SARDAR MUHAMMAD RAZA KHAN, J.--- Syed Abdur Rehman's Shah son of Syed Shah Muhammad of Mansehra, through this petition under Article 199 of the Constitution, has challenged the restriction imposed by the District Administration of Mansehra regarding the taking out of "Zuljinah" and "Alam" procession by Shia sect of Muslims on the 10th of Moharram-ul-Haram. The District Administration of Mansehra imposed restrictions ostensibly under section 30 of Police Act (V of 1872).
2. The factual background of the matter is that the Shia sect of Muslims in Mansehra used to take out the religious procession aforesaid from their Imambargah at Mufti Abad, Mansehra up to the Filling Station of Khan Haroon Badshah Khan at Shinkiary Road. The route covered a distance of about 400 meters. About 150 metres, commencing from Imambargah up to the Link Road passes through a narrow street, about 6 feet were while the route measuring beyond and up to the destination is 250 metres long on the Link Road.
3.Some unfortunate trouble arose between Shia sect and the Sunni sect. The sunni Union of Anjaman-e-Sippa Sahaba entered into an agreement, dated 21-7-1991 (Annexure "P") subsequently endorsed on 15-6-1992 (Annexure "Q") whereby different settlements were made inclusive of the clauses, inter alia, that the, Shia sect will not take out any procession on any road on the 10th of Moharram-ul-Haram and secondly that in their gatherings no "Ulema" shall participate, from outside Mansehra. This has aggrieved the Shia sect and hence this petition.
4.It is a matter of common knowledge, not restricted to any sect or religion that right to profess or practice any religion is a fundamental right of every citizen guaranteed by Article 20 of the Constitution. Such right cannot be denied to a citizen merely because it is objected to or opposed by some one A belonging to a different religion or sect. It is also totally inconceivable that a right guaranteed by Constitution to the citizen would stand curtailed or restricted by an inferior legislation like section 30 of the Police Act.
5.A perusal of section 30 would indicate that the taking out. Of a procession, even in case where breach of peace is apprehended, is not forbidden under section 30 of the Police Act. The only restriction laid down under such eventuality is that the sect intending to take out such procession, in case of apprehension of breach of peace, shall apply to the Authority concerned for a licence to be issued under section 30 of the Police Act. If such procession intended to be so taken is not unusual, based on mala fides and intended to be taken for ulterior motives and purposes, the Authority concerned can put certain reasonable and bona fides conditions. Mere fact that the route which procession 8 had to follow was predominantly resented or occupied by people of other religions or sects is no ground at all for refusal to grant the licence. Such absolute refusal is obviously without lawful authority. Keeping of law and order, however, in the words of Mr. Justice Naseem Hasan Shah of Lahore High Court (as he then was), was not to be secured by refusing citizens their right of assembling and forming processions.
6. Such conduct of the Authorities was appreciated by our own High Court in Malik Ghulam Yousaf v. District Magistrate, Attock decided on 26-3-1968 1995 M LD 1510 and by Lahore High Court in Muhabit Ali v. The District Magistrate, Campbellpur PLD 1976 Lah. 755 and Muhammad Hussain Bhatti v. District Magistrate, Gujrat 1985 PCr.LJ 301. The view takes support from the verdicts of Supreme Court in Syed Sarfraz Hussain Bukhari v. District Magistrate, Kasoor PLD 1983 SC 172. The law does not lay down a total prohibition or outright refusal to take out religious procession to observe or to participate in religious ceremony, for all times to come.
7. Apart from the afore discussed circumstantial as well as legal aspect of the case, the present order of the District Administration impugned through the writ petition in hand is all the more unconventional, unprecedented and unjustified because it was passed by entering into an agreement with a different sect and of which agreement the Shia sect was not a party. It does not require any quantum of reasoning to hold that a person is not bound by an agreement to which he is not a party and two or more different parties to an agreement cannot bound a third person to perform the conditions of such agreement to which that C third person is not a party.
8. Consequently, the writ petition is accepted and it is hereby declared that the agreements, dated 21-7-1991 and 15-6-1992 entered into by the Administration with a third party, curtailing or restricting the religious procession of 10th Moharram-ul-Haram etc. Is not binding upon the petitioner Shia sect. That in case of any apprehension of breach of peace qua the taking out of any such procession, the petitioner sect shall apply for a licence under section 30 of the Police Act whereupon the Administration shall act in accordance with law and justice.