JAWAD HASSAN, J.---The Petitioner through this writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") has challenged the action of the Respondent No.2/Deputy Commissioner, Lahore and has made following prayer: "In view of above made submissions, it is, therefore, most humbly and respectfully prayed that instant writ Petition may ' kindly be accepted and acts and admissions of respondents be declared unlawful and constitutional, without lawful authority and without legal justification and colourful exercise of authority and prejudice by the personal vendetta and unlawful, void ab initio and be declared that petitioner has constitutional right regarding to the performance of religious " obligations, it guaranteed and never interruptible from Government at any pretext and any type of hurdle which is in, derogation of the above said rights is quite void ab initio, illegal and unlawful and respondents may very kindly be directed not to cause any hurdle or hindrance to enter in the Lahore to address the religious ceremonies those are delivered to the participants in the rituals ceremonies those are being conducted in the commemoration of greatest martyrdom............. and name of the petitioner be ordered to be removed/withdraw from the impugned list gagging of firebrand speakers of District Nankana Sahib in the supreme interest of justice and section 5(d) of West Pakistan Maintenance Order, 1960 may very kindly be declared illegal, unlawful and unconstitutional and be declared that petitioner is at liberty to address his religious speeches to the ritual ceremonies.
It is further prayed that during the pendency of titled writ petition, the respondent may kindly be restrained in the performance of petitioner's religious obligation regarding entrance in the limits of Lahore to the addressing of ritual ceremonies in commemoration of the greatest martyrdom........as under the law within the ambits of the constitution in the best interest of justice and no any undue harassment be caused by the respondents to performing of above said obligations of the petitioner.
Any other relief which this Honourable Court deems fit may also be awarded to the Petitioner in the supreme interest of justice."
I. BRIEF FACTS
2. It is contended in the Petition that the Petitioner Azhar Abbas Haideri is a responsible and respectable citizen and has not acted towards the sectarian hatred even not made any hate speech untoward the sectarian violence but the Respondents with mala fide intention and ulterior motive have imposed a restriction upon his movement and entrance in the District Lahore.
3. During pendency of this writ Petition, the Petitioner filed an Application (C.M. No.05 of 2021) for suspension of an order No.ADC(HQRS)HC-II/1264, dated 30.07.2021 (the "Impugned Order"), issued by. the Respondent No.2/Deputy Commissioner, Lahore, whereby he has been restricted/banned to enter, reside or remain in the District Lahore. This C.M. along with main case is taken up for decision.
II. PETITIONER'S SUBMISSION
4. Mr. Muhammad Yousaf Javaid Phaphra, Advocate submits that the Respondent No.2 has passed the Impugned Order with mala fide intention and without providing proper right of hearing to the Petitioner. He adds that the Impugned Order and action of the Respondents has infringed Petitioner's fundamental right to profess his religion guaranteed under Articles 20 and 22 of the Constitution. Also states that the Petitioner has been invited to address in Majlis-e-Aza going to be held today (05.10.2021) at Gulshan Town, Thokar Niaz Baig, Lahore, therefore, he be permitted to enter Lahore District. Further states that Article 10-A of the Constitution provides right of fair trial and due process for determination of rights and obligations, therefore, the Impugned Order is illegal and unlawful and is liable to be set aside. Leaned counsel relied on the judgments reported on "Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secreta Finance and Revenue Revenue Department Government of East Pakistan" (PLD 1957 Supreme Court (Pak.) 9) and "Suo Motu Actions regarding suicide bomb attack of 22.09.2013 on the Church in Peshawar and regarding threats being given to Kalash tribe and Ismailies in Chitral" (PLD 2014 Supreme Court 699).
III. RESPONDENTS' SUBMISSION
5. Conversely, Barrister Syed Ali Nouman Shah, Assistant Advocate-General Punjab with Jaweria Maqbool, Additional Deputy Commissioner, Lahore, defended the Impugned Order by stating that the same has been passed in accordance with law in order to control the law and order situation in the Province. He adds that a case FIR No.329, dated 09.10.2012, under section 295-A, P.P.C. was registered against, the Petitioner at Police Station Mureedwala, District Faisalabad. Further states that in order to prevent the Petitioner from acting in any manner prejudicial to public safety or public interest or the maintenance of public order, he has been restrained/banned to enter into District Lahore under section 5(d) of the Order read with section 5(1) Ordinance. Learned Law Officer also objected to the maintainability of this writ Petition being premature on the ground that under section 5(5) of the Ordinance, the Petitioner can move representation against the impugned order before the Deputy Commissioner. Learned Law Officer in order to strengthen his Arguments relied on the judgments reported as "Hubdar Hussain Malik v. Deputy Commissioner Chakwal and another" (2020 SCMR 1507) and "Manzoor Hussain v. Government of Punjab through Chief Secretary, Punjab Lahore and others" (2021 LHC 3498).
