' MAULVI ANWARUL HAQ, J.--- According to the writ petition, the petitioner is proprietor of a theater being run in the name of Babar Auditorium and is running the same in accordance with the provisions of the Dramatic Performance Act, 1876 (hereinafter to be referred to as the said Act). He feels aggrieved of orders Annexes: 'A' and 'A/1' both passed on 4-10-2005 by respondent No, 1 .
Though the first order, the temporary/provisional permission granted by the Home Department to the petitioner has been withdrawn and he has been prohibited from further presentation of theatrical performances/stage plays at the said premises while through the second order, the D.C.O., Multan, has been directed not to issue N.O. Cs. For dramatic performances at the said theater. The plea being taken on behalf of the petitioner is that the respondent No,1 has no lawful authority to pass the said orders. The reason being that by virtue of an amendment made in the Punjab Local Government Ordinance, 2001, it is the District Government who has been authorized to implement the provisions of the said Act. The respondents have filed their replies. It has been stated that at an earlier occasion, the matter came up for consideration of the Honourable Chief Justice of this Court in Writ Petition No,10792 of 2003 and that Standard Operating Procedures
(SOPs) were notified in accordance with the directives contained in the judgments dated 25-9- 2003. It has further been stated that I.C.As. Were dismissed while the Civil Petitions were dismissed by the Honourable Supreme Court of Pakistan on 30-12-2004. According to the respondents, they are duly authorized to pass the impugned orders.
2. Learned counsel for the petitioner contends that section 141 of the Punjab Local Government Ordinance, 2001, was amended vide section 63 of Punjab Local Government (Amendment) Act, 2005, on 9-7-2005. The laws specified in the 10th Schedule to the said Ordinance shall be enforced by the Local Governments specified therein and at Sr. No,12 of the said Schedule, it is the City District Government/District Government who is responsible for enforcement of the said Act of 1876, vide notification (Annex: 'H'); the precise contention is that the respondent No,1 would be having no lawful authority to pass the impugned order while purporting to enforce the provisions of the said Act of 1876. It is further contended that the said penalty imposed has not been prescribed in the said Act of 1876. Learned A.A.-G., on the other hand, states that the petitioner persistently enacting dramatic performances in his theater where% the Artists particularly the ladies performed obscene acts and utter obscenities. He has referred to several reports made by the inspecting authorities in this behalf. According to him, the respondent No,1 has passed the order as the complaint related to a period earlier than June, 2005, when the said amendment was made.
3. I have given some thought to the respective contentions of the learned counsel and the learned Law officer. The reports do go to show that the performances being enacted are obscene and indecent. However, I also find that the said Act of 1876, does not properly cater for the said acts being committed in the theater of the petitioner. I have examined the said Act of 1876 with the assistance of the learned counsel and the learned A.A.-G. The preamble narrates the purpose of the Act as to empower the Government to prohibit public dramatic performances which are scandalous, defamatory, seditious or obscene. Now section 3 of the said Act empowers the Provincial Government to prohibit the performance of any play, pantomime or other drama performed or about to be performed in public place if it is of the opinion that the same is:--
(a) of a scandalous or defamatory nature; or
(b) likely to excite feelings of disaffection to the Government established by law in Pakistan; or
(c) likely to deprave and corrupt persons present at the performance.
' Under section 4, this order is to be served on any persons about to take part in the performance so prohibited, or on the owner or occupier of any house, room or public place in which such performance is intended to take place. Subject to the service of notice, if any such person does, or willingly permits any act in disobedience of such order, the said section 4 prescribes a punishment of imprisonment upon conviction before a Magistrate up to three months, or with fine, or with both.
Section 5 of the said Act authorizes the notification of such an order (i.e, passed under section 3) by a proclamation and section 6 prescribes a punishment up to three months, or with fine, or with both upon conviction before a Magistrate, after the notification of the order upon any person taking part in the performance so prohibited or assists in conducting of any such performance or is the owner or occupier of a house or place which is being used for the performance of said performance. Even a spectator can be so punished upon' conviction. Section 7 empowers the Provincial Government to call for information in the said matter. Section 8 authorizes a Magistrate to enter or cause entry into a premises where any performance so prohibited is to take place and to take into custody all persons and to seize all articles found there. Section 9 saves the proceedings under sections 124-A and 294, P.P.C. Section 10 of the said Act of 1876 authorizes the Provincial Government to enforce the provisions of the said Act in any local area by notification and after the day of notification, the Provincial Government can order that no dramatic performance shall take place without a licence. The Provincial Government can further order that no dramatic performance shall take place in any place of public entertainment unless a copy of the piece, if and so far as it is written or some sufficient account of its purport, if and so it is pantomime, is furnished not less than three days before the performance to the Provincial Government.
