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Petitioner: ABDUR RAHMAN MOBASHIR AND 3 Other VS Respondent: Syed AMIR ALI SHAH BOKHARI JUDGMENT
Court Name: Lahore High Court Judge(s): Aftab Hussain, K. Muhammad A. Samadani Title:ABDUR RAHMAN MOBASHIR AND 3 Other vs Syed AMIR ALI SHAH BOKHARI
JUDGMENT
Reported As: PLD 1978 Lahore 113 Result: Petitions allowed Judgment JUDGMENT AFTAB HUSSAIN J_-The dispute between the Muslims of the Indian Sub-continent and the followers of Mirza Ghulam Ahmed, who are commonly called Ahmadis or Qadianis, is not of recent origin. It is as old as the claim of Mirza Ghulam Ahmed to prophethood despite his belief in the Holy Qur'aL and Sunnah. In the eighties of the Nineteenth Century Mirza Ghulam Ahmed claimed to be 'Mamoor-min-Allah' and demanded bai'at from his followers. In the beginning of this Century he laid claim to prophethood but proclaimed all the same his belief in the Finality of Prophethood of Muharurrad (peace be upon him). He tried to reconcile his claim to prophethood with his purported belief in the Finality of Prophethood of Muhammad (peace be upon him) by distinguishing between Tashri'i Nabuwwat on the one hard and Zilli or Buruzi Nubuwwat on the other. He claimed that he had, though a prophet, not brought any Shariat of his own and that the appearance of a new prophet without new Shariat was not contrary to and cid not detract from the doctrine of the Finality of Prophethood of Mt:hammad (Khatam-i-Nubawwat). 2. Mirza Ghulam Ahmed died in the year 1908. Some time after his death a number of his followers seceded from the cult and farmed a new party which is generally known as Lahore Party. The adherents of this group did not believe in the prophethood of Mirza Ghulam Ahmed ; they conferred upon him only the status of Muhaddis (who was in communication with God) and Mujaddid. 3. This claim to prophethood springs from what is generally said to be a misinterepretation of verses 157 and 158 of Surah IV in the Holy Qur'an (IV : 157, 158). The translation of these verses as given in the Glorious Koran by Muhammad Marmaduke Pickthall is as follows
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"157. And because of their saying t We slew the Messiah Jesus son of Mary, Allah's messenger-They slew him not nor crucified, but it appeared so unto them ; and Lo I those who disagree concerning it are in doubt thereof ; They have no knowledge thereof save pursuit of a conjecture ; they slew him not for certain. 158. But Allah took him up unto Himself. Allah was ever Mighty Wise." The Muslims generally believe in view of these verses that Jesus did not die on the Cross. He was, in fact, lifted up and is alive in Heaven from where he will descend before the Day of Judgment. The doctrine propounded by Mirza Ghulam Ahmad was that it was true that Jesus did not die on the Cross ; all the same he died a natural death. He decried the prevalent view that Jesus was raised to the Heaven alive. Consequently, he denied the possibility of Jesus's decending to the earth. According to him, it was foretold that another person with the attributes of Jesus would appear and this person was Mirza Ghulam Ahmed himself. Another important difference between the teachings of Mirza Ghulam Ahmad and the general belief was in respect of the belief in Jihad Bis Saif. The Muslwms in general derive from his writings a total ban on such Jihad, Mirza Ghulam Ahmad is thus accused of setting up a repeal of the Quranic injunctions in respect of this doctrine. These doctrines and this claim inflame the passion of the Muslims. 4. Within a short time the Ulemas of the Sub-Continent of India came out with a unanimous verdict of infidelity against Mirza Ghulam Ahmad and his followers. Mirza Ghulam Ahmad on the other hand used that same terminology in regard to all those persons who denied his status as a prophet and created a community of his own which is very well knit. As stated above, this party was split into two groups-one believing i3 his prophethood while the other seceding from such belief. There is, however, no other difference between the beliefs of these two groups regarding Jihad or death of the Christ. 5. After the Partition of the Sub-Continent sad establishment of Pakistan several agitations were conducted with the object of forcing the Government to declare (1) Ahmadis of both the sects as infidels (Kafirs) and (ii) a minority- community and to remove Ahmadis from the public service of Pakistan. There were large scale disturbances as a re3u't of such agitation in the year 1953, The agitation was reM9citated in the year 1974. At this stage the Legislature had to intervene. They agreed to settle once for all the question whether the Ahmadis were Muslims or were outside the pale of Islam. After being convinced that they are non-Muslims. The Parliament amen-led the Constitution of the Islamic Republic of Pakistan by Constitution (Second Amendment) Act, 1974, which was enforced with effect from the 21st of September, 1974. The amendment in the Constitution was introduced in Articles 106 and 260 thereof. Article 360 deals with definition clauses. The following clause was added after sub-clause (2) of that Article "(3) A person who does not believe in the absolute and unqualified Finality of the Prophe thood of Mussammad (peace be upon him) the Last of the Prophets or claims to be a prophet, in any sense of tile word or of any description whatsoever, after Muhammad (peace be upon him) or recognizes such a claimant as a Prophet or a religious reformer, is not a Muslim for the purposes of the Constitution or law Sub-Article l3) of Article 106 makes provisions for representation in the Assembly, of minority communities like Christian, Hindu. Sikh and Patsi. This provision was extended to "persons of Qadiani group or the Lahore group (who call themselves 'Ahmadia')". 