4/7/24, 8:35 AM P L D 1978 Lahore 113

P L D 1978 Lahore 113

Before Aftab Hussain and K. M. A. Samadani, JJ

ABDUR RAHMAN MOBASHIR AND 3 OTHERS-Petitioners

versus

Syed AMIR ALI SHAH BOKHARI AND 4 OTHERS-Respondents

Civil Revision No. 1011 of 1976, decided on 12th November 1977.

(a) Qadiani Movement Historical retrospect

(b) Civil Procedure Code (V of 1908

-- O. XXXIX, rr. 1 & 2-Injunction, temporary-Judgment-Courts below while deciding

question of issue of temporary injunction giving detailed judgment on merits leaving
nothing to be decided at trial of suit-Courts having had only to find out whether
plaintiff bad a prima facie case and nothing beyond, Courts, held, acted illegally and
wits material irregularity in exercise of their jurisdiction.--[Injunction judgment].

(c) Civil Procedure Code (V of 1908)-

-- O. XXXIX, ff. 1 & 2 read with S. 9, O. VII, r. 11 and Specific Relief Act (I of 1877),
Sa. 42, 54 & 56-Injunction, temporary-Cause of action-Prejudice-Whether plaint
disclosed a cause of action Question necessarily to be decided at least provisionally to
find out whether plaintiff established prima fuck case-Court called upon to give finding
on a specific question on maintainability of suit itself in view of Specific Relief Act,
1877, Ss. 42, 54 & 56 and Civil Procedure Code, 1908, S. 9-To give a finding on
likelihood or otherwise of prejudice to either of parties-Failure to do so, held, renders
order under O. XXXIX, rr. 1 & 2 illegal. -[Injunction-Prejudice-Cause of action].

Brigadier F. B. Ali v. The State P L D 1975 S C 506 ref.

(d) Civil Procedure Code (V of 1908 )-

--- O. XXXIX, rr. 1 & 2-Injunction, temporary-Balance of convenience-Finding that

continuance of controversy may lead to disturbances as is pmt-No decision of question
whether plaintiff would suffer loss and injury in case of refusal to giant temporary
injunction-Plaintiff's case showed it to be one of creating of law and order situation in
cage of refusal to issue temporary injunction, held, amounts to obtaining injunction
under threat.-[Injunction -Balance of convenience].

(e) Specific Relief Act (I of 1877)

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4/7/24, 8:35 AM P L D 1978 Lahore 113

-- S. 42-Applicability-Case only denying entitlement to legal character or right to

property of defendants-- Section 42, Act I of 1S77, held, not applicable to such case.

Section 42 of the Specific Relief Relief Act, 1877 applies only to a case where a person
files a suit calming entitlement to any legal character or any right to property which
entitlement is denied by the defendants or in denying which the defendants are
interested. It cannot apply to a case where the plaintiffs do not allege their entitlement
to any legal character or any right to property or its denial by the defendants. As a
necessary corollary it cannot apply to a case where only the entitlement to legal
character or the property of the defendants is denied by the plaintiffs.

(f) Specific Relief Act (I of 1877)

- S. 42 --Applicability -Section 42 attracted to cases where plaintiff approaches Court

for safeguard of his right to legal character or property-Suit, held, not maintainable
where right to plaintiff's own legal character or property not involved or where other
right, hypothetical or abstract, or mere sentiment involved.

Section 42 of the Specific Relief Act, 1877 would be attracted to a case irk which the
plaintiff approaches the Court for the safeguard of his right to legal character or
property but where right to his own legal character or property is not involved, the suit
is not maintainable. The suit must be one which must bring benefit to him in regard to
these two rights. No suit involving any other right, hypothetical or abstract would be
competent under that section. The Court will not therefore entertain suits in which no
benefit accrues to the plaintiff or where the plaintiff sets up merely an abstract right to
satisfy his ego or satisfy his grudge against another person. Section 42 cannot be
invoked in matters of mere sentiments which have no concern with the vindication of
the plaintiff's title to status and property.

Jeka Dine v. Bai llvi and others A I R 1938 Bom. 31 ; Haran Chandra v. Sldh Nam
Singh A I R 1940 Cal. 445; Harendra Lai Roy v. Salimullah 7 I C 211 Nirmal Kumar v.
Surajan Dusedh A I R 19 i9 Pat. 433 ; Bhlkart Bhara v. Smt. Sitamand Devi A I R 1924
Pat. 7061 Meharaj dahadur v. Gandaurl Singh A I R 1917 Pat. 640(2); Latfan itilan v.
Mst. Moorti Janana A I R 1919 Cal. 82 Khanchand Mayaram v. Jacobabad
Municipality and another A I R 1946 Sind 98 ; Ganesh Khopra Mills Co. v. Municipal
Corporation o! Karachi A I R 1946 Sind 112 ; Zeb-un-Nisa v. Ch. Din Muhammad A I
R 1941 Lah. 97 ; Met. Sughran v. Rahmat Ali P L D 1965 Lah. 580 ; Subedar Shlngara
v. Callaghan A I R 1946 Lah. 247 ; W. Nawarratne Pondltt2 v. Attorney.

General of Ceylon A I R 1919 P C 189 ; Alavi Sons Limited v. Government of East

Pakistan P L D 1968 Kar. 222 ; M. D. Shafi & Sons v. gotah State Glass Factory A I R
1930 Lah. 753 ; Naubahar v. Qadir Bakhsh A I R 1930 All. 7531 Orl Lai v. F!uhammad
1qbal 25 I C 908 ; Rai Keshwar Singh v. Shyam Blhari Singh A I R 1927 Pat. 286 ;
Sabltri Thakurain v. Mrs. F. A. Sail A I R

1933 Pat 3(6 ; Muhammad Yaqub v. Mangru Raj 7 I C 318 ; Uppangala Subraya v.
Bedradi Subraya 5 I C 57 and Agha Abdul Karim Shorish Kashmiri v. Province of

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4/7/24, 8:35 AM P L D 1978 Lahore 113

West Pakistan P L D 1969 Lah. 289 ref.

(g) Specific Relief Act (I of 1877)-

S. 42-Words and phrases-Expression "legal character''-Attributes which law attaches to

a person in his individual and personal capacities or incapacities-Constitute legal
character or legal status.-[Words and phrases].

Dipchand v. Manakchand A I R 1939 Nag. 154 ; Alavi Sons Limited v. Government of

Edit Pakistan P L D 1968 Kar. 222 ; Inspector-General of Police v. Abdul Rashid P L D
1972 Pesh. 13 ; Burmah Eastern Limited v. Employees' Union P L D 1967 Dacca 190
and Muhammad Farooq Khan v. Sulaiman A.-G. Parjwani P L D 1977 Kar. 88 ;
District Board, Lahore v. Agha Muhammad Khan P L D 1957 Lah. 7,~0 ; Shanta
Shamsher v. Karnant Bros, A I R 1959 Bom. 201 1 The State of Pakistan v. Meraj-ud-
Din P L D t Y59 S C (Pak,) 162 and Salmond on Jurisprudence, 11th Edn., p. 292 ref.

(h) Specific Relief Act (I of 1877)-

-- S. 42-Words and phrases.-Words "right", "legal right" and "moral right"-Right or

interest recognised and protected by laws of State-Such right alone a legal right and
every legal right involves a duty or obligation-Moral right or rights recognised only by
morality ~' or ethics-Not enforceable in Courts.-[Words and phrases).

Salmond's Jurisprudence, 11th Edn., p 261; Rana Muhammad Afzal Khan v. The State
P.L.D 1962 Lah. 397 1 Holland's Elements Jurisprudence, 13th Edn., p. 82 ; Paten's
Jurisprudence 3rd Bdn., pp. 250-251 and G. W. Keeton on Elementary Principles of
Jurisprudence, Second Edn., p. 131 ref.

(i) Specific Relief Act (I of 1877)

S. 42-Applicability-Cause of action under S. 42-Must be a 1t`threat or injury to

plaintiff's own right or removal of cloud cast on his own title-Section does not allow
plaintiff to come to Court to show his hostility only to what defendant considers his
own right and which action does not cast any cloud on plaintiff's own title-Section,
held, does not deal with negation of defendant's rights and hence a declaration that
defendant has no right to do something which does not infringe upon any legal right to
property or legal character of plaintiff cannot be given under section.-1Cause of
action].

(j) Specific Relief Act (I of 1877)-

5. 42-Declaratory suit-Plaintiff's case that defendants having been declared as pen-

Muslims have no right to call their place of worship by name of mosque or to perform
their prayers in manner provided by Holy Qur'an and Sunnah or to call persons to
prayer by proclaiming azan-A suit of converse nature as compared to one falling under
S. 42-Pleas raised or reliefs claimed in such suit, held, cannot fall under S. 42.-
[Declaratory suit].

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4/7/24, 8:35 AM P L D 1978 Lahore 113

(k) Specific Relief Act (I of 1877)-

-.-.- S. 42-Declaratory suit-Negative declaration-Can be granted on principle that what

can be done directly can also be justified if z done indirectly-Such declaration must,
however, also be one affecting' Home threatened injury or infringement of plaintiff's
right.-[Declaratory suit].

Salim Ullah Beg v. Mst. Makin Begum P L D 1959 Lah. 429 1 Sughran v. Rehmat Ali
P L D 1965 Lah. 584) ; Amina Begum v. Ghulam Nabi P L D 1974 v. Ma Kyin Shwe
and another A 1 R 1940 Rang. 298.

(l) Specific Relief Act (I of 1877)

-S. 42 Declaratory Suit No declaration, held, can issue outside provisions of S.42 and
Court s power to make declaratory decrees limited to instances mentioned in section-
{Declaratory Suit}

K. P. Rannakrishna Pattar v. K. P. Naryana Paltar and another I L R 39 Mad. 80 ; M.

Ramachandra Rao v. The Secretary of State for India. in-Council (1916) 39 Mad. 808 ;
Robert Fisher v. Secretary of State I L R 22 Mad. 270 1 Veeramachknent Ramswamy,
and others v. Soma Pitchayja and others A I R 1920 Mad. 665 ; Vargipuram
Vankatacharyulu v. Sri Rajah Vastreddi Haribara Parasad A I R 1935 Mad. 964 ; Desu
Reddiar v. Srinivasa Reddi A I R 1935 Mad. 605 1 Swayamprabhai v. Muthukrishna A
I R 1942 Mad. 362 ; Krishnaswami v. Srinivassan A I R 1945 Mad. 53 1 Sri Krishana
Chaudhra v. Mahabir Prasad and others A I R 1933 All. 488 ; Partab Singh v. Bhabuti
Singh I L R 35 All. 487 ; Md. Fahimal Haq v. Jagat Ballay A I R 1923 Pat. 475 ; Sabitri
Thakurain v. Mrs. F. A. Sari A I R 1933 Pat. 306 ; Ganpat Lal v. BinVasini Prasad
Narayan Singh 47 1 C 91 ; Flscher v. Secretary of State for India-in. Council 26 1 A 16
; Bhai Shari Vaktuba v. Thakore Agarsinghji Raisinghjl I L R 34 Bom. 676 ;
Aehalsingh v. Dolatsingh A I R 1924 Bom. 470 ; Deokall Koer v. Kedar Nath I L R 39
Cal. 704 ; Bahadurmull v. Nagamull A I R 1941 Cal. 534 ; Narayanprosad v. Indian
Iron & Steel Co. A d R 1953 Cal. 695 ; Bhola Nath v. Laehmi Narain A I R 1931 All.
83 ; Zeb-un-Nisa v. Din Muhammad A I R 1941 Lah. 97 ; Subedar Slnghara Singh v.
Challaghan A I R 1946 Lah. 247 ; Khanchand v. Jacobabad Municipality A I R 1946
Sind 98 1 Ganesh Khopra Mills Co. v. municipal Corporation of Karachi A I R 1946
Sind 1121 Shafqatullah Qadri v. University of Karachi P L D 1954 Sind 107 a Kishori
Lal v. Beg Raj 249 P W R 1912 1 Abdur Rahman Bhulya v. Commissioner of
Narayanganj Municipality p 1. n 1959 Dacca 5 : Burmah Eastern Ltd. v. Burmah
Employees' Union P L D 19 57 Dacca 190 ; Inspector-General of Police v. Abdur
Rashid P L D 1972 Pesh. 13 1 Alavi Sons Ltd. v. Government of East Pakistan P L D
1968 Kar. 222 ; Muhammed Farooq Khan v. Sulaiman A-G. Panjwani P L D 1977 Kar.
88 ; Snowwhite Food Products Co. Ltd v. Messrs The Punjab Van-7spatti Supply Co.
40 C W N 172 ; M. A. Naser v. Chairman, P,zk4stan Eastern Railway P L D 1965 S C
83 and Sheoparsan v. Ramnandan A 1 R 1916 P C 78 ref.

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4/7/24, 8:35 AM P L D 1978 Lahore 113

(m) Specific Relief Act (I of 1877)-

--- S. 42-Declaratory suit-Suit under S. 42 lies where threat involved to plaintiff's

entitlement to property and not to manner of use by defendant of his own property.-
[Declaratory suit].

(n) Civil Procedure Code (V of 1908)-

O. V11, r. 7-Relief-Question involved only whether plaint disclosed a cause of action-

Principle of O. V11, r. 7, held, not attracted to case at such stage.-[Cause of action].

(o) Civil Procedure Code (V of 1908)-

-- S. 9 -Jurisdiction (general) of civil Courts-Suit involving right to property or to a:3

office-A suit of civil nature-Suits involving questions of religious rites or ceremonies,,
however, not suits of civil nature unless such questions affect a right -to property or
office. [Jurisdiction-Civil suit].

P. R. Aiyanachariar and others v. Sri Uthamanambi Sadagopachariar and others A I R

1939 Mad. 757 1 Seetayya v. Appadu A I R 1926 Mad. 526 ; Abdul Hakim Baig and
others v. Mahomed Burrammudin and others A I R 1926 Mad. 559 ; Sri Sinha
Ramanuja Jeer alias Sri Vanamarnalai Ramanuja Jeer Swamigal v. Sri Ranga
Ramanuja Jeer and others A I R 1961 S C 1720 ;

Devchand Totaram v. Ghanashyam A I R 1935 Bom. 361 ; Mansoorall v. Mohd. All A I

R 1935 Nag. 156 ; Advocate-General of Bombay v. Yousat

Ali Ebrahim and others A I R 1921 Bom. 338 and Vasudev and another v. Va'mna'ji and
others I L R 5 Bom. 80 ref:

(p) Civil Procedure Code (V of 1908)

-- S. 9-Jurisdiction (general) of civil Court-Suit to stop defendants from performing
their religious rites and from calling their place of worship by name of mosque
(masjid)-No threat to plaintiffs' own right to use their mosque nor any likely threat in
regard to their right to performance of the r own prayers-Suit, held. not competent even
under S. 9.-[Jurisdiction-Civil suit].

Hyderabad Stock Exchange Ltd. v. Ragnath Rathi & Co. A I R 1958 A P 43 ; Kashavlal
Ghellabhal & Co., v. Chunilal and Harakchand do Co. and another A I R 1941 Rang.
196 ; Kandasami Mudali and others v. Subraya

Mudali and others I L R 32 Mad. 478 and Anjuman-e-Ahmedoya v. D. C., Sargodha 1s

L D 1966 S C 639 ref.

(q) Civil Procedure Code (V of 1908)-

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S. 9-Civil suit-Passing off-Suit to stop defendants from performing their religious rites
and from calling their place of worship by name of Masjid-Apparently based on some
supposed right analogous to right in nature of trade marks or copyright or infringement
of analogous right by passing off-Rights in trade marks or copyrights, however,
concern of statutory law and no positive law investing plaintiff with any right to debar
defendants from freedom of conscience, worship etc. and principle of parsing off being
applicable only to diminution of financial and material benefits, principle, held, not
applicable to suit in hand.-[Civil suit].

Law of Torts by Pollock, 14th Edn., p. 123 ref.

(r) Civil Procedure Code (V of 1908)-

- S. 9-Applicability-Section 9, Civil Procedure Code, 1908 not concern itself with

disputes relating purely to religious rites or ceremonies involving no question of right
to property or office.

(s) Civil Procedure Cede (V of 1908)-

--S 9, Explanation-Words and phrases-Words "religious rites" and "ceremonies"-Do

extend to religious practical including mode of worship-Mode of performance of
prayer (namaz), held, a religious rite or ceremony and not within competence of civil
Courts.-[Words and phrases].

Stroud's Judicial Dictionary 3rd Edo. ; Martin v. Mocknochle L R 2 A & E 130 ; Law
Lexicon by Aiyar, 1940 Edo.; Ch. Abdul Ghani v. The Islamic Republic of Pakistan P
L D 1958 Lah. 584 ; Shrf Sinha Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer
A I R 1961 S C 1720 1 Ramalinga v. Sundara A I R 1929 Mad. 526; Devchand
Totaram v. Ghanashyam A I R 1935 Bom. 361 and Agha Shorirh Kashmiri v The
Province of West Pakistan P L D 1969 Lah. 289 ref.

Vasudev v. Vamnaji I L R 5 Bom. 80; Advocate-General of Bombay v. Yusuf All

Ebrahim acrd others A I R 1921 Bom. 338 ; Mansoorali and others v. Talyaball
Muhammad Alt Dawoodi Bohra and others A I R 1935 Nag. 156 ; V Ramalinga
Mudallar v E. Sundara Sastrigal and others A I R 1929 Mad. 526 ; Sri Emberumanar
Jeer Swamigul v. Board of Commissioners for Hindu Religious Endowment A I R
1936 Mad. 973 ; Aiyanacharlar v. Sadagopacharir A I R 1939 Mad. 757 ;
Thiruvengadachariar v. Krtshanasanl Thathacharlar A I R 1915 Mad. 877 ; Devchand
Totaram v. Ghanashyam A I R 1935 Bom. 361 I Maine Moilar v. Islam Amarath I L R
15 Mad. 355 ; Sri Strngha Romanuja Jeer v. Sit Ranga Ramanuja Jeer A I R 1961 S C
1720 ; Sarfuddin Saleh v. State of Bombay A I R 1962 S C 853 ; Hassanali v.
Mansovrall P L D 1947 P C 223; Ramansey Virji and another v. Meghji Hirjl Janqeall
and others A I R 1934 Bom. 431 ; Abdul Razzak Haft Mahomsd v. Adam Haji Usman
Noorani and others A I R 1935 Bom. 367 ; Appaya crud another v. Padappa I L R 23
Bom. 122 1 Narahdus Assanmal and others v. Yalabdas Vishandas and others A I R
1929 Snd 1 ; Managobinda Panda v. Srlmat Paramahanse Paribrajakacharja Sankar
Shrl Satchidananda Swami A I R 1953 Orissa 151 1 Thiruvenkata Ramanuja v.
Venaacharlu A I R 1947 P C 53 ; A'Nandra'V Bhika'jl Phadke v. Shamkar Dajl' Cha'rya

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I L R 7 Bom. 323 ; Saifuddln Saheb v. State, of Bombay A I R' 1962 S C 853 and
Puthota Chinnama v. The Regional Director of Public Instruction and another

A I R 1964 A P 277 distinguished.

(t) Civil Procedure Code (V of 1908)

S.91 read with Penal Code (XLV of 18x0), S. 268-Public nuisance-Annoyance in order
to be indictable -Must be caused by danger to life, safety, health, or comfort-Act
offending sentiment of a particular class or sect--Not indictable as public nuisance-
Mere fact of Ahmadis believing in Holy Qur'an, Sunnah, and same Fiqh (subject of
course to certain alterations)-Not a ground to cause any inconvenience or annoyance to
any reasonable man bringing it within definition of nuisance under S. 268, P. P. C.-Acts
of defendants in worshipping in the manner of Muslims and calling Azan and naming
their place of worship also in the manner of Muslims, held, do not amount to a
nuisance or a public nuisance and consequently S 91, C. P. C. not attracted.-[Public
nuisance],-Bibruti Narayan v. Mahadeve Asram A I R 1940 Pat. 449 ; Sheikh C4 J and
others v. Laxman A I R 1916 Nag. 81 ; Underhill's Law of Torts, ibid Edo., p. 118 ;
Walter v. Selfe 21 L J Ch. N S 153 ; Muttumtra v. Queen-Empress I L R 7 Mad. 590 ;
Queen-Empress v. Byramjl Edu yl I L R 12 Bom. 437 ; Eara v. Keemo 18 P R 1867
(Cr.) ; Assa Nand v. Hosain Bakhsh 15 P R 1868 (Cr.) ; Queen-Empress v. Zaki-ud-Din
I L R 10 All. 41 ; Muthayya Reddl v. Sudalal Muthan Nadar 5 I C 902 1 Queen-
Empress v. Zakiuddin (1887) 10 All. 44 and Shahbaz Khan v. Umrao Puri (1906) 30
Ali. 18t ref.

Hindu Panchayat of Laki v. The Muhammadan Community of Lakh A I R 1928 Sind

82 ; Sultan v. De Held (1851) 89 R R 245 ; Khaji Dodda Khaji Saib and others v.
Chigamalla Nanjappa and others A I It 1937 Mad. 348; Seshayyansar v. Seshayyangar
I L R 2 Mad. 143 ; Partha.raradi Ayyanger and others v. Chinnakrishna Ayyagner and
others I L R 5 Mad. 304 , Jankf Prasad v. Karamat Hussain A I R 1931 All. 674 ;
Muhammad Hussain v. Baba Sah A I R 1926 Mad. 335 and T Sped Pitchal Rowther v.
K. Devaji Raw A I R 1937 Mad. 21 held not relevant.

Shelka Chand v. Laxman A I R 1916 Nag. 81 and Blbhutl Narayan v. Mahadev Asram
A I R 1940 Pat. 449 distinguished.

(u) Civil Procedure Code (V of 1908)-

- S. 91-Public nuisance-Suit becomes competent after permission of Advocate-General

only when plaintiffs do not incur any special damage. (Public nuisance].

Muhammad Hasan v. Amba Prasad A I R 1934 All. 941 distinguished.

(v) Civil Procedure Code (V of 1908)-

S. 91-Public nuisance -Damage-Need not consist of pecuniary loss but it must be

material or substantial, i.e.. not merely sentimental, speculative, of trifling or merely
temporary, fleeting or evanescent-Case raising question of sentimental annoyance

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only-No question of any one suffering even ordinary damage, held, arises.--[Public
nuisance-Damage].

Adamson v. Arunugam and others I L R 9 Mad. 463 ; Ramphal Rai and others v.
Raghunandan Prarad I L R 10 All. 498 and Halsbury's Laws of England, Third Edn.,
Vol. i8, p. 146, papa 235 ref.

(w) Civil Procedure Code ;V of 1908)-

--- S. 9 and Specific Relief Act (I of 1877), S. 42 read with Constitution of Pakistan
(1973), Arts. 20 & 260-Arts. 20 & 260 of Constitution (1973)-Do not repeal Ss. 9 & 42
of Civil Procedure Code, 1908 and Specific Relief Act, 1877 respectively-Sections,
held, stand reconciled with constitutional provisions.-[Interpretation of .statutes].

(x) 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-
He'd, not correct-Constitution (Second Amendment) Act, 19?4-A declaratory statute
and retrospective in character.[Words and phrases-Interpretation of statute].

The Constitution of 1973 has unequivocally declared Qadianis or Ahmadis, to

whatever group they belong, as non-Muslims 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
sense of the 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. The only argument of the counsel
for the petitioners was that it declares only those persons as non-Muslims 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
claims 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 Boruzi Prophet and Masih Mao'ud or Misle 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-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 1'rophethood of
Muhammad (peace be upon him) and not upon its absolute unqualified finality. The

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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" covers the case of Qadiani Group of Ahmadis. In the face of this clear
language, it is not possible to say that Article 460(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 groups 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---Muslims 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.

Maxwell on Ieterpretation of Statutes, 10th Edn., p. 222 1 Crates on Statute Law, 5th
Edn.. p. 354 ref.

(Y) Interpretation of statutes-

--- Aid of history of Legislation-Very relevant-to understand intention of Legislature.-

[Legislature].

''' Holme v. Guy (1877) 6 Ch. D 901 ; Maxwell on Interpretation of Statutes, 10th Edn.,
pp. 21-22 ; Crates on Statute Law, 5th Edn., p. 120 and Thomson v. Lore! Clanmorris
(1900) 1 Ch. 718 ref.

(z) Constitution of Pakistan (1973)-

-- Art. 260(3)-Words and phrases-Expression "subject to Constitution and Law"

occurring in Art 260(3)-Used only to emphasise guarantees given and safeguards
granted to non-Muslims-Expression does not have force of recognising Ahmadis as
Muslims.-[Words and phrases].

(aa) Constitution of Pakistan (1973)-

-- Arts. 4, 8, 20 & 260(3) read with Arts. 227 to 230-Words. and phrases-Word "Law"
in Arts. 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 Lair and codified law, held, easily
refuted by Arts. 227 to 230 of Constitution (1973).-[Words and phrases ---
Muhammadan Law].

F. B. Ali v. State P L D 1975 S C 506 ; Ch. Manzoor Elahi v. Federation of Pakistan P

L D 1975 a C 66 ; Government of West Pakistan v. Begum Agha Abdul Karim Shorish
Kashmiri P L D 1969 S C 14 and Asma Jillani's case P L D 1972 S C 139 ref.

(bb) West Punjab Muslim Personal Law (Shariat) Application Act (V of 1962)-

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-- S. 2-Application of Shariat law to religious institutions-Possible only where parties

are Muslims and not where not only one of parties to dispute is non-Muslim but
institution (subject of suit) is under management and control of non-Muslim party-
Plaintiff, held, cannot ask Court to apply their law of religious institutions to a
religious institution of non-Muslims.

Nizam Khan v. Additional District Judge P L D 1976 Lah. 930; Mst. Hamida Begum v.
Mir. Murad Begum P L D 1975 S C 624 and Muhammad Mehdi Alt Khan v. Province
of East Pakistan P L D 1958 Dacca 203.

(cc) Words and phrases

-- "Justice, equity and good conscience"-Origin and history of expression.

Ewing v. Orr Ewing (1885) 10 A C 433; Smith v. Clay (1767) 3 Bro. c o 640; Snell's
Principles of Equity, 22nd Edn. and Re : Telexrytor Syndicate (1903) 3 Ch. 174 ref.

