History of the Case
compiled by Dr. Zahid Aziz
"Surely We have granted you a clear victory."
(The Holy Quran, 48:1)
- Start of legal action.
- Defendants' response --- their inability to define
- Defendants' reasons for calling Ahmadis as kafir
- Defendants' exception against First plaintiff succeeds
- More pre-trial exchanges
- Defendants' Special Plea --- a new ploy
- Defendants fail in filing new exception
- Preparation for trial --- Top Pakistani experts
come to defendants' aid
- 1984 hearing --- Defendants submit preliminary
- The final phase --- November 1985
- The trial --- dramatic opening
- Ahmadis present full case --- win judgment
- Pakistani witnesses make misleading statements
- Our reply
- Muslim cases in non-Muslim courts
- "Non-Muslim can be judge of Shariat court"
--- Dr Israr Ahmad
- Verdict of a Muslim court
- WHICH PARTY ACCEPTS ALLAH'S JUDGMENT?
There has been a branch of the Lahore Ahmadiyya Movement in Cape Town
since the late 1950s. The members of the association faced hostility
from the local 'professional' Muslim religious leaders, as has been
the situation in other parts of the world. This opposition entered a
new phase in 1965 when so-called fatwas or 'decrees' were first
issued to the effect that Ahmadis were kafirs and outside the
fold of Islam. After that, there was constant malicious propaganda against
the Ahmadiyya Movement in books, pamphlets and newspapers published
by the local Muslim religious bodies. The Movement and its Founder were
portrayed in a grossly distorted form, and viciously ridiculed in literature
of the worst possible taste. Cartoon caricatures of the Founder were
frequently published to revile and mock him. Attempts were made to incite
the Muslim public to exclude Ahmadis from their midst and impose a social
boycott against them.
In May 1982 the Lahore Ahmadiyya association organised under
the name Ahmadiyya Anjuman Isha`at Islam Lahore (South Africa)
applied for a licence, as required by law, to allow it to make
a public collection of funds for building an Islamic centre, and in
accordance with due procedure the Anjuman gave notice of the application
in a newspaper. At this, the Muslim Judicial Council (MJC) of Cape Town,
an association of religious leaders which claims to be the authoritative
Muslim theological body of the area, issued an announcement styled "Urgent
and Important Notice" which stated:
"The Muslim Judicial Council hereby state categorically
that whatever centre the Ahmediahs are going to establish can never
be an Islamic centre, neither any type of Islamic institution or Mosque
because these establishments or Mosques cannot be established by Kafirs.
"The Muslim Judicial Council will lodge strong objections to
the Department concerned objecting to the Ahmediahs collection of
Funds in the name of Islam and call upon the Muslims to stand up to
Start of legal action
On top of the incessant humiliation, propaganda and hostility faced
by Ahmadis, this intervention by the MJC was the final step which left
them with no choice but to seek legal redress for the wrongs they had
long been suffering. The Anjuman began legal action against the MJC
and two other bodies. The summons (notice of legal action), with the
details of the claim annexed thereto, were issued in October 1982.
There were two plaintiffs: first, the Ahmadiyya Anjuman Isha`at Islam
Lahore (South Africa), and second, Mr Ismail Peck, a member of the Anjuman.
The first and chief defendant was the Muslim Judicial Council, the other
two being the trustees of a mosque and the trustees of a Muslim cemetery,
full details of which are given in the judgment.
In the particulars of claim, plaintiffs stated that Islam is based
on certain fundamental principles the well-known five pillars
and that they accept these tenets, and are Muslims. The grievance
was that the first defendant was publishing and propagating false and
defamatory allegations to the effect that Ahmadis are kafir and
apostate (murtadd), and that they reject the finality of prophethood
etc. The first defendant was inciting the Muslim public to hatred, violence
and social ostracism against the plaintiffs. The complaint against the
second defendant was that they were refusing the Ahmadis their right
to use the mosque, of which the former were trustees; and similarly
against the third defendant that they were denying Ahmadis burial rights
in the cemetery, of which the former were trustees. The Ahmadis thus
sought against the defendants the court orders listed in the judgment,
to restrain the defendants from these actions. The first order, sought
jointly against all the defendants, was the basis for the other restraining
orders, namely, "an order declaring that members of the First Plaintiff
are Muslims and as such are entitled to all such rights and privileges
as pertain to Muslims".
The seeking of this declaratory order has been misrepresented by our
opponents as Ahmadis asking a non-Muslim court to determine that they
are Muslims. The fact is that the Ahmadis went to court strongly
claiming that they were Muslims, with the heart-felt grievance that
certain Muslim religious bodies were defaming them by calling
them kafir, and were denying them the rights due to them
as Muslims. And throughout the protracted legal battle, the plaintiffs
constantly let it be known to the defendants that if they agree to desist
from their campaign of vilification and from their refusal to let Ahmadis
have their due Muslim rights, the legal action would be discontinued.
