P L D 1978 Lahore 113 (PLP)

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 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 (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." 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." 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 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 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 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, 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 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 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. 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 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 "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.

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."

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 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 "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.

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 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' (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 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, 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.

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 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, 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 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 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 (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 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 . 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.

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 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 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" 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 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 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 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 "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 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." 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 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.

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 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.

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 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.