(dd) Equity

Relation between law and equity.

Dudley v. Dudley (1705) 94E R 118 ref.

(ee) Equity-

Jurisdiction-Rule of justice, equity and good conscience-In nature of a residuary law to

fill up vacuum created by non-existence of positive law on subject-Finding out rules to
determine rights not provided for in statute or common law-One of functions of equity
for doing justice.-[Jurisdiction].

Hatimbhai Hassanally v. Framroz Edu yes Dlnshaw A I R 1927 Bom. 2781 Gobind
Dayal v. Inayat Ullah I L R 7 All. 775; Shams-un-Nisa v. Zohra BIN (1874) 2 N W P H
C R; Chundo v. Hakim Ram-ud- Din (1874) 28 N W P H C R; Waghela Rajsanji v.
Marludin (18871 1 t Bom. 551; Khan Bahadur Mehrban Khan v. Makhna and others A
I R 1930 P C 142; Varden Seth Sam v. Luckpathy Royjee Lallah and others 9 M I A
307; Maharaja of feypore v. Rukmant Pattamahdevi A I R 1919 P C 1; Kripa Slndhu
Mukherjee v. Ananda Sundarl Debi d L R 35 Cal. 34; Bireswar Ghosh v. Panchocourl
Gosh and others A I R 192'3 Cal. 538; Moolrhand and another v. P. Alwar Cheetl A I R
1915 Cal. 934; Ralll Brothers of Karachi v. Punjab National Bank Ltd. and others A I R
1930 Lah. 920; Watson & Company v. Ramchand Dutt I L R 18 Cal. 10; L. O. Clarke
v. Brojendra Kishore Roy Chowdhery I L R 36 Cal. 433; Baluser Veeraraghavalu v.
Boppana Mamtkyam and others I L R 35 Mad. 921 Keshrimal v. Mt. Kadhal A I R
1920 Nag. 144; Christacharlu v. Karibasayya I L R 9 Mad. 399; Mayashankar
Mulshankar v. Burjorjl Nerwanji Batfvala A I R 1926 Born. 31; Venkatalingama v.
Parihasarthy A I R 1942 Slad. 558; Mst. Salnawn v. Dhanpat Gadarlya A I R 1933 All.
701 Kalyan Das v. Jan BIN and another A I R 1929 All 12; Varadarajulu Chetty v.
Dhanalukahmi Ammal A I R 1915 Mad. 40? ; Chundal Vlthaldas v. Fulchand I L R 18
Bom. 160; Janardan Mahato v. Bhalrab Chandra A I R 1916 CA. 2591 Gulab Roy v.

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4/7/24, 8:35 AM P L D 1978 Lahore 113

Mt. Abbas Bandi Bibi A I R 1932 P C 158; Advocate- ;,'Yeneral of Bombay v. Yousaf
Ali Ebrahim A I R 1921 Bom. 338; Aziz Bano v. Muhammad Ibrahi,n Hussain A I R
1925 All. 720; Arils Begum and others v. Muhammad Istafa Wali Khan I L R 55 All.
743; Khurshid Jan v. Fazal Dad P L D 1964 Lah. 558; Hamida Begum v. Murad
Begun; P L D 1975 S C 624 and Huff Nizam Khan v. Addithnal District Judge,
Lyallpur and others P L D 1965 Lah. 930 ref.

(ff ) Constitution of Pakistan (1973)-

-- Art. 2 read with Constitutions of Pakistan (1956), (1962) and (1972) -'Justice, equity
and good conscience"-Application of principle of-Successive Constitutions of Pakistan
having given undertaking not to enact any law repugnant to injunctions of Islam and to
bring all laws in conformity with such injunctions within a fixed period and in view of
declaration of Islam as State religion in Art. 2 of Constitution (1973), Pakistan
judiciary constrained to apply principles of Islamic laws on principle of justice, equity
and good conscience in cases not otherwise provided for, Shariat law being based on
principles of equity, justice and good conscience, held, should be applied in, preference
to English rules of equity.-[Equity-Muhammadan Law].

Hamidah Begum v. Murad Begum P L D 1975 S Q 624 and Khurshid Jan v. Fazal Dad
P L D 1964 Lah. 5 58 ref.

(gg) Muhammadan Law-

----- Principles of justice, equity and good conscience-Application to non-Muslims-

Islamic Law, though not applicable to non-Muslims, yet Qadiani section of non-
Muslims claiming to be bound by law of Qur'an and Sunnah to be governed by Muslim
Law on principle of justice. equity and good conscience-Injunction of Holy Qur'an or
Sunnah existing on subject, suit relating to such subject, held, to be decided according
to such injunction unless suit barred or incompetent under positive law-Court,
however, not bound to follow opinion of others on such subject bat to judge such
opinions principles justice, equity and good conscience.-[Equity].

(hh) Punjab Laws Act (IV of I872)-

-- S. 6-Equity, justice, and good conscience-Equity follows and supplements law-No

equitable doctrine can override statutory enactments-Injunction found not permissible
under statutory law relating to subject, reference to S. 6, Punjab Laws Act, 1872, held,
of no avail.-[Equity].

(ii) Specific Relief Act (I of 1977)

-- S. 42 and Constitution of Pakistan (1973), Art. 20-Contention that no 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 Qur'anic 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

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worship neither used for collecting arms to wage war against Muslims nor 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-Muslims to offer
prayers and to call Azan. No interference with (SHAAIR-E-ISLAM)-Nothing
objectionable in worship of One God in manner taught 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].

Muslim Conduct of State by Dr. Muhammad Hamidullah 4th Edn., p. 203;

Jami-ul-Shawabid (JAMIA AL SHAWAHID) by Maulana Abul Kalam Azadl Seratul
Nabi by Maulana Shibli Narunani, Vol. II, p. 483; Zadulma'ad by Haft Ibn Qayyam;
Fatawa-i-Darul-Ulum Deobgnd by Mufti Muhammad Shaf4 Vol. IV. pp. 654, 658;
Behr-ur-Ra'iq. p. 2641 Mishkat-ul-Maoabib, Vol. I, p. 126; Qadiani Mas'ala by
Maulana Maudoodi, p. 199; Abdul Wahid Khan's o-ty-3O &jli at p. 191; Abdul Rahlm
on Muhammadan Jurisprudence (Rep. 1958), p. 251 ; Sabih Muslim, Vols. 139-42;
Verse 29 of Ch. 9 of Holy Qur'an; S. 669 of Muslim Conduct of State by Dr.
Hamidullah; Xbendra Kishore etc. v. Province of East Pakistan P L D 1957 S C (Pak.)
9; Commissioner, Hindu Religious Endowments. Madras v. Sri Lakshmlndra Thirtha
Swamiar of Sri Shlrur Mutt A I R 1954 S C 282; Patilal Panachand Gandhi and others
v. The State of Bombay and others A I R 1954 S C 388; Muhammad Hanif Quresht v.
State of Bihar and others A I R 1958 S C 7311 Cht:ohur Khan v. Mummoo Khan and
others 15 P R 1868; Kandasamd Mudall and others v. Subrova Mudall and others I L R
32 Mad. 478; Khalil Ahmad v. Israfil 37 I C 302; Slfat All Khan and others v. Ali Mlan
and others A I R 1933 All 284; Kaniz Fatima v. Member, Board of Revenue P L D
1973 Lah. 495; Pahloon;al Motiram v. Abdul Quddus Behari P L D 1971 Kar. 250;
Jawahar Singh v. N. D. Sassoopt A I R 1923 Lah. 29;1; Mahmedbhai v. Dimji
Hatimbhai A I R 1942 Mad. 362, Firm Muni Lai v. Kalam Singh A I R 1943 Lah. 121;
Ghulam Mohy-ud-Din v. Mst. Ruqiya and others A I R 1939 Lah. 158; Eastern Ltd. v.
Burmah Employees' Union P L D 1967 Dacca 190 and Chowmuhant College v. M. D.
Ismail Hossain 19 7 1 D L C 640 vet'.

(jj) Civil Procedure Code (V of 1908)-

-- O. XXXIX, rr. 1 & 2- Injunction temporary-Irreparable loss and injury-Balance of

convenience-Juri4diction under O. XXXIX, rr. 1 & 2-Equitable jurisdiction-Issue of
injunction-A matter of grace and discretion-Question of irreparable loss and injury and
balance of convenience-Always considered necessary to satisfy Court's conscience
whether injunction should or should not issue and laches one of grounds on which such
questions necessarily answered against such issuance-Plaintiffs not having objected to
existence of mosque, to its being called a mosque, to Azan being said in it, to prayers
being performed by Qadianis in it, individually and collectively for several decades,
held, cannot complain of suffering any injury much less irreparable loss and injury and
balance of convenience not in favour of issue of injunction --[Injunction-Laches].

Ch, A. Waheed Saleem, Malik Sharif Ahmad, Ch. Aziz Ahmad Bajwa, Mujeebur
Rehman and Mirza Naseer Ahmad for Petitioner.

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Ch. Muhammad Ismail, D. M. Arbey. Mian Sher Alam, Sh. Ghias Muhammad, Dr.
Syed Riazul Hassan Gillani, Kh. Muhammad Tufail, Zajar Sohcil Khan and Rashid
Murtaza Qureshi for Respondents.

Dates of hearing: 17th, 18th, 24th, 25th, 26th November 1976, 16th, 17th, 20th to 23rd
December 1976; 11th to 14th, 18th, 19th, 27th, 31st January 1977; lst, 3rd, 4th
February; fat, 2nd, 8th, 91b, 15th, 31st March 1977 and 4th April 1977.

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 net 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 Lahori 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

"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,

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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

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such a claimant as a prophet or even a religious reformer, shall be considered to be a

non-Muslim for the purposes of the Constitution or Law. The necessary clarification
whether Qadianis or Ahmadis of the Qadiani sect or Lahori 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 Lahori
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

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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 net 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.

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

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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 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

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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, 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.

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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

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Superior Courts particularly the recent judgment of the Supreme Court in Brigadier F.
B. Ali v. The State (P L D 1975 S C 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.

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 argued that section 42 is
exhaustive of suits of declaratory nature and consequently a suit for that purpose,
beyond the scope of this section, cannot be filed.

30. Mr. Muhammad Ismail, on the other hand, relied upon Order VII, rule 7, C. P. C.
and argued that section 42 is not exhaustive and it is permissible to grant relief even if
the same is not asked for. Mian Sher Alam, on the other hand, argued. that section 42
of the Specific Relief Act as well as section 9 (to which reference will be made later)
of the Code of Civil Procedure have lost their significance and stand impliedly
repealed for the purpose of this suit in view of Article 20 of the Constitution. Sh. Ghias
Muhammad relied upon certain authorities to show that a .negative declaration can also
be given by the Court in spite of section 42.

31. Section 42 of the Specific Relief Act applies only to a case where a person files a
suit claiming entitlement to any legal character or to any right to property which
entitlement is denied by the defendants or in denying which the defendants are
interested. It cannot apply to a case where the plaintiffs t' do not allege their
entitlement to any legal character or any right to property or its denial by the
defendants. As a necessary corollary it cannot apply to a case where only the
entitlement to legal character or the property of the defendants is denied by the
plaintiffs.

32. The essentials of relief under section 42 were discussed analytically in Jeka Dula v.
Bat Jivi and others (A I R 1938 Bom. 37). It was held that four conditions should be
satisfied for a mere declaration :

The plaintiff must be entitled

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(1) to a legal character a! the time of the suit ; or

(2) to a right to property

(3) defendant should have denied theta ore been interested in denying this character or
right ; and

(4) the plaintiff should not be in a position to ask for relief consequential upon
declaration sought.

It was further held that

"The third condition is important. Even if the plaintiff has a present existing interest,
no cause of action accrues to him until there is some infringement or threatened
infringement of his right, in other words a cloud must be cast on his title before he can
ask for its removal. He must allege and prove hostility on the part of the defendant, for
no Court will move on merely speculative ground ."

The first ingredient is title of the plaintiff to legal character or property. It was for this
reason that it was held in Haran Chandra v. Sidh Nath Singh (A I R 1940 Cal. 443),
that cloud must be cast on the title of the plaintiff before he can ask for its removal.

33. The second essential ingredient of the section is that there must be an infringement
or threatened invasion of title to such legal character or property. In Harendra Gal Roy
v. Salimullah (7 1 C 21), the Calcutta High Court held that there is no cause of action
until there is an infringement or threatened infringement of a legal right. The same
proposition was laid down in one form or the other in Nirmal Kumar v. Surajan
Dusedh (1929 Pat. 433), Bhikari Bhara v. Srimali Sitamand Devi (A I R 1924 Pat.
706), Maaraj Bahadur v. Gandauri Singh (A I R 1917 Pat. 640). In Latifan Mian v. Mst.
Moorti janana (A I R 1919 Cal. 82), the plaintiff sued her late husband for a declaration
as to her already dissolved marriage and the legitimacy of her children. It was held that
she had no legal character in her once being a wife and divorced. As a mother she had
no legal character as to whether her child who is not a party to the suit is or is not
legitimate. In Khanchand Mayaram v. Jacobabad Municipality and another (A I R 1946
Sind 98), a declaration was sought by a rate prayer claiming that a certain person
ceased to be the Chief Officer of the Municipality from a certain date. It was held that
it was not a case in which the plaintiff claimed any legal character or right to property.
Similarly, in Ganesh Khopra Milts Co. v. Municipal Corporation of Karachi (A I R
1946 Sind 112), it was held that a suit to claim that terminal tax on consignment of raw
cocoanut oil should be imposed by City Corporation of Karachi under Serial No. 29
and not Serial No. 20-A of Appendix 'D' to Rules framed under sections 46 and 48,
Bombay District Municipal Act, was not maintainable since it was not a case where the
plaintiff was entitled to a legal character or a right to property. Mst . Zeb-un-Nisa v.
Ch. Din Muhammad (A I R 1941 Lah. 97=193 1 C f41), it was held that a suit for
declaration that property is Waqf and alienation thereof is ineffectual against Waqf
property does not fall within the purview of section 41. It was also held that prior to the
enactment of section 42, it was not the practice of the Court to grant merely declaratory
decrees. Similarly, in Mst. Sughran v. Rahmat Ali (P L D 1965 Lah. 580), it was held

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that a simple suit for negative declaration without claiming any relief about property
will not be competent for the reason, among others, that it will` not be a declaration of
any legal status in the plaintiff himself or a denial of status in a defendant which, if not
challenged, may affect or jeopardise the status of the plaintiff. In Subedar Shingara v.
Callaghan (A I R 1946 Lah. 247), a claim to seek immunity from trial under the Army
Act was held to be not a claim for establishing the status or legal character. In W.
Nawarratne Panditta v. Attorney-General of Ceylon (AIR 1919 P C 189), a suit that a
Community is entitled to carry its religious procession subject to the rights of
Government to put limitations in the interest of public tranquillity was held to be not
maintainable. In Alavi Sons Limited v. Government of East Pakistan (P L D 1968 Kar.
222), a declaration was sought against all the defendants to the effect that the plaintiffs
had not committed any breach whatsoever of any of the terms and conditions of
contract dated 29-3-t,3 between the plaintiffs and defendant No. 1 and therefore their
security in the form of Bank Guarantee to the extent of Rs. 66,000 was not liable to be
cashed by defendants Nos. 1 and 2 from defendant No. 3. It was held that this
declaration which did not involve any legal character could not be granted under
Section 42 and the suit was incompetent. This case will also be referred to in another
context.

34. In M. D. Shafi & Sons v. Kotah State Glass Factory (A I R 1930 Lah. 753), it was
held that "the Court will not make merely a declaration of the hypothetical or abstract
right and without any reference to any practical result." Same dictum was laid down in
Naubahar v. Qadir Bakhsh (A I R 1930 All. 753), Ori Lai v. Muhammad Iqbal (251 C
908), Rai Keshwar Singh v. Shyam Biharl Singh (A I R 1927 Pat. 286), Sabitrl
Thakurain v. Mrs. F. A. Savi (A I R 1933 Pat. 306), Muhammad Yaqub v. Mangru Raj
(7 1 C 318).

35. Uppangala Subraya v. Bedardi Subraya (5 1 C 57-(191.0) 7 M L T 190), furnishes a

good illustration. The Madras High Court held in that case that Moktesars of a temple
do not get any cause of action again,t a spiritual head of the community merely
because he resorted to caste a person ex-communicated from caste for having married
a Nambudri girl.

36. It is clear from these authorities that section 42 would be attracted to a case in
which the plaintiff approaches the Court for the safeguard of his right to legal character
or property but where right to his own legal character or property is not involved, the
suit is not maintainable. The suit must be one which must bring benefit to him in
regard to these two rights. No suit involving any other right, hypothetical or abstract
would be competent under G that section. The Court will not therefore entertain suits
in which no benefit accrues to the plaintiff or where the plaintiff sets up merely an
abstract right to satisfy his ego or satisfy his grudge against another person. Section 42
cannot be invoked in matters of mere sentiments which have no concern with the
vendication of the plaintiffs' title to status and property.

37. This brings us to the question as to what is a legal character? What is a right or a
legal right? The words `legal character' have been held to be synonymous with legal
status. In Dipchand v. Manakchand (A I R 1939 Nag. 154), it was held that man's status
or legal character i9 constituted by the attributes which the law attaches to him in his

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individual and personal capacity, the distinctive mark or dress as it were, with which
the law clothes him apart from the attributes which may be said to belong to normal
humanity in general. In the case of Alavi Sony Limited v. Government of East
Pakistan, it was held that a legal character is used in the sense of "status" which is
constituted by the attributes which the law attaches to a person in his individual and
personal capacity and which according to Holland, is referable to such legal conditions
as (1) sex, (2) minority, (3) 'paterla porestas' and 'manes', (4) coverture, (5) delibacy,
(6) mental defect, (7) bodily defect, (8) rank, caste and official position, (9) slavery,
(10) profession, (11) civil death. (12) illegitimacy, (13) heresy, (14) foreign nationality
and (15) hostile nationality. The same view about the interpretation of the words
"Legal character" was taken in Inspector-General of Police v. Abdul Rashid (P L D
1972 Pesh. 13), Burmah Eastern Limited v. Errployees' Union (P L D 1967 Dacca 190)
and Muhammad Farooq Khan v. Sulaiman A. G. Panjwani (P L D 1977 Kar. 88), See
also District Bocrd, Lahore v. Agha Munammad Khan (P L D 1957 Lah. 780), Shanta
Shamsher v. Kaman! Bros (A I R 1959 Born. 201). Also see The State of Pakistan v.
Meraj-uda-Dln (P L D 1959 S C 162). Broadly speaking, therefore, legal status or legal
character is constituted by the attributes which the law attaches to a person in his
individual and personal capacities or incapacities. According to Salmond these
personal conditions are compulsory as opposed to conventional persona'. g conditions.
It will not include for example personal rights and personal duties existing between a
married woman and her husband. (Salmond, 11th Edition, page 292).

38. A "right" according to Salmond (11th Edition page 261) b and interest recognised
and protected by a rule of right. It is an interest, respect for which is a duty. and
disregard of which is a wrong. This definition was cited with approval in Rana
Muhammad Afzal Khan v. The State (P L D 1962 Lah. 397).

39. According to Holland (Holland's Elements of Jurisprudence (13th Edition page 82)
a legal right is a man's capacity of influencing the acts of l another, by means not of his
own strength, but of the force of society

Hut he states at page 83-

"Jurisprudence is specifically concerned only with such rights as are recognised by law
and enforced by do power of the State. We may, therefore, define a 'legal right' as . . . .
. .a capacity residing in one man of controlling, with the assent and assistance of the
State, the action of others." '

According to both Salmond and Holland only that interest or right is a legal right
which is recognised and protected by the laws of the State and every such legal right
involves a duty or obligation.

40 Holland further distinguishes between 'legal right' and moral right. He states at page
86:

"If irrespective of having or not having . . . .might (power or authorit3 L to carry out
one's wishes either by his acts of force or persuasion of by influencing acts of others)

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public opinion would view with approval, or at least with acquiescence, his so carrying
out his wishes and with disapproval any resistance made to his so doing 1 then ho has a
moral right so to carry out his wishes."

He explains the correlation of right to duty or correspondence of one with the other at
page 87 where moral duty is also explained as corresponding to moral right.

41. Paton (in Third Edition of his Jurisprudence at pages 250 and 251) also explains :

"As has been said, the characteristic mark of a legal right is its recognition by a legal
system. If the right is challenged, will the State enforce it, or grant damages for any
failure to carry out the corresponding duty ; or in some other way recognise the right
and attach legal consequences to interferences with it? In the case of a right which is
recognised only by morality or ethics, the law will grant no remedy. Enforcebility by
legal process has, therefore, sometimes been said to be the sine qua non of a legal
right."

G. W. Keeton in the Elementary Principles of Jurisprudence (Second Edition) at page

01 writes:

"It is obvious when we use the phrase 'a leg il right' that the word 'legal qualifies 'right'
and thus implies that there may be rights other than legal ones. There may, for
example, the moral rights, but with these as such, Jurisprudence is not concerned.
Legal rights are those which are recognised and enforced by law. Legal rights and
moral rights frequently coincide, but many moral rights lie outside legal regulation,
and there may be legal rights which are in conflict with ethical principles."

These definitions draw a distinction between moral right and legal right. Only legal
rights are enforcible in Court. The moral rights are not sc enforcible despite their
emphasis on positive morality. Each right content plates a corresponding duty. The
Courts can, therefore, enforce only that right which is a legal right and not simply a
moral right however strong may be the unto to enforce it in view of its moral
ascendency. Section 42 of the Specific Relief Act deals with legal right as well as the
threat or invasion to ill by a person having corresponding duty not to invade it but to
respect it. 111 would, therefore, apply only to a case where a plaintiff sues for
declaration of his own legal right whether to property or legal character provided it
invaded or threatened with invasion by the defendant. It does not deal with the
negation of the defendant's rights. Consequently, a declaration that the defendant has
no right to do something which does not infringe upon any legal right to property or
legal character of a plaintiff cannot be given under section 42. The cause of action
under this section should, therefore, be a threat of Injury to the plaintiff's own right or
removal of cloud cast on hit own title. It does not allow the plaintiff to come to the
Court to show hit hostility only to what the defendant considers his own right and
which action does not cast any cloud upon the plaintiff's own title.

42. It is clear from the plaint that it is not the case of the plaintiff's respondents that
their entitlement to any legal character to any property is in jeopardy and they wished
to guard against the same by resort to thus litigation. The respondents admit this place

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of worship to belong to the plaintiffs ; their case is only this that the petitioners-
defendants having been declared as non-Muslims have no right to call their place of
worship by the name of mosque or to perform their prayers in the manner provided by
the Holy qur'an and Sunnah or to call persons to prayer by proclaiming Azan. It is not
their case that they are entitled to any legal character or the their legal character is
being declared by the defendants. On the other hand
this is a suit of a converse nature. Only the defendants' right to name their place of
worship as Masjid or to call Azan therein or to perform prayers in the manner the
prayers are performed by the MusIms, is being disputed.

These pleas or reliefs cannot fall under section 42 of the Specific Relief Act.

43. I agree with the argument of the learned counsel for the respondents that even
negative declaration can be given Salim Ullah Beg v. Mst. Makh Begum (P L D 1959
Lah. 429), Sughran v. Rehmat Ali (P L D 1965 Lah. 580), Amina Begum v. Ghulam
Nabi (P L D 1974 Lah. 78) and Mst. Arzeina v. Ma Kyin Shwe and another (A I R
1940 Rang. 298), but such declaration must also be one affecting some threatened
injury or infringement of the plaintiffs' right. This type of negative declaration can be
granted on the principle that what can be done directly can also be justified if done
indirectly.

44. The next important question would be whether a declaration beyond the scope of
section 42 can be granted under any general provision of law a g. section 9 of the Code
of Civil Procedure. This will give rise to the age old question whether section 42 is
exh9ustive in nature. Several authorities were produced en behalf of the learned
counsel for the parties In support of their respective contentions shout exhaustive or
non-exhaustive nature of this right.

45. There is a difference of view in this respect. One view is in favour of section 42 not
being exhaustive K. P. Ramakrishna Pattar v. K. P. Narayana Pattar and another (I L R
39 Mad. 80), M. Ramachandra Rao v. The Secretary of State for India in Council
((1916) 39 Mad. 808), Robert Fisher v. Secretary of State (A I R 1920 Mad. 665).
Veeramachknent Ramswamy and others v. Soma Pitchayya and others (A I R 1920
Mad. 665), Vangipuram Vank4tacharyulu v. Sri Rajah Vasiradd! Haribara Parasad (A I
R 1935 Mad. 964), Desu Reddiar v. S intvasa Reddl (10), Swayamprabhai v.
Muthukrishna (A I R 1942 Mad. 362), Krishanaswami v. S.-inirassan (A I R 1942 Mad.
53). The same is the Allahabid view in Sri Krishana Chandhra v. Mahabir Prasadand
others (A I R 1933 All, 488) and Partab Singh v. Bh&ud Singh (I L R 35 All. 487).
Only the view of the Madrass High Court is consistent in this respect.

46. The preponderance of view is on the side of the section being exhaustive in nature.
Md. Fahimal Haq v. Jagat Balley (A I R 1923 Pat. 175), Sabitri Thakurain v. Mrs. F. A.
Sid (A I R 1933 Pat. 306), Ganpat Lai Bindbasini Prusad Narayan Singh (471 C 91t),
Fischer v. Secretary of Slate for Indian Cor.ncil (261 A 16), Bhai Shari Vaktuba v.
Thakore Agarsinghji Ralsinghj! (1 L R 34 Bom. 676), Achalsingh v. Dolatsingh (A I R
1924 Bom. 470), Deokal! Koer v. Kedar Nath (471 C 91), Bahadurmull v. Nagamull
(A I R 1941 Cal. 534), Narayanprosad v. Indian Iron and Steel Co. (A I R 1953 Cal.
(95), Bhola Nath v. Lachml Narain (A I R 1946 Sind 98), Zeb-ul-Nisa v Din

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Muhammad (A I R 1246 Lah. 247) , Subedar Slnghara Singh v. Challaghan (A I R

1941 Lah. 97), Khancharat v. Jacobabad Municipality (A I R 1946 Sind 98), Ganesh
Khopra Mills Co. v. Municipal Co,poratlon of Karachi (A I R 1946 Sind 112),
Shafqatullah Qadri v. University of Karachi (P L D 1954 Sind 107), Kishori Lai v. Beg
Raj (249 P W R 1912), Abdur Rehman Bhuiya v. Commissioner of Narayanganj
Municipality (P L D 1959 Dacca 5), Burmah Eastern Lrd, v. Burmah Employees Union
(P L D 1957 Dacca 190), inspector General of Police v. Abdur Rashid (P L D 1972
Pesh. 13), Alavi Sons Ltd. v. Government of East Pakistan (P L D 1968 Kar. 222),
Muhammad Farooq Khan v. Sulaiman A.-G, Pan/want (13), Snow-white Food
Products Co. Ltd. v. Messrs The Punjab Vansspatti Supply Co. (40 C W N 172).

