' MALIK MUHAMMAD OAYYUM, J.--This appeal under section 3 of the Law Reforms Ordinance, 1972 calls in question an order dated 28-2-1993 of a learned Single Judge of this Court whereby W.P.
No,1520 of 1993 filed by the appellant was dismissed in limine.
2. In the Constitutional petition, the appellant who is a resident of Darya Khan had challenged order of the District Magistrate, Bhakkar passed on 14-3-1992 whereby the permission granted by him on 14-3-1992 for use of loudspeakers in the mosque was withdrawn.
3. In support of this appeal, the learned counsel for the appellant has relied upon subsection (2) of section 2 of West Pakistan Regulation and Control of Loudspeaker and Amplifier Ordinance, 1965 to contend that the provisions of subsection (1) of section 2 prohibiting the use of loudspeaker or sound amplifier have no application to loudspeakers used in a mosque for the purposes of Azan, prayers and Khutba.
4. Learned Additional Advocate-General Punjab has, however, defended the impugned order of the District Magistrate by contending that the loudspeaker was being misused for provoking sectarianism which resulted in serious law and order situation and even murders and as such the District Magistrate was obliged to withdraw the permission to use the loudspeaker in the mosque.
5. Having heard the learned counsel for the parties and perused the record, we are clearly of the view that the prohibition imposed by the District Magistrate on use of loudspeaker for the purposes of Azan, prayers and Khutba which are essential . Concomitants of prayers in the mosque is not permissible under the law nor can it be countenanced. Indeed subsection (2) of section 2 of West Pakistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance, 1965 itself provides that nothing contained therein shall apply to the use of loudspeaker for the aforesaid purposes. It is unfortunate that this aspect of the matter was totally ignored by the District Magistrate while passing the impugned order.
6. There may be some merit in the contention of the learned Additional Advocate-General, Punjab that it was on account of law and order situation created because of the secterian speaches that the prohibition on use of loudspeaker was imposed. But then the remedy lay in ensuring that the loudspeaker was not misused but not completely prohibiting its use even for the purposes of Azan, prayers and Khutba. It may also be noticed that section 2(d) of the Ordinance, 1965 itself clearly prohibits the use of loudspeaker for certain purposes including inciting sectarian feelings.
Consequently, the District Magistrate would have been well-advised to proceed against the miscreants for the misuse of the loudspeaker rather than imposing complete ban on the use of loudspeaker for the purposes of Azan, prayers and Khutba which was clearly violative of section 2 of subsection (1)(d) of the Ordinance, 1965 as also the Fundamental Rights to practise and profess religion as enshrined in Article 20 of the Constitution of Islamic Republic of Pakistan, 1973.
In view of what has been stated above, this anneal is allowed; the impugned order of the learned Single Judge is set aside and the order of the District Magistrate, Bhakkar is declared to be without lawful authority and of C no legal effect so far as it relates to the use of loudspeaker or sound amplifier for the purposes of Azan, prayers, Juma prayers, and Eid prayers. It is, however, clarified that in case loudspeaker in question is misused or utilized for the purposes for which is was not meant, it shall be open to the respondents to take such action as may be permitted by law.
No order as to costs.