' By this writ petition Syed Manzoor Hussain Bokhari and his brother Syed Shabbir Hussain Bokhari, the petitioners herein, claiming themselves as adherents of Shia sect of Islam, assail the validity of the order, dated 9-7-1988, passed by the District Magistrate, Lahore, respondent No,2 herein. By this order he had rejected their application, dated 22-6-1988 for issuing licence for taking out `Ulam Procession' in village Shahpur Kanjra, Police Station Chung, Tehsil and District Lahore, on a route indicated in the attached plan, to commemorate the memory of the Holy Family of the Holy Prophet Muhammad (peace be upon him), during the month of Maharram-ul-Haram.
2. It was alleged in the application that they had been taking out `Ulam Procession' since 1974 at 4- 50 p.m. On 6th of Muharram each year from their house to the adjoining house, hardly covering a distance of 115 feet. It was contended that in the year 1984 when their father applied for the issue of licence for taking out `Ulam Procession', respondent No,2, vide his order, dated 27-9-1984, rejected his application. He filed Writ Petition No, 4317 of 1984 in the High Court against that order which was dismissed with the observations that, if so advised, he might file a fresh application for the grant of requisite licence which, if filed, shall be finally decided by the competent authority within a month of its filing. Pursuant to these observations of the High Court he made a fresh application (which was dismissed by the impugned order).
3. In the writ petition it was alleged that on the rejection of the aforesaid application by the impugned order, Writ Petition No, 3840 of 1988 was filed but it was dismissed in default on 13-8-1988 and the present one was being filed afresh as the dismissal of the previous petition did not debar the filing of a fresh one.
4. In the grounds of the writ petition it was, inter alia, averred that the petitioners had a fundamental right to take out procession as a part of their religious duty and the respondents were under a legal obligation subject of course to the condition of avoidance of breach of peace, to issue licence for taking out Clam Procession'. It was contended that their request stood fortified by the judgment of the Supreme Court reported as Sarfraz Hussain Bokhari v. District Magistrate, Kasur and others PLD 1983 SC 172 but despite all this, their request was unreasonably turned down.
5. The petitioners also challenged the vires of proviso to section 30(3) of the Police Act 1861, as added by Ordinance VIII of 1984, by alleging the same to be void and inoperative, being inconsistent with the fundamental rights guaranteed under Article 16 of the Constitution of Islamic Republic of Pakistan 1973 read with Objectives Resolution which was a substantive part of the Constitution. They were of the view that the words 'public order' were referable only to the aggravated forms of national upheavels which endangered the very existence of State and in the absence of such condition, the refusal to grant the requisite licence tantamounted to violation of the fundamental rights. They called in question the amendment of section 30(3) also on the ground of uncontrolled power given to the respondents to ban procession, being hit by the principle of 'an excessive delegation of powers'. It was also averred that the above amendment nullified section 30 itself of the Police Act 1861 besides negating the general scheme of the Act under which the District Magistrate was the controlling authority and not the Superintendent of police. Violation of Article 20(a) of the Constitution was also alleged.
6. Respondents Nos.1 and 2 submitted' their respective reports and parawise comments.
Respondent No,1 in his report stated that the petitioners had submitted their application to respondent No,2 for the grant of licence for taking out 'Ulm Procession' during the month of Muharram-ul-Haram and he referred the matter to him (respondent No,1) for enquiry and report which were submitted for further necessary action and respondent No,2, after perusing the reports, rejected the application. He alleged that the writ petition was not maintainable against him. In his parawise comments, besides generally denying certain allegations of the petitioners, he contended that Writ Petition No, 3940 of 1980 was dismissed for non-prosecution as they did not attend the Court and the second writ petition did not lie.
7. Anyhow, respondents Nos.1 and 2 jointly defended the impugned order on the ground of having been lawfully passed, as also the validity of the amendment made in section 30 of the Police Act, 1861. In their opinion, the authority of the Supreme Court cited by the petitioners in support of their case was distinguishable and had no application to the instant case. Respondent No,2 in his comments further elucidated that the impugned order was passed by him after due consideration and in view of the conditions prevailing in the locality, history of sectarian tension in the area, the possibility of proposed procession leading to the breach of peace and circumstances prejudicial to the public safety.
8. With reference to Sarfraz Hussain Bokhari v. District Magistrate, Kasur PLD 1983 SC 172 it was argued on behalf of the petitioners that as members of public they had inalienable right to assemble and take out procession in public streets, more so for the performance of their religious ceremony, but respondent No,2, acting on the report of the Magistrate, arbitrarily turned down their request for issuing a licence to take out Clam Procession' on the 6th of Muharram-ul- Haram which they and their father had been previously taking out traditionally. It was contended that at the time the aforesaid judgment was delivered by the Supreme Court, the fundamental rights stood suspended but now when the same stood restored, the right of the petitioner to obtain a licence for taking out procession to commemorate the memory of Suhda-e-Karbala stood reinforced on the basis of Article 16 read with Article 20 of the 1973 Constitution.