6. I have heard the arguments and perused the record.
IV. DETERMINATION BY THE COURT
7. The Article 20 of the Constitution forms the part of Chapter 1, Part-II of the Constitution comprising of fundamental rights pledged to the citizens which laid down that every citizen shall have the right to profess, practice and propagate his religion. However, it is imperative to note that the recognition of this right of religion, professing and propagation thereof is not unbounded and absolute rather Article 20 of the Constitution has unequivocally stipulated that the exercise of such right is always dependent and contingent on three basic requirements/factors i.e., subject to law, public order and morality. The significance of these three qualifying criterions can be best understood from the fact that from all other Articles of Part-II, Chapters 1 and 2, which deals with the Fundamental Rights, Article 20 is the only one which begins with the phrase "subject to law, public order and morality". For the sake of clarity, Article 20 (a) of the Constitution is reproduced as under: "20. Subject to law, public order and morality,--
(a) every citizen shall have the right to profess, practice and propagate his religion; -------------
8. The qualifier phrase used in the beginning of the Article 20 of the Constitution, further laid stress on the point that the given right to profess, practice and propagate religion is guaranteed and available to such an extent that does not run contrary or cause prejudice to all these three detenninatives, which in fact strike a balance between individual freedom and collective liberties on the touchstone of mutual respect and forbearance and peace and tranquility. It is otherwise open to the Constitution to say that a power granted by it may be regulated by a validly and competently enacted law by the legislature. The Honorable Supreme Court in "Zaheeruddin and others v. The State and others" (1993 SCMR 1718) also expressed similar opinion while holding as follows:-- The fundamental right, relevant hence, is the 'freedom to profess religion' but it has been made 'subject to law, public order and morality'. The Courts of other countries, which have similar fundamental rights, have held that this right embraces two concepts; freedom to believe and freedom to act. Some of them held the former to be absolute but others said that, that too was subject to law etc. However, all are agreed that the latter, in the nature of things, cannot be absolute. According to them, conduct remains subject to regulation for the protection of the society. So the freedom to act must have appropriate definition to preserve the enforcement of that protection. The phrase 'subject to law', on the other hand, does neither invest the legislature with unlimited power to unduly restrict or take away the Fundamental Rights guaranteed in the Constitution, nor can they be completely ignored or bypassed as non-existent. A balance has thus to be struck between the two, by resorting to a reasonable interpretation, keeping in view the peculiar circumstances of each case.
(Underlined for emphasis)
9. The august Supreme Court in the judgment supra, also relied on the judgments of Supreme Court of India, in the"Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra and others". (AIR 1954 SC 282 at p. 291) wherein similar opinion was articulate in the following manner:- "The provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which Constitutional guarantee of civil liberty would be a mockery."
10. Division Bench of this Court in "Agha Abdul Karim Shorish Kashmiri and others v. Province of West Pakistan" (PLD 1969 Lahore 289) also laid down the principle that when freedom to practice and profess religion is provided as a fundamental guarantee subject to law, public order and morality then it is clearly suggestive of the fact that such right is not absolute. It was held by the Court:- Freedom to practice and profess religion (F. R. 10) is in force, but its exercise is expressly made, "subject to law, public order and morality". Therefore, it is not absolute the expression subject to law, implies a recognition of similar freedom of every other citizen of Pakistan and also subject to the requirements of maintenance of law and order and morality.
11. This Court in "Dewan Hamid Masood Chishti and others v. Province of Punjab and others"
(2020 CLC 1885) also reiterated this principle while observing as follows:-- Article 20 of the Constitution clearly depicts that the freedom to profess religion and to manage religious institutions and every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions are subject to law, public order and morality.
12. It is also worth mentioning that even Article 19 of the Constitution, which provides freedom of speech is subject to any reasonable restriction imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality. Article 19 reads as follows: "19. Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restriction imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court or incitement to an offence."
13. The Honorable Supreme Court in "Pakistan Broadcaster Associations v. Pemra and others"
(PLD 2016 SC 692) meaningfully discerned the scope and extent of reasonable restriction on the right of freedom of expression and held as follows:- "In examining the reasonableness of any restriction on the right to freedom of expression it should essentially he kept in mind as to whether in purporting to exercise freedom of expression one was infringing upon the right of freedom of expression of others, and also violating their right to live a nuisance free life, and as to whether one is right to time and space was being violated. No one could be forced to listen or watch that he may not like to, and one could not he invaded with unsolicited interruptions while eagerly watching or listening to something of his interest. State was not supposed to remain oblivious of such violation/invasions and could not detract from its obligation, to regulate the right to speech when it came in conflict with the right of the viewers or listeners. Constitution, though secured the right to free speech, but had not left the same unchecked and had provided for reasonable restriction, as postulated under Article 19 of the Constitution. State had a compelling interest in regulating the right to speech when it came in conflict with the rights of other individuals, or other societal interest.
In a civilized and democratic society, restrictions and duties co-existed in order to protect and preserve the right to speech. It was inevitable to maintain equilibrium by placing reasonable restriction on freedom of expression in the maintenance of "public order". Unless the restriction struck a proper balance between the freedom of expression guaranteed by Article 19 of the Constitution and the social control permitted thereby, it must be held to lack the attributes of reasonableness. Government should therefore strike a just and reasonable balance between the need for ensuring the people's right of freedom of speech and expression on the one hand and the need to impose social control on the business of publication and broadcasting."
