MUHAMMAD SHAN GUL, J. The titled Constitutional Petition is sought to be decided through the present judgment. Facts in brief are as follows. The petitioner who subscribes to the Fiqah-e- Jafria Sect has laid a challenge to an Order dated 25.06.2021 passed by the Deputy Commissioner Lodhran whereby he has refused permission to the petitioner for holding a Malis-e Aza within the precincts of his property situated at Chak No.-48/M Tehsil and District Lodhran. This vicinity according to the Petitioner , houses at least 100 families who subscribe to the Ahle-e-T asheeh faith. According to the petitioner Chak No.48/M in Tehsil and District Lodhran consists of nearly 100 houses in which families subscribing to the Fiqah-e-Jafria school reside and the Majalis for which the present petition has been filed are to take place within the precincts of the said homes and therefore there is no legal hurdle or moral problem in allowing the petitioner to hold and arrange the Majalis in question. The counsel for the petitioner submits that his Sects' right, as also his own, to freely profess religion is recognized unequivocally by Article 20 of the Constitution of Islamic Republic of Pakistan 1973 and no Executive Instructions or unstructured and subjective Standard Operating Procedures of the Provincial or the District Administration can be allowed to make inroads into, or dilute the right, in question. Relies on the case reported as "Hafiz Asmat Ullah Vs. Govt. of the Punjab " (PLD 2005 Lahore 354 ) to reinforce his submissions based on Article 20 of the Constitution.
2. The Deputy Commissioner Lodhran was called by the Court and the learned Assistant Advocate General assisted by the Deputy Commissioner Lodhran submit that Guidelines issued by the Home Department, Province of Punjab, dated 23rd of July 2020 provi de that new processions may not be allowed in the month of Muharram and that it is on this count that the Deputy Commissioner Lodhran has rejected the application of the petitioner .
3. The Deputy Commissioner Lodhran vide order dated 25.06.2021 has ruled as follows: Subject: REDRESSAL OF GRIEVANCES.
Application of Mr. Manzoor Hussain Magsi S/o Rustam Ali Khan R/o Basti Magsi Chak No.48/M Tehsil & District Lodhran for the grant of NOC for holding Majalis from 02 to 09 Muharram-ul-Harram 2021 was sent to the District Police Officer Lodhran for report. The District Police Officer in its report dated 18.06.2021 rejected the grant of NOC of the above programs during the forthcoming Muharram-ul Harram, being a new one and contrary to the policy instructions. Hence the applicant cannot be entertained being devoid of merit and against the policy in vogue.
4. One look at the order makes the following quite conspicuous:
(a) The order contains little or no reasons.
(b) It betrays abdication of authority on the part of the Deputy Commissioner in favour of the District Police Officer , Lodhran.
(c) The order shows no application of an independent mind by the Deputy Commissioner Lodhran.
(d) The order conveys that the Deputy Commissioner is acting under dictation received from the District Police Officer Lodhran.
(e) There is no objective consideration of the matter by the Deputy Commissioner .
(f) The order does not make any sense towards the end and fails to amplify why it has been so passed 'being a new one and contrary to policy instructions ' - why and how is lost on the reader .
(g) The order does not at all allude to earlier applications filed by the Petitioner on the same subject.
5. Now, each one of the these evident flaws in the order is enough to set aside the order so passed by the Deputy Commissioner Lodhran but considering the sensitivity of the matter , not only has the Deputy Commissioner been heard at length but even the report of the District Police Officer Lodhran, appended with the petition, has been perused. The report submitted by the District Police Officer, Lodhran states that the S.H.O and the D.S.P . have informed the District Police Officer Lodhr an that no Majalis take place in Muharram (a sweeping and an incorrect statement on all counts since Majalis are also held even in the month of Muharram ) and that there is a ban on holding new Majalis in Muharram.
6. A perusal of this report clearly reveals that there is no reference to the element of law and Order which ought to have been the only consideration weighing with the District Police Officer and which consideration has a rational nexus with the maintenance of Peace and Public Order . Furthermore, there is no mention of the authority of law or Rules in terms of which a complete ban on new Majalis during the month of Muharram has been imposed. In fact a perusal of the Guidelines of the Home Department for Maintenance of Peace and Order during the month of Muharram reveals that there is no complete or absolute ban on the holding of Majalis in the month of Muharram and even these Guidelines fall short of imposing a complete ban. Clause E(16) and (20) is relevant in this respect but only speaks about curtailing the number of Majalis in the month of Muharram and does not at all envisage a complete and total ban and therefore the reliance of the D.P.O Lodhran on such guidelines as also the order passed by the Deputy Commissioner Lodhran on the basis of the report of the DPO come across as ex facie bad in law. The Guidelines do not totally prohibit but only seek to regulate the holding of Majalis. It is trite that in the context of the exercise of fundamental rights regulation can never mean total prohibition. That by way of and for the purpose of regulating a right, regulations which are so intrusive so as to take away, deny and prohibit the enjoyment of the right in question cannot be imposed even by law (kindly see the case of "Arshad Mahmood" PLD 2005 S.C 193).