7. Sub-Article (3) of Article 260 was couched in very wide terms to declare that any person who claims to be a prophet in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him) and any person who recognizes such a claimant as a prophet or even a religious reformer, shall be considered to be a non-Muslim for the purposes of the
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Constitution or Law. The necessary clarification whether Qadianis or Ahmadis of the Qadiani sect or Lahore sect were within the ambit of Sub-Article (3) of Article 260, was made in Article 106 (3). 8. This amendment assuaged the public sentiments considerably and the agitation having fulfilled its main object, ended. Some time later a section of the Ulemas amongst the orthodox Muslims and their followers whey thought that only the Muslims could call their places of worship by the name of Masajid (AtL-), could call Azan and had an exclusive right, to the elimination of infidels, to offer their prayer in the manner ordained by the Holy Prophet, interpreted these amendments as divesting the Ahmadis or Qadianis of any right to call their places of worship by an identical name, right to call Azan to attract the adherents to their faith towards congregational prayer and the right to pray in the manner exhibited and ordained by the Holy Prophet. Representative suits were filed at different places in Punjab to achieve this end. The present respondents, however, first filed a suit to claim a right to offer prayers in the mosque of Ahmadis (which incidentally is a very old mosque) at Dera Ghazi Khan and prayed therein for a permanent injunction to restrain the Ahmadis of both Qadiani and Lahore groups of Dera Ghazi Khan from prohibiting the entry of the Mussalmans of Dera Ghazi Khan in the mosque and from calling Azan or from offering their prayers there individually or in congregation. It appears that after they came to know of the above category of suits, they filed a suit out of which arise these Revision Petitions Nos. 1011 and 1013 of 1976 which are proposed to be disposed of by this order. 9. This is a suit of a different character and is based on a different cause of action. A declaration is now claimed that the defendants or other Mirzais or Ahmadis of Dera Ghazi Khan, who were non- Muslims cannot call their places of worship by the name of Masjid nor can they call Azan in it nor can perform their prayers including Qayam, Ruku' and Sajood in the manner as provided by Islam. A prayer for permanent injunction was added by way of a consequential relief to restrain the defendants from calling their place of worship as mosque or from calling Azan in it or from offering. Their prayer in the manner as laid down by Islam. 10. The suit is founded on the above Constitutional amendment. It is ad in paragraph No.2 of the plaint that the defendants' place of worship is known as .a mosque (Masjid) and they perform prayer in it which resembles the prayer in Shariat and includes Azan, Namaz, Qayam, Sajood, Ruku', reading of the Qur'an, saying Darood-o-Salem on the Holy Prophet and invoking benediction (Lr~). It is further alleged in paragraph No. 5 that a mosque is a place of worship which is exclusive for the Muslims and no infidel has a right to construct it or to make his places of worship resemble it (mosque) in any manner or make his place of worship face Ka'ba. A mosque in abort is inaccessible In Islam to those beyond its pale. Similarly, Namaz and other modes of prayer are provided only for Muslims. No non-Muslim can carry on prayer in the manner in which the Muslims perform them. Namaz is also a Shiar that is a rite and a ceremony exclusively reserved for the Muslims and a person calling the Assn consequently must be a person belonging to the Islamic faith. It is also stated that in Den Ghazi Khan there is a preponderance of Muslim population and the religious sentiments of these Muslims are wounded by these activities of the defendants, which have created a law and order situation. 11. Along with the plaint an application for temporary injunction under Order XXXIX, rules 1 and 2 read with section 151, C. P. C. Was submitted by the plaintiffs-respondents which was contested by the defendants (plaintiffs) on a number of ground. They claimed that they are Muslims and believe in Islamic Faith. They further claimed that the mosque was being used by them and other Ahmadis for more than 65 year, without creating any law and order situation. The plaintiffs were alleged not to have any prima facie case. It is further asserted that the balance of convenience was not in favour of issuance of injunction. The suit was challenged as being male fide and was said to have been filed with the ulterior object of creating disturbances.
