1. ' SYED HAIDER ALI PIRZADA, J.--- By this petition the petitioners have prayed for the following reliefs:
(1) Declare the impugned orders, dated 8th August 1992 passed by respondents Nos. 2 to 5 for District East, District West, District South and District Central prohibiting riding on pillion seat of scooters, motor-cycles or any other two-seated/two-wheeled motor vehicle as without lawful authority and having no legal effect and violative of Constitution and law.
(2) Direct that the cost of the petition be borne by the respondents.
(3) Any other relief this Honourable Court deems fit and proper in the circumstances of the case may be granted."
2. ' The brief facts leading to the filing of the above petition are that the petitioners are citizens of Pakistan and they believe in rule of law and also in supremacy of judiciary and the petitioners are living in different four districts of Karachi Division and they are presently aggrieved by the impugned order as they are plying scooters as well as motor cycles.
3. ' The petitioners asserted in paragraph 2 of the petition that the respondents Nos.2 to 5 have passed order under section 144, Cr.P.C. As under: "Whereas, it has been made to appear before me that there exist conditions which may cause breach of peace on the area of District Karachi East.
4. ' And whereas, I am satisfied that there is expedient to make immediate measures to prevent disturbances of public peace and danger of human life and property.
5. ' Now, therefore, I, Dr. Imdad Ali Sehar, District Magistrate, Karachi East, in exercise of power vested in me under section 144, Cr.P.C., do hereby prohibit the following throughout the jurisdiction of District Karachi East:- "Riding on pillion seat of scooters, motor-cycles, of any other two-wheeled motor vehicles."
6. ' Provided that: ' This order shall come into force with immediate effect and shall remain in force for a period of one month, provide, withdrawn or modified earlier and woman and children are exempted."
7. ' The petitioners' case as set out in the petition, is that they, who are belonging to the poor/middle class and they have no proper transport except scooters and prior to ban they used to take their father, brother and other old people, who are living in Mohallah on their scooter to hospital for the treatment and they also used to do social service by taking them from one Mohallah to the other Mohallah, to different parts of the city so that while going with petitioners they should benefit of the facility of transport and this problem could be solved. It is their further case that the impugned order passed by the respondents Nos. 2 to 5 are not likely to prevent obstruction, annoyance of injury, or risk of obstruction, annoyance of injury to any person lawfully employed, or danger to human life, health or safety or disturbance of the public tranquility, or a riot or an affray as the scooter or motor-cycle is used by common men and by middle class or poor people. Riding on the two scats on scooters or motor-cycles does not create any disturbance at public place there is danger of human life and the impugned order is bad in law and it has been passed by the respondents Nos.2 to 5 mala fide and also causing inconvenience to specially poor persons/middle class, who cannot afford car, taxi and, rickshaw and they have to solve this problem of transport economically.
8. ' It is the further case of the petitioners that the impugned order is creating inconvenience and more burden is upon the middle and poor and it is discriminatory action on the part of the respondents and public-at-large is badly affected that the notification under Article 147 of the Constitution has already been issued by the respondent No,1 and this notification is sufficient to solve law and order situation as the Armed Forces have taken the position in different parts of the city and they are controlling the law and order situation and their operation against the criminals is going on satisfactorily and the respondents have taken this action illegally against the rights of every citizen and this action is particularly detrimental to the liberty, life and property of every citizen of Pakistan. The petitioners asserted that this Court has jurisdiction to examine the matter as well as has power of judicial review to judge the validity to the action of respondents as the measures taken by the respondents are not in accordance with the law. Since petitioners as well as public-at-large are badly affected by the impugned orders of respondents Nos.2 to 5, therefore, the petitioners challenged the impugned orders by filing this constitutional petition as an adequate remedy is not available to the petitioners.
9. ' The respondent No,3 has filed parawise comments wherein pleading that the order has been as one of the measures to improve law and order situation in the city. The respondent No, 3 at the time of hearing, produced photostat copies of the orders dated 6-6-1992, 6-7-1992, 5-8-1992, 3-9- 1992, 12-10-1992, 17-11-1992 and 18-1-1993.
10. ' The respondent No, 2 produced photostat copies of orders dated 5-6-1992, 7-7-1992, 8-8-1992, 8- 9-1992, 17-9-1992, 19-11-1992 and 21-1-1993.
