' YAHYA AFRIDI, J.---Haji Lal Muhammad, petitioner, is seeking the Constitutional jurisdiction of this Court and praying that: "the impugned action of members/supporters of PTI, its allied with regard to blockage and checking of trucks loaded with different items on way to Afghanistan is illegal, unlawful and of no legal effect, that respondents Nos.1 to 4 be directed to implement the role of law by controlling the situation and addressed agonies of citizens including the petitioner and to restrain the members/supporters of Political Parties from violating rules of law."
2. In essence, the petitioner is aggrieved of the action of the members of Pakistan Tahreek Insaf and its supporter of blockading the national highway and also checking of trucks loaded with different items distant to Afghanistan and the inaction the official respondents to restrain them and thereby fail to enforce, the writ of the State and the law. It was further averred by the petitioner that the matter was highly publicized in the national dailies, but to no avail. Having no adequate alternative remedy available, the petitioner claims, led him to file the present writ petition.
3. The respondents Provincial Government was put to notice and in their written comments, the factual assertions regarding the blockade was not denied and in fact the obligation and duty of the State was admitted in clear terms that:- "Correct to the extent that the respondents are charged with duties of maintenance of peace and order and the respondents have always quickly responded to the call of duty. However, the ongoing fight against terrorism is the main hurdle and impediment in maintenance of law and order situation. Anyhow, respondents are trying their best to maintain pace at the risk of lives of the members of the enforcing agencies."
4. The learned AAG, appearing on behalf of the respondents contended that the leadership of Pakistan Tehreek-e-Insaf had staged protest against the drone attacks but the Provincial Government had adopted security measures to maintain peace during the protest procession and not allowed anyone to take the law into their hands; that Police during the protest procession staged by the members of the Pakistan Tehreek-e-Insaf had taken prompt action against such incidents and criminal cases were registered, vide F.I.R. No,889 dated 26-11-2013 and vide F.I.R.
No,887 dated 24-11-2013.
5. The Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
6. The anchor sheet of the petitioner's claim is based upon his fundamental right of "Trade and Business", as ordained under Article 18 of the Constitution of Islamic republic of Pakistan, 1973 ('Constitution'), which declares that:-
18. Freedom of trade, business or profession. --Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: ' Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by licensing system; Or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial of other persons.
7. This fundamental right of trade and business is further supplemented and admittedly supported by the right of every citizen, to be treated in accordance with law, to life and to protection of property, as provided under Articles 4, 9, 23, 24 and 25 of the Constitution, respectively ('First Set of rights'). These are very forceful rights and backed by powerful constitutional and legal provisions, which warrant immediate positive consideration and enforcement thereof by the Courts of law, more particularly, a constitutional Court. However, this Court cannot be oblivion to the fundamental rights of every citizen to express his fundamental rights of freedom of assembly, to form an association, become members of a political party and above all the fundamental rights of freedom of speech as provided under Articles 16. 17 and 19 of the Constitution, respectively (`Second Set of rights').
8. Thus this Court, while deciding the present writ petition, has to balance the two sets of rights. The First Set of Rights backing the petitioner, while the Second Set of Rights supporting members of a political party pursuing the blockade of trade on purportedly high moral and religious grounds.
9. Let us first consider the rights of the petitioner to enter a lawful business of transport of carrying goods on a highway distant to the Torkhum, bordering Afghanistan and the obligations and duty of the State to provide protection of person, property and trade of the petitioner.
10. The right of a person to use the public road has been judicially recognized as a fundamental right by the apex Court in Arshad Mehmood's case (PLD 2005 SC 193), wherein it was declared the fundamental right of a person to use the highway for the purpose of running the business of transport. In this regard, the discussion rendered by the Indian Supreme Court in Saghir Ahmad's case (AIR 1954 SC 728) was cited with approval.; "but the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public right over a highway. The State only controls and regulates it for the purpose of ensmoralsothepubic. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned Advocate General that the user of a public road: for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the State. (emphasis provided)
' This right to passage and to carry on trade and business, discussed above by the Indian Supreme Court was further developed in Sodan Singh's case (AIR 1989 SC 1988), Nawab Khan's case (AIR 1997 SC 152) and in Jagdeesam's case (AIR 1997 SC 1197) and finally in Sheikh Dastagari's case (AIR 2002 AP 383), wherein it was declared that: "Street trading is a recognized fundamental right. The right to carry on trade and business on the streets or pavements of the streets without causing any inconvenience to the passers-by also extends to Panchayats also and the respondents cannot totally prohibit such business in violation of the fundamental right." (emphasis provided)
11. Now moving on to the fundamental right to life, as provided under Article 9 of the Constitution and first expounded by the Supreme Court in Shehla Zia's case (PLD 1994 SC 693), adjudged life to include all such amenities and facilities, which a person born in a free country is entitled to enjoy with dignity legally and constitutionally. It was also clearly stated in un-equivocal terms that a wide meaning should be given to the term life, so as to enable a man not only to sustain life but to enjoy it. This principle was cited with approval by the apex Court in Arshad Mehmood's case (Supra), wherein the apex Court further expounded the need for the Islamic concept of fair play and social justice in an egalitarian society, as is idealized under the Objective Resolution of our Constitution, which has now become an integral part of the Constitution by insertion of Article 2-A therein. In this regard the apex Court cited with approval the discussion on the matter explained in Shaukat Ali's case (PLD 1997 SC 342); "We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concept of fair play and social justice. The State functions-ies like Railways are expected to act fairly and justly, in a manner which should not give to any one cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure that no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licences granted by the Railways, will be treated fairly."