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12. An application under Order v11, rule 11, C. P. C. Was also submitted by the defendants for rejection of the plaint as allegedly it did not disclose any cause off action. It is urged there that the basis of the suit was an abstract negative right which could not be enforced. Reliance is also placed upon Fundamental Right guaranteed in Article 20 of the Constitution which provides that "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," This application was contested by the respondents. 13. The learned trial Judge dismissed the application under Order VII, rule 11, C. P. C. Without discussing the questions raised in the petition. He held that the plaintiffs had a cause of action to bring the suit in view of the Second Amendment Act of 1974. He allowed the application for temporary injunction and restrained the defendants petitioners from naming the disputed place as mosque and proclaiming Azan, from offering their prayers including Qayaw, Ruku' and Sajool to the manner resembling or similar to that of orthodox Muslims, till the final disposal of the suit. 14. The petitioners filed an appeal before the learned District Judge against the injunction order but the same was dismissed by him by hit order dated the 19th of October, 1975. Civil Revision No. 1013 of 1976 has beers fled to challenge this order while Civil Revision No. 1011 of 1976 is against the order of the learned trial Court passed on the application under Order VII, 16. I have already pointed out that the learned trial Judge has not .Discussed the points of law raised in the application under order VII, rule 11, C. P. C. His judgment on the application under Order XXXIX, rules 1 and 2 is. However, quite detailed. The learned trial Judge referred to Article 20 of the Constitution but held that the guarantee of the Fundamental Right inter alts to practise one's religion is subject to law. According to his interpretation the word "law" used in this Article is not restricted to positive law and includes Islamic law even in its minor details even though it may not be a part of the statute. He then proceeded to consider the various tenets, rites and ceremonies described in the plaint for determining whether they are exclusive for the Muslims or whether the non-Muslims are debarred from adopting them. After referring to some traditions he found that : Salat, Qayam, Rukub, Sajood, Tashahud (At-:3) were part of Islam and peculiar and distinct for Muslims and no non-Muslim could offer his prayer in the manner resembling Islamic Salat. He held that a mosque was a nomenclature exclusively specified for a Muslim worshipping place. He referred to various Qur'anic verses in this connection. He also held that in order to eliminate confusion some distinction must be maintained between a mosque and a place of worship of non- Muslims, The learned Civil Judge took note of an argument that the present suit is barred by Order II, rule 2, C. P. C. In view of the pendency of the earlier suit to which reference has already been made. He referred to the authorities produced by the petitioners but held them to be distinguishable. He, however, did not give any finding on this question. Sections 4?, 54, and 55 of the Specific Relief Act, reliance on which was placed by the petitioners-defendants, were also referred to but the learned Civil Judge did not consider them. On the other hand, holding that the Muslims had an inherent right to stop non-Muslims from adopting or initiating the distinctive characteristic of Islam he found the plaintiffs respondent to have a cause of action. The petitioners' argument that an injunction which may create lave and order situation should not be granted was also noticed but it was repelled as being without force since according to the learned Judge it was not the concern of the Court to take such a matter into consideration. 17. The learned District Judge took note of various pleas of (1) non-maintainability of the suit under section 42 of the Specific Relief Act, 12) of its being barred by Order II, rule 2, C. P. C. (3) of the plant disclosing no cause of action and (4) of the suit being violative of the right guaranteed by Article 20 of the Constitution. He found the argument on Article 20 to be untenable in view of the
