Ch. Sultan Mahmood, J.
C.M. No.4553 of 2025.
This is an application under Order 1 Rule 10 C.P.C. for impleading the applicants as necessary and proper party in the array of respondents by maintaining that they are residents of the same locality where the petitioner intends to hold Majalis. Their case is that they are directly and adversely affected by the relief being sought and are in possession of facts that are material to the adjudication of this matter.
2. In the present case, the matter is not only of individual interest but also has an impact on the rights of the local residents and the peaceful environment of the area. Since the applicants claim to represent the local community and wish to bring forth certain relevant facts which may have a bearing on the issue of public peace and order, their impleadment would assist the Court in reaching a fair and informed decision. Therefore, the instant application is allowed and the applicants are directed to be arrayed as respondents No.7 and 8 in the petition.
C.M. No.4554 of 2025.
3. Dispensation sought for is allowed subject to all just and legal exceptions.
Main Case.
Through the instant Constitutional Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has impugned the order dated 05.06.2025, whereby respondent No.2-District Police Officer, Bhakkar refused to grant permission to hold Majalis within the premises of Imambargah Al-Qaim Kallurkot District Bhakkar on the basis that petitioner's family members are involved in sectarian violence. Though, the order does not mention the dismissal of application but comments filed in response to that application provides that the same be dismissed and permission to hold Majalis be withheld.
2. Report & parawise comments on behalf of respondents No.2 to 4 were filed by the learned law officer on the preceding date.
3. Learned counsel for the petitioner has argued that the petitioner, being a Shia by sect, is exercising his fundamental right enshrined under Article 20 of the Constitution of the Islamic Republic of Pakistan, which guarantees every citizen the right to profess, practice, and propagate his religion. Holding Majalis is a core component of his faith and religious obligation. It is submitted that the Majalis in question have been conducted peacefully in the past and there exists no imminent threat to law and order. The petitioner remains willing to comply with any reasonable conditions imposed by the administration to ensure public peace. Lastly argued that by accepting the instant petition permission to hold Majalis be granted to the petitioner at Imambargah Al-Qaim Kallurkot District Bhakkar.
4. Learned law officer and learned counsel representing the respondents No.7 & 8 have argued that there exists a serious apprehension of sectarian tension and possible breach of public peace if permission is granted for holding the Majalis at the proposed venue.
Given the sensitive sectarian composition of the locality and prevailing law and order concerns, the administration is justified in exercising caution. The primary duty of the State is to maintain public order and any religious activity that could potentially trigger unrest must be regulated accordingly in the larger public interest. Lastly while supporting the impugned order, they have prayed for dismissal of the instant petition.
5. Heard. Record perused.
6. After hearing arguments and going through the record, it is observed that between the people of locality an agreement was reached with respect to place in question, the conditions of said agreement are as under: However, thereafter, the petitioner filed a W.P. No.52510/2022 seeking a permission to hold Majlis-e- Aza, which was decided by this Court vide order dated 16.01.2023, in the following term: "7. During the pendency of the writ petition if a peaceful gathering was made possible by the District Administration, I wonder why it cannot continue in future. The purpose of the interim order was to ascertain the capability of the District Administration to permit this religious gathering to rule out the possibility of law and order situation and they have proved that it is possible without any breach of peace.
8. In this view of the matter, I dispose of this writ petition directing the respondents to permit the petitioner to hold religious gathering on the occasion of Chehlum dated 20th Safar-ul-Muzaffar and include the program in the schedule of District Activities for future."
By filing the instant petition, the petitioner is seeking permission to hold Majalis from 1st to 10th Muharram. However, the respondents No.2 to 4 in their report and parawise comments controverted that on the sectarian ground it is not possible to conduct Majalis as most of population in the vicinity belongs to other sect and a Mosque of other sect is situated there and there is great friction among Shia Sunni community with respect to the particular place. It is trite law that there cannot be any restriction placed on the performance of religious recourse. However, there is an agreement between the people of the area and petitioner was bound by the same, however after the afore-noted order of this Court the situation has changed and that particular order was not challenged.
7. 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 embrace 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 by-passed 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[1]. The Supreme Court of America in the case of Reynolds v.
United States 98 US 145 held that "Congress was deprived of all legislatible power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. Laws are made for the Government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices". The very conception of a fundamental right is that it being a right guaranteed by constitution cannot be taken away by the law and it is not only technically inartistic but a fraud on the citizens for the maker of a constitution to say that a right is fundamental right but that it may be taken away by law. In the instant matter there is not any embargo imposed by any law to conduct a majlis and that too within the four walls of the Imambargah. It is established principle of law that all the executive actions should be supported by the law and if those are not supported by the law those should not offend the fundamental rights of the petitioner. In this particular case the respondents have violated the fundamental rights of the petitioner by not granting permission to conduct majlis and practice the religious obligations.
8. Every citizen has the fundamental right to freely practice and propagate their religion, which includes the right to hold religious gatherings such as Majalis. Article 20 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees freedom of religion and no individual can be arbitrarily deprived of this right. Therefore, as long as the Majalis are conducted peacefully and within the bounds of law, the petitioner cannot be prevented from holding them.
9. In sequel to the above, no religious institution can be regulated in the manner, whereby its very essence is destroyed[2]. It is trite law that our Constitution does not give any unfettered right and the right under Article 20 is a qualified right because it is subject to law, public order and morality[3]. Moreover, there is complete jurisprudence under Article 18 whereby the license regime is given protection of under the Constitution[4] but it was also held that complete prohibition is impermissible[5] and Fundamental rights in a living Constitution were to be liberally interpreted so that they continued to embolden freedom, equality, tolerance and social justice[6]. However, the fundamental right needs to be balanced with the state laws as well. So, total denial of Majalis for a particular Mosque/Imambargah would attach redundancy to the religious institution established for religious purpose.
