' QAZI FAEZ ISA, C.J.---The Registrar of the High Court had put up the following note to the Chief Justice:- armed private guards of Provincial Minister, within the precincts of Balochistan Assembly.
From the reports, which have not been denied, it appears that the SP has been punished for doing his duty and upholding the law: In the reported judgment in Constitutional Petition No.682 of 2011 it has been held that the High Court can take suo motu notice and a number of directions were passed to ensure public safety and property policing.
' The matter is brought to the attention of the Hon'ble Chief Justice who may take suo motu notice as a senior police officer has been suspended for upholding the law and doing his duty by the Chief Minister."
2. That in the case of High Court Bar Association v. Government of Balochistan (PLD 2013 Balochistan 75), referred to by the Registrar in his note (as Constitutional Petition No.682 of 2011), we had determined that in appropriate cases the High Court can take suo motu notice. The note of the Registrar contained information which merited taking suo motu action. Consequently, we directed that the said note to be converted into a constitutional petition and notices were issued to the Government of Balochistan through the Chief Secretary and Secretary Home and to the police through the Inspector General of Police and Capital City Police Officer ("CCPO") and ordered to be fixed in court before Divisional Bench-I. Notices were also issued to the Attorney General for Pakistan and Advocate General for Balochistan.
3. The petition came up in court on 19th July, 2013; extract from the order of the said date is reproduced hereunder:-- "(1) Mr. Ahsan Mehboob, Additional I.G. Of Police, holding the charge of I.G. Police who is out of station, along with Mr.Zubair Mehmood, CCPO Quetta, is present. They have narrated the incident that took place on 18th July, 2013 at around 11-00 a.m. At the entrance gate of Balochistan Provincial Assembly. It is stated that between 20 to 25 persons armed with Kalashnikovs tried to gain entry into Balochistan Assembly, as according to them, they were accompanying a Provincial Minister. It is stated that the Police on duty tried to stop them, however they became abusive and roughed up a Sub-Inspector of Police and tore his shirt.
(2) They have also referred to subsection (1) of section 11 of the Provincial Balochistan Assembly Privileges Act, 1975 (called hereinafter "the Act"), which stipulates that anyone carrying firearms of any description or knives, lathies or sticks within the Additional Secretary (Law) addressed to the Secretary, Balochistan Provincial Assembly; wherein attention of the Members was drawn to the Act and they were cautioned not to bring into the Assembly premises any weapon, nor come accompanied by armed guards, as the same was prohibited. Reference is next made to letter dated 12 June 2013 written by the CCPO to the Speaker, Balochistan Provincial Assembly, which was copied to the Chief Secretary Balochistan, I.G. Police Balochistan and Secretary to Chief Minister Balochistan, is reproduced hereunder: "I hope this letter of mine will find you in the best of health.
(2)' With the grace of Almighty Allah the newly elected Provincial Assembly of Balochistan has commenced its sessions. However, it is to bring into your kind notice that during the opening session of the Assembly, it was observed that several private escort vehicles of the Honorable Members of the Provincial Assembly are using tinted glasses and illegal (non pattern) number plates. It has also been observed that some of the vehicles are non custom paid and fitted with" over head Police Blue Lights.
(3) The Provincial Assembly and its members are the role model for our society, Law and rules are framed in this sacred premises. But on the other hand it causes great embarrassment when the Honorable Members and their private guards violate the law.
(4) It is, therefore, humbly requested that the Honorable members of the Provincial Assembly may kindly be requested to abide by the laws and help the LEAs in enforcing the laws upon the society."
3. Learned Advocate General along with Chief Secretary Balochistan state that although initially it was reported in the media that Mr. Samiullah Soomro, Superintendent of Police (SP), has been suspended, but no written order in this regard was issued and the Government of Balochistan does not intend to suspend him. They further state that the Government of Balochistan is committed to upholding the law and without discrimination:--
(4) Learned Standing Counsel states that in case the Provincial Government has any difficulty in law enforcement, they may call upon the Federal Government and complete support of the Federal Government will be provided. It is further stated that the Provinces are fully autonomous and daily law and order matters are to be attended to by the local law enforcement personnel."
4. That the Balochistan Assembly is the fountain head of law making in the Province; its members empowered to make laws. The Provincial Assembly enacted the Provincial Balochistan Assembly Privileges Act, 1975, which prohibits the carrying of firearms of any description, knives, lathies and sticks within the precincts of the Assembly and has criminalized the bringing into and carrying the same. B Therefore, the police personnel who tried to stop the armed guards of a Minister from gaining entry into the Provincial Assembly acted in accordance with the said law. In fact, if they had not done so disciplinary action would have been initiated against them for not upholding the law.