12. Apart from the fundamental rights of the petitioner, as provided under the Constitution and discussed hereinabove, this Court is also alive to the rights of the petitioner under the provisions of the Afghan Transit Trade Agreement, 1965 ("Treaty") entered by the Government of Pakistan with Afghanistan, wherein Article X read with Article 8 of the F Protocol annexed to the Treaty, provides for both the contracting Countries to, inter alia, adopt all necessary measures to facilitate the flow of traffic between the two countries and also seek all possible means, within their power to remove any factor, which may hinder the transit facility provided under the Treaty.
' Thus, the petitioner may also seek to invoke the obligations of the State under International Law to maintain clear flow of traffic on the National Highway leading to Afghanistan, so as to facilitate, without any hindrance, the transit carried out by the petitioner.
' It is by now settled that International Law, unless in direct conflict with the Municipal Law, ought to be applied and respected by Municipal Courts in deciding matters arising therefrom. In similar G circumstances, the rights of a trader under the Treaty, seeking transit trade to Afghanistan has been dealt with extensively in M/s Najib Zarab Ltd. Case PLD 1993 Kar.
93.
13. Apart from the obligations of the Government of Pakistan under International Law for ensuring compliances to the terms of the Treaty, the legislature has expressly provided protection to Transit Trade under section 129 of the Customs Act, 1969 ("Act"). Under the said provision of the Act, goods imported in to Pakistan for Afghanistan or any other country are provided transit facilities for its safe transportation to its final border destination. The petitioner has placed on record his registration with the Revenue authorities and the record supporting safe transportation of goods to its ultimate destination at Turkham Border.
14. Hence the petitioner's stance is supported by rights arising not only under International law but also Municipal laws.
15. In England, the right to use a highway and the obstruction thereon is dealt with, as 'trespass', 'public nuisance' and 'private nuisance' under the Law of Tort, while the same matter may even lead to penal consequences under the Highway Act, 1980.
' The matter of 'trespass' was initially discussed in detail with clarity by Lopes LI in Harrison v Duke of Rutland (1893) QB 142 at 154, CA), wherein he explained the rights to use of highways and the obstruction thereto causing 'trespass' in terms that:- "If a person uses the soil of the highway for any purpose other than that in respect of which the dedication was made and the easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and re-pass at their pleasure for the purpose of legitimate travel and the use of the soil for any other purpose, whether lawful or unlawful is an infringement of the rights of the owner of the soil.
' In addition, the use of a highway for purposes incidental to passage were also considered lawful, if for proper use: ' Thus a tired pedestrian may sit down and rest himself motorist may attempt to repair a minor breakdown, Because the highway is used also as means of access to places abutting on the highway, it is permissible to queue for tickets at a theatre or other place of entertainment or for a bus."
' To constitute 'public nuisance', the misuse of a highway must be by a 'unreasonable user', as declared in Lowden's v. Keavenev ((1903) 2 IR 82). In Hubbard v. Pitt case ([1976] QB 142), Forbes J, explained that 'unreasonableness' was established, if it could be shown that passage was obstructed.
' The determining factor is always, whether the obstruction challenged was due to an 'unreasonable use' of the highway. In Nagy v. Weston (I All ER 78, (1965) I WR 280), Lajos Nagy parked his van in a lay-by where there was a bus stop, in order to sell hot-dogs from it. He was there for five minutes before he was arrested. The justices found that although the road was wide, it was nevertheless busy at that time of night (10-15 p.m.), carrying heavy traffic including buses, which would be pulling out of the lay-by. The Court declared that there was therefore, 'unreasonable use' by parking a van even for five minutes. His conviction was affirmed by the Divisional Court; Per Lord Parker CJ at p.284: "There must be proof that the use in question was an unreasonable use. Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact.
It depends upon all the circumstances, including the length of time, the obstruction continues, the place where it occurs, the purpose for which it is done, and of course, whether it does in fact cause an actual obstruction as opposed to a potential obstruction."
' This assumption has been criticized by P. Wallington in his writing ((1976) CL 82, 101-106), wherein he argues: "The test is.... Not whether a demonstration is something reasonably incidental to passage, but whether it is reasonable in the context of rights of highway users generally. If passers-by must make a detour, their inconvenience must be balanced against the interest in allowing the demonstration; it will be relevant to consider the decree of obstruction and whether the demonstration could conveniently have been held at a less obstructive venue or off the highway."
