations are relevant:--

"The Constitutional provision does not protect unsocial actions subversive of the community
itself. Consequently the liberty and freedom of religion guaranteed and protected by the
Constitution is subject to limitations which it is the function and the duty of the Courts of law to
expound. And those limitations are such as are reasonably necessary for the protection of the
community and in the interests of social order."

It may, therefore, be necessary to know, what is religion, the freedom of which restricts the right
of the Governments to legislate and take action. Scholars give different origins of the word.
Religion is a complex of doctrines and practices and institutions. It is a statement of belief in
God, in a world of spirits and a world or worlds that lie beyond the one in which we live. In its
more colloquial sense, a religion is spoken of as a religion, e.g. Christianity or Islam, the religion
of Jews or Catholics etc. In Davis v. Beason 1890 (133) US 333, the American Supreme Court
defined it as under:--

"The term `religion' has reference to one's views of his relation to his creator and the obligations
they impose of reverence for His Being and character and of obedience to His will. It is often
confounded with cultus or form of worship of a particular sect, but is distinguishable from the
latter."

The term is not expressly, defined in the Constitution of Pakistan as such but its meaning may be
gathered from the definitions of `Muslims and non-Muslim', in its Article 260(3)(a) and (b),
which are as under.--
"260(3).-- 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 Prophet-hood of Muhammad (peace be upon him), the last of prophets
and does not believe in or recognise as a prophet or religious reformer, any person who claimed
or claims to be a prophet, in the sense of the word or 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, Hindus, Sikh, Budhist or Parsi community, a person of the Quadiani Group or Lahori
Group (who call themselves `Ahmadis' or by any other name) or a Bahai, and a person belonging
to any of the Scheduled Castes)."

There is no definition of the term `religion', in the Constitutions of India or America or Australia
either. However, the Indian Supreme Court, in the case of Commissioner H.R.E. v. Lakshmindra
Swamiar AIR 1954 SC 282, interpreted the term in the following manner:--

"Religion is a matter of faith with individuals or communities and is not necessarily theistic.
There are well known religions in India like Budhism and Jainism which do not believe in God.
A religion undoubtedly has its basis in the system of beliefs or doctrines which are regarded by
those who profess that- religion as conductive to their spiritual well being, but it will not be
correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay
down a code of ethical rules for its followers to accept, it might prescribe rituals and
observances, ceremonies and mode of worship which are regarded as integral parts of the
religion, and these forms and observances might even extend to matters of food and dress:"

The Supreme-Court went on to say, in para. 19 of the judgment that:

"In the first place, what constitutes the essential part of a religion is primarily to be ascertained
with reference to the doctrines of that religion itself. If the tenets of any religious sect of Hindus
prescribe that offering of food be given to the idol at particular hours of the day, that periodical
ceremonies should be performed in a certain way at certain period of the year or that there should
be daily recital of the sacred texts or oblations to the sacred fire, all these would be regarded as
parts of the religion and mere fact that they arc expenditure of money ...should not make them
secular ...."

The Court, after noting that the American and Australian Courts have declared in unrestricted
terms, without any limitation whatsoever, the freedom of religion, observed that:-

"The language of Articles 25 and 26 is sufficiently clear to enable us to determine without the aid
of foreign authorities as to what matters come within the purview of religion and what not. As
we have already indicated, freedom of religion in our Constitution is not confined to religious
beliefs only; it extends to religious practices as well subject to restrictions which the Constitution
itself has laid down."
The Court then did go into the question whether certain matters appertained to religion and
concluded by saying that:

"These are certainly not matters of religion and the objection raised with regard to validity of
these provisions seems to be altogether baseless:"

The same Court in Durghah Committee v. Hussain Ali A I R 1961 SC 1402 in para. 33,
Gajendragadkar, J. struck a note of caution and observed as under:--

"Whilst we are dealing with this point it may not be out of place to strike a note of caution and
observe that in order that the practice in question should be treated as a part of religion they must
be regarded by the said religion as its essential and integral part; otherwise even secular practices
which are to an essential and integral part of religion are apt to be clothed with a religious form
and make a claim for being treated as religious practices. Similarly, even practices though
religious may have sprung from merely superstitious beliefs and may in that sense be extraneous
and unessential accretion to religion itself. Unless such practices arc found to constitute an
essential and integral part of a religion their claim for the protection may have to be carefully
scrutinised: in other words, the protection must be confined to such religious practices as are an
essential and integral part of it and no other:'

The same Court in Jagdishwaranand v. Police Commissioner, Calcutta A I R 1984 SC 51 in para.