47. In M. A. Naser v. Chairman, Pakistan Eastern Railway (PLD 1965 SC 83) It was
held that under section 42 where a person is entitled "to any legal character" or to "any
right to property" he can institute a suit for a declaratory relief in respect of his title to
such legal character or right to property. This section does not contemplate a suit for a
declaration that a catering contract between a contractor and a Railway Administration
to supply refreshments in Refreshment Rooms of the Railway and to run their buffet
car, was still subsisting. Thus the view taken by the Supreme Court of Pakistan also
appears to be the same. The Privy Council had taken the same view in Sheoparsan v.
Ramnandan (P L D 1969 Lah. 289). A preponderance is, therefore, in favou of the
proposi,ion that no declaration can issue outside the provisions of l this section. The
Courts' power to make declaratory decrees is, therefore, limited to the case contained
in section 42. No declaration can be allowed unless it can be brought within the four
corners of the section.

48. 1 may now refer to the analogous case of Agha Abdul Karim Shorish Kashmiri v.
Province of West Pakistan (P L D 1969 Lah. 289) where the petitioner urged before the
High Court that his right to call the Ahmadis, non-Muslims was guaranteed by
Fundamental Right No. 10 of the 1962 Constitution (which corresponds to Article 20
of the present Constitution). Their Lordships did not agree with this and fn that
connection p.:~asd a question whether any suit for declaration that. Ahmadis are not
Muslims or of permanent injunction against Ahmadis calling xthemselves Muslims
would be competent. The petitioners' learned counsel answered in the negative. This
was also the view of the Court sine their Lordships' observation reproduced below
appears to have approved this answer :

"This brings in bold relief the absence of any legal right in the petitioners to have this
abstract question determined by any legal process unless it is somehow linked with any
right to property or office, in which case a civil suit may be competent."

This view clinches the matter about the applicability of section 42 to the suits of
present nature. The present suit is not therefore competent in view of this section.

49. The learned counsel for the respondents argued that although legal status of the
plaintiffs may not be involved but a dispute about property is included since the prayer
rel4es to a mosque. This argument is absolutely S without merit; since under section 42
a suit can lie where the threat is to the plaintiff's entitlement to property and not to the
manner of use by the defendant of his own property.

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50. The learned counsel for the respondent then relied upon section 9 and Order VII,
rule 7, C. P. C. in support of their contention about the maintainability of the suit.
Section 9 states that the "Courts shall (subject to the provisions herein contained), have
jurisdiction to try all suits of a civil nature excepting suit of which their cognizance is
either expressly or impliedly barred." The explanation added to the section states that
"a suit in which the right to property or to an office is contested is a suit of a civil
nature, notwithstanding that such right may depend entirely on the decision of
questions as to religious rites or ceremonies."

51. Order VII, rule 7, C. P. C. empowers the Court to give general and other reliefs
which the Court may think just as if it had b.-en asked for. ,T The principle of Order
VII, rule 7 is not attracted to the case at this stage since the only question is whether
the plaint discloses a cause of action.1 The reference to that Order or rule is, therefore,
misconceived.

52. The reference to section 9, C. P. C. in support of plaintiff's case is equally

misconceived since it deals with Courts and their jurisdiction and not with any right of
action.

53. Section 9 deals with general jurisdiction of the Court to try suits of civil nature. By
the explanation it is clarified that a suit involving right to property or to an office is a
suit of civil nature. It is, however, clear from the explanation added to it that suits
which involve questions of religious rites or ceremonies only are not suits of civil
nature unless those questions affect a right to property or office. P. R. Atyanachartar
and others v. Sri Uthamanambi Sadagopachartar and others (A I R 1939 Mad. 757),
Seetayya v. Apadu (A I R 1926 Mad. 526), Abdul Hakim Baig and others v. Mahorned
Burrammudin and others (A I R 1926 Mad. 559), Sri Slnha Romanuja Jeer alias Sri
Vanamamalal Ramanuja Jeer Swamfgal v. Sri Ranga Ramanuja Jeer alias
Emberumanar Jeer and others (A I R 1961 S C 1720), Derchand Totaram v.
Ghanashyam (A I R 1935 Bom. 361), Mansoorall v. Mohammad All (A I R 1935 Nag.
156), Advocate General of Bombay v. Yousaf All Ebrahim and others (A I R 1921
Bom. 338), Vasudev and another v. Va'mna'ji and others (I L R 5 Bom. 80).

54. Section 9 confers jurisdiction on Courts to try suits of civil nature which
presupposes that they must involve some right in the plaintiff for which there must be a
legal remedy. The word 'right' involves a corresponding obligation.

55. I have already discussed the words 'right' and 'legal right' with reference to several
books on jurisprudence. The word obligation' is defined in section 3 of the Specific
Relief Act as "every duty enforcible by law." It implies a right in another person to
which it (the obligation) is co-related. It restricts the freedom of the obliger to definite
acts and forbearances.

56. But an obligation must be legal and not only concerning a moral duty. Hyderabad
Stock Exchange Ltd. v. Ragnath Rathi & Co. (P L D 1%6 S C 639), Kaahavial
Ghellabhai & Co. v. Chunilal and Harakchand & Co. and another (I L R 32 Mad. 478).
One's own right of worship may be a civil right and there is a corresponding obligation

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on others not to interfere with that right but there can be no obligation on the part of
the defendant not to follow the dictates of his conscience and religion in the manner he
likes. Kandasaml Mudall and others v. Subreya Mudall and others (A I R 1941 Rang.
196).

57. It will be evident that under section 9, C. P. C. the Court will have jurisdiction on
the suit of a person whose right to something e.g. property or office, is infringed or at
least a cloud is cast on it by a threatened injury by the defendant. It appears that for this
reason, the Supreme Court did not allow another Anjuman to be impleaded as a party
in Anjuman-eAhmadiya v. D. C., Sargodha (P L D 1966 S C 639), on the ground that it
had no legal interest in the land in dispute. A suit of a civil nature pre-supposes a legal
right In the plaintiff and a corresponding duty on the defendant.

58. It is clear from the plaint that there is no threat to the plaintiffs' own right to use
their mosque nor i3 there any likely threat In regard to their right to performance of
their own prayers. It is merely a suit to stop Y defendants from performing their
religious rites and from calling their place of worship by the name of mosque (Masjid).
For this reason this suit is not competent even under section 9, C. P. C.

59. The suit appears to be based on some supposed right analogous to a right in the
nature of trade mark or copyright or infringement of analogous rights by passing off.
Rights in trade marks or copyrights are matters which are the concern of statutory law.
There is no positive law investing the plaintiffs with any such right to debar the
defendants from freedom of conscience, worship, or from calling their place of
worship by any name they like. As regards passing off I may cite a passage from Law
of Torts by Pollock (14th Edition), page 123):-

"Our law does not in general recognise any exclusive right to the use of a name,
personal or local. I may use a name similar to that which my neighbour uses and that
whether I inherited or found it, or have assumed it of my own motion as long as I do
not use it to pass off my wares or business as being his, which is quite another matter."

The plaintiffs cannot take advantage of the principle of passing off for the above
reason also for the reason that it is applicable only to diminution of financial and
material benefits.

60. Faced with this difficulty the learned counsel for the respondents argued, as they
had done in the learned Courts below that the plaintiffs had such a right under Shariat
Law. This point shall be attended to at a later stage. So far as section 9 is concerned, It
is very clear that it does not deal with anything but the right of a citizen to approach the
Court on defiance by the defendants of his own civil obligations or plaintiffs' civil
right. It does not concern itself with disputes relating purely to religious rites or
ceremonies which involve no question of right to property or an office.

61. The learned counsel for the respondents, however, argued that the mode of
performance of prayer is not a religious rite or ceremony 1 This argument is without
force since the words "religious rites" and B "ceremonies" do extend to religious
practices which include the mode oil worship. It will be clean from Stroud's Judicial

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Dictionary (3rd Edition) that the terms "rite" and "ceremony" have been taken from the
first Prayer Book. In Martin v. Mocknochle (L R 2 & E 130) Sir R. Phillimore said:

"There is no doubt that the terms 'rite' and 'ceremonies' are sometimes used in the sense
contended for by the defendants' i.e. an entire service 'but on the whole, the result of
my examination of the authorities leads me to the conclusion that there is a legal
distinction between write and a 'ceremony'; the former consisting in services expressed
in words the latter in questions or acts preceding, accompanying or following, the
utterance of these words."

In the Law Lexicon by Aiyar, 1940 Edition. 'Ritual' is de5ned as meaning a prescribed
mode or order of conducting a religious service.

Now Salat or Namaz among the Muslims consists of certain physical gestures of
standing, bowing, prostrating and sitting. While performing these gestures the service
is also expressed in words including verses from Holy Qur'an. There can thus be no
doubt that Salat is a 'rite' or 'ceremony'. This appears to be settled by Ch Abdul Ghani v
The Islamic Republic of Pakistan (P L D 1958 Lah. 584), in which actual performance
of Hajj (one out of the four cornerstones of Ibadat the three other being Namaz, fasting
and Zakat) has been held to be a ritual or practice of religion. The entire religious
service among the. Hindus was held to fall within the definition of rites and
ceremonies in Shri Sinha Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer (A I R
1961 S C 1720). In Ramalinga v. Sundar (A I R 1929 Mad. 526), the plaintiff had
prayed for an injunction restraining the priests of a temple from holding the Navarathri
Festival on certain dates. It was held that this was a matter pertaining to ritual and not
within the competence of the civil Court. In Devchand Totaram v. Ghanashyam (A I R
1935 Bom. 361) it was held that the civil Court is not competent to decide whether a
cult is within the Vedic religion or not or that a particular cult is abhorrent to the
feelings of the leva patidar caste as a whole. A refemace has already been made to a
similar dictum repeated in Agha Shorish gashmirl v. The Prorlrce of West Pakistan (P L
D 1969 Lah. 289) where it was observed that no civil suit would be competent for a
declaration that Ahmadis are non-Muslims or for an injunction restraining them from
calling themselves Muslims.

61-A. The learned counsel for the respondents relied upon Managobinda Panda v. Smt.
Paramahanse Paribrajakacharja Sanker Shrl Sachidananda Swami (A I R 1953 Orissa
151), Thiruvenkata Ramanuia v. Venkatacharla (A I R 1947 P C 53) and A 'Nandra' V
Bhikatjl Phadke v. Shamkar Da'ji Cha'rya (1 L R 7 Bom. 323) and argued that the right
to worship or right to participate in public worship is a right of civil nature. This is
undeniable. If the plaintiffs' own right to worship or to worship in a mosque had been
violated, section 9 would come to their rescue and they could file a civil suit. But here
the question is not of right of worship of the plaintiffs but an attack on the right of
worship of the defendants in a particular manner, or at a particular place. It involves
neither an enforcible right of the plaintiff nor enforcible obligations of the defendants.
These authorities are therefore distinguishable. Sh. Ghiae Muhammad who also argued
this point referred to Saifuddin Saheb v. State of Bombay (P L D 1969 Lah. 289). He
argued that preservation of continued existence of a denomination is also a civil right
and continued existence of Islam pre-supposes that the dissidents may be excluded

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from the place of worship of that religious denomination. This case deals with ex-
communication and its consequences and declares ultra vireo under Articles 25 and 26
of the Indian Constitution, a law depriving a religious body of its right to ex-
communicate its members. Sh. Ghias Muhammad wanted to infer from this case that
for maintaining the continued existences of a denomination it is legally justifiable to
exclude the dissidents from the place of worship of that religious denomination. I do
not find any justification for drawing this inference. The authority deals only with the
right to preserve continued existence of a denomination by excommunicating the
dissidents and excluding them from its place of worship. It does not confer any right on
such denomination to interfere with the mode of worship of the ex-communicated
dissident or with the place of worship constructed separately by him. It does not give
any right to the denomination, after passing the order of ex-communication, to have
anything to do with the manner in which the cx-communicated dissident performs
religious rites of worship according to his conscience.

62. The learned counsel argued that where the community is excluded from a group it
is excluded from what is distinctive in that group and referred to Puthota Chinnama v.
The Regional Director of Public Instruction and an. other (A I R 1964 Andh. Pard. 277)
to support this.

63. The facts of this care are that the petitioner was a nun working as woman teacher in
the school run by Roman Catholic Mission. By reason of conduct unbecoming of a
nun, the Bishop in his capacity as the head of the diocess expelled the petitioner from
the sisterhood. The authorities also removed her as a teacher. In defiance of the canon
law, she persisted in wearing the religious habit of a nun after her expulsion. On appeal
of the petitioner to the Educational Authorities against her removal from service she
was re-instated but this re-instatement was made subject to the discipline of the
Convent with regard to the dress. The mother General issued a direction to the
petitioner that she should attend the school wearing a saree and a blouse as a lay
woman teacher. This direction was challenged by Writ Petition. The petition was
dismissed on the ground that the direction not to wear the habit of the nun was not
justiciable and there was nothing in the fundamental rights embodied in Chapter III of
the Indian Constitution where. under such a right is expressed or could be inferred.

64. The case is clearly distinguishable since the ban on dress was imposed by the
Mission School within its premises. There was no bar on the petitioner wearing the
nun's dress outside the school or after resigning from service. For so long as the
petitioner was an employee she was bound to observe faithfully the direction about
uniform or dress of a teacher. The argument is without merit.

65. The reasons for excepting religious rites and ceremonies from the civil Court's
jurisdiction are not far to seek. In Vasudev v. Vamnaji (1), which was a case under
section 11 of Act X of 1877 which corresponds to section 9, C. P. C., Melville, J.
explained the reason for non-interference with religious rites. He said

"The regulation of religious ritual is not within the province of the civil Courts. In
England, no doubt, there are Courts which have power to compel the due performances
of public worship ; but they are Courts specially constituted for the purpose ; and this

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circumstance in itself indicates that there is no such jurisdiction inherent in the

ordinary civil Courts. And even the Courts so specially constituted can only deal with
the ceremonial of the established church, which is the form of worship of the State ;
and they have no power to interfere for the purpose of regulating the rites and usages
peculiar to any dissenting sect or body. In India there is no State Church and no Courts
empowered to deal with questions purely ecclesiastical, whether arising in the
Christian, Hindu, or any other community. It is the policy of the State to protect all
religions, but to interfere with none. It is for those who profess any form of religion to
adopt such ritual as they think fit, and to make and enforce such ruler as may be
necessary to secure its due observance. With such matters the civil Courts have nothing
to do, unless and until they result in an infraction of civil rights."

In the case of Advocate-General of Bombay v. Yousuf All Ebrahim and others Marten,
I (I L R 5 Bom. 80)., said that "the protection of the law in religious matters is confined
to the protecti)n of religious property or a religious office. The Court will not decide
mere question of religious rites or ceremonies, nor will it pronounce on any religious
doctrine unless it is necessary to do so in order to determine rights to property. It is the
policy of the State to protect all religions but to interfere with none. In Mansoorali and
others v. Talyabali Muhammad Ali Dawoodi Bohra and others (A I R 1935 Nag. 156) it
was observed that the right of conscience, i. e. the right of individual members of a
community to hold certain religious beliefs and opinion is of course a religious one and
one that cannot be called in question or adjudicated upon in the civil Court.

66. It is evident from these cases that the principle underlying section 9 in respect of
rites and ceremonies is the fundamental principle of there being no compulsion in
religious affairs. It has thus been unanimously held that it is not the province or duty of
the Court to pronounce on the truth of religious tenets or to regulate religious rites or
ceremonies. V. Ramaliiga Madallar v. E. Sundara Sastrigal and others (A I R 1929
Mad. 526), ,Sri Emberumanar Jeer Swamigal v. Board of Commiss,7oners for Hindu
Religious Endowments (A I R 1936 Mad. 973), Atyanacharlar v. Sadagopachariar (A I
R 1939 Mad. 757), Thiruveng adachariar v. Krishanasami Thathacharlar (A I R 1915
Mad, 877), Devchand Totoram v. Ghanashyam (A I R 1935 Bom. 361), Maine Mallor
v. Islam Ahmanath (I L R 15 Mad. 355), and Sri Tinha Ramanuja Jeer v. Sri Ranga
Ramanuja Jeer (A I R 1961 S C 1720).

67. Not only this, the law recognises the right of religious denominations to full
autonomy except in the case of infringement of justiciable rights of a group or
individual, Cases of ex-communication or exclusion from denomination or caste fall in
this category. Sarfuddin Saleh v. State of Bombay (A I R 1962 S C 853), Hassanali v,
Mansoorall (P L D 1947 P C 223), Ra'ansey Viji an.fi another v. Meghji Harji Janqeall
and others (A I R 1934 Bom. 431), Devchand To'aram Kirange v. Ghanethyam
Sakharam Cbaudhari and others (P L D 1935 Bom. 361), Abdul Razzak Haji Mahomed
v. Adam Haji Usman Noorani and others (A I R 1935 Bom. 367), Appaya and another
v. Padappa (I L R 23 Bom. 122), Naraindas Assanmel and others v. Valabdas Vishandas
and others (A I R 1929 Sind 1).

68. From these authorities it will be clear that the Courts while interpreting section 9,
C. P. C. have drawn a distinction between religious property or religious office on one

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hand and religious rites and ceremonies on the other. I am, therefore, of the view that
the' right to perform the Shier-i-Islami including the manner in which prayer (Namaz)
can be offered are matters relating to religious rites or ceremonies within the meaning
of the explanation to section 9. A suit regarding such matter is competent only if it
involves dispute about right to property or office. I, therefore, agree with the argument
of the learned counsel for the petitioners that the case of the respondents so far as it
pertains to prayer (Namr7z) and A0gan is not covered even by section 9 of the Code of
Civil Procedure and is incompetent.

69. An argument was raised on the basis of section 91 of the Code of Civil Procedure
that if performance of worship by defendants in a place of worship called by them as
Masjid or according to the modes of Muslim prayer, amounts to public nuisance, the
suit will be incompetent unless it is filed after obtaining consent in writing of the
Advocate-General. Only Mr. Muhammad Ismail argued this point on behalf of the
respondents. He relied upon subsection (2) of section 91, C. P. C. which provides that
the provisions of subsection (1) shall not be deemed to limit or otherwise affect any
right of suit which may exist independently of its provisions. He argued that the
section does not control or restrict the provisions of Order 1, rule 8 under which a
person may sue on behalf of others. In support of this proposition he relied upon
Bibruti Nariyan v. Mahadeve Asram (A I R 1940 Pat. 449) and Sheikh Chand and
others v. Cayman (12). He further argued that the acts complained against in the plaint
amount to nuisance and are per se actionable.

70. The arguments of the learned counsel raise the question whether the act with which
the plaintiffs are charged amounts to nuisance or public nuisance. Section 269 of
Pakistan Penal Code reads :

"A person is guilty of public nuisance who does any act or is guilty of an illegal
omission which causes any common injury, danger or annoyance to the public or to the
people in general who dwell or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger, annoyance to persons who may have
occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or
advantage."

This definition has been extended by section 3(4) of the General Clauses Act to other
enactments and will apply to section 91, C. P. C.

71. Nuisance thus presupposes

(1) acts or illegal omissions,

(2) these acts or omissions should cause injury to the public or to the people in general
who dwell or occupy property in the vicinity ; or

(3) these acts or emissions must necessarily cause injury, obstruction, danger,
annoyance to persons who may have occasion to use any public right.

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But every nuisance is not per se actionable. Before it becomes a nuisance the act or
omission must endanger lives, safety, health or comfort of the public or by which the
public are obstructed in the exercise of some common right. (Underhill's Law of Torts,
16th Edition. page 118). The Pakistan Penal Code has specified offences of actionable
nuisance in its sections 269 to 294-B. A Cases governed by these sections are all cases
which endanger life, safety, A health or comfort. These categories of nuisance illustrate
that annoyance in section 268 must be annoyance caused by danger to life, safety,
health or comfort. Same is the concept in English Law. In Walter v. Selfe (21 L J Ch N
S 153) it was explained in the following words by the Vice Chancellor, Knight Bruce :

"The important point next for decision may properly, I conceive, be thus put : Ought
this inconvenience to be considered, in fact, as more than fanciful or as one of mere
delicacy and fastidiousness ; as an inconvenience materially interfering with the
ordinary comfort, physically of human existence, not merely according to elegant or
dainty modes and habits of living ; but according to plain, sober and simple notices
among the English People ?"

It bas, therefore, been held in a number of cases that an act offending the s sentiments
of a particular class or sect is not indictable as a public nuisance Muttumira v. Queen
Empress (I L R 7 Mad. 590), Queen-Empress v. Byramjl Edulji (I L R 12 Bom. 437),
Easa v. Keeme (18 P R 1867 Cf.) Assa Nand v. Hosaln Bakhsh (5), Queen Empress v.
Zaki-ud-Din (I L R 10 All. 41), Muthavva Reddi v. Sudalla Muthan Nadar (5 1 C 902).
In Muttumira v. Queen Empress it was held that;

It is obvious from the language of the Act that it was not intended to apply to acts or
omissions calculated to offend the sentiments of a class. In this country it must often
happen that acts are done by the followers of a creed which must be offensive to the
sentiments of those who follow other creeds. The scope of the provision we are
considering is to protect the public or people in general, as distinguished from the
members of a sect from injury, danger, or annoyance in the neighbourhood of places
where they dwell or occupy property or when they have occasion to use a public right."

This was quoted with approval in Queen Empress v. Zakiuddin ((1887) 10 All. 44).

72. In Queen Empress v. Byramji the accused cut up on his verandah meat that was to
be cooked for a dinner party, and expressed it to the sight of passers by, among whom
were some Jainas, whose temple was closeby. The Jainas complained to the Magistrate
that the accused had made the air offensive and caused nuisance on the ground that he
had done an act by which several persons. being Jainas, were much annoyed, it being a
well-known fact that they had great repugnance to the killing of animals of every sort.
The Bombay High Court set aside the conviction and observed:

"Now it has been held that in order to constitute a nuisance, there must be not merely a
nominal but such a sensible and real damage as a sensible person would find injurious
".

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73. In Shahbaz Khan v. Umrao Purl ((1906) 30 All. 181) the following rule was laid
down :

"Under certain limitations, the slaughter of kine by Mohamedans is not illegal. It is the
legal right of every person to make such use of his swat property as he may think fit,
provided that in so doing he does not cause real injury to others or offend against the
law. even though he may thereby hurt the susceptibilities of others. The right of
Mahomedans to slaughter kine is one to which they are legally entitled irrespective of
custom and it is only when they abuse the rights that its exercise can be interfered
with."

It is clear from these cases that if the feelings of a particular class being repugnant to
the killing of animals is hurt it would be only a sentimental grievance.

74. I may now note certain rulings on the possiblity of nuisance being caused by
construction of places of worship. In Hindu Panchayat of Laki v. The Muhammadan
Community of Laki (A I R 1928 Sind 82) it was held that for the purpose of a
temporary injunction it is a fair question for the Hindu plaintiffs to raise that the use of
the building as a Masjid and the giving of the "Bang" by the Mulla in the vicinity of a
Hindu temple and Hindu places of worship, if no Masjid existed there before, is an
actionable nuisance, which can be prevented by an lujunction. Reliance was placed for
this proposition on Sultan v. De Held ((1851) 89 R R 245 -16 E R 291). In the English
case a residential building adjoining the plaintiffs had been converted into a Roman
Catholic Church and the plaintiffs had been diligent in asserting their right. An
injunction vas granted, so as not to occasion any nuisance, disturbance and annoyance
to the plaintiffs. The other case is Khaji Dodda Khaji Saib and others v. Chigamalla
Nanjappa and others (A I R 1937 Mad. 348). In that case a mosque was erected for the
first time in a Hindu locality and the Court passed an order of injunction restraining the
use of building as mosque after considering the general consequences and interference
with rights of Hindus. It was held that the principle underlying the maxim sicuteri run
ul alienum non laedas (enjoy your own property in such a manner as not to injure that
of another person; (Vide p. 238 Baroom's Legal Maxim, 10th Edition) is one essential
to peace, order and well being of the community and its application has to be
determined with reference to the circumstances of each case and not on mere abstract
considerations. Reference was made to Seahayyangar v Seshayd yongar (I L R 2 Mad.
143) in which it was held that parties are at liberty to build what structure they please
upon their own land and use them for religious worship as they choose. But this was
qualified by the addition, "provided that in the performance of their worship, they do
not cause material annoyance to their neighbours". In Partnasaradi Ayyanger and others
v. Chinnakrishna Ayyanger and others ( I L R 5 Mad. 304) this view was affirmed with
the further additions of the provision that "no public nuisance is caused". It was,
however, held in Khaji Dodda Khaji Saib and others v. C higarnalla Nanjappa and
others (A I R 1937 Mad. 348) that "I am unable to accede to the auggesdon made on
behalf of the respondents that the use of a building as a mosque will ipso facto be a
nuisance on amount to an abnoxious user having regard to the character of neighbour
hood". The other authorities referred to are Janki Prasad v. Karamat Hussain (A I R
1931 All. 674) laying down that a civil Court is not concerned with, mere matters of
sentiments or even danger to the public peace which it is for the Magisterial authority

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to provide against; Muhmnmad Hussain v. Baba Sah (A I R 1926 Mad. 336) holding
that in the absence of evidence to the contrary the Judge cannot raise any presumption
that the proposed structure will be improperly used ; and T. Syed Pitchai Rowther v. K.
Devaji Raw (A I R 1937 Mad. 21) finding on facts that there was nothing in the
evidence to indicate that it would be impossible for both the parties to enjoy their
respective rights. These authorities do not lay down a different rule. The rule said down
is that the Courts can interfere only when the place of worship creates nuisance or
public nuisance. It was, however, clarified in Janki Erasad's case that a civil Court is
not concerned with mere matters of sentiments or even danger to the public peace.
These authorities, therefore, do not help the respondents.

