' This is an interesting case because it deals with a matter on which there seems to be no direct authority.
2. On 8-3-1992 Muhammad Saleem S.H.O. Airport Police Station and Assistant Commissioner/S.D.M.
Airport, Karachi, raided the Hotel, Midway House, Airport, Karachi at 5 p.m. And found eatables lying open in Dining Hall. Since there was violation of the provisions of section 3/4 of the Ehtrame- Ramazan Ordinance, 1981, applicants Hassan Mehdi, Syed Qaiser All and Arjumand Azhar, all employees of the said hotel were taken into custody who were subsequently released on bail. On 9-3-1992 a complaint for the said offence was filed by S.H.O. Airport Police Station in the Court of Assistant Commissioner and S.D.M. Airport, Karachi, against the above applicants and also against Manzoor-ul-Haque, Personnel Manager, who too was made an accused, which was brought on regular file on the same day. The order dated 9-3-1992 by which cognizance was taken by learned Magistrate against the applicants is the subject-matter of the present application filed under section 561-A, Cr.P.C., seeking the quashment of proceedings under section 3/4 of The Ehtram-e- Ramazan Ordinance, 1981, pending against them.
3. I have heard Mr. S. Nasir Abbas Rizvi, learned counsel for applicants and Mr. Abdul Hakeem Bijarani, learned A.A.-G. For State. The latter has raised a preliminary objection about the maintainability of this application filed under section 561-A, Cr.P.C., before exhausting the remedy available under section 249-A, Cr.P.C. The learned A.A.-G. Should have known that a complete answer to this objection is provided by the Supreme Court in the case of Mian Munir Ahmad v. The State reported in 1985 SCMR 257, wherein it was observed:-- "The powers of the trial Court under sections 249-A, Cr.P.C. And 265-K, Cr.P.C. Are co-extensive with the similar powers of the High Court under section 561-A, Cr.P.C. And both can be resorted. It would of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561-A, Cr.P.C., directly."
4. The perusal of the record shows that the Assistant Commissioner and S.D.M. Airport, Karachi, was himself a prosecution witness in this case. The invocation of the provisions of the section 249-A, Cr.P.C., before him could therefore, be an exercise in futility.
5. The Ehtram-e-Ramazan Ordinance, 1981, as its preamble shows, was promulgated to provide for measures to observe the sanctity of the month of Ramazan. Section 3 of this Ordinance, therefore, prohibited eating etc. In public places in the following words:-- "(1) No person who, according to the tenets of Islam, is under an obligation to fast shall eat, drink or smoke in a public place during fasting hours in the month of Ramazan.
(2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees, or with both."
' It is thus apparent that eating, drinking or smoking during fasting hours by a person who, according to the tenets of Islam, is under obligation to fast, is prohibited in a public place, which under section 2 of the Ordinance includes any hotel, restaurant, canteen, house room, tent, enclosures, road, lane, bridge or other place to which the public have access. It, therefore, follows that a person who, according to the tenets of Islam, is under obligation to fast, eats, drinks or smokes during fasting hours, in his private house without violating the sanctity of Ramazan, is not liable for a penal action, although by doing so he commits a major sin. Likewise a person who, according to tenets of Islam is not under obligation to fast, eats, drinks or smokes during fasting hours without violating the sanctity of Ramazan at a public place commits no offence. There is no allegation against the applicants that they or any of them, being under obligation to fast, were eating, drinking or smoking in Midway Hotel, Karachi, during fasting houRs, Their prosecution for the offence under section 3 of The Ehtram-e-Ramazan Ordinance, 1981, had, therefore, no legal sanctity.
6. The applicants were also prosecuted for the offence under section 4 of The Ehtram-e-Ramazan, Ordinance, 1981, which provides as follows:- "Prohibition of serving eatables in certain public places:-- (1) No proprietor, manager, servant, or other person incharge of a hotel, restaurant or canteen, or other public place, shall knowingly and wilfully offer or serve or cause to be offered or served any eatables during fasting hours in the month of Ramazan to any person who according to the tenets of Islam, is under an obligation to fast.
(2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
7. Obviously, therefore, the proprietor, manager, servant, or other person in charge of a hotel, restaurant, a canteen or other public place, shall be liable for contravention of subsection (1) only if the eatables are offered or served knowingly or wilfully during fasting hours to any person who according to tenets of Islam. Is under obligation to fast. The facts as disclosed in the complaint even if accepted on face value do not make out a case under section 4 of The Ehtram-e-Ramazan Ordinance, 1981. It may be added that the Pakistan Hotels Association had taken a similar issue to Ministry of Culture and Tourism (Tourism Division), Government of Pakistan, Islamabad, seeking certain clarifications and the reply received from Tourism Division dated 31-3-1986, which is available on record, is self-explanatory, which for the sake of convenience is reproduced below:-- "The matter was taken up with the Ministry of Religious Affairs which has stated that the hotels can serve eatables, etc. To persons who are not under obligation to fast. However, the hoteliers should not be so open as to give an impression that the sanctity of Ramazan is being violated. As such, the restricted and under cover service including service in rooms by hotels and restaurants to persons who are not obliged to fast under the tenets of Islam, is not forbidden by the said Ordinance."
8. Section 5 of the Ehtram-e-Ramazan Ordinance, 1981, again exempts following canteens, kitchens, etc.:-- "Nothing contained in section 4 shall apply in respect of--
(a) canteen or kitchen maintained in a hospital for serving food to patients;
(b) a restaurant, canteen stall or wheel barrow, or the holder of a vending contract, within the premises of a railway station or in a train or a restaurant or canteen within the premises of an airport, seaport or bus-stand or in an aircraft.