10, held as follows:--

"Courts have the power to determine whether a particular rite or observance is regarded as
essential by the tenets of a particular religion."

It has been seen above, in the judgments of foreign secular Courts that though religious practices
are protected by the term `freedom of religion' yet only such practices are so covered as are
integral and essential part of the religion. It is further held that it is for the Courts to determine
whether a particular practice, constitutes essential and integral part of the religion or not? In that
view of the matter, these practices have to be stated and proved so, from the authentic sources, of
the religion, to the satisfaction of the Court.

The appellants, therefore, had to first enumerate the practices they intended to perform at the
centenary celebrations and then show that they were essential and integral part of their religion,
before the Court could declare that they, as essential and integral part, were unlawfully denied by
the impugned law or the executive orders? The appellants, however, have not explained how the
epithets etc., and the various planned ceremonies are essential part of their religion and that they
have to be performed only in public or in the public view, on the roads and streets or at the
public places?

It will also be noted that if the impugned law is a valid piece of legislation, and the respondents
had taken the impugned actions, in the interest of law and order, then unless it can be shown that
the same were taken mala fide or without factual justification, the question of denial of
fundamental rights may no: arise. The law on the point has been well-settled in various
jurisdictions and it may be useful to cite them.

Latham, C.J. in Jehovah's Witnesses case, Adelaide v. Commonwealth, referred to above, while
dealing with the provisions of section 116 of the Australian Constitution, which inter alia forbids
the Commonwealth to prohibit "the free exercise of any religion" made the following
observations:--

"(1) Section 116 protects the religion (or absence of religion) of minorities, and, in particular, of
unpopular minorities (p.124) although it is true that in determining what is religious and what is
not religious the current application of word religion must necessarily be taken into account.

(2) Section 116 protects practices as well as beliefs (p.124).

(3) As to free exercise of religion: the word `free' does .got mean licence. The concept of
freedom can only be evaluated in a particular context. For example free speech does not mean
the right to create a panic by calling out `fire' in a crowded theatre. Likewise as various
American cases show, the free exercise of religion does not empower individuals because of
their religious beliefs to break the law of the country.

(4) The High Court is arbiter of the occasion when a legislative provision unduly infringes
religious freedom. This makes it possible to accord a real measure of practical protection to
religion without involving the community in anarchy."

Consequently, the Court held that the doctrine expressed by Jehovah's Witnesses as to the
non-cooperation with the Commonwealth in terms of military obligation was prejudicial to the
defence of the community and section 116 did not give immunity to it. So the rule laid down
there is that a law imposing civic duties could not be characterised as a law infringing religious
freedom.

Justice Hughes in Willis Cox v. New Hampshire 1941 (312) US 569 also enlightened the same
subject to say:

"A statute requiring persons using the public streets for a parade or procession to procure a
special licence therefore from the local authorities, does not constitute an unconstitutional
interference with religious worship or the practice of religion, as applied to a group marching
along a sidewalk in single file carrying signs and placards advertising their religious beliefs."

We have referred to the above view from such countries, which claim to be the secular and
liberal and not religious or fundamentalists. The same principles were applied by the Indian
Supreme Court in Muhammad Hanif Qureshi and others v. State of Bihar A I R 1958 SC 731 to
hold that certain laws banning slaughter of certain animals, did not violate the fundamental rights
of Muslims under Article 25(1), as there was no material to substantiate the claim that the
sacrifice of a cow on Bakr-Id-Day, was enjoined or sanctioned by Islam, to exhibit a
Mussalman's belief and idea.
The same Court in Acharya Jagdishwaranand Avadhutta etc. v. Commissioner of Police,
Calcutta, A I R 1984 SC 51 held as follows:--

