' SALMAN HAMID, J.--- Muhammad Abu Bakar, Imam Khateeb of Madrassah, Jamiat-ul-Ulema-e- Islam, Pakistan, (the Petitioner), preferred this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, (the Constitution), against the Deputy Director/Senior Excise and Taxation Officer, (Excise) through Secretary, Government of Sindh, Excise and Taxation Department, Karachi, (Respondent No,1); R.K. Traders Wine Shop, (Respondent No,2) and Station House Officer, Police Station Surjani, Gadap Town, Karachi, (Respondent No,3) with a prayer that respondent No,1 should not issue any permission to respondent No,2 in shifting of the retail "off" the liquor licence, (Liquor Store) inasmuch as such issuance would be against the will and wishes of the petitioner and of the people of the locality where the Liquor Store was proposed to be shifted and opened.
2. In a nutshell the case as depicted by the Petitioner was that he (Petitioner) and other people of' the society reliably learnt on or about 19-7-2011 that the respondent No,1 will grant permission to the respondent No,2 for shifting the Liquor Store from Shops Nos.2 and 3, Plot No,1, Street No,14, Christian Colony, Sector L-35-C, Lyari Expressway, Gadap Town, Karachi, (Previous Location) to Plot No,G-38, Block No,3, Gulshan-e-Kaneez Fatima Society, Surjani, Gadap Town, Karachi, (New Location). It was alleged that the needful as required under the law for granting of license for Liquor Store at New Location was not followed by the respondent No,3. Written objections with the respondent No,1 expressing his and people of the locality's concern in opening of the Liquor Store were not considered. Therefore, present petition was filed with a prayer for a direction that the respondent No,1 not to issue any licence to the respondent No,2 for the Liquor Stare.
3. Comments on behalf of respondent No,1 were filed wherein it was mentioned that the retail "off" liquor licence was granted to respondent No,2 under Article 17 of the Prohibition (Enforcement of Hadd) Order 4 of 1979 (1979 Order) on 30th June, 2011 for opening of Liquor Store at Previous Location and prior to granting of such a licence all the legal requirements had been fully complied with i,e, notices in three languages viz. Sindhi, English and Urdu were issued in terms of office letter dated 9th July, 2009 and were also published in three newspapers on 9-7-2011 and 12-7-2011 and objections were also invited from general public as ordained by Para 100 and Sub-Para 19 of Para 282-A of Sindh Excise Manual Volume-I. The respondent No,1 also visited the New Location of the Liquor Store for inspection to ascertain the factual position. Report was submitted to the respondent No,1 under cover of letter dated 19-7-2011. It was submitted that after complying with all the above requirements of law and the rules, competent authority vide letter dated 20-7-2011 issued the requisite licence.
4. The respondent No,2 resisted the petition. It was argued that it (petition) was misconceived and not maintainable. It was mentioned that earlier C.P. No,D-1965 of 2011 was filed by one Muhammad Usman of the same Madrasa, of which the Petitioner claims to be Imam Khateeb when the Liquor Store was located at the Previous Location and such C.P. Was still pending and when the Liquor Store is proposed to be shifted to New, Location, present petition was filed. It was. Argued that given the circumstances of the case, petitioner was not an aggrieved person within contemplation of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). It was also mentioned that the, "place of worship"/Madrasa where the Liquor Store is located after its shifting from Previous Location to the New Location was a kilo meter away and that the petitioner was set up by the business rival/competitor of respondent No,2. It was also mentioned that Unique Wine Shop of respondent No,2's competitor is functioning in the same locality/area which is closed to a mosque and Madrasa Taleem-ul-Quran but the petitioner or other people of that place never objected. It was also contended that the Liquor Store was shifted to the New Location after adhering to all the legal requirements strictly and there was no violation of any law, rule or procedure. It was specifically mentioned that the licence for the Liquor Store mandates that the liquor would not be sold to any person than a non-Muslim and any violation thereof would entail cancellation of the licence. Petitioner's apprehension of selling of liquor to persons other than non- Muslims was, therefore, repelled. It was also mentioned that the petitioner all along knew the Previous Location of the Liquor Store and was also aware of its shifting to New Location. Despite such knowledge, it was asserted that the petitioner or other people of the locality did not lodge any objection with the concerned authorities when the time for the same as required under law was available. It was further argued that the petitioner and other people of the area are estopped in law in raising any objection at this belated stage of time when licence was already issued and vested right and interest of the respondent No,2 created. It was also specifically mentioned that earlier in time though the petitioner had a valid licence in his favour could not open the Liquor Store in the locality due to the objections raised by certain persons, who also filed C.P. No,D-2082 of 2011 before this court which was later on simply withdrawn. Thereafter the respondent No,2 shifted the Liquor Store to Shop No,1, Plot No,R-120, NaClass 44, Deh Nasir, Christian Colony, Gulshan-e-Siddiq, Surjani, Tappo Mangopir, Gadap Town, Karachi and was running his business peacefully but upon construction of a mosque behind the Liquor Store he (Respondent No,2) had to shift. Lastly it was contended that it is respondent No,2's fundamental right to pursue lawful business and that he is pursuing the same under a valid licence and without violation of any law, rules or regulations. In this view of the matter, it was argued that the objections raised by the petitioner were not sustainable. In support of his contentions learned counsel for respondent No,2 relied upon the case of J.J.K. Tajjak v. Government of Balochistan and another (PLD 1993 SC 445).
