ISLAMABAD: The Islamabad High Court (IHC) on Tuesday suspended Section 241 of the recently-promulgated Elections Act 2017 (EA-2017) to the extent of repealing laws in respect of Khatm-e-Nabuwwat.
A petitioner, Maulana Allah Wasaya, had contended before the court that an amendment was made in EA-2017 and on hue and cry of the entire nation another amendment to the act was brought on October 19, 2017 through which sections 7B and 7C of the conduct of General Elections Order 2002 have been revived, whereas all other laws repealed through Act of October 2, 2017, still remain repealed and through an illusion, effort has been made to satisfy the citizens of Pakistan.
The IHC single-member bench of Justice Shaukat Aziz Siddiqui ordered that the operation of the said enactment will remain suspended till the next date of hearing. "Prima facie, the repealing of laws under Section 241 of the EA-2017 is against the mandate and in conflict with the Constitution (second amendment) Act, 1974, therefore, the applicability of the impugned Act to the extent of Khatm-e-Nabuwwat only is suspended," the order reads. It further says, as section 7B and 7C, inserted through this Act revived the declarations by the candidates, available prior to enactment, therefore, to this extent, amendment shall hold the field.
The IHC bench also issued notices to the Attorney General of Pakistan and other respondents seeking their replies and comments. The court has also directed the respondents to submit a copy of the report in sealed envelope prepared by a committee that was headed by Senator Raja Zafarul Haq.
The petitioner, Maulana Allah Wasaya, a resident of Bahawalpur, through his counsel Hafiz Arafat Ahmad Chaudhry, has cited the Federation of Pakistan through secretary Ministry of Law and Justice, secretary Interior and Establishment Division as respondents.
While hearing the case, the petitioner's counsel said that the Act was promulgated on September 21, 1974 in which Article 260 was amended and persons belonging to Qadiani/Lahori group were declared as non-Muslims. As a consequence, certain amendments were brought into the existing laws including Electoral Rolls Act 1974, Delamination of Constituencies Act 1974, Senate Election Act 1975, Representation of People Act 1976, Election Commission Order 2002, Political Parties Order 2002 and Allocation of Symbols Order 2002. The petitioner's counsel submitted before the court that the purpose of making amendments to the above said laws was that the persons who have not absolute and unqualified faith in the finality of the Prophethood of Hazrat Muhammad (Peace be Upon Him) should be excluded from the majority of Muslims. He said that in a deceitful manner and to the utter surprise of the nation, the Parliament on October 2, 2017 made certain amendments to the existing laws which in fact frustrated the second constitutional amendment declaring Qadiani/Lahori group as non-Muslims under Article 260 of the Constitution. He said that on hue and cry of the entire nation an amendment to the act was brought on October 19, 2017 through which sections 7B and 7C of the conduct of General Elections Order, 2002 have been revived whereas all other laws repealed through Act of October 2, 2017still remained repealed and through an illusion, effort has been made to satisfy the citizens of Pakistan. Advocate Arafat also said that the prime minister had constituted a high-level committee headed by Senator Zafarul Haq that exposed certain elements who played havoc with this process. The petitioner's counsel however submitted that any provision or law against the fundamental rights cannot be made; therefore, the Act of October 2, 2017 to the extent of provisions relating to Khatm-e-Nabuwwat is void and unconstitutional in its inception.
The petitioner said he is author of many books on different subjects of Islam. Like all Muslims, he said, he believes in the absolute and unqualified finality of the Prophethood of Muhammad (PBUH) and he has delivered many lectures across the country on “Aqida-e-Khatm-e-Nabuwwat”. In order to give background, he said, it is submitted that the faith of Muslims is materially different from Qadiani/Lahori group of Jamaat-e-Ahmadia. That the followers of Mirza Ghulam Ahmed were declared non-Muslims through the second amendment in the Constitution as a consequence of the long struggle of Muslim community. Under this amendment in Article 260, it was said, "A person who does not believe in the absolute and unqualified finality of the Prophethood of Muhammad (PBUH), the last of the prophets, or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (PBUH), or recognises such a claimant as a prophet or a religious reformer, is not a Muslim for the purposes of the Constitution or law.”
The petitioner prayed the court to the direct the Ministry of Law and Justice 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.
The petitioner also prayed that Establishment Division may be directed to maintain 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 matters. Further, he said, the Ministry of Interior may be directed to conduct a thorough investigation through credible and honest officers of law enforcement agencies to ascertain the elements and forces behind the unconstitutional and illegal acts mentioned in the petition.