' HAIDER ALI KHAN, J.---Through this single judgment we intend to decide the instant writ petition i.e, W.P. No, 587-M/2014 as well as the connected petitions bearing W.Ps. Nos. 599-M/2014 and 118- M/2015 as common questions of law and facts are involved in all these petitions.
"It is, therefore, requested to declare the impugned order No,882/15/Juddl;/Vol-1 dated 12.11.2014 passed by Respondent
2. The petitioners herein have prayed for the following relief:- ' No,1 and Memo No, 5172-78/77/C/Vol-3 dated 10.11.2014 issued by Respondent. No,2 through secretary, null and void, against the-constitution, illegal, wrong and against the principles of Sharia" .
3. In essence, the petitioners are carrying on the business of sale and purchase of old parts of vehicles/scrape automobile parts which has been banned through the impugned orders, mentioned above in the prayer, in exercise of the powers under section 144, Cr.P.C, by the District Magistrate, Swat. Being aggrieved, the petitioners have moved these writ petitions before this Court.
4. Arguments heard, record perused and comments submitted by the respondents were gone through.
5. During the course of arguments,' the attention of this Court was brought towards a letter of the Commissioner, Malakand Division, bearing No, 2532-38 /77/C/V-2 dated 05.6.2014 wherein the present matter has been discussed in detail the relevant Paras whereof are reproduced hereinbelow for the sake of convenience:-- "3. The genuine focus and scope of Section 144 of Cr.P.C., is essentially for dealing with a situation where a law and order or breach of peace and tranquility is in the oftening. In the instant case the imposition of section 144 of the Cr.P.C., does not seem justified for the purpose of law and order.
Instead of section 144 the district administrations are required to submit recommendations for consideration and subsequent decision by the competent authority at the provincial and federal level and the same decisions are then to be implemented accordingly at the district level. This may include proposals for regulating the NCP vehicles and reservations of the stakeholders on the business of scrap parts, which is not restricted to Malakand Division only and the parts are cleared by the custom authorities after import and its transportation to other parts of the country is allowed by FBR.
4. I am further to add that the issue has been thoroughly deliberated at the forum of Malakand Division Task Force time and again. In this regard the letter of Deputy Commissioner Malakand bearing No, 2554/PS/DC/Malakand, dated 28.3.2014 (copy enclosed) to Secretary Law Department for advice and its reply received from the Law Department vide letter No, SO(OP-II/LD/15-1/2012- Volll, dated 03.4.2014 (copy enclosed) provides a guideline to the district administration. The mentioned communique reflects that Customs Act, 1969 was repealed in respect of PATA (Malakand Division) on 7th August, 1975 vide PATA, Application of Laws (Regulation III of 1975);The Law Department has further clarified that even if the Customs Act is extended to Malakand Division it would be in the domain of customs authorities and the Excise and Taxation Department and not the district administration to compound NCP vehicles.
5. Similarly the imposition of section 144 of the Cr.P.C., and compounding of scrap parts, which have been allowed by the FBR in a proper way after payment of government dues at the time of import from the international market is also unwarranted rather unjustified. However, the reassembling of vehicles at local level from these parts is illegal and should be handled in a proper manner. For that matter the imposition of section 144 is not a suitable option.
6. I am further directed to request you to withdraw the imposed section 144 of the Cr.P.C. Upon the NCP vehicles and business of scrap parts with immediate effect in your district and furnish a compliance report for perusal of the competent authority at the earliest because in the absence of Tax Laws/Customs Act this can create legal implications for the civil administration. As far as the issues of manufacturing of vehicles from scrap parts as well as that of stolen cars are concerned, this may be dealt with according to the relevant sections of existing laws in Malakand Division. For security aspect the police and other LEAs are at liberty to check such vehicles and search them thoroughly and allow them after security clearance. The security agencies may further carry out checking of the vehicles carrying scrap parts to ascertain the presence of arms, ammunition and explosive etc. And apprehend the culprits if someone use this as source for the purpose to endanger the peace and tranquillity of the area. Such consignments can be withheld only for cogent reason and in this regard action be taken according to relevant sections of law by the police and LEAs accordingly, please".
The above cited contents of the letter issued by the Commissioner, Malakand Division (Respondent No,2) need no reiteration by this Court in holding that the respondents are passing the recurring orders under the garb of security measures and thereby harass the petitioners not to carry on the lawful scrap business in the area. We are unable to understand that in what manner a ban on the scrap/cut vehicles can mitigate the security related issues which aspect has been highlighted time and again by the District Magistrate in the impugned order dated 12.11.2014 and the repeatedly issued similar orders. Even in his comments the District Magistrate has branded the same business as "anti-state activities". Certainly, the petitioners are dealing in scrape automobiles/parts thereof which are shifted to Peshawar on payment of the requisite government dues but in this region the same business is banned by the respondents through recurring orders on the pretext of law and order situation which is in violation of various Articles of the Constitution as well as policy of the Provincial Government.