4. Upon a reading of the provisions of the Act of 1876, it will be seen that no authority to frame Rules or Regulations has been delegated to the Provincial Government or any other officer in the matter of issuance of a licence. No conditions for grant of licence and no grounds for refusal of the same have been stated the said Act. The factual position in the present case is that the application for grant of licence has been filed and is still pending while a provisional permission stands accorded to the petitioner to operate the said theater. Till date there is no order refusing the licence.
5. Now I find that vide judgment dated 25-9-2003, Writ Petition No,10792 of 2003 was disposed of by this Court as follows:-- "(i) The impugned notification/directive is set aside.
(ii) The petitioners shall meet District Co-ordination Officer or the Executive District Officer (C.D.) and thereafter shall prepare guidelines for stage performances, etc. The guidelines prescribed shall be followed and acted upon by the parties.
(iii) The order to be passed by District Co-ordination Officer or the Executive District Office (C.D.) shall have sanction of Provincial Government.
(iv) In future action should be taken against the violations by the Provincial Government or the Magistrate of the District as authorized by the provisions of Dramatic Performance Act, 1876.
8. This exercise should be completed within thirty days from today. Either of the parties can approach the Court again in appropriate proceedings in case of grievance."
The SOPs (Annexures 'B' and 'C') were issued accordingly by the Provincial Government (Home Department). Now I have examined the said SOPs. Through the notification (Annexure 'B'), the said Act, has been enforced in terms of section 10 thereof and both the conditions mentioned therein i.e, the issuance of a license and provisions of an advance copy of the performance have been imposed. Now under the said notification as well, the D.C.O. Has been made solely responsible for the monitoring of dramatic performance particularly with reference to the vulgar and obscene stage performance. However, the said officer has been restrained from taking any action under notification (Annexure 'B') and instead they have been permitted to furnish the monitoring report to the Home Department for punitive action. To my mind, the amendment brought in section 141 of the Punjab Local Government Ordinance, 2001, gives full control and authority to the District Government/officers in this matter and prompt action can be taken within the parameters of the said Act of 1876 by the competent District Officers.
6. Now so far as the impugned orders are concerned I find them to be clearly without lawful authority. I have already reproduced above the provisions of the said Act of 1876. Upon a plain reading of section 3 thereof read with the amended provisions of section 141 of the Punjab Local Government Ordinance, 2001, the same clearly authorized the concerned Government to prohibit the performance attracting the mischief of the said section 3. Apart from the enforcement of the prohibition order in the manner prescribed in sections 4 to 6, a Magistrate has been sufficiently authorized under section 8 thereof to see to it that a prohibited performance does not take place in any premises. However, the said Act nowhere provides that a licence or permission to use a premises or a place of public entertainment for enacting dramas or stage plays which are otherwise not violative of the said Act of 1876 from being withdrawn or withheld. The punishment to be awarded to a person who is owner or occupier or having the use o his house, room or place who opens, keeps or uses the same for said performance is duly provided for in section 6 of the said Act of 1876. Needless to state that the SOPs having been issued under the orders of this Court shall remain strictly enforceable.
7. This Court is further of the opinion that the said Act enacted in the year 1876 needs to be brought in accord with the present day situation. Some omissions also need to be provided by the competent Legislature particularly in the matter of the procedure and conditions for issuance of licences and their withdrawal as also the regulation of the conduct of the persons taking part in the said performance including the writers and directors thereof. The writ petition accordingly is disposed of in the manner that the impugned orders are declared to be without lawful authority and are set aside inasmuch as in the absence of any provisions in the said Dramatic Performances Act, 1876, the licence/ permission cannot be withdrawn for the reasons stated therein in respect of the theatrical performance/stage plays which are otherwise not violative of the provisions of the said Act, 1876. No orders as to costs.
8. A copy of this judgment be sent to the Secretary, Ministry of Law, Justice and Parliamentary Affairs (Justice Division), Islamabad and the Secretary, Law Department, Government of the Punjab, Lahore.