This is a petition presented by the twenty petitioners under Article 199 of the Constitution of the Islamic: Republic of Pakistan, 1973, complaining of infraction of fundamental right granted under Article 1R ibid. And further impugning the order being violative of section 144, Cr.P.C.
2. The petitioners own and operate video games through different establishments located in the revenue limits of Kamalia Sub-Division. The Sub Divisional M4gistrate/Assistant Commissioner, Kamalia, vide order, dated 25th of August, 1992, in exercise of powers under section 144, Cr.P.C.
Prohibited the-operation of video games, billiard and carom clubs, etc., within from local limits of Kamalia on the basis that such forms of entertainment are causing serious social problems and are also jeopardizing education and health of youngsters. Thus, according to the petitioners: closure of business has caused immense financial losses to them besides robbing the people of entertainment.
3. Learned counsel for the petitioners has referred me to Writ Petition ' No.482$ of 1990 whereby this Court had set aside a similar impugned order on the basis of being without lawful authority. That case, however, was not contested by the learned Advocate-General. Here, the learned Assistant advocate-General stoutly defended the impugned order.
4. Learned counsel for the petitioners has assailed validity of the impugned order on various grounds. The first is that the order was pas--s without notice to the petitioners in violation of the principle audi alter; partem. The petitioners have not been afforded an opportunity to be heard defend their business and the right to carry it on. Paragraphs Nos.1 and the impugned order are manifestly -subsection (1) of section 144, C;.P.C. The suggest that it was necessitated owing to a situation of emergency. The learned counsel has referred me to Muhammad Rafi and others v.
Assistant Commissioner, Lahore 1976 P Cr. L J 977 where it was ruled that an order not arising out of a situation of emergency and passed ex parte was unwarranted in law. The other reasons set out in the authority for setting aside the order were that there was no - mention of any specific malpractices resorted to by the petitioners preparing Karahi Tikka and Karahi Gosht and there was no indication that their business had caused direct annoyance to the citizens. .
5. Besides the fact that the impugned order did not arise out of a situation of emergency and the petitioners had not been heard before the impugned order was passed, the same also cannot be defended on other premises. The Assistant Commissioner, while passing the order in a hurry, was led by the consideration that `the children are being spoiled by organizers of these clubs. Cause serious social and educational, health and financial problems which may cause danger to social health of the society, safety and disturbance of public peace and tranquillity'. The record shows that twelve persons of Mohallah Rohranwala in Ward No.22, Grain Market, Kamalia, had brought the said `evil' to the notice of the Assistant Commissioner who, after calling report on the, subject from the Resident Magistrate, passed the impugned order. Kamalia is a populous town with 25 wards but only a dozen of persons had made complaint against business of the petitioners. There is no complaint from heads of educational institutions about absence of students from the schools during study hours. The report of the respondent shows that since introduction of the games in the town petty crimes and social problems are on increase. The report is, however, not corroborated by registration of criminal cases. The respondent was also aggrieved of the fact as indicated by his report that the children pent their most of the time in dark and unhealthy atmosphere of the cloths of the petitioners and avoided playing healthy games like cricket hockey and football in open air fields. Such an apprehension was entirely idealistic.
6. Freedom of trade, business or profession is granted under Article 18 of the Constitution of the Islmic Republic of Pakistan, 1973, and every person has a right to enter upon any lawful profession or occupation and to conduct any lawful trade or business; of course, subject to such qualifications, if any, w, may be prescribed by law. There cannot be a `trade' or `business' in immoral and. Criminal activities and, in any event such activities can be totally prohibited. Before a person can complain of violation of fundamental right, it must be established that the right claimed is first, a legal right and, secondly that is a fundamental right. Here the right is both legal and fundamental. It is admitted fact that Constitutional right of freedom of trade/business of video games, billiard and carom, has not been subject to licensing system, nor does the Federal or Provincial Government in any manner control or regulate the said business. There is no allegation either that the children gamble in the clubs of the petitioners or indulge in illegal pursuits. The Observation of the Assistant Commissioner that the children waste the time in dark and dingy places of the petitioners running indoor games and do not play healthy outdoor games, is laudable morally, but cannot be defended on the grounds other than moral. The video games, billiard clubs etc. Have caught the imagination of the children all over the country and there is hardly any Mohallah in a town or city where these pastimes are not pursued. Kite flying is another outdoor game but is likewise a hobby, which involves colossal wastage of time and money but this activity is pursued unabatedly by the people of all ages. No law has been made in the country to ban the activity. Of course, the orders under section 144, Cr.P.C., are passed on Basant days to minimise the losses, bodily and of property. In fact, the indoor games are better than kite flying as 'there is no human loss. The indoor games in question no doubt kill time but they at the same time keep away the younger generation from crimes. Lying idle at times turns out to be extremely dangerous. The Holy Prophet observed: (A vacant man's mind is devil's workshop.)
It is, therefore, arguable that the, games necessarily pose social problems, as the 'respondent thinks.
7. The order under section 144, Cr.P.C. Can be justified only in case of absolute necessity. And if at all it was necessary for the respondent to curb the 8 `evil effects' of the games., in clubs of the petitioners, he instead of banning them altogether, ought to have restricted them within reasonable limits by regulating timings, charges, etc. Of the clubs subject to just exceptions.
8. For reasons aforementioned, I accept the writ petition and declare the impugned order to be without lawful authority and of no legal effect.