1. MUHAMMAD AFZAL SOOMRO, J.--- 1. Over ruled in view of the order, proposed to be passed, at serial Nos,2 and 3. 2 & 3. Through this Constitutional petition, invoking Constitutional jurisdiction of This Court, the petitioner-Club, being recreational club (hereinafter referred to as "Club") having been duly registered under section 21 of the Societies Registration Act, 1860, has approached this Court with the following prayer:--
(i) Declared that the impugned action on the part of the respondents Nos,2 and 3 amounts to curtailment/abridgment of fundamental rights of movement etc., guaranteed by the Constitution of Islamic Republic of Pakistan.
(ii) Declare that deployment of police force and detainment of the police mobiles at the club or nearby is an illegal act and amounts to misuse of the authority on the part of the respondents.
(iii) Direct the respondents Nos,2 and 3 to forthwith order for removal of the police force/police mobiles and also restrain the respondents Nos,2 and 3 from causing any such kind of harassment in future and also desist in harassing the club in any other manner.
(iv) grant any other relief or reliefs, which this Honourable Court may deem fit and proper.
(v) Grant the costs of this petition.
2. The brief facts leading to the filing of this Constitutional petition are that the said Club, registered as above in lieu of payment of Government fee and having its own bye-laws, is providing indoor recreational facilities such as Billiard, Snooker, Skittle, Carom Board, Card and Lido etc. right from 1953-54 and till the year 2000 the Club was being run/managed without any interruption from any corner. However, in the year 2001 litigation started due to the reason that names of certain persons were recommended for giving them membership but since the said recommendations were not accepted by the Management of the Club on account of its decision to stop any fresh membership. This refusal for membership led to the grudge by the high officials in the Government functionary and obstructions were started to be created for one or the other reason. In that eventuality, the said Club, apart from filing Constitutional Petitions bearing Nos,S-105 and 255 of 2003 also approached the Civil Court where in view of firm promises/assurances/ undertakings to the effect that no interference/no harassment would be caused by the police, all the matters were disposed of. It has, further, been averred in the memo. of petition that in spite of above promises and assurances leading to the conclusion of litigation, the personal grudge/vengeance on the part of the high ups of the police including respondents Nos,2 and 3 did not end and they while following said ill-will, set up a forged story and succeeded to get registered a case against the Club and its members bearing F.I.R. No,110 of 2004 under section 3/4, 5/5-A of the Gambling Ordinance and on the strength of this F.I.R. respondents Nos,2 and 3 moved to the Provincial Assistant Registrar (Joint Stock Companies Sindh, Karachi) seeking cancellation of license, having already been issued to the Club. The said Provincial Assistant Registrar mere filing of said reference for cancellation of license, without providing an opportunity to the petitioner-Club, cancelled its license through letter bearing No,PARK/KAR/REGN/2004/ 1126-43 dated Nil of November, 2004. The Club again approached this Court by filing Constitutional Petition bearing No,D-1363 of 2004 which was allowed and the cancellation of license issued to the Club was set aside. So far as F.I.R., as above, is concerned, it has been averred in the memo. of petition that the proceedings initiated in consequence of such F.I.R. before the learned VIIth Judicial Magistrate, Karachi South were quashed by this Court vide order, dated 20-4-2005 passed in Criminal Miscellaneous Application No,37 of 2005. It has, also, been averred that one another false F.I.R. bearing No,58 of 2004 also resulted in acquittal vide order, dated 20-7-2004 passed by learned VIIth Civil Judge and Judicial Magistrate, Karachi South in Criminal case No,270 of 2004. However, after the said order of acquittal attaining finality, the members and the Management of the said Club, having themselves found falsely implicated, filed a Civil Suit bearing No,1052 of 2004 before Court praying for damages, compensation, declaration and permanent injunction. In that eventuality, it has, further been averred, respondents Nos,2 and 3 called the elected office-bearers of the Club on 26th April, 2005 and put the condition to the effect that club would be allowed to run subject to withdrawal of the above-stated civil suit. However, the said elected office-bearers refused to accept the said demand and in this background, it has been averred in the memo. of petition, respondent No,3 proceeded to depute permanent police force just to pressurize the members and the management of the Club. It is disclosed that neither the members nor the office-bearers of the Club are permitted to enter into the Club and entire working has been brought to a halt.
3. Therefore, looking to the above-background of the matter, I have proceeded to decide the same on merits though the learned Additional Advocate-General, Sindh, Mr. Arshad Lodhi, made usual statement that neither there was nor there will be any harassment on the part of respondents Nos,2 and 3 without considering the comments, filed by them, single word of which does not rebut the allegation levelled against them in the memo. of the petition.
4. I have heard the learned counsel for the petitioner and the learned Additional Advocate-General, Sindh.
5. It has been contended by the learned counsel that action on the part of respondents Nos,2 and 3 by deputing police force is absolutely illegal, malicious and without lawful authority and has been designed with a view to penalize the office-bearers of the Club to have ventured to knock the door of justice. It has also been contended by the learned counsel that the said action has resulted in curtailment and abridgment of the fundamental right of movement etc. guaranteed by the Constitution of Islamic Republic of Pakistan. It has, also been contended by the learned counsel that the said action of respondents Nos,2 and 3 amounts to creating sheer harassment to the Club and its office-bearers/members inasmuch as the Club being a Registered Body and having valid/existing/ subsisting license issued by the competent authority, respondents Nos,2 and 3 have no right and authority to interfere in the smooth running of the Club.