7. It is evident from a perusal of the report of the District Police Officer Lodhran as also the Order passed by the Deputy Commissioner Lodhran dated 25.06.2021 and which in turn is based on the said report of the DPO Lodhran that the same do not provide any legal basis for the ban, make no mention of any statutory policy or provision of law countenancing such absolute prohibition and, for that matter , provide no reasonable cause or rational basis for denying permission to the petitioner whose fundamental right to profess religion and to show allegiance to his faith is at stake.
8. Both, the Order passed by the Deputy Commissioner as also the report of the District Police Officer, are gnomed to lilluputian dimensions when the same are measured against the constitutional command contained in Article 20 of the Constitution and very lucidly explained in (PLD 2014 Supreme Court 699)nd th (Suo Motu actions regarding suicide bomb attack of 22- 9-2013 on the Church in Peshawar and regarding threats being given to Kalash tribe and Ismailies in Chitral). It has been held by hon'ble supreme Court of Pakistan at page 717 of the judgment as follows:- Of all the Articles relating to the minorities' rights, Article 20 is of prime significance. A close reading of this provision would indicate that the freedom to practice religion and manage religious institutions under this provision is multifaceted because:
(a) ...
(b) The right to religious conscience is a fundamental right. It has not been subjected or subordinated to any other provision of the Constitution because it is only subject to law, public order and morality and not to any religious clauses of the Constitution. The very term law, public order and morality has been used in non-religious terms as the notion of law or public order or morality is not reducible to the Islamic meanings of these terms. Therefore, Article 20 has a certain preeminence in the Constitution being only subject to the general restrictions of law, public order and morality , which three terms cannot be interpreted or used in such a restrictive way as to curtail the basic essence and meaning of the pre- eminent right to religious conscience.
(e)....
(d) As far as every religious denomination is concerned, even sects within these religious denominations have been conferred the additional right to establish, maintain and manage its religious institutions. Therefore, even sects within these religious denominations have been protected against their own co-religious denominations.
(e) The right of religious conscience conferred on every citizen is a right conferring three distinct rights i.e. Right to Profess, Right to Practice and Right to Propagate. What this means is that Article 20 does not merely confer a private right to profess but confers a right to practice both privately and publicly his or her religion. Moreover , it confers the additional right not only to profess and practice his own religion but to have the right to propagate his or her religion to others. It is important to note that this propagation of religion has not been limited to Muslims having the right to propagate their religion but this right is equally conferred on Non-Muslims to propagate their religion to their own community and to other communities.
This should not be seen as a right to encourage conversions but more importantly , should be seen as a right against forced conversions or imposing beliefs on others because if all citizens have the right to propagate then no citizen has the right of forced conversion or imposing beliefs on others.
9. As is evident from a perusal of this landmark judgment, the right to profess religion also contains within its fold the concomitant rights to practice and freely propagate religious beliefs. The matter of holding a Majlis in the month of Muharram by a person who subscribes to the Fiqah-e-Jafria faith is indeed an example of professing and propagating religious credence.
10. Furthermore, it is trite that administrative instructions or administrative guidelines or even Standard Operating Procedures without requisite legal backing cannot be allowed to make inroads in and dilute fundamental rights as contained in the Constitution. In any case, administrative instructions are neither laws nor rules and these can only be subservient to laws and rules and, therefore, cannot be allowed to dilute the allowance and freedom affor ded by the Constitution. See "Hashwani Hotels Limited V. Federation of Pakistan and others " (PLD 1997 SC 315 at 329) and "Anoud Power Generation Limited and others V.
Federation of Pakistan and others "(PLD 2001 SC 340). If executive or administrative instructions or guidelines cannot make inroads into statutory rights there is no gainsaying that these are even further dwarfed when confronted with fundamental rights!