We stress our standpoint here. Ahmadis believe that one should try
to be a Muslim in God's sight, and that no one can become a Muslim
or kafir in God's judgment just because a state authority or
a theological institute or a religious leader has pronounced him to
be so. From this angle, Ahmadis are not in the least perturbed if some
so-called Islamic body or government does not regard them as Muslim,
nor do they require anyone's certification of being Muslims. The reason
they went to court was to stop the defendants from spreading false allegations,
and misleading the innocent public, about them.
their inability to define Muslim
In response to the summons, the defendants filed a notice in court
of intention to defend, and each of the three bodies involved passed
resolutions to this effect. On 17 March 1983 the defendants filed their
plea in answer to the claim of the second plaintiff (the individual
Mr Peck), but filed a notice of exception regarding the claim
of the first plaintiff, the Anjuman. In the exception
they contested the entitlement of the Anjuman to institute action on
behalf of its members, arguing that it was not the Anjuman but its members
who were claimed to have suffered the wrongs. In their plea to the case
of the second plaintiff, replying to the Ahmadis' basic point that Islam
is based on the well-known five pillars the acceptance of which makes
a person a Muslim, the defendants contended:
"Defendants deny that the doctrines and principles set
out in the Claim alone constitute the fundamental doctrines and principles
of Islam ... Defendants plead that it is a further fundamental doctrine
and principle upon which Islam is founded that the Prophet Mahomed [defendants'
spelling] is the last and final prophet."
And they considered the second plaintiff to be a non-Muslim because he:
"... does not accept that the Prophet Mahomed is the
last and final prophet; and recognises as a leader and reformer a person,
namely Mirza Ghulam Ahmad, who does not acknowledge the Prophet Mahomed
to be the last and final Prophet of Allah ... "
In response to this plea, the second plaintiff filed a "request for
further particulars to Defendants' Plea", in which a question was
put that arises as a direct and natural implication of their stand given
above. They were asked to state whether they rely on any further fundamental
doctrines or principles, in addition to the finality of prophethood, and
if so, to furnish full particulars of the same. The fact is that if one
starts "extending" the basic foundations of Islam, as taught
by the Holy Prophet Muhammad himself and as recognised throughout the
history of Islam, there is then no limit to what might be added under
the name "fundamental", nor would there be agreement on what
to add. The defendants were unable to stand their original ground, and
on 25 April 1983 they filed a notice to amend their first plea, the first
of many amendments they were to make during the whole course of the litigation.
They unashamedly amended their stand on the fundamentals of Islam as follows:
"While Defendants admit that the five doctrines and
principles listed by Plaintiffs may be described as fundamental to Islam
they do not thereby admit ... that such doctrines and principles are
the only ones which are of importance in defining the faith or that
adherence to such doctrines and principles alone constitutes a sufficient
basis to qualify a person to be called a Muslim. ... "
They now restrict the word "fundamental" to the five pillars,
and no longer refer to "further fundamentals", but to "other
principles and beliefs". Moreover, they are confusing the real issue
by using expressions such as "properly identified as a Muslim"
and "essential to the true Muslim". The question is not
what is required of a true and proper Muslim (nor can anyone be adjudged
as such by human authority). The issue is: Who can be called a Muslim
for purposes of civil law and civil rights, such as the right to worship
in a public mosque? If the defendants bring in the issue of "true
Muslim", the question arises whether all those persons whom they
allow into the mosques or permit to be buried in the cemeteries, which
are under their charge, have been determined by them to be true Muslims,
and if so, what criterion did they use!
"Acceptance of such principles alone does not constitute the
touchstone by which a person is properly identified as a Muslim. There
are many other principles and beliefs, acceptance of which is essential
to the true Muslim and failure to accept which constitutes apostasy."
Defendants' reasons for calling
Ahmadis as kafir
In this amendment, they pleaded the following grounds for regarding
Lahore Ahmadis as kafir:
"Plaintiffs fail to accept the following principles
and beliefs which are essential to adherence to Islam and are therefore
The change here, too, from the first plea can be clearly seen. They have
widened their definition of who can be said to deny the finality of prophethood,
going so far as to include even those who merely "do not repudiate
the teachings of Mirza Ghulam Ahmed". Moreover, by using the term
"and/or" above, they are having to cast a very wide net in order
to catch the Lahore Ahmadis. They are actually saying that even if Hazrat
Mirza Ghulam Ahmad did not claim to be a prophet, a person who
accepts him as a non-prophet receiving revelation from God, or even a
person who does not "repudiate" him, is denying the finality
of prophethood! This all-embracing statement has had to be made because
they lack any specific and solid allegations which could be directed against
(i) The finality of prophethood of the Prophet Muhammad, in that
they accept as a leader and reformer, alternatively do not repudiate
the teachings of, one Mirza Ghulam Ahmed, who claimed to be a prophet
and/or the Messiah and/or one who had received revelation from God.
(ii) The apostasy of the said Mirza Ghulam Ahmed.
(iii) The virgin birth and immaculate conception of Jesus Christ.
(iv) Jihad or religious war against unbelievers in Islam."
Defendants' exception against
First plaintiff succeeds
The exception filed by the defendants mentioned above, seeking to disqualify
the first plaintiff the Anjuman from pursuing the legal
action, was further amended by them on 24 May and 6 June 1983. They
gave further reasons as to why the Anjuman could not sue, such as "First
Plaintiff as an association is not capable of being defamed". Later
events showed clearly that the defendants adopted these tactics in an
attempt to have the case confined to legal technicalities only, so that
they could avoid the real issue of proving from Islamic teachings their
contention that Ahmadis are not Muslims.
The case for the exception was heard on 13 June 1983, and judgment
given in favour of the defendants by Justices Tebbutt and Van Heerden.
