Mubarak Sani case.. The Supreme Court accepted the federal petition

The Supreme Court of Pakistan has deleted paragraphs 49c, 42 and 7 from the judgments of February 6 and July 24 in the Mubarak Ahmad Sani case while accepting the federal request. After listening to the arguments of Ur Rehman, Mufti Muneebur Rehman, Mufti Taqi Usmani, Farid Paracha, Abu Al Khair Muhammad Zubair, Mufti Sher Muhammad and others, Chief Justice of Pakistan Justice Qazi Faiz Isa gave a short judgment and said that the disputed paragraph will not be a judicial precedent. However, from the judgments of 6th February and 24th July, 49C, 42 and 7 are deleted.

A three-member bench headed by Chief Justice of Pakistan Qazi Faez Isa and comprising Justice Amin ud Din Khan and Justice Naeem Akhtar Afghan heard the Federation’s plea along with that of the Punjab Government’s review petition.

The court in its two-page short order authored by the CJP, observed that after hearing detailed arguments “it is accepting the appeal of the Federation and expunged certain portions while correcting its judgments dated July 24, 2024 and February 6, 2024.

It further said that the excluded certain portions could not be used as precedent in any verdict and instructed the trial court to decide the said case as per law without getting influenced by these certain portions.

The court said that the Federation had moved a miscellaneous application for correction in the judgment dated July 24, 2024.

The Parliament also passed a resolution unanimously for the purpose, it added. The order further said the Federation mentioned the names of worthy religious scholars and requested to review the decisions while keeping in view their opinion. The scholars were issued notices after the application was accepted for hearing, it added.

The order said that Mufti Muhammad Taqi Usmani and Syed Jawad Ali Naqvi appeared before the court through video links from Turkiye and Lahore, respectively.

JUI-F’s head Maulana Fazl ur Rehman, Raees Darul Ifta Mufti, Darul Uloom Ghosia Bhera Mufti Sher Muhammad Khan, Chief Khateeb of KP, Maulana Muhmmad Tayyab Qureshi, President Mili Yakjehti Council Sahabzada Abulkhair Muhammad Zubair and Maulana Dr. Ataurehman from Jamia Islamia Tafhimul Quran Mardan appeared in person and gave arguments.

During the hearing Attorney-General for Pakistan Mansoor Usman Awan, Additional Attorney-General for Pakistan Malik Javed Iqbal Wains, Additional Prosecutor-General, Punjab Ahmed Raza Gillani appeared in the court. Meanwhile no one appeared on behalf of the respondents.

Meanwhile on Court Notice, Mufti Muhammad Taqi Usmani, in-person (through video-link from Turkey), Maulana Fazl-ur-Rehman, in-person

Mufti Sher Muhammad Khan, in-person, Maulana Tayyib Qureshi, in-person, Syed Jawad Ali Naqvi, in-person (through video-link from Lahore), Sahibzada Abul Khair Muhammad Zubair, in-person, Dr. Farid Ahmed Paracha (on behalf of Emir Jamaat-e-Islami Pakistan Hafiz Naeem-ur-Rehman), Maulana Dr. Ata-ur-Rehman, in-person, Mufti Syed Habib-ul-Haq Shah (on behalf of Mufti Munib-ur-Rehman), Hafiz Ahsaan Ahmed, ASC (on behalf of Professor Sajid Mir) and Mufti Abdur Rasheed (on behalf of Maulana Muhammad Ijaz Mustafa) appeared in court presented their arguments.

At the outset of the hearing on Thursday, AGP Mansoor Usman Awan informed the bench that the Parliament and some clerics had asked the federal government to approach the SC regarding the matter.

He further said that a letter was received from the NA Speaker Sardar Ayaz Sadiq and directives were also issued by Prime Minister Mian Muhammad Shehbaz Sharif. Admitting that a “second review” of the original verdict could not be held, the AGP noted that the government, hence, had approached the court as per the Code of Civil Procedure.

AGP Awan urged the court to hear the clerics’ arguments since the matter was a religious one.

“I don’t want to say but am helpless; I pray in every prayer that may God prevent me from making any wrong decisions,” CJP Qazi Faez Isa said. “A person is known by their actions and words,” he observed.

The chief justice stressed that the Parliament’s words were highly respected by the court.

The court then decided to seek assistance from clerics present in the courtroom, including Maulana Fazlur Rehman, Mufti Sher Muhammad, Sahibzada Abul Khair Muhammad Zubair of the Milli Yakjehti Council, and Jamaat-i-Islami’s Dr. Fareed Ahmed Paracha.

CJP Isa then noted that the court had also sought assistance from Mufti Taqi Usmani but he was in Turkiye. Therefore, the scholar joined via video link. Mufti Muneebur Rehman’s representative was also present in the court.

