SADAQA T HUSSAIN RAJA, J. --- The captioned writ petition has been filed under Section 44 of the Azad Jammu and Kashmir interim Constitution, 1974 whereby ,' order dated 17.11.2018 has been challenged for having been passed without lawful authority .
Facts of the case are that petitioners intend to celebrate Mehtil-e-Nat and Mehtil-e-Samaa (Qawali) at Astana Aalia "Qadria Chishtia" situated at Mohra, which fall within the jurisdiction of Police Station. Chikkar . It is contended that petitioners moved application to the Deputy Commissioner on 15.11.2018 for security , who sent the same to S.P, Jhelum valley but the Deputy Commissio ner. Muzaf farabad, vide order dated 17.11.2018 imposed a ban, which is illegal, arbitrary and without lawful authority .
Respondents have contested the petition by filing comments, wherein, it is stated that pro-forma respondents are residents of Pakistan and their person are disputed in religious affairs, due to which, apprehension exists to spread the religious hatred. It is contended that many applications are received every year due to their disputed religious affairs, hence, ban has rightly been imposed upon the pro-forma respondents. - The learned Advocate for the petitioner contended that the order passed by the Deputy Commissioner is not in accordance with law, hence, the same is liable to be set aside. The learned Advocate further stated that festival regarding religious affairs is the fundamental rights of every citizen, which is guaranteed by the Constitution. The learned Advocate further contended that the proforma-respondents have never been promoted religious hatred in the society but they have spread messages of the Islam to Muslims: Nobody has turned up on behalf of the respondents.
I have heard the learned counsel for petitioners and gone through the record of the case with utmost care.
Order dated 17.11.2018 passed by the Deputy Commissioner/ District Magistrate, Muzaf farabad whereby , a ban has been imposed on pro-forma respondents on entering into the territory of Muzaf farabad has been challenged. A perusal of record reveals that an application was filed by the petitioners to Deputy Commissioner Jhelum Valley for providing security to conduct of Mehfil-e-M elad. It is settled principle of law that writ can only lie where any violation of rule and law is pointed out. In the instant case, the question as to whether the Deputy Commissioner/District Magistrate is competent to pass the impugned order? For proper appreciation, I would like to reproduce Section 5 of the Azad Jammu & Kashmir Maintenance of Public Order Ordinance, 1980. which is as under:--
5. Power to control suspected persons:---( 1) Government or District Magistrate, if satisfied with respect to any particular person that with a view to preventing him for acting, in any manner prejudicial to public safety or public interest, or the maintenance of public order . it is necessary so to do, may by order in writing, give any one or more of the following direction, namely , that such person;---
(a) Shall not enter , reside or remain in any are that may be specified in the order ,
(b) Shall reside or remain in any area that may be specified in the order ,
(c) Shall remove himself from, and shall not returned to, any area that maybe specified in the order ,
(d) Shall conduct himself in such manner , abstain from such acts or take such order with any property in his possession or under his control, as may be specified in the order; and
(e) Shall enter into a bond, with or without sureties for the due observance of the direction specified in the order .
(2) xxxxxxxxxxx
(3) xxxxxxxxxxx In view of the above reproduced Section, it reveals that District Magistrate is empowered to pass such an order for maintaining of peace in the area for the larger interest of public and may order to restrain any person from entering in the territory in light of their disputed conduct and speeches regarding religious hatred. Under the National Action Plan, 2014, Government/Competent Authority has imposed ban on spreading religious hatred even by this Government as well as Government of Pakistan. The relevant agenda item of Nation Action Plan 2014, is reproduced as under:---
1. XX
2. XX
3. XX
4. XX
5. XX
6. XX
7. XX
8. XX
9. Taking ef fective steps against religious persecution.
10. XX
11. XX
12. XX
13. XX
14. XX
15. XX
16. XX
17. XX
18. XX
19. XX
20. XX As stated above, writ petition is not competent because no violation of rule or law is pointed out and District Magistrate while passing the impugned order did not exceed his powers. Through the impugned order , respondents have not prohibited or restrained the petitioners to celebrate Mahfil-e-Naat or Melad Shareef. The District Magistrate has imposed ban on entry of the pro-forma respondents within the territory of his jurisdiction. From perusal of the impugned order , it is clear that respondents have not interfered in the religious activity , which was being conducted by the petitioners rathe r the respondent No. 03 has Imposed ban on the entry of pro-forma- respondents within territorial jurisdiction. clue to their disputed conduct. Althoug h the freedom to movement is guaranteed as fundamental right for every state subject but all the freedom is subject to public interest. Relevant Article of the Interim Constitution 1974, which is reproduced as under:-- 4.5 Freedom of Movement:--Subject to .any reasonable restrictions imposed' by law in the public interest,. every state subject shall have right to move freely throughout Azad Jammu & Kashmir territory and to reside and Settle in any part thereof.
The aforesaid Article of the Constitution guarantees the right of movement to every state subject of Azad Jammu & Kashmir within territory of Azad Jammu & Kashmir subject -to reasonable restriction imposed by law in public interest. Through the impugned order; movement of pro-forma respondents was banned in Azad Jammu & Kashmir due to their disputed conduct, who are not state subjects and Interim Constitution does not guarantee the right of movement to any non-state subject, who have been banned in the public interest.
No doubt, right of religion is Constitutional right and the same cannot be interfered by the Government, State-or any authority and every person has right to choice religion or practice of religion of his own choice but on the other hand, the State or Authority has to regularize religious activities for harmony and peace in the society . In my considered view, the Courts should not decide such cases-simply under the garb of Constitutional, human or fundamental rights specially while exercising Constitutional jurisdiction rather the Court should observe its effect to the society . It is also duty of the Court to protect the life of the people and should avoid to pass any order , which frustrates the powers of the authority for maintenance of peace and security . Life is a divine gift and it has priority on all other human rights. It is useless to protect any right without protecting the right of life to the individuals of the society . The District Magistrate has a machinery to collect information regarding the conduct of any person or any religious procession and any order based on such information cannot be declared as illegal simply by alleging that such order is against the fundamental right.
In view of above, finding no force in this writ petition, the same stands dismissed in limine.