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ZAHEER UD DIN CASE

 

ZAHEERUDDIN And Others  Versus THE STATE And Others

 

Parties: ZAHEER-UD-DIN & others (Appellants)

             THE STATE & others (Respondents)

 

Citation: 1993 SCMR 1718

 

Status: Appeal Dismissed

 

Court: Supreme Court of Pakistan

 

Brief Facts:

In Zaheer ud Din case the Appellant belonged to Ahmediya community (Qadianis), who have been , by Article 260, clause (3)(b) of the constitution of Pakistan, declared non-Muslins. Ahmedis had decided to celebrate the centenary of their religion commencing from 23-03-1989.

On 20-03-1989, the Home Secretary to Government Of Punjab promulgated an order under section 144 of the Code of Criminal Procedure banning the centenary celebrations by the Qadianis in the province of Punjab.

The Appellants challenged the order by means of a petition under Article 199 of the Constitution, among others, on the ground that the activities in question were protected and guaranteed by the fundamental right to profess, propagate and practice religion embodied in Article 20 of the Constitution.

One of the Appellants who had been convicted under section 298-B of of the Pakistan Penal Code for using a badge of “ Kalma ” and for saying “Azan” had filed another such petition , challenging the constitutionality of section 298-B as well as 298-C of the Pakistan Penal Code, which prohibits the misuse of certain epithets , descriptions and titles by any person of Qadiani or Lahori Group and made such misuse an offence.

It is note-worthy that the provisions of 298-B and 298-C had been challenged before the Federal Shariat Court and the court declared these sections in accordance with the injunctions of Islam.

 

Question Of Law:

The question is whether a law which has been tested on the touchstone of it’s repugnance to the injunctions of Islam and found valid by the Federal Shariat Court and the Supreme Court under Chapter 3A of Part VII of the Constitution can be challenged again on the ground of it’s inconsistency with or contravention of the fundamental rights enshrined in Chapter 1 of Part II of the Constitution.

 

Helding & Judgement:

The Ordinance XX of 1984 which fell for consideration in Zaheer ud Din case had been so tested and found valid  by the Federal Shariat Court and the decision attained finality because the appeal filed in the supreme court (Shariat Appellate Bench) had been withdrawn . Therefore, the Ordinance XX of 1984, was called in question first in the High Court  and then in the Supreme Court proceeded on the basis that despite the fact that the Ordinance had already been found to be in accordance with the injunctions of Islam, it was open to be challenged on the ground of it’s inconsistency with or contravention of the fundamental rights. As has been seen , while the majority held that the provisions of the Ordinance were not repugnant to any of the fundamental rights, Shafi-ur-Rehman,J, would have held that some of it’s  provisions were repugnant to the fundamental rights.

 

 

 

 

 

 

 

 

 

 

 

 

 

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