The exception was upheld on grounds such as: the wrongs of which Ahmadis
were complaining were not suffered by them as members of the Anjuman,
but rather because the defendants considered them as non-Muslims, and
the Anjuman was not alleging that it had suffered any wrong,
and was therefore seeking relief not for itself but for its members.
The Anjuman thus having been disentitled to pursue the case, the litigation
was continued on behalf of the second plaintiff, Mr Peck.
More pre-trial exchanges
Returning to the normal course of the case, there were a number of
"requests for further particulars" and replies thereto between
the plaintiff and the defendants in the period June to August 1983.
We would note only one point from these exchanges. The plaintiff, in
a request for particulars dated 15 June, asked the defendants for the
"State whether or not there are doctrines, principles
or beliefs (other than those listed by the plaintiff) which are requisite
to qualify a person as a Muslim. If yes, give particulars of all such
doctrines and principles."
The defendants' reply, of 7 July, was as follows:
"Defendants deny that Second Plaintiff requires the
Particulars requested for the purposes of pleading. Defendants plead
that there are in fact many other doctrines, principles or beliefs inherent
in Islam, but aver that the relevant beliefs and principles in Islam
which are not accepted by Plaintiffs and accordingly disqualify Plaintiffs
from being regarded as Muslims are those set out and described."
This is a plain and clear admission by the defendants that they cannot
give any positive definition of a Muslim. This is exactly the position
adopted by the Pakistan constitution and law in its declaration of Ahmadis
as kafir: no definition is given of what constitutes a Muslim,
in the light of which Ahmadis may be said to fall outside this faith;
there is simply an invidious statement that whoever holds Ahmadi beliefs
is a non-Muslim. The fact is that, besides the simple definition of a
Muslim taught by the Holy Prophet Muhammad himself, which has always been
relied upon by the Lahore Ahmadiyya Movement, there is no other
definition of a Muslim in Islamic teachings nor can one be devised without
departing from logic, commonsense, and the religion of Islam.
Defendants' Special Plea
a new ploy
After all these exchanges of details, the defendants sprang a surprise
in December 1983. They filed yet another amendment to their plea, by
inserting a "Special Plea", and at the same time gave notice
of filing an exception by means of which they raised the points made
in their special plea as well as some other points. We quote below at
length from this special plea, for the reason that from this stage onwards
it remained the crucial part of their pleadings and intended evidence.
The following arguments were adduced:
(a) The particulars of Plaintiff's claim involve a
decision as to whether Ahmadis are Muslims.
This was clearly a ploy to prevent the religious arguments being tested
by the court, after the defendants, having consulted "certain international
experts" (as referred to in their attorney's affidavit quoted further
on), realised how weak was their case against the Lahore Ahmadis. The
defendants had known from the beginning that this case would involve the
court discussing religious and doctrinal issues, but never before did
they say that "it is inappropriate for a Secular Court to attempt
to resolve these questions", and that the court must accept the decisions
of so-called "International bodies of Islamic ecclesiastical opinion".
Here 4 such bodies are cited, but in further amendments to their plea
they increased this number to 10 and finally to 12. Some of the bodies
listed, such as the Islamic Foundation of Leicester, England, and the
Islamic Council of Europe, do not even claim to have the "ecclesiastical
judicial functions" assigned to them by the defendants; they are
publishing, research, or administrative bureaus. Many others, such as
Darul-Uloom Deoband, are private theological colleges.
(b) The decision of that issue involves a determination of
the doctrinal and religious questions and/or disputes set out in ...
(c) These religious and doctrinal issues and disputes are
purely ecclesiastical in nature, and it is not appropriate for a Secular
Court to attempt to resolve these questions.
(d) Furthermore these religious and doctrinal issues and
disputes have been determined in favour of the contentions of the
Defendants by the First Defendant [the Muslim Judicial Council] and
by the International bodies of Islamic ecclesiastical opinion to which
First Defendant is affiliated namely the following: (i) Darul Uloom
of Deoband, India; (ii) Darul Ifta in Riyad; (iii) Al-Azhar in Egypt;
and (iv) Jamiatul-Ulama in Karachi, Pakistan.
(e) First Defendant and the said International Bodies referred
to are empowered to make decisions of an Islamic ecclesiastical nature,
and it is part of their normal functions to make such decisions which
are authoritative and binding as far as the Muslim world is concerned
in the areas in respect to which they carry on their ecclesiastical
(f) First Defendant and the said Bodies are fully conversant
with the doctrinal and religious questions referred to. They are peculiarly
and particularly qualified to adjudicate upon such questions and to
(g) In the premises this honourable Court cannot, alternatively
should not, attempt to resolve or adjudicate upon the said doctrinal
and religious issues and/or should accept and apply the decisions
of the First defendant and the said ecclesiastical bodies...
Defendants fail in filing
At the same time, on 20 December 1983, the defendants raised these
and some other points in a 'Notice of Exception' to the plaintiff's
claims, pleading for the claims to be set aside. In a further notice
of exception, on 1 February 1984, they asked for the second plaintiff
himself to be disqualified from pursuing his claim on various technical
grounds. However, as the stage to file exceptions had by now passed,
because the pleas were at an advanced stage, they had to apply to the
court to be allowed to file these exceptions out of time.
