1. ' NASIM HASAN SHAH, J.---This judgment will dispose of the above noted three appeals as they arise from a common judgment passed by the High Court of Balochistan whereby the Constitutional petitions filed by the appellants in these matters were disposed of.
2. ' The appellant in Civil Appeal No,45-Q of 1990 Mr.J.J.k. Tajjak is a Christian by faith who applied for grant of licence for sale of liquor and such licence was firstly granted to him in the year 1978. With the promulgation of the Hadd Order licence on L-2 Form for retail sale of intoxicating liquor was issued to the appellant and same was renewed year to year. Lastly, the said licence was renewed from 1-7-1989 to 30-64990. The appellant used to supply liquor to those citizens of the minority community of the country who were issued valid permits by the Excise and Taxation Officers and also to the non-Muslim foreigners having such permits. In addition, intoxicating liquor was sold on the occasion of religious festivals of the minorities. The appellant on the basis of said licence got the total supply of liquor issued to hint However, on 7th September, 1989 during the continuance of the validity of the licence, the respondent Government cancelled the licence without issuance of any show-cause notice or affording him any opportunity of hearing in that behalf.
3. ' Civil Appeal No,46-0 of 1990 had been filed jointly by the nine appellants. They belong to different sections of the minority community, professing different faiths and include Hindu, Christian and Parsi citizens of Pakistan. Their plea is that being non-Muslim minority citizens of the country permits have been issued in their favour for use of liquor on the occasion of their respective festivals. It is their case that their right to use liquor on the occasion of religious festivals is protected not only by the Constitutions of the country but also by the Had Order. However, on account of the cancellation of the licences to the licensed vendors the appellants have been deprived of their right to use liquor on their festivals because the licensed vendors can no longer sell and they cannot, therefore, purchase liquor for consumption on their religious festivals. The order of cancellation of the licences is challenged principally on the above basis.
4. ' In Civil Appeal No,47-Q of 1990 the appellant is a private limited company registered under the Companies Ordinance with its registered office at MA. Jinnah Road, Quetta Cantt. The Company was granted licence on Form L-1 and L-2. These licences authorise whole sale and retail vend of foreign liquor to Trade and Clubs holding licences. The case of the appellants is that it has been applying for renewal of licences every year and the respondent No,2 has been renewing the licences regularly on annual basis. The licences issued to the appellant were renewed lastly for 1-7- 1989 to 30-6-1990. But both were cancelled without any notice by respondent No,2 vide its order dated 7-9-1989.
5. ' The appellants feeling aggrieved of the cancellation of licences aforementioned challenged the said action through separate Constitution Petitions before the Balochistan High Court.
6. ' The main pleas advanced in support of their petitions before the High Court were that the action of the respondent Government in cancelling the licences was against the canons of natural justice as their licences were cancelled without issuance of any show-cause notice and affording them any opportunity of hearing. It was pointed out that there was no allegation at all that any of the appellants had ever contravened any of the conditions of the licences; that the action of the respondent No,2 infringed the fundamental rights guaranteed to the citizens of the minority community of this country and that respondent No,2 did not apply his own mind before passing the impugned order but had simply acted and followed the directions of the Chief Minister of Balochistan and hence could not be considered to be an order passed by the competent statutory authority who was legally empowered to do so.
7. ' The case of the Provincial Government, on the other hand, was that the High Court should not exercise its discretion in favour of the appellants as the relief sought was against the public morality, the use of liquor being detrimental to the society and the religious feelings of the people at large. On the legal plane it was urged that a licence simplicity is a privilege and not a right and, therefore, its withdrawal was not justiciable. It was also contended that the purpose for which the licence was granted ceased to exist within the meaning of section 19(2)(b) of Hadd Order and, therefore, the cancellation has caused no prejudice to the rights of the appellants.
8. ' The Constitutional petitions were heard by a Division Bench of the High Court consisting of Mir Hazar Khan Khoso, C.J. And Amir-ul-Mulk Mengal, J. However, a difference of opinion arose between the two learned Judges hearing the matters. While Amir-ul-Mulk Mengal, J. Was of the opinion that the petitions should be accepted and the impugned order cancelling the licences set aside; Mir Hazar Khan Khoso, C.J. Expressed the opinion that the petitioners were not entitled to relief in exercise of the discretionary jurisdiction of the High Court under Article 199. The matter was, therefore, placed for decision before a third learned Judge namely Munawar Ahmad Mirza, J. The learned referee Judge, vide order dated 2-6-1990, agreed with the opinion of the learned Chief Justice. In the result, the Constitutional petitions were dismissed.
