' MUHAMMAD .GUL, J.---The petitioner Malik Ghulam Yousif is resident of village Jhamat, Tchsil Pindigheb, belongs to Shia Sect. It appears that in the year 1965 he and other Shia residents of the village wanted to take out "Zuljinah" and "Alam" procession during Muharram. However, they were forbidden to do so, except under a licence under section 30 of the Police Act.
' Pursuant to this direction by the District Executive Authorities, the petitioner on behalf of the Shia community, resident in the village, addressed an application on the 19th March, 1966 (Annexure 'H') to the District Magistrate for the grant of licence to take out "Zuljinah" and "Alam" processions along the route set out in the plan annexed to the petition. The application, however, was refused by the District Magistrate (respondent No,1) vide order, dated the 28th April, 1966, on the ground that the grant of licence to the petitioner has been opposed by the police.
2. Aggrieved by the above refusal, the petitioner on his own behalf and on behalf of the Shia residents of the village, has moved this writ petition under Article 98 of the Constitution calling in question the vires of the above refusal by the District Executive Authorities on the following two grounds, namely---
(i) that the provisions of section 30 of the Police Act are ultra virs the Constitution being violative of Fundamental Right 20 which, inter alia guarantees every citizens "the right to profess, practise and propagate his religion", and
(ii) that in any event, the impugned order (Annexure 'A') refusing permission abridges the petitioner's freedom to observe and practise his religion and that of the other Shia residents, and therefore, must be declared as without lawful authority;
3. The 'respondents (District Magistrate and D.S.P.) have entered appearance through AA.-G. To oppose the writ petition. They have not filed any written statement. In the report submitted pursuant to the order of this Court, dated the 28th September, 1966, it is, however, stated that the licence for the Zuljinah and Alam processions during the Muharram falling in the year 1966, was refused to the petitioner because the Shia residents of the village had never before organized or taken out any such processions, nor they had ever sought licence for the same, It was also stated that certain residents in the village belonging to another sect also objected to the taking out of the processions by the Shia community led by the petitioner. However, no affidavit was sworn in support of the above averments.
4. Learned counsel for the petitioner argued that among Muslims belonging to Shia Sect, the taking out of Zuljinah and Alam processions during the month of Muharram to commemorate the martyrdom of Hazrat Imam Hussain is a part of their religion, and the right to profess, practise and propagate any religion or tenets thereof is guaranteed absolutely to every citizen under Constitution. It was further argued that what is guaranteed by the Constitution to the citizens cannot be denied in the purported exercise of any statutory power. It was also argued that if section 30 of the Police Act is so construed as to confer unqualified powers to the Executive Authorities to refused permission to organize and take out religious processions as claimed by the petitioner, then it must be struck down as unconstitutional under Article 6(1) of the Constitution.
5. Fundamental Right 20 reads as follows:---"Subject to law, public order and morality---
(a) every citizen has the right to profess, practise and propagate any religion; (b)
A plain reading of the above Constitutional provision would show that the right guaranteed is subject to three important restrictions: law, public order and morality. The intention plainly is that so long as the religious beliefs do not offend against public morality or impair public peace, no limitation or abridgement shall be placed upon the exercise of such right. If, on the other hand, any religion is practised or propagated in public by speeches, processions or placards, it may clash with the rights of others so as to lend to breach of the peace. It is to provide for such contingencies that the Constitution qualifies the freedom to profess and practise religion, so as to make it subject to law. Therefore, it is wrong to suggest that Fundamental Right 20 guarantees absolutely the right to profess and practise religion or that the public authorities are not empowered to control the situation impairing the law and order. On this view of the matter, therefore, we cannot accept the argument that section 30 of the Police Act is in conflict with Fundamental Right 20.
6. In support of the second proposition it was argued, that the refusal of the District Authorities to permit the petitioner to take out Zuljinah and Alam processions was arbitrary or, at any rate, in the colorable exercise of the power under section 30 of the Act. Learned counsel emphasised that it was not denied that the Zuljinah and Alam processions during Muharram have the highest religious significance among Shias. That being so, as citizens, they have the right, subject to maintenance of peace, to take out these processions. Learned counsel also strongly relied on the fact that no affidavit was filed on behalf of the respondent that it was owing to an apprehension of the breach of peace that the permission to take out procession was refused to the petitioner.
Learned counsel held out an assurance that the processions will be peaceful and that if there is any objection from any quarter to take out the processions along a particular route, then the authorities can alter the route to avoid all possibilities of friction between different sects. Learned counsel particularly relied upon the following observations of Chief Justice Muhammad Munir in Jahindra Kishore v. Province of West Pakistan PLD 1957 SC (Pak.) 9 at page 41:--- "The every conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law. f am unable to attribute any such intent to the makers of the Constitution who in their anxiety to regulate the lives of the Muslims of Pakistan in accordance with the Holy Qur'an and Sunnah could not possibly have intended to empower the Legislature to take away from the Muslims the right to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions, and who in their conception of the ideal of a free, tolerant and democratic society could not have denied a similar right to the non-Muslim citizens of the State 1 refuse to be 'a party to any such pedantic, technical and narrow construction of the Article in question, for I consider it to be a fundamental cannon of construction that a Constitution should receive a liberal interpretation in favour of the citizen, especially with respect to those provisions which were designed to safeguard tile freedom of conscience and worship...."
' The above observations were made with reference to section 20(5) of the East Bengal State Acquisition and Tenancy Act, 1950, which, inter alia, provided for the acquisition of and termination of interest in Waqf, Waqf-ul-Aulad and Debutter lands. However, the principles enunciated by the learned Chief Justice fully extends to the instant case. To accept the preposition that the operation of fundamental right to profess or practise any religion is dependent upon the objection of a hot- head of a different religion or sect would make the fundamental right entirely without any substance. Therefore, we see considerable force in the argument that the permission to the petitioner to take out processions was refused rather lightly without taking into consideration that the permission was sought in relation to the' performance of what is accepted by common consent as religious rite among Shia Muslims, and which is guaranteed by the Constitution.
7. Learned A. A.-G., on the other hand, did not seriously contest the argument on behalf of the petitioner in support of the second proposition. He, however, opposed the issuance of the writ in the case because the position has become infructuous. It was argued that the relief was sought in relation to Muharram falling in the year 1966 which has since gone by and, therefore, no effective writ can be issued in the case. We are not impressed by the argument. It cannot be gainsaid that the whole object of the writ petition is a vindication of the Fundamental Right guaranteed by the Constitution, which in its very nature is of a recurring character. If the refusal of the Executive Authorities is allowed to go unchallenged or is not declared invalid by an appreciate declaration then it may well-result in the perpetuation of the denial of this right in relation to the years to come.
8. For the foregoing reasons, we hereby accept this writ petition with costs and declare that the refusal of the District Authorities conveyed to the petitioner by means of letter, dated the 28th April, 1966 (Annexure 'A') is without lawful authority.