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provisions of Articles 2 and 31 of the Constitution which provided that "Islam shall be the State religion of Pakistan" and "steps shall be taken to enable the Muslims to order their lives in accordance with the Fundamental Principles and basic concepts of Islam". He held that the word "law" used in Articles 20 and 260 cannot be restricted to an enacted law but covers Islamic Law which is a part of the law of the country. He referred to Qur'anic texts as well as traditions and agreed with the finding of the learned Civil Judge. In this connection he also took into consideration that Ahmadis had been prohibited from performing Hajj. This prohibition is stated to have been imposed by the Saoodi Government. He refused to comment on section 42 of the Specific Relief Act since it might prejudice the mind of the trial Court. Holding that the respondents had been able to make out a prima facie case, he proceeded to consider the question of balance of convenience and irreparable injury. He decided this question in favour of the plaintiffs for the reason that "there is no doubt that there are still doctrinal differences between the Qadianis and the Muslims even after they have been declared non-Muslims", and "acute controvers7es are gong on which may lead to disturbances as in the past" 18. In view of the sensitive nature of the issues involved in this case, we made it clear at the time of hearing that we would be inclined to hear not only the counsel for the parties but also any one who was prepared with the case and wished to render assistance to the Court in reaching a correct conclusion. We have heard Mr. Aziz Ahmad Bajwa, Mr. Waheed Salim and Mr. Mujeeb-ur-Rahman for the petitioners. The respondents were represented by Mr. Muhammad Ismail and Mr. Sher Alam who no doubt were given full hearing. In addition, we have also heard the arguments of Mr. Ghias Muhammad, Mr. Riazul Hassan and Mr. Rashid Murtaza Qureshi. Messrs Mujeeb-ur-Rahman and Riazul Hass3n confined their arguments to the doctrinal controversies while the purport of the arguments of Mr. Rashid Murtaza, which were based on extracts from Blackstone's Commentaries, Volume I, Halabury's Laws of England on Ecclesiastical Law, Changing Law by Denning, and Friedmann's Legal Theory, was that God is omnipotent and the Divine Law is the law revealed in the scriptures. It is, therefore, open to the Courts not to confine themselves to the remedies provided in the existing law but also to discover and grant new remedies commensurate with the justice of the claim. 19. Messrs Aziz Ahmad Bajwa and Waheed Salim criticised the judgments of the two Courts below vehemently on several grounds to bring the two cases within the ambit of section 115, C. P. C. The learned counsel for the respondents on the other hand urged that the two Courts below had only exercised a discretion vested in them by law which was immune from interference under the provisions of section 115, C. P. C. They further argued that even if it is held that the learned Courts below had committed a legal error that would not justify interference by the High Court since it is the privilege of the Court to decide a matter wrongly or rightly. 20. On this question I agree with the arguments of the learned counsel for the petitioner since I am of the view that the judgments of the learned Courts below are open to several objections relating to jurisdiction. They have committed jurisdictional errors which cannot be lost sight of. 21. The learned Courts below were required while deciding the question of issuance of temporary injunction only to find out whether the plaintiffs-respondents had a prima facie case. They have, however, given a detailed judgment on merits in favour of the respondents leaving nothing to decided at the trial of the suit. They have thus acted illegally and with material irregularity in the exercise of their jurisdiction. Their judgments are open to the same objections for another reason. In order to find out whether the respondents had a prima facie case it was necessary for the learned Courts below to take cognizance of and at least provisionally decide whether the plaint did at all disclose a cause of action in view of the provisions of sections 42, 54 and 56 of the Specific Relief Act and section 9 of the Code of Civil Procedure. Reference has been made by both the learned Courts below to the argument under section 42 but it is strange that C while the learned trial Court,
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without considering the argument, found that the plaint did disclose a cause of action, the learned District Judge while deciding the issue on merits, completely avoided to give a finding on the provisions of section 42 on the ground of there being a likelihood o prejudice to either of the parties. If he was called upon to give any finding on any specific question that was on the maintainability of the suit itself in view of sections 42, 54 and 56 of the Specific Relief Act and section 9 of the Code of Civil Procedure. But he avoided to consider this question. 