9. Commenting on the addition of second proviso to section 30 of the Police Act, 1861, by the Punjab Ordinance VIII of 1984, the learned counsel submitted that this proviso, besides travelling beyond the scope of the main provisions of section 30 ibid, was also violative of Articles 16 and 20 because the rider clause therein subjected the right of citizens to assemble peacefully only to some reasonable restriction in the interest of public order and morality but the proviso unreasonably added prohibition instead of restriction on account of an act prejudicial to the public safety or public interest. In his opinion, section 30 ibid, as it stood enacted prior to the addition of second proviso, was sufficient to meet any situation likely to cause a breach of peace and in fact there was no necessity of inserting the said proviso but the Martial Law regime, feeling annoyed by the enlargement of the scope of section 30 by the Supreme Court in its judgment reported as Sarfraz Hussain Bokhari v.District Magistrate Kasur PLD 1983 SC 172 proceeded to enact this proviso in order to curb the rights of the citizens and to achieve their objective of ruling the society with an iron hand. In his view, the newly-added second proviso was ultra vires, not only of the fundamental rights referred to above but also of the Objectives Resolution which of late formed part of the Constitution by the enactment of Article 2-A.
10. On the contrary, the learned Advocate-General contended that the impugned order did not suffer from any legal infirmity because it was passed in accordance with law as contained in section 30 of the Police Act 1861 after due observance of all necessary legal formalities. According to him, the reports of Illaqa Magistrate and Assistant Commissioner indicated that there was likelihood of breach of peace in the locality where the petitioner sought permission to take out claim Procession' and at a previous occasion there was a serious sectarian clash between the followers of Shia sect and those of Sunni sect at a similar occasion, resulting in many deaths and keeping in view all these factors, the District Magistrate (respondent No,2) had refused the issue of licence to the petitioners.
11. In reply to the comments of the learned opposing counsel regarding the vires of the second proviso added by the Punjab Ordinance VII of 1984, the learned Law Officer argued that it neither violated fundamental rights as enshrined in Articles 16 and 20 of the 1973 Constitution, nor it was violative by any principle of law concerning excessive delegation, nor did it negate the main provisions of section 30 ibid. In his opinion, the fundamental rights embodied in the aforesaid provisions of the Constitution were subject to reasonable restriction imposed by law in the interest of public order and the added proviso more clearly, reaffirmed the intention of the Legislature to that effect. He contended that it contained a restriction and not a total prohibition, as argued on behalf of the opposite party. In support of his contention, the learned Law Officer quoted Mian Muhammad v. Government of West Pakistan and others 1970 SCMR 645.
12. To appreciate the contentions of the learned counsel representing the parties in their true perspective, section 30 of the Police Act 1861 as amended by the Punjab Ordinance No, VIII of 1984, is reproduced hereunder:-- 30.--(1) The District Superintendent or Assistant District 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 persons or class of persons to convene or collect an assembly in any such road, street or thoroughfare, or to form a 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 defaming 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, or grant of, any such licence: `Provided further that he shall refuse to grant a licence in a case in which the Magistrate of the district or of the sub-division of a district is satisfied and conveys such satisfaction to him in writing that the grant of the licence is likely to cause a breach of peace or to be prejudicial to the public safety or public interest or the maintenance of public order.'
13. Section 30, as it stood enacted prior to the addition of second proviso by the Punjab Ordinance No, VIII of 1984, armed the local administration with legal authority to effectively deal with any situation likely to create law and order problem, including inconvenience to the general public, arising out of the assemblies and processions on public streets or thoroughfares. Under subsection '1) of section 30 the District Superintendent of Police or Assistant District Superintendent of Police could, if the occasion arose, direct the conduct of all assemblies and processions on public streets or thoroughfares and in that connection he could prescribe routes and time therefor. In other words, he could regulate the routes and timings of those assemblies and processions which did not pose any threat to peace or did not cause any apprehension of the breach of peace.
14. Subsections '2) and '3) of section 30 dealt with those assemblies and processions which caused apprehension of breach of peace if they remained uncontrolled. Under these provisions the District Superintendent or Assistant Superintendent of Jolice was not to act independently, as he could under subsection '1),but he was to act under the authority or direction of the District Magistrate or his Sub-Divisional Magistrate. His duty under subsection '2) was that where he felt satisfied that certain persons or class of persons intending to convene or collect any assembly or to form any procession on any public road, streets or thoroughfare and such assembly or procession, in the judgment of the District Magistrate or Sub-Divisional Magistrate, if remained uncontrolled, was likely to cause breach of peace, he would, by general or special notice, require such persons or class of persons to apply for a licence. Under subsection '3) if such persons or class of persons applied for the issue of licence for collecting an assembly or taking out a procession on a public streets or thoroughfare, the District Superintendent of Police or Assistant Superintendent of Police could issue a licence specifying the name's) of the licensee's) and define conditions under which the proposed assembly or procession could be permitted to take place and otherwise giving effect to this section 30.