75. Keeping these principles in view, it will be clear that no public nuisance can be
established on allegations made in the plaint. It is true that Muslims may not like the
Ahmadis to call their place of worship by the name by which Muslims' places of
worship are called and may even feel flurried by seeing them offering their prayers in
imitation of the Muslims or in the same manner as the Muslims perform their prayers.
But in the absence of any law barring the right of the Ahmadis to perform their
religious rites or ceremonies in a manner objectd to by the Muslims, such on objection
is only sentimental which cannot cause any material loss or injury to the comfort or
happiness of the plaintiffs or those whom they represent. The general principle of law
which has been recognised with much emphasis even by Shariat is that every one has a
right to follow the religion of his own liking and is at liberty to worship according to
the dictates of his own conscience without being guided or governed In this respect by
persons following a different religion. The mere fact that the Ahmadis also believe in
the Holy Qur'an, Sunnah and the same Fiqah (no doubt subject to certain alterations) is
not a ground to cause to any reasonable man any inconvenience or annoyance bringing
it within the, definition of nuisance under section 268. I am, therefore, of the view that
the acts of the defendants-petitioners do not amount to a nuisance or a public nuisance.
As such section 91, C. P. C. is not attracted.

76. Assuming it to be a nuisance the question is whether it is a public nuisance

attracting the provisions of the above section. This question must be answered in the
affirmative in view of the definition of public nuisance in section 268, P. P. C. If this is
a nuisance it causes, according to the plaint, annoyance to the entire public of Dera
Ghazi Khan. Section 268 makes it a public nuisance if annoyance is caused to the
public or to the people in general who dwell or occupy the property in the vicinity.
Annoyance to these living in the vicinity of the disputed mosque or even in the city of
Dora Ghazi Khan would make it a public nuisance.

77. The learned counsel for the respondents, however, relied upon Sheika Chand v.
Laxman (A I R 1916 Nag. 81) but the facts of that authority are distinguishable. It was
bald in that case that every class or a community has a right to use the public streets for
religious and musical processions, subject to the law against nuisance. Though it was
not a case of obstruction of a public thoroughfare but only of obstruction to exercise of
right of the plaintiff idol to be carried in procession along the public road, it was
clarified that an obstruction of a public thoroughfare is always a public nuisance
attracting the provisions of section 91. `the learned counsel also referred to Bibhutt
Narayan v. Mahadev Asram (A I R 1940 Pat. 449). That case would be of no help. The

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question in that case was whether section 91 overruled or took away the already
existing right of suit under Order 1, rule 8, C. P. C. It was hold that section 91 does not
take away any existing right. "It does confer a new right and in express terms, namely,
the right with the consent of the Advocate-General to sue to the removal of a public
nuisance without proof of special damage. That is a right which could not exist
independently of that section. * * * * * * It is, however, not necessary to resort to the
provisions of section 91 if there is any independent right of suit, for S. 91 takes away
no independent right of suit which may exist, and it does not overrule the provisions of
Order I, r. 8 and take away any right of suit under Order 1, rule 8 even when it is a case
of public nuisance." A I R 1925 Cal. 1233 and A. f. R. 1934 All. 941 were relied upon.
In these cases it was argued that the disputed path on which restriction was complained
against was not a public path but was only a village path. It was further contended that
being a village path the concerned public was not interested in complaining against
obstruction but only the rights of inhabitants of 2 or 3 villages were violated. It was
held that -

"It follows from all this that in the case of suits such as those with which we are
concerned in these appeals, relating to obstructions to village ways, if the plaintiff does
not utilise the special provisions of section 91, or trove special damage, but purports to
sue under Order 1, rule 8, he must plead and show (1) that he sues not on behalf of the
public generally, but on behalf of a limited and clearly defined class with which he has
a common interest and a common right of suits ; (2) he must plead and show that the
pathway in question is not a public highway in the full sense, in which all members of
the public who happen to go to the place have equal interest ; he must show that it is a
way or path of the quasi-public type recognized long ago by Wilson, J. in 15 Cal. 460
(Chunl Lal v. Ramkishan Sahu) in which the class he represents has got special rights
as distinct from those of the public generally."

These principles were, however, held to be inapplicable to the above cases since the
plaintiff had not claimed to sue on behalf of any limited and defined section of the
public. This case in fact goes against the contention of the learned counsel for the
respondents.

78. The learned counsel for the respondents then argued on the basis of Muhammad
Hasan v. Amba Prasad (A I R 1934 All. 941) that section 91 would not be attracted in
the present case since special damage to the plaintiffs must be inferred. Section 91, as
seen above, makes a suit competent after the permission from the Advocate-General
only in cases where the plaintiffs do no~t D incur any special damage. It was observed
in the Allahabad case than firstly section 91(1) was not applicable because the suit was
not brought on behalf of the public of Nounota but is on behalf of one particular
community forming part of it to vindicate their right to take out procession along with
the road in dispute. It was further held that if the right to take such a procession along a
particular route and the defendants' action causes an obstruction with the result that the
processionists are compelled to change the route or are prevented from following the
usual route, thus causing infringement of their special right, that amounts to special
damage.

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79. This authority is clearly distinguishable since firstly it was not a case of removal of
any public nuisance and secondly a right to take procession is a confirmed legal right.
In those circumstances. it was held that special damage could be inferred from the
violation of the right. This observation appears to be obiter in view of the finding that
it was not a case of nuisance to the public.

If the presumption of special damages be raised in case of infringement of special right

exerciseabld by the plaintiffs section 91 may be rendered nugatory since every one can
claim a special right to immunity from danger to health, safety and comfort particularly
when such right is statutorily recognised.

After study I found that this principle appears to have been taken from the common
law. The rule that no action can be maintained by one person against another for
obstruction to a highway without proof of special damage was enforced in British India
as a rule of "equity and good conscience". Adamson v. Arumugam and others (I L R 9
Mad. 463) Ramphal Rai and others v. Raghunandan Prasad (I L R 10 All. 498). This
rule has been statutorily recognised in India by section 91, C. P. C.

Regarding presumption of damages it will be worthwhile quoting the following para.

235, at page 146, Volume 28 of Halsbury's Laws of England (Third Editton)t

"Where an absolute legal right of the plaintiff is infringed he is entitled to nominal

damages even though no actual perceptible damage is proved ; for is such a case the
law presumes damage."

But this principle does not presume any special damage in such cases. 1a The
presumption is in favour of a plaintiff incurring nominal damage which 15 can be
awarded to him in the suit. I find myself unable to accept such a wide rule as laid down
in the Alahabad case. Moreover, in the present case there is no possibility of any
special damage since "the damage need no consist of pecuiary loss, but it must be
material or substantial, that is, it must not be merely sentimental, speculative, or
trifling, or damage that is merely temporary, fleeting or evanescent". (See paragraph
No. 16-- at page 130 of Halsbury's Laws of England). I have already held that the
present case raises question of sentimental annoyance only. Consequently, there is no
question of anyone suffering even ordinary damage.

80. The learned counsel for the petitioners also argued that this suit should have been
stayed in the very beginning under section 10, C. P. C. and consequently the learned
trial Court was not competent to pass the interlocutory order of injunction. This point
does not arise in view of the withdrawal of the earlier suit by the plaintiffs. It is
accordingly repelled.

81. The next objection of the petitioners is that even a suit for permanent Injunction
will not be competent for the relief claimed in the plaint. I have already held that
section 42 of the Specific Relief Act does not cover the suit. It would be possible to
argue that if a suit for perpetual injunction as envisaged in section 54 of the above Act
be competent the prayer for declaration might be considered to be a supererogation.
But section 54 can apply to prevent the breach of an obligation. Am obligation Implies

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a correlated right in the plaintiffs. I have already discussed the theme of connotation of
'right' and `obligation' and have come tar the conclusion that the plaintiffs neither have
any right nor can consequently complain of breach of obligation by the defendants
performing their prayer etc. In these circumstances, I agree with the argument of the
learned counsel for the defendants-petitioners that a suit for injunction would also not
be competent in the circumstance: of this case.

82. The learned counsel for the petitioners also relied upon Order II, rule 2, C. P. C. as
a bar to the present snit but when it was pointed out to them that the causes of action fn
the two suite were different Mr. Aziz Ahmad Bajwa did not press the point.

83. In view of the non-maintainability of the suit under the provisions of section 9, C.
P. C. and section 42 of the Specific Relief Act Mian Sher Alam, learned counsel for the
respondents, came out with an argument about F the repeal of these provisions by
Articles 20 and 260 of the Constitution. P I do not agree with this argument since there
is nothing in these sections which may lead to the conclusion that they cannot stand or
reconciled with the constitutional provisions relied upon by the learned counsel.

84. Mr. Rashid Murtaza Qureshi also appeared to be very conscious of want of
jurisdiction of Courts under section 9, C. P. C. and sections 42 and 54 of the Specific
Relief Act and rightly so. In order to get over this difficulty, he relied upon
Blackstone's Commentary, Halsbury's Volume on Ecclesiastical Law, Changing Law
by Denning and D. W. Fr1CdmAnn's Legal Theory. Blackstone has discussed the
Divine Law as the law which is revealed in the holy scriptures. The learned counsel
argued that Blackstone's Commentaries would show his conviction that there is Hayat-
e-Afaqi and Hayat-e-Anfus and that God is Qadir-e-Mutliq. The first two books were
relied upon to prove the existence of such a law as Divine Law. Denning in the
Changing Law discussed severence of the law, morality or
religion. Friedmann, in his Legal Theory (4th Edition, 1960) at page 432 and onwards
has discussed the power of the Court to grant new remedies.

85. There can no dispute with the proposition that the law to general includes Divine
Law. Such is the faith of all the Muslims who believe in the Holy Qur'an and Sunnah.
The question as to what that law is in respect of the present proceedings and whether it
vests the respondents with a right to file the suit of the present character shall be
considered at a proper stage. I do not, however, agree, being bound by the positive law
as we are, that it is possible to grant to the plaintiffs any remedy when they are not
shown to he possessed of any legal right. So far as the positive law referred to above is
concerned it is not at all helpful to the plaintiffs respondents. As stated above the
question whether the Shariat helps them shall be considered later.

86. Detailed arguments by all the counsel who argued the case on behalf of the
Ahmadis were addressed on the question that the Ahmadis or Qadianis have not been
declared as non-Muslims by the Constitution. Alternatively, it was urged that the
Constitution had at the most declared them as non-Muslims only for the purpose of the
Constitution and the law and this declaration did not amount to denouncing them as
Infidels under Shariet. They argued that the word "law" in Article 260(3) of the
Constitution meant only positive law and as such the Courts cannot go into the

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question whether the respondents had a cause of action under Shariat. Mr. Mujeeb-ur-
Rshman, in addition, argued that the Ahmadis were Muslims within the ambit of
Shariat and consequently they bad as much right to construct the mosque and to offer
their prayers in the manner laid down try Sunnah. In the alternative, he argued that
there was no bar against a non-Muslim even under Shariat to call his place of warship
by the name of mosque or to offer his prayers as laid down by the Holy Qur'an and
Sunnah if such non-Muslim believes in the Holy Book and the traditions of the Holy
Prophet (peace be upon him). He also relied upon Article 20 of the Constitution which
vests every citizen with a fundamental right to profess, practise and propagate his
religion, and similarly vests every religious denomination and every sect thereof to
maintain and manage its religious institutions.

87. The learned counsel for the respondents on the other hand relied upon Article
260(3) as well as Article 106 of the Constitution in support of the proposition that the
Constitution has declared the Qadianis or Ahmadis, whether they belong to Rabwa
Group or Lahori Group, as nonMuslims. They urged that even otherwise there is Ijma
of Muslim Ulemas of all schools of thought about the members of this religious
denomination being non-Muslims. They urged that the Shariat Law has made the
Masjid an exclusive worshipping place of the Muslims and similarly the form of
offering prayers laid down by Sharia including Qayam, Ruku', Sajood and the manner
of calling the Muslims to prayer by Azan, was also provided by Shariat only for the
Muslims. No non-Muslim can either encroach upon his rights or trespass on them by
adopting them to his own use. They further urged that Article 20 is subject to law,
public order and morality. According to their arguments the word "law" in Article 211
as well as in Article 260(3) has not been used in the sense of the positive low but has
been used with a view to include the law of Shariah.

88. After careful consideration I agree with the argument of the learns 0 counsel for
the respondents that the Constitution has unequivocally declared Qadianis or
Ahmadis, to whatever group they belong, as non-Muslims for the purpose of the
Constitution and the law. Sub-Article (3) of Article 260 is in general terms and
proclaims that every body who does not believe in the absolute and uaqualized
finality of the Prophethood of Muhammad (peace be upon him) the Last of
Prophets or c13ims to be a prophet, in any sense of the 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. The only argument of the learned counsel for the petitioners Is
that it declares only those persons as non Muslims 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 Is
based upon the words "or claims to be prophet".

This argument is without merit. The amendment declares not only person who claims
to be a prophet as a non-Muslim but declares all person 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 Misle Isa. They believe in the Holy Prophet

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(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-Nobuwat, 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" covers 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, 1974. So far as the Qadiani groups 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-Muslims by the
Constitution.

89. Emphasis on the use of the word "claims" in the present tense is misconceived for
several reasons. Firstly, the Constitution Second Amendment Act is a declaratory
statute which by its very nature is retrospective in y character. It is stated in Maxwell
on Interpretation of Statute (Tenth Edition a statuts is in its nature a declaratory Act,
the Edition) at page 222 that argument that it must not he construed so as to take away
previous right is not applicable." In Craies on Statute Law (Fifth Edition) at page 354 it
is laid down that where a statute is passed for the purpose of supplying an obvious
omission in a former statute or to explain a former statute "the subsequent statute has
relation back to time when the prior Act was passed". Again at page 3~.5 it is stated
that "where an Act is in its nature declaratory, the presumption against construing it
retrospectively is inapplicable". The I word "claims" can therefore, be read as referring
to the past however near or remote it may be.

90. The second reason is that the intention of the National Assembly whether the word
"claims" includes a past claim can be gathered from the Constitution itself. There is a
clarification in Article 106 that the Qadianis or Ahmadis of both the groups are non-
Muslims. It is admitted that Mirza Ghulam Ahmad laid claim to prophethood in the
beginning of this Century. He died in 1908. And yet his followers have been declared
non-Muslim for his claim to prophethood in the past. The Legislature, therefore,
intended to use the word "claims" to apply to all time past, present and future.

91. If it is assumed that the language of the second part of the definition 'K clause in
Article 26C(3) is not clear, the aid of history of the legislation would be very relevant
to understand the intention of the Legislature. Jeasel, M. R. made the following
observation in Holme v. Guy ((1877) 5 Ch. D 901) :-

"The Court is not to be oblivious . . . . of the history of law and legislation. Although
the Court is not at liberty to construe an Act of Parliament by the motives which
influenced the Legislature, yet when the history of law and legislation tells the Court,
and prior judgments tell this present Court, what the object of the Legislature was, the
Court is to see whether the terms of the section are such as fairly to carry out that
object and no other, and to read the section with a view of finding out what it means,
and not with a view to extending it to something that was not intended."

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Maxwell in the Interpretation of Statutes (Tenth Edition) at pages 21 and 22 has

referred to several cases in which reference to the History was made by the Courts. He
referred to a delebrated judgment in the Alabama arbitration where Cockburn, C. J.,
showed, by a reference to their history, that both the American and English Foreign
Enlistment Acts of the early part of the Nineteenth Century were intended, not to
prevent the sale of armed ships to belligerents, but to prevent American and English
citizens from manning privateers against belligerents. He referred to some other cases
of the same character also. Craies in Statute Law (Fifth Edition) at page 120 states that
"the cause and necessity of the Act may be discovered, firstly, by considering the state
of the law at the time when the Act was passed. In innumerable cases the Courts, with
a view to construing an Act, have considered the existing law and reviewed the history
of legislation upon the subject". He referred to Thomson v. Lord Clanmorrls ((1900) 1
Ch. 718) in which Lord Lindley, M. R. said :-

"In construing any enactment regard must be had not only to the words used but to the
history of the Act and the reasons which led to it being passed. You must look to the
mischief which had to be cured as well as to the cure provided."

He further states at page 121 that :-

"The principle of the admissibility of general history as an aid to interpretation was

fully explained by Lord Halsbury in Read v. Bishop of Lincoln (1892) A C 644. Where
his Lordship pointed out that the meaning of the terms of the Rubric can only be
properly ascertained by being considered in relation to the circumstances existing at
the time it was framed, and that works of authority on ecclesiastical history and
practices might properly be consulted to ascertain those circumstances. The same
circumstances ascertained in a similar way might doubtless be taken into consideration
to ascertain the meaning of an old Act of Parliament."

Craies further justifies the use of "Local history" in "aid interpretation of local Acts
etc." He states

"So, too, in considering the meaning of a local Act or a section in a general Act dealing
with particular local matters, the state of things existing at the time of the passing of
the Act, as showing the circumstances in which it was passed, may properly be
considered, as was done by the Court of Queen's Bench in R. v. Dean of Hereford
(1870) L R 5 Q B 196 (201), in Green v. The Queen (1892) 1 App. Cas. 513, 531) and
Mayor of Manchester v. Lyons (1882) 22 Ch. D. 287). In Herron v. Rarhmines and
Rathgar Improvement Commissioners (1892) A C 498) Lord Hahbury said : 'The
subject-matter with which the Legislature was dealing and the facts existing at the time
with respect to which the Legislature was legislating are legitimate topics to consider
In ascertaining what was the object and purpose of the Legislature in passing the Act' =
and he went on to consider the local facts with relation to which the local Act under
consideration was passed."

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At page 120 Craies referred to the Claim of Viscount Rhondda ((1922) 2 A C 339) in
which Lord Birkenhead referred to the history of the movement for the
enfranchisement of women, and in referring to earlier case of Chorton v. Lings ((1868)
L R 4 C P 374) he expressly stated that he referred to them not for the purpose of
exemplifying the legal view of the status of women, brat as instances of the application
of the doctrines of Stradling v: Morgan ((1850) 1 Plowden 199) i.e. as cases in which
the Courts admitted extraneous circumstances as an aid to interpretation. In R. v.
Bishop of Oxford (4 Q B D 525) Bramwell and Baggallay, L. JJ., allowed a speech of
the Lord Chancellor in the House of Lords to be cited as an authority as to the
construction of a statute. Cockburn, C. J. in S. E. Ry. v. Railway Commissioners
((1880) 5 Q B D 20) observed that "where the meaning of an Act is doubtful, we are, I
thinly, at liberty to recur to the circumstances under which it passed into law as a
means of solving the difficulty:"

92. 1 have already stated, while dealing with the history of the Anti Ahmadia agitation
that the Constitution Second Amendment Act, 1974 was passed on account of the
demand of all shades of Muslim opinion for declaring the Ahmadis of either group as
non-Muslims and consequently a minority. It is clear that the Government and the
Legislature could not withstand this demand and conceded it in the form of this Act.
The Act was passed only with this object in view. The definition clause, however, was
given a wider range to include other claimants to prophethood and their followers. The
Act was passed primarily to declare the Ahmadis as Kafirs. This is the only
interpretation by which the objective of the Parliament can be achieved.

93. The intention of the Parliament is made clear by the amendment of Article 106,
clause (3) of which deals with the representation of minorities to the Legislature. It has
been made clear that "persons of the Qadiani group or the Lahori group (who call
themselves 'Ahmadis') are at par with the Christian, Hindu, Sikh, Buddhist and Parsi
communities or the Scheduled castes in the reservation of seats to the respective
assemblies to ensure their proper representation. There is no possibility of any doubt
lurking in the mind of any person in regard to the clear intention of the Legislature that
.the Ahmadis of both the groups-Qadiani as well as Lahori -were declared as non-
Muslims.

94. The case of the respondents is based upon this Constitutional Amendment by which
the petitioners were declared non-Muslims for the purpose of the Constitution and the
law. Before the interpretation of the word "law" is attended to. I may refer to another
argument of Mr. Mujeebur-Rahman that despite this declaration the Ahmadis are
muslims for purposes other than the Constitution and the law. I pointed out to him
during the arguments several times that this will not be relevant since the respondents'
cape is based merely on the Constitutional Amendment but he repeated this paint so
many times with the result that we had to give him full hearing on the subject.

95. I do not appreciate this destination. The learned counsel would have us believe that
a person can be a non-Muslim for the purpose of the Constitution and the law and a
Muslim for the other purposes. Neither the law or Constitution nor Islamic Shariah
allows a person to remain Kafir for certain purposes and to be converted to Islam
for other purposes. A person either in his capacity as Muslim is a part of the

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Ummah or is outside its pale in his capacity as a Kafir. He cannot claim to be both
a Muslim and a Kafir simultaneously. It is true that Legislature can pass any law
and can declare even a man as a woman or conversely a woman as a man but it is
not possible in the case of Legislature of this State of which the constitutionally
declared religion is Islam (Article 2), and in which there is a constitutional
guarantee that all its existing laws shall be brought to conformity with the
injunctions of Islam as laid down in the Holy Qur'an and Sunnah and no )a-,v shall
be enacted which is repugnant to such injunctions (Article 227). In the face of this
guarantee that no future law shall be repugnant to Islamic injunctions it was not
possible to declare the Ahmadis as non-Muslims for certain purposes and to let
them remain a Muslims for other purposes. This error which would render the
Legislature as an object of ridicule cannot be attributed to them.

96. In my view the words "subject to Constitution and law" have been used only to
emphasise the guarantees given and safeguards granted to non-Muslims. They do not
have the force of recognising the Ahmadis as Muslims for all other purposes. If this
interpretation be not correct, the result would be anomalous. If on some future date the
entire Shariah Law is made applicable to Pakistan the declaration in this case would
make the Ahmadis non-Muslims for all purposes. Surely it is not the intention of the
Legislature to change and enlarge the scope of clause (3) of Article 260 by future
changes in the law. That will amount to making the law override the Constitution ;
although it is the Constitution which being a supreme law of the State has the
advantage of overriding the laws. I, therefore, do not agree with the proposition that
the words "for the purpose of Constitution and the law" had the effect of guaranteeing
to the Ahmadis an Islamic character in matters other than Constitution and the law. Mr.
Mujeeb-urRahman argued at length that the Ahmadis are Muslims. It is not necessary
to go into that question since the plaintiffs' suit is based on the II Amendment to the
Constitution.

97. As stated above it was not seriously contested that the positive law neither vests the
plaintiffs with any legal right in the use of their places of worship by the Qadianis nor
makes the Qadianis subject to any obligation u maintained in the plaint. It was for this
reason that the learned counsel for plaintiffs made the interpretation of the word 'law'
in Articles 260(3), 20, 4 and 8 of the Constitution their pivotal argument. They urged.
as was done by them successfully before the learned Court below, that the word law
includes law of Shariah and is not confined to positive law. The argument on behalf of
the petitioners seeks to restrict the term 'law' in all these provisions to positive law.
Reliance for this contention was placed on behalf of the plaintiffs on firstly Article 2
which declares Islam as the state re4gion, secondly Article ? I which declares the
intention of the State to take steps to enable the Muslims of this Country, individually
and collectively, to order their lives in accordance with the Fundamental Principles and
basic concepts of Islam and to provide facilities whereby they may be enabled to
understand the moaning of life according to the Holy Qur'an and Sunnah and further
promising that the State shall endeavour as respects the Muslims to make the teaching
of Holy Qur'an and Islamiat compulsory to encourage and facilitate the learning of
Arabic language and to secure correct and exact printing and publishing of the Holy
Qur'an, to promote unity and the observance of the Islamic moral standard and to
secure the proper organization of Zakat, Auqaf and mosques ; and thirdly Article

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227;1) that all existing laws shall be brought in conformity with the injunctions of
Islam as laid down in the Holy Qur'an and Sunnah and no law shall be enacted which
is repugnant to such injunctions.

98. From none of these provisions it can be deduced that the word law includes not
only positive "law" but also the Shariat Laws. On the other hand a contrary intention
can be inferred from Articles 31 and 227. Both these Articles are in the nature of
promise and future undertaking to M the nation. Article 227 promises two things. It
says that no law shall henceforth be enacted which is repugnant to injunctions of the
Holy Qur'an and Sunnah and existing laws shall be brought in conformity with such
Injunctions. In order to facilitate the discharge of this function Article 228 provides for
the composition etc., of Council of Islamic Ideology, whose functions are described in
Article 230. Article 229 enables the President, the Governor and the Legislatures to
refer to the Council for advice any question as to whether a proposed law is or is not
repugnant to the injunctions of Islam. This Council has to make recommendation to the
Parliament and the Provincial Legislatures for fulfilling the promise under Article 31,
to advise the 1egislature, the President and the Governor obviously on reference under
Article 229, as to whether a proposed law is or is not repugnant to the Injunctions of
Qur'an ; make recommendations as to the measures for bringing existing law into
conformity with such injunctions and the steps by which such measures should be
brought into effect ; and compile in a suitable form, for the guidance of Parliament and
the Provincial Assemblies such injunctions of Islam as can be given legislative effect.
Sub-Article (4) of Article 230 fixes a time limit of 7 years for final report on the last
two points. It also authorises the Council to submit annual interim report It is then
provided that the Legislature after considering the report shall enact laws in respect
thereof within a period of two years of the final report. The Constitution thus fixes a
time limit for bringing the existing laws in conformity with tae Holy Qur'an and the
Sunnah. The implication is clear that Shariat Law except what is already made
applicable by positive law is not included in N the word law in Articles 4, 8, 20 as well
as Article 260(3). The argument that law means Islamic Law and in case of conflict
between Islamic Law and codified law, the Islamic law prevails, is thus easily refuted
by Articles 227 to 230 of the Constitution.