(c) a kitchen or dining-car of a train; or
(d) a kitchen or canteen meant for children within the premises of a primary school."
9. Rule 4 of the Ehtram-e-Ramazan Rules, 1981, further qualifies the above exemptions in the following words:-- "Only the following classes of persons shall be admitted to a canteen, restaurant or dining car referred to in clause (a), (b), (c) or (d) of section 5, namely:--
(a) in the case of a canteen maintained in a hospital persons who are for the time being in -- patients in the hospital;
(b) in the case of a restaurant or canteen within the premises of a railway station, airport, seaport, or bus-stand or in a train or aircraft, or the dining car of a train persons who have in their possession a ticket or voucher which entitles them to travel by the means of conveyance concerned beyond a distance of seventy-five kilometres, including the distance already covered; and
(c) in the case of a canteen within the premises of a primary school students of the school who have not attained the age of puberty."
10. The close examination of sections 3, 4 and 5 of The Ehtram-eRamazan Ordinance, 1981, and rule 4 of The Ehtram-e-Ramazan Rules, 1981, leads to the following conclusions:--
(i) No person who, according to the tenets of Islam, is under obligation to fast shall eat, drink or smoke during fasting hours in the month of Ramazan in a public place, the contravention of which is an offence under section 3(2) of The Ehtram-e Ramazan Ordinance, 1981.
(ii) A person, who, according to the tenets of Islam, is not under obligation to fast (like a non- Muslim) may eat, drink or smoke during fasting hours in the month of Ramazan in a public place, provided the sanctity of Ramazan is not violated.
(iii) A person who, according to tenets of Islam, is under obligation to fast may eat, drink or smoke during fasting hours in the month of Ramazan at the private place (like his house), provided the sanctity of Ramazan is not violated.
(iv) No proprietor, manager, servant, or other person incharge of a hotel, restaurant, or canteen, or other public place, shall knowingly or wilfully, offer or serve or cause to be offered or served, any eatables during fasting hours in the month of Ramazan to any person who, according to the tenets of Islam, is under an obligation to fast, the contravention of which is punishable under section 4(2) of The Ehtram-e-Ramazan Ordinance, 1981.
(v) A proprietor, manager, servant or other person incharge of a hotel, restaurant, or canteen, or other public place, may offer or serve any eatables during fasting hours in the month of Ramazan to any person, who according to tenets of Islam, is under no obligation to fast (like a non-Muslim), provided that the sanctity of Ramazan is not violated.
(vi) A proprietor, manager, servant or other person incharge of a hotel, restaurant or canteen, or other public place, may offer or serve any eatables during fasting hours in the month of Ramazan to any person who, according to tenets of Islam, is under an obligation to fast, provided he is entitled to such exemptions under section 5 of the Ehtram-e-Ramazan Ordinance, 1981, read with Rule 4 of the Ehtrame-Ramazan Rules, 1981.
11. Obviously the Hotel Midway House is situated within the premises of Quaid-e-Azam Airport, Karachi. There is also no dispute that it supplies eatables to passengers/crew members of different parts of the world including non-Muslims. The version put forward by the applicants that they had committed no offence in the circumstances of the present case appears to be correct.
12. The raid of the hotel and the arrest of applicants Hassan Mehdi, Syed Qaiser All and Arjumand Azhar by Muhammad Saleem S.H2O. Airport Police Station was again illegal. Section 7 of The Ehtram-e-Ramazan Ordinance, 1981, empowers the following persons to enter and make arrest:-- "(1) If any Magistrate, the Chairman of a District Council or a Municipal Committee or a Town Committee, the Mayor of a Municipal Corporation, or the Chairman or a Member of a District Zakat and Ushr Committee has reason to believe that any offence punishable under this Ordinance has been committed by any person in or at a public place he may enter the public place and arrest such person.
(2) Where the Magistrate arresting any person under subsection (1) is for the time being empowered to try in a summary way the offences specified in subsection (1) or section 260 of the Code of Criminal Procedure, 1898, (Act V of 1898), such Magistrate may try such persons at the place where he is arrested in accordance with the provision contained in sections 262 to 265 of the said Code.
(3) When any person is arrested under subsection (1) by a person other than a Magistrate referred to in subsection (2) such person shall, if a bond to his satisfaction is not executed, forward the person arrested to the nearest police station, with a report of the circumstances in which such arrest was made."
13. It is thus apparent that a Police Officer has got no right to enter in a public place for the said purpose or arrest any person for violating the provisions of The Ehtram-e-Ramazan Ordinance, 1981. The raid made by Muhammad Saleem S.H.O. Airport Police Station and the arrests made as a result of such raid were therefore, illegal. Looking at the case from this point of view, I have no hesitation in remarking that the action of Assistant Commissioner/S.D.M. Airport, Karachi and S.H.O.
Airport Police Station, was not justified and had no sanctity in the eyes of law. The learned Magistrate should have tried the applicants summarily on the spot, if he had such poweRs,
14. Thus, from whatever point of view the matter may be looked at, the proceedings pending against the applicants are liable to be quashed. Accordingly the application filed by the applicants under section 561-A, Cr.P.C., is allowed and the proceedings pending against them under section /4 of The Ehtram-e-Ramazan Ordinance, 1981 in the Court of Assistant Commissioner and S.D.M.
Airport, Karachi, are hereby quashed.