1. ' Muhammad Hussain Bhatti, petitioner, applied to the District Magistrate, Gujrat, for grant of a licence for taking out the Zuljinah procession in Kunjah, on 5th Muharram. The District Magistrate, Gujrat, after obtaining a report from the concerned quarters by his order, dated 7-2-1981 refused to grant the licence on the ground that it was an innovation. This order was assailed in Writ Petition No, 2737 of 1982 and the matter was remitted to the District Magistrate for expeditious disposal in accordance with law keeping in view the attending circumstances of the case. This was done vide judgment, dated 19-10-1982. The learned Judge, however, observed that in terms of Mian Muhammad v. Government of West Pakistan 1970 SCMR 645, the District Magistrate, in a fit case can decline to issue a licence to a particular applicant. Thereafter, the learned District Magistrate considered the matter of grant of licence afresh and after obtaining reports from the Assistant Commissioner and the Chairman of the Town Committee, Kunjah, and the affidavits filed, declined the licence vide order, dated 5-11-1983. The petitioner then challenged the order of refusal, dated 5- 11-1983 in the present Constitution petition.
2. ' It was asserted in the petition that the petitioner was to take out the procession on 30th Safar from 8-00 a.m. To commemorate the martyrdom of Imam Hussain. He. Relied on the order passed in the earlier constitution petition whereby the District Magistrate was directed to pass an order in accordance with law.
3. ' The grievance of the petitioner is that despite the law declared by the Supreme Court in the case of Sarfraz Hussain Bokhari v. District Magistrate Kasur and 9thers PLD 1983 SC 172, the learned District Magistrate has again refused the licence. It was argued that the apprehension of breach of peace cannot be made a ground for refusing the permission to take out the Zuljinah procession as the power at best is to regulate the route and the timing of the procession.
4. ' Sh. Muhammad Zubair, Assistant Advocate-General, Punjab, in reply has argued that the District Magistrate can refuse to grant the licence to a particular applicant. He in this connection referred to the observations made in the case of Sarfraz Hussain Bokhari (supra). The relevant observation may be reproduced as under:- ' The very power to direct an applicant for a licence is dependent on the jurisdictional fact that 'in the judgment of the Magistrate of the district or of the sub-division of a district' if such an assembly or procession is uncontrolled, it is likely to cause a breach of the peace. So the likelihood of the breach of peace, in the absence of control, provides the jurisdiction to impose controls and conditions and that jurisdictional fact by itself cannot be made the ground for refusing the licence itself. There has to be something else e.g. Lack of bona fide, some ulterior motive or purpose manifestly established to account for refusal of a licence. In this view of the matter, as held in Mian Muhammad's case the law does not envisage a total prohibition, an outright refusal for all times to take out the procession, to participate in a religious ceremony or observance. By requiring the taking out a licence, the organizers, the managers, the leaders of the group can be identified. They can be placed under control, with regard to the route, timing of halting places, the accompaniments, and the conduct of the procession itself. Such controls and regulatory conditions must have the sole object of avoiding breach of peace and without such control or regulatory conditions breach of peace must appear imminent or likely."
5. ' In the instant case the learned District Magistrate for refusing the licence recorded the following reasons:-- (i)It is clear from the reports of the Assistant Commissioner and the Chairman, Town Committee, Kunjah, dated 4-12-1982 and 20-4-1983 and the 26 affidavits, that the Sunnis are bitterly opposed to the taking out of the procession. The case has a long history. The Chairman recorded in his report that in 1937 an S.H.O. Had been murdered on this account. The respondents gave the name of the man who killed him as Ghazi Allah Ditta Shaheed who was a brother of the present respondent Mir Muhammad Hussain.
(ii) Even this year there was great tension on both sides and the procession which the petitioner tried to take out had to be withdrawn by him. He also tendered apologies for trying to take out the procession and thus the situation was saved.
6. (iii)The learned counsel for the petitioner referred to the authority PLD 1983 SC 352 and contended that the licence to take out the procession must be granted. I do not agree with him. In the existing situation as it obeains on the spot the issuance of permission/licence to the petitioner to take out the procession will tantamount to opening the flood-gates of sectarian riots and blood-shed."
7. ' It is also pertinent to note that the date for which the licence for taking out the Zuljinah procession was applied for has in the meanwhile passed but that does not mean that the controversy raised by the petitioner has come to an end. This very question would again arise in the coming Muharram as the persons interested in taking out Zuljinah procession it was urged would certainly take out such a procession. The matter of grant of licence as and when raised will have to be decided in accordance with the law declared by the Supreme Court in the case of Sarfraz Hussain Bokhari. It may be reiterated that as the law stands it does not envisage a 'total prohibition or outright refusal for all times to take out the procession, to participate in a religious ceremony or observance. It contemplates placing of control and adopting of regulatory measures with the object of avoiding breach of peace and for refusing licence on any particular occasion or to any particular person, there has to be (to something else); e.g, lack of bona fide, some ulterior motive or purpose manifestly established to account for refusal of a licence. Moreover, the application submitted for the grant of licence in all fairness should be dealt with expeditiously and in any case before the event or the occasion for which licence is sought so that the application is not rendered infructuous by mere efflux of time. As the occasion for which the licence was sought has passed there is no alternative but to dispose of this petition with the above observations. If the petitioner or any interested person applies afresh, his application shall be dealt with in accordance with law.
8. The parties are left to bear their own cost and the prayer for grant of special cost is declined because it has not been established on record that the refusal made by the learned District Magistrate was due to any personal malice or bias.