' This petition under Article 199 of the Constitution has been filed for issuance of a direction to the Water and Power Development Authority "to observe and maintain the load shedding hour for the duration of 9-30 p.m. On 20-1-1995 to 3-30 a.m. On 21-1-1995, except medical and industrial units".
While arguing the case, learned counsel also made an oral prayer that kite flying on the occasion of 'basant' may be banned by order of the Court.
2. In support of his case, learned counsel raised three contentions, First, kite flying is done to celebrate 'Basant' which is a Hindu festival, it is repugnant to Muslim culture and society and, therefore, Muslims living in Pakistan should not be allowed to celebrate 'Basant' festival. Secondly, the kite flying on the occasion of the 'Basant' is usually done on the roofs of houses/buildings and people play deck, tape-recorders, drum beating and even resort to firing, during the whole night, which causes nuisance. Thirdly, kite fliers use iron and metal wires, resulting into electric brake- downs and many people especially children suffer deaths and injuries on account of falling on the ground from the roof tops. The submission of the petitioner is that if WAPDA authorities resort to load shedding during the whole night i,e, from 9-30 p.m. To 3-30 a.m. The people shall be saved from the nuisance and other dangers of the kite-flying, during the 'Basant' night. He, however, submitted that load shedding should be so arranged that the hospitals and the industrial units may not be affected by the load shedding.
3. When the case come up for preliminary hearing on 17-1-1995, I enquired from the petitioner to explain whether kite-flying in Pakistan, especially on 20-1-1995 has any nexus with the Festival of 'Basal t Panchmi' of the Hindus and whether it is a religious festival. I also enquired from him whether any rituals are performed on that occasion and whether kite-flying is banned under any law. Learned counsel obtained a short adjournment to prepare himself to address the Court on the above and other questions raised in the petition.
4. The learned counsel has appeared today and assisted the Court in tracing the history of kite- flying. He has referred to the Encyclopaedia American, International Edition. According to it, kite- flying is not restricted to India. On the other hand, it originated in China about 1,000 B.C. And later on it spread eastward to the Pacific Islands and westward to Arabia. The relevant portion appearing at page 492 is reproduced below:--- "No one knows exactly when or where the kite was invented; probably in China or Southeast Asia about 1,000 B.C. By about 500 A.D. It had spread eastward to the Pacific Islands and Westward to Arabia. It did not appear in Europe until the end of the Middle ages although there is evidence for a kind of kite like flying wind sock before that time. The two stick flat kite is first depicted in Dutch Illustration in 1618, evidence that Dutch invaders were important in bringing this form of kite to Europe from the Far East."
' He also referred to the New Book of Knowledge registered in United States Patent Office. According to this book, the word 'kite' is the name of a bird of the hawk family, known for its grace in the air.
The history of kites is described in the following words at page 266-B:--- "HISTORY OF KITES: ' No one is sure who invented the kite. Some historians believe it was invented by a Greek named Archytas about 400 B.C. Others believe it was invented 200 years later by Han-Sin, a Chinese General. But we do know that making and flying kites have been popular pastimes in China, Japan, Korea, and other countries of the Far East for many hundreds of years and still are today.
' In China the ninth day of the ninth month is known as Kites Day, or the Festival of Ascending on High. It is the tradition for people of all ages to fly kites on that day.
' In Japan Children's Day is celebrated on May 5. Each family flies a fish kite from a bamboo pole in front of the house for each boy in the family. The Japanese also enjoy a sport known as Kite fighting. Large number of people play at one time. Each kite flier coats a portion of his kite string near the kite with a mixture of powdered glass and glue. When all the kites are in the air, a player tries to cross and cut the string of another kite with a sharp, glass-coated part of his own string.
' Flying kites is a popular hobby in many countries of the Western World, too. In the United States, kite tournaments are held in a number of cities each spring. In Europe and the United States, kites have also been used in scientific experiments and have been put to practical uses in both peace and war".
' New Age Encyclopaedia, Vol.10 gives history of the kite flying in the following words:--- "Kite flying.--The kite in its commonest form is an aerial toy, consisting of a framework of two or more sticks covered with paper or cloth and flown at the end of a string. Kites, shaped like birds, bats, other animals, and idols, have been flown since the beginning of recorded history for fun, as part of festivals, in forms of worship, for scientific purposes such as carrying meteorological instruments, and even to hoist men aloft as observers in directing artillery in warfare. In the mid20th century kites have taken new shapes with the introduction of the Regallo non-rigid type, which functions at the outset as a balloon and then as a traditional kite, when its wings take over in a current of air. Methods of flying kites remain basically the same, regardless of the type of kite used. Representative varieties of kites include the familiar box kite. Malayan diamond type and French Military kite a flat kite with two vanes. Wind of at least 1 mph is required, which can be created if necessary by easting the kite into the air in a manner similar to easting with a finishing rod. The traditional means of raising a kite-by leading it into the wind is still the best. The direction of the wind can often be determined by observing the flight of smoke from chimneys. Kites should not be flown in the vicinity of high tension wires, nor should they be flown in the rain, despite Benjamin Franklin's example of using a kite in studying the electrical nature of lightning.