6. Learned Additional Advocate-General, Sindh, Mr. Arshad Lodhi, as stated above, has made statement which usually comes .on record on the part of the State without looking to the facts and circumstances of the case.
7. I have considered the arguments, advanced on behalf of the respective parties, perused record including the comments filed by respondents Nos,2 and 3.
8. Perusal of record reveals that this Constitutional petition arises from a painful story gives mockery of law on the part of members of Police Department who have used their tactics for floating out the justice having been done by the judiciary to the petitioner-Club. Record further reveals that petitioner-Club, having registered under section 21 of the Societies Registration Act, 1860 in the year 1953-54 and is being run in lieu of payment of Government fee, having its own bye-laws, is providing indoor recreational facilities such as Billiard, Snooker, Skittle, Carom Board, Card and Lido etc. However, in the year 2001 litigation alleged to have started due to the reason that names of certain persons were recommended for giving them membership but since the said recommendations were not accepted by the Management of the Club on account of its decision to stop any fresh membership. It has, further, been alleged that this refusal for membership led to the grudge by the high officials in the Government Functionary/Police Department and obstructions were started to be created for one or the other reason. The said allegations find support from the background stated above and in my considered view that this is not a simple case of harassm ent where the applicant should have approached the concerned Sessions Judge under section 22-A, Cr.P.C. inasmuch as this is the case where not only a body (Management of the Club) which is also defined as person but also its members have been deprived of their fundamental rights, hence the facts involved in this matter call interference of this Court under its Constitutional jurisdiction. I have, therefore, proceeded with this matter as against the normal procedure according to which the applicant should have been set at liberty to approach the concerned Sessions Judge under section 22-A, Cr.P.C.
9. I have carefully gone through the record according to which the said Club, apart from filing Constitutional Petitions bearing Nos,S-105 and 255 of 2003 also approached the Civil Court where in view of firm promises/assurances/under takings to the effect that no interference would be caused by the police all the matters were disposed of. Furthermore, registration of a case against the Club and its members bearing F.I.R. No,110 of 2004 under sections 3/4, 5/5-A of the Gambling Ordinance, consequent approach by respondents Nos,2 and 3 to the Provincial Assistant Registrar (Joint Stock Companies, Sindh, Karachi) seeking cancellation of license, having already been issued to the Club; whereafter cancellation of license by said Provincial Assistant Registrar upon mere filing of a Reference without providing any opportunity to the petitioner-Club indicate the mala fide on the part of respondents Nos,2 and 3. However, upon approaching this Court by filing Constitutional Petition bearing No,D-1363 of 2004 by the petitioner-Club, the license was restored.
10. There is another endeavour made by respondents Nos,2 and 3 whereby they registered F.I.R. bearing No,110 of 2004, proceedings consequence of initiated before the learned VIIth Judicial Magistrate, Karachi South were quashed by this Court vide order, dated 20-4-2005 passed in Criminal Miscellaneous Application No,37 of 2005. Moreover, another effort in the shape of F.I.R. bearing No,58 of 2004 also resulted in acquittal vide order, dated 20-7-2004 passed by learned VIIth Civil Judge and Judicial Magistrate Karachi South in Criminal Case No,270 of 2004. Obviously, the members and the Management of the said Club, having themselves found falsely implicated, were justified to file the proceedings against the respondents in the shape of a Civil Suit bearing No,1052 of 2004 before this Court praying for damages, compensation, declaration and permanent injunction. Respondents Nos,2 and 3 in that eventuality, would certainly, have called the elected office-bearers of the Club put the condition to the effect that Club would be allowed to run subject to withdrawal of the above-stated civil suit. However, upon failure to get any favour from the elected office-bearers, respondent No,3, having mala fide motive, proceeded to depute permanent police force to pressurize the members and the management of the Club and according to the contention of the learned counsel as well as affidavits, sworn by 16 members of the Club and so also a photostat copy of an order, issued on 26-4-2005 by respondent No,3, directing his subordinates to keep surveillance; neither the members nor the office-bearers of the Club are permitted to enter into the Club and entire working has been brought to a stand still. However, to hide their mala fide as proved not only by the contentions of the learned counsel, having not been rebutted, and other relevant record including photographs attached with the memo. of petition, respondents Nos,2 and 3 have come out with a different story that there is criminal activity in the area being attached with the sensitive part of Lyari Town. I am not convinced with this defence for the reason that criminals are found in the whole city and to prevent the acts of those criminals always patrolling duty of police personnel in mobile vans is to be scheduled by the Station House Officers ofdifferent police stations.
11. In these circumstances, I am of the considered view that deputing police force in the shape of picket at the door of the Club, in view of the background of litigation leading to mala fide on the part of respondents Nos,2 and 3, amounts to deprive the citizens/members of the Club from their fundamental right of entering into Club.
12. Resultantly, I allow this petition and declare that-
(i) action of respondents Nos,2 and 3 amounts to curtailment/ abridgment of fundamental rights of movement guaranteed by the Constitution of Islamic Republic o--f Pakistan, 1973;
(ii) deployment of police force and detainment of the police mobiles at the Club nearby is an illegal act and amounts to misuse of the authority on the part of respondents Nos,2 and 3; and
(iii) direct respondents Nos,2 and 3 to forthwith order for removal of the police force/police mobiles and also restrain them from causing any such kind of harassment in future and also desist in harassing the Club in any other manner.
13. Furthermore, if any hindrance is created by the respondents in running the Club according to the terms and conditions, mentioned in the license, the Management and members of the Club would be at liberty to approach appropriate forum against the respondents for taking action against them.
14. C.P. No,S-262 of 2005 stands disposed of.