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Justice Shaukat Aziz Siddiqi Judgment Against Nawaz Government Failed Attempt to Delete Khatme-E-Nabuwwat Requirement

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JUDGMENT SHEET. IN THE ISLAMABAD HIGH COURT, ISLAMABAD. JUDICIAL DEPARTMENT. W.P. Nos. 3862, 3847, 3896& 4093of 2017. MULANA ALLAH WASAYA. (W.P.NO. 3862/2017) YOUNUS QURESHI, ETC. (W.P.NO. 3847/2017) TEHREEK LABBAIK YA RASOOL (W.P.NO. 3896/2017) ALLAH. Civil Society through its President. (W.P.NO. 4093/2017) VS. FEDERATION OF PAKISTAN THROUGH (W.P.NO. 3862/2017) SECRETARY MINISTRY OF LAW AND JUSTICE, ETC. FEDERAL GOVERNMENT THROUGH (W.P.NO. 3847/2017) THE PRIME MINISTER OF ISLAMIC (W.P.NO. 3896/2017) REPUIBLIC OF PAKISTAN, ETC. (W.P.NO. 4093/2017) PETITIONERS BY: Hafiz Arfat Ahmad Chaudhary and Ms. Kashifa Niaz Awan, Advocatesassisted by Mr. M. Zahid Tanvir, Advocate along with Petitioner. (In W.P.No. 3862/2017) Mr. Muhammad Tariq Asad, ASC. (In W.P.Nos. 3847 & 4093/2017) Hafiz Farmanullah, Advocate. Syed Muhammad Iqbal Hashmi, Advocate/Intrverner. Ms. Ameer Jahan alias Bisma Naureen, Intervener. (In all Cases) RESPONDENTS BY: Mr. Arshad Mehmood Kiyani, DAG. Ms. Naveeda Noor, Advocate for I.B. M/s. Nouman Munawar, Asghar, Representative of M/o Law & Justice. Mr. Usman Yousaf Mobin, Chairman, NADRA. Mr. Saqib Jamal, Director (Legal) and Mr. Zulfiqar AlI, D.G. (Projects), NADRA. Syed Junaid Jaffer, Law Officer, NADRA. Mr. Kamran Riffat, Deputy Director (Legal), FPSC, Islamabad. Mr. M. Shahid Dayo, Deputy Director & Mr. Zarnab Khattak, S.O. Establishment Division. Mr. Qaiser Masood, Additional director (Law), FIA. Mr. Waqar Ch. Data Processing Officer (Litigation), National Assembly. (In all Cases) 2 W.P.No. 3862, 3847, 3896 & 4093/2017 Amici Curiae (Religious Scholars): Prof. Dr. Hafiz Hassan Madni. (26.02.2018) Prof. Dr. Sahibzada Sajid-ur-Rehman. (27.02.2018). Prof. Dr. Mohsin Naqvi (28.02.2018). Mufti Muhammad Hussain Khalil Khel (01.03.2018). (In all Cases) Amicus Curiae (Constitutional Experts): Mr. Muhammad Akram Sheikh, Sr. ASC. (02.03.2018). Dr. Muhammad Aslam Khaki, ASC assisted by Ms. Yasmeen Haider, Advocate (05.03.2018). Dr. Babar Awan, Sr. ASC. (05.03.2018). (In all Cases) DATES OF HEARING: 22.02.2018, 23.02.2018, 26.02.2018, 27.02.2018, 28.02.2018, 01.03.2018, 02.03.2018, 05.03.2018, 06.03.2018& 07.03.2018. --------------------------------------------------------------------------------------------------- SHAUKAT AZIZ SIDDIQUI, J: Through this single judgment all the titled petitions are being disposed of as similar questions of law and facts are involved therein. 2. Maulana Allah Wasaya, Petitioner in W.P.No. 3862/2017, is a renowned religious scholar, author of many famous books on different subjects of Islam and has delivered umpteen lectures on “Aqida-e-Khatm-e-Nubawat”, which subject/issue has been the focus of his work.He has also written several books on which)ﷺ( the belief in the finality of the prophethood of Hazrat Muhammad include “Aina-e-Qadianiat”, “Parliament mein Qadiani Shikast” and “Thereek-e- Khatm-e-Nubuwat 1953”. 3. The Petitioners in W.P.No. 3847/2017 (Younus Qureshi, Dr. Tayyab-ur- Rehman Zaidi, Maulana Fazal-ur-Rehman Madni) are religious scholars and Imams of different Jamia Masajid whereas Petitioner No.4 (Obaidullah) is a social worker; W.P.No. 3896/2017 was filed by Tehreek Labbaik Ya Rasool Allah through its member of Markazi Majlis-e-Shura, however, subsequently no one 2 3 W.P.No. 3862, 3847, 3896 & 4093/2017 appeared before this` Court to pursue the matter, however, as the petition was clubbed with other similar petitions, therefore, sameis also being adjudicated herewith; wW.P.No. 4093/2017 wasfiled by the Civil Society through its President Muhammad Tahir.Later on, Syed Iqbal Hashmi, Advocate and Ms. Ameer Jahan alias Bisma Noreen joined proceedeings before this Court as interveners. 4. The Petitioners invoked the constitutional jurisdiction of this Court by way of filing their respective writ petitions with the following prayers: W.P.NO. 3862/2017: “Wherefore, it is very respectfully prayed that this Honourable Court may graciously be pleased to; a) Direct the Respondent No.1 to immediately take all necessary measures for revival of all provisions (which were in existence prior to the promulgation of the (Elections Act, 2017) relating to Qadiani group/Lahori Group in their entirety with a further direction to the said respondent to ensure that all such provisions have been made part of the primary legislation i.e. the Elections Act, 2017; b) Direct the Respondent No.3 to maintain, henceforth, a separate database of individuals belonging to Qadiani group/Lahori group entering in civil service so that in future they may not be posted in offices involving sensitive matter/s such as raised in the instant petition; c) Direct the Respondent No.2 to immediately conduct a thorough investigation through credible and honest officer/s of