The 1973 constitution of Pakistan initially guaranteed fundamental religious rights. Its Article 20 provided that:
Subject to law, public order and morality:
- Every citizen shall have the right to profess, practice and propagate his religion; and
- Every religious denomination and every sect thereof shall have the right to establish, maintain its religious institutions.
Article 8 provided that:
- Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
- The state shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
That was good, but within a few months, in 1974, Amendment No II[1] was made to the Constitution whereby while keeping its Article 20 intact, it was promulgated that Ahmadis were not Muslim for the purpose of the Constitution and law, and definitions of Muslim and Non-Muslim were made a part of the Constitution. Thus, an Amendment was made to supersede the Constitution itself, thereby usurping the constitutional function.
Anti-Ahmadiyya Ordinance XX of 1984
Although their religious status was greatly disturbed, Ahmadis continued to profess and practice their religion — Islam. Ten years thereafter, while General Zia had usurped the power, he promulgated anti-Ahmadiyya Ordinance XX[2] that amended the penal code to provide punishments to Ahmadis who violated the provisions of the ordinance, like ‘posing as Muslim’ etc. PPC 298-B and 298-C were added to the penal code; these provide 3-year imprisonment to those declared guilty. Things changed thereafter drastically for Ahmadis, as anti-Ahmadi elements felt greatly encouraged to have police cases registered against Ahmadis under the new laws. Thus, the Ahmadiyya religious practices specifically recognized and protected by the Lahore High Court in its verdict[3] of 1978 were criminalized.
Ordinance XX was in clear violation of Article 20 of the Constitution, was discriminatory, vague, and even outrageous and was challenged by Ahmadis in the Supreme Court in the Zaheer-ud-Din case[4].
Supreme Court validates General Zia’s Ordinance
In 1993, the Supreme Court of Pakistan by a split judgment validated Zia’s Ordinance XX, among other grounds on the analogy of trademark law. The SC also held that the fundamental rights guaranteed by Article 20 were subservient and must yield to Islamic law.
This judgment met serious analysis and criticism by the legal scholarship[5] internationally and is considered to be seriously flawed[6]. Anyhow, through this judgment, Ahmadis were denied their remedy at the Apex Court, so at the domestic level there was no relief whatsoever. It opened floodgates of tyranny against Ahmadis.
After-effect of the despotic Ordinance
No wonder, that since the promulgation of Ordinance XX and its approval by the Supreme Court, more than three and a half thousand criminal cases have been registered with police[7]. Many Ahmadis were incarcerated for years before they were acquitted or released on bail.
Simultaneously, the state moved to make situation worse for Ahmadis through promulgation of new laws and framing new rules to deprive Ahmadis of their political, social and religious rights. With the precedence set by Ordinance XX, the state proceeded to promulgate laws that created space in violation of the Constitution itself. For instance, Ahmadis have been deprived of participation in national elections for the last 30 years through rules[8] written in fine print. The Punjab has promulgated a law[9] that forbids Ahmadis to print their primary scripture—the Holy Quran. Orders have been issued to ban Ahmadiyya daily[10] and monthly periodicals of Ahmadi women, children[11], the youth and the elders. All the books written by the Ahmadiyya Founder have been proscribed[12]. Ahmadiyya schools and colleges nationalized by the Bhutto regime have not been denationalized despite government’s policy to revert such private institutions to their previous owners. Ahmadis are not allowed to hold their traditional annual conference in their own hometown, while outsider mullas are facilitated to hold their numerous hostile rallies in Rabwah every year. Ahmadiyya mosques have been repeatedly desecrated and partly destroyed[13] by the authorities themselves. Tombstones have been disfigured[14], destroyed or damaged for the pious phrases written on them. The World Head of the Ahmadiyya Community had to leave Pakistan, as he could not perform his functions from here because of hostile laws and rules imposed on Ahmadis.
While the above went on, mostly orchestrated by the executive branch, the judiciary played its own role to facilitate, approve and even encourage this exercise.
Some High Court judges add to the sting of the brutish law
For instance, Justice Shaukat Siddiqui of Islamabad High Court wrote a 172-page verdict against Ahmadis in 2018[15]. He told the Parliament to ‘also take measures, which will completely terminate those who scar the belief (in End of Prophethood)’. He ordered that an affidavit regarding one’s faith should be obtained from every candidate applying for a job in Civil Service, Army or Judiciary. He told the Parliament to ensure protection of Prophethood’s finality. During the hearings, he remarked, “If they (Ahmadis) wish to stay in Pakistan, they should do so as Non-Muslim citizens, and not commit thievery against Islam.” He even suggested in bold print that Ahmadis might be told to wear clothing of a particular colour. He proposed that Ahmadis be made to add Mirzai or Ghulam Mirzai as a sort of surname. He sent for NADRA officials and made them introduce inappropriate religion forms for Muslims and Non-Muslims.