6. Learned counsel for the petitioners also brought our attention towards amendment in Section 144, Cr.P.C., by Ordi. XXXVII Of 2001, PLI) 2002 Cent. St.92 by virtue whereof the powers under the ibid section can only be exercised by the Zilla Nazim, however, in case the District Government is not functional then subsection (7) to Section 144 will operate which is reproduced herein below:-- "(7) In the application of subsections (1) to (6) to the districts where the local Government elections have not been held, or the Zila Nazim has not assumed charge of office, any reference in those provisions to the Zila Nazim shall be read as reference to the District Coordination Officer in relation to such districts:"
The above subsection manifestly say that the District Coordination Officer now Deputy Commissioner with powers of District Magistrate can exercise the powers under. Section 144, Cr.P.C.
Only when elections for the local Government have not been held or the Local Government is not functional. The subsection (7) of the ibid section will lose its effect when the Local Government is functional in the district as presently the local governments are functioning in Swat and other districts of the province. Withdrawal of the same authority from the Deputy Commissioner is clear from the proviso to Section 144(7), Cr.P.C., which reads as under:-- "Provided that this subsection shall cease to have effect and shall be deemed to have been repealed, at the time when Local Government are installed in the district as aforesaid."
In view of the above provisions of the relevant law, the, impugned orders as well as orders of the like nature repeatedly issued by the District Magistrate, Swat, are beyond the scope of his lawful authority and as such, the same have no legal effect.
7. Now coming to the point raised by the learned A.A.-G. That life duration of the impugned orders has already expired and the fresh order of the District Magistrate, Swat, which is still in field, has not been challenged through these writ petitions. No doubt, the fresh order issued by the District Magistrate, Swat, is not impugned in this petition but copies of the same are available in the connected petitions, however, orders of the same nature have already been passed by the respondents in the past and it appears that the same practice will continue in future as well, therefore, the issue needs to be resolved ()nee and for all. In this context it is pertinent to mention here that earlier a writ petition of the same nature bearing W.P No, 155-M/2014 had been instituted which stood dismissed as withdrawn vide order dated 24.4.2014 with the following observations of this Court:-- "In wake of the above, the instant petition is dismissed as withdrawn, however, the respondents are directed not to harass the petitioners and they be dealt with in accordance with law".
' Despite the above directions of this Court, it seems that the Respondent No,1 is adamant to issue recurring orders of the like nature for which he has no legal authority. It is noticeable that orders of the same nature are being issued for a period of two months and on expiry thereof the same orders are again renewed in violation of subsection 6 of Section 144, Cr.P.C., as the subsequent orders are in fact the continuation of the former ones for which the District Magistrate possesses no legal authority. Even in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, as laid down under subsection (6) of section 144, Cr.P.C., only the Provincial Government E is authorized to issue directions by notification in the official Gazette and the District Magistrate has no power to pass orders of the same nature after expiry of the former two months period. Reliance is placed on 1984 PCr.LJ (Lahore) 1021 and 2003 YLR 893.
8. It is also observed that the Commissioner, Malakand Division, has realized the legal repercussions of the orders issued by the District Magistrate, Swat, in exercise of his powers under Section 144, Cr.P.C., and directed all the Deputy Commissioners of Malakand Division for withdrawal of the same orders vide letter No, 2532-38/77/C/V-2, the relevant paras whereof have already been reproduced earlier in this judgment, therefore, despite clear cut directions of the higher authority, repetition of the earlier orders by the District Magistrate is not understandable. Obviously, the impugned orders as well as orders of the like nature whether in the field or to be issued in future, are adversely affecting the lawful scrap business of the petitioners and would amount to infringement of their right to life as well as of their families. As observed by the august Supreme Court of Pakistan in a judgment reported as PLD 1997 Supreme Court 342 that the citizens of Pakistan are enjoying equality before the law and freedom of trade, business or professions as enshrined in Articles 18 and 25 of the Constitution of the Islamic Republic of Pakistan. State functionaries are expected to act fairly andjustly in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise and while discharging official functions, efforts should be made by State functionaries to ensure that no one is denied the right to earn his livelihood because of the unfair or discriminatory act on their part. No doubt, the petitioners and the people of the area involved in the same business have not been treated in accordance with law and the exercise of powers by the District Magistrate under the garb of Section 144, Cr.P.C., in the manner as complained of by the petitioners can in no way be deemed as fair and just being discriminatory in nature.
9. Bare reading of the impugned notification suggests that the respondents and the security/intelligence agencies as referred to therein, instead of improving their own working, are resorting to the abuse of executive/administrative authority to the disadvantage and detriment of the fellow citizens.
10. In view of the above discussion, the orders. Impugned through these writ petitions as well as the orders of the like nature in the field issued by the respondents are unlawful, capricious, whimsical and arbitrary, hence, the same have no legal effect. Therefore, the instant writ petition i.e, W.P. No, 587-M/2014 and the connected petitions bearing W. Ps. Nos. 599-M/2014 and 118-M/2015 are allowed and the orders of the respondents either impugned through these writ petitions of orders of the like nature still in the field are hereby set aside. Needless to mention here that the respondents shall not harass the petitioners and the public viz-a-viz their lawful business of the like nature. C.M. No,963-M/2014 is hereby dismissed for having become infructuous.