The application was heard in March 1984 by Mr Justice Tebbutt. In
affidavits submitted by the defendants' attorney, it was explained why
the exception was late and why their submission should be granted:
"... it was not appreciated at the time the Plea was
drawn just how complex and difficult the doctrinal issues in this case
were. This only became apparent when a detailed consultation was recently
held by me with certain international experts ... I personally travelled
to Pakistan, India and Saudi Arabia where I consulted a number of very
eminent experts on Islamic law, Islamic theology, Islamic history and
dogma, and on the movement of which the Ahmadis are followers. ... The
detailed consultations held with these experts disclosed that the evidence
which will have to be adduced and assessed in order to determine the
main issues will be of an extremely complex, protracted and technical
nature. ... Having had these consultations I now understand the full
import of: (a) the enormously complex preparation involved ... (b) the
trial on the issues arising will involve many weeks of extremely complex
expert testimony and analyses on very technical questions. ... If the
Special Plea is heard separately and upheld, it will be unnecessary
to lead all this complex and voluminous evidence and there will be a
dramatic saving in costs and in the time which will otherwise be consumed
in the Courts."
The court, however, dismissed this application with costs in judgment
given on 16 May 1984. The judge, referring to the defendants' explanation
for being out of time, wrote:
"This statement is vague in the extreme. It says that
the fact that 'some things' became manifest after consulting certain
experts is 'one' of the reasons for not excepting timeously but
no other reason or reasons are given ... In any event defendants, in
order to be able to plead, must have known and appreciated what the
issues were that are involved in this case and what their answers were
to the allegations made by the plaintiffs. A perusal of the defendants'
request for particulars to the particulars of claim, for further and
better particulars thereto, and of the replies to such requests [by
plaintiffs] makes that clear."
In their submissions quoted above, the defendants are really admitting
that it is too difficult to prove that Ahmadis are not Muslims.
It is then curious that the same international experts, when writing books
or making speeches for the ordinary Muslim public, are able to put forward
dozens of "obvious" reasons for calling Ahmadis as kafir,
and mosque preachers of quite average intelligence and education are able
to understand these reasons and communicate the same to the masses. It
appears that previously the defendants must have been under the impression,
created by the propaganda literature and the reputation of these "international
experts", that it is all too easy to show that Ahmadis are kafir.
However, in their "detailed consultations" with these experts,
what they actually realised was that, certainly in regard to the Lahore
Ahmadis, it is almost impossible to make out a religious case against
them which can pass the scrutiny of an impartial body like an independent
court of law. Therefore they tried to hide behind the excuse of "extremely
complex, protracted and technical evidence" which can only be assessed
by their "peculiarly and particularly qualified ecclesiastical bodies".
Preparation for trial
Top Pakistani experts come to defendants' aid
The defendants' application having been rejected, the litigation continued
its normal course. The hearing was set down for 1 November 1984. In
accordance with the rules of court, the defendants gave notice on 1
October of the expert witnesses they were intending to call in the trial.
The list consisted of six Pakistani legal and theological experts and
nine local religious leaders. The Pakistani witnesses listed are highly
prominent public figures in Pakistan, who are indeed leading international
experts in the murky field of declaring Ahmadis as kafir. Certainly
the defendants could not have found in the whole world any other witnesses
so well-qualified for this purpose or of such a high status, as these
dignitaries. If they cannot prove that Ahmadis are kafir,
then no one else can. We quote below the names of these six along with
some of their qualifications, as given in the defendants' notice to
1. Moulana Muhammad Zafar Ahmed
Ansari: Former member of the National Assembly of Pakistan.
Founder member of the Constitutional Council of the Muslim World League.
... Member of the Council of Islamic Ideology ... a body established
under the Constitution of Pakistan. Chairman of the Constitution Commission
appointed by the President of Pakistan to advise the President on the
future constitutional development of Pakistan. ...
We have reproduced the above details from the defendants' official notice
to show that in this court case the Lahore Ahmadis were facing, not just
some local religious leaders of Cape Town who may be said to lack expertise,
but really the topmost grade of opposition to the Ahmadiyya Movement in
the world. Besides being opponents of Ahmadis, these dignitaries hold
very high judicial positions in their country, some higher than even the
Cape Town supreme court judges who were hearing the case! While these
witnesses for the defence were themselves supreme court judges or greater,
the witnesses for the Ahmadis had never even testified in a court of law
before! It was truly a David against Goliath combat.
2. Mr Justice (Retired) Mohammad Afzal
Cheema: ... Member of the National Assembly of Pakistan
19621965 ... Former acting speaker of the National Assembly
19621965. Acting President of the Islamic Republic of Pakistan,
May 1963. Judge of the West Pakistan and Lahore High Courts. Federal
Law Secretary of the Government of Pakistan, appointed 14 May 1973.
Elevated as a Judge of the Supreme Court of Pakistan, October 1974
... Current member of the Constitution Commission appointed by the
President of Pakistan. ...
3. Maulana Justice Muhammad Taqi Usmani:
... Member of the Constitution Commission established by the President
of Pakistan. ... Presently Judge of the Supreme Court of Pakistan
(Shariat Bench). ...
4. Professor Khurshid Ahmad:
Former Minister of Planning and Statistics in the Federal Cabinet
of Pakistan. Former Deputy Chairman of the Planning Commission of
Pakistan. Former Director-General and present Chairman of the Islamic
Foundation, Leicester, United Kingdom. ...
