The petitioners are 1st Class State Subjects of the State of Jammu Kashmir and are Muslims by faith. It is stated that Major Retd. Muhammad Ayyub Khan the then Member of AJ&K Legislative Assembly submitted resolution before the AJ&K Legislative Assembly on 22nd March, 1973 to: A- Declare the Quadianis as non-Muslims minority; B- The Quadianis in the territory of AJ&K be registered and be given representation as a non- muslin! minority; C- Infusion of Quadianis to the State be banned until the fate of the State Jammu and Kashmir is. decided; D- Preaching of Quadianis be declared as an offence.
2. The resolution was passed by AJ&K Legislative Assembly on 28.04.1973. It is further maintained that Interim Constitution, 1974, has been introduced on the guidelines of the Constitution of Islamic Republic of Pakistan, 1973, but definition or a non-muslim in the Interim Constitution has not been introduced at par with the provisions of Constitution of Pakistan (CoP) 1973. It has been explained that Article 260 (3) of CoP clearly defines a person of Quadiani group or the Lahori group who calls themselves Ahmadis or by any other name, a non-muslim. It is contended that the Interim Constitution envisages that Islam shall be the State Religion of AJ&K, so, an appropriate definition of non-muslin should be included in the Interim Constitution, whereby Ahmadis and Quadianis could be declared as non-muslim. Abdul Waheed Qasmi, the petitioner, filed an application before the Prime Minister Govt. of AJ&K for implementation of resolution of Khatam-e-Nabuwat. It is further asserted that seats for non-muslim minorities and women have been reserved in the CoP, 1973, but it has not been introduced in the Interim Constitution, 1974. The petitioners have further referred to the performa prepared by Election Commission of Pakistan wherein the voter has to declare his religion, sex and date of birth. It is the grievance of the petitioners that Election Commission of AJ&K has not adopted such measures. The petitioners submitted a Charter of Demand to the Prime Minister Govt. of AJ&K on 21.08.2016, which has also not been decided. The petitioners have prayed to the Court for different directions which are being reproduced in the succeeding paragraphs.
3. The parties were directed to furnish written arguments in support of their versions. The petitioners have filed detailed written arguments but the respondents have avoided to file written arguments despite availing opportunities. The respondents have not even filed detailed written statement and instead some technical objections have been raised. It may be stated at the outset that Quadianis/ Ahmadis are non-muslims as per law or the land. However, the writ petition has to be decided in view or its prayer clause. The following prayer clause has been attached to the tail of the writ petition: "It is, therefore, very humbly prayed that by accepting the writ petition on behalf of the petitioners an appropriate writ may kindly be issued in the allowing manner:-
(i) By directing the official respondents to announce/make addition and clarification in the Interim Constitution Act, 1974 of AJ&K in its Section 2 definition of Non-Muslim and declare the Quadiani, Ahmadi and Lahori group as non-Muslim in accordance with the Constitution of Islamic Republic of Pakistan Article 260 Clause (3) A&B as well as resolution passed by Azad Jammu and Kashmir (Annexure PB).
(ii) By directing the respondents to stop the continuous unlawful activities of Quadiani Ahmadies in the State of Azad Jammu and Kashmir Areas for preaching Ahmadism under the cover of word Muslims through their Murrabbies (like those who are active in some areas of Azad Jammu and Kashmir).
(iii) By directing respondents to decide the application of petitioner No.1 dated 04.03.2016 (Annexure-PL) and issue a direction to respondent No.5 for preparing separate electoral roll of non-Muslim (Quadiani, Ahmedi and Lahories Group in the State of Azad Jammu and Kashmir under section 22 of Azad Jammu and Kashmir Electoral Roll Act) as prepared. by Election Commissioner.
(iv) To direct the official respondents to constitute a commission regarding the subject of Khatdm-e-Nabuwat and make Education compulsory on the subject of Khatam-e-Nabuwat in Education curriculum as in KPK (Annexure-PM).
(v) That the State Subject Act, 1980 of AJK and. Domicile Law of AJK be amended while entering therein the Sect of non-Muslim as Ahmadis and other non-Muslims as are the sole documents required for preparation of Identity Card by NADRA and for Passport. A direction is also required to enter the Sect in above documents while amending the laws.
(vi) That respondents may also be directed to prepare laws while amending the Azad Penal Code to insert a Section for the protection of converts Ahmadis to Islam from the harassment coercion of Ahmadis who are frightening the new converts, hence, requested to be punished seriously.