11. There are, furthermore, three apparen t and conspicuous reasons why the Order dated 25.06.2021 passed by the Deputy Commissioner Lodhran and which order has been challenged through this petition cannot be allowed to remain in force and these are as follows:- (1). ACTING UNDER DICT ATION/ ABDICA TION OF DISCRETION
12. A Deputy Commissioner is empowere d in terms of Section 16 of the Punjab Civil Administration Act, 2017 to authorize permission for holding of processions and Majalis. Section 16, is reproduced as follows:-
16. Public processions etc.-(1) No public meeting, procession, assembly or gathering shall take place without prior permission in writing of the Deputy Commissioner.
2) On receipt of an application for the purpose, the Deputy Commissioner , in consultation with the head of District Police, may grant permission subject to such terms and conditions as he deems fit or reject the application after recording reasons.
(3) The Deputy Commissioner may, in consultation with the head of the respective local government, requisition such assistance of the local government as may be necessary in the circumstances.
13. A perusal of this provision of law reveals that it is the Deputy Commissioner who has been vested with the requisite authority under the law to allow permission for holding of processions and gatherings. It is the Deputy Commissioner who has to grant or reject permission and only him. Furthermore, he has to record reasons by way of statutory prescription. It is the Deputy Commissioner who has the authority and power under the law to allow or disallow the holding of religious congregations. The law, therefore, places this statutory obligation on the Deputy Commissioner. The Deputy Commissioner, therefore, has to exercise his own structured discretion in the matter by means of attending to, considering and deciding it either way, of course, by an independent application of mind through a reasoned order that speaks for itself. In the present case, the Deputy Commissioner has not applied his mind at all and has fettered his discretion by abdicating it to the District Police Officer. The Deputy Commissioner has merely rubber-stamped (automatically declined authorization by blindfoldedly acting on the decision of another person i.e. D.P.O. without undertaking any consideration himself) and notarised the opinion, subjective at that, of the District Police Officer and merely acted under dictation. One does not need to look beyond the governing law to appreciate that the authority and power so meant to be vested by law in the Deputy Commissioner has actually and only been exercised by the District Police Officer, an entity that is not germane statutorily to so exercise such authority. Since the Majalis for which the Petitioner seeks permission are supposed to be held indoors, within the precincts of the abode of the Petitioner, Article 120 of the Police Order 2002 has no application. Article 120 deals with public processions and is therefore not applicable in the present context.
Hence, it is the Deputy Commissioner who is the relevant authority for the present purpose.
14. The following cases help in understanding this ground of judicial review discussed above.
(i). Lavender . Vs. Minister of Housing (1970) 1WLR 1231 .
(Unlawful fetter for minister of housing to make the views of the Minister for Agriculture the sole material consideration - just as here!)
It has been held at page 1241 of the said judgment as follows:- "Everything else might point to the desirability of granting permission, but by applying and acting on his stated policy I think the Minister has fettered himself in such a way that in this case it was not he who made the decision for which Parliament made him responsible. It was the decision of the Minister of Agriculture not to waive his objection which was decisive in this case, and while that might properly prove to be the decisive factor for that Minister when taking into account all material considerations, it seems to me quite wrong for a policy to be applied which in reality eliminates all the material considerations save only the consideration, when that is the case, that the Minister of Agriculture objects.
That means, as I think, that the Minister has by his stated policy delegated to the Minister of Agriculture the effective decision on any appeal within the agricultural reservations where the latter objects to the working. I am quite unable to accept that in these circumstances, the public inquiry could be justified.
(ii). Ex Parte LONRHO. (1970) 1WLR 525.
(Discretion must be exercised by him who is so statutorily vested with it and not at the dictation of another entity).
The House of Lords has held at page 540 as follows:- "The significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the Court draws the inference that he had no rational reason for his decision".
(iii). R. Vs Secretary of State Home Department (2003) 1WLR 1230 .
(Secretary of State would be acting unlawfully were he to rubber stamp, there being a duty to consider on an individual basis whether the claim of a asylum is bound to fail).
(iv). R. Vs Police Complaints Authority Ex Parte Madden (1983) 1WLR 447 (Received guidance could not bind an authority lawfully).
(v). Syed Dilshad Hussain Vs. Province of Punjab. ( PLD 1982 Lahore 153 )
(Under the law the District Magistrate is duty bound to apply his independent mind in discharge of his statutory duties but his order gives the impression that he was heavily and mainly influenced by confidential instructions emanating from the Chief Secretary).