5. Dr Sayed Riazul Hasan Gilani:
Senior Lecturer higher Islamic Law, Punjab University. Senior Advisor
High Court and Supreme Court of Pakistan. Standing Counsel of the
Government of Pakistan in the Federal Shariat Court and in the Shariat
Appeal Bench of the Supreme Court. ...
6. Professor Mehmood Ahmad Ghazi:
Associate professor, Islamic Research Institute, Islamabad, Pakistan.
... Juris consultant of the Federal Shariat Court. Associate member
of the Constitution Commission appointed by the President of Pakistan.
The defendants filed further amendments to their plea on 2nd and 5th
October 1984, adding the allegations that Ahmadis are instructed by
their Founder to have "no religiously acceptable association with
Muslims" and "to create for themselves a separate religion
and a separate religious existence". On this basis they pleaded
that the plaintiff's action was "of an academic nature in that
the plaintiff cannot and will not seek to participate in the religious
organisation and institutions led by the Defendants" and "this
honourable court should refuse to enter into a protracted and complicated
dispute of an academic nature". We say that Ahmadis had taken the
legal action to gain the right to use the mosque and cemetery.
That they may not join the defendants in religious services does
not make the Ahmadis' claim merely academic, because they can still
use these facilities which are there for the benefit of all
Muslims. In fact, the only reason Ahmadis would not join in religious
services with the defendants is the latter's own action in condemning
them as kafir. If they announce that they consider Ahmadis and
their Founder Hazrat Mirza Ghulam Ahmad to be Muslims, our members would
be happy to say prayers behind them.
It can be seen that the defendants were all the time trying desparately
to think of reasons with which they could persuade the court not to
admit the religious evidence on the issue of whether Ahmadis are Muslims
or not. And as they thought of one reason after another, no matter how
implausible or cynical, so they gave notice of further amendments to
their original plea.
1984 hearing Defendants
submit preliminary questions
The final consolidated plea by the defendants, incorporating the various
arguments referred to in the foregoing account of their pleas and amendments,
was filed on 29 October 1984. On the same day, they gave notice in terms
of a certain rule of court that, at the start of the hearing, they intended
to apply for certain questions "to be determined in limine
and separately from the merits of this action, and for all proceedings
in the action to be stayed until the said questions have been disposed
of". There were five such questions, the first three contesting,
on the basis of various technical grounds, the entitlement of the second
plaintiff to approach the court for the relief that he sought. The other
two questions were both "whether or not the Court should decline
to hear the merits of the dispute as to whether Ahmadis are Muslims
or not", in each question a different ground being advanced to
support the contention. Both these grounds have been mentioned above.
The first was that a secular court could not adjudicate on religious
issues, and that it should accept the decisions of the first defendant
and the "international ecclesiastical bodies". The second
ground was that the case was "academic" and "not bone
fide with the object of securing and enforcing a legal right but
... abuse of the process of court in order to obtain an ideological
or religious advantage which falls outside the legitimate purposes for
which the process of the court is designed".
The hearing opened on 6 November 1984 in the court of Mr Justice Berman.
It lasted three days and was confined to legal arguments on the preliminary
questions raised by the defence. The Pakistani expert witnesses to be
called by the defendants, including the highly placed Justice Muhammad
Afzal Cheema, were in Cape Town for the trial. At the end of the hearing,
judgment was reserved. It was some months later, on 24 July 1985, that
judgment was delivered. The contentions of the defendants were rejected,
and all the questions were answered in favour of the plaintiff. An extract
from the judgment of Mr Justice Berman is quoted in the final judgment
of the case, reproduced in Part II of this book, to which the reader
is referred for the grounds on which the defendants' arguments were
The final phase November
The date 5 November 1985 was now set for the trial to resume, and for
the plaintiff and the defendants to present the religious case on the
issue of whether Ahmadis are Muslims or not, as outlined in the respective
pleadings of the two parties. In October the defendants' attorneys sent
a letter to the plaintiff's attorneys stating clearly that the defence
would fight the case in court. The plaintiff made full and intensive
preparation for the case during that month. The one religious expert
witness to testify for the Ahmadis (as against the 15 whom the defence
intended to call) was Maulana Hafiz Sher Mohammad, an accomplished
missionary, scholar, lecturer and author who has worked for the Central
Ahmadiyya Anjuman Isha`at Islam Lahore since about 1940. He had prepared
expert theological and historical testimony on a wide range of vital
topics, such as the definition of a Muslim, beliefs of Ahmadis, claims
of Hazrat Mirza Ghulam Ahmad, as may be seen from the Evidence part
of this book. This material is based on references to a large number
of sources, classical and modern, and in order to present it as legal
evidence in court he had to have the original sources ready at hand,
as any of these could be required for proving authenticity. This was
an enormous practical problem, but the Maulana managed to transport
with him to Cape Town a veritable library of books and journals, ready
for court inspection if required. Plaintiff's counsel, Mr Edwin King
SC, assisted by Mr Colin Prest, were briefed by the expert witness over
a number of days on all aspects of the religious issues involved and
the evidence to be offered. Dr Zahid Aziz, the author of these lines,
acted as interpreter between the counsel and the Maulana, translating
between Urdu and English.
The trial dramatic
The hearing opened on the set date in the court of Mr Justice D. M.