Subsequently, Mr. Saroop Ejaz, a well-known journalist commented upon Justice Siddiqui in his article in a periodical[16], “That Shaukat Siddiqui was unfit to be a judge was proven when he delivered some of the most hate-fueled bigoted judgments of recent times in his stint at the Bench.”
Although HRCP called on the government to appeal the verdict, but it did not. Justice Siddiqui is gone, but the mischief of his verdict remains for the unscrupulous to quote and demand implementation of its provisions.
In this relay race to persecute Ahmadis, the baton was taken over by Justice Farooq Haider of Lahore High Court in 2021. In his judgment of a case Tahir Naqash & another vs The State[17], he endorsed the following from lower courts, granting them the status of High Court judgment:
- An Ahmadiyya mosque is an Unholy place.
- Qadianis are a non-Muslim minority, with their different belief they cannot be equated with Christians and Jews.
- The reading/recitation of the Holy Quran by an Ahmadi falls within the ambit of the blasphemy clause (for which the penalty is death).
- Reading of the Holy Quran by an Ahmadi is itself desecration and defiling the Holy Quran, thus inviting the application of blasphemy clause PPC 295-B (that prescribes life imprisonment).
- Books written by Ahmadiyya Founder defile all other religions, as such their contents “fall within the four corners of 295-B and 295-C. Ahmadis in possession of these books commit a crime under the grave blasphemy sections.
- He accused Ahmadis of ‘deception and misrepresentation’, called ‘the damage done by them unconceivable’, of holding ‘sinister designs’, and ‘weaving extremely treacherous conspiracy’. He called on the State to pre-empt implementing ‘their nefarious designs’.
The question arises: is the emotional and severe language used above more befitting a mulla or a judge?
Justice Haider, through his verdict has incriminated the entire Ahmadiyya Community in Pakistan (except children under three years who cannot read) of crimes punishable with death or life-imprisonment.
On June 10, 2021, the daily Dunya published the following news report (translation of extracts), on rulings by LHC Chief justice M Qasim Khan:
“In the decision, Chief Justice Qasim Khan said that this is the Islamic Republic of Pakistan, and we have to promote Islamic laws and Islamic ideology; the government should itself create a website for the teachings of Quran and Hadith. While creating this kind of website, scholars of all schools of thought should be included in the board. People who want to gain Islamic teachings through the internet will find an authentic website. If there is any distortion in Islamic teachings on a website, it should be pointed out.
“Qadianis or people who have been declared non-Muslims should be identified and cases should be registered against those who distort Islamic teachings, which is a crime under the laws of Pakistan. The government should file a case against them, saying that private individuals should come and file a case, is against the law. The cabinet should set up a full-fledged body to monitor the program all over the world. The dubious programs should be immediately referred to the board of scholars. If the board of scholars sees distortion in Islamic teachings, the board then has the right to decide on its blocking.”
The Chief Justice has apparently gone against basic concept of Separation of Powers and has indulged in telling the executive what to do in the field of websites and promotion of religious and sectarian doctrines—a divisive field.
Violation of International Covenants
A few words about Pakistan’s commitment to the International law. Pakistan, although signatory to UDHR considers its provisions non-binding (that is true), so these, especially Art 18 could be shirked when dealing with Ahmadis. As for the commitment to ICCPR, Pakistan has signed it with some declared reservations. So that settles it. As for UN Convention against Torture, Pakistan police and security outfits have traditionally used torture on detained persons as a very effective tool to obtain information and/or admissions. Ahmadi accused in some recent cases were exposed to torture on the first night of their arrests, prior to the judicial notice. In March 2012, Mr. Abdul Qudoos, an Ahmadi school teacher and president of a local community was tortured to death by the police[18]. It is indeed difficult for private individuals to complain to the UN against torture and prove it, as the torture techniques have been developed by most nations to ordinarily leave no trace.
A few general observations
Here it will be appropriate to make a few general comments on Pakistani judiciary and its conduct in relation to Ahmadiyya cases.
Decades ago, some judges in Pakistan ignored judicial principles and accorded priority to religion and Sharia (their version)[19]. This was a faulty decision. With time, a section of Pakistani civil society turned to sectarianism, extremism, even terrorism. This affected institutions as well—including judiciary, as narrated above in judgments of Justices Siddiqui and Haider. These judges were acting extremists, but there were numerous others, who not so extremist, did conveniently develop a negative bias in Ahmadiyya cases. There are others who are not biased but are afraid of dispensing justice in Ahmadiyya cases for fear of extremists’ blowback. They act weak and do not dare to support in their judgments Ahmadis’ human rights and freedom of belief. They are scared for their own safety, their family and their careers. They yield to protests and threats of complaints by bigots to authorities. Ahmadis thus, and their advocates frequently lose legal battles.