9. ' According to Mr. Justice Amir-ul-Mulk Mengal, as there was no prohibition to the issuance of liquor to the minorities for their use for religious ceremonies or festivals and with the issuance of the licences to the appellants a legal right was created in their favour, the Collector could not have cancelled the licences without issuance of a show-cause notice to them. He was further of the opinion that the ground for cancellation of such licences being justiciable in cancelling the licences of the appellants the rights of the minorities had been unduly violated. Accordingly, he was of the opinion that the orders cancelling the licences were without lawful authority and unwarranted.
10. ' On the other hand, the learned Chief Justice was of the view that a licence for the sale of liquor is a privilege which, does not create a right in favour of the licensee and as such the licence can be withdrawn at any time and the order of cancellation of such a licence is therefore, not justiciable in extraordinary Constitutional jurisdiction. He also observed that sale or use of liquor in an Islamic State like Pakistan being against the Injunctions of Islam the discretionary jurisdiction to grant relief in such a case should not be exercised. In this connection, reliance was placed on the judgment of this Court in case of Haji Muhammad Saifullah reported in PLD 1989 SC 166.
11. ' On reference to the third learned Judge, Mr.Justice Munawar Ahmed Mirza, the learned Judge in his order dated 2-6-1990, inter alia, held that as no religious ceremony or festival of any of the minority communities fell in between the date of hearing and the date of expiry of the licence; therefore, the purpose of the licence had ceased to exist. He further held that withdrawal or cancellation' of the licences did not affect the vested rights of the licence holders and that, in any case, the cancellation of licence was not justiciable. He observed also that drinking being prohibited by God Almighty, the principle enunciated by this Court in the case of Haji Muhammad Saifullah was attracted. And in any case, there was no religious injunction enjoining taking of alcoholic drinks.
12. ' We have heard learned counsel for the parties and carefully considered the merits of the case.
13. ' It will be observed that with effect from 10th February, 1979, the Prohibition (Enforcement of Hadd)
14. Order No,4 of 1979 was promulgated. According to Article 17 thereof, the Provincial Government was given powers to issue licences for sale or possession of intoxicants for bona fide medicinal, scientific etc. Purposes (ii) or for consumption by a non-Muslim citizen of Pakistan of liquor as a part of his religious ceremony and to a non-Muslim foreigner. Under Article 18 thereof provision was made for issuance of licences for the aforesaid period on stated conditions; while Article 31 vested the Provincial Government with the powers to make Rules. Accordingly, Balochistan Prohibition (Enforcement of Hadd) Rules, 1979 were enforced on 9-1-1980 and according to Rule 25 thereof licence for retail sale of intoxicants was to be issued in Form L- ' The appellants after the enforcement of the Prohibition Order and Balochistan Prohibition Rules, 1979 were issued licences intended for retail sale and consumption of intoxicant liquor. These licences were consistently renewed in their names from year to year. The latest renewal for the year 19891990 (from 1-7-1989 to 30-6-1990) in Forms L-1 and L-2 was duly made in favour of the appellants in June, 1989.
15. ' It is also undisputed that in terms of Article 17 of the Hadd Order, liquor has only been issued for consumption of the minority citizens residents within the country at the occasion of their respective festivals and for which permits have always been issued in favour of the recipients by the Excise and Taxation Officers of the area concerned with effect from 10th February, 1979. Additionally, non- Muslim foreigners visitors to the country have also been issued liquor on the basis of permits issued to them by the Excise and Taxation Officer. While some of the appellants holding licence for the retail sale of the liquor have, on 'the basis of such permits, have been selling the liquor to the permit holders, the others have been receiving them on occasions of their religious festivals. The list of the festivals of the minority communities i,e, Hindus, Parsis, Christians etc. Is as follows:--
(I) Hindu Minority
(i) Basant Panchamee (ii) Sheva Ratri
(iii) Holi (iv) Dohandi (v) Besakhi
(vi) Budha Purnima (vii) Janam Ashtami
(viii) Dusehra - Durga Puja (ix) Birth of Guru Bal-mik Swamiji (x) Dewali and ' Birth of Guru Nanak.
(H) Parsi Minority
(i) New Year day Parsi and (ii) Khordadal (Birth day of Lord Zorcaster).
(III) Christian Minority
(i) New Year (ii) Good Friday (iii) Easter, and (iv) X-Mass.
16. ' Additionally, non-Muslim foreigners, visiting the country in the Province of Balochistan, have also been purchasing the liquor from the appellants on the basis of permits issued to them by the Excise Department.