11. ' The respondent No, 4 also produced photostat copies of orders dated 5-8-1992, 10-10-1992, 12-12- 1992 and 15-2-1993.
12. ' The respondent No, 5 produced photostat copies of orders dated 5-6-1992, 8-8-1992, 12-9-1992, 15-10-1992, 19-11-1992, 22-12-1992, 25-1-1993 and 3-3-1993.
13. ' Mr. Muhammad Muzaffarul Haque, learned counsel appearing for the petitioners raised the following contentions:--
(1) The impugned orders offend the provisions of Article 25 of the Constitution.
2. The impugned orders issued by the respondents Nos. 2 to 5 prohibiting riding in pillion seat of scooters/motor-cycles are bad in law and very unreasonable.
(3) The respondents Nos. 2 to 5 have no jurisdiction to make an order for the renewal of the original order under section 144, Cr.P. Code.
14. ' Mr. Muzaffarul Haque cited the cases of Shrin Munir and others v. Government of Punjab and another PLD 1990 SC 295 and Muhammad Ismail v. Muzaffar Qadir, C.S.P., District Magistrate, Sahiwal PLD 1968 Lah.
15. 1353.
16. ' Mr. Zahir Qureshi, learned Advocate appearing for the respondent only produced the above photostat copies of the orders issued by the respondents Nos.2 to 5.
17. ' We have considered the submission of the learned counsel for the petitioners. We have not received any assistance from the learned counsel appearing from either side. We ourselves have searched the cases on the subject.
18. ' In order to consider the contentions of the learned counsel appearing for the petitioners, it is necessary to have before us the entire section. That section reads thus: "144.-- (1) In cases where, in the opinion of a District Magistrate, ** Sub-Divisional Magistrate, or of any other Magistrate (not being a Magistrate of the third class) specially empowered by the Provincial Government *** or the District Magistrate to act under this section (there is sufficient ground for proceeding under this section and) immediate prevention or speedy remedy is desirable, ' Such Magistrate may, by a written order stating the material facts of the case and served in manner provided by section 143, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte.
(3) an order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
(4) Any Magistrate may (either of his own motion or on the application of any person aggrieved), rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predcessor-in-office.
(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the orders; and if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.
(6) No order under this section shall remain in force for more than two months from the making thereof, unless in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the (Provincial Government), by notification in the official Gazette, otherwise directs."
19. Section 144, Cr.P.C. Is enacted to provide for making temporary orders in urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy is desirable. It provides that where a District Magistrate, Sub-Divisional Magistrate or any other Magistrate (not being a Magistrate of the third class) specially empowered by the Provincial Government, is of the opinion that there is sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable, the Magistrate may make an order in writing against any person or the public generally if he considers that his direction is likely to prevent or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety or disturbance of the public tranquillity, or a riot, or an affray. The order must state the material facts of the case and it must be served in the manner provided by section 134 and may direct a person to abstain from a certain act or to make certain order with certain property in his possession or under his management. In cases of emergency or in cases where the circumstances do not admit of service in due time of notice upon the person against whom the order is directed, it may be passed ex parte. The order remains in force for not more than two months, unless the Provincial Government, in cases of danger to human life, health or safety, or is a likelihood of a riot, or an affray, otherwise directs. The order may be rescinded or altered by a Magistrate on his own motion or on the application of any person aggrieved, if the order is passed by himself or by any Magistrate subordinate to him or by his predecessor-in-office. In deciding the application made to him, the Magistrate must give an opportunity of appearing before him either in person or by pleader and showing cause against the order, and if the Magistrate rejects the application wholly or in part, he shall record in writing his reason for so doing.
20. ' Section 144 is intended to secure the public weal by preventing disorders, obstructions and annoyances. The powers conferred by it are exercisable by a Magistrate who acts judicially and the restraints permitted by it are of a temporary nature and may be imposed only in an emergency.
21. The wide power under the section may be exercised only in an emergency and for preventing obstruction, annoyance, or injury etc. As specified therein.
22. ' From a plain reading of section 144(6), Cr.P.C., it is clear that the power conferred on the Provincial Government is an independent and it is an executive power. It is not expected to be exercised judicially. The directions given in the exercise of that power need not be of a temporary nature. The ambit of the power is very large and it is uncontrolled.
