' This writ petition calls in question the order, dated 17-4-1982, of the District Magistrate, Sialkot, whereby the application of the petitioner for taking out Zuljinnah procession on Ashura and Chehlum, in village Tapiala, Tehsil Narowal, District Sialkot, was rejected.
2.The petitioner is admittedly General Secretary of Anjuman-e-Hussania (Registered) Tapiala, Tehsil Narowal, District Sialkot. The certificate of registration, dated 4-12-1975, is at Annexure D. The aims and object of the Anjuman are incorporated in their Rules and Regulations vide Annexure A.
3.The petitioner, submitted an application to the District Magistrate, Sialkot, for the grant of a licence under section 30 of the Police Act to take out the aforesaid procession during Muharram.
The application was rejected by the learned District Magistrate by order dated 4-11-1981. The order, in question, was not a speaking order. The petitioner challenged the validity of that order by means of Writ Petition No, 793 of 1981 before this Court. During the pendency of the writ petition, the District Magistrate, Sialkot, passed a second order on the 5th of December, 1981 and again rejected the application of the petitioner inter alia in pursuance of the confidential instructions issued by the Chief Secretary. The impugned order was set aside and the instructions were declaimed ultra vires of the Police Act. The case was remanded by this Court on 15-12-1981 to the learned District Magistrate, Sialkot for disposal afresh of the matter on merits and strictly in accordance with law.
Refer Syed Dilshad Hussain v. Province of the Punjab and others (1). In pursuance of the remand order, the learned District Magistrate again took up the matter and by order, dated 17-4-1982, (Annexure B) rejected the application for the following reasons :-
(I) The case is being decided independently on merits without taking into consideration, the instructions issued by the Government from time to time.
(ii)Maintenance of law and order is the responsibility of the administration and cannot be made the ground for the refusal of a licence to take out a procession which may otherwise be justifiable.
(iii)The application is not maintainable under section 30 of the Police Act, in that, it was made by an individual and not by "persons" or "class of persons" {{FOOT NOTE}}
(1) PLD 1982 Lab. 153 {{FOOT NOTE}}
(iv) It is evident from the file that the petitioner does not enjoy the complete confidence of the community he has set out to represent.
(v) For the last 25 years procession was taken out within the for walls of the Imambara. If his belief and religion has remained intact during the last 25 years without holding procession outside the for walls, the same is not likely to be affected if the procession is not allowed to be taken out. A single individual does not constitute a procession.
(vi) Police report indicates that the village consists of 150 houses of which 14 belongs to the Shia community, about 11 houses to the Christians while the rest to the Ahl-e-Hadith and Ahl-e-Sunnat communities.
(vii) It appears that except for the applicant most of the other Shias in the village are quite content with the present arrangements which confine the Zuljinnah/Chehlum procession within the for walls of the Imambara.
(viii) There is an opportunity for the able-bodied of the community to join a public procession at village Sankhatra which is only If miles from the village Tapiala (The petitioner has disputed this finding. It is stated that the distance is 3 miles and it is wrongly recorded as 1f, miles by the District Magistrate).
4. The grievance raised in this petition involves interpretation of section 30 of the Police Act which reads thus :- Section 30.-Regulation of public assemblies and processions and licensing of same :-
(1) The District Superintendent or Assistant Superintendent of Police may, as occasion requires, direct the conduct of all assemblies and processions on the public roads, or in the public streets or thoroughfares, and prescribe the routes by which, and the times, at which, such processions may pass.
(2) He may also, on being satisfied that it is intended by any person or class of persons to convene or collect an assembly in any such road, street or thoroughfare, or to form procession which would, in the judgment of the Magistrate of the District or of the Sub-Division of a district, if uncontrolled, be likely to cause a breach of the peace, require by general or special notice that the persons convening or collecting such assembly or directing or promoting such procession shall apply for a licence.
(3) On such application being made, he may issue a licence specifying the names of the licensees and defining the conditions on which alone such assembly or such procession is to be permitted to take place and otherwise giving effect to this section : Provided that no fee shall be charged on the application for grant of, any such licence.
(4) Music in the streets. -He may also regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies."
5. A bare perusal of this section would show that the intention of the Legislature does not appear that submission of an application by "Persons" or "class of persons" is a condition precedent for vesting jurisdiction in the District Magistrate to grant or refuse to grant a licence. The section does not place any restriction to apply for a licence by or through an individual provided the licence is sought or intended by "persons" or "class of persons" to convene or collect any assembly as contemplated by section 30(2) of the Act.
6. Be that as it may, keeping in view the previous history of litigation, it is apparent on the face of record that for all intents and purposes, the licence was required for and on behalf of Anjuman-e- Hussania Tapiala, Tehsil Narowal, District Sialkot. Syed Dilshad Hussain Bokhari, petitioner, is the General Secretary of the said Anjuman. Furthermore, on the previous occasion when the application of the petitioner was rejected, the District Magistrate forwarded a copy of his order to the petitioner with the following endorsement, vide Annexure D to Writ Petition No, 793 of 1981 :- "A copy is forwarded to Syed Dilshad Hussain Bokhari, General Secretary Anjuman-e-Hussania Registered, Tapiala P.
