' The petitioner is an Asna Ashri by faith, and wanted to take out a procession of `Zuljinah' from 'Imam Bargah, Qaiser-e-Ale-Imran' to Masjid Imam Bargah near Tehsil Headquarters,. Phalia. He made attempts to get a license from the respondents but failed for one or the other reason. He had also to come to this Court twice to achieve the same objective. Once, thereafter, he was granted a license to take out procession on a route, which according to him. Was only 30 feet long and he declined to avail it.
2. This year again the petitioner applied to the respondent with a similar request on 22nd October, 1979, and prayed that a reply may be furnished within one week. The petitioner is stated to have sent a telegram on 30th October, 1979, to remind the respondents on the expiry of that time, but without any response. He then invoked the constitutional jurisdiction of this Court for a relief through the present writ petition.
3. It is contended by the learned counsel that the petitioner has a right under the law to take out a procession while the respondents can only regulate it. According to him the power to regulate does not entitle them to curtail the route nor to specify a destination of their own, choice. Reliance is placed on AIR 1925 P C 363, PLD 1976 Lah. 755, AIR 1942 FC 70, (1896) A C 88, (1896) A C 348, (1967) 1 W L R 409, PLD 1956 Lah. 382, PLD 1965 Dacca 68, PLD 1957 Kar. 854, PLD 1972 Lah. 572 and PLD 1964 Lah.
718.
4. The learned Assistant Advocate-General has placed on record a written statement of the District Magistrate. It is stated therein that in view of a serious law and order situation erupting in 1976, the District Magistrate regulated the route and timing of the procession desired to be taken out by the petitioner on 10th of Moharrum in December, 1978.
' The petitioner, however, did not avail of it as he wanted some innovation not acceptable to the administration Again on 17th November, 1979, the petitioner was allowed to take out a procession on a given route, but the petitioner refused to receive the permission from the A D C. (G). The same is said to have been sent to the petitioner under a registered acknowledgment due cover.
5. The finding of the respondents is that the population of Phalia town is about 10,000 with hardly a dozen families of the sect to which the petitioner belongs. It is further given out that the petitioner does not belong to Phalia town and is a resident of a distant village. The respondents believe that the sole aim of the petitioner is to fan up sectarian feelings by insisting to take out his procession on a route which is inhabited by 99% people of the other sect The fear of the respondents is that in view of the sectarian differences it will not be possible for the law enforcing agencies to allow the petitioner a route of his choice as it will pose a great threat to the public peace and tranquility in that tension ridden area.
6. As for the question of law raised by the learned counsel for the petitioner, the learned Assistant Advocate-General submitted that the power to regulate not only entitled the respondents to change the route and timing but also to curtail or limit the same. Support was sought for by him from the judgments of the Supreme Court in East & West Steamship Co. v. Pakistan (1) and Mian Muhammad v. Government of West Pakistan (2).
7. The cases cited by the learned counsel for the petitioner show-(I) that to take out a procession is a right of the petitioner ;
(2) that the respondents have the authority to regulate but that power should fall short of prohibition. As in the case in hand, the petitioner has been allowed to take out a procession and the respondents have not in any way prohibited it, the rule laid down in the above-noted cases has not been departed from on the face of it.
8. Their Lordships of the Supreme Court in East & West Steamship Co. Case quoted with approval the following observation of the United States Supreme Court :- "And Johnson, J. Said in that case that the power to regulate means the power to limit and restrain at pleasure. In National Labour Relations Board v. Jones & Laughlin Steel Corporation (301 U S 1 at p.
37) Hughes, C. I. Observed that the power to regulate implies a power to foster, protect, control and restrain. This is not disputed by Mr. Brohi who admits that where the Constitution gives to the Legislature the power to regulate trade, that power includes in it the power to limit and restrain. What he contends is that the power to regulate does not include the power to prohibit. But if the Constitution gives to the Legislature the power to regulate a trade by a licensing system, it must follow that the power to prohibit vests in the Legislature in so far as the trade under such system may only be carried on by the licensed persons or corporations "
(1) PLD 1958 SC (Pak.) 41 (2) 1970 SCMR 645 ' The case of Mian Muhammad is, however; with regard to section 30 of the Police Act. It is ruled in that case that : ".. .Procession cannot be banned altogether under the provisions of that section. But that does not mean that license to take out processions can never be refused to any one on any ground or that the number of processions to be taken out in any particular area cannot be regulated under any circumstances. The expression 'he may issue a license' occurring in section 30(3) of the Police Act implies that in a fit case license may not also be issued to any particular applicantIn the instant case, far from imposing any ban on taking out processions, a license was issued to a co-villager of the petitioner for taking out Muharram processions Although the petitioner's application for license was refused, he was not forbidden to participate in the processions permitted to be taken out by his co-villager."
9. Thus none of the above cases help the petitioner. It is quite clear that the respondents could even restrain the petitioner if the law and order situation so warranted. However, the only restriction on the power of the respondents is, to apply their mind and abstain from dealing with the case arbitrarily or capriciously. In order to find out the same I have again gone through the position taken by the respondents in their written statement It has already been summed up in paras 4 and 5 above. It is made clear therein that the District Magistrate did consider the matter objectively in a thorough and dispassionate manner and has allowed to the petitioner, who is not even a resident of Phalia, what in his view was possible, in the interest of public peace and tranquillity. I have also no doubt that the balance struck by him can in no way be called arbitrary, unreasonable or capricious.
' In view of the above, I do not find any justification to interfere. This petition is, therefore, dismissed with no order as to costs.