14. Adverting to the petition in hand, it is observed that grievance of the Petitioner is pertaining to an order passed by the Respondents whereby he is barred to enter in District Lahore to take part in any Majlis and for making any speech therefrom because according to the Respondents the previously registered FIR against the Petitioner for making derogatory/objectionable speech is clearly reflective of the fact that his speech can cause serious prejudice to the law and order of the society and pose a potential threat to the peace and tranquility of the area, therefore in order to prevent disruption in the law and order and to secure religious harmony between the followers of different religious beliefs his entry was banned. It is observed that Deputy Commissioner is competent under Section 5(1) of The Punjab Maintenance of Public Order Ordinance, 1960 to pass an order directing that a person shall not enter, reside or remain in any area as specified therein in order to prevent him from acting in any manner prejudicial to public safety or public interest or the maintenance of public order. For the sake of ready reference relevant portion of the provision is produced hereinunder:-
5. Power to control suspected persons.---(1) Government or the Deputy Commissioner, if satisfied with respect to any particular person that with a view to preventing him from 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 directions, namely, that such person--
(a) shall not enter, reside or remain in any area 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 return to, any area that may be specified in the order;
(d) shall conduct himself in such manner or abstain from such acts, as may be specified in the order;] and
(e) shall enter into a bond, with or without sureties for the due observance of the directions specified in the order.
15. The Honorable Supreme Court of Pakistan in "Hubdar Hussain Malik v. Deputy Commissioner Chakwal and another"(2020 SCMR 1507) has made a clear ruling and categorically held that in such matters executive functionaries must be given autonomy of discretion with enough space to carry out their job without let or hindrance as it is essential as well as expedient that exercise of freedom be reasonably regulated on administrative considerations on the paramountcy of larger public interest because the public functionaries and executive authorities are the best judges to evaluate the nature and magnitude of threats so as to take all appropriate remedial measures/steps required to obviate impending disasters and these are not justiciable issues. The Supreme Court ruled:- "Subject to law, public order and morality, the Constitution confers upon every citizen the right to profess, practice and propagate his religion; in a normal/ideal situation, profession and practice of a particular faith by a believer or group thereof should not pose any issue, calling for intervention of State functionaries, however, the state of affairs unfortunately, over the time, has deteriorated alarmingly; routine events of the past have now become, more often than not, security nightmares with no recession or respite being in sight, therefore, with mounting pressures and threats, the functionaries, tasked with the responsibility to maintain peace and tranquility in the society in order to ensure safety of human lives, must be provided autonomy of discretion with enough space to carry out their job without let or hindrance; security measures are resource intensive arrangements with financial impacts upon public exchequer, therefore, it is essential as well as expedient that exercise of freedom is reasonably regulated on administrative considerations on the paramountcy of larger public interest. The functionaries are the best Judges to evaluate the nature and magnitude of threats so as to take all appropriate remedial measures/steps required to obviate impending disasters; these are not justiciable issues and thus, the learned Judge-in-Chamber had rightly heeded the report submitted by the Deputy Commissioner Chakwal peaceful conclusion of the event amply vindicates his position. Petition fails: Leave declined."
(Underlined for emphasis)
16. In the light of dictum laid down by the Supreme Court mentioned supra, the impugned order passed by the Respondent is well within his competence and defined domain, based on the subjective analysis of the situation, which is not justiciable within the purview of Article 199 of the Constitution. The Respondents have informed that various FIRs have been registered against the Petitioner as mentioned in the Impugned Order therefore action of the Respondents preventing the Petitioner from acting in any manner prejudicial to public safety or public interest for the, maintenance of public order, which has admittedly been communicated to him is not without authority. The Petitioner can also file his representation as per provision of section 5(5) of the Ordinance which clearly states that If an order has been made under subsection (I), the authority making the order shall, within fifteen days, communicate to the person to whom a direction has been issued, the grounds on which the order has been made and shall afford the person the earliest opportunity of making a representation against the order." ' before the Deputy Commissioner, Lahore, hence this writ Petition is not sustainable in the present circumstances.
Moreover, the prayer made in this petition by the Petitioner is with regard to restrain the Respondents from performance of his religious duties whereas the impugned order was not challenged in the main prayer rather it was subsequently challenged through C.M:No.05 of 2021 dated 04.10.2021. Now the Petitioner has the copy of the impugned order against which remedy of representation, as discussed above, is available. While dealing with the question of maintainability of a petition before this Court in the wake of an alternate efficacious remedy available to a litigant, the Hon'ble Supreme Court of Pakistan in judgments reported as "Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others" (2016 SCMR 842), "Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others" (2011 SCMR 1813) and "Muhammad Abbasi v. S.H.O.
Bhara Kahu and 7 others" (PLD 2010 SC 969) has held that in presence of availability of an alternate efficacious remedy, jurisdiction of this Court under Article 199 of the Constitution cannot be invoked.
17. In view of above this Petition is dismissed. However, the Petitioner, if so advised, may avail his alternate remedy and file his representation before the Authority/Deputy Commissioner, Lahore for redressal of his grievance.
Copy dasti on payment of usual charges.