99. This point is not without authority. In a recent pronouncement of the Supreme
Court in F. B. Ali ,v. State the word 'law' as used in Article 6 of the Constitution 1962
(equivalent of which is Article 8 of the present Constitution) was interpreted, in the
absence of any definition, as meaning positive law, that is to say, a formal
pronouncement of the will of the competent law-giver". It was further observed that
"there is no such condition that a law must in order to qualify as a law also be based on
reason or morality. The Courts cannot strike down a law on any such higher ethical
notions nor can Courts act on the basis of philosophical concepts of law as pointed by
me in the case of Asma Jillani". I have reproduced these observations from the
judgment of Bamoodur Rahman, C. J. with whose judgment the other Judges though
contributing separate rotes on certain points, concurred. Anwar-ul-Haq, j. (as his
Lordship then was) in view of the view taken earlier in Ch. Manzoor Elohi v.
Federation of Pakistan (PLD 1975 SC 66) and Government of West Pakistan v. Begum
Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) of the report was of the
opinion that the term, 'law', as used in this Fundamental Right, must be construed as

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including the judicial principle laid down from time to time by the Superior Courts,
and the accepted forms of legal process and judicial norms obtaining in Pakistan.
These accepted judicial principles, forms of legal process and judicial norms are so
well-established and specific that they cannot be brushed aside as being mere abstract
or vague considerations of ethics and morality, or philosophical concepts of law. They
are not mere theories advanced for the purpose of invalidating completely enacted laws
; on the contrary, they are established rules and concepts which give substance and
meaning to all laws by promoting the ends of a just legal order".

100. Muhammad Gul, J. at page 555 of the report relied upon the following summing
up by the learned Chief Justice in Asma Jillani's case (PLD 1972 SC 139)

"So far as a Judge is concerned, if a definition is necessary, all that he has to see is that
the law which he is called upon to administer is made by a person of authority legally
competent to make laws and the law is capable of being enforced by the legal
machinery. This in my view, brings in the notion both of legitimacy and efficacy."

He observed that "This (observation in Asma Jilani's case) would exclude from the
term 'Law' what are mere theories and legal precepts". In his view the interpretation In
Asma Jilani's case was legally binding on the basis of the rule of stare decisis".

101. But in the view of Yaqub Ali, J. (as his Lordship then was) the observations in
Asma Jillani's case "are confined to 'decrees' and 'behests' of a usurper and not laws
enacted by a Parliament".

102. There are thus cases in which an extended meaning is given to the word 'law' but
this goes only to the extent of interpreting the term as meaning not only 'positive law'
but also judicial principles laid down from time to time by the Superior Courts and the
accepted forms of legal process and judicial norms obtaining in Pakistan. It does not go
to the extent of displacing the codified law by norms of Fiqah or principles or
injunctions of the Holy Qur'an and Sunnah. All the authorities of the Supreme Court,
therefore, go against the contention of the learned counsel for the respondents.

103. It may be noticed that the codified law has itself provided for the applicability of
some provisions of the Shariat Law. Examples of these are furnished by the Punjab
Laws Act, Shariat Act, 1937. West Punjab Muslim Personal Law (Shariat) Application
Act, 1948, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962,
Madras Civil Courts Act III of 1873 (section 16), Oudh Laws Act XVI(I of 1976, N.-
W. Frontier Law and Justice Regulation VII of 1901& Central Provinces Laws Act XX
of 1875.

104. There is a second category of rules of Muhammadan Law which have been
applied to the Indian SO-continent. They are rules which are applied to Muhammadans
as a matter of justice, equity and good conscience. An illustration of the applicability of
this rule is the application by the High Courts of Allahabad and Bombay of the rules of
the Muhammadan Law of pre-emption. In the Punjab Laws Act this is statutorily
provided in section 6. While section 5 provides for applying Muhammadan Law,

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unless the parties are governed by Custom, in questions regarding succession, special
property of females, betrothal, marriage, divorce, dower, adoption, guardianship,
minority, bastardy, family relations. wills. legacies. gifts, partitions or to any religious
usage or institution ; section 6 provides that

"In cases not otherwise specially provided for the Judge shall decide according to
justice, equity and good conscience"

Mr. Muhammad Ismail therefore argued on the strength of Nizam Khan v. Additional
District Julge (P L D 1976 Lah. 930) and Mst. Hamida Begum v. Mst. Murad Begum
(P L D 1975 S C 624) that the Shariat Law should be followed on the principles of
justice, equity and good conscience. Sh. Ghias Muhammad relied upon, for the same
argument on suction 6 of the Punjab Laws Act. This argument of Sh. Ghias
Muhammad is an alternative argument since primarily he relied upon the applicability
of Muhammadan Law to "religious institutions" (vide section 5 of the Act) since
according to his argument a mosque is a religious institution. He did not rely upon any
case-law in this respect.

105. Reference to section 5 of the Punjab Laws Act for the primary argument of Sh.
Ghias Muhammad is misconceived since the provisions of that section were
incorporated in section 2 of the Muslim Personal Law Shariat Application Act as
amended later. The Act of 1948 repealed section 5 of the Act of 1872. The West
Pakistan Muslim Personal Law (Shariat) Application Act, 1962, repealed the Act of
1948 after making similar provisions in its section 2. The argument can. therefore, be
considered on the language of section 2 of the Act of 1962, which provides that in all
questions relating inter alia to "religious Wages or institutions, including Waqfa, trusts
and trust properties, the rule of decision, subject to the provisions for the time being in
force, shall be the Muslim Personal Law (Shariat) in cases where the parties are
Muslims".

106. Now section 2 of the Act of 1962 attempts at explaining, though partly, the term
'religious usage or institution' as including Waqfs, trusts and trust properties. The
Shariat Act of 1937 did not use the words religious usage or institution. Instead that
Act was made applicable to "trust and trust properties, and Waqf (other than charities
and charitable and religious endowments)". The West Punjab Muslim Personal Law
(Shariat) Application Act, 1948, was made applicable inter alia to "all Questions
regarding charities and charitable institutions and charitable and religious endowment"
which would mean charitable or religious trusts and Waqfs. By a later amendment of
1953, similar language was introduced in the Act of 1948 as in section 5 of the Act of
1872. The Legislature as stated above repealed section 5 of the Punjab Laws Act 1872
and applied Shariat, notwithstanding any custom to the contrary, to all matters
described in section 5 of the Act of 1872. It used the same language with necessary
clarifications in section 2 and eliminated custom from matters described in that section.
As stated above apart from the use of language similar to the language used in section
5 of the Act of 1872 some clarificatory words and phrases were added in section 2 of
Act of 1948. This clarification is at three places. (1) The word 'succession' is followed
by the word 'whether testate or intestate' in brackets, (2) prior to the use of the word
bastardy the word 'legitimacy' has also been used and (3) after the expression religious

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usages or institutions its interpretation is given by addition of words "including Waqfs,

trusts and trust properties". The Act of 1962 repeated the language of section 2 of Act
of 1948. The Act of 1937 applied Shariat to "trust and trust properties and Waqfs" but
excluded from their ambit charities and charitable institutions and religious
endowments. The Act of 1948, as it originally stood, removed this flaw by making the
rule of Shariat applicable inter alia to "questions relating to charities, charitable
institutions and charitable and religious endowments" that is to tray all Waqfs and
religious trusts. The later amendment of Act of 1948 and the Act of 1962 while using
the same language as in the Act of 1872 relating to "religious usages or institutions
clarified that it would include Waqf, trusts and trust properties". From the difference of
language in the Act of 1872 on one hand and the Acts of 1937, 1x48 and 1962 on the
other hand, the intention to use the words religious usages and institutions in the sense
of Waqf (which means a permanent dedication of property for purposes recognised by
Islam as 'religious, pious, charitable') is clear.

107. The words religious institution as explained in section 2 of the Act of 1962 should
be read as observed in Muhammad Mahdi Alt Khan v. Province of East Pakistan (P L
D 1958 Dacca 203) in the sense it is understood among Muslims. In Muhammad
Mahdi Ali Khan's case the expression 'religious institution occurring in Article 18 (b)
of the Constitution of 1956 was held to include Waqf-al-Aulad. A mosque is therefore a
religious institution in the accepted sense of the terms not only for the reason that
religious service is performed in it five times a day but also because it is treate9 to be
permanently dedicated for that religious purpose. To this extent the argument of Mr.
Ghias Muhammad is correct. But it does not help the plaintiffs. respondents in the
present case. Section 2 of Act of 1962 would apply the , Shariat Law to religious
institutions where the parties are Muslims. On the, plain language of the section it
cannot apply where not only one of the party in dispute is non. Muslim but the
institution in suit is under the management and control of that party. It would have
been helpful if the plaintiffs' case had been that the place of worship in dispute is a
mosque in which only they had a right to offer prayer and the Qadianis could not claim
such a right, being non-Muslims. But this is not the plaintiffs' case. The plaintiff deny
the character of this property as a mosque. They affirm that this is a place of worship
of non-Muslims and cannot be called a mosque. In view or this the plaintiffs cannot
ask this Court to apply their law of religious institutions to it. The argument based on
the words religious institutions therefore fails.

108. The other alternative argument of Sh. Ghias Muhammad is based upon section 6
of the Punjab Laws Act. In order to understand the scope of the expression 'justice,
equity and good conscience' in section 6 of that Act, it may be useful to consider the
origin of this terminology as well as its history, so that the extent of its applicability
with reference to the argument raised, maybe discovered. This nomenclature i9 the
growth of equity which although inherent in any system of jurisprudence (See page 5
of Modern Equity by Hanbury, 1V Edition) and also inherent in the royal extraordinary
powers (See page 92 of the History of the English Courts by Carter, 5th Edition)
became a by-word in English jurisprudence on account of the particular circumstances
by which the Chancellor came to exercise a jurisdiction in addition to the jurisdiction
exercised by the common law Courts which were known as the Courts of King's

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Bench, Common Pleas and Exchequer. The three established Courts administered
statute law as welt as the traditional law which came to be known as common law.
Under the common law procedural action had to be commenced by a specific writ and
a suitor who could not find a writ to suit his case or who chose an incorrect writ, could
not be granted any relief. In order to remove this defect the Statute of West Minster,
2nd Edition 1285 was enforced which conferred a limited power upon the Chancery of
framing new writs in Consimili Cast. But this statute failed to bring about the relief to
the above-mentioned suitors in view of the ingrained jealousy of the Common Law
Judges against innovations. The process of litigation remained not only cumbersome
but was also too expensive and beyond the capacity of poor litigants to endure.

109. There were also cases in which the Common Law Courts had already passed
decrees which were alleged to have been obtained by fraud, duress or undue influence.
Sometime the plaintiff was "unable to obtain a remedy in the Common Law Courts,
even when they should have had one for him owing to the strength of the defendant
who would defy the Court or intimidate the jury" (page 3 of Snell's Principles of
Equity, 22nd Edition). In such cases a system developed of petitioning the King-in-
Council to exercise his extraordinary judicial powers which came to be referred to the
Chancellor.

110. The Chancellor who used to be an ecclesiastic, generally a Bishop, and used to be
learned in the Civil and Criminal Law did not feel bound by any particular procedure.
He (as stated by Hanbury in his Modern Equity, page 4) would give or withhold relief,
not according to any precedent, but according to the effect produced on their own
individual psychology by the merits of the particular case before (him) .... according to.
. . . . . (his) innate ideas, prompted by morality, honesty, conscience, or knowledge and
good and evil . . . . . . . . . . . From these abstract virtues springs equity ; conscience and
equity in the medieval period present the appearance of Siamese twins who are well
content not to be separated". As stated in Snell's Principles of Equity, page 3 "His
powers were wide but vague, and coextensive only with the necessity that evoked
them. He exercised his powers on the ground of conscience, an unsatisfactory measure,
which, as Selden pointed out in his Table Talk, "was likely to vary with each
Chancellor, even as his foot."' While acting according to his conscience, the Chancellor
also enforced the rule of conscience against the parties. Unless a plaintiff "could show
an honest cause of action on his own part, he would appeal to the Chancellor in vain.
There is no clearer maxim of equity than

"he who comes to equity must come with clean hands : this is true of equity a1 all
periods" (Modern Equity by Hanbury, p. 5).

111. It is for this reason that as stated by Lord Selbourne in Ewing v. Ors Ewing
((1885) 10 A C 433) "Courts of equity in England are Courts of conscience". In Smith
v. Clay ((1767) 3 Bro. 640), Lord Camden said

"Nothing can call forth this Court into activity but conscience, good faith arid
reasonable diligence ; when these are wanting. the Court is passive and does nothing."

112. Equity is composed of nothing but rules of natural justice.

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While explaining the term "Equity" it is stated in Snell's Principles of Equity (22nd
Edition) :

"In its popular sense it is practically equivalent to natural justice." He defined "Equity"
at page 2 in the following manner :

"Equity then, in its technical sense, may be defined as a portion of natural justice
which, though of such a nature as properly to admit of being judicially enforced, was,
from circumstances hereafter to be noticed, omitted to be enforced by the Common
Law Courts-an omission which was supplied by the Court of Chancery. In short, the
whole distinction between equity and law is not so much a matter of substance or
principle as of form and history."

This discussion furnishes the origin of the three terms "Equity", "Justice" and "'Good
Conscience".

113. The Judicature Acts of 1874 and 1875 abolished the old Common Law Courts and
the Court of Chancery and established a High Court of Justice which is now divided
into several divisions, one of the divisions being called as Chancery. Apart from this
fusion of two parallel jurisdictions the maxims of equity as well as the doctrine of the
Chancery Court are now well settled and made as uniform as doctrines of common
law. This is probably for this reason that Buckley, J. remarked in Re Texrytor
Syndicate (2 Ch. 174) "The Chancery Court also acts upon precedents. This Court is
not a Court of conscience".

114. The contribution of the Courts of Equity in the development of English

Jurisprudence is immense. It added important legal maxims and institutions namely,
the Trust, imp3rtant remedies like the decree for specific performance, injunction and
judicial administration of estates, evolved the doctrines of undue influence, the
distinction between the legal estate and equitable estate, assignability of chases in
action, the doctrine of cancellation or rescission and rectification in the law of contract
and various other detached doctrines. But one of the main objects which will be
elaborated In connection with the discussion on the law in India and Pakistan, was to
find out the remedies and grant reliefs where there were none in the common law writs.
"Equity" evolved doctrines creating equitable rights and equitable interests and also
found out remedies which were extinct so far. But while doing so It did not conflict
with the existing law. It felt itself bound by the rules of common and the statute law.

Hence the maxim "Equity" follows the law (acquitas sequitur legem).

115. This relation between law and equity was summed up by Lord Talbot in Dudley v.
Dudley ((1705) 94 E R 118)

"Now equity is no part of the law, but a moral virtue, which qualifies, moderates and
reforms the vigour, hardness and edge of the law, and is a universal truth ; it does also
assist the law where it is defective and weak in the Constitution and defends the law

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from crafty evasions-Is delusions and new substleties, invented and contrived to evade
and delude the common law, whereby such as have undoubted right are made
remediless and this is the office of equity to support and protect the common law from
shifts and crafty contrivances against the justice of the law. Equity therefore does not
destroy the law, nor create it, bait assists it."

In the words of Maitland ;'Equity" had come not to destroy the law, but to fulfill it. At
another place Maitland considered the relationship between law and equity analogous
to relationship between Code and Supplement, between text and gloss. It cannot,
however, be doubted that it has acted towards relieving the hardship of inflexibility of
Common Law procedure. It has combated the inadequacy of remedy at Common Law
and discovered various reliefs which have proved helpful in administering the real
justice in matters concerning law of property, trusts and contracts. It has never
encroached upon law but one of its important merits lies in supplementing by
discovery of what are known equitable reliefs, or doctrines, equitable rights and
equitable interests. It is to fulfill this object of supplementing the existing law in cases
not otherwise specially provided for, that section 6 of the Punjab Laws Act, 1872
empowers the Judges to "decide according to justice, equity and good conscience".
Equity is thus the repository of residual powers which one finds engrafted in section 6
of the Act of 1872.

116. The first reference to 'equity' and 'good conscience' is to be found in the Charter of
1683 for the East India Company. Cowell writes at page 14 of the History and
Constitution of the Courts and Legislative Authorities in India (6th Edition) a

"And in 1683 Charles 11 granted a further Charter in which the royal will was declared
that a Court of Judicature should be established at such places as the Company might
appoint 3 to consist of one person learned in the Civil Laws and two merchants, all to
be appointed by the Company, and to decide according to equity and good conscience
and according to the laws and customs of merchants by such rules as the Crown should
from time to time direct either by the Great Seal or Privy Seal : failing which directions
by such ways and means as the Judges should think best"

117. By section 13 of the East India Company Act, 1772 (13 Geo. 3 C. 3), the King in
Council was empowered by his Charter to establish a Supreme Court in Bengal.
Cowell writes at page 38 : "In pursuance o! this Act, a Royal Charter, dated March 26,
1774, was granted, under which the Supreme Court of Calcutta was established and
continued to administer justice for the period of eighty eight years". He states on the
same page the Supreme Court was also constituted a Court of Equity as the Court of
Chancery in England".

118. The Supreme Court of Bombay by Letters Patent of 1783 was ordained to be a
Court of Equity. Similar powers were granted to act in law and equity to the Supreme
Court of Madras.

119. In the your 1726 the Charter of George Ist expressly declared that

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"All the common and statute law at the time extant in England shall be introduced into
the Indian presidencies, The Crown by Letters Patent shall establish major Courts at
Madras, Bombay and Fort William.

These Courts were declared to be Courts of record. Thus the major Courts were
administering the principles of equity and good conscience also. It appears from I. L.
R. 35 Mad. 92 that the Mofassal Courts in Madras were also administering the same
principles of equity and good conscience.

120. The Indian High Courts Act, 1861 (24 & 25 Vict C. 104) provided for the
establishment of High Courts of Judicature at Fort William, Bengal and at the
Presidencies of Madras and Bombay in substitution for the existing Supreme Courts. In
the amended Letters Patent of these three Courts, there are clauses dealing with the
applicability of 'equity'. Clause 19 provides that in the exercise of their original civil
jurisdiction of these Court, such law or equity shall be the law and equity which would
have been applied by the said High Court to such case if these Letters Patents had not
issued. Clause 20 deals with the law and equity applicable to local Courts in the
exercise of original civil jurisdiction while clause 21 applies the same law and equity
to the High Court when it exercises appellate jurisdiction. Both these clauses are as
follows :-

"20. And we do further ordain that, with respect to the law or equity and rule of good
conscience to be applied to each case coming before the said High Court of Judicature
at Fort William in Bengal (Madras), (Bombay) in the exercise of its extraordinary
original civil jurisdiction, such law or equity or rule of good conscience shall be the
law or equity or rule of good conscience which would have been applied to such case
by any local Court having jurisdiction therein.

21. And we do further ordain that, with respect to the law or equity and rule of good
conscience to be applied by the said High Court of Judicature at Fort William in
Bengal-(Madras), (Bombay) to each case coming before it in the exercise of its
appellate jurisdiction, such law or equity and rule of good conscience shall be the law
or equity and rule of good conscience which the Court in which the proceedings in
such case were originally instituted ought to have applied to such case."

Thus by clause 19, these High Courts have succeeded to the jurisdiction conferred
upon their predecessors, the Supreme Court, and they exercise the same equitable
jurisdiction which was exercised by the Supreme Court. Hatimbhai Hossanaily v.
Framroz Eduljee Dinshaw (A I R 1927 Bom. 278). Clause 20 authorises the High
Court to apply in the exercise of extraordinary civil jurisdiction such law or equity and
rule of -good conscience which would have bean applied by any Court subordinate to
it. Similarly under clause _l, the High Court has been authorised to apply such law or
equity and rule of good conscience in exercise of a0pellate jurisdiction which tire trial
Court could have applied. Clauses 13 and 14 of the Letters Patent of other High Courts
correspond to clauses 20 and 21 of the Letters Patent of High Courts of Calcutta.
Bombay, and Madras.

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121. These Letters Patent give rise to another question as to which is the equity and
rule of good conscience, which can be applied by the Mofassal Courts. Clauses 13 and
14 of the Letters Patent which refer to the jurisdiction of the Mofassal Courts in the
exercise of equity jurisdiction establish that the power to act on the principle of justice,
equity and good conscience to fill up a vacuum of legislation do not inhere in the
Courts. For this reason the provisions were made in this respect in statutes of different
provinces e.g. Regulations of 1781 and 1793, Madras Regulation 11 of 1802, Bengal
Regulation VII of 1832, Act 1X of 1850, Act XXVI of 1864. Bengal Civil Courts Act,
1871, Bengal Agra Civil Courts Act, 1877, Frontier Law and Justice Regulation VII of
1901, British Baluchistan Civil Justice Regulation 1X of 1896, Punjab Laws Act, 1872.

122. In the Punjab, section 5 of the Punjab Laws Act IV of 1872 provided for decision
of questions regarding succession, special property of females, betrothal, marriage,
divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills,
legacies, gifts, partitions. or any religious usage or institution inter alia according to the
Muhammadan Law "in cases where the parties are Muhammadan". "Except in so far as
such law has been altered or abolished by legislative enactment or is opposed by the
provisions of this Act, or has been modified by any such custom as is above referred
to". Section 6 then provides that "in cases not otherwise provided for, the Judges shall
decide according to justice, equity and good conscience". Section 7 validated the legal
customs and mercantile usages, unless they are contrary to justice, equity or good
conscience, or have before the passing of this Act, been declared to be void by any
competent authority.

123. It will be noticed that contrary to many enactments the residuary provision
commending the decision of a case according to justice, equity and good conscience,
has been enacted in the Punjab Laws Act as a separate section thereby making it clear
that the rule of equity and good conscience shall apply not only to matters of
Muhammadan Law other than those described in section 5, but also matters not
covered by other Statutes.

124. No reply was forthcoming from the bar to my query whether the Courts can by
applying the principles of 'justice', 'equity' and 'good

conscience' discover new rights or whether the function of the equity jurisdiction is
confined only to the discovery of remedies (as distinguished from rights). I found in
Gobind Dayal v. Inayat Ul1ah (ILR 7 Al1. 775), the opinion of Mahmood. J. to the
following effect :

"In my view equity cannot, so to speak, invent rules by which rights are to be
determined 1 it must follow and be guided by rules which are law in the strict sense.
This implied by the maxim acquitas sequitur legem and the "lex" to be followed must
:lean the law of the land in which equity is administered, and rot any foreign law or
any system nor obligatory on the Courts. If it is supposed that equity can, in some
unexplained manner, evolve rules as to gift or pre-emption without any example or
analogy in the rules of law. I do not understand how the maxim is to be applied. No
equity, for instance could invent rules on the subject of inheritance or limitation, and
apply them to the determination of rights."

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125. The question in that case was whether the Muhammadan Law of Pre-emption was
applicable under section 24 of the Bengal Civil Courts Act VI of 1871 which applied
the Muhammadan Law regarding concession, inheritance etc., or "any religious usage
or institution" to Muhammadans and further provided that in cases not provided for by
her former part of the section or by other law for the time being in force, the Court
shall act according to justice, equity and good conscience. Mahmood, J. was of the
opinion that the right of pre-emption could be applied to Muhammadans only for the
reason that it was covered by the expression "religious usage or institution". The other
four Judges did not agree with this and held the Muslim Law of Pre-emption to be
applicable to the territories in which Allahabad High Court had jurisdiction on the
principle of justice, equity arid good conscience As stated above, Mahmood, J. had
held that "equity could not invent rules by which rights are to be determined." By
applying the principle of elimination he had first found that equity could not create
rights in view of the maxim referred to above, which means that equity follows law. He
found it difficult to apply the maxim "if it is supposed that equity can in some
unexplained manner, evolve rules as to gift or pre-emption without any example or
analogy in the rules of law."

126. In Shams-ur-Nisa v. Zohra Blbi ((1874) 2 N W P H C R), a majority of the Full

Bench of the High Court held the Muhammadan Law of gift to be applicable to
Muhammadans on the principle of equity envisaged in the section. Again in Chundo v.
Hakim slam-ud-Din ((1874) 28 N W P H C R), the majority of the Full Bench had the
law of pre-emption applicable to Muhammadans on the same principles. In both these
cages. Spankie, J. was of the view that it was not necessary to invoke the principle of
equity or good conscience since the law of gift and preemption under the
Muhammadan Law was applicable to Muslims as a "religious usage or institution". It
will be noticed that in all these cases, the majority of the Full Bench, applied legal
rights under Muhammadan Law to Muslims on the principle of justice, eq!4ity and
good conscience and did not agree with the arguments that the matters pertaining to
pre-emption or gift were part of a religious usage or institution. The view of the
majority of the Bull Bench is supported by the language of section 24 of the Bengal
Courts Act, 1871, which warranted invocation of the equity jurisdiction of the Court,
once it was held that the rights referred to in the section, were not covered by the
earlier part of the section. The first part of the section dealt Inter alia with legal rights
under Muhammadan Law e.g. right to succession or inheritance. The second part
which is residuary in character arid which makes it incumbent upon the Court to act
according to justice, equity and good conscience in cases not provided for, must
necessarily include inter alts cases of rights which are creation of Muhammadan Law.
6n this language it is hardly necessary to consider the limits of equity jurisdiction in
England. If the positive law says that the Courts have authority to give effect to rights
inter alia under the Muhammadan Law which are not provided for, it is not possible to
argue otherwise on the basis of the maxim "equity follows the law." As seen above,
Mahmood, J., assumed that rules of inheritance of Muhammadan Law which were in
the nature of rights were incapable of being applied to Muhammadens on the principle
of justice, equity and good conscience. This assumption with utmost respect is not
correct. If the' Bengal Civil Courts Act in its section 24 had not applied Muhammadan
Law to cases of succession among Muhammadans and there had been no other positive

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law to deal with the same subject, I do not see any reason why the rule of
Muhammadan Law of succession could not be applied to Muhammadans as a rule of
justice, equity and good conscience. True maxim 'equity follows the law' is not so
extensive as to prohibit the Courts from creating rules for determination of rights". The
scope of this maxim may be explained is the words of Story :

"Where a rule either of the common or the statute law, is direct, and governs the case
with all its circumstances or the particular point, a Court of equity is as much bound by
it a9 a Court of law, and can as little justify a departure from it."