17. ' It may be added that the arrangement in force for the last few years is that the members of the minority community who are ordinarily residents in a particular area are issued permits by the Excise and Taxation Officer on the occasion of festivals of the community to which a member of the minority community may belong and such holder of the permit has been either purchasing liquor himself or has been handing over his permit to an agent named in the permit and the agent has been purchasing the specified quantity of liquor from the appellants who are the vending agents authorised to make retail sale.
18. ' It is also the case of the appellants that there has never been any occasion when any of the conditions of the licence issued to the appellants has ever been violated. Hence, there was no valid or legal ground for cancelling their licences.
19. ' However, suddenly on 7-9-1989, the respondent served a notice to them to the following effect---
(i) as per policy decision of the Provincial Government intimated by the Senior Member-cum- Secretary to the Government of Balochistan in Excise and Taxation Department, the respondent No,1, licence in Form L-2 issued to the petitioner ceases to exist, with immediate effect;
(ii) that such licence has been cancelled and the liquor vend shall cease to function;
(iii) that with immediate effect, the petitioner shall stop to use the building as a liquor vend;
(iv) that the cancellation of the licence with immediate effect shall not make the petitioner entitled to the payment of any compensation or damage; and
(v) that the Excise and Taxation Officer shall check and intimate the balance of stock, as also, shall seal the vend till further orders.
20. ' The policy decision, on which this notice was based, is to the following effect: "4th September, 1989 ' Subject: Prohibition of liquor ' The Chief Minister, Balochistan, has directed that the liquor licences granted renewed in favour of vendors for sale of liquor may be cancelled forthwith. It has also been desired that the licence for manufacture of liquor at Quetta Distillery shall determine. You are, therefore, directed to proceed in the matter under the provisions of Balochistan Distillery Rules, 1947."
21. ' The policy decision dated 4-9-1989 and the order dated 7-9-1989 were challenged by the appellants through separate Constitutional petitions in the High Court of Balochistan and were ultimately dismissed in the manner stated hereinbefore.
22. ' In support of these appeals, the learned counsel for the appellants submits that the view of the majority that the grant of a licence is in the nature of privilege which does not create any vested right in favour of the appellants is contrary to the law as enunciated by the superior Courts in Pakistan. Reference is made to Superintendent of Police v. Abubakar and another (1972 SCM R 154) and Gouranga Mohon Sikedar v. Controller of Imports and Exports ,(PLD 1968 Dacca 23). It is, therefore, argued that the licence issued in favour of each of the appellants was not liable to cancellation without affording them an opportunity of hearing and in accordance with the relevant law.
23. ' It is further submitted that the Prohibition Order in its preamble declared that the law was being brought in accordance with the Injunctions of Holy Qur'an and Sunnah and in the said Order the entitlement of the minorities to consume liquor on the occasion of their religious ceremonies and festivals was duly recognised. Such right was affirmed by the Federal Shariat Court in its judgment reported as PLD 1981 FSC page 245 and affirmed in appeal by this Court in its judgment reported in 1988 SCM R 1417. In these circumstances to hold that in the Islamic State of Pakistan, sale and use of the liquor is against Injunctions of Islam, is to overlook and disregard the law of the land. In so doing, the High Court had deprived the appellants of a right that was granted to them by the law and duly affirmed by the highest Courts in the land.
24. ' It is also submitted that the learned Judges in the High Court erred in invoking the principle laid down in the case of Federation of Pakistan v. Haji Muhammad Saifullah (PLD 1989 SC 166) which was not attracted in the facts and circumstances of the present case. In these cases, the order being sought was for a writ in the nature of mandamus for restoration of the right guaranteed to them under a law which was duly in force.
25. ' It is also submitted that the view of the third learned Judge in the High Court that as no religious ceremony of any of the communities involved was due to be held until the expiry of the licence on 30th June, 1990 the purpose of the grant of the licence had ceased to exist was not tenable. The true question arising in these cases was whether the order of cancellation dated 7-9-1989 was or was not passed with lawful authority and not that it would not cause them any prejudice during particular period. Further the conclusion of the third learned Judge that notwithstanding the recognition of right of the use and consumption of liquor by the minorities by law, yet the non- Muslims have to show that their religion sanctions drinking of liquor is to introduce an additional condition to the exercise of a legal right conferred on them which the learned Judge was not competent to do.