23. ' Article 25 of the Constitution was considered by the Honourable Supreme Court of Pakistan in the case of Shrin Munir and others v. Government of Punjab and another PLD 1990 SC 295. It was held at page 309 as under;-- "Clause (2) of Article 25 prohibits distinction on the basis of sex alone. However, the very next clause
(3) controls the rest of Article 25 by providing that nothing in this Article shall prevent the State from enacting any special provision for the protection of woman and children". It implies, therefore that while the difference on the basis of sex can be created and maintained, it shall be done only in those cases where it operates favourably as a protective measure for and not against woman and children. The field of prohibition, of adopting sex, as a criteria for making a distinction, is thereby reduced to only that category wherein sex is adopted as a standard for discriminating against females generally and against males only if it is not as a measure protective of females.
24. Discrimination against a group or an individual implies making an adverse distinction with regard to same benefit, advantage or facility. All pervasive nature of this constitutional provision is self- evident. In interpreting Constitution and also in giving effect to the various legislative measures, one distinction has to be consistently kept in view and it is that classification based on reasonable considerations is permissible and not violative of the principle."
25. ' It was held that classification based on reasonable considerations is permissible. This aspect of the matter was dealt with in a case in the Indian jurisdiction in Kathi Raning Rawat v. State of Saurrashtra (AIR 1952 SC 123) and it was observed at page 125(2) as under:-- "Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific Constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Article 14 is different. Equal protection claims under that Article are examined with the presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies."
26. ' In the present case, the parawise comments filed on behalf of the respondent No,3 state that the order has been passed as one of the measures to improve law and order situation in the city. The situation has changed a lot. There are no more reported cases of sniper firing in the District South.
27. ' The impugned order having thus been passed to combat the sniper firing, in our view, reasonable and valid and the degree of desparity of treatment involved is no way offends Article 25.
28. ' Mr. Muzaffarul Haque contended that the order promulgated by the respondents 2, 3 4 and 5 was an encroachment on the fundamental rights of the citizens on the pillion riding. By operation of the order riding on pillion seat of scooters, motor-cycles, or any other two-wheeled motor vehicles for the safety and security of general public in the jurisdiction of the District has been banned. This order provides that it small not apply to woman and children. Reasonable restrictions have been provided in the Constitution itself.
29. We have, therefore, reach the conclusion that the order of the respondents Nos.2, 3, 4 and 5 is not unconstitutional either because section 144 itself violative of fundamental rights recognized by Article 25 or on the ground that it is vague and unreasonable restrictions on their fundamental rights. We, therefore, reject the first and second contentions.
30. ' Reverting to the last contention that the respondents 2 to 5 have no jurisdiction to make an order for the renewal of the original order under section 144, Cr.P.C. The respondents Nos.2, 3, 4 and 5 passed repeated or similar orders for a period of thirty days. In this connection, we would invite the attention of the District Magistrates, Karachi East, Karachi West, Karachi Central and Karachi South to cases reported as F.E. Chrestien v. Carter AIR 1939 Pat. 512 and Ram Ranbijaya Prasad Singh v.
31. The State of Bihar and others AIR 1950 Pat. 557 where this type of repetition of successive orders under section 144, Cr.P.C. So as to result in a permanent interference with rights was depreciated.
32. This was followed in Tatu Ram Sahi v. The State of Orisa AIR 1953 Orissa 96. In Ram Narain Sah and another v. Parmeshar Prasad Sah and others AIR 1942 Pat. 414, it was held that the Magistrate has no jurisdiction to make an order for the renewal of the original order under section 144. It was further held that it is not open to him to evade subsection (6) of section 144 by repeating orders under section 144.
33. ' In Niaz Muhammad and 10 others v. The District Magistrate, Bahawalpui PLD 1975 BJ 36, a learned Single Judge, after referring to a decision in Ram Narain Sah and another v. Parmeshar Prasad Sah and others AIR 1942 Pat. 414 held that:-- "A plain reading of the impugned order, with the above-noted cases and the provisions of section 144, Cr. P.C. Makes it absolutely clear that neither the learned District Magistrate gave the material facts which justified an apprehension of breach of peace or tranquillity, nor the situation was likely to cause public disturbances or annoyance. Further the District Magistrate violated the provisions of section 144(6), Cr.P.C. Inasmuch as he was continuing the same order, since 8th June 1974, on short intervals. I, therefore, have no , option but to hold that the impugned order dated 16th January 1975, promulgated under section 144, Cr.P.C. Is illegal and inoperative."