127. It has already been noticed that one of the most important contributions of 'equity'
is in the field of trust. A trust is an obligation annexed to the ownership of property
and arising out of the confidence reposed and accepted by the owner or declared
and accepted by him for the benefit of another or of another and the owner. I have
taken a part of the definition from section 3 of the Indian Trust Act which itself is
based upon the English Law of Trust. The law in England recognised only the legal
estate as vested in the trustee. The legal owner of the property (trustee) was held to
hold the property for the benefit of the equitable owner (beneficiary). But equity
recognised a right inhering in the beneficiary as an equitable right or interest. Prior
to this exposition by Equity Courts the beneficiary had no right to follow the trust
fund. Thus 'equity' stated with the creation of a right or interest which was
separately known as equitable right or interest or an equitable estate. The rule-
making cl-loses in action assignable or making an agreement to sell Immovable
property as specifically performable are two other examples of creation of lights. It
is unnecessary to add examples of equitable interests and obligations. The Specific
Relief Act, the Transfer of Property Act and Trust Acts are replete with such
examples. These Acts have mostly given effect to equitable principles, and inter
alia deal with equitable rights or interests. Books on 'equity' dual in detail with
what i3 known as equitable rights or interests or equitable estates end distinguish
such rights, interests or estates from the legal right, interest of legal estate. These
examplas prova beyond any shadow of doubt that one cat the functions of equity is
to find out ruler to determine rights not provided for in the statute or common law
which R may be necessary for doing justice and it is on this basis that most of the
authorities have applied principles of different sections of the Transfer of Property
Act to the Punjab, although that Act is not in force in this Province.

128. There are some cases e.g. Waghela Rajsanji v. Masluddin ((1887) 11 Bom. 551),
and Khan Bahadur Mehrban Khan v. Makhna and others (A I R 1930 P C 142), in
which it was held that where there is a direction to decide by equity and good
conscience, such a direction should generally be interpratt:d to mean that the rules of
English Law, if found applicable to Indian society and circumstances, should be
applied. On this basis the principle of English Law was applied by the Privy Council in
Yarden Seth Sam v. Luckpathy Royjee Lallah and others (9MIA307), Maharaja of
feypore v. Rukmani Pattamahdevi (A IR1919PC 1). 1n a Full Bench case of the
Calcutta High Court reported as Krtpa Sindhu Mukherjee v. Annada Sundari Debi (I L
R : 35 Cal. 34), it was held

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"The words 'justice', 'equity' and 'good conscience' with reference to India practically
mean principles and rules of English Law if found applicable to Indian circumstances
and society."

Similar view was taken in Bireswar Ghosh v. Panchocourl Gosh and others (1). A note
of dissent was, however, struck in Moolchand and another v. P. Alwar Cheety (2), by
Sadasive Aiyar, J. who observed after referring to some authorities that if it "was
intended to lay down that the High Court on its original side is bound to decide
questions like the one in controversy on the basis of English precedents and English
Common law procedure, even though the following of such precedents and procedure
may be against "justice and right" or the "justice, equity and good conscience" which
are the true ,guides to be followed according to the Charter Acts, I respectfully differ
from the observation in that passage". In Rallt Brothers of Karachi v. Punjab National
Bank Ltd. and others (A I R 1930 Lah. 920), the Privy Council authorities in Waghela
Rajsanji v. Sheikh Masluddin and others (I L R 11 Bom. 551), were explained in the
following manner :

"In the absence of any enactment dealing with mortgages by deposit of title-deeds,
Courts in this Province have to decide according to 'justice, equity and good
conscience' as lard down in section 6, Punjab Laws Act, not according to English Law.
English Law may, no doubt, he very useful for guidance in some cases but, as pointed
out by their Lordships of the Privy Council in Waghela v. Musludin (I L R 11 Bona.
551), it can properly be invoked only when it is found applicable to the circumstances
of this country."

It is true that where there was no statute in any part of India on a particular matter or
the statute was not exhaustive or was silent on any matter the case was decided
according to the rule of English Law Watson & Company v. Ramchand Dutt (I L R 18
Cal. 10), Kripa Sindhu Mukherjee v. Annada Sundari Debt (I L R 35 Cal. 34),

Waghela Rajsanji v. Shekh Masludin and others (I L R 11 Bom. 551), L. O. Clarke v.

grojendra Kishore Roy Chowdhery (I L R 36 Cal. 433), Baluser Veeraraghavaiu v.
Boppana Mamikyam anti others (I L R 35 Mad. 92), Varden Seth Sam v. Luckpathy
Royjee Lallah etc. (9 M I A 307), Maharaja o! Jeypore v. Rukmani Pattamahdevi (AIR
1919 P C 1), Keshrimal v. Mt. Kadhai (A I R 1920 Nag. 144), Christachartu v.
Karibasayya (I L R 11 Mad. 399). Mayashankar Mulshankar v Burjorf Nerwand
Batlivaia (A I R 1926 Bom. 31), Venkatalingama v. Parthaaarthy (A I R 1942 Mad.
558), Mst. Salnatan v. Dkanpat Gcdarila (A I R 1933 All 70), Kali bn Daa v. Jon Bibi
aria another (A I R 1929 All. 12), Varadarajulu Chetty v. Dhanalak,hmi Ammal (A I R
1915 Mad. 402) and Chundal Vithaldas v. Fulchand (1 L R 18 Bom. 160), but where
there was statute law, although not applicable to particular territory, its principles were
applied in preference to English Law. Janardan Mahato v. Bhairab Chandra (A I R
1916 Cal. 259) and Gulab Roy v. Mt. Abbas Bandl BIN (A R 1932 P C 158). There are
thus a large number of cases in the Punjab and N.-W. F. 8. In which the principles of
different sections of the Transfer of Property Act were applied. These cases are
mentioned in the Transfer of Property Act by Chitaley. Similarly, Rules of Easement
Act were applied to the Punjab on the same principle.

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129. There are authorities which prove that the principle of Muhammadan Law can be
applied to fill up any legal vacuum on the principle of justice, equity and good
conscience. I have already referred to three cases of the Aliababad High Court In one
of which the Muhammadan Law of Gift (Shamshoon Nissa v. Zohra Bibl) and in the
other the Muhammadan Law of Pte-emption (Chundo v. Hakeern Allemuddin and
Gobind Dayal v. Inayat Ullah) was applied. In Advocate-General of Bombay v. Yousaf
Ali Ebrahim (1), it was held that it is a matter of just-cc and right and also a matter of
justice, equity and good conscience to apply Muhammadan Law to questions raised in
a Muhammadan Community relating a Mubammadan mosque and tomb. The rules of
Islamic Law pertaining to minority and guardianship have been applied on the same
basis. The principle of equity has been made to play an important part in cases of
divergence of opinion among the learned. In Aziz Bano v. Muhammad Ibrahim
Hussain (A I R 1925 All. 720), reference has been made to the following rule :

"When the great expounders of Musalman Law have enunciated divergent doctrines or
expressed different opinion, the Judge administering Musalman Law is to adopt the
one most conformable to equity and the requirements of the time."

Same view was taken in Ants Begum and others v. Muhammad Istafa Mali Khan (114
R 55 All. 743), Khurshid Jan v. Fazal Dad (P L D 1964, Lah. 558). In Hamida Begum
v. Murad Begum (P L D 1975 S C 624), it was held that

"If, . . . . . ., in any given situation, two interpretations are possible, one of which is
conducive to the application of the laws of Islam, then the Courts ought to lean in
favour of its adoption."

The latest case justifying application of Muhammadan Law to Muhammadans in

matters unprovided for is Haji Nizam Khan v. Additio'aal District Judge, Lyallpur and
others (P L D 1976 Lah. 930), in which there is elaborate discussion of this point.

130. It will be amply clear from this discussion that the rule of justice. equity and good
conscience is in the nature of a residuary law to fill up the vacuum created by the non-
existence of positive law on any subject. Having been derived from the English Law,
despite its being given statutory recognition in the Indian Sub-Continent. the Courts in
the initial stages considere3 themselves bound, so far as possible, to apply English Law
and precedents even if the parties were Muslims. But this soon ceased to be an
inflexible rule and it was considered justifiable to draw for guidance on Muhammadan
Law also. Rather the Courts sometimes leaned toward the Muhammadan Law for
invoking rights not recognised in India statutorily.

131. Since 1956 when the first Constitution of Pakistan was enforced the position has
materially changed. In the four successive Constitutions (Constitutions of 1956, 1962,
1572 and 1973) there has been given an undertaking to the nation that no law will be
enacted which is repugnant to the injunctions of Islam and all the existing laws will be
brought in conformity with such injunctions within a fixed period. In view of these
provision repeated in these Constitutions and in view of the declaration in Article 2 of,
Constitution of 1973 that Islam is the State religion it has become necessary for the
Judiciary in Pakistan to apply the principles of Islamic Laws on the principles of

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justice, equity and good conscience in cases not otherwise provided for. This will be in
accordance with the dictum laid down in/ Hamida Begum v Murad Begum (PLD 1975
SC 624), wherein it was held that the rules of Muslim Law on the question of
legitimacy stood revived by the repeal of section 2(l) of the Evidence Act by the
Repealing Act I of 1938. The dictum is as follows :

"While the responsibility for bringing the existing laws in conformity with the
injunctions of Islam, and ensuring that no law shall be enacted which is repugnant to
such injunctions, must rest with the executive and the legislative a organs of the State,
responsibility also devolves on the judiciary to implement the shariat under lying there
provisions of the Constitution. If therefore, in any given situation, two interpretations
are possible. one of which is conducive to the application of the laws of Islam, then the
Courts ought to lean in favour of its adoption."

This dictum can rightly be extended to the application of the rule envisaged i section 6
of the Punjab Laws Act, 1872. What is obligatory to be done by the Constitution in
future by passing of positive laws ought to be done by the Courts in maters cot
provided for by any statutory law whenever section be held applicable.

132. The Islamic Law being Divine in character and being based upon natural justice
will be found generally to be in consonance with justice, equity and good conscience. I
hat a already referred to Snell's Principles of Equity in which it is stated that the system
of equity is founded on natural justice and good conscience. There can be no greater
natural justice than in the Divine Law or the Laws based upon that law. The Divine
Laws are really synonymous with Laws embodying natural justice. They are bared
upon moral values and good conscience. The good conscience under the Mush Law is
not only the conscience of the Qazi but good conscience also of the parties before him.
It is based upon the principle of good treatment to the relatives, to the neighbours, to
she strangers, equality of treatment to all citizens, Muslims and ,non-Muslims alike,
toleration. no compulsion in religion and such various other matters. Even the 'equity'
jurisdiction which sprang up sometime in the 12th Century England was not unknown
in Islam. Mufties Qazies and the other learned spent their lifetimes in discovering new
rules to cope with new situations by resort to Qias. It is possible that in same case these
rules might have beer, imaginary at the time when they were discovered but they were
utiliszed with remarkable good results later. These rules furnhh.go-3d examples of use
of equity.

133. In Khurshid Jan v. Faza1 Dad (PLD 1964 Lah 558), Yaqub Ali, J. (as His
Lordship then was) observed

" Istihsan and Istislah are doctrines of equity, while Istidlal is a branch of Qiyas
applicable to those cases where no analogy is to ire found in the Qur'an, Sunnah and
lima. Equity, in English sense, claims to override the elder jurisprudence of the country
on the strength of an intrinsic ethical superiority. In Roman Law, it was the Law of
Nature (Jus Nature), the part of law which natural reason appoints for all mankind. In
spite o8 the fact that the analogy (Qiyas) clearly points to one course but if the Legist
'considers it better' (Istihsan), he may follow a different course. Under the same
conditions he may choose pre-course 'for the Fake of general benefit to the community'

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(Istihsah). The rule of Istihsan was reduced to definiteness by Imam Abu Hanifa. He
would say 'analogy in the case points to such and such rule but under the circumstances
I hold it for better to rule such and such'. The Principle of Istislah enunciated by Imam
Malik is when a rule would work general injury it was to be set aside even in the face
of valid analogy. It is also called as Musalihul-Mursala Wal-Iatislah and has more valid
basis than the mere preference of a legist. According to Jam-ul.-jawani, Volume IV,
pages 101-102, Imam-ul-Harmain also hold the same view."

Thus doctrines of Istihsan and Istialah have been held to be doctrines of equity.

134. Imam Malik bad such a high opinion of the doctrine of Istihsan that he considered
it as "nine parts of knowledge out of ten."

135. The utilitarian concept embodied in the principle of Masaleh Mursalah which was
discovered by Imam Malik is pure equity since Its object is the discovery of laws (to
meet particular situation) so as to bring about the greatest goods of the Ummah.

136. The discovery of Laws by application of principle of justice, equity and good
conscience is inherent in the Islamic polity as is clear from tradition of Ma'az which
approves of Ijtehad as the surest method, to fill legal vacuum in cases where no
specific rule may be found in the Holy Qur'an or traditions of the Holy Prophet.

137. I am In complete agreement with the argument of the learned y counsel for the
plaintiffs that the Shariah law wherever possible should be applied on principle of
justice and equity in cases where the parties are Muslims in preference to any principle
of English Law or any other law.

138. The question arises whether such a principle can be applied to the Qadianis who
are non-Muslims: Although the Islamic law cannot be applied to the non-Muslims in
general my answer to the above question would be in the affirmative. The reason is
that like Muslims this section of the non-Muslims claims to be bound by the law of
Koran and Sunnah. In such circumstances I have no manner of doubt left that at least
those non-Muslims who profess to be bound by the same law as the Muslims, will also
be H' governed by similar principle of justice, equity and good conscience.
Consequently the Muslim Law shall be applied to them. In view of what has been said
above I agree that if there be any injunction of the Holy Qur'an or the Sunnah
governing any right or obligation pertaining to the subject-matter of the suit, unless
there be some prohibition about the competence of such suit under the positive law the
decision should be according to these injunctions. I may, however, punctuate this
statement with a qualification that the Court is bound to give effect, on this principle,
to the injunctions of Holy Qur'an and the Sunnah, but not to the opinions of others.
Those opinions shall be judged by the Court on the principle of justice and equity since
no Court is bound to follow such opinions.

139. To apply this rule the reliefs in the present case may be divided into two
categories. The first category consists of the relief against permitting the petitioners-
defendants to perform their prayer in the manner it is performed by the Muslims and
from letting them calling Azan. The second category pertains to the name of places of

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worship of the Ahmadis and construction of those places in a manner resembling a

mosque. The first category of reliefs has been shown to be barred by the provisions of
section 9, C. P. C. It has also been shown that the suit as such does not fall within the
ambit of section 42 of the Specific Relief Act which is exhaustive of the relief of
declaration. It has further been shown that no injunction as provided in X the Specific
Relief Act can be granted. In view of these findings which are based on statute law
reference to the principles of justice, equity and good conscience would be
misconceived on the principle that equity follows the law and no equitable doctrine can
override a statutory enactment. Equity can be availed of to supplement the law. Any
reference to section 6 of the Punjab Laws Act would therefore be of no avail to the
respondents. It may be emphasised that section 6 of the Punjab Laws Act opens with
the phrase. "In cases not otherwise specially provided for." It would not, therefore,
apply where some case is specially provided for. There appears to be no merit in this
argument of Sh. Ghias Muhammad.

140: Even on merits, no foundation could be laid by the learned counsel for the
plaintiffs-respondents regarding the existence of any Shariat Law in favour of any right
in favor of the plaintiffs or any obligation suffered by the defendants petitioners
regarding the prayers in the suit. Detailed arguments were addressed but what the
plaintiffs have tried to establish is the: only the prayer places of the Muslims came for
the first time to rye known as Masjid, the institution of Azan for calling the
congregation to the mosque originated from them and the mode of prayer adopted by
them was singular in so far a3 this mode was not followed by any other previous
Umma's. But neither any Qur'anic injunction nor any tradition, nor even any opinion of
Imams was cited in proof of the proposition that no non-Muslim can construct his
place of worship in any manner resembling mosque or call it by the name of Masjid's
or say Azan in it or perform his prayer in it in the same manner as is ordained for the
Muslims. A number of denominations were treated as infidels during the course of
history by the then monarch or Caliph. Bat not a single instance of interference with
the prayer or places of worship of such persons, was quoted. It is ore thing to establish
that all these institutions originated with Islam but it is altogether a different
proposition that Islam made these things so exclusive that no non-Muslim, even though
a believer in the Holy Qur'an or traditions of the Holy Prophet, may utilise them as a
means to his spiritual advancement. I do not mean to say that such a person without
being a Muslim can attain any spiritual benefit by performing their prayer like the
Muslims in similar places of worship. I am merely referring to the belief of those non-
Muslims who assert their belief in the laws and injunctions of the Qur'an and the
Sunnah as a means to the achievement of spiritual advancement, The learned trial
Court as well as the appellate Court referred to a number of verses from the Holy
Qur'an as well as traditions and opinions of the learned but none of them go to the
extent of proving the respondents' case.

141. In order to establish that a Muslim place of worship was called by the Holy
Qur'an by the name of Masjid, reliance was placed upon Surah 22140 which reads as
follows:

"those who have been driven from their homes unjustly only because they said Our
Lord is Allah-For had it not been for Allah's repelling some men by means of others,

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cloisters and churches and oratories and mosques, wherein the name of Allah is oft
mentioned, would assuredly have been pulled down. Verily Allah helpeth one who
helpeth Him. Lo! Allah is Strong, Almighty-"

There Is no contest on the point that in this verse Maajid is the name given to the
places of worship of the Muslims, but does this verse prove the real contention? In
order to prove a prohibition against the construction of mosque by the non-Muslims
verse 9117 (Surah Tauba) was relied upon. It reads

"It is not for the idolaters to tend Allah's sanctuaries bearing witness against themselves
of disbelief. As for such, their works are vain and in the Fire they will abide."

"Idolaters" is translation of the word "Mushrekin". The reference is also made to verse
28 (9:28) by which the idolaters were prohibited from entering Ka'ba. It reads as
follows:

" O ye who believe? The idolaters only are unclean, So let them not come near the
Invoilable Place of Worship after this their year. If ye fear poverty (from the loss of
their merchandise) Allah shall preserve you of His bounty if He will.

Lo l Allah is Knower, Wise."

Regarding verse 17 it was explained by Mr. Muhammad Ismail on the basis of page 87
of Volume II of Ehkamal Qur'an (VT;11r1;.I) by Ibn-eArabi that this amounts to a
prabibition to a Mushrik against both acts I.e. entering the mosque as well as
constructing or repairing it. Verge 28 was also read in the same context as proof of the
prohibition against Mushrekin entering the Ka'aba. The words '" according to the
argument, suggested that non-Muslims were held to be incapable of even constructing
or repairing a mosque. He relied for this purpose upon a note of some authorities
prepared by Malik Ghulam Ali who writes himself as "MUAWAN E KHAS of
Maulana Maudoodi,

142. Both these injunctions ex facie appear to apply to Mushriks I.e. the idolaters.
When the learned counsel wits confronted with this point, Mr. a Muhammad Ismail
argued that the word 'Mushrik' has bean used in the z sense of Kafir ; while Mr. Riaaul
Hassan urged that the Ahmad I are also Mushriks. According to him, 'Shirk' was of
several kind

(1) SHIRK BILZAAT

(2) SHIRK BISSIFAT
(3) SHIRK BILHAQOOQ

He defined 'Shirk Bizzat' as that type of Shirk wherein a person apart from believing in
God also believes in others sharing in the Divinity. Mushrik Bissifat' is that type of
Mushrik who believes in some one else partaking of the attributes of God. 'Mushrik-
bil-Haqooq' was explained by him as an unbeliever who by his acts negates his belief
in the Divinity or in the attributes of God.

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143. The third category was disputed by Mr. Mojeebur Rahman who agreed with the
first two divisions which arc borne out by 10169 and 29:17. In 10:69 it is stated

"They say: Allah bath taken (unto Him) a son-Glorified be He 1 He bath no needs. His
is all that is in the heavens and all that is in the earth. To have no warrant for this. Tell
ye concerning Allah that which ye know not?"

In the other verse (29:17) the reference is to idol worship. It reads:-

"Ye serve instead of Allah only idols, and ye only invent a lie. Lo 1 those whom 3e
serve instead of Allah own no provision for you. So seek your provision from Allah,
and serve Him, and give thanks unto Him, (for) unto Him ye will be brought back."

According to Mr. Riazul Hassan, 21165 deals with the third category of Mushriks. The
opening portion of this verse is

"Yet of mankind are some who take unto themselves (objects of worship which they
set as) rivals to Allah (only)-"

I 'do not agree with this since clearly the reference is try idolatory. He also referred to
9:31 and 42:21. But even these two verses do not deal with a case of person who
believes in the Divinity and attributes of Allah and yet negatives this belief by his
actions. Verse 31 of Chapter IX (Surah Tauba) is about those who "have taken as lords
beside Allah their rabbis and their monks and the Messiah son of Mary". The reference
to the son of Mary makes this verse fall in the category to which verse 10:69 belongs.
Verse 21 of Chapter 42 (Surah Ash-Shura) reads as follows :-

"Or have they partners (of Allah) who have made lawful for them in religion that
which Allah allowed not? And but for a decisive word (gone forth already), it would
have been judged between them. Lot for wrong doers is a painful doom."

This verse refers to nations which were destroyed. These nations primarily were those
who had not only refused to believe in Prophets sent to them but bad scoffed at them
and perpetrated tyrannies on them.

144. Mr. Riazul Hassan also referred to the verses: 4:48, 41:60, 4:116, 4:18, 4:47 to 54
in support of the same argument. Verses 4:48 and 4:116 deal with Idolaters I.e. those
who ascribed partners to Allah. Verse 4:60 and the other verses of Chapter 24
reproduced above deal with hypocrites. Mr. Riazul 13assan explained that he relied
upon these verses for the reason that the word "Shirk" has been used even for
hypocrisy. There appears to be no justification for this conclusion in view of the clear
language of the above-mentioned verses about hypocrites and the reasons for
revelation on verses 9:17 and 9:28 (SURA-E-TOBA ) which may be considered now:

145. It appears (bat both the verses were revealed in connection with the sacred
mosque of Mecca. Ibn-e-Kaseer writes in his commentary of verse 9:17 that the word
"Masajid" (plural) is also read as "Masjid" (singular) which proves that it concerns the

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sacred Mosque (of Mecca). According to Maulana Abul K slam Azad (See Tarjman-ul-
Qur'an) the

injunction in verse 9:17 was a prelude to the prohibition by verse 9128 to the idolaters
to enter Ka'aba after the year 9th Hijri. Maulana Maudoodi subscribes to the same
opinion though he mentions the general nature of this verse. That 9117 pertained to the
sacred Mosque is made further clear by the use of the words "Masjidul Haram" in
verse 9.19. The object of revelation of 9:17 was to make it clear that by the abolition of
idol worship in Ka'aba after the conquest of Mecca and restoration in ft of worship of
Allah the idol worshippers had ceased to do anything with the sacred Mosque and there
was no point in their tending it. Thereafter their entry in these premises was banned by
verse 9:28.

146. There is a difference of opinion amongst Fuqaha on the question whether this ban
extends to mosques in general or is limited to Kaaba. The Medinities and Imam Malit
are in favour of the ban being general and pertaining to entry in all ways. The view of
Imam Shafel and Imam Abu Hanifa is that prohibition is in regard to the sacred
Mosque of Ka'aba and does not extend to other mosques, since during the lifetime of
the Holy Prophet the delegation of Bani Saqif was male to stay in the mo3que at
Medina and Samama was also fastened to a pillar in the same, mosque. Imam Abu
Hanifa is further of the view that 9328 do-Is not completely bin the entry of idol
worshippers in the precincts of the Ka'aba. It only conveys a direction that they would
not be alhawel to enter with pomp an-1 show (Tafseer-i-Haqqant, Tafseer-i-Majidi)
Maulana Maudoodi has further explained the view of Imam Abu Hanifa as restricting
the entry of Mushrriks only far performance of Haj. Umra or their other customary
rite?. It appears from Tarjumanul Quran that the entry of Jews and Christians in the
mosque was banned by Omar bin Abdul Asia. The Hanafi view is, however,
unchanged.

147. In "The Muslim Conduct of Slate" (4th Edition) at page 203, Dr. Muhammad
Hamidullah deals with this que3tion. Ha writes t

"The question of Mecca is a bit complicated. There is a verse in the Qur'an (9:28)
declaring that the polytheisis being impure, thenceforward they should not approach
the holy mosque (of Ka'aba). To me personally, it means that the Ka'bah having been
reserved as the Qiblah of the Muslims, non-Muslims should not be allowed to perform
in the same precincts their idolatrous rites , this and nothing more. Who does not know,
that the Caliph 'Umar used to receive Christian complainants even when he was
delivering the sermon of the Friday service in the mosque of the Ka'bah (Kharaj by
Abu Yusuf). Although the classical theoreticians have gone to the extent of forbidding
any ;And every non-Muslim to live in Mecca,-exception perhaps being made in favour
of ambassadors if the Muslim ruler happens to be at the moment in Mecca,-I Mill
venture to cling to my interpretation. This for the simple reason, that classical practice
is in my support : First there is the permanent possibility that a Muslim inhabitant of
Mecca should own a non-Muslim slave, particularly an Umm-Walad (a slave girl
giving birth to children of her master), and it is unthinkable that the master and the
slave could not live in the same place , secondly, there is a well-known case of the first
century of Hijrah, of a Christian Physician Abu-Diwud 'Abdar-Rahman in Mecca,

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mentioned in Ibn-Sa'd (Tabqat p. 365). He was a Mawla (client) of Jubair-ibn Muti'm,

and practised his profession in a shop on Mount Safa just under the minaret of the
mosque of the Ka'bah and, thirdly, Ibn'al Qaiyam (Ahkam ahl' adh-Dhimmah, MS.
Haiderabad-Deccan, p. 149) records several cases of the time of the Prophet and of his
Companions, apparently in Madinah and Mecca, of Christians buried at their death by
their Muslim children."

In the the Edition he has added the opinion of Sarakhsiy. Paragraph No. 203 of the 4th
Edition has been renumbered in the 6th Edition as paragraph No. 204. It is stated there
that-

"To Sarakssiy, it means that the Ka'bah having been reserved as the Qiblah of the
Muslims, non-Muslims should not be allowed to perform in the same precincts their
idolatrous rites, this and nothing more."

