' RASHEED AHMED RAZVI, J.---The petitioner is running a restaurant/tea shop under the name and style of Sindh Baloch Hotel at the Bus-stand of Shahpur Chakar, Taluka Shandadpur, District Sanghar, since 1954. It is averred in the petition that he is providing food and other eatable to the passengers at the bus-stand which is situated near the town Shahpur Chakar, Taluka Shandadpur on the main road of Nawabshah-Sangar. After promulgation of the Ehtaram-e-Ramazan Ordinance, 1981, the petitioner in past, on several occasions obtained permission from the respondent No,3 namely Sub-Divisional Magistrate, Shandadpur to supply food to the passengers during the month of Holy Ramazan for the period commencing from June 1983, till March, 1992. In support, the petitioner has filed photo copies of such permission alongwith memo. Of the petition as annexures "A" and "A-1 to 9", which have not been denied by any of the respondents.
2, The main grievance of the petitioner is that in the year 1993, the respondents refused to grant him permission to sell food and other eatables during the month of Ramazan and that respondent No,4 namely Mukhtiarkar, Shandadpur warned the petitioner not to open the hotel during the fasting hours or he will be arrested. It is further alleged by the petitioner that the Deputy Commissioner, Sanghar who is respondent No,2 on 5th Ramazan in the year 1993, during an open Katchary, threatened to take action against all the hotel owners, who may open hotels during fasting hours. That the petitioner was forced to close his hotel on 8th of Ramazan of the same year.
In background of these facts, the petitioner has approached this Court through a Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayers:--
(i) That this Honourable Court may be pleased to declare that the petitioner hotel being located within the premises of Bus-stand Shahpur Chakar, Taluka Shandadpur, District Sanghar, is exempted from the operation of Ehtram-e-Ramazan Ordinance, 1981, and
(ii) it may further be declared that the respondents have no lawful authority to refrain, restrain and disallow the petitioner from running the said hotel and offering and serving drinks and eatables to the passengers having stop over at the said Bus-stand during the fasting hours of the month of Ramazan, and
(iii) this Honourable Court may further be pleased, to refrain the respondents from interfering and harassing the petitioner from running the said hotel and offering and serving drinks and eatables during the fasting hours in the Holy month of Ramazan.
3. We have heard Mr. Hakim Ali Siddiqui, Advocate for the petitioner and Mr. Abdul Sattar Kazi, Additional Advocate-General, Sindh on behalf of the respondents. The respondent No,3 namely Sub-Divisional Magistrate, Shandadpur has filed his parawise comments in which contents of the petition were admitted except paras.5 and 6, for which, it is stated that the petitioner has levelled allegations in order to harass the respondent No,3, as he wanted to supply eatables to the citizens of Shahpur Chakar Town in violation of section 5 of Ehtram-e-Ramazan Ordinance, 1981. Mr. Hakim Ali Siddiqui, has contended that in view of sections 3, 4 and 5 of the said Ordinance, the petitioner is entitled to run his business of hotel at the bus-stand and that act of the respondents not to issue permission and to close petitioner's hotel during Ramazan is illegal, mala fide, violative of fundamental rights and of no legal effect. He has referred to the cases of Muhammad Zahid Javed v. Director Operation, PRTC (NLR 1992 CU 465) and Hassan Mehdi and 3 others v. The State and 3 others (1993 PCr.LJ 175). Learned Additional Advocate-General, Sindh, in view of the law involved in this petition as well as in view of the admitted facts that the petitioner is running his hotel within a vicinity of a bus-stop, has consented to the grant of this petition, subject to strict compliance of provisions of the Ordinance, 1981.