34. ' In Chaudhry Abdul Aziz v. District Magistrate, Sukkur PLD 1980 Kar. 333 a Division Bench of this Court held as under:-- "It appears that immediately after the period of the order dated October 10, 1979, under section 144, Cr.P.C. Was over, another similar order was passed by the District Magistrate on December 10, 1979.
35. This latter attempt seems to give the order under section 144 a permanent or semi-permanent effect which is not envisaged by section 144 which can remain in force for not more than two months from the making thereof. In fact fresh order dated December 10, 1979 would be in continuation of the first order dated October 10,1979, as provided by subsection (6) of section 144, Cr.P.C."
36. ' Again it was held that it is not open to him to evade subsection (6) of section 144 by repeating order under section 144.
37. ' In Messrs Mansoor Textile Mills Ltd and others v. Assistant Commissioner, Shorkot and 2 others 1984 P Cr. L J 1021 a learned Single Judge of Lahore High Court, after referring to provisions of subsection
(6) of section 144, Cr.P.C. Held at page 1025 as under:- "The above provision of law clearly prescribes a time limit of two months for the operation of an order by a Magistrate under section 144, Cr.P.C. Conferring a power on the Provincial Government to extend in certain specified circumstances the duration of such an order beyond two months by a notification in the official Gazette. It was held in Ram Narain Sah and another v. Parmasher Parshad Sah and others that a Magistrate has no jurisdiction to make an order the renewal of the original order under section 144, Cr.P.C. As it is not open to him to evade subsection (6) of section 144 by repeating order under section 144. This view was followed in Niaz Muhammad and others v. D.M., Bahawalpur and Ch. Abdul Aziz v. D.M., Sukkur. It was observed in the Niaz Muhammad's case that the repetition of an order under section 144, Cr.P.C. Without break or with short intervals has always been disfavoured by law as it really amounts to achieving indirecting what the law prohibits doing directly. Since in this case also the impugned order was only a repetition of the earlier two orders, rather almost a verbatim copy of the second order, it violated section 144(6), Cr.P.C."
38. ' The principle laid down in the above decisions is that the District Magistrate has no jurisdiction to pass fresh order under section 144 of the Code of Criminal Procedure in continuation of the previous one.
39. ' The wording of subsection (6) are clear and are not capable of an ambiguity. In other words, an order passed under section 144, Cr.P.C. Shall remain in force for a period not exceeding two months, unless in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the Provincial Government by notification in the official Gazette extends the period. The present was a case where there is likelihood of pillion riding being used by the gangsters and terrorists for defeating the aims and objectives of the drive against those elements and there was a likelihood of human life being in danger.
40. ' Consequently, the Provincial Government could if it so desired, extend the period for which an order under section 144, Cr.P.C. Code could remain in force.
41. ' What has been done in the present case is that instead of the Provincial Government issuing the notification to extend the period for which the order under section 144, Cr.P.C. Could remain in force, the District Magistrates of the four districts of Karachi issued successive orders one after another after the expiry of the prescribed period of thirty days. But if conditions do not become peaceful and apprehension is expected even after the expiry of the period of thirty days from the date of the issue of the original order under section 144, Cr.P.C., any fresh order promulgated under this section would be in continuation of the first and in the eye of law the District Magistrate shall be deemed to be promulgating an order for a period exceeding thirty days-another which would be beyond his jurisdiction. It is a well settled law that one cannot do an act indirectly which he could not directly, or that one cannot flout the express provisions of an enactment.
42. A colourable act on the part of a public officer shall not be accepted on its face value and one shall have to look into the facts to find out whether such an act was done in good faith, or indirect method was adopted to get over the provisions of the law. The present one is one District Magistrate cannot be held to have acted issued, the successive orders under section 144, Cr.
43. Extending the period for which original orders under not remain in force.
44. ' In the result, petition is allowed, the impugned orders having been made without lawful authority, are quashed. However, if the conditions specified in subsection (6) of section 144, Cr.P.C. Still exist, the Provincial Government has power to make order, by notification in the official Gazette, to extend the application of section 144, Cr.P. Code.