In the note of paragraph No. 204 he cited from SHARAH LASER AL KABIR The
English translation of the quotation is as follows:-

"According to our Hanafi School of law, they will not be debarred from entering the
(mosque of the Ka'bah) as they are not debared from entering any other mosque. In this
respect non-Muslims from among the subjects of the Muslim State and from among
the foreigners coming with safe-conduct ate alike. And the verse of the Quran (which
forbids their entry) is to be interpreted to mean that the non-Muslims should not enter
the mosques of the Ka'bah according to their pre-Islamic Customs)."

147. In Jami-ul-Shawahid Maulana Abut Kalam Azad quoted extensively to prove that
there is no ban on entry of non-Muslims in any other mosque with the permission of
the management. In view of the Hanafi view quoted above nothing turns on the ban on
the entry of all non-Muslims in Mecca imposed by the Saudi Government.

148. The next question is whether there is a bar against the offering B of his prayer by
non-Muslim. This can be answered by quoting a preceden11 B tradition. A deputation
of Najran consisting of 60 persons came to the B Holy Prophet. When time of their
prayer came, they stood and prayed In the mosque (MASJID-E-NABVI) facing
towards East. On objection by the companions the Holy Prophet said "they were to be
left to do so". (The Life of Muhammad (peace be upon him), a Translation of Sirat
Rasool Allah, pages 270-271 ;._&1jJl Part I, page 243; Siratul Nabi by Maulana Shibid
Naumani, Vol. II, p. 483, Zadulma'ad by Hafiz Ibne Qayyam).

149. Hafiz Ibne Qayyam has opined that from this incident no general rule can be
worked out. This opinion may be correct to the extent that no infidel can offer his
prayer in the moo lue without the permission of the management but if the learned
author meant to say that no such Permission can be granted by the Muslims, I would
respectfully beg to differ unless some later tradition and precedent is shown in which
the Holy Prophet might have taken a different attitude. This being a tradition of the
Holy Prophet and there being no circumstances to cut down the generality of its
application I do not understand how this opinion of Hafiz Ibne Qayyam can logically

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stand. My view finds support from Jami-ul-Shawahid by Maulana Abut Kalam page
1678.

150. The argument that construction or repair of mosque by a non. Muslim is

prohibited is based upon the words URDU 2 in verse 90. In his note Malik Ghulam Ali
has cited Imam Abu Bakr Hassas Hanafi, Imam Abut QasIm. Imam Raghib Isfahani,
Imam Muhammad Bsghavi, Allsma Zamakhsharl, Imam Abdul Rahman Ibnul Jauji,
Imam Fakhraddin Razi and Imam Muhammad bin Ibrahim in support of the contention
that the word is verse 9:17 includes Kafirs also. He has

further quoted from Imam Abu Bakar Hassas Hanafi, Imam Abdul Rehman Ibnul Jaujl,
Imam Fakharaddin Razi arid Imam Muhammad bin Ibrahim to support the
Interpretation of the words as being wide enough to include construction and repair of
a mosque.

151. There does not appear to be unanimity on either of these points. In Tafsear
Haqqani, Tafhimul-Qur'an, and Tarjmanul Qur'an only Mushriks have been referred to.
However, this is not material as nothing is likely to turn on the word MUSHIRKEEN
being inclusive of infidels.

152. There is also a divergence of opinion on the Interpretation of the words

MUSHRIKEEN. As stated in Tafsrer Majidi some of the commentators have said that
an infidel cannot be a Mutwalli or Khadim of a mosque 1 others say that the ban is on
the entry; yet others are of the view that even construction or repair is not permitted to
the non-Muslims.

153. Miulana Maudoodi has interpreted the words in the sense that Mushriks are not
suitable to act as Mutawaliis, Mojawars or Khadims. In Tarjman-ul-Qur'an they have
been rendered unsuitable for trusteeship

In Tafseer-i-Majidi is reproduced the opinion of Fuqaha that infidels according to

whose religion the construction of a Mosque is rewarding can be allowed to construct
mosques provided it is not against public policy.

154. The same view is reproduced at page 155 of tire book 'Islam Ka Nizame Masajid'.
It may be noted that this book was relied upon on behalf of the respondents. I have
come across several Fatawas by Maulana Rashid Ahmad Gangohi, Pdaulana Abdul
Hayee (See Fatawa-i-Rashidiya at pages 409 and 416) from which it is clearly
established that there can be no objection to the construction of a mosque by a non-
Muslim and it is permissible to recite one's prayers in those mosques. In fact there are
instances of construction of mosques by Hindu Rajas for their Muslim subjects. Such
instances are referred to in Fatawa of Maulana Abdul Hayee. The argument that non-
Muslims cannot be allowed to construct mosque is contrary to these Fatawa and the
Hanafi view.

155. The next argument of Mr. Riazul Hassan against construction of mosques by non-
Muslims was founded upon verse 107 of Chapter 9 (Surah Tauba) relating to Masjid

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Zarar. Along with this verse should also be read 9:108 and 9:109. All the verses are
reproduced below

"And as for those who chose a place of worship out of opposition and disbelief, and in
order to cause dissent among the believers and as an outpost for those who warred
against Allah and His messenger aforetime, they will surely swear. We purposed
naught save good. Allah betroth witness that they verily are liars." (9:107).

"Never stand (to pray) there. A place of worship which was founded upon duty (to
Allah) from the first day is more worthy that thou should at stand to pray therein,
wherein are men echo love to purify themselves. Allah lovdth the purifiers." (9:108).

"Is he who founded his building upon duty to Allah and his good pleasure better; or he
who founded his building on the brink of a crumbling, overhanging precipice so that it
toppled with him into the fire of hell y Allah gaideth not wrong-doing folk" (9:109)

156. The facts leading to the revelation of this verse (9:107) are that when the Holy
Prophet came as emigrant to Madina, he stayed outside the town in the locality known
as Bani Omer Bin Auf. Some days later he went !n the town and constructed a mosque
there. Another mosque known as Masjid Qaba was constructed by the Muslims at the
place where the Holy Prophet used to perform his prayers before entering the town.
The Holy Prophet visited this mosque almost every week and offered two Raka'ts as
prayer. He described the offering of prayer in Masjld Qaba as an act of piety. Some of
the hypocrites constructed a mosque at the instance of one Abu Aamir, a Christian
monk, who before the migration of the Holy Prophet had a big following in Madina
and its outskirts. After the advent of the Holy Prophet he lost that following. He ran
away from Madina and prevailed upon the Quraish of Mecca to attack Muslims at
Ohad. He participate in all the battles against Muslims, on behalf of the idolaters.
Having failed to achieve his object ho went to Syria and from there wrote a letter to the
hypocrites in which he promised to bring a Roman Army to fight with the Muslims.
He, however, directed them to construct a mosque with certain hostile objects which
have been given by Commentators.

157. According to Tafseer Haqqanl he had advised the hypocrites to construct a

mosque, to gather support and collect arms. Ibn-e-Kaseer has quoted the interpretation
of this verse by Ibn-e-Abbas (as reported by Ali bin Abi Talha) that Abu Amir had
advised the construction of the mosque (i) to collect and keep concealed therein arms
and other war material and

(ff) to make it their asylum, and a place for ambush (off &N-5- Jil 44). The object
explained in Tarjmanul Qur'an is to construct a building where it may be possible-

(1) to organise the hypocrites into a separate but strong party;

(2) to hold meetings for consultation and conspiracy and

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(3) to lodge temporarily the agents and messengers of Abu Aamir in a manner that it
may be difficult to detect their identity.

158. It is further stated that they had settled among themselves that the moment the
Roman armies annihilate the Muslims they would crown Abdulla bin Ubai as their
king.

159. In Tafseer-i-Majidi the main objects attributed to this construction are to conspire
against Islam, to bring about disunity and discord among Muslims and to criticise the
Holy Prophet.

160. Maulana Maudoodi in Tafhimul Qur'an has enumerated the same objects as
described in Tarjmanul Qur'an.

161. All these commentators are unanimous that the main object of constructing the
mosque was not only to cause damage to Islam, to create dissensions or separatist
tendencies amongst Muslims but also to prepare for waging war against the Muslims in
order to annihilate them.

162. It was with these seditions and sacrilegious objects that the mosque known as
Masjid Zarar was constructed. The hypocrites invented an excuse for the Holy Prophet
that they bad constructed the new mosque to relieve Masjid Qaba of over-crowding
and to make it easier for the Muslims particularly the sick and infirm to offer their
prayer in a nearer mosque. They requested the Holy Prophet to offer his prayer in that
mosque so that it may be a source of blessing for them. The Holy Prophet who was
bound for Tabuk at that time, promised to consider this request after his return. After
his return from Tabuk the above verses were revealed disclosing the unholy object of
the hypocrites. The Holy Prophet thereupon directed Malik bin Khaseem etc., to
demolish this building. This order was obeyed and the building was burnt and razed to
the ground.

163. Mr. Riazul Hassan relied upon this incident and verse 107 as an indication of the
intent of the law givers not to allow construction of a mosque by the non-Muslims. He
did not contest the proposition that if all the conditions referred to in this verse were
meant to be fulfilled simultaneously before a mosque was known as Masjid Zarar or
was to be treated as such, it would not apply to the subject-matter of the present suit.
These conditions in the verse are that it must be chosen as a place of worship

(i) out of opposition and disbelief;

(ii) in order to cause dissent among the believers.

(iii) to serve as an outpost for those who warred against Allah and his messenger
aforetime.

But he argued that the between on the one hand and does not mean that all the three
conditions mast concur. Consequently a place of worship is liable to be demolished
even if it is constructed by a Kafir. In this connection he urged that the word 'Zarar' at

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most means that the building may be harmful for the Muslims. Regarding the words he
argued that the word has been used not only in the sense of a war by the use of arms
but also I.e. fight by the arguments. He referred to 2 : 279 where usurers sic "warned of
war from Allah and His messenger" to support this liberal interpretation. The words
hould be interpreted, according to his argument, in a much wider sense as including
apostasy an I criminal conspiracy, and anti-Islamic Propaganda.

164. Mr. Mujeeb-ur-Roman argued that verse 107 deals with belligerents who stayed
away from Tabuk. He urged that does not relate to According to him should be read
with etc. He explained the word as relating to something pact and pertaining to the
object of construction of the mosque. The action taken, according to him, was to avoid
strife. Similarly, he argued that does not mean that the mosque is constructed by Kafirs.
It means that the mosque is used for the purpose of or advancement of Kufr. One of the
points raised by Mr. Mujeeb-ur-Rahman was that the text of the Holy Qur'an does not
order demolition of the building of Masjid Zarar. The only direction in it, as stated in
verse 108, is "never stand (to pray) there". He argued that the dem1tion may have been
done by some over: zealous persons. He referred to by Maulaatt Mufti Muhammad
Shafi which defines Masjid Zarar,

165. At pages 44-45 of this pamphlet Maulana Mufti Muhammad Shaft wrote that
Masjid Zarar, in fact, was a mosque which was constructed by the hypocrites to create
a cleavage in the congregation of Masjid Qaba by attracting some members of the
Ummah to the congregational prayer in this mosque and thus create dissension among
Muslims. The other object was that the hypocrites nay be enabled to criticise and revile
the Prophet in their social gatherings in the mosque. He explained the injunction in 9 :
108 as a direction to the Muslims never to pray in that mosque. He inferred from this
an obligation on the part of the Muslims never to construct a mosque with the object of
creating discord among Muslims, diminishing the size of the congregation in the
already existing mosque or making a show of only wealth or of one's charitable nature.
Such a mosque, accordiog to him, would resemble Masjid Zarar.

166. He quoted from 'Tafseer Kashaf' an order by Haarat Omar not to construct two
mosques in one Mohallah, one of which may cause Zarar to the other by reducing its
congregation.

167. At page 55, Maulana Mufti Muhammad Shafi said that what is known as Masjid
Zarar was not a mosque at all since the intention of the hypocrites was not to construct
a Masjid. Its arm was only to conceal knavery or deception. He, however, added there
that a mosque constructed by a Musalman whatever be the object of its construction
would still be considered to be a mosque. He added an explanation that construction of
a mosque in order to end disputes or for convenience of the members of the
congregation cannot be called Masjid Zarar. This portion was also relied upon.

168. I am not in agreement with the arguments of Mr. Riazul Hassan that "9" (and) can
be read in this verse as ei1- (or). There are two Fatwae of Mufti Muhammad Shafi at
pages 654 and 658 of the compilation Fatawa- i-Darul-Ulum Deoband, Volume IV .

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The query put to him in both the cases vies whether construction of a parallel mosque
constructed on account of difference with the management y of the existing mosque
would not apply to .such new constructed mosque p the appellation "Masjid-i-Zarar"
since its construction would result in diminishing the size of the congregation in the
existing mosque. Mufti Muhammad Shafi ruled against this, inter alia on the ground
that a mosque becomes Masjsd-i-Zarar on fulfilment of four conditions each of which
is necessary to be fulfilled. This is a complete answer to the argument of Mr. Riazul
Hassan.

169. At least one thing is clear. that a Masjid will to Masjid-e-Zer only if Its object i 3
Zarar i.e. causing loss to Muslims. A mosque constructed by a non-Muslim or an
infidel merely for offering prayer in congregation o E like minded people cannot be
said to have been constructed with such an

object and will not be MaEjid Zarar within the meaning of the definition by Maulana
Mufti Muhammad Shaft. It will, therefore, be clear that mere construction of a place of
worship by non-Muslims for themselves will not) on that account turn that place of
worship into a Masjid-e-Zarar.

170, Another point worth nothing is that the Holy Qur'an does not direct the demolition
of the mosque. It only prohibits the Muslims from offering prayer therein. Although I
am not in agreement with the argument of Mr. Mujeeb-ur-Rahman that some
overzealous persons had demolished the mosque at their own initiative implying
thereby that the Holy Prophets

did not direct its demolition. I am of the view that there were circumstances which
amply justified this order.

171. One of the objects of construction of Masjid-e-Zarar was to collect the arms in the
mosque to wage war against the Muslims. It was, tierefore, an act of high treason to
construct the mosque. Moreover, the building was constructed by persons who were
confirmed hypocrites, about whom the Holy Qur'an says that they "believe in Allah
and the Last Day, when they believe not". (2 : 8) "but they perceive not" (2 : 9) "in
their hearts is a disease" (2 : 10), they are "indeed the mischief-makers" (2 : 12) "and
when they fall in with those who believe, they say "We believe ; but when they go
apart to their devils they declare : Lo l We are with you r verily We did but mock" (2 :
14). The building was constructed by mischief-mongers who had put a mask upon their
faces to show that they were Muslims but their real aim was to deceive the Umma. In
those early days when Islam was yet gaining strength a building where such persons
could gather to conspire against the main body of the Muslims and the Government
established by the prophet could not be tolerated. The demolition of the building,
therefore, must have been ordered in order to protect the Muslim Commonwealth from
internal disorder and disintegration. Its object must have been to put an end to these
conspiracies to wage war against the Government. To a mosque constructed with any
other detrimental object only the Qur'anic injunction prohibiting the Muslims from
praying In it will apply and such construction will not entail the penalty of demolition.

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172. It was agreed upon by the learned counsel for the respondents that the hypocrites
were worse then Kafirs and yet it may be noticed that the Holy Prophet had no
objection to performing the opening ceremony of a mosque constructed by them or
offering prayer there until it was revealed to him that this building was a Masjid Zarar
constructed for particular objects. The construction of mosque by the hypocrites by
itself was not considered objectionable. The objection was against the construction of a
building with the object of causing Zarar etc. Its destruction appears to be the result, as
stated above, of its being likely to used for collecting arms to wage war against the
Muslims and for seditious purposes. ,

173. During the arguments, an objection was taken to the construction of a place of
worship by the Qadianis facing the direction of the Ka'beh with a place reserved for the
priest for leading the prayer (Mehrab) having domes, copulas, minarets and spires
(Kingrey). In order to answer this question it is necessary to deal in brief with the
history of the construction of mosques in Islam.

174. The most important mosque Is that of Ka'ba. The neat important mosque is
Masji4-ul Aksa which is the shrine of three great religions, namely, Judaism,
Christianity and Islam. This mosque was the first Qibla of Islam. The first mosque
constructed by the Muslims was Masjid Qaba. It was without copula, niche or
lAinarets. (See "Dictionary of Islam" by Hughes).

175. Then was constructed Masjid Nabvi. This mosque was constructed of unbaked
bricks with pillars of date trees and roof of the branches of date trees and earth plaster.
This is proved from Traditions in Sahih Muslim (translated by Syed Rais Ahmad Jafari
at pages 354 and 355). The pulpit was made of wood (Sahih Muslim, p. 366, Tradition
No. 566). There was no dome on this mosque. The do was constructed in an octagonal
shape much later. (Page 435). There were no balconies or any place reserved for the
person leading the prayer (Mehrab). The Mebrab and Chhaja were constructed by
Omer bin Abdul Aziz. Some persons who visited the mosque after this addition were of
the opinion that tht Mehrab and Chhaja added tlegance to the mosque (Kitab Wafaul
Wafa, Vol. I, page 372). Omer bin Abdul Aziz also constructed for the first time four
minarets-one on each corner. (Kitab Wafah-ul-Wafah page 373). Hughes writes is
"Dictionary of Islam" page 329 that cupola, niche and minarets were added by al-
Walid eighty years after the construction of the Prophet's mosque. It is clear from this
history that the dome, the minarets and terrace, the particular place reserved for the
Imam to lead the prayer and Balconies were additions of much later period. The
mosque constructed by the Holy Prophet was of simplest possible structure, designed
with the object to save the faithful offering his prayer from the sun, rain or cold. Even
its face could not originally be towards Ka'bah because the Qiblah was towards
Masjidul Akse. It was made to face later when the Quy'anic injunction was revealed
directing the Muslims to turn their faces towards Ka'bah. No particular design of the
mosque is, therefore, fixed in Islam. In fact, the mosques vary in their designs
throughout the world.

176. An argument in favour of the respondents may be possible If it is founded on the

possibility of deception. But this is not the case of the plaintiff`s. Moreover, the

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possibility may be only for an unwary and not for g the generality of the public of a
particular locality who must be presumed to know that a particular place of worship is
that of Qadianis and if this difficulty has not arisen from the last several decades, it
cannot arise now after the Qadianis are declared constitutionally as non-Muslims.

177. What is said above is equally applicable to Azan (prayer call). Several suggestions
were made to the Holy Prophet in Madina for devising a I method for calling the
congregation to prayer. The blowing of horns, ~I ringing of bell, lighting of fire were
suggested but they did not meet the approval of the Apostle of Allah. Ultimately, the
method of calling the Muslims to prayer by Alan was approved. There are several
traditions on the excellence of this method of invitation to prayer 1 but it will not be
correct to say that no non-Muslim can be allowed to call Azan. In "Al-Balagh" of
Rajab 30, 1960, page 60, an incident is narrated on a report of Abu Mahzura a
companion of the Holy Prophet. He stated that he (when a boy) along with nine other
companions was going towards Honain. He met in the way the Apostle of Allah who
was returning from the battle of Honain. The Moazzin called Azan. Abu Mahzura
began to cut jokes and imitated in a jovial mood the Azan as called by the Moazzan.
The Holy Apostle directed the boys to be taken to him. The Holy Prophet inquired
from them who was the boy saying Azan In a loud voice. His companions pointed
towards Abu Mahzura. The Holy Prophet detained him and asked him to call Azan
according to his instructions. The Holy Prophet gave him a purse of silver and also
touched hit forehead with his band. Abu Mahzura said that after this whatever disgust
and revulsion be felt towards the Holy Prophet was removed and he developed love
and affection for him.

178. Mr. Mujeeb.ur-Rahman argued that the sequence of these events slows that Abu
Mahzura had not become a convert to Islam by that time. This argument was not
rebutted. It appears to me also that he could cut jokes during those early days of Islam
on Azan and could entertain feeling of disgust and revulsion towards the Holy Prophet
only if he was a non-Muslim at that time. This instance helps the petitioners. No
instance of any prohibition against tee calling of Azan by a non-Muslim was cited.

179. Mr. Mujeeb-ur-Rahman cited from Behr-ur-Ra'iq. The query was whether an
infidel to whichever religion he might belong became a convert to Islam by calling
Azan. After some discussion, it was said that a Zimmi is not converted to Islam unless
it 1s found that he is accustomed to call Azan.

180. Mr. Mujeeb-ur-Rabman wanted to draw an inference from this that since the
Qadianis follow the precept of calling Azan, they ate Muslims. This point is not
relevant. However, one inference is clear that the calling of Azan by Zimmis or non-
Muslims was not prohibited. It is quite possible that as in the case of Abu Mahzura the
calling of Azan by a Zimmi might be considered to be a developmental process
towards his changing his religion and becoming a Muslim.

181. Mr. Muhammad Ismail referred to Behr-ur-Ra'iq, page 264 that only a Muslim
can call Azan ; the Azan of an infidel to whichever religion he may belong is not
correct. This dictum only means that the Muslims should respond only to the call of

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Azan by a Muslim and they should not set up a Kafir for calling Azan in their mosques.
But ibis does not lay down a proposition prohibitory of the non-Muslims to call it.

182. The next objection is against the manner of offering prayer which is the same as
that of the Muilims i.e. comprising of standing errect (Qayam), bowing (Ruku') and
prostrating (Sajood). It was conceded that the objection is only to the offering of prayer
in public including prayer offered in a mosque whether individually or in congregation.
A statement to this effect was made by Mr. Muhammad Ismail, which will be referred
to later. I do not see how a person who can without objection offer his prayer in private
in a particular mode can be stopped from adopting the same mode in public. It appears
to me that the main object of the respondents is only to seek prohibition of construction
and use of Masjid by the Qadianis.

183. The case of Mr. Muhammad Ismail is based upon the tradition from Mishkat-ul-
Maeabib, Volume I, page 126 that Salat intervenes between Kufr and Islam, but this is
a tradition which Mr. Mujeeb-ur-Rahman considers to be favourable to him since
according to him whoever performs SaW is a Muslim. I cannot agree with either of
these arguments. The plain meaning of the tradition is that Salat hinders a person from
going towards Kufr 1 but all the same !t should he Salat of a Muslim. Like the Azan of
a non-Muslim, Salat of a non-Muslim is not Salat in the eyes of a Muslim. This
tradition does not convey any prohibition against the non-Mualims saying Salat if they
so like.

184. The constitutional declaration brings the Qadianis at par with other non-Muslim
minorities to whom are guaranteed inter alia the right to profess, practise and propagate
hi: religious institution. The same are the rights of the Zimmis in an Islamic State. in
Muslim States all the non-Muslim subjects are known by the name of Zimmi. The
word "Zimma" in Arabic language means guarantee and Zimmi is a person whose
rights are guaranteed in an Islamic State. Maulana Maudoodi divides Zimmia in three
groups in his book Qadiani Mas'ala at page 199 ; Firstly those who surrender their
sovereignty by an agreement with the Islamic Government, secondly those who are
conquered by war and thirdly those who are neither conquered nor there is any
agreement between them and the Muslim States. He writes (at page 200) that the
minimum rights of the Zimmis specified by the Shariat areas follows :

"Full liberty of religion, permission to impart religious education, permission to

publish religious literature, freedom subject to law to participate in discussions on
religious topics (), safeguard of their places of worship, personal law, life, honour and
property ; equality with Muslims is civil and criminal laws, nondiscrimination in the
general treatment by the Government of its Zimmi and Muslim subjects, full
opportunity in respect of social matter and business, right to receive assistance from
Bait-ul-Maal in case of need."

185. After reproducing two traditions in which the Holy Prophet prohibited recovery
from the conquered non-Muslims of anything in excess of the protection tax and
threatened that he could himself be a complainant on the Day of Judgment against a
Muslim who tyrannises against a non-Muslim or "diminishes or reduces his rights"

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Maulana Abul A'la Maudoodi writes at page 276 of his book Al-Jibad-i-Fil Islam that it
is not permissible inter altar to interfere in their religion.

186. At page 27 he has reproduced the contract executed by the Holy Prophet in favour
of the Residents of Najran which specifically guarantees religious freedom. Then
follow the contracts to which Hazrat Omar, Khalid bin Walid. Abu Obaida, Habib bin
Muslim, Huzaifa are parties in which there are words guaranteeing the liberty to non-
Muslims to profess their religion and promising not to demolish their places of worship
or interfere with their management. He then summarises the rights of Zimmis from
pages 287 to 298. These are equality of blood price, equality before law, criminal or
civil, non-interference with their places of worship and their right to reconstruct them,
their right to construct new places of worship in localities not inhabited by Muslims,
their right to follow their religion, their immunity from conscription, their liability to
pay tax on commerce in the same manner as is the liability of Muslims, their right to
immunity from payment of jizyah in case they become indigent, their right to receive
in such circumstances allowances from the exchequer. their right to be treated with
kindness and not made to bear intolerable burden in case of recovery of Jizya and
finally right to the enjoyment of their rights except in case of insurrection or rebellion.

187. The rights of non-Muslims in a Muslim State ate in all respects at par with those
of Muslims. They are in fact superior in some respects since all Muslims arc required
even to fight in their defence (Bokhari 56 : 174) ; and the Holy Prophet is reported to
have laid that "their property is like our property and their blood is like our blood".
According to another report the property of the Muahads is not lawful for the Muslims.
In his book 'Islamic Riyasat' Maulana Maudoodi stated that

"Zimmis are of two types. Firstly those who while achieving the guarantee from the
Muslim State entered into a contract with it and secondly those who obtained the
guarantee without such contract. The first type of Zimmis will be governed by the
terms of the contract. So far as the second kind of Zimmis is concerned, it is clearly
implied that we shall safeguard their lives, property and honour In the same manner as
we protect our own lives, property or honour. The price of their blood will be toe same
as the price of the blood of Muslims. They will have perfect liberty to profess and
practise their religion. Their places of worship will be immune. They will have a right
to arrange for their religious education and the Islamic education will not be thrust
upon them."

(page 523)

Again at page 530, in reply to a question from a Hindu whether the Hindus will have a
right to propagate their religion, it was stated that

"Tableegh has many forms. One of those forms is that m religious group Imparts
religious education to its progeny and members of its religion. Such a right will be
afforded in a Muslim State to all Zimmis. The second form is that a religious group
would like to preach through writings and literature the principles of its religion or
explain the differences between his religion and other religions including Islam. This
will also be permitted to the Zimmis, but no Muslim living in an Islamic state will be

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allowed to change his religion. Tire third form is that a group organizes movement the
object of which be to establish its own religious principles in place of Islamic
principles by a charge of prevalent order in the country. Such practice will not be
allowed."