Mufti Taqi Usmani, in his arguments, urged the court to omit paragraphs 7 and 42 from the July 24 revised judgment. He pointed out what he said were “mistakes” in those paragraphs.

Paragraph 42 of the judgment stated: “Details of the Constitutional and legal provisions and judicial precedents have proved that after declaring both groups of Ahmadis as non-Muslims, according to the constitution and law, they have the right to practice their religion and express and preach it, provided that they will neither use religious terms for Muslims in public nor present themselves as Muslims in public.

“However, they have the right to ‘privacy of home’ in their houses, places of worship, and specific private institutions within ‘reasonable limits’ prescribed by law.”

Explaining his stance, the cleric said: “The term ‘tableegh’ (to preach) was used in paragraph 42, which meant that unconditional permission was granted.”

Upon hearing that, CJP Isa read out section 298 of the Pakistan Penal Code (PPC) which details punishment for a person who with the “deliberate intention of wounding the religious feelings” of a person, “utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person”.

In response, Mufti Usmani pointed out that as per Section 298, “a non-Muslim was not allowed to preach while posing as a Muslim”.

He said that since the Ahmadiyya community was “among the minority but do not identify themselves as non-Muslims”, section 298 of the PPC did not apply, therefore, paragraph 42 of the judgement needed to be rectified.

“Taqi Usmani sahib, I apologise. I want to clarify that those who were issued notices had submitted many documents to us. If we had reviewed them in detail, then perhaps an entire book would have been made out of that decision,” the CJP said in his response to Usmani.

“I could not review all those documents, which is my mistake. Point out the mistakes and your objections to the court order to us. If we do not understand something, we will ask,” the top judge added.

Chief Justice Qazi Faez Isa observed that Pakistan was an Islamic republic, hence the Holy Quran and the Holy Prophet’s (PBUH) ahadith were referred to in court orders.

“I am not above any mistake,” CJP Isa acknowledged. He observed that “lengthy verdicts” were needed to be written in such matters.

The top judge highlighted that the Feb 6 decision was “now left behind” after the court reviewed it. “Now we must look ahead,” he said.

“My stance is that we usually give examples of America and Britain [so] why should we not give our own?” the chief justice asked. “If someone does not appear for a matriculation exam, he also does not risk failing in it,” he remarked.

Here, Mufti Usmani said, “You should have given more time to the real issue than the issues decided in the order.”

Meanwhile, in his arguments, Maulana Fazlur Rehman noted that the court had so far held “many hearings” and now was having a “review” of its decision. At this, Justice Isa pointed out that it was not a “review”, to which the JUI-F chief replied that it was a “third view” of the court’s decision.

Maulana Fazlur Rehman highlighted that various scholars and the CII had come forward with their opinions against the SC’s ruling. Noting that Maulana Fazlur Rehman had used the plural form of “decision”, CJP Isa asked him if there were more verdicts under consideration. To this, Maulana Fazlur Rehman asked the court to ignore the use of the plural.

“Now at the age of 72, I am standing before a court for the first time,” the JUI-F chief noted, noting that ’God had kept him “safe from courts”. “We are not that bad,” the chief justice quipped in response.

Maulana Fazlur Rehman then lamented that while it was discussed in the public sphere that Ahmadis were referred to as non-Muslims, “what they (Ahmadis) say is not talked about”. “We do not want to create any issues for non-Muslims in Pakistan.”

At this point during the hearing, KP Chief Khatib Maulana Tayyab Qureshi said he agreed with the opinions voiced by other clerics before him. “Muslims are hurt, please satisfy them,” Qureshi said, requesting the court to implement the suggestions put forward by clerics.

The KP chief khatib also invited CJP Isa to visit Mahabat Khan Mosque in Peshawar, at which the judge asked if it was located at Chowk Yadgar.

“During the Pakistan Movement, my father had given his best speech at Chowk Yadgar,” the chief justice highlighted. “My father says the entire crowd was against the Muslim League but after the speech, everyone chanted ‘Quaid-i-Azam’,” he added.

In his arguments, Sahibzada Abul Khair Muhammad Zubair also urged the court to omit paragraph 42 from the revised ruling.

Senior lawyer and MNA Sardar Muhammad Latif Khan Khosa then appeared before the court and requested that his and Sunni Ittehad Council chief Sahibzada Muhammad Hamid Raza’s names be added to the list of respondents as well. “We are representing the parliamentary committee and the Parliament,” Khosa said.

“Khosa sahib, the Parliament can even strike down court orders. You may go to the Parliament to exercise your right,” CJP Isa quipped, in an apparent reference to recent amendments to election laws that would take precedence over court orders.

The court then announced a break during the hearing. The court announced the verdict after the break and accepted federal government’s application to omit certain sections for its previous verdicts of 6^th February 2024 and 24^th July 2024. The detailed reasons to be recorded later on by the bench.