' QAZI FAEZ ISA, CJ---Syed Imdad Shah is a practicing Advocate and the petitioner in this public interest matter, wherein a number of matters regarding Pishin Town have been agitated. The petitioner states that Pishin is the second most populace town in Balochistan, but despite its importance it has been neglected by successive governments and municipal authorities. In this regard he has referred to the Balochistan Local Government Act, 2010 ("the Act") which is a complete law governing the manner in which local councils are to be governed, however, it is contended that the Act is not being implemented and basic services to citizens are not being provided. In respect of Pishin the local council is the Municipal Corporation Pishin ("the Corporation"). The Corporation however remains oblivious of its prescribed 'Compulsory Functions' as setout in 'The Fifth Schedule' to the Act. Reference has also been made to the Balochistan Prohibition of Expressing Matters on Walls Ordinance, 2001 ("the Ordinance") and it is alleged that the prosecutions pursuant thereto are not initiated. Sections 2 and 3 of the Ordinance have been referred to, which are reproduced hereunder:-- "2. Prohibition of expressing matters on walls: ' Whoever affixes or causes to be affixed any poster, bill, notice, playcard or other papers or means of advertisement on a wall or writes on any wall with chalk or paint or in any other manner whatsoever or expresses or describes any matters on any wall in any manner whatsoever with the intention to affect public attention to that matter shall be punished with imprisonment for a term which may extend to six months or with fine not exceeding Rs,5,000, or with both: ' Provided that it shall not be an offence under this section, if the owner or possessor of the wall expresses any particulars relating to himself or his business thereon."
"3. Removal of existing expression on walls: Within a period of 30 days from the commencement of this Ordinance every Local Council shall cause to be removed all matters expressed on the walls within its jurisdiction the expression of which is prohibited by this Ordinance."
' The petitioner also alleges that neither the Corporation nor the Forest department of the Government of Balochistan are planting trees or taking care of existing trees. He further states that the Government fails to make any budgetary provision for undertaking even small works in Pishin, such as the construction of drains and pavements, It is pointed out that the street lights in Pishin are also not working. Another issue that came to light was that electric poles in the main Pishin Bazar Road (also known as Bandh Road) had been erected carelessly and fell in the line of road (and not on the road side), consequently, a major portion of the Pishin Bazar Road was not available for use of traffic, and the shopkeepers took advantage of this and encroached onto the road area as the placement of the poles provided them with a cover to do so.
2. That from time to time orders were passed (running into dozens of pages) with a view to ensure that the public gets what it can rightfully expect under the laws that have been enacted for their benefit, including compliance with the said Act and Ordinance, and to some extent progress has been made. Mr. Shai Haq the learned Assistant Advocate General ("AAG") on behalf of the Government of Balochistan states that the concerned authorities are required to comply with the requisite statutes and any citizen, who feels that any law is not being implemented may approach the court for issuance of necessary directives. He further states that the interlocutory orders passed by this court have been complied with, however, running a town requires day to day monitoring. Mr. Ghulam Mustafa Buzdar, Advocate on behalf of the Quetta Electric Supply Corporation Limited ("QESCO") the electricity provider states that QESCO was directed to relocate the electricity poles along side the Pishin Bazar Road and such directions have been complied with and a considerable area of the said Road has been freed. That, as regards the non-working of street lights, he states that QESCO provides electricity, however, installation of lights/ bulbs and maintenance of the street lights is the work of the Corporation. A report was submitted disclosing that 132 street lights were not working and the Corporation was directed to ensure that they are made functional. The learned AAG states that the order was complied with and all street lights are now operational.
3. That another matter that had come up was the fact that slogans and messages were painted on virtually all roadside buildings and walls in Pishin, the perpetrators whereof were political parties conveying their messages, candidates contesting elections projecting themselves, commercial outlets advertising their wares and services and individuals or organizations broadcasting a sectarian or 'religious' message. The learned AAG conceded that wall-chalking contravenes the provisions of the Ordinance and the perpetrators should be prosecuted by the concerned authorities, but stated that there is some ambiguity on how offenders can be prosecuted and by whom. Mr. Muhammad Aslam. Chishti, Senior Advocate, who is present in court was requested him to assist on the question of how prosecutions under the said Ordinance can be launched and before which court.
4. The learned amicus referred to section 29 of the Criminal Procedure Code ("the Code") and stated that the offence under the Ordinance would be categorized as "offences under other laws" as mentioned therein and subsection (2) thereof states that the court as mentioned in the eighth column of the Second Schedule of the Code is empowered to try the same. The learned amicus then referred to the penultimate entry of the said Second Schedule, which is in respect of offences punishable with imprisonment for less than one year etc. And such offences can be tried by "any magistrate". Mr. Muhammad Aslam Chishti further stated that the offence under the Ordinance can be attended to under Chapter XX of the Code, which provides for trial of cases by magistrates.