5. That unfortunately, rather than appreciating the act of the said policemen they were abused, roughed-up and assaulted. Under the circumstances the action of suspending or taking action against the policemen on duty for upholding the law was in itself a violation of the. Law. Those who strive to uphold the law cannot be punished for doing so. If the guards of a minister are permitted to act in such manner, and that too in front of the portals of law-making, it has serious repercussions. It would demoralize the police force, and dedicated police officers would become dejected and frustrated. It would also encourage policemen to become pliable in the hands of ministers and other influential and powerful segments of society. The consequences would be borne by the general public. The law is equally applicable to the rich and powerful. The timely intervention by the High Court prevented a complete mockery of the law from being made.
However, in view of the fact that in respect of the said incident a First Information Report (F.I.R.)
No.51 of 2013 has now been lodged against the perpetrators and the matter is being investigated nothing further requires to be done by this court, as it may adversely effect the case of either party.
6. We now turn to the other matters which require consideration, the fixing of police lights on and police wireless sets in private vehicles that are used by Members of the Provincial Assembly and ministers and the use of smuggled vehicles, in respect of which customs duty and other taxes have not been paid. Members of the Provincial Assembly and ministers, like every other person in Pakistan, are bound to abide by the applicable laws and the Motor Vehicle Ordinance, 1965 and rules made :hereunder. The law does not permit fixing of police lights on or installation of police wireless sets in private vehicles; and, if this is done, it is illegal.
7. That as regards the plying of smuggled vehicles whether by an ordinary citizen, a parliamentarian or a minister the same is completely illegal and such vehicles must be impounded and proceeded with in accordance with the applicable ,law. Parliamentarians are not exempt from prosecution in the regard.
8. That during the hearings certain other transgressions were pointed out by the representatives of the High Court Bar Association as recorded in Order Sheet dated 1st August, 2013, reproduced hereunder:-- "The representatives of the Bar point out that they have seen Ministers flying both the flag of Pakistan and their political party flag on official vehicles. They state that a Minister is a Minister for all citizens and in discharge of his official duties, including when he is using official transport, it is not proper for him to display his party's flag, name plate or other insignia. Since, we are not aware that this point has been earlier considered by a Court, we issue notice to Secretary Establishment Division, Government of Pakistan and Secretary S&GAD, Government of Balochistan, who should file their respective written replies along with applicable rules, if any in this regard. Notice be also issued to learned Deputy Attorney General and Advocate General."
9. Mr. Hadi Shakil, Mr. Zahoor Ahmed Shahwani, Syed Ayaz Zahoor and Syed Nazeer Agha, Advocates, stated that there was no justification for ministers to fly their respective party flags on their official offices, official vehicles and official residences, however, Mr. Sajid Tareen, Advocate was of the view that there was no harm if they do so.
10. That the matter of flying of political party flags on official offices, vehicles and officials residences or the fixing of party name plates and insignia by the Governor, Chief Minister, Provincial Ministers, Provincial Assembly Speaker and Deputy Speaker also concerns the President, Chairman and Deputy Speaker Senate, Speaker and Deputy Speaker of the National Assembly, Prime Minister, Federal Ministers, Ministers of State and Advisers as they at times visit the province.
11. The national flag is representative of Pakistanis and the State of Pakistan; it is a symbol of unity transcending partisan politics. The national flags of all countries represent their respective countries and, as such, considered living symbols. The same is the position of the Pakistani flag, which represents freedom, inclusiveness and the genesis of an independent State. In contrast, the political party flags of different political parties represent a particular political party and allegiance to it. A political party's flag can also not be raised to the level of the flag of Pakistan.
12. That in a democracy every citizen has the right to form or be aSub-Article (2) of Article 17 of the Constitution stipulates that, "the right to form or be a member of a political party" is subject "to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan."
The election laws include the Representation of the People Act, 1974 ("the Act"). The proviso to subsection (1) of section 83A inter alia requires that party flags shall not be hoisted "on any public property or at any public place, except with the permission in writing from, and on payment of such fee or charges as may be chargeable by, the local government or authorities", and contravention attracts a punishment of, "imprisonment of a term not exceeding one year, or with fine, or with both." Since, official offices, official vehicles and official residences are not within the domain of the local authorities the aforesaid exception, i.e. Permission after payment of applicable fee, is not attracted. Therefore, political parties flags can not be hoisted on official offices, official vehicles or official residences as all of them are public properties.
13. The learned counsel representing the High Court Bar Association contended that, political parties' flag are found to be hoisted on official offices, official vehicles and official residences, electricity poles, street lights, bridges and atop many public properties throughout Pakistan. It appears that those whose job it is to launch prosecutions under section 83A are oblivious of their duties.