Williamson. As I was there throughout the trial, the following account
is based on my observation. A very large court room with an upper gallery
was packed to the brim with members of the Muslim public, predominantly
supporters of the defendants who had been instructed by their religious
leaders to attend but for a purpose that only became apparent
a little later. As the proceedings opened, the junior counsel for the
defence made a lengthy statement. (The senior defence counsel, Ismail
Mohammad SC, who had appeared in previous hearings, was absent.)
He said that his clients could not accept "the jurisdiction of
this honourable court to determine who is a Muslim". He added that
this question had been put to the "Muslim leadership of South Africa",
and further that they had "canvassed the opinions of the international
Muslim community" on this point. They had, so he alleged, found
the "common point of view throughout the Islamic world", which
he termed an ijma, that Muslims "cannot accept a determination
from a non-Muslim judge as to who is a Muslim". He claimed that
the defendants had received messages from "Muslim organisations
throughout the world ... representing hundreds of millions of people"
expressing this view. The counsel for the defence then announced that
"the defendants wish no longer to participate in these proceedings
... they withdraw their defence in this matter".
The defendants, their counsel, and their supporters in the public
then all walked out of the court room, never to return. Their supporters
had been instructed to attend, just for the purpose of staging the walk-out.
For the rest of the trial, while we gave evidence, the local religious
leaders had given strict instructions to their followers not to attend
the proceedings. Anyone doing so, risked being classed as an Ahmadi
or Ahmadi sympathiser by them, and treated accordingly.
Ahmadis present full case
With the withdrawal of the defendants, we were not obliged to present
a full case, but had only to give our arguments in brief. However, we
decided against this course and presented our case fully, just as it
would have been in the presence of the defendants, so that the mass
of evidence may be given an open hearing and placed permanently on public
record. The plaintiff's counsel opened the case and called Maulana Hafiz
Sher Mohammad to the witness stand. (I had been sworn in as his interpreter.)
After some general testimony about the religion of Islam, the expert
witness went through his prepared evidence as given in Part III of this
book. On each topic, a document was submitted to the court as an exhibit,
and then the witness introduced the topic and went through the bulk
of the document in oral testimony. The court frequently interposed to
question the witness on points and conclusions arising out of the evidence.
As may be seen from the record of the evidence, it not only presented
the positive aspect of our case, i.e., the definition in Islam of a
Muslim, and showing that Ahmadis clearly satisfy that definition, but
it also refuted the arguments against the Ahmadis' case as advanced
by the defendants in their pleas, which have been referred to in this
account. Hafiz Sher Mohammad gave evidence for five and a half days,
and throughout he stood in the witness box despite the offer of a seat.
Then the second plaintiff, Mr Ismail Peck, gave evidence on the wrongs
he had suffered personally as a result of the defendants' actions. The
last witness was the plaintiff's attorney, Mr Rashad Khan, who gave
evidence on the question of costs, particularly with regard to the defendants'
conduct in concealing their decision to withdraw till the last moment,
thereby putting our side to much extra preparation and expense. Finally,
plaintiff's senior counsel summarised the whole of the case, religious
and legal, a task which took one full day. As the defendants had elected
to withdraw from the trial, naturally no case was presented on their
Judgment was given on Wednesday 20 November 1985. The judge summarised
all the religious and legal evidence presented, and on the basis of
that he granted the plaintiff all the orders that were sought. So ended
the three year long legal battle that had become known as the 'Ahmadiyya
Case', with the claim being accepted that a member of the Ahmadiyya
Anjuman Isha`at Islam Lahore is a Muslim and entitled to all the rights
pertaining to Muslims.
Pakistani witnesses make misleading
The earlier stages of this case had been given much publicity in Pakistani
newspapers (both home and foreign editions) by the Pakistani religious
and legal experts who were witnesses for the defendants. This reporting
was often erroneous and untrue. At one intermediate stage, when we suffered
a reverse, these newspapers reported that Ahmadis had been officially
declared kafir in South Africa! At the final stage in 1985 however,
the start of the hearings and the defendants' withdrawal were not reported
at all. After judgment was given, and announced in other sources, these
newspapers had no option but to print the news, and the witnesses had
to make press comment. The witnesses published lengthy statements saying
that "Qadianis" had been declared Muslim "by a biassed
Jewish judge". This was further said to show "the link between
Qadianis and Israel"!
Maulana Zafar Ahmad Ansari, witness no.1 of the defendants, was reported
as follows in the well-known Urdu daily Jang:
"The former head of the Pakistan Constitution Commission
and the leader of the Pakistani delegation which went to South Africa
last year in pursuance of the court case between Qadianis and the Muslim
Judicial Council there, Maulana Zafar Ahmad Ansari, has said that no
non-Muslim court has the right to give a judgment as to whether a person
is Muslim or not. He was commenting on the South African Supreme Court
judgment according to which Justice Williamson declared Qadianis to
be Muslims. Maulana Ansari said that this judge is a Jew, and it was
because of his being a Jew that the Muslim Judicial Council boycotted
the court proceedings, and had said that no non-Muslim court had the
right to decide on religious affairs of the Muslims. He said that, by
the unilateral verdict of this Jewish judge, the Qadianis and the Ahmadis
would not become Muslims. ... He said that, in view of the special relations
of the Qadianis with Israel and the Jews, what else could be expected
from this Jewish judge except that he would declare Qadianis to be Muslims."