The above is not merely an opinion. There are numerous cases on record. For instance, in May 2013, a Lahore High Court judge rightly accepted bail application of an Ahmadi accused in a spurious blasphemy case. However, numerous lawyer and members of extremist groups present in the courtroom loudly expressed their anger over relief given to an Ahmadi. The judge, in fear of consequences, quickly withdrew his decision of granting bail to the accused. The English press[20] opined that it was improper for the judge to withdraw his order.
Another case is worth quoting in this regard. Imtiaz Shah, a scoundrel stabbed to death Mr. Abdul Waheed, an Ahmadi in Faisalabad at about 11 a.m. on November 14, 2002 in a busy bazar, with the help of his friend Rafaqat Ali who grabbed the victim from behind while Shah stabbed him with a dagger. Both the attackers were arrested. At the police station, Shah triumphantly declared that he had done well to dispatch a Kafir. Later in the trial, the anti-terrorism court sentenced Shah to death and acquitted the accomplice who had effectively helped with the murder. On appeal against the decision by the victim’s brother, the High Court bench was pleased to uphold the acquittal of the accomplice and reduced the sentence of the murderer to 7-year imprisonment in lieu of death. The victim’s brother approached the Supreme Court for a review of the High Court decision. Mr. Justice Iftikhar Muhammad Chaudhry[21], the Chief Justice of Pakistan most summarily announced the dismissal of the petitions[22] vide the shortest-ever order in the most serious case involving a death sentence. The reason though inherent is obvious — the murdered Abdul Waheed was an Ahmadi.
However, we admit that on occasions, higher judiciary has provided relief in some cases to Ahmadis. In such cases generally, judges do not acquit the Ahmadi accused on consideration of his human rights or upholding his freedom of religion, but on consideration of some loophole or weakness in the circumstances of the case or the unreliability and lies of the prosecution witnesses.
Some bar associations
Here, a few words about some of the Bar Associations in the Punjab will be appropriate. These have been approached by members of the not-so-honorable Khatme Nabuwwat Lawyer’s Forum led by malfeasant Hassan Muawiyah and persuaded to behave, in the Ahmadiyya context, in clear violations of Legal Practitioners and Bar Councils Act, 1973. For instance, the Islamabad Bar Association in January 2020 required its members to declare their religion to the Association[23], and in case of being Muslim, they were required to take an oath that contained derogatory words against the founder of Ahmadiyyat. The Lahore High Court Bar Association wrote in July 2020 to the Ministry of Interior to forbid Ahmadis to undertake Qurbani on Eidul Adha. In August 2020, District Bar Association Rajanpur passed a resolution restraining its members from representing Ahmadis in a court of law. Jaranwala, District Faisalabad Bar Association passed a unanimous resolution, which praised and called for immediate release of the murderer Faisal aka Khalid who killed Mr. Tahir Naseem believing him to be an Ahmadi, in a court in Peshawar. Not to be left behind, the District Bar Association, Multan[24] required its Muslim members to fill in a Form with declaration of faith in the End of Prophethood. Such attitude of the lawyers’ community, who are educated members of the civil society with intimate knowledge of issues regarding human rights and freedom of religion, is indeed highly regrettable.
Initial handling of police cases against Ahmadis
It is essential to write a few words about the registration of police cases, application of the sections of the penal code and the processing of bail plea prior to the trial before a judge[25].
In the past decades, it was customary to book Ahmadis under clauses PPC 298-B and C of the anti-Ahmadi Ordinance XX. Now the bigots demand that whatever the religion-based accusation, the grave blasphemy clauses PPC 295-B or/and 295-C should be applied against Ahmadis, and leave it to the court to decide. This makes it very difficult for the accused to avail bail. In addition, while awaiting trial, they are often incarcerated in cells set aside for murder-accused and terrorists, as the complainants often insist that anti-terror clauses be added to the list of charges. Thus even if the accused Ahmadi is acquitted after the trial, the opponents succeeded in making life hell for him during his stay in Chakki of the prison during the trial.