Reference was also made to section 155 of the Code which pertains to non-cognizable offences in respect whereof information can be given to an officer in charge of a police station of the commission of such non-cognizable offence, who is then required to enter the same in the book kept for the said purpose, i,e, the daily diary also referred to as the roznamcha, and to refer the same to the concerned magistrate. He further stated that under section 3 of the Ordinance the removal of wall-chalking is the responsibility of the local council therefore the concerned local council may also act as the informant/complainant,
5. The learned amicus also referred to section 260 of the Code and stated that the provincial government may also specifically empower any magistrate of the first class to summarily try any offence the imprisonment whereof does not exceed six months, and that since the offence of wall chalking does not prescribe punishment for more than six months and as the perpetrator invariably reveals his identity on the wall chalking itself, it would be appropriate if the provincial government specifically empower magistrates of the first class throughout Balochistan to try such offences summarily.
6. The learned amicus stated that photograph/s of the offence showing the offence could be placed for consideration before the magistrate and the offender called upon to respond thereto.
Mr. Muhammad Aslam Chishti states that it is shameful that the concerned authorities are not enforcing such laws which are in the public interest, and that laws are not made by the legislature simply to adorn book shelves. The people have the right to live in clean cities and towns. He further stated Shari'ah does not permit the defacement of public or private property and if wall chalking is made on another's property it violates the injunctions of Islam.
7. That it is the bounden duty of all to obey the law; a civilized society expects nothing less. We however take notice that sadly slogans and wall-chalking appear on virtually every roadside building, wall, bridge, parapet and pole. The Constitution of the Islamic Republic of Pakistan ("the Constitution") guarantees the protection of property (Article 24). Anyone writing on another's property without his permission effectively contravenes the owner's proprietary rights. The Constitution also guarantees 'life' (Article 9) which has been interpreted by the Supreme Court to include all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally" (Shehla Zia v WAPDA, PLD 1994 Supreme Court 693). The "inviolability of the dignity of man" is another right enshrined in the fundamental rights chapter of the Constitution (Article 14). Defacement of buildings, walls, bridges, parapets, trees and poles with slogans/messages painted on them present a picture of neglect and decay; adversely affecting the citizens' right to live a life of dignity. Additionally, if a property of a person is spoilt or made filthy by slogans or wall-chalking it effectively damages his property, which the law does not permit.
8 Political parties and politicians occupy public office or endeavor to do so in order to serve the people, therefore, if they deface or damage public or private property they set a very bad precedent, and instead of being regarded as law makers they would be considered to be law breakers. Then too we have religious organizations or individuals who paint the name of Almighty Allah, His Messenger (peace be upon him), the names of the rightly guided caliphs, the names of the companions of the Prophet and/or verses of the Holy Quran on public and private property, despite the fact that shari'ah does not permit using, defacing or destroying another's property.
Beauty and cleanliness is an integral part of Islam. Almighty Allah's are the Beautiful Names (asma ul husna), therefore, an unclean wall running alongside a road is not a proper place for inscribing His name/s or the verses from the Holy Quran.
9. That Yusuf al-Qaradawi in 'The Lawful and Prohibited in Islam' (General Institute of Islamic Culture of al-Azhar University, 1960) wrote that "cleanliness and beautification are the characteristics of Islam", and it will be useful to reproduce the following extracts therefrom:-- "Before directing its attention to the questions of adornment and good appearance, Islam addressed itself in considerable depth to the question of cleanliness, for cleanliness is the essence of good appearance and the beauty of every adornment."
"It is reported that the Prophet (peace be upon him) said: "Cleanse yourself, for Islam is cleanliness."
(Reported by Ibn Hayyan.) "Cleanliness invites toward faith, and faith leads its possessor to the Garden" (Reported by alTabarani). The Prophet (peace be upon him) placed a great emphasis on keeping the body, clothing, houses, and streets clean, and he laid special stress on cleaning the teeth, hands, and hair. This emphasis on cleanliness is not to be wondered at in a religion which makes cleanliness the key to its principal form of worship, salat; for the Muslim's salat is not acceptable unless his body, clothing, and the place where he performs his salat are all clean. In addition to this requirement there are the obligatory types of cleansing, either of the entire body in the form of ghusl (total washing), or of those parts of the body which are exposed to dirt, in the form of wudu (ablution for salat)."