' Although the United States is an acknowledged leader in kite production, the glazed string used in kite fighting to cut an opponent's kite string is not available to U.S. Followers of the sport. It is India's secret weapon in this form of competition, nevertheless, Indian Kites are much more handsome than practical in actual use."
' According to the Urdu Encyclopaedia published by Ferozesons Limited, 'Basant Panchmi' is a festival which is celeberated in the month of 'Magh' on the 5th Lunar day. 'Basant' means 'Bahar' and since it is celeberated on the 5th day, therefore, it is called 'Basant Panchmi'. In the Sub- Continent it is considered to be the end of severe winter and symbolically it heralds the start of the spring season. This Encyclopaedia does not say that it is a religious festival of the Hindus or any rituals are performed by them on that day.
5. From the above history of kite flying it is more than clear that kite flying is not confined to India alone. It is a worldwide popular pastime from East to West. Kite flying is very popular in China, Japan and other far-eastern countries. Similarly, in the West also it is a popular game. In Japan kite fighting is a sport played in the same manner as it is done in Pakistan. Each kite flyer coats the string with powdered glass and glue and tries to cut the string of other kite.
6. The learned counsel has not been able to show that Basant' kite flying in Pakistan has any nexus with the celeberation of Hindu Festival. Admittedly, no rituals are performed nor it is done on any fixed day, as may be done by the Hindus in India. Different dates are fixed for different cities in the Punjab by the kite fliers associations, for Basant kite flying. Thus the irresistible conclusion is that in Pakistan, particularly in Punjab, it is a seasonal festivity to herald the spring and say goodbye to the winter season. It is cultural in nature and wedded to the soil rather than to have any religious connections.
7. Next question to be considered is, whether the relief claimed in the present petition can be granted under Article 199 of the Constitution. Unfortunately, in a large number of cases, petitions are filed recklessly without considering whether this Court has jurisdiction to grant the relief or not.
This extraordinary jurisdiction of the High Court has a limited scope. Article 199 of the Constitution is reproduced below:--- "199.---(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, (a) on the application of any aggrieved party, made an order---
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do;, or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order---
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 to Part II.
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged...."
' From the language of this Article, it is clear that this Court can interfere in the following circumstances:---
(i) Where the public functionary has failed to perform his duty which is required of him to be done under law, or
(ii) Where he has done something which he was not permitted by law to do.
In other words this Court can issue an appropriate direction to the State or a State functionary so as to compel him to do something which it is his duty to do or restrain him from doing that he is not permitted by law to do. In Muhammad Yousaf v. The Collector of Sea Customs, Karachi and others PLD 1969 SC 153 following observations were made in this behalf:--- '...Article 98 confined the jurisdiction of the High Court to give directions and making declarations for implementing the provisions. Of law invoked in a given case while under Article 170 the High Court could make any direction and make any order beside issuing the writs named therein. In other words High Court cannot give a direction which is not specifically provided for in law."
Article 98 of the 1962 Constitution and Article 199 of the 1973 Constitution are couched in similar language. In order to succeed in a Constitutional petition, relief claimed must confine on the touchstone of Article 199 of the Constitution. It will be in this context that the present writ petition will have to be examined.
8. Let me first deal with the oral prayer made by the learned counsel that kite flying on the occasion of 'Basant' should be banned by this Court. I am afraid this prayer is wholly misconceived. Unless there is some law in existence which bans kite flying, this Court cannot issue any direction to any authority or public functionary to stop people from flying kites. At the moment, there is no law or any instrument having the force of law under which kite flying is not permissible. At least, none has been brought to my notice by the learned counsel. Possibly, there may be some local bans on kite flying, such as near the aerodromes or grid stations but those are exceptional matters which are not involved in the present controversy and the observations made in the present order will not govern such cases. But, in those cases also there must be some prohibitory orders on account of which kite flying is not permissible in prohibited areas. So far as general kite flying in the country is concerned, be it on the occasion of 'Basant' or at any other time of the year, there is no law under which kite flying is prohibited, therefore, no direction under Article 199 of the Constitution can be made directing any authority or any person working in connection with the affairs of Federal or Provincial Governments to stop people from flying kites. Indeed such a direction, if issued, will be violative of Article 4 of the Constitution, which provides:---
(b) No person shall be prevented from or be hindered in doing that which 'is not prohibited by law, and
(c) No person shall be compelled to do that which the law does not require him to do."