Sayyid Riaz-ul-Hasan Gilani, another of the expert witnesses who had been
in Cape Town for the 1984 hearing, and was now Deputy Attorney-General
of the Punjab province, said:
(Jang, London edition, 2 December 1985, front page)
"In October 1984, when the proper hearing of the case
began, the judge was changed, and a biassed Jew was appointed judge.
At that stage, we said that there should first be a discussion on the
scope of authority of the court, because this is a Muslim issue, and
a secular or non-Muslim forum does not have the competence and authority
to settle it. The Jewish judge did not accept this. At that stage we
decided to boycott this Jewish court. The Muslim Judicial Council of
Cape Town took the position that, as justice could not be expected from
this Jewish judge, they would boycott. On 8 November , the Jewish
judge recorded the statement of a Qadiani named Sher Muhammad in which
he said: We do not deny the finality of prophethood, we accept the Holy
Prophet Muhammad as the Last Prophet. As the evidence of the Qadiani
witness was not challenged, nor was it given in the presence of Muslims,
hence this judgment has no value."
It should be noted that it was entirely through their own choice and
decision that the defendants were not present at the hearing. We had
certainly prepared our case to be presented in their presence.
They have only themselves to blame for their absence.
(Jang, London edition, 4 December 1985, pages 8 and 7; Lahore
edition, 1 December 1985, front page)
There were similar misleading statements from other theologians and
lawyers in Pakistan. These press statements also sought to tarnish the
judgment by associating it with the apartheid system: "the judgment
of the Jewish court of the racialist government of South Africa",
"this judgment is as hateful as the racialist government of South
Africa" (Jang, Lahore, 1st December 1985).
Firstly, it was only Lahore Ahmadis who were involved in the court
case and not Qadianis. The term "Qadiani" refers to a different
sect and movement, and its use here is highly misleading. Secondly,
we consider the reference to the religion of the judge to be irrelevant,
out of order, and distasteful. Moreover, the judge was not a Jew.
The learned judge in question is a Christian, but we hasten to repeat
that such considerations are irrelevant so far as we are concerned.
The learned judge at the 1984 hearing was, we understand, of the Jewish
faith. The Pakistani expert witnesses, including the spokesmen referred
to above, were present in his court, but their side raised no objection
then about the judge being a Jew.
Thirdly, the fact that apartheid exists in South Africa does not mean,
by any stretch of the imagination, that all judgments of the courts
of law of that country are worthless, or that its judiciary is not
reputable. Non-white inhabitants of South Africa generally, and even
leading campaigners against apartheid, approach courts there for the
redress of their grievances. There are several instances of courts handing
down judgments against the state, in favour of opponents of apartheid.
The Guardian, the liberal British newspaper which is a staunch
opponent of apartheid, comments: "South African judges have never
shed their capacity for independent thought and have often delivered
rulings against the government" (11 December 1985, editorial).
Muslim cases in non-Muslim
Lastly, the chief objection repeated again and again is that a non-Muslim,
secular court cannot rule on Islamic religious matters, and more particularly
that such a court cannot determine who is a Muslim. As regards the issue
in general, there have always been legal cases in countries with Muslim
minorities, such as India or South Africa, in which the court had to
give a judgment based on Islamic teachings. Instances of such cases
in South Africa have been referred to in the judgment of our own case
given in this book. The Muslim Judicial Council itself has been involved
in civil cases against Sunni Muslims, in which the courts had to make
determinations according to Islamic law. Footnote
In India, from the days of British rule to the present day, there
have been cases all the time in which Christian, Hindu, or other non-Muslim
judges, in a secular court, have had to give judgments based on a consideration
of Islamic practice and law. Some of these cases, in connection with
personal law, involved the specific question of determining whether
a certain person was a Muslim or not. In the late nineteenth century,
three cases went up from India to the Privy Council in London, the highest
court of appeal for India at the time, between the Hanafis and members
of the Ahl-i Hadith sect on the issue of whether the former could exclude
the latter from attending mosques for prayer because of differences
in the manner of offering the service. The court had to rule on the
basis of Islamic teachings and practice, and obviously both Muslim parties
considered the court capable of doing so. (Incidentally, it was upheld
by the courts that a mosque must be open to all Muslims. See Islamic
Revival in British India, by Dr Barbara Metcalf, Princeton University
Press, U.S.A., pp. 286287.)
"Non-Muslim can be judge
of Shariat court" Dr Israr Ahmad
The above was the headline in the Jang, reporting a forum held
by this newspaper in 1986, at which the concept of proposed Shariat
courts (courts to decide cases according to Islamic law) was discussed.
Dr Israr Ahmad, a most famous religious scholar of Pakistan, was asked
at the seminar about the qualifications of judges for these courts.
"A judge could be appointed just as High Court judges
are appointed. We do not ask that there should be a separate panel of
theologians. ... The real issue is that of setting up a court. We are
not even mentioning religious leaders. Good examples of this were given
in the speech by Mian Tufail Muhammad [head of Jamaat Islami,
the main Islamic political party] at the Shariat convention, namely,
that under the British, the courts used to settle many matters of personal
law according to Islamic law, and in those courts Hindu judges gave
rulings. It makes no difference who the judge is. It is not necessary
to have a scholar of religion as judge. ... In this matter we say that
a court must be set up, even if the judge is a non-Muslim."