' The desert environment of Arabia and the nomadic life of its people were not very conducive to cleanliness and refinement, and most of them neglected these aspects. The Prophet (peace be upon him), with his lively instruction and to-the-point admonition, gradually led them out of their uncouth habits and taught them refinement and civil manners. Once a man approached the Prophet peace be upon him) with his hair and beard disheveled. The Prophet (peace be upon him) made some gestures as if asking the man to comb his hair. He did so, and when he returned the Prophet (peace be upon him) said to him, "Is not this better than that one should come with disheveled hair, looking like a devil?" (Reported by Malik in Al-Muwatta.) On another occasion the Prophet (peace be upon him) saw a man with unkempt hair and remarked, "Does he have nothing with which to comb his hair?" (Reported by Abu Daoud.) Upon seeing another man with dirty clothes he remarked, "Cannot he find anything with which to wash his clothes?" (Reported by Abu Daoud)"
"The home is the place in which an individual protects himself from the elements and in which he finds freedom from the restrictions and pressures of society. It is a place of rest for the body and relaxation for the mind. That is why Allah Ta'ala, in mentioning His favors to His servants, says: And Allah has made for you in your houses, places of rest.... (16:80)"
"The Prophet (peace be upon him) urged people to keep their houses clean as a vital expression of Islam, which is a religion of cleanliness. Cleanliness is a distinctive characteristic of a Muslim. The Messenger of Allah (peace be upon him) said, "Assuredly, Allah Ta'ala is good and loves goodness, is clean and loves cleanliness, is generous and loves generosity, is hospitable and loves hospitality.
So keep your rooms and courtyards clean" (Reported by al-Tirmidhi)."
10. That Islam, the Constitution and the Ordinance all prohibit defacement of property. However, sloganeering and wall-chalking continues unabated. Those whose duty it is to ensure compliance with the law appear to be intimidated by influential and powerful perpetrators, who usually are politicians, political parties or members of 'religious' organizations. The law must be applied equally and without fear or favor; Islam, the Constitution and the law to prescribe across the board application of laws. Moreover, since political and religious leaders aspire to readship roles in society they should lead by example. The perpetrators treat every building, wall, bridge, pole, tree, etcetera as their personal property, except that they would not damage or deface. Their own personal properties in like manner. Sloganeering and chalking on another's property is an abomination. We must act decently and treat others with respect True believers are offended when the name of the Creator, His Messenger and verses of the Holy Quran are inscribed or stenciled on walls or other such places that are exposed to dirt, grime, filth and muck. Ironically those mouthing political causes for the betterment of the people or advocating religious ones detract from their objectives in resorting to such methods, which are deprecated by religion, morality, the Constitution and the law.
11. The learned A.A.-G. States that he does not oppose the enforcement of the Act or the Ordinance, as the same have been enacted for the benefit of the people and are in the public interest. He further states that successful prosecutions under the Balochistan Prohibition of Expressing Matters on Walls Ordinance, 2001 would be easy as the offences are self evident, since the name of the perpetrator invariably is inscribed thereon; therefore, the offence under the Ordinance could be tried summarily. Under the circumstances the provincial government may consider it appropriate to specially empower magistrates of the first class throughout Balochistan to summarily try' offences under the Balochistan Prohibition of Expressing Matters on Walls Ordinance, 2001.
12. That we now proceed to consider the other issues that have been raised. Syed Imdad Shah Advocate is correct in stating that the Corporation is not undertaking its designated 'Compulsory Functions' as stipulated in The Fifth Schedule of the Act and in particular in respect of the following:-- Public Health Maintenance of sanitation.
Removal, collection and disposal of refuse.
Drains Regulate private drainage and sewerage and for commercial and industrial area (s) for the adequate drainage and disposal of their waste.
Town Planning Master planning for development expansion and improvement of any area. Building Control Regulate erection and re-erection of buildings.
Regulate construction of buildings and development of sites.
Streets Provision and maintenance of public streets and other means of public communication.
Regulation of private streets.
Measures for the prevention of encroachments.
Proper lighting of streets and roads.
Arboriculture Plantation and protection of trees.
13. The learned A.A.-G. States that he does not oppose issuance of directions for implementation of the above mentioned 'Compulsory Functions' of the local councils as these have to be complied with. Syed Imdad Shah states that there are no pavements alongside roads in Pishin and that there was a dire need for a pavement alongside the Pishin Bazar Road which is main road which traverses the length of Pishin Bazar and also goes onto Barshore and many other villages and hamlets. Consequently, not having a pavement on either side of the said road not only causes extreme inconvenience to the general public, but also results in serious and fatal accidents to people who are forced to walk on the road. He further states that if there is a pavement on either side of this road it would prevent shopkeepers from encroaching on to the main road. In this regard vide order dated 3rd December, 2012 it was noted that the government should consider constructing a pavement on both sides of the said road to the extent that it runs through Pishin Bazar, and the government decided to do so. The pavement on one side of the road has been constructed, but the petitioner states that some persons have already started breaking the same with a view to encroach upon the main road. We had also directed that requisite entries be made in the revenue records to safeguard the encroachment/ allotment of public roads and foot paths and the learned A.A.-G. States that the same has been done, however, no proof has been submitted in this regard.