The jurisdiction of the High Court under Article 199 itself is "subject to the Constitution". A direction that can be issued by the High Court under this Article has to be subject to Article 4 and other provisions of the Constitution. Therefore, a direction which can be issued under Article 199 of the Constitution, must not be to the effect that it would prevent or hinder any person in doing something which is not prohibited by law or to compel him to do which is not required by law to be done. As already observed, there is no law or other instrumentality under which kite flying is prohibited in Pakistan. Therefore, no person can be prevented from kite flying through State apparatus. In this analysis of the jurisdiction of this Court, the Executive cannot be directed to take steps to prevent people from kite flying.
9. The learned counsel has attempted to argue that even in the absence of any law prohibiting kite flying this Court can give directions to State functionaries to restrain people from flying the kites, in the larger interest of the society. It is submitted that vices that are witnessed on the occasion of 'Basant' kite flying are inconsistent with good morals in a civilised society. It is submitted that where the legislature has failed to frame appropriate law the Court can supplement the lapses of the legislature by issuing directions in the Constitutional jurisdiction. I am afraid this submission of the learned counsel is devoid of all force.
The system of governance as envisaged by our Constitution is based on trichotomy of powers to be exercised by three organs of the State, namely the legislature, the executive and the judiciary.
The functions of the three organs are distinct and separate and not overlapping. None can usurp the function of the other. To make laws is the exclusive function of the Legislature and to interpret the same is that of the judiciary. The law making by the judiciary is not countenanced by the Constitution. However, it can direct the executive to act in accordance with law framed by the Legislature. In this view of the matter, this Court under Article 199 of the Constitution can issue a proper direction when the Government or its officers or other functionaries of the State either overstep the limits of the power conferred by the statute or fail to comply with the conditions imposed by law. An order or a direction cannot be issued by the Court merely on moral grounds. It may be observed that if there is anything immoral or unethical in kite flying, the remedy lies in approaching the Members of the Legislative Assemblies for promulgating the appropriate law for banning kite flying or any other such activity. If the legislature makes a law prohibiting kite flying and the executive fails to perform its duty in prohibiting people frbm kite flying, only then the function of the Court will start. It wL be at that stage that a grievance can be made in this Court that the public functionaries may be directed to perform the duty to prohibit the kite flying, and it will only be then that this Court can competently make a suitable direction or order to the concerned functionaries of the State. It may also be observed that unfortunate practice that is growing these days is that every body runs to the High Court for every kind of direction under the sun without considering whether the direction prayed for can be competently issued or not. It must be realised that the Courts can act within the scope of their jurisdiction and not beyond that. Article 175 of the Constitution ordains that "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". The litigants and their learned counsel shall be well advised to consider they should ask for such relief as can be competently granted by Courts within the framework of law.
10. So far as the prayer for ordering load shedding during the whole night throughout Punjab is concerned, the requested direction cannot be issued for more than one reason. Firstly, the purpose of the load shedding will be to prevent people from kite flying. As already discussed above, WAPDA authorities cannot be compelled to resort to load shedding for this purpose because it will result in denying the right granted to the people under Article 4 of the Constitution that they cannot be prevented from doing that which is not prohibited by law. Secondly, the request for load shedding for the whole night throughout the Province is impracticable. From its very concept when there is shortage of electricity vis-a-vis its consumption electricity of a part of locality, is disconnected with a view to ease electric load on the other part, so that electric supply may remain within consumable limits. Stoppage of electricity in the entire Province is repugnant to the concept of load shedding. Thirdly, load shedding for the whole night is likely to result in more harm than the good sought to be done thereby. The purpose for making this prayer is indeed very laudable.
However, notwithstanding the vices and inconvenience, the nuisance and the danger highlighted, the stoppage of the electricity of the whole area of a city or a Province will result into much more dangerous situation. Darkness will result into thefts, dacoities, accidents and deprivation of comfortable living. Without electricity even for few hours people will face immense difficulty which in many cases will endanger human life. Think of a sick man who is on the operation table of the doctor. How can he be allowed to die under the Court direction by stopping the electricity for several hours. Take also the example of persons in lifts, or think of students who are to appear in examinations in the morning but they cannot study for want of light. Who will be responsible for the losses of the people. Of course these examples can be multiplied. It may thus be seen that stoppage of electricity as prayed for is neither practicable nor in the larger interest of the people.
11. Before parting with this case, it has to be observed that such like vices from the society cannot be eradicated through administrative/punitive actions. The desired result can be achieved by educating the masses, by persuading them to stop doing which is not good for them and to do which is healthy for the society.
12. The upshot of the above discussion is that the two reliefs claimed in the writ petition cannot be granted, being beyond the jurisdiction of this Court. Resultantly, this petition is dismissed in limine.