In "TARIKH-E-AFQAR-E-SAYASAT " Abdul Waheed Khan writes at page 181 about

the religious tolerance of Muslim:

"Almost in every ego religious tolerance has been a distinctive feature of the Muslim
State. There are instances when some times religious restrictions on the Muslims were
imposed by the Government and many a time Muslims had to suffer desperately when
they were made to account for their religious beliefs (which may be in variance with
the belief of the monarch). But the history is unable to furnish any example of the
equality of treatment afforded to and the liberty in the matters of religion enjoyed by
non-Muslims as a subject of a Muslim State."

He writes that in Islamic States there was complete religious liberty and members of
different religions used to practise their religion in their own manners (according to
their conscience). It was the duty of the Government to protect their places of worship.
Some instances of oppressions suffered by Zimmis can be traced down to the time of
Mutawaqqil Allah but one reason for it was that at that time non-Muslims had started
conspiring against the established Government, and such conspiracies were held in
their places of worship. It was for this reason that their movements had to be restricted
and their dresses had to be prescribed by the Government. Otherwise Mutawaqqil
Allah personally was absolutely an unorthodox person and was a supporter of religious
tolerance.

He further writes that Abbasi Government went so far in religious tolerance that the
followers of Manni who could not have any shelter in Iran although it was their own
country (home-land) were permitted to propagate their ideas fn Baghdad. Similarly the
learned people of India. Jews and Christian Missionaries used to propagate their
religion in Islamic countries without any restriction. During the Rule of Bannu
Ummayya the non-Muslims were appointed to high offices of the State but during the
period of Binu Abbas a non-Muslim was appointed a Prime Minister. The Prime
Minister of Mohtashim Le. Fazal bin Marwan was a Christian and during his tenure the
entire management of Baitul Hikmat in which the books of different subjects were
translated was in the bands of non-Muslim. The importance obtained by Jibrail family
in the Court of Banu Abbas is a famous historical event.

188. Abdul Rahim in Muhammadan Jurisprudence (reprint 1958) refers a1 page 251 to
a tradition of the Holy Prophet from Raddul Mukhtar, Volume III, page 319-20 'Leave
alone the non-Muslims and whatever they believe in". It is on this principle that
according to him Shafe'i verdict is that Muhammadan Law will abstain from
interfering with a non-Muslim drinking alcohol while "in Abu Haneefa's opinion, . . . . .
the law will also uphold the sale of wine by a non-Muslim, and will hold a person who
destroys it liable to damage. Similarly. according to him the law will not interfere with
a Magian subject of the Muslim State marrying a person within the prohibited degrees

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of relationship as reckoned in Islam, and the Court will, if called by the wife, pass a
decree against him for her maintenance".

Dealing with non-Muslim subjects of a Muslim State Dr. Muhammad Hamid Ullah in
'Muslim Conduct of State' writes

"Muslim 19w has maintained a considerable distinction between Muslim and non-
Muslim subjects. In many respects the latter are better off. They are exempt from the
surplus property tax (Zakat) which all the Muslims, male or female, young or old, pay
every year at the rate of 2 % on their savings, above the minimum of 200 Dtrhams or
about 2-10). They are also exempt from conscription, whereas all Muslims are subject
to compulsory military service. They enjoy a sort of autonomy 1 their cases are
adjudicated by their co-religionists in accordance with their personal law. Their life and
property is protected by the Muslim State even as those of the Muslim subjects." (S.
200)

In section 502 he reproduces the reply of Caliph Omar to a reference by Abu Ubaidah
about law to distribute lands and other spoils of War:

"Abu Ubaidah wrote informing Umar of the defeat of the non-Muslims, of the spoils
which God had given the Muslims, of the terms of peace which the people of the
conquered countries had offered, and of the request of the Muslims to distribute among
them as war-booty the cities and its inhabitants and lands with their trees and
cultivation, adding that he bad refused to do so until he had written to him and asked
for his opinion.

Umar replied : Read with you mentioned of the spoils which God has given you and
the terms on which you have made peace with the people of towns and cities. I
consulted then the companions of the Prophet, who differed among themselves. My
opinion follows the book of God who has said : (Then are reproduced verses 59 : 6 to
10 and 9 : 29).

As soon as you have taken protection-tax from them, you have no way and no recourse
against them. Tell me, if we capture their people and distribute them, what will remain
for the Muslims who came after us? By God they will not find anybody to talk to nor
anything to take advantage of. On the other hand (if we do not enslave the vanquished
people) they will provide subsistence for the Muslims as long as they live 1 and when
we die and also they, our sons will eat of their sons so long as they live. They are the
slaves of all the followers of the religion of Islam so long as the religion of Islam
triumphs.

Therefore impose upon them the protection-tax and do not enslave them, and prevent
the Muslims from oppressing them and doing them harm and appropriating their
belongings except in the rightful way, and execute to the full the terms of peace that
you have given them "

According to Sahib Muslim (V. 139-42) the Holy Prophet instructed his Commanders
to offer three alternatives to the enemy. The first was to embrace Islam, the third one

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was to fight. The second one which is important. was to pay Jizayah. "If they accept,
then agree to it and withhold Thyself from them:'

Verse 29 of Chapter 9 quoted in the despatch of Hezrat Umar allows the Muslims to
fight the unbelievers only "until they pay the protection tax". Once they agree to pay
such a tax the conquerors have no recourse against them. This is how Hazrat Umar
interpreted this verse. He prohibited them from being enslaved or oppressed and their
property from being forfeited or appropriated by the conquerors.

Dr. Hamidullab writes while discussing rights of "Zimmis" in section 672 of his book :

"Non-Muslim subjects of the Islamic State are called Dhimmis. The 'Dhimmification'
is according to Muslim Jurists, a regular bilateral contract between the intending non-
Muslim subjects and the Muslim Community. If the Dhimmi owns loyal allegiance and
pays the protection tax, called Jizyah, he gets the freedom of residence, freedom of
conscience and protection of life, property and honour."

Abu Yusuf expressly says (in Kharaj, page 73) that polytheists, associators,
worshippers of fire or stone, believers in scriptures and all the other categories of non-
Muslims may be accepted as protected citizens of the Muslim State. (See section 669
of Muslim Conduct of State by Dr. Hamidullah).

189. It is not difficult to infer from these authorities that Islam leaves non-Muslims
free to profess and practise their religion and enjoy complete autonomy in regard to
their religious tenets and institutions. If this is the liberty guaranteed to the conquered
people there is no reason why worse treatment may be meted to the non-Muslim
minorities living in the State. I have not come across a single instance in the Islamic
history when the non-Muslim subjects of non-Muslim conquered in war have been
subjected to religious intolerance or their freedom to practise their religions has ever
been curtailed or interfered with. I asked the learned counsel for the respondents-
defendants to show me a single instance where any sect calling itself within the fold of
Islam but declared here by the Government was ever prohibited from performing their
prayers in the manner as provided by the Sunnah of the Holy Prophet in their mosques
or from calling Azan but no such instance from the Islamic history could be quoted.
Nor indeed is it possible to lay bands on such an instance since the Muslims have
always been known for their tolerance of the religion of non-Muslims,
190. This could not be otherwise since the religious liberty flows from specific
injunctions of the Holy Qur'an t

"2.256. There is no compulsion in religion. The right direction is henceforth distinct

from error. And he who rejecteth false deities and believeth in Allah hath grasped a
firm handhold which will never break. Allah is Hearer, Knower."

Again in 109:6 AL-KAFIROON it is stated

"Unto you your religion, and unto me my religion."

In 19 :100 it is stated that

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"And if thy Lord willed, all who are in the earth would have believed together. Wouldst
thou (Muhammad) compel men until they are believers ?

Again in 26:3 and 26:4 it is stated :

"It may be that thou tormentest thyself (O Muhammad) because they believe not."
(26:3)

"If we will, we can send down on them from the sky a portent so that their necks would
remain bowed before it." (26 : 4)

What else could be said in the Holy Qar'an to provide for tolerance in matters of
religion and to grant liberty of conscience?

The Holy Qur'an also dealt with the protection afforded by Allah to the places of
worship of others. It is stated in 22:40 :

"Those who have been driven from their homes unjustly only because they said: Our
Lord is Allah-For had it not been for Allah's repelling some men by means of others,
cloisters and churches and oratories and mosques, wherein the name of Allah is oft
mentioned, would assuredly have been pulled down. Verily Allah helpeth one who
helpeth Him . . . . ."

It is stated in 21 : 14

"And who doth greater wrong then he who forbiddesh the approach to the sanctuaries
of Allah lest His name should be mentioned therein, and striveth for their ruin? As for
such, it was never meant that they should enter them except in fear. Theirs in the world
is ignominy and theirs in the Hereafter is an awful doom:"

'Sanctuaries' is the translation of the word 'Masajid'. There is some difference of view
in this interpretation. According to lbn Kaseer there are two views about the reason for
this revelation. One view is that reference in this verse is to Christians who used to
throw refuse in the mosque of Bait-ul-Muqaddas and thus stop people from offering
Namaa in it. The second view is that reference is to the ban imposed by the

Idol worshippers of Mecca on the entry of the Holy Prophet in the Holy Ka'aba in the
year of treaty of Hudaibiya although this was a place of asylum even for murderer of
one's father or brother. The first view is that of Ibn Jair while the second one is
approved by Ibn Abbas. Ibn Kaseer relies upon the second view.

Maulana Abul Kalam Az,sd in Tarjuman.ul-Qur'an has interpreted the word 'Masajad
Ullab' as meaning places of worship of Allah. The explanation offered by him in the
margin proves that he attributed this revelation to the ban imposed by members of one
seal on the entry in their sanctuaries or places of worship of members of another sect of

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the same religion and to the will of one sect to demolish and render uninhabitable
places of worship of another sect.

Maulana Ashraf Ali in his Commentary of the Holy Qur'an has not only subscribed to
the two views mentioned by Ibn Kaseer but also refers in addition to the propagation
by the Jews of their objection to the change of Qibla from Baitul Maqaddas to Ka'aba
with a view to create doubts in the minds of the believers in the truthfulness of their
religion and to render the mosques of Medina barren or empty. According to him the
verse refers to all the mosques in Jerusalem, Medina and Mecca as well as all other
mosques in which attempt is made to render them inhabitable.

Maulana Abdul Majid Daryabadi who follows closely the opinion of Maulana Ashraf
Ali has applied the Description 'Masjid Ullah' to all mosques irrespective of the time
factor. Interpreting the words 'As for such, it was never meant that they should enter
them except in fear' he says that non-Muslims can be allowed to enter mosques only on
condition that he be a subject of the Muslim Government and his entry is in obedience
and not in mischief.

Maulaua Abul A'la Maudoodi has translated the words 'Masajid Ullah' in Tafhim-ul-
Qur'an as denoting IBADAT GAH ie. a place of worship. This view is similar to the
view held by Muhammad Marmaduke Pickthall in the Glorious Koran and Maulana
Abul Kalam Azad.

It, therefore, appears that the word 'Masajid' has been used in this verse in the sense of
place of worship of Allah. Whatever may be the ground of revelation as stated by Ibn
Kaseeer the word 'Masajid' according to some opinion appears to pertain to all places
of worship (where Allah is worshipped) whether before the advent of Islam or after,
and Allah has condemned such acts which bar the entry of worshippers in those places.

191. From tolerance the shift to justice is easy. The Holy Qur'an in 4:135 emphasises
the necessity of equal justice between all, regardless of ties of blood, friendship or
religion. It says

"O ye who believe l Be ye staunch injustice, witnesses for Allah, even though it be
against yourselves or (your) parents or (your) kindred, whether (the case be of) a rich
man or a poor man, for Allah is nearer unto both (than ye are). So follow not passion
lest ye lapse (from truth) and if ye lapse or fall away, then Lo ! Allah is ever informed
of what ye do."

192. Injustice to a non-Muslim is contrary to the dictates and injunctions of the Koran.
It is an obligation imposed upon not only the Muslim State but also all Muslims
indirectly. In 518 need for acting justly is stressed in the following words :

"O ye who believe ! Be steadfast witnesses for Allah in equity, and let not hatred of any
people seduce you that ya deal not justly. Deal justly, that is nearer to your duty.
Observe your duty to Allah. Lo ! Allah is informed of what ye do."

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192: A. The Qadianis or Ahmadis are declared non-Muslims because of their disbelief
in the Finality of Prophethood of Muhammad (peace be upon him). The two other
points of difference between them and the orthodox Muslims are the interpretation of
verses about the Ascension of Jesus to the heavens or his death and " JEHAD BIL
SAIF". Except for some other minor differences the Qadianis do believe in the mission
of Prophet Muhammad (peace be upon him), and the Holy Qur'an and traditions. In
this view they call their places of worship as Masjid, they perform prayers (Namaz) in
the manner ordained for the adherents of Qur'an and call their congregation to prayer
by shouting Azan. The prayer in the plaint that they may be barred from constructing
their mosques as facing Ka'aba or by imitating the construction of Muslim mosques or
calling Azan or offering their prayer in the manner of Muslims and (performing)
(prostration) RAKU--.. and Teshhad will amount to interfering with their religion,
which Islam, the religion of tolerance, does not allow. On the other hand Islam leaves
the non-Muslims free to profess and practise their religion

193. The Constitutional guarantee in Article 20 of the Constitution is to be interpreted

in this light. In my view, the fundamental rights should be interpreted as far as possible
in the light of injunctions of the Holy Qur'an and ethical values of Islam. Constitutional
safeguard guaranteeing freedom to all including non-Muslim to profess, practise their
religion and manage their institutions, is in consonance with the Qur'anic guarantee.
The learned counsel for the respondents laid stress upon the words "subject to law,
public order or morality". But this argument ignores the interpretation of this
expression by the Supreme Court of Pakistan in Jibendra Kishore etc. v. Province of
East Pakistan (P L D 1957 S C (PAK) 9). It was observed in that case :

"There can be no doubt that these drastic provisions of the Act strike religious
institutions at their vary 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? (Article 18 of Constitution of 1955 corresponded to
Article 20 of the present Constitution). In the High Court Mr. 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 hasitation 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 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 !n 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. 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 narrower construction of the Article in question . . . . . it

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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 religion 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 Supreme Court of India took the same view in the Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shipur Mutt (AIR
1954 S C 282), Patilal Panachand Gandhi and others v. The State of Bomtay and others
(AIR 1954 S C 388) and Muhammad Hanif Qureshl v. State of Bihar and others (AIR
1958 S C 731). In the first of these cases it was held that :

"Religion is certainly a matter of faith with individuals or communities.

. A religion undoubtedly has its basis in a system of beliefs or doctrines, which are
regarded by those who profess that religion as conducive to their spiritual well-being,
but it would not be correct to say that religion is nothing else but a doctrine or 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 modes of worship which are
regarded as integral parts of religion . . . . .

The guarantee under our Constitution not only protects the freedom of religious,
opinion but it protects also acts done in pursuance of a religion and this is made clear
by the use of the expression 'practice of religion' in Article 25 . . . . : '

The same bad been the law in India during the British rule. In Chhohur Khan v.
Mummo Khan and others (15 P R 1868) it was held that Hindus and Muslims both
have a right to perform their religious ceremonies and worship in their temples and
mosques, in their own particular form and manner, and to be protected from
molestation in the performance of them. In Kandasami Mudali and others v. Subtova
Mudali and others (1 L R 32 Mad. 478) it was observed :

do We are unable to accept the contention put forward that the adherents of any
particular religious sect are at liberty to prevent the adherents of another religipus sect
from carrying on religious procession or from assembling for public worship in public
streets on the ground that such worship had not hitherto been carried on and that it was
opposed to their religious feelings . . . . . It would be unreasonable to allow one sect or
class to exclude another on the ground that by the performance of certain rites they
have appropriated a public street, or any portion thereof, for their religious processions
or worship."

194. The learned counsel for the respondents argued that to allow the non-Muslims to
offer prayer and to call Azan is an interference with I agree that these are CUSTOMS
but I am unable to appreciate that adoption of these ;CUSTOMS by non-Muslims is
interference with them. They are good ; As for the Qadianis too since they consider
them necessary as a matter of conscience to perform the duty of obedience to Allah.

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195. In view of the wide language of the injunction order issued by the learned trial
Court and upheld in appeal I posed a question to the learned counsel for the
respondents whether it was their case that the petitioners could not at all offer their
prayer in the manner of the Muslims. Mr. Ismail replied that the objection is only to the
offering of prayer in public. He explained in writing the object of the suit as follows :

The plaintiffs in the plaint have taken the stand that the defendants be restrained from
calling the Scheduled building and Prayer House. as Mosque and to give Azan in it.
(Scheduled Prayer House) and they should be restrained from offering prayer in the
Islamic manner in any public place including the scheduled building, and they have no
such right in such impugned acts."

From this it is clear that the respondents do not have an objection to the offering of
prayers by Qadianis in private. Their objection is only to the construction of Maejid, to
the offering of prayer in a place called by that name and to the calling of Azan. If this
is so the objection to the manner of offering of prayer is not serious. In fact it comes to
this that there will be no objection to offering of these prayers it the Ahmadi place of
worship does not face Ka`aba, is not constructed like a Masjid, is not called as such
and Qadianis are not called to prayer by shouting of Azan. This is not really an
objection to the form of prayer but to the style of construction of the place where it is
performed and to Azan only. And there could be no objection to the corm of prayer. If
Muslims can see with equanimity and tolerate Christian, Magian, Jewish or Hindu
form of worship In Churches, Synagogues or temples, if they consider idol worship by
non-Muslims as unobjectionable, I do not see any reason for their objection to the
worship of One God in the manner taught by the Prophet.

196. It may be noticed that although the Muslims of the Sub-Continent and their
Ulemas have been declaring the Qadianis as infidels since at least the eighties of the
last Century Le. for over 9J years and there has been litigation between them about the
use of mosques and there have been at least two country-wide agitations in Pakistan on
the demand of the Muslims for declaring the Qadianis as a non-Muslim minority but
the demand made in the plaint has been made for the first time sometimes last year. On
behalf of the respondents an attempt was made to explain the delay in raising these
pleas on the ground that this question arose after the Constitution declared the Qadianis
as non-Muslims. This explanation cannot be accepted for the reasons firstly that the
Constitution has not conferred any particular right on the Muslims; secondly that
Second Constitution Amendment Act XLIX of 1974, is only a declaratory Statute
(which preserves rights and liabilities if any, accruing before its enforcement) and
thirdly that in their earlier suit the respondents made no complaint against the right of
the Qadianis to offer their prayer in public or to call Azan or to name their places of
worship as mosques. They themselves treated in that plaint the disputed place of
worship as mosque and assorted their right to offer their prayer in it.

197. I have earlier referred to tae litigation about mosques between the Muslims and
the Qadianis. These cases are reported in Khalil Ahrnad v. larafil (37 1 C 302) and
Sifat Ali Khan and others v. Ali Mian and others (A I R 1933 All. 294). In both these
suits Qadianis were plaintiffs. In the first case the plaintiffs claiming to be true
Muslims and dissenters from what is generally regarded as the orthodox Muhammadan

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faith sued for declaration of their right to offer prayers in a Sunni Mosque individually
as well as in congregation led by an Imam following their creed. The suit was
contested on the ground that the plaintiffs were non-Muslims. The finding of the
Courts below holding the plaintiffs to be Muslims was maintained. It was however
held that the mosque is open to any Muslim to whatever sect he may belong, who
chooses to pray in it but members of any and every sect of Muslims are not entitled to
pray in every mosque as a separate congregation behind an Imam chosen by
themselves. A decree was passed declaring that the plaintiffs were entitled to worship
in the mosque behind the recognises Imam and in the same congregation as the
defendants. The learned Judges of the Patna High Court while upholding the decree
noticed that "as they (plaintiffs) profess to regard orthdox Muhammadans as infidels it
is unlikely that they will take advantage of the decree made by the District Judge." In
the Allahabad case the Qadianis sued for a declaration that they were Mutawallis and
imams of a certain mosque, that they were for more than 25 years been saying N'amaz
as members of their community, that the defendants and all other non-Ahmadis had
been saying Namaz as members of the Ahmadi community, and that the defendants and
all other non-Ahmadis had on no account any right to offer their prayer in congregation
led by some other than their (Qadianis) Imam. They also prayed that a perpetual
injunction be issued to the defendants and all other non-Ahmadis restraining them from
doing any act which might cause interruption in the offering of prayers and in the
performance of other religious functions while the plaintiffs and others of their faith
are saying Namaz in the mosque. The plaintiffs failed to prove that they were
Mutawallis or that one of them had an exclusive right to lead the prayer. They also
failed to prove that they had a right to prevent defendant from offering prayer behind
any one who was not a member of the plaintiff's sect. They were, however, held
entitled to the decree in the same terms in which a decree was passed by the Patna
High Court in the first case.

198. In both these cases the mosques which were the subject-matter of the two suits
were Muslim mosques and not Qadiani mosques. An objection was raised about the
infidelity of the Qadianis. But this objection was to promote the plea that they could
not be allowed to pray in a mosque of the Muslims. It was nowhere urged that they
could not say Namaz or could not construct their own mosques. Even though the
second objection might not have been relevant, the first one did arise in those suits. But
no objection to the right of the Qadianis to offer Namaz was at all taken. This leads to
the conclusion that offering of Namaz by the Qadianis in their mosque was not
considered objectionable even by the Ulemas till after the constitutional declaration.

199. This was not denied by the learned counsel for the respondents. Sb. Ghias
Muhammad only urged that this question had been raised even before the passing of
the Constitution Second Amendment Act in a suit filed in Rahim Yar Khan before Ch.
Muhammad Nasim. Administrative Civil Judge. He referred to a pamphlet entitled
Adalati Faisla published by Majlis Ahrar-i-Islam of that District. But this was a suit to
restrain the defendant Ahmadi from using a residential house as a place of worship in a
locality exclusively inhabited by Muslims. It appears from the decision reported in the
pamphlet that the right of the Qadianis to construct their places of worship in the
localities inhabited by them was not contested. This contention is not correct.

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200. The next question is whether these findings are sufficient for rejecting the plaint
under Order VII, rule 11, C. P. C. This provision can be invoked if the plaint does not
disclose a cause of action. There is no difficulty in answering this question in favour of
the defendants. The plaint was rejected in Kaniz Fatima v. Member. Board of Revenue
(P L D 1937 Lah. 495). In Pahloomal Moltram v. Abdul Quddus Behari (P L D 1971
Kar. 250) it was held that the Court should reject the plaint if it comes to the
conclusion that even if all the allegations were proved to be correct the plaintiff will
not be entitled to get the relief. The question of cause of action, in fact, goes to the root
of jurisdiction. In Jawahar Singh v. N. D. Sassoon (A I R 1923 Lah. 290) it was held
that "the suit dies without reaching the point when jurisdiction can be discussed, or
rather there can be no jurisdiction unless there be a -cause of action." For other cases
on this point sea Mahmedbhai v. Damji Halimbhal (A I R 1942 Mad. 362) and Firm
Muni Lai v. Kalam Singh (A I R 1923 Lah. 290). An important case is Ghulam Mohy-
ud-Din v. Mst. Ruqlya and others (A I R 1923 Lah. 290). The plaintiff in that case
alleged in the plaint that the widow A who upon the death of her husband took only a
life tenancy in bar husband's property colluded with defendant No. 3 and that he had
got his name entered in the column of ownership in the municipal register, ae owner of
some of the property with the object of depriving the plaintiff of his share in the
property of A which would come to him after the death of the widow. The plaintiff
further stated that the widow had been asked to admit the plaintiff's right of succession
on her death but she did not agree and hence the plaintiff had brought the suit for a
declaration that the entries in the column of ownership in the register should be null
and void. It was held that the allegations in the plaint did not disclose the cause of
action as the denial of plaintiff's right of inheritance as evidenced by the entries did not
furnish cause of action and hence the suit was liable to be rejected. In Eartern Ltd. v.
Burmah Employeer' Union (P L D 1967 Dacca 190) and Chowmuhani College v. M.
D. Ismail Hussain (1971 D L C 640) the plaint was rejected on account of non-
applicability of section 42 of the Specific Relief Act.

201. In view of the discussion of each point and particularly the fact that the plaintiffs
have no right nor any corresponding obligation to urge, the plaint cannot be said to
disclose any cause of action. It is accordingly liable to be rejected.

202. The learned trial Court did not consider the question of irreparable loss and injury
in the application for temporary injunction or the balance of convenience. The learned
Additional District Judge answered this question without considering the merits of the
point. It is not clear to me how by the use of their old place of worship or by offering
their prayer or calling Azan in it the Muslims can feel aggrieved. This is a point
showing that the plaintiffs have no prima facie case. But the question of irreparable
loss and injury and balance of convenience can be answered against the plaintiffs only
on the ground of laches. The jurisdiction under Order XXXIX. rules 1 and 2 is to
equitable jurisdiction. The issue of injunction is a matter of grace and discretion. The
question of irreparable loss arid injury and balance of convenience have always been
considered necessary for the satisfaction of conscience of the Court whether an
injunction should issue or should be refused. However, laches is one of the grounds on
which these questions have necessarily to be answered against the plaintiffs. The
plaintiffs have not taken any objection to the existence of the mosque, to its being
called as a mosque, to Azan being said in it, to prayer being performed by Qadianis in

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it individually or in congregation for the last several decades although the Muslims of
the Sub-Continent have always unanimously considered Qadianis to be non-Muslims,
They cannot therefore, complain of suffering any injury much less irreparable loss an
injury. The balance of convenience is not, therefore, in favour of issuance of
injunction. The injury on the other hand will be suffered by the Qadianis who are being
restrained from practising their religion. I am of the view that the application for
temporary injunction should also have bee dismissed.

203. I, therefore, allow these petitions, set aside the order of the learned trial Court
refusing to reject the plaint under Order VII, rule 11, C. P. C. and reject it under that
provision. Although the other revision petition was also liable to be allowed for the
reasons given above, but sine after the rejection of the plaint it has been rendered
infructuous, I dispose it of accordingly. The parties are, however, left to bear their own
costs.

K. M. A. SAMADANI, J.-I concur.

a. A. 8. Petitions allowed.

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