The Jang asked him: "Can a non-Muslim
be its judge?" He replied:
"He can be. Justice Cornelius [famous Christian Justice
in Pakistan] can determine that a certain thing conforms to Islamic
law and another thing does not. Any person who is an expert can decide
as to what is right or wrong according to the American constitution,
or the British traditions. In the same way, the Quran and Sunna is not
a complicated thing. There is the Book of God, and there is the Sunna
of the Holy Prophet, and this system has been continuing for thirteen
(Jang, Rawalpindi edition, magazine section, 1420 November
1986, page 2)
Verdict of a Muslim court
If our opponents are unwilling, on grounds of conscience as they contend,
to accept the decision of a non-Muslim court, let us refer them to the
findings of Muslim judges in a Muslim country. In 19534,
the Munir Court of Enquiry in Pakistan investigated anti-Ahmadiyya disturbances
which had then taken place in the Punjab. The enquiry examined at length
the issue of 'Who is a Muslim', in the light of exactly this claim of
the Ulama that the Ahmadis are non-Muslim. After questioning all the
leading Ulama of Pakistan at the time, who were the predecessors and
teachers of the expert witnesses against us in this case, the two eminent
judges came to the following conclusions in their report.
Are the expert witnesses prepared to accept these findings of Muslim
judges, from a public enquiry set up by Muslim authorities in their own
country, Pakistan, at which their predecessors of a generation ago gave
- "Keeping in view the several definitions
of a Muslim given by the Ulama, need we make any comment except that
no two learned divines are agreed on this fundamental."
(p. 218 of the report)
- The report refers in detail to the rulings (fatwa) of the
Ulama of various sects condemning other sects as kafir, and
to the belief of all of them that apostasy under Islamic law carries
the death penalty. It concludes:
"The net result of all this is that
neither Shias nor Sunnis nor Deobandis nor Ahl-i Hadith nor Barelvis
are Muslims and any change from one view to the other must
be accompanied in an Islamic state with the penalty of death if
the Government of the State is in the hands of the party which considers
the other party to be kafirs." (p. 219)
- Justice Munir relates in his later book From Jinnah to Zia
that when Maulana Sayyid Abul Ala Maudoodi, the topmost of the Ulama
opposed to the Ahmadiyya Movement, was asked at the enquiry to give
his definition of a Muslim, he "could not define a Muslim as
excluding the Ahmadis from Islam". Munir then adds:
"Realising his mistake on the day following ... an application
was made by Mr Said Malik, the representative of the [Maudoodi]
Jamaat, that the question 'Who is a Muslim' was asked without notice.
The application was rejected [by the court] on the ground that a
person who calls another kafir is supposed to know who a
Muslim is." (p. 136)
WHICH PARTY ACCEPTS ALLAH'S
It is alleged by our opponents that our approaching a non-Muslim court
implies somehow that we do not accept Allah's judgment. As a matter
of fact, we are the ones who accept the judgment
of Allah and His Messenger Muhammad (may peace and the blessings of
God be upon him!), because our entire case was based on presenting
the teachings of the Holy Quran and the Holy Prophet to show that Ahmadis
are Muslims. That evidence is now recorded in the book The
Ahmadiyya Case for all to ponder over.
It is the defendants and their religious experts who have rejected
the judgment of Allah and His Messenger, because they refused to
give evidence from the word of Allah and His Messenger to prove their
case. They have refused to recognise the clear definition of a Muslim
given by the Holy Messenger of Allah, by his word and practice. In fact,
their submissions quoted earlier mean that they consider the judgment
of their "international ecclesiastical bodies" to be the same
as the judgment of Allah and His Messenger, which therefore cannot be
END OF HISTORY OF THE CASE
Footnotes referred to in the History of the Case
It is interesting to record that, just prior to this, when the news of
the impending litigation was reported in Pakistan newspapers, two Christian
bodies in Pakistan filed separate submissions to the Supreme Court in
Cape Town for becoming parties to the case in opposition to the Ahmadis.
One submission was received from a Mr. Patras Gill, President of the National
Masihi Kashtkar Party, claiming to be "a representative of all Afro-Asian
Christians", who pleaded that he be allowed to "expose the heretical and
heathen beliefs of the followers of Mirza Ghulam Ahmad", otherwise "the
world-wide Christian community will suffer an irreparable loss and injury"
(submission dated 23 August 1982, Lahore). The other submission, from
a James Subbay Khan, President of the Pakistan National Christian League,
was along similar lines, and among its accusations against Ahmadis one
was that they "are the creation of British rulers during their reign"
and "were against the ideology of Pakistan at the time of partition" (submission
dated 28 August 1982, Lahore). Coming from Christians, these allegations
are particularly ludicrous! Both submissions also alleged that Ahmadis
were "creating communal riots between Christians and Muslims in Lebanon".
This intervention by Christian organisations calls to mind Hazrat Mirza
Ghulam Ahmad's prophecy, which he has mentioned several times, that Christian
missionaries and the self-seeking, literalist Muslim Ulama would make
common cause against him.
Back to text of History of the Case
These lines were written in 1986, about six years before Apartheid was
abolished in South Africa.
Back to text of History of the Case
It was only a mere two years after this case that in the case brought
by Sheik Jassiem against the MJC, the same defendants contradicted their
position adopted in the Ahmadiyya case by presenting religious arguments
in the same secular courts.
Back to text of History of the Case