14. That the Third Schedule of the Constitution sets out the 'Oaths of Office' to be taken by different holders of public office, including, the President, Prime Minister, Federal Ministers, Ministers of State, Speaker and Deputy Speaker of the National Assembly, Chairman and Deputy Chairman of the Senate, Governors., Chief Ministers, Provincial Ministers, Speakers and Deputy Speakers of the Provincial Assemblies ("the said public offices"). The holders of each of the said public offices have to swear that they will not allow their "personal interest to influence my official conduct or my official decisions" and, "that in all circumstances I will do right to all manner of people, according to law, without fear or favour, affection or ill-will." Significantly, the oath taken by Members of the National Assembly, Senate and Provincial Assemblies do not contain the said wordings. Holders of the said public offices whilst elected or appointed to the said public offices on account of the mandate of their respective political parties, but after they have taken their oath of office represent all citizens, both those who voted for them and also those who may have opposed them. This becomes clear from the wording of their oath of office as they swear to do right to all manner of people, and not just the members of their own parties. Their oath also requires them to act without fear or favour, affection or ill-will thus they are further disassociated form partisan party politics.
15. That if the said public offices holders fly flags of political parties on their official offices, official vehicles or official residences it is a demonstration of allegiance, affection and/or sympathy with a particular party; and if this is done the oath of offices sworn by them would be contravened.
Moreover, official offices, official residences and official vehicles are paid for by the taxpayer, i.e. The citizens of Pakistan, and not by those belonging to a particular party, and public property cannot be put to private or partisan political use.
16. That for the abovementioned reasons this petition is disposed of with the following declarations and directions:--
(1) The Provincial Balochistan Assembly Privileges Act, 1975 forbids the carrying of firearms of any description within the precincts of the Balochistan Assembly, therefore, the police personnel who stopped the armed guards of the Minister gaining entry into the Balochistan Assembly acted in accordance with the said law and they cannot be punished for doing so, and any action taken against them is declared to be illegal, ultra vires and of no legal effect;
(2) The Motor Vehicle Ordinance, 1965 and rules made thereunder do not permit the fixing of police lights on and or police wireless sets in private vehicles, and if anyone does so he is liable to prosecution in accordance with the applicable law;
(3) Smuggled vehicles, on which customs duty and other applicable taxes have not been paid, are liable to be impounded in accordance with the applicable laws;
(4) The law enforcement personnel must be obeyed whilst carrying out their duties and must not be prevented from discharging their duties;
(5) Whenever law enforcement personnel are carrying weapons openly, it is incumbent upon them to be identifiable and in complete uniform;
(6) Section 83A of the Representation of the People Act, 1976 does not permit hoisting of political party flags at any, public place, save after payment of applicable fee and obtaining prior permission in writing from the concerned authorities;
(7) In case of violation of Section 83A of the Representation of the People Act, 1976 the local authority within whose jurisdiction the same has taken place shall remove the said flags and report the matter to the concerned Police Station or Levies Thana and prosecution against the transgressors be carried out in accordance with the law; and
(8) The President, Prime Minister, Federal Ministers, Ministers of State, Speaker and Deputy Speaker of the National Assembly, Chairman and Deputy Chairman of the Senate, Advisers, Governors, Chief Ministers, Provincial Ministers, Speakers and Deputy Speakers of the Provincial Assemblies cannot hoist or fly political party flags on their official offices, official vehicles and official residences, and if the flag of any political party is found to be hoisted or flying on the official office, official vehicle or official residence of any such person in Balochistan the same to be removed forthwith.
17. Copies of this judgment to be sent to the Secretary, Ministry of Information, Government of Pakistan, Secretary, Information Department and Director General Public Relations for dissemination to the general public. Copies be also sent to the Secretary Establishment Division, Government of Pakistan for onward transmission to the Prime Minister of Pakistan, Federal Ministers and Ministers of State; to the Chief Secretary Balochistan for onward transmission to the Chief Minister Balochistan and Provincial Ministers; to the Speaker and Deputy Speaker of the National Assembly; to the Chairman and Deputy Chairman of the Senate; to the Speaker and Deputy Speaker of the Provincial Assembly of Balochistan; the Secretary Home, Government of Balochistan and the Inspector General of Police, Balochistan. Copy of this judgment be also sent to the Secretary, Services and General Administration, Government of Balochistan, who is directed to ensure that no political party flag is hoisted in Balochistan on any official office, official vehicle and official residence of those mentioned in the abovementioned paragraph 16(8) and certify the same in writing to the Registrar of this Court within fifteen days from the date of this judgment.