PLD 1978 LAHORE 113

Per Aftab Hussain, J.

(a) Constitution of Pakistan (1973), Articles 260, 4 & 20:

Constitution of Pakistan (1973) Art. 260(3) — Words and phrases – Expression ” a person who does not believe in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him) the Last of the Prophets” — Covers case of Qadiani group of Ahmadis — Contention that Art. 260(3) applies to adherents of such person who makes claim of Prophethood and is alive on date of enforcement of Constitution (Second Amendment) Act, 1974 — Held, not correct — Constitution (Second Amendment) Act, 1974 — A declaratory statute and retrospective in character. — [Words and phrases — Interpretation of statuted].

The Constitution of 1973 has unquivocally declared Qadianis or Ahmadis, to whatever group they belong, as non-Muslim for the purposes of the Constitution and the law. Sub-Article (3) of Article 260 is in general terms and proclaims that everybody who does not believe in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him) the last of Prophets or claims to be a prophet, in any sence of the word or of any description whatsoever, after Muhammad (peace be upon him) or recognizes such a claimant as a prophet or a religions reformer, is not a Muslim for the purpose of the Constitution or law. The only argument of the counsel for the petitioner was that it declares only those persons as non-Muslim who believe in the prophethood of a future claimant to that office and not a claimant who had laid such a claim before the Second Amendment of the Constitution was passed. This argument was based upon the words “or claims to be prophet”.

Held : This argument is without merit. The amendment declares not only a person who claim to be a prophet as a non-Muslim but declares all persons as infidels who do not believe in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him). So far as the Ahmadis of the Qadiani Group are concerned, it is admitted that they consider Mirza Ghulam Ahmad, the founder of the Qadiani movement as Zilli and Buruzi Prophet and Masih Mao’ud or Muscle Isa. They believe in the Holy Prophet (peace be upon him) as the last of those prophets who have been sent in this world with a Shariat. According to them only Tashri-i-Nabuwat, as distinguished from Buruzi or Zilli Nabuwat, came to an end after the advent of Prophet Muhammad (peace be upon him). They believe in the qualified finality of the Prophethood of Muhammad (peace be upon him) and not upon its absolute unqualified finality. The first portion of the definition i.e. “a person who does not believe in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him) the Last of the Prophets” cover the case of Qadiani Group of Ahmadis. In the face of this clear language, it is not possible to say that Article 260(3) applies to the adherents of such a person who makes a claim of prophethood and is alive on the date of enforcement of the Constitution (Second Amendment) Act. 1974. So far as the Qadiani group are concerned, it is not necessary to look to any other portion of the definition since the first portion leaves no doubt that they have been declared as non-Muslim by the Constitution. The Constitution (Second Amendment) Act is a declaratory Statute which by its very nature is retrospective in character. The word “claims” can therefore, be read as referring to the past however near or remote it may be. the Legislature, therefore, intended to use the word “claims” to apply to all time past, present and future. [pp.150,151]GG,HH, & II & JJ.

Article 260(3) — Words and phrases — Expression “subject to Constitution and Law” occurring in Article 260(3) — Used only to emphasise guarantees give and safeguards granted to non-Muslims — Expression does not have force of recognising Ahmadis as Muslims — [Words and phrases] (p. 154)LL

Articles 4, 8 20 & 260(3) — Words and phrases — Word “Law” in Articles 4, 8 & 260(3) — Confined to positive law and not inclusive of law of Shariat except such as already made applicable by positive law — Argument that law means Islamic Law in case of conflict between Islamic Law and codified law, Held, easily refuted by Articles 227 to 230 of Constitution (1973) — [Words and phrases – Muhammadan Law] (p.155)MM & NN

Article 20 — Contention that non non-Muslim can construct his place of worship in any manner resembling mosque or call it by name of Masjid or say Azan in it or perform his prayer in it in same manner as ordained for Muslims — Held: Not supported by any Quraanic Injunction, tradition or opinion of Imams — Contrary to Fatwas and Hanafi view — Construction of a place of worship by non-Muslims for themselves — Cannot by itself cause injury or loss to Muslims — Place of worship neither used for collecting arms to wage war against Muslims not for deception — Islam, a religion of tolerance, leaving non-Muslims free to profess and practice their religion — Freedom of religion also guaranteed by Constitution and such fundamental rights not liable to be taken away by law — Allowing non-Muslim to offer prayers and to call Azan — No interference with (in Urdu) — Nothing objectionable in worship of One God in manner thought by Prophet of Islam — Nor any cause for Muslims to be aggrieved — No cause of action disclosed — Plaint liable to be dismissed — Cause of action — [Muhammadan Law] (pp. 170,173-180)YY,ZZ & ZZZ to III

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