"Even conceding that Tandava dance has been prescribed as a religious right for every follower
of Ananda Marg it does not follow as a necessary corollary that Tandava dance to be performed
in the public is a matter of religious rite. Consequently, the claim that the petitioner has a
fundamental right within the meaning of Article 25 or 26 to perform Tandava dance in public
streets and public places is liable to be rejected:"

The American Courts held in the following cases that there was no violation of Constitutional
guarantee of freedom of exercise of religion. Mr. S. Sharifuddin Pirzada in his book
"Fundamental Rights and Constitutional Remedies in Pakistan" (1966 Edition) at pp.313-314 and
317 has observed as follows:--

"(i) In Hamilton v. Board of Regents of University of California, (1934) 293 US 245, where
students appealed to the Supreme Court that the act of the university to make a regulation for
compulsory military training, was contrary to their religious belief, the Court rejected the
contention, holding that the `Government owes a duty to the people within its jurisdiction to
preserve itself in adequate strength to maintain peace and order and assure the enforcement of
law. And every citizen owes the reciprocal duty, according to his capacity, to support and defend
the Government against all enemies':'

(ii) The plea of fundamental right was rejected in Comonwealth v. Plaisted (1889) 148 Mass 375,
by the Massachusettes Supreme Court in a case where law prohibits the use of streets for
religious meetings, or the beating of drums thougt it is a part of religious ceremony of such
organisation as the salvation army.

(iii) Where the statute requires a parent to provide medical treatment for a child suffering from
disease even if not in accordance with religious belief of the parents.

(iv) Freedom of religion does not necessarily imply absolute equality of treatment, and-in fact
regard must be had to the special position of Church of England. ("The United Kingdom" by
G.W. Keeton and D. Lloyd, pp.67-68)."

The above views, as they are prevalent, in the above jurisdiction, do go to show that freedom of
religion would not be allowed to interfere with the law and order or public peace and tranquillity.
It is based on the principle that the State will not permit anyone to violate or take away the
fundamental rights of others, in the enjoyment of his own rights and that no one can be allowed
to insult, damage or defile the religion of any other class or outrage their religious feelings, so as
to give rise to law and order situation. So whenever or wherever the State has reasons to believe,
that the peace and order will be disturbed or the religious feelings of others may be injured, so as
to create law and order situation, it may take such minimum preventive measures as will ensure
law and order.

The Muslims think that the birth of this Ahmadia community during the English rule, in the
sub-Continent, 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 desceration of their holy personages, is a threat to the integrity
of `Ummah' and tranquillity 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 became 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 Reflections 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 Meessiah, 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 Ahamd (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 the 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, Qur'an, 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, belie me or reject me. Rather, your leader in prayers should
be one from amongst you. (Arbaseen 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 delegate 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, pages 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 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 any one who 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 mischievously 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, February 8, 1950).

Mirza Ghulam Ahmad had forbidden his followers from marrying their daughters with
non-Ahmadis and from praying alongwith them. According to him 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 npt we." (Alfazal November. 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
campaign 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 be made to the case of Sardar Syedna Taher
Saifudin Sahib v. State of Bombay etc. (AIR 1962 SC 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 hearsay, 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 he 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 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 Muhammad 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 or non-Muslim seems to have been become
counter-productive.

The urge by the Ahmadis to somehow retain, all the perceivable signs of Muslims seems
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 fulfils 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 as a Muslim, or calls, or refers to, his
faith as Islam, or preaches or propagates his faith, or invites others to accept 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 as 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. A. B. Khondkar (PLD
1965 SC 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 undetermined and violative 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 conduct
cannot be drawn or there are attendant dangers of arbitrary and discriminatory enforcement or
that it is so vague on the face 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 background 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 abovementioned 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, Navel 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 altogehter. It provides; however, 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 othwerwise. 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 situation other than those for whom they have been prescribed. The
Ahmadis have been desecrating 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 jurisdictions. The United States
Supreme Court observed in Lanzetta v. New Jersey (306 U.S. 451, 1939) that vagueness is a
Constitutional vice conceptually distinct from over breadth 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 v. General Construction Co. (1926) 269 U.S. 385, 391).