10. In fact there is another fundamental right which is involved and it is right of assembly which may be regulated in the interest of 'public order'. The Supreme Court of India held that the right to hold religious meetings is a fundamental right under Article 25 of the Indian Constitution. The Court noted that this right is subject to reasonable restrictions imposed by the state in the interests of public order, morality, and health.[7] This Court held that the government has the power to regulate religious gatherings under the Maintenance of Public Order (MPO) Ordinance. The Court noted that the government has the authority to impose reasonable restrictions on religious gatherings in order to maintain public order and prevent violence.[8] It also states that government has the power to regulate religious gatherings under the MPO Ordinance. The Court noted that the government has the authority to impose restrictions on religious gatherings in order to ensure public safety and prevent the spread of disease.[9] These cases demonstrate that both India and Pakistan recognize the fundamental right to hold religious meetings, but also acknowledge the authority of the state to regulate these gatherings in the interests of public safety and order. Any restrictions on the holding of religious meetings must be reasonable, proportionate and imposed only when necessary to protect public order, morality, health, or other legitimate concerns. Therefore, in case of in-house Majalis within the boundaries of a particular property, there is no law which put a complete ban on holding peaceful religious Majalis.
11. The right to hold peaceful religious Majalis flows from the right of free assembly. It is an established law that an order imposing total prohibition on a procession was unreasonable.[10] However, imposition of a pre-condition of obtaining a permit for taking out a procession is reasonable[11]. The Privy Council held that there is always a right to conduct a religious procession along highways, but it should be done in a way as not to obstruct the general public user, and subject to restrictions imposed by the state.[12] The Supreme Court of India held that state governments have the power to regulate religious gatherings during the COVID-19 pandemic in order to prevent the spread of the virus. The court noted that any restrictions on religious gatherings must be imposed in a manner that is proportionate and respects the fundamental right to freedom of religion under Article 25 of the Indian Constitution[13]. This Court held that the government has the power to regulate religious gatherings during the COVID-19 pandemic in order to protect public health and safety. The court noted that any restrictions on religious gatherings must be based on scientific evidence and must not unduly infringe upon the fundamental right to freedom of religion under Article 20 of the Pakistan Constitution.[14] The Supreme Court of India held that state governments have the power to regulate indoor religious gatherings during the COVID-19 pandemic in order to prevent the spread of the virus. The court noted that any restrictions on religious gatherings must be imposed in a manner that is reasonable, proportionate, and respects the fundamental right to freedom of religion under Article 25 of the Indian Constitution.[15] These cases demonstrate that both India and Pakistan recognize the authority of the state to regulate indoor religious gatherings under certain circumstances, such as during a public health emergency. However, any restrictions on religious gatherings must be proportionate, based on scientific evidence, and respectful of the fundamental right to freedom of religion, freedom of assembly. Hence, a complete ban is disproportionate.
12. The statute regulating the subject is the Section 16 of Punjab Civil Administration Act, 2017. The Deputy Commissioner has to decide the application for a public meeting in consultation with Head of District Police. Through, comments Government side has opposed the application so filed.
Furthermore, the law on the subject does not provide any objective criteria for subjective assessm ent of the application so made. It can be argued that there cannot be any objective criteria as the question of public order is involved and any decision made being detached to the ground realities, which cannot be enumerated precisely, may result into an untoward incident.
However, the response made by the Government side in this case has totally disregarded the fact that earlier Majalis were held but no untoward incident took place. At the cost of repetition an Imambargah cannot be permanently denied for holding Majalis except for any compelling reasons having statutory basis. Moreover, the respondents could not place on record any cancellation of registration of Imambargah, so it is a registered Imambargah. However, they do not have an unfettered right to convene Majalis but the same are to be regulated by the Government.
13. Resultantly, the instant constitutional petition is allowed and the petitioner may hold Majalis within the four walls of Imambargah Al-Qaim, Kallurkot, using an internal sound system and subject to necessary security arrangements, as per the schedule (dates and timings) prepared/provided by the Deputy Commissioner in consultation with the concerned police who are directed to provide necessary security at the time of holding Majalis at Imambargah Al-Qaim, Kallurkot. The Deputy Commissioner, concerned is directed to decide the matter without any ado.
1. Jesse Cantwell etc. v. State of Connecticut (310 US 296) and Tikamdas and others v.
Divisional Evacuee Trust Committee, Karachi (PLD 1968 Kar. 703 (F.B.).
2. Jibbendra Kishore v. Province of East Pakistan (PLD 1957 SC 9)
3. Article 20 of the Constitution of Islamic Republic of Pakistan, 1973.
4. Government Of Pakistan Through Secretary, Ministry Of Commerce End Another Versus Zamir Ahmad Khan. (PLD 1975 Supreme Court 667)
5. Arshad Mehmood Vs. Government of Punjab (PLD 2005 SC 193)
6. Government of Sindh v. Dr. Nadeem Rizvi (2020 SCMR 1)
7. State of West Bengal v. Subodh Gopal Bose (AIR 1954 SC 92)
8. Muhammad Shahidullah v. Government of Punjab (PLD 1994 Lahore 15)
9. Muhammad Azhar v. Government of Punjab (2015 CLC 235)
10. Mathai Manjooran v. The State AIR 1954 TC 47.
11. Inderdeo v. The State AIR 1951 Patna 242.
12. Syed Manzur Hasan v. Syed Muhammad Zaman AIR 1925 PC 36.
13. Arnab Goswami v. Union of India (2020 SCC OnLine SC 1101)
14. Mufti Muneeb-ur-Rehman v. Federation of Pakistan (PLD 2020 Lahore 355)
15. Harsh Mander v. Union of India (2020 SCC OnLine SC 1034)