law enforcement agencies to ascertain the elements and forces behind the unconstitutional and illegal acts detailed above; d) Direct the Respondent No.3 to bring on record a detailed report showing individuals/officers belonging to Qadiani group/Lahori group currently 3 4 W.P.No. 3862, 3847, 3896 & 4093/2017 serving in the Federal Government with their respective portfolios; Any other relief, this Honourable Court deems fit and just in the circumstances may also be granted.” W.P.NO. 3847/2017: “It is, therefore, respectfully prayed that in the circumstances mentioned hereinabove, it is respectfully prayed that this Hon. Court may very graciously be pleased to: a. to constitute an impartial judicial commission to hold enquiry so that the persons responsible of committing the act to change the declaration and omitting the provisions of 7(b) and 7(c), previously existing in the Conduct of General Elections Order 2002, particularly respondents No. 8, 9 and 10 may be dealt with the in accordance with law; b. to restore the original “Declaration and Oath by the person nominated” in the Election Act 2017 as laid down in ‘Representation of the People (Conduct of Election) Rules, 1977’ and inset therein the contents of provisions 7(b) and 7(c), previously existing in Conduct of General Elections Order 2002; c. to direct respondent No.1 to make the enquiry report of Committee headed by Raja Zafar-ul-Haq public with immediate effect; d. Any other relief, this Hon’ble Court deems just may also be granted.” W.P.NO. 3896/2017: “For what has been discussed above, it is most humbly prayed that this Hon’ble Court, while allowing this Writ petition, direct the Federal Government, represented by the respondents, to publish and publicize the inquiry report submitted by Raja Zafar- 4 5 W.P.No. 3862, 3847, 3896 & 4093/2017 ul-Haq, and the culprits so determined therein, may very kindly be proceeded against under the relevant laws. Any other relief, which this Hon’ble Court may deem appropriate, be also awarded in favor of the cause of the petition.” W.P.NO. 4093/2017: “It is, therefore, respectfully prayed that in the circumstances mentioned hereinabove, it is respectfully prayed that this Hon’ble Court may very graciously be pleased to: a) to constitute an impartial judicial commission to hold enquiry so that the persons including respondents No. 8, 9 and 10, responsible of committing the act changing the declaration ad omitting the provisions of 7(b) and 7(c), previously existing in the Conduct of General Elections Order 2002, may be dealt with in accordance with law; b) to direct respondent No.1 to make the enquiry report of Committee headed by Raja Zafar-ul-Haq public with immediate effect; c) to ban those NGOs which are spreading secular thoughts in the country; d) Any other relief this Hon’ble Court deems just may also be granted. Any other relief, which this Hon’ble Court may deem appropriate, be also awarded in favor of the cause of the petition.” 5. Mostly identical set of facts leading to the filing of the titled writ petitions are summarized hereunder:- On 02.10.2017, the Federal Government introduced a new law called the Elections Act, 2017 (hereinafter referred to either as “the 2017 Act” or the “Impugned Act”) 5 6 W.P.No. 3862, 3847, 3896 & 4093/2017 whose object was to amend, consolidate and unify laws relating to the conduct of elections and matters connected therewith or ancillary thereto whereas as per Section 241 of the 2017 Act the following laws were repealed:- a) The Electoral Rolls Act, 1974 (Act No. XXXIV of 1974); b) The Delimitation of Constituencies Act, 1974 (Act No. XXXIV) of 1974); c) The Senate Election Act, 1975 (Act No. LI of 1975); d) The Representation of the People Act, 1976 (Act No. LXXXV of 1976); e) The Election Commission Order 2002 (Chief Executive’s Order No.1 of 2002); f) The Conduct of General Election Order, 2002 (Chief Executive’s Order No. 7 of 2002); g) The Political Parties Order, 2002 (Chief Executive’s Order No. 18 of 2002); h) The Allocation of Symbols Order, 2002. As a consequence of repeal of the statutory provisions relating to Qadiani Group/Lahori Group (hereinafter referred to “Qadianis”) in the aforementioned repealed statutes and rules framed thereunder as well as framed in pursuance of the Constitution (Second Amendment) Act, 1974 (which, needless to state, were the outcome of a long, untiring and determined efforts of the Muslims of the country including clauses 7(b) and 7(c) of Conduct of General Elections Order, 2002 dealing with the status of a minority and mechanism of determining religion of a candidate)were annulled which ignited a countrywide protest. Several people whose religious feelings were outraged and hurt thronged Islamabad and staged a protest/sit-in near Faizabad which paralyzed life in the twin cities and brought the government machinery to an obvious, though unadmitted, grinding halt.
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