15. Thus it will be seen that the District Superintendent of Police or Assistant District Superintendent of Police, in case of an assembly or procession, which was likely to threaten peace and tranquillity on any public streets, roads or thoroughfares, was to act under the orders of the District Magistrate and not independently as he could do under subsection '1) in dealing with a peaceful assembly or procession. The persons concerned having been called upon by him to apply for a licence, were to make an application to him and it was to be forwarded to the District Magistrate or a Sub- Divisional Magistrate for his orders along with his report and after the decision of the District Magistrate or Sub-Divisional Magistrate he was ordinarily to act accordingly, that is to say, if the District Magistrate or the Sub-Divisional Magistrate in his judgment came to the conclusion that the licence was to be issued to the person's) applying therefor then he was to issue the licence accordingly, and if the District Magistrate or the Sub-Divisional Magistrate decided that the licence was not to be issued to the person's) applying therefor, then he would refuse the issue of licence.
This could possibly be the scheme of subsections (2) and (3) and the concerned authorities had been acting accordingly for well-nigh over one cetury though it was not clearly spelt out and subsection (3) gave an impression that perhaps the District Superintendent of Police or the Assistant Superintendent of Police could issue licence applied for without the intervention of the District Magistrate or the Sub-Divisional Magistrate. Besides, the competence of the above- mentioned functionaries to refuse the grant of licence was not clearly spelt out in section 30 though on the principle that 'an authority competent to grant a licence or permission ordinarily has the authority to refuse or decline to issue the same' they continued to even refuse the grant of licence in appropriate cases. This interpretation of subsections (2) and (3) and the view taken in this regard was approved in the celebrated judgment of the Supreme Court in Mian Muhammad v.
Government of West Pakistan and others (1970 SCM R 645), more or less, in the following terms:-- "It is plainly clear from section 30 of the Police Act that processions cannot be banned altogether under the provisions of that section. But that does not mean that licence to take out processions can never be refused to any one on any ground or that the number of processions to B be taken out in any particular area cannot be regulated under any circumstances. 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."
Even in the ruling reported as Sarfraz Hussain Bokhari v. District Magistrate, Kasur PLD 1983 SC 172, where the right of the public to assemble and take out processions on the public streets was recognized, the authority of the aforesaid officers to ban or to prohibit the assembly or procession of public was, not entirely excluded or terminated. The import of the authority was to discourage the executive authorities from acting arbitrarily by short-circuiting the matter and to enjoin them to act more vigilantly by taking adequate measures to prevent any possible breach of peace instead of clamping total prohibition on the public by virtually confusing them to their houses or not allowing them to come out of their houses, an easy solution. It, therefore, struck a happy balance between the rights of the citizens to assemble and take out different kinds of processions on the public streets, and the exercise of the powers by the executive authorities to regulate such assemblies and processions and in certain extreme cases even to prohibit them.
16. The above authoritative interpretation of section 30 was already holding the field and the concerned authorities administering the Police Act, 1861 were fully aware of it. The recent restoration of fundamental rights, as contained in Articles 16 and 20 of the Constitution of 1973, gave it a constitutional cover. This was the correct legal position and it shall continue to hold good.
This being so, there was no dire necessity of adding second proviso to section 30 ibid. To my mind, it was intended more to resolve the frequent controversy between the District Magistrate or the Sub-Divisional Magistrate on the one hand and the District Superintendent of Police or the Assistant District Superintendent of Police on the other, who, on the basis of the language used in subsection '3) might be prone to defy the former, and to establish the supremacy of the former over the latter, than to curb the rights of the citizens to assemble or to arrange processions on public streets.
Anyhow, whatever may be the intention behind the second proviso, the fact remains that it goes beyond the scope of Articles 16 and 20 'a) of the 1973 Constitution so far as it relates to 'public interest' which is a much wider phrase than the 'public order' used in the said Articles and to that extent it is declared ultra vires of these fundamental rights.
17. Now I proceed to consider the vires of the impugned order itself. It was passed by the District Magistrate, Lahore 'respondent No, 2) on the report of the Assistant Commissioner in the following terms:- {{URDU TEXT}}
18. In the acrimonious background of sectarian tension in the Sub-Continent, matters like the one now in hand have continued to be agitated before various Courts even since pre-Partition days and by this time due to the sufficient case-law on the subject the executive authorities administering the Police Act, 1861, particularly section 30 thereof, have become sufficiently aware of the legal requirements but the way respondent No, 2 dealt with and disposed of the application of the petitioners indicates that he was either not at all aware of the legal requirements of section 30 ibid or in view of the newly-added proviso he was so much over-confident about the unassailability or sacrosanct of his order that he did not consider it necessary to write a few sentences in support of the conclusion reached by him and proceeded to approve the report of the Assistant Commissioner who, in turn, had approved the report of the Illaqa Magistrate. The impugned order was no order in the eyes of law, and the learned Advocate-General, when confronted with it, frankly conceded that he could not support it, being devoid of reasons and indicating non-application of mind.
19. In view of the above, the writ petition is accepted, and the impugned order is declared against law and without lawful authority.
20. However, since the law and order situation continues to change frequently and the petitioners' application due to the lapse of time has become outmoded, they will have to seek fresh permission from the concerned authorities if they intend to take out Ulam Procession' during the forthcoming Muharramul-Haram and if they applied for it, the same shall be disposed of by them in accordance with law.