4. The question, which emerges for the consideration in this petition is the interpretation of various provisions of Ordinance XXIII of 1981 (Ehtram-eRamazan Ordinance, 1981). In section 2, the public place has been defined to be a place comprising of any hotel, restaurant, canteen, houseroom, tent, enclosures, road, lane, bridge or other place to which the public have access. Subsection (1) of section 3 prohibits, all persons who are under obligation to fast from eating, from drink or smoking at public place during fasting hours in the month of Ramazan. Subsection (2) provides punishment for violation of subsection (1) as simple imprisonment for a term which may extend to three months or fine which may extend to five hundred rupees, or with both. Subsection (1) section 4 of the Ordinance, 1981, prohibits all proprietor, manager, servant or other persons in charge of a hotel, restaurant, or canteen, or other public place, from knowingly and wilfully offering or serving any eatables during fasting hours during the month of Ramazan. The punishment for violation of this provision is provided under subsection (2) which is simple imprisonment for a term which may extend to three months, or fine, which may extend to five hundred rupees, or with both. However, in section 5 certain exemptions are provided, when section 4 is made not applicable, which is reproduced herein:-- "5. Exemptions.--Nothing contained in section 4 shall apply in respect of-- (a)
(b) a restaurant or canteen within the premises of a railway station, airport, or seaport or bus stand or in a train or aircraft;
(c) ..
(d) .
(Underlining is ours)
5. In the case of Muhammad Zahid Javed (NLR 1992 CLJ 465), grievance of the petitioner was that he was running a canteen within the premises of bus-stop of Government Transport Service at Railway Road, Faisalabad and that the Secretary, Punjab Road Transport Corporation, has restrained the petitioner from serving eatables in his canteen during the month of Holy Ramazan. In parawise comments, it was admitted that the petitioner's canteen was located within the premises of the Government Bus-stand. It was held by a learned Single Judge of Lahore High Court that there was no justification to prohibit the petitioner from serving food to the bona fide passengers and that the case of the petitioner was covered by section 5(b) of the Ordinance, 1981, which excludes the applicability of section 4 of the Ordinance to such premises. With this view, the learned Single Judge of Lahore High Court declared the impugned notice as without lawful authority and of no legal effect and accepted the petition. The case of Hassan Mehdi (1993 PCr.LJ 175) pertains to a quashment of criminal proceedings, which was pending against the petitioner (accused) under sections 3 and 4 of the Ordinance, 1981 in the Court of Assistant Commissioner and S.D.M., Airport, Karachi, which was quashed by a learned Single Judge of this Court Mr. Qaiser Ahmed Hamidi, J (as he then was). In the last-reported case, the learned Judge of this Court has very elucidly discussed various provisions of the Ordinance, 1981 as well as Rule 4 of the Ehtram-e- Ramazan Rules, 1981, and has righty deduced 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 exemption under section 5 of the Ehtram-e-Ramazan Ordinance, 1981, read with Rule 4 of the Ehtram-e-Ramazan Rules, 1981.
6. Here, we would like to add that the Legislators of this Country, while using the term "nothing contained in section 4 shall apply in respect of " in the opening of section 5 of the Ordinance, 1981, has ousted the operation of section 4 in the places as mentioned in sub-clauses (a) to (d) of the section 5 including a restaurant or canteen within the premises of a bus stop. Therefore, in view of the admitted facts of this case, the petitioner was entitled for the exemption as provided in section 5 of the Ehtram-e-Ramazan Ordinance, 1981.
7. It is not denied by the respondents that the hotel of the petitioner is situated at a bus-stop nor any of the respondents have denied the fact that permission for exemption to run hotel during the month of Ramazan was granted to the petitioner for nearly 11 years. The only objection raised by the respondent No,3 in the comments is that under the garb of this exemption, the petitioner was supplying food to the citizens of Shahpur Chakar. This allegation is not substantiated by any material. Even otherwise, the alleged act of the petitioner to provide food to the citizens during the month of Ramazan is punishable under section 2(d) of the Ordinance, 1981, but, none of the respondents have even verbally raised any plea that such proceedings were ever initiated against the petitioner. Therefore, the act of the respondents not to grant exemption under section 5(2) to the petitioner in the month of Ramazan of 1993, in our view illegal, unauthorised and violative of the Article 18 of the Constitution, 1973. As a result of the above discussion, we accept this petition and the reliefs in the petition are granted as prayed. We would also like to observe that the respondents will be fully entitled to take any legal action as provided in the Ordinance, 1981, to proceed against the petitioner, in case if he commits any violation of the Ordinance, 1981 or any of the Rules framed thereunder but keeping in view all the observations made hereinabove. With these observations, this petition stands allowed with no order as to costs.