The petitioners through this Constitutional petition has challenged the Order No,178-GD/HC/G, dated 14-4-1997 passed by the learned District Magistrate, Muzaffargarh under section 144, Cr.P.C.
Whereby he has prohibited the playing of snooker, billiards and video games within the revenue limits of Muzaffargarh District except from 2 p.m. To 10 p.m. Each day during the duration of the said order on the ground that he has been made to believe that the excessive playing is causing moral deterioration among youngsters and leads to frequent abstentions from academic institutions and is likely to disturb public peace and tranquility besides wasting of lot of time and money unnecessarily, and that in his opinion, immediate prevention is desirable and there are sufficient grounds for proceeding under section 144, Cr. P
2. Briefly facts of the case are that the petitioners have established the indoor games of sanooker and billiards in the name and style of Hot Short Snooker and Billiard Club, Champion Snooker and Billiard and Saqib Snooker and Billiard Club in the revenue estate of Muzaffargarh District and are peacefully running and controlling the same for the last more than two years. Respondent No,2, the learned District Magistrate, Muzaffargarh issued the order, dated 14-4-1997 as detailed in the preceding paragraph. Upon this, the petitioners moved an application to learned respondent No,2 in terms ofsubsection (4) of section 144, Cr.P.C. For recall of the order, dated 14-4-1997 on the grounds that it was violate of not only Article 18 of the Constitution but also it was opposed to the basic spirit enshrined in section 144(1), Cr.P.C. Which was neither attended to nor a chance of hearing -was given to the petitioners; hence this petition.
3. Learned counsel for the petitioners has challenged the order on the grounds that it is without notice, lacks material facts justifying absolute necessity of such an order and is violative of Article 18 of the Constitution.
4. On the other hand, learned Additional Advocate-General has opposed this petitioh and tried to justify the impugned order of the learned District Magistrate on idealistic and moral grounds.
5. I have again consideration to arguments on both the sides. From a perusal of paragraphs 1 and 2 of the impugned order, it is clear that it was passed under subsection (1) of section 144, Cr.P.C. The said paragraph read as under:-- "Whereas, I have been made to believe that the excessive playing of video games, snookers and billiards is causing moral deterioration among youngsters and leads to frequent abstentions from academic institutions and is likely to disturb public peace and tranquillity besides wasting of lot of time and money unnecessarily.
(2) And whereas, in my opinion, immediate prevention is desirable and there are sufficient grounds for proceeding under section 144, Cr.P.C., 1898 and the directions hereinafter appearing are necessary to prevent the minds of youngsters from being distracted and disturbed."
The circumstances which prompted the learned District Magistrate to pass the impugned order do not disclose that the prohibition was necessitated by a situation of emergency. In subsection (2) of section 144, Cr.P.C. The words used are "an order under this section may, in case 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". A perusal of the c impugned order does not in any way disclose that the circumstances so warranted to dispense with the issuance of a notice. According to the learned counsel for the petitioners an application in terms of subsection
(4) of section 144, Cr.P.C. Was made by the petitioners but that was neither attended to nor an opportunity of hearing was given to the petitioner. Subsection (5) of section 144, Cr.P.C. Provides for giving an opportunity to the party concerned for appearing before the Magistrate either in person or by a pleader and of showing cause against the order. It further enjoins upon the Magistrate to record his reasons in the event of his rejecting in whole or in part an application of the party concerned showing causing against the order. The rule of natural justice of giving a hearing to a party to be affected by an order at least after it is passed, if circumstances do not permit giving a prior hearing, has been incorporated in the section with utmost care, reflecting any anxiety of the Legislature to ensure that orders under the section are not passed by Magistrate without informing themselves of the version of parties to be affected or at least making it possible for the Magistrate to correct erroneous orders against parties passed in ignorance of their version of the case. So, the order passed in violation of subsections (2) and (5) of section 144, Cr.P.C. Is bad in law. For this view, I am fortified by the case of Rani Bilkis Bano and another v. Syed Nurul Alam 1968 PCr.LJ 619. It is a settled principle of law that rules of natural justice are to be read into every enactment. Without any report from all the educational institutions in the District about absence of students from schools during study hours being caused by the games in question how the learned respondent No,2 has come to the conclusion that playing of games amounts to wastage of lot of time and money unnecessarily and frequent abstentions from the educational institutions is likely to disturb the public tranquillity. The apprehension is, therefore, unfounded in fact and insufficient in law. The impugned order is also in clear violation of Article 18 of the Constitution which reads as under:--
18. Freedom of trade, business or profession.--- Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful trade or business: ' Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, or any trade, business, industry or service, to the exclusion, complete or partial, of other persons."
Admittedly the petitioners are carrying on the business of playing snookers, billiards and video games for which no licence is required nor does the Federal or Provincial Government in any manner control or regulate the said business.
6. In view of what has been discussed above, this petition is allowed. Resultantly, the order of the District Magistrate, Muzaffargarh, dated 14-4-1997 is declared to be without lawful authority and of no legal effect.