' SHEHZADA MAZHAR, J.---Petitioner has challenged the order dated 10-4-2013 passed by respondent No, 1 Under section 144 of Criminal Procedure Code, 1898, whereby he has imposed ban on Excavation/Digging of soil within the territorial limits of District Lahore. For ready reference the order is reproduced hereunder:- "WHEREAS, it has been made to appear to me that some elements are causing disturbance to environment, damage to public and .Private land and disturbing public peace and tranquility by excavation/digging soil. The excavation of soil can endanger public property and cause irreparable loss to the land, flora and fauna and ecology of the area. During transportation of soil it is likely to cause respiratory treat disease among general public. The excavation/digging of soil causes damage to the land rendering land unsuitable for the construction and compounding actual cost or any construction made thereupon.
(2) AND WHEREAS, in my opinion immediate preventive measures are desirable and there are sufficient grounds to proceed under Section 144 of Criminal Procedure Code, 1898, and the directions hereinafter appearing are necessary in order to prevent danger to human life, property, environment and disturbance to public peace, tranquility and official business in the District.
(3) NOW, THEREFORE, I Syed Rizwan Mahboob, Administrator, City District Government, Lahore, in exercise of powers vested in me under Section 144 of Criminal Procedure Code, 1898, read with Order No, SO (IS-II) 1-1/2004, dated 9-4-2013, issued by the Government of the Punjab, Home Department, do hereby prohibit the following actions:- ' Excavation/digging of soil within the territorial limits of District Lahore except in the area specified for the purpose and under a valid license, duly granted by Mines and Minerals Department.
(4) The order earlier issued vide this Office No, Supdt/Adr/268, dated 9-4-2013, is hereby extended for a period of 30 days w,e,f, 11-4-2013 to 10-5-2013.
(5) This order shall be given wide publicity by publication in the official Gazette, daily newspapers and broadcasting through Radio Pakistan and Pakistan Television, Lahore as news item.
(6) Given under my hand on this 10th day of April, 2013."
2. Learned counsel for the petitioner submits that the impugned order is in violation of the fundamental rights guaranteed under the Constitution of Islamic Republic of Pakistan as the said order is putting restrictions upon the petitioner to use his own property as per his desire; that by issuing the impugned order the respondent has violated Articles 9 and 18 of the Constitution; that through the impugned order condition of specified area and valid license from Mines and Mineral Department has been imposed which does not apply to the case of the petitioner as he is using his personal property; that the respondent has acted in a bias manner and in violation of section 144, Cr.P.C. Which is not meant to disturb the general public from earning their livelihood; that the powers mentioned in section 144, Cr.P.C. Are to be exercised in urgent cases of nuisance or danger.
Further submits that even the requirement of section 144(6) Cr.P.C. Has not been fulfilled. Under subsection (6) of section 144 Cr.P.C. An order can only be made for a period up to 7 days whereas by means of impugned order ban has been imposed for 30 days without following the procedure.
3. Notices were issued to the respondent No,1 who entered appearance on 30-4-2013 and sought time to place on record relevant documents in support of impugned order dated 10-4-2013. Today learned counsel for respondent. No,1, has placed on record only the order passed by the Secretary to Government of the Punjab Home Department, Lahore whereby the Secretary Home Department extended the earlier order No,Supdt/Adr/268 dated 9-4-2013 issued by respondent No,1 for one month on the ground that it has been made to appear that some elements are causing disturbance to environment, causing irreparable damage to public and private land and disturbing public peace and tranquility by excavation/digging soil. The excavation of soil can endanger public property and cause irreparable damage to the land, flora and fauna and ecology of the area.
4. The learned counsel for respondent No,1 could not refer to any other provision of law except section 144, Cr.P.C. Under which the impugned order could be issued.
5. Arguments heard record perused.
6. Under the Constitution courts are required to protect rights and liberties of people of Pakistan. It is not denied that under the Constitution every citizen is entitled to enter into any lawful business and citizen is free to use his property as per his desire. Further Government has, under the Constitution, powers to impose any restriction of licensing and has power to regulate any business.
However, in the case in hand issue is not of restriction imposed by the respondent but with regard to the order issued under section 144, Cr.P.C., i,e, whether under section 144, Cr.P.C. Administrator has powers to issue order under section 144, Cr.P.C., if yes, then, on what basis? Second question will be with regard to the number of days for which such order can remain valid?
7. The bare reading of section 144, Cr.P.C. Reveals that Zila Nazim/Administrator have powers to issue an order in case where immediate preventive or speedy remedy is desirable "to prevent or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or disturbance of the public tranquility or a riot, or an affray." This means it is an stopgap arrangement and call for existence of an emergency situation. The perusal of impugned order reveals that the same has been issued to protect environment as excavation of soil can endanger public property and can cause irreparable loss to the land, flora, fauna and ecology of the area. In order to support the impugned order the respondents were required to place on record relevant documents/material which show the existence of a situation ' which necessitated respondent No,1 to issue order under section 144, Cr.P.C. However, despite taking time, the respondents have failed to place on record any documents/material to show that emergency exist which necessitated them to issue impugned order. In absence of any document/material on record this Court hold that no emergency situation exist which resulted in issuance of impugned order.
8. This leads me to the second question, whether the respondents can issue order for more than seven days? The order admittedly issued under section 144(6), Cr.P.C. Which is reproduced as under:-- "(6) No order under this section shall remain in force for more than two (consecutive days and not more than seven days in a month) from the making thereof unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the Provincial Government, by notification in the official Gazette, otherwise, directs)."
The bare reading of the above section reveals that in case Zila Nazim/Administrator wants to issue order under section 144 Cr.P.C. For more than seven days, that can be done by the Provincial Government by issuance of Notification in the Official Gazette. This again only in case of danger to human life, health, safety or a likelihood of a riot or an affray. Neither any copy of Official Gazette was placed on record nor the documents/material to show the danger as mentioned in section 144(6), Cr.P.C. Exists and only copy of order issued by the. Secretary to Government of the Punjab, Home Department was placed which although refer that copies forwarded for information and necessary action to Director General, Public Relations Punjab for publication in the press, however, despite lapse of over 20 days from the date of impugned order, no such Notification was issued or if issued not placed before this Court for consideration. Therefore order dated 10-4-2013 issued under 144 Cr.P.C. Cannot be issued for more than 7 days without issuance of notification in the Official Gazette.
9. In view of the above discussion, this writ petition is allowed, the impugned order dated 10-4-2013 issued under section 144(6), Cr.P.C., is hereby set aside, however, the respondents may proceed to issue fresh Notification after fulfiling all the required conditions as mentioned in section 144, Cr.P.C.
' No order as to costs.