There are individuals whose full time job is to trap Ahmadis in religion-based cases. Hasan Muawiyah is one such person. In addition, he himself has a criminal record. He wields great influence with authorities because of his close relationship with an influential powerful cleric. Years ago, he developed relations with police officials, which helped him to implicate Ahmadis in police cases. It seems the police got fed up with his pranks, so he switched over to some CTD officials and succeeded in trapping innocent Ahmadis, like the well-known Shakoor Bhai. Thereafter he went over to the Cyber Crimes Wing, Lahore of the FIA and managed to get a large number of Ahmadis booked, including many senior office-holders of the Community. On Muawiyah’s demand, the police station would add the harshest clauses 295-C and/or 295-B to the charge sheet.
The police, these days, happily add a large number of Ahmadis in the accused list in single cases, regardless of their innocence or ‘guilt’. This is most wrongful and fraudulent on the part of the police as well as the ‘complainants’. However, this injustice is an age-old practice in the Sub-continent.
As for the bail, one expects lower courts to grant bails in lighter cases like those of PPC 298-B and C. However, magistrates and lower courts these days find it convenient to refuse bail to Ahmadis. Therefore, the accused have to spend a lot of money and time to address higher courts. High Courts tend to accept pleas for bail in simpler cases but are generally reluctant in blasphemy cases even when they know the blasphemy charges are false and fabricated.
It should also be mentioned that the administration is often reluctant to implement fair decisions and directions of the superior judiciary if these are religiously unpopular. We may quote in this context the historic and landmark verdict of the Supreme Court of June 19, 2014. A Supreme Court bench of three judges, headed by Honorable Mr. Justice Tassaduq Hussain Jillani issued a judgment[26] in a case of Suo moto action concerning minority communities. The bench issued a set of eight directives to ensure minority rights, their freedom of faith, security of their places of worship et al. However, it is sad to say that there is little progress in implementation of this great verdict. In addition, consider the violation of this verdict by high court judges like Siddiqui and Haider!
Conclusion
We conclude with the latest situation on ground for Ahmadis in Pakistan. Religious extremism flourishes and prevails in Pakistan and a section of judiciary is a part of it. As per the latest decision of Justice Farooq Haider of Lahore High Court, an Ahmadi who keeps the Holy Quran, the Ahadis, the works of the Ahmadiyya Founder, at home, on his tablet, or mobile phone is guilty of violation of PPC 295-C and 295-B for which the penalty is Death and Life Imprisonment respectively.
Some expert should study the details of International Law on Genocide and see if this verdict of the Honorable Judge of the High Court ordains Genocide of Ahmadis in Pakistan.
July 2021
[1] http://www.na.gov.pk/uploads/documents/1333523681_951.pdf
[2] https://satp.org/Docs/Document/1165.pdf
[3] P.L.D. 1978 Lahore 113
[4] Zaheerulddin v State 1993 S.C.M.R 1718
[5] Religious persecution in Pakistan. The Ahmadiyya case at Supreme Court. A commentary by Karen Parker J.D.
[6] An analytical Comment on Zaheerulddin Vs The State 1993 SC.M.R. 1718 by Barrister A.G. Chaudhry
[7] Persecution of Ahmadis in Pakistan, Annual Report 2019, Page 148
[8] https://www.hrw.org/news/2018/06/28/pakistan-ensure-ahmadi-voting-rights
[9] http://punjablaws.gov.pk/laws/2456.html
[10] Government of Punjab home department, notification no. SO (IS-III) 6-15/2010, dated 25th June 2014
[11] Government of Punjab home department, notification no. SO (IS-III) 6-15/2010/Pt.I, dated 20th Jan 2016
[12] Government of Punjab home department, notification no. SO (IS-III) 6-15/2010/Pt.I, dated 20th Jan 2016
[13] Persecution of Ahmadis in Pakistan, Monthly Report April 2021
[14] Persecution of Ahmadis in Pakistan, Monthly Report July 2020
[15] Judgement Sheet in the Islamabad High Court Judicial Department, Writ Petition Nos 3862, 3847,3896 and 4093 of 2017
[16] The Herald, July 2019
[17] Order Sheet in the Lahore High Court Judicial Department, Case No. Crl. Misc. No. 31929-M of 2021
[18] https://tribune.com.pk/story/358137/in-police-custody-ahmadi-schoolteacher-tortured-to-death
[19] Fatwas, legality and the state: Daily times; December 16, 2006
[20] The daily Express Tribune; May 20, 2013 and AHRC-STM-099-2013
[21] Humayun Gauhar in Pakistan Today on 22nd December 2013
[22] Inherent Judicial Bias in Ahmadis’ Cases: Note by Adv. Mubashir Ahmad Latif ASC
[23] https://tribune.com.pk/story/2139594/islamabad-bar-asks-members-declare-faith-finality-prophethood
[25] Plight of Ahmadi Muslims in Pakistan (1989-1999) p.84
[26] The daily Dawn; May 14, 2014