22. The learned trial Court did not go into the question of balance of convenience. The learned District Judge, however, decided these questions in favour of the plaintiffs-respondents only on an abstract ground that the continuance of the controversy may lead to disturbances as in the past. This does not decide the question whether the plaintiffs would suffer loss and injury in case of refusal to grant temporary injunction. The ground given by the learned District Judge is not a finding on this question. If the case of the plaintiffs be that they would, if the temporary injunction is refused; create a law and order situation. I do not see bow they can be said to suffer an irreparable loss and injury. This, in fact, amounts to obtaining an injunction under threat of creating law and order situation. 23. It is not disputed that the mosque is about 60 years old. This brings into limelight another point whether the plaintiffs who have been tolerating as good citizens the existence of the mosque, calling Azan and offering prayer in it without any untoward incident, can really suffer irreparable loss and injury by the Courts' refusal to issue temporary injunction. This was not at all reverted to. 24. The principle of laches was not even noticed. Similarly on the point of exercise of discretion in favour of issuance of injunction, the principle of approbate and reprobate which arose in view of the irreconcilable contradiction in the allegations of the plaints in so far as in the first suit the disputed place of worship was admitted to be a mosque while in the second suit this is denied, was not at all considered. 25. The approach of the learned Civil Judge in deciding the application under Order VII, rule 11, C. P. C. Leaves much to be desired. In view of the importance of the questions raised under the statutory law of the country it was necessary for the learned trial Court to decide this application In detail' and then apply that decision to the determination of the application under Order XXXIX, rules 1 and 2, C. P. C. He t as adopted a policy which is just contrary to this and disposed of the application under rule 11, Order VII, C. P. C. Without any finding on the important issues involved therein. He has referred to those issues partly while deciding the application under Order XXXIX, rules 1 and 2, C. P. C. But avoided to discuss them in the light of the actual provisions and the precedents of the Superior Courts which. Might have been relied upon by both the parties. The arguments (fl that section 42 of the Specific Relief Act is exhaustive and no suit for declaration outside its pale lies (l1) that a person while coming to the Court should show invasion of his right by the plaintiff whether he seeks the assistance of the Court under section 42 of the Specific Relief Act, or under its sections 54 and 56, were required to be considered in detail in the light of the averments in the plaint. The learned trial Court aide-tracked these issues and found the plaint to disclose a cause of action merely on the ground that no non-Muslims could call their place of worship by the name of Masjid, call Azan or offer their prayers in the manner provided by the Holy Qur'an and Sunnah. 26. One of the important questions that arises is whether the suit as such is competent in view of section 9 of the Code of Civil Procedure. This was not even noticed. 27. Both the Courts have defined law as including something more than positive law and in doing so they have ignored the authorities of the Superior Courts particularly the recent judgment of the Supreme Court in Brigadier F. B. A.I v. The State (PLD 1975 SC 506). Both the learned Courts have. Therefore, acted illegally and with material irregularity In the exercise of their jurisdiction, and their judgments cannot, therefore, be sustained.
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Findings shall have to be recorded by this Court on the questions raised by the parties so far as they may be relevant for the decision of the application under Order V11. Rule 11, C. P. C. And the application for temporary injunction. 28. The first question is whether the suit as framed is competent under sections 32, 54 and 56 of the Specific Relief Act. Section 42 allows the institution of a suit for declaration only by a person "entitled to any legal character or right". It further provides that "no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so". 29. In the present case the suit is for declaration and for the consequential relief of perpetual injunction. The argument of the learned counsel for the petitioner was that since the plaint does not disclose that the plaintiffs are entitled to any legal character or to any property which claims the defendants petitioners are interested in denying, the suit would not be competent under section 42. They further…
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