Such vagueness occurs when a legislature states its proscriptions in terms so indefinite that line
between innocent and condemned conduct becomes a matter of guesswork and that the discretion
of law enforcement officials, with MM 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 appellants is 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; Brig. (Retd.) F. B. Ali v. The State PLD 1975 SC 506;
Federation of Pakistan v. United Sugar Mills, Ltd., Karachi PLD 1977 SC 397 and Fauji
Foundation v. Shamim-ur Rehman PLD 1983 SC 457.

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 that 00 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 f -e Constitution, which reads as under:--.

"2A. Objective Resolution to form part of substantive provisions. ?The principles and
provisions set out in the Objectives 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 Objectives Resolution,
which henceforth formed part of every Constitution as a preamble, 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
pp 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 abovementioned 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 30.1 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 Qur'an or by the
Sunna of the Holy Prophet or of some principle emanating by necessary intendment there from
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 inverse 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 Qur'an moreso, but also both in the Western and Eastern
jurisprudence delegated authority held in trust has the following attributes:-- ' .

(i) The authority so delegated to, and held in trust by, various functionaries of the State including
its Head must be exercised so as to protect, preserve, effectuate and advance the object and
purposes of the trust, .

(ii) all authority so enjoyed must be accountable at' every stage, and at all times, like that of
trustee, both in hierarchical order going back to the ultimate delegator, and at the other end to the
beneficiary of the trust.,

(iii) in discharging the trust and in exercising this delegated authority, there should not only be
substantive compliance but also procedural fairness."

This aspect was made absolutely clear by the Supreme Court in Federation of Pakistan v.
N.-W.F.P. Government (PLD 1490 SC 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 vacuum, vis-a-vis, the statute law on the subject, the common
Islamic law/the Injunctions of Islam as contained in Qur'an 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 Qur'an
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 RF in Qur'an 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
Objectives Resolution, have become effective and operative. Therefore, every man-made law
must now conform to the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy
Prophet (p.b.u.h.). 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 Islam 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 Qur'an 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 subsection (2) of
section 298-B is exclusively devoted to it. As about the use, of `Kalima' by the Ahmadis, in the
light of the Ordinance, reference be made to section 298-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, (Muhammad is Allah's Apostle ....) .Allah named him
Muhammad."

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:

"Muhammad has come back to us, with higher glory and one who wants to see Muhammad
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, he declared:

"One who distinguishes between me and Muhammad, he has neither seen me nor known me."

Mires Ghulam Ahmad further announced:

"I am the accomplishment of the name of Muhammad Le. I am shadow of Muhammad". (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 opostel of their own to recite to them His revelations to purify them and
instruct them in scriputres and wisdom...); I am the same last Prophet incarnate and God named
me in Braheene Ahmadia' Muhammad and Ahmad and declared me as personified
Muhammad .....". (See Aik Ghalti Ka lzala, pages 10-11, published Rabwah).

"I am that mirror which reflects exactly the person and the prophethood of Muhammad".
(Nazulul Masih, page 48, published Qadian, 1909).

In the light of what has been said above, there is genera/ 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
deity that the teachings of the Holy Prophet (p.b.u.h.) 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 Mirra Sahib, in his writings, tried to belittle the glory and grace of the Holy
Prophet (p.b.u.h.), 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."

Again said:

"the Holy Prophet could not understad some of the revelations and he made many mistakes. (See
Izalatul Auham, Lahori Press."

He further said:

"the Holy Prophet had 3 thousand miracles" (See Tuhfa Golria, page 67 published Rabwah)
"while I have one million signs". (See Braheen Ahmadia, page 56). "The Holy Prophet used to
cat 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 Muhammad's Prophethood and was qualified to be called Prophet incarnate and he went so
ahead that he stood side by side with Muhammad (p.b.u.h.):'

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 Ahamdi 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
(p.b.u.h.). They all were then given to me as I am his shadow. It is for this reason that my names
are Adam, Abraham, Moses, Noha, 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 grandmothers and
maternal grandmothers were prostitutes and whores and that is the blood he represents."

(Appendix Anjaame Atham, Note 7).

Qur'an 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 Qur'an and can anyone who does so claim to
be a Muslim? How can then Mirza Ghulam Ahmed 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 and English Court, for the offence of blasphemy, under the Blasphemy Act, 1679,
with a term of imprisonment.

84. Again, as far the Holy Prophet Muhammad (p.b.u.h.) 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."

(Sec AI-Bukhari, Kitabul Eeman, Bab Hubbul Rasool Min-al-?Ecman).