' Private nuisance, on the other hand is described in Winfield and Jolowics on Tort (12th Edn, p. 380) as; 'unlawful interference with a person's use or enjoyment of land, or some right over or in connection with it. ....The blocking of access to private premises is an example of private nuisance'.
' Lord Scarman in his Report on the Red Lion Square Disorders, discussed demonstrations and the public highway (Cmnd. 5919, paras. 122, 133) in terms that: "English law recognizes as paramount the right of passage; a demonstration which obstructs passing along the highway is unlawful. The paramount right of passage is, however, subject to the reasonable use of the highway by others. A procession, therefore, which allows room for others to go on their way is lawful; but it is open to question whether a public meeting held on a highway could ever be lawful for it is not in any way incidental to the exercise of the right of passage....I think the priority that the law gives to the right of passage is sound."
' On the other hand, a 'public nuisance', if it leads to obstructing the flow of traffic on a highway, would have constitute an offence and result in penal consequences provided under section 137 of the Highways Act, 1980.
16. Having discussed the First Set of Rights supporting the claim of the petitioner to carry out his business of transporting goods in transit to Afghanistan, we may now, turn to The rights of the members of 'Pakistan Tahreek-e-Insaf', who have, as reported without any denial in the national dailies, expressed their anguish by lying blockade to transportation of goods to Afghanistan on a national highway, declaring the same in protest to drones attack and the supplies being made to NATO forces to Afghanistan.
16(sic). There is no denying the right of a citizen to join a political party and to express his views, as is clearly provided under the I fundamental rights of our Constitution, set out above, as the Second Set of Rights.
17. In other jurisdictions, like United States of America ('USA'), the First Amendment to the Constitution of USA provides that: "Congress shall make no law... Abridging..... The right of the people peaceably to assemble ' It is noted that this freedom of assembly is cognate to the right of free speech and is thus declared by the superior Courts in the USA to be equally fundamental. In De jonge v. Oregon (1937)
299 US 353, the Court has gone to the extent of validating a meeting of a political party, whose object is to secure political or social changes by violence, when the assembly is peaceful, the meeting and discussion therein were not declared a crime or even unlawful. This view was followed in Yates v. US (1956) 354 US 298, wherein Justice Harlan declared that . "mere doctrinal justification of forcible overthrow, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis".
' The concept of this freedom of association has been protected under International Law, as provided under Article 20 of the Universal declaration of Human Rights, 1984, says reads as under:- - "Everyone has the right to freedom of peaceful assembly and association".
' While Art. 29(2) (supra) further provides--- "In the exercise of his rights and freedoms, everyone shall be subjected only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others of morality, public order and the general welfare in a democratic society."
18. Despite the clear and .Expressed rights to a person to form an association or a Political Party or become a member thereof and express his views, none and that too under no circumstances can any of these rights, be it fundamental and expressed in a written Constitution, be ever declared as absolute. No one can be allowed to exercise one's right in a manner so as to infringe upon the rights of another. Each is to enjoy his rights within the confines of the law, morality and social justice. Transgression by any, whether powerful or weak, cannot be allowed so as to disturb the social harmony of our society. In fact, with the fundamental rights bestowed upon a citizen, there is also an express inviolable obligation on him of obedience to the Constitution and the law, as expressly enshrined in sub-Article (2) of Article 5 of the Constitution, which provides; "Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan."
19. Thus all those, who are seeking to express their impugned anguish, may do so but in a lawful manner, without infringing upon the rights of others and violating the law. By blockading the highway, they are obstructing the passage of others including that of the petitioner and thereby they can surely be termed as "unreasonable users". On the other hand, the petitioner is carrying on his lawful trade and business, but for the impugned action and inaction of respondents.
20. Now, when we review the written comments filed by the Provincial Police Officer and the Home Secretary of the Province, it is noted that they in no way shy away from this primary obligation and duty cast upon them under the Constitution. In fact, they have gone to the extent of registering criminal cases against those, who were enforcing the blockade. In view of the ongoing investigation of the said cases, this Court would refrain to comment on the criminality of the impugned blockade, lest the same be prejudiced. Suffice it to state that it is expected that the investigation in the said cases be proceeded in accordance with law and would lead to its logical conclusion.
21. Accordingly, for the reasons discussed hereinabove, this writ petition is allowed in terms that;
(i) Declare the action of all those who are hindering or obstructing the lawful business of the petitioner in safe transportation of goods in transit to Afghanistan is violation of the petitioner's fundamental rights under Articles 9, 18, 23, 24 and 25 of the Constitution and thus to be illegal and without lawful authority.
(2) Direct the official respondents to protect the rights of the petitioner to carry on his lawful business of transportation and to ensure that none obstructs the safe use of highways in an illegal and unlawful manner and thereby violating the law.