0. Khanpur, Tehsil Narowal for information."
' I am, therefore, clearly of the opinion that for all intents and purposes, the licence was intended by the "class of persons" belonging to Shia community through the Anjuman-e-Hussania. In these circumstances, the application (Annexure A), at best, suffers from misdiscription which would not affect its maintainability, even if it is assumed that strict sensu an application for licence cannot be made by an individual and could only be submitted by "persons" or "class of persons", in terms of section 30 of the Police Act.
7. The finding recorded by the learned District Magistrate, vide paragraph 4 of the impugned order, that the petitioner did not enjoy the complete confidence of the community is based on no evidence on record. Mr. Ahmad Khan, Naib-Nazir of the D. C. Office, Sialkot, has brought the entire record pertaining to this case which has been perused by me with the assistance of Mr. Tanvir Ahmad Khan, the learned Assistant Advocate-General, who has not been able to point out any material on record to substantiate this finding. On the other hand, the District Magistrate, Sialkot, vide para. 8 of his previous judgment dated 5-12-1981 impugned in writ petition No, 793 of 1981 himself recorded :- "It is accepted that a compromise now is available between the two conflicting groups of Shia community and the petitioner is now the General Secretary of the Anjuman-e-Hussania (Registered) Tapiala, Tehsil Narowal, District Sialkot."
' Furthermore, the observations of the learned District Magistrate that "there is an opportunity for the able-bodied of the community to join public procession at village Sankhatra which is only 1 miles from village Tapiala" is by itself not a valid consideration for refusing to grant licence, particularly, in view of the fact that no procession is taken out in this village and according to the learned counsel, the distance is three miles from village Tapiala. The mere fact that earlier the Shias confined their religious activities in Imambara would not create any legal or religious bar on them to apply for licence for taking out the procession in accordance with law. There is nothing on the record to show that other Shias in the village have opposed the license.. If some procession was taken out in the same village, the refusal might have been justified in view of the dictum of the Supreme Court in Mian Muhammad v. Government of Pakistan and another (1) where it is held :- "It is plainly clear from section 30 of the Police Act that processions {{FOOT NOTE}}
(1) 1970SCMR 645 {{FOOT NOTE}} ' cannot be banned altogether under the provisions of that section. But that does not mean that licence to take out procession can never be refused to any one on any ground or that the number of processions to be taken out in any particular area cannot be regulated under any circumstahces. The expression "he may issue a licence" occurring in section 30(3) of the Police Act implies that in a fit case licence may not also be issued to any particular applicant. In the instant case, far from imposing any ban on taking out processions a licence was issued to a co-villager of the petitioner for taking out Muharram processions. Although the petitioner's application for licence was refused, he was not forbidden to participate in the processions permitted to be taken out by his co-villager."
8. The bona fide of the petitioner is further demonstrated by averments made in paragraph 9 of the application dated 2-1-1982 (Annexure A) which reads thus :- "That the applicant is ready to co-operate with the administration to take out belated processions on agreed dates between the applicant and the Administration this year, as it is permissible in the Shia faith if there is compulsion of circumstances. But this belated taking out of the 2 processions would be subject to applicant's right of taking out the procession on 10th of Muharram and 20th of Safar in future."
9. The petitioner, who is present in Court, has however, made a statement before me and the learned counsel for the petitioner has also made a statement at the Bar that they are prepared to co-operate with Administration in the matter of taking out processions on agreed dates this year as well as in future. It appears that the learned District Magistrate while passing the impugned order has completely overlooked this aspect of the matter which needed due consideration.
10. It is apparent from the impugned order that number of reasons have been assigned by the learned District Magistrate for refusing to grant licence to the petitioner. At least two of the grounds, namely, the maintainability of the application and that the petitioner lacks confidence of his community are ex facie bad in law. On this short ground alone, the impugned order is liable to be set aside in view of the dictum of the Supreme Court in Government of West Pakistan. v. Haider Bakhsh and others (1). Specific report and parawise comments were called for from the Superintendent of Police, Sialkot. He has failed to submit any report to the effect that the grant of licence to the petitioner would create law and order situation for the Administration. In any event, the District Magistrate has rightly observed that this by itself is not a consideration for refusing to grant the licence as maintenance of law and order is responsibility of the Administration.
11. For the reasons stated above, the impugned order, dated 17-4-1982, of the learned District Magistrate, Sialkot is declared to have been passed without lawful authority and of no legal effect.
In consequence, the case is remanded for disposal afresh of the application of the petitioner strictly in accordance with law and in the light of the observations made in this order as well as in the previous orders made by this Court.
12. With these observations, the writ petition is accepted with costs.
(1) PLD 1969 SC 210