Can then anyone blame a Muslim if he loses control of himself on hearing, reading o; 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
Shaair-e-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, 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 placard, a badge or a poster or write on walls
or ceremonial gates or buntings, the `Kalima', or chant other `Shaee're Islam' it would amount to
publicly defiling the name of Holy Prophet (p.b.u.h.) 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 tranquillity 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 public safety and tranquillity.

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 privet. The Ahmadis like other minorities are free to profess
their religion in this country rind no one can take away that right of theirs, either by legislation or
by executive orders. 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 regards 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 mentioned 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 hypersensitive, 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 ultra vires 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.

(Sd.) Abdul Qadeer, Ch. J

(Sd.) Muhammad Afzal Lone, J

(Sd.) Wali Muhammad Khan, J

SALEEM AKHTAR, J.---The appellants have claimed protection of their right under Articles
19, 20 and 25 on the basis of being a minority as declared by the Constitution. They admit to be a
minority in terms of the Constitution as distinguished from the Muslims. Their claim being that
they should be treated equally under law like other minorities enjoying freedom of speech and
expression and they should be allowed to profess, practise and propagate their religion. The first
claim is covered by Articles 19 and 25 while the second one is based on Article 20.

2. Law permits reasonable classification and distinction in the same class of persons, but it
should be founded on reasonable distinction and reasonable basis. Reference can be made to
Government of Balochistan v. Azizullah Memon PLD 1993 SC 314. The Quadianis/Ahmadis on
the basis of their faith and religion as elucidated by my learned brother Abdul Qadeer Chaudhry,
J. vis-a-vis Muslims stand at a different pedestal as compared to other minorities. Therefore,
considering these facts and in order to maintain public order it was felt necessary to classify them
differently and promulgate the impugned law to meet the situation. The classification being
proper and reasonable, the) impugned law does not offend Articles 19 and 25.

3. As regards applicability of Article 2A, I reiterate the view expressed in Hakim Khan's case
PLD 1992 SC 595.

4. The freedom of religion is guaranteed by Article 20 which includes the right to profess,
practise and propagate. The overriding limitation as provided by Article 20 is the law, public
order and morality. The law cannot override Article 20 but has to protect the freedom of religion
without transgressing bounds of morality and public order. Propagation of religion by the
appellants who as distinguished from other minorities, having different background and history,
may be restricted to maintain public order and morality. Therefore, their right to profess, practise
and propagate their religion cannot be restricted provided they profess, practise without adopting
Shaair-e-Islam in a manner which does not offend the felling of the Muslims.

5. I agree with my learned brother Shafiur Rehman, J. that clauses (a),I (b) and (e) of section
298-C, P.P.C. do not offend Articles 19, 20 and 260 (3).

6. As regards section 298-C, clauses (c) and (d), in my view they will not be violative of Article
20 provided they are acted upon by the Quadianis/Ahmadis without adopting any of the
Shaair-e-Islam.

7. Consequently I would dismiss CA. No. 149/1989 and CA. No. 150/1989 and remand CA.
No.31-K/1988, 32-K/1988, 33-K/1988, 34-K. 1988 and 35-K/1988 for re-trial.

In CA No. 412/1992 in view of section 144 (6), Cr.P.C. the District/Resident Magistrate had no
jurisdiction to enforce the order under section 144 Cr.P.C. for an unlimited period. It is therefore
partly allowed to that extent.

(Sd.) Saleem Akhtar, J

ORDER OF THE COURT

The Court by majority holds that all appeals preferred are liable to be dismissed and are hereby
dismissed.

The convicts in Criminal Appeals 31-K to 35-K of 1989 who are on bail shall be taken into
custody forthwith and they are required to undergo the remainder of the punishment awarded by
the Court.

(Sd.) Shafiur Rahman, J??????????????????????????????????? (Sd.) Abdul Qadeer

Chaudhry, J

(Sd.) Muhammad Afzal Lone, J ?????????????????????? (Sd.) Saleem Akhtar, J

(Sd.) Wali Muhammad Khan, J

M.B.T./Z-150/S?????????????????????? ??????????????????????????????????????????????????
????????? Appeals dismissed.