26. The submissions of the appellants have merit. The law is that even though the grant of a licence is -a privilege but once it has been granted it cannot be cancelled or withdrawn without due cause and without allowing an opportunity to the holder thereof to represent his point of view. As explained by this Court in Superintendent of Police Special Branch, Karachi and others v. Abubakar and another (1972 SCM R 154) different considerations apply to the grant of a privilege and to its withdrawal, after its issuance. Once a licence has been granted, the grantee acquires a right to the enjoyment of the privilege in accordance with the terms and conditions of the grant and this right cannot be taken away during the term for which it is granted. And if it is to be withdrawn this can only be done in accordance with law. Hence, the necessity for giving the grantee a notice to show cause and an opportunity of being heard in order to prevent an arbitrary or capricious withdrawal of the privilege. In the instant cases, the licences issued to the appellants were cancelled during the subsistence of the term for which the licences were granted. This could only have been done for a proper cause. In these cases, the licences have been cancelled under the provisions of Article 19 of the Prohibition (Enforcement of Hadd) Order, 1979. This provision is to the following effect: "19. Power to cancel or suspend licences.--(1) The Collector may cancel or suspend a licence--
(a) if any fee payable by the holder thereof be not duly paid, or
(b) in the event of any breach by the holder thereof or by his servant or by any one acting with his express or implied permission on his behalf of any of the terms or conditions of the licence.
(2) The Collector shall cancel a licence if--
(a) the holder thereof is convicted of any offence under this Order; or
(b) the purpose for which the licence is granted ceases to exist."
27. Undisputably the appellants had not committed any violation of the provisions of this section. The cancellation of the licences was ordered on the assumption that in an Islamic State, the issuance of the licence for alcoholic drinks is not desirable.
28. ' We cannot endorse this point of view. An Islamic Law . Stands promulgated to regulate this entire matter namely "Prohibition (Enforcement of Hadd) Order No,4 of 1979. According to Article 17 thereof, licences can be issued for consumption of liquor by non-Muslim citizens of Pakistan as a part of their religious ceremony or by a non-Muslim foreigner. This law was even challenged before the Federal Shariat Court and this Court but it was found that the above provision did not contravene the Injunctions of Islam and the above exception made in favour of the minority communities in Pakistan was held to be in accordance with the Injunctions of Islam. Even in the Constitution of Islamic Republic of Pakistan, 1973, it is provided in Article 37 that the State, inter alia, shall --
(h) prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of non-Muslim. Religious purposes".
29. ' Hence the order of respondent No,2 was not only against the provisions of law but also the provisions of the Constitution. Moreover, no opportunity to show cause or to present their point of view was afforded to the appellants before the impugned order was passed. This was essential because the licences were cancelled during the term of the grant. Accordingly, the impugned order was not only against the principles of natural justice but also against the terms of the law. In this situation, the appellants were clearly entitled to a declaration that the impugned orders were passed without lawful authority and were of no legal effect.
30. ' The above relief, however, was not granted by placing reliance on the principle that the collective good of the society demanded that this relief should not be granted and the judgment of this Court in the case of Haji Muhammad Saifullah (PLD 1989 SC 166) was relied upon in this connection.
31. ' In our view, the ratio decidendi of that judgment was not only not attracted here but in reality is to the opposite effect. In that case, it was found that the electoral process had commenced and the whole nation was geared up for elections and thwarting the election process at that stage would make the confusion worse confounded. Accordingly, allowing the electorate to express its opinion in a free and fair election proposed to be held on a party basis, as guaranteed by the Constitution wherein representatives of all sections of the community were eagerly looking forward to participate was for the collective good. It was considered that greater harm was likely to be caused if the relief of restoring the dissolved Assembly and stopping the fresh elections was granted than by refusing it In the present case, the situation is altogether different. Here a special exemption made by law in favour of the minority communities, in implementation of the Constitutional mandate for safeguarding the rights of non-Muslims, has been nullified. The collective good and the national interest would, in fact, have been better served by upholding and enforcing the special provision made in the law and the Constitution for safeguarding the interest of the non-Muslim minority communities. Hence, granting them the relief prayed for, in order to redress the injury caused to them on account of the violation of their legal right was not against the national interest. In fact, it would have been for the collective good if the relief, to which the appellants were entitled under the law, was granted because upholding the rights of the minorities is in the larger public interest than withholding it. The refusal of the relief to them, in the circumstances of these cases would in fact lead to quite the opposite result to the one, which the order in the precedent case sought to achieve. Thus, the ratio of this Court's decision in Haji Muhammad Saifullah's case appears to have been completely miscontrued for utilising it to deny relief to the appellants in these cases.
32. ' The upshot is that the impugned order passed by respondent No,2 cancelling the licences of the appellants was contrary to law and without lawful authority and was of no legal effect. Hence the petitions filed by them merited acceptance. Accordingly, the following short order was passed on the conclusion of the hearing of these appeals on 19-1-1993 "that for reasons to be recorded separately these appeals are allowed and the impugned order of the respondent dated 7-9-89 cancelling the licences issued to the appellants is declared to be without lawful authority and of no legal effect". The above are our reasons for the aforesaid short order.