CIMEL Yearbook Vol.1: Islam and Fundamental Rights in Pakistan

soas.ac.uk: The case of Zaheer-ud-din v. The State and its impact on the fundamental right to freedom of religion by Martin Lau

I. Introduction

The decision of the Supreme Court of Pakistan in the case of Zaheer-ud-din v. The State 1993 SCMR 1718 can be regarded as the the most important judgement of a Pakistani court on the fundamental right to freedom of religion since Pakistan came into being in 1947. The case contains ground-breaking judicial pronouncements on the scope of the fundamental right to freedom of religion in an Islamic state and discusses in extenso the legal definition of religion: it is for this reason that this decision is of interest to anybody concerned with the development of modern Islamic law.

The case concerned inter alia the constitutional validity of the Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984, which added the new sections 298B and 298C to the Pakistan Penal Code, 1860, and amended section 99A of the Code of Criminal Procedure, 1898 and section 24 of the West Pakistan Press and Publications Ordinance, 1963. The constitutional vires of the Ordinance, which was promulgated in the last year of President Zia-ul-Haq’s martial law regime, were challenged by a number of Ahmadis, who had been charged with criminal offenses under the provisions of the Ordinance. In their appeal against the convictions it was argued that the Ordinance was violative of the constitutionally guaranteed fundamental right to freedom of religion as provided in Article 20 of the Constitution of Pakistan. Article 20 states that

Subject to law, public order and morality-

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