(vii) By directing the respondents while constituting. the laws should always act upon those principles which are laid down in Holy Quran.
(viii) Any other relief which the humble petitioners are deemed by the Hon'ble Court as entitled to, may also very kindly be awarded."
4. Clause (i) of the prayer clause relates to a direction to the respondents to add to the Interim Constitution, 1974, a declaration that Quadianis/Ahmadis or Lahori group are non-Muslims in accordance with the provisions contained in Article 260(3) of the Constitution of Islamic Republic of Pakistan, 1973. The instant writ petition was filed before the Court prior to 12th amendment in the AJ&K Interim Constitution Act, 1974. After amendment, the situation has changed and the Legislature has inserted the definition of Non-Muslim in Article 2 of the Interim Constitution, 1974, in the following words:- "'Non-Muslim' means a person, who is not a Muslim and includes a person belonging to the Christian, Jew, Hindu, Sikh, Budhist or Parsi community, a person of the Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name), or a Bahai, or any person who does not fulfill the requirements of a Muslim'
5. The grievance of the petitioners to this extent has been remedied in view of the afore-mentioned provision of the Constitution. However, a direction to Parliament cannot be issued to add or modify a particular provision of the Constitution. In case titled "Riaz Hanif Rahi v. Federation of Pakistan and 9 others" (PLD 2015 Islamabad 7), the matter has been well elaborated in paragraphs 14 and 15 of the judgment. For convenience, the relevant paragraphs are reproduced hereunder:-
14. Lastly, 1 advert to the question whether a direction can be made to the Parliament or the Sub- Committee constituted for the electoral reforms. The Constitution is the paramount law and is based on the concept of separation of powers. In the words of honourable Hamood-ur-Rehman, Chief Justice, in the case of "The State v. Zia-ur-Rehman and others" (PLD 1973 SC 49), that while exercising the power of judicial review, the judiciary claims no supremacy over the organs. Even where it declares a legislative measure unconstitutional and void, it does not do so because the judicial power is superior in degree or dignity of the legislative power; but because the constitution has vested it with the power to declare what the law is in the cases which come before it. It merely enforces the Constitution where it comes in conflict with it. It is the Court's duty to see that the Constitution prevails.
15. It has been unequivocally held by the august Supreme Court in the case of "Al-fehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary Ministry of Kashmir Affairs, Islamabad and 3 others" (1999 SCMR 1379) that no direction can be issued. to the legislature to legislate a particular law. However, a direction can be issued to the executive authority to initiate "administrative and legislative measures" for complying with the mandate of the Constitution. Reliance is placed on 'Asif Ali Zardari v.
Federation of Pakistan and others' (PLD 1999 Karachi 54)."
It is very much clear that the Courts are empowered to interpret the Constitution and law. The High Court in its Constitutional Jurisdiction is empowered to set aside a provision of law or Constitution only if it is violative of the Constitution itself. The Supreme Court of Pakistan in a case reported (1999 SCM R 1379) has categorically laid down that no direction can be issued to the legislature to legislate a particular law.
6. In a recent judgment delivered by the Hon'ble Supreme Court of Pakistan in a case titled "The Jurists Foundation through its Chairman v. Federal Government through Secretary Ministry of Defense and others", the same principle has been defined in para 41 as under:- "This Court has time and again held that the essential legislative Junction of the Parliament cannot be delegated. The wisdom behind it is that the delegatee must have legislative guidelines to formulate Rules and Regulations, and that guidelines, contours or boundaries must come from the legislature itself Delegation of an "essential legislative function" by the legislature to the Executive is not permissible under the Constitution. The foundation of embargo owes its genesis to the concept of trichotomy of powers between the legislature, the Executive and the Judicature, which is a fundamental principle of our constitutional construct. Under the Constitution, these three organs of the State have been entrusted with separate and specified functions. The primary function of the Legislatures is to legislate laws, of the 'Executive to execute laws, and of the Judicature to interpret laws. The words of Chief Justice Marshall of the US Supreme Court frequently quoted, in explaining the doctrine of separation of powers, by' the Courts of various jurisdictions in the last about two centuries still hold; "the Legislature makes, the Executive executes, and the Judiciary construes, the law." The legislature cannot abdicate performance of the function assigned to it by the Constitution and set up a parallel Legislative authority. Though the Legislature can confer upon any person or body the power to make subordinate/delegated legislation (rules, regulations or byelaws, etc.) in order to give effect to the law enacted by it yet it must perform itself the essential legislative function, i.e. to exercise its own judgment on vital matters of policy and enact the general principles providing guidance for making the delegated legislation."