14. Mr. Muhammad Aslam Chishti states that in the circumstances of the case the High Court in exercise of powers vested in it under Article 199 of the Constitution can issue requisite directions.
And both he and Syed Imdad Shah point out that as wall-chalking is prevalent throughout Balochistan it would be appropriate to issue directions to all local councils throughout the province since the issuance of such directions are, in the public interest. There can be no other view on the matter as the law is clear and any one resorting to wall chalking must be proceeded against in accordance with the Ordinance, which provides punishment with imprisonment which may extend to six months or with fine not exceeding five thousand rupees or with both. The prosecution of the perpetrator of this crime would be simple since he generally leaves behind his own particulars on the wall. The local authority or any other competent authority could take photograph/s of the wall chalking and present the same as self evident evidence before the concerned magistrate.
15. We accordingly dispose of this petition in terms of the following directions:--
(1) Municipal Corporation Pishin is directed to initiate prosecutions in accordance with the applicable law in respect of wall-chalkings in accordance with the Ordinance;
(2) That all wall-chalking, should be removed in a manner that does not exacerbate the problem.
In this regard if wall chalking is made on a brick structure it should be cleaned with a metal brush, if on a mud structure by applying mud thereon, if on a cement coloured structure by pouring liquid cement thereon and if on a, painted structure by applying paint of the same colour; and not by applying whitewash as it looks ugly and also facilities further wall-chalking as it is easier to write on a white surface. The cost incurred in this regard could also be recovered from the perpetrator;
(3) That as regards wall-chalking made in other parts of Balochistan we direct the Secretary Local Government to distribute a copy of this order to all local councils in the province and to ensure that prosecutions under the Ordinance and removal of wall-chalking is done in the aforesaid manner;
(4) Municipal Corporation Pishin is directed to fulfil its Compulsory Functions' as prescribed in The Fifth Schedule of the Balochistan Local Government Act, 2010 and in particular to remove, collect and dispose of refuse, ensure proper drainage and sewerage, ensure proper planning, regulate the erection and re-erection of buildings, regulate construction of buildings, ensure that encroachments do not take place, maintain street lights. It should also, plant sufficient trees and protect both new and old plantation, and in this regard it may avail of the assistance of the concerned government department, including the Forest department',
(5) Municipal Corporation Pishin is also directed to ensure that no encroachments take place on the pavement that has already been constructed on the one side of the Pishin Bazaar Road and if anyone damages the same criminal action for the destruction of public property be initiated against them in accordance with law. The same would be applicable to the pavement on the other side of the road, when it is constructed;
(6) That in case requisite entries have not been made in the revenue records recording public roads and their respective widths and area of pavements the same should be made forthwith to prevent anyone from claiming the same; and
(7) The Government of Balochistan to ensure that the pavement on the other side of the Pishin Bazar Road is constructed expeditiously.
16. The provincial government may consider whether it deems it appropriate to specially empower magistrates of the first class throughout Balochistan to summarily try offences under the Balochistan Prohibition of Expressing Matters on Walls Ordinance, 2001.
17. That since this judgment is in the realm of public interest litigation and attends to the rights of the people we feel that it should be made accessible to the general public. Therefore, this judgment has been translated into Urdu for widespread understanding and dissemination (reference, Munir Hussain Bhatti, Advocate v. Federation of Pakistan, PLD 2011 SC 407), however, the English version shall constitute precedent.
18. The office is directed to send copies of this judgment for information and compliance to the Chief Secretary Balochistan, Municipal Corporation Pishin, Deputy Commissioner Pishin/Administrator of the Corporation, and Secretary Local Government for onward transmission to all local councils in Balochistan. That since, this judgment specifically highlights how prosecutions could be launched under the Balochistan Prohibition of Expressing Matters on Walls Ordinance, 2001 and which court is to attend to the same the Registrar of this court is directed to send copies to all judicial officers in the province.
19. That as it has been alleged that political parties and their members are often the perpetrators of the offence under the Ordinance copy of the judgment be sent to the Election Commission of Pakistan, which should transmit it to the heads of every political party who should ensure that the said Ordinance is not infringed. Copy of the judgment should also be sent to the Wafaq ul Madaris at Multan for dissemination amongst its students, with the expectation that they will be instructed on this important matter of law and shariah and henceforth play a leading role in advising against writing anything on public or private properties. Copy of the judgment should also be sent to the Secretary Ministry of Information of the Government of Pakistan and Secretary Information department, Government of Balochistan for dissemination to the general public through media.
20. The petition stands disposed of in the aforesaid terms, but with no order as to costs. In conclusion we record our appreciation for the assistance rendered by Mr. Muhammad Aslam Chishti, Senior Advocate.