5. We have heard arguments of the learned counsel and perused the record.
6. It is a matter of record that the Liquor Store has been shifted to the New Location upon filing of the Petition No,D-2082 of 2011 which was withdrawn. Petition No,D-1695 of 2011 is also pending respecting the Liquor Store. It also came on record that prior to the shifting of the Liquor Store to the New Location and/or when it was located at the Previous Location all legal requirements, as contemplated under the law, rules and regulations had been complied with. It was depicted in the comments, filed by the respondent. No,1 and also fortified through various annexures that in terms of letter dated 7-7-2011 the respondent No,1 addressed letter to the Directorate Excise and Taxation, Excise Karachi wherein it was stated that an application of the respondent No,2 for the shifting of the wine shop, (Liquor Store) from the previous address has been made for the Previous/New Location. Therefore, comments along with specific recommendations were called in view of the provisions of Sub-Para 19, Para 282-A of Sindh Excise Manual Volume-I for proceeding into the matter further. It was also required by the Directorate to publish public notice in newspaper of English, Urdu and Sindhi besides passing the same in the office of the concerned authorities to invite public objections within seven days of the publication and also to furnish comments in the light of Sub-Para 100 of Sindh Excise Manual Volume-I after expiration of seven days along with copies of objections, if any received. It is pertinent to note that public notice was issued as evident from letter No, 15(18)/2010-Excise/W/807 dated 9-7-2011. Such public notices, as required under the law were in English in Sindhi and in Urdu language. It is also evident from the record of the file that public notice was published in daily Khabrain, (Urdu) Karachi of 12th July, 2011, daily Regional Times (English) of 9th July, 2011 and in daily Khabroon, (Sindhi) Karachi also of 12th July, 2011. It is also evident from letter dated 19-7-2011 of the office of the Respondent No,1 that concerned Assistant Excise and Taxation Officer of the beat was directed to visit the site of the Liquor Store and submit his report after expiry of notice period who reported that the notices were served on the S.H.O., Surjani Town (Respondent No,3) on 9-7-2011 and on DCO, Karachi on the same date and that notices were also pasted at the New Location where the Liquor Store was to be shifted and also on the notice board of the concerned police station, on the notice board of Directorate General, Excise and Taxation, Sindh, Block 4, Pakistan Sectt., Saddar, Karachi on the notice board of Directorate, Excise and Taxation, Sindh, Block 11, Pakistan Sectt., Frere Road, Karachi and that he personally visited the location of the Liquor Store and found that New Location was abounded on the West by 60' street, on the East by plot measuring 80 square yards on the North by open plot and on the South also by open plot. It was specifically mentioned that there was no mosque, madrassah, church or social or religious institution within the radius of 100 yards of the Liquor Store. Analysis of this would show that sufficient compliance of the Law, before issuance of licence was made.
7. Upon scrutiny of Para 100 and Sub-Para 19 of Para 282-A of Sindh Excise Manual Volume I, it would become evident that Para 100 stipulates procedure regarding opening of a new Shop etc. In Sindh for which purpose previous sanction of the government must be obtained for establishment of such new shop for the sale of liquor and/or intoxicating drugs. It has amply come on record that the procedure as laid down in Para 100, under discussion, had been fully complied with. Similarly, under Para 282-A, the requirements of issuance of licence had been complied with and that under 19-A it is stipulated that all the changes in shop within or beyond 200 yards of the old shop should be referred to the excise advisory committee for their opinion. This requirement too, it came on record was complied with.