7. The 2nd prayer sought by the petitioners can also not be remedied because the petitioners have an alternate remedy for the purpose. The petitioners have prayed for a direction to stop unlawful activities of Quadianis in the State for preaching their faith through their religious leaders. Sub- Article (2) of Article 44 of the Interim Constitution, 1974, envisages that "subject to the Constitution, the High Court, may, if it is satisfied that no other adequate remedy is provided by law. a............................................ .............................................. ..............................................
So, constitutional jurisdiction under Article 44 of the Interim Constitution can be exercised only if there is no alternate remedy available to the petitioners. In the instant matter, section 298-C of the Penal Code provides an alternate remedy to the petitioners. This provision of law has been adopted in the State of AJ&K by Act, VIII of 1985 with effect from 06.10.1985. For convenience, Section 298-C, A.P.C. is reproduced as under:- "[298-C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith. Any person of the Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name), who directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either written or spoken, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslim, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine]."
A perusal of the afore-reproduced law shows that it is an offence to preach or propagate a faith by Quadianis group or Lahori group or by any other name and is punishable under the Penal Code. It has been held in 1993 SCM R 1718 as under:- "Prohibition on Ahmadis and Quadianis only from preaching/ propagating their faith or inviting others to accept their faith is ultra vires of Constitution being violative of freedom or religion guaranteed by Art. 20 of Constitution, 1973. If these acts are done by Ahmadis and Quadianis by posing themselves as Muslims or by calling their faith as Islam or by doing anything outrageous to religious feelings of Muslims, penalization of such acts would not be violative of freedom of religion guaranteed by Art. 20 of Constitution, 1973, (Minority View).
Prohibition on Ahmadis/Quadianis from posing themselves as Muslims calling their faith as Islam or in any manner whatsoever outraging religious feelings of Muslims, does not violate fundamental right and is consistent with constitutional provisions contained in Arts. 19, 20 and 260(3). (Minority View)."
8. The petitioners have further sought a direction to respondents to implement the application of petitioner No.1 dated 04.03.2016. Qari Abdul Waheed Qasmi, the petitioner, filed an application before the Prime Minister Government of AJ&K on 21.08.2016 with the following demands:-
9. It appears that the Department of Law, Justice and Parliamentary Affairs sought a report from Secretary Religious Affairs vide letter dated 30.08.2016 but the matter has not been concluded so far. In their prayer clause, the petitioners have sought a direction against the respondents to prepare separate Electoral Roll for non-Muslims (Quadianis and Lahori group). It has already been mentioned that Quadianis/Ahmadis are non-Muslims, however, there is no calculation on record to ascertain the, number of such non-Muslims in the territory of Azad Jammu and Kashmir so as to consider that whether a separate seat for such non-Muslims can be created in the Legislative Assembly of AJ&K. Number of seats in the Legislative Assembly of AJ&K is created by the Constitution. It is reiterated that direction in this behalf cannot be issued while exercising Constitutional jurisdiction. It is, however, for the Government to consider and decide the application filed by Abdul Waheed Qasmi, petitioner, within, an appropriate time. It may also be remarked that a treasury bill may be introduced in the Legislative Assembly for creation of a separate seat for non-Muslims in the Legislative Assembly. It is also worth adding that in order to apprise the youth of the importance of belief in finality of Prophethood, the appropriate measures may be taken by the Government for adding the subject to the curriculum.
10. The preamble of AJ&K Interim Constitution, 1974, provides that Muslims shall be enabled to order their lives in the, individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah. Another Article 3-C of the interim Constitution, 1974, provides as under:- "Islamic way of life.---(1) Steps shall be taken to enable the Muslim State Subjects, 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 meaning of life according to the Holy Quran and Sunnah."
11. It is, therefore, the, constitutional liability of the Government to enable the Muslim State Subjects individually and collectively to order their lives in accordance with the commands of Quran and Sunnah. It is also the requirement of the Constitution to make teachings of Holy Quran and Islamiat compulsory and to encourage and facilitate learning of Arabic language. The Government of AJ&K is supposed to abide by the commands of the Constitution which is supreme law of the land.
In the light of what has been discussed above, the writ petition stands disposed off. A copy of this judgment shall be delivered free of cost each to the Principal Secretary to the Prime Minister Government of AJ&K, Chief Secretary Government of AJ&K, Secretary Law, Justice and Parliamentary Affairs and the Election Commissioner for further proceedings in accordance with law.