' SAJJAD ALI SHAH, CJ.---This Constitution petition is filed directly in this Court under Article 184(3) of the Constitution of Islamic Republic of Pakistan on the ground that licence should not be issued for setting-up Brewery/Distillery to manufacture liquors and beer, which is a matter of public importance with reference to enforcement of fundamental rights of the petitioner as contemplated under Articles 20(a), 31 and 37(h) read with Article 2A of the Constitution. It is further contended that licence is issued for the purpose stated above in excess of scope laid down by Articles 3, 4, 5 and 17 of Prohibition (Enforcement of Hadd) Order, 1979. In the petition respondents 1 and 2 are Province of Sindh through Secretary, Excise and Taxation and Director-General, Excise and Taxation Department. Respondents 3, 4 and 5 are Messrs Murree Brewery Co. Ltd., Messrs Quetta Distillery Ltd. And Messrs Beach Brewery Co. (Pvt.) respectively. In the prayer clause of the petit*, declaration is sought that the impugned licence is illegal and of no legal effect and further consequential orders as described below are sought--
(a) to direct the respondents Nos. 1 and 2 to recall the impugned licence and to stop setting up brewery/distillery/trade thereunder;
(b) to direct the respondent No, 5 not to undertake setting up nor to set up and if set-up not to manufacture Pak-made foreign liquors and beer therein and to discontinue and close down if such manufacture has been commenced therein.
2. Notice was issued by this Court to the respondents and counsel appearing for them as mentioned in the caption have been heard. There is no dispute about the fact that on the same subject-matter Constitution petition has been filed in the High Court of Sindh at Karachi which is still pending. Mr. Mansoor Ahmed Khan has stated that Constitution Petition No, D-1212 of 1994 was presented in the High Court on 7-5-1994 and came up for Katcha Peshi in the Court on 17-5-1994 and 30-5-1994 and on both occasions it could not be heard. In these circumstances no order could be passed on application for interim relief in which stay of operation of licence of respondent No, 5 is sought. Meanwhile summer vacation in the High Court commenced, hence an attempt was made for hearing of the petition on 7-6-1994 on the basis of urgency application, which was dismissed on the short ground that there was no urgency without assigning any reasons.
3. Learned counsel for the petitioner has contended that since jurisdiction of the Supreme Court under Article 184(3) and of the High Court under Article 199 of the Constitution is concurrent and since the petitioner has failed in getting hearing of the petition in spite of urgency application, mere is proper justification for invoking jurisdiction of this Court. In support of the proposition reliance is placed on the case of Ms. Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416). It is held in the said judgment that when petition is maintainable in two forums, it is no doubt correct that ordinarily the forum of the Court in the lower hierarchy should be invoked but that principle is not inviolable and genuine exceptions can exist to take it out from that practice such as in the case where there was a denial of justice as a result of the proceedings being dilatory.
4. In the reported case of Ms. Benazir Bhutto (supra), she was not party in three writ petitions filed in the High Court on the same subject-matter and while examining the factual background of those writ petitions, it was found that they were pending since a long time without any final order and one petition was pending for more than one year and eight months, which was neither admitted nor dismissed. In such circumstances it was observed by this Court that High Court did not exercise its judicial power and was not seized of the dispute and direct jurisdiction of this Court was allowed to be invoked.
5. Mr. S. Sharifuddin Pirzada, Senior Advocate Supreme Court appearing for respondent No, 3, supported the arguments of Mr. Mansoor Ahmed Khan, counsel for the petitioner, and also supplemented them. He further argued that licence issued in favour of respondent No, 5 is not to be read in abstract and assailed it on the ground that it was beyond the purview of Article 17 of P.0.4 of 1979. He further submitted that while issuing licence to respondent No, 5 transparency was not maintained in the proceedings, which were held secretly and if the public had been put on notice, such action of issuance of licence would have been opposed as being against the spirit of Islam. It was also argued that preconditions laid down for issue of licence are to be followed strictly without allowing any departure. In support of the proposition he placed reliance on paras. 11, 12 and 21 in the judgment of Ramana v. I.A. Authority of India (AIR 1979 SC 1628).
6. Mr. Abdul Ghafoor Mangi, learned Additional Advocate-General of Sindh for respondents 1 and 2, contended that licence issued was within the scope of Article 17 of P.0.4 of 1979, vires of which are not challenged in the High Court. He further submitted that grievance of the petitioner is that High Court was not satisfied and dismissed his urgency application on the ground that there was no urgency and petitioner was unable to show to the High Court that there was urgency for hearing of his petition.
7. Mr. Fakhruddin G. Ebrahim, learned Advocate Supreme Court for respondent No, 5, contended that the petitioner has filed two identical Constitution petitions, one in the High Court and the other in this Court. If urgency application of the petitioner is dismissed by the High Court, he could have filed C.P.L.A. In this Court, which he has not done. In the circumstances dismissal of urgency application by the High Court remains unchallenged. Learned counsel further submitted that the Supreme Court had entertained Constitutional petitions directly in extraordinary circumstances involving vital national importance. Learned counsel further contended that the petitioner is not concerned with dispute between respondents 3, 4 and 5 and in fact respondent No, 3, while doing the same business, does not want respondent No, 5 to come in the field. The petitioner has not been able to show as to how his fundamental rights have been violated and he has claimed in the petition that his fundamental right as enshrined under Article 20 is infringed which relates to freedom to profess religion and to manage religious institutions. According to learned counsel this petition is liable to be dismissed as not maintainable and also on merits.
8. After hearing in detail all the learned counsel appearing in this petition before us, we have come to conclusion that this petition is not maintainable for the reason that on the same subject-matter petitioner has filed a Constitutional petition in the High Court which is pending. The case of Ms. Benazir Bhutto (supra) does not help the contention of the petitioner as in that case three writ petitions already filed on the same subject-matter in the High Court were pending since a very long time without any worthwhile orders having been passed in them. One such petition remained pending for more than one year and eight months without being admitted or dismissed. In the instant case the facts are different and C.P. Filed in the High Court is very fresh and was filed in the month of May and came up for Katcha Peshi on two occasions. We sent for the record of the High Court and found in the order sheet that on 17-5-1994 when the petition was listed for Katcha Peshi, the same was adjourned on the ground that Mr. Mansoor Ahmed Khan, learned counsel for the petitioner, informed the Bench that he would take some time to argue. Second hearing took place on 7-6-1994 which was after commencement of summer vacation and at the top was Urgency Application No, 3155 of 1994 which is dismissed by the Division Bench on the ground that there was no urgency in the matter and such conclusion was arrived at after having considered the matter as stated specifically. Now if the High Court is of the view that there is no urgency for hearing the matter during the vacation it means it would be heard after vacation in the month of August. We see no reason whatsoever to deprive the High Court of hearing identical petition which is pending there B particularly when facts and questions of law are same. Whatever contentions have been raised before us can be raised before the High Court when the petition is taken up for hearing. It is also apparent that c C.P. Filed in the High Court is not very old neither any dilatory tactics have I been adopted. Hearing is not taking place because of vacation and only grievance petitioner has is that his urgency application has been dismissed. In the circumstances, we are of the view that the direct petition is not maintainable on the ground that on the same subject-matter C.P. Is pending in the Sindh High Court. This petition is, therefore, dismissed with observation that it would be satisfactory if High Court takes up this petition for hearing strictly according to law in the first week after reopening of the Court after vacation.