8. In the case of J.J.K, Tajjak, relied upon by the learned counsel for the respondent No,2, it was held by the apex court that once licence had been granted, it cannot be cancelled or withdrawn without due cause and without allowing an opportunity to the holder thereof to present his point of view and that where the licensee had not committed any violation of provisions of Article 17 of Order, 1979 and licence was cancelled on the assumption that it is an Islamic State and issuance of licence for alcoholic drinks was not desirable was not approved, such being contrary to law and without lawful authority. It was further held that grant of a licence was a privilege and once it is granted, cannot be cancelled or withdrawn without due cause and without allowing opportunity to the holder thereof as the grantee acquires a right to the enjoyment of the privilege in accordance with the terms and conditions thereof. Enjoyment of a right cannot be taken away during the term of the licence. It can only be recalled for a proper cause.
9. There is no allegation in the present case that the respondent No,2 has committed any violation of provision of Article 17 of Order 1979 and therefore, the penal provisions as contained therein became operative. The apex court in the precedent under discussion further held, "that the Prohibition Order in its preamble declared that the law was being brought in accordance with the Injunctions of Holy Qur'an and Sunnah and in the Order [1979] the entitlement of the minorities to consume liquor on the occasion of their religious ceremonies and festivals was duly recognized.
Such right was affirmed by the Federal Shariat Court in its judgment reported as PLD 1981 FSC page 245 and affirmed in appeal by this Court in its judgment reported in 1988 SCM R 1417. In these circumstances to hold that in the Islamic State of Pakistan, sale and use of the liquor is against Injunctions of Islam, is to overlook and disregarded the law of the land. In so doing, the High Court had deprived the appellants of a right that was granted by the law and duly affirmed by, the highest Courts in the land". It was also observed that, "An Islamic Law stands promulgated to regulate this entire matter namely "Prohibition (Enforcement of Hadd) Order No,4 of 1979. According to Article 17 thereof, licences can be issued for consumption of liquor by non-Muslim citizens of Pakistan as a part of their religious ceremony or by a non-Muslim foreigner. This law was even challenged before the Federal Shariat Court and this Court found that the above provision did not contravene the Injunctions of Islam and the above exception made in favour of the minority communities in Pakistan was held to be in accordance with the Injunctions of Islam. Even in the Constitution of Islamic Republic of 1973, it is provided in Article 37 that the State, inter alia, shall-, "prevent the consumption of alcoholic liquor otherwise than for medicinal and in the case of non- Muslim, religious purposes".
10. Adverting to the present case, it may be noted that in the first instance the legal requirements as are ordained by the rules and regulations and the Law had been complied with objections were invited and the publications were also made and after expiration of the requisite mandatory period, the licence was issued. Besides this aspect of the matter it is also clear that the petitioner and the people of the locality all along knew about the opening of the Liquor Store after its shifting from Previous Location to the New Location but seemingly remained quiet and did not raise any objections, though invited. It is also evident that despite the allegation raised by the respondent No,2 that he, (Petitioner) has been set up by its (Respondent No,2)'s rival/competitor, who was already running a wine store in the locality by the name of Unique Wine Shop, the same was not rebutted. This shows that the allegation raised, in absence of denial proved. The denial of the allegation that the Liquor Store at the Previous and New Location is outside the limited distance was also not refuted and therefore shows that the requirement of Para 100 and that of Sub-Para 19 of Para 282-A of the Sindh Excise Manual Volume-I complied with. There was no allegation that the terms and conditions of the licence were violated by the respondent No,2. Mere allegation of the petitioner, which upon rebuttal was not denied must not come into the way of respondent No,2 in pursuing his business under the licence. It is also a fact that Petition No,1965 of 2011 was filed by another person of the same Madrasa against respondent No,2 and is pending before this court.
Constitution Petition No,D-2082 of 2011 filed by another person had been withdrawn and that after constructing of a mosque on the backside of the Previous Location of the Liquor Store the respondent No,2 had shifted to New Location, which shows nothing but respondent No,2's respect to the Law and substantiation that he wants to conduct his business strictly in accordance with terms and conditions and parameter of Law and the licence. The only event where such business is prevented is when the licencee violates the provisions thereof and falls within mischief of with Article 19 of Order 1979. As already observed above, it was not the case of the petitioner that the respondent No,2 was found violating any provision of the Constitution and/or the provisions of B Order 1979 or of the license. Such violations not present in the case' in hand and the licence is subsisting and was issued after overcoming rigours thereof, and the petition is found to be short of merits; is hereby dismissed however with no order as to costs. All pending applications are also dismissed.