Apparently the District Magistrate has passed a very comprehensive order while turning down the request of the petitioner for the grant of the licence but when the order is read in its entirety, it gives the impression that while passing the impugned order, the District Magistrate was mainly influenced by the confidential instructions issued by the Chief Secretary which on the face of it are ultra vires of the Police Act. The learned Advocate-General has frankly conceded that the instructions issued by the Chief Secretary are not binding on the District Magistrate and that, under the law, the District Magistrate is duty bound to apply his independent mind in the discharge of his statutory duties under the said Act irrespective of any instructions issued on the executive side. I am also inclined to agree with the submissions of the learned Advocate General. There is no express or implied provision in the Act which confers any powers on the Chief Secretary to issue the instructions, in question. The instructions issued by the Chief Secretary are ex facie ultra vires.
(2). The order challenged shows it is not based on any independent application of mind of the statutory authority invested with the power to pass such an order since it contains no reasons provided by the statutory authority , not even one.
15. While observations have already been recorded in the preceding narrative about the violation of Section 16 of the Punjab Civil Administration Act 2017 by the Deputy Commissioner, it may also be pointed out that the Order passed by the Deputy Commissioner falls considerably short of satisfying the test of rationality. Any reasonable exercise that attempts to address an issue must contain independent reasons for reaching a conclusion, especially so if the exercise is mandated by statute. The reasons given for a decision explain the justification or logic for such a decision. The reasons provide solace to the person against whom a decision has been rendered about the decision not been fanciful, whimsical or arbitrary . As has been rightly noted in "R. Vs. HEFC ex. P Institute of Dental Surgeons " (1994) 1 ALL ER 651 the giving of reasons may, among other things, concentrate the decision maker 's mind on the right questions. Fairness, both procedural and substantive, requires that the losing side should be left in no doubt why it has lost.
16. In the present matter , the Deputy Commissioner has not provided any reasons of his own! This betrays no application of mind on the part of the statutorily empowered Deputy Commissioner . In 1997 MLD 588 "Muhammad Siddique Vs. District Magistrate Lahore" it has been held that while refusing or granting permission for taking out religious processions the District Magistrate is required to apply his own independent mind in discharge of his statutory duties and not get swayed by alien instructions".
(3). Lack of Statutory/Legal basis for disallowing processions.
It is trite and established that Article 20 of the Constitution only permits for a Law to intrude into and regulate and control a citizens ' right to freely profess his faith and show allegiance to it. Of course, this means that a citizen has the right to show allegiance to his religious beliefs and to profess and propagate the same freely, uninterruptedly, without any restrictions and without being hampered, unless a law, statutory law that is, provides conditions, restrictions or riders to curtail the right or if such propagation damages public order or offends collective morality of the society. Law, of course, means law made by the Parliament or a Provincial Assembly and not administrative instructions, standard operating procedures, guidelines or closet memorandums without any statutory backing. Since the denial of permission in the present matter is based on such guidelines, on this count alone, the impugned order can be set aside being ex facie bad in law. Kindly see "Government of West Pakistan Vs. Haider Bukhsh" (PLD 1969 S.C. 210).
17. In the matter before this Court what has weighed with the respondent Deputy Commissioner in denying the petitioner an unqualified enjoyment of his right to profess, affirm or propagate his faith or to freely show allegiance to his religious beliefs, is a set of guidelines with no statutory backing. It is also not as if the petitioner 's application is motivated by malice or rooted in an ulterior aim and equally it is not also that the community represented by the petitioner has interests that are at odds with those of the petitioner . Permission, therefore, should not have been withheld especially because the petitioner has stated unequivocally that he is absolutely agreed and completely willing to abide by, follow and carry out, security instructions prescribed by the respondents if he is granted the requisite permission. In Muhammad Bhatti Vs. District Magistrate Gujrat " (1985 PCr.LJ 301), it has been held, "where the applicant was not shown to have acted malafide or for some ulterior motive, the District Magistrate was under a legal obligat ion to issue license and grant permission for holding a religious procession".
17. For what has been discussed above, the impugned Order dated 25.06.2021 cannot be sustained and is therefore set aside. The matter is remanded to the Deputy commissioner Lodhran so as to be considered afresh by him after providing an opportunity of hearing to the petitioner in the matter. The Deputy Commissioner Lodhran, this Court is confident, shall be guided by the jurisprudence on the subject and will be bound by the ratio decidendi and obiter dicta of the hon'ble Supreme Court of Pakistan as expressed in (PLD 2014 Supreme Court 699) (Suo Motu actions regarding suicide bomb attack of 22-9-2013 on the Church in Peshawar and regarding threats being given to Kalash tribe and Ismailies in Chitral) .
18. The petitioner shall appear before the Deputy Commissioner on 30th August at 01:00 P.M. and the Deputy Commissioner shall thereafter proceed to consider the application of the petitioner himself and pass an order thereon in accordance with law and in accordance with what has been held above.