' The petitioner Watan Party through its District President, Lahore, has challenged the imposition/extension of ban on pillion riding on motorcycle and scooters by the Government of the Punjab under the provisions of section 144, Cr. P. C .
2. The learned counsel for the petitioner argued that the notification of the Government is violate of the fundamental right of the citizens as guaranteed by Article 24 of the Constitution of Islamic Republic of Pakistan and the Declaration of Human Rights. It was submitted that the ban on the pillion riding on motorcycles was without any legal justification or any emergency. He argued that not a single act of terrorism or any heinous offence had been committed by the use of the motorcycle. The provisions of section 144, Cr.P.C. Could not be made applicable by the State to the infringement of the rights of the citizens to use their property/motoricin the manner they liked. The learned counsel argued that the prohibition on the use of motorcycle/scooters was unconstitutional as it amounted to acquisition of property without payment of compensation by the State and was violate of Article 24 of the Constitution of Pakistan.
3. Orr the other hand, the learned Advocate-General, Punjab, argued that the ban on the pillion riding imposed in the early 1997 was being extended by the Government of the Punjab from time to time by successive notifications in order to discourage the terrorist acts and the commission of other heinous offences by pillion riding of motorcycles. The restriction was of a temporary nature and the ban would be lifted as soon as the law and order situation in the Province improved. The learned Advocate-General further pointed out that a number of persons including highly placed functionaries of the State were assassinated by. Pillion riders on motorcycles. The assassinations of late Syed Tajamul Abbas, Commissioner, Sargodha Division, Capt. Ali Raza, Deputy Commissioner, Khanewal, Mr. Justice (Retd.) Muhammad Munir Khan, Provincial Ombudsman, Punjab, Mr. Usama Maud, Secretary to Government of the Punjab, Ch. Muhammad Ashraf Marth, Superintendent of Police, Gujranwala, Muhammad Ali Balch, Superintendent of Police, Range Crime, Faisalabad and Mian Muhammad Arshad, Advocate of this Court were cited as instances in which the terrorist acts were committed by pillion riders on motorcycles. The learned Law Officer stated that the ban on pillion riding did not in any way violate Article 24 or any other provisions of the Constitution of Islamic Republic of Pakistan. The learned Advocate-General relied on the case of Altaf Shakoor and 4 others v. The Government of Sindh through Secretary, Home Department and 4 others 1995 PCr.LJ 615 (Karachi D.B.) in support of his contention that a similar ban of pillion riding on motorcycles imposed in Karachi under section 144, Cr.P.C. Had been upheld by a Division Bench of the Sindh High Court.
4. I have heard the learned counsel for the parties at length. The first order of the Government of the Punjab, Home Department, under the provisions of section 144 of the Code of Criminal Procedure, 1898, was notified on 30th April, 1997. The prohibition on the pillion riding of persons on motorcycles and scooters within the Province of Punjab was imposed. The said notification reads as under:-- ' Whereas, it has been made to appear to me that in the recent months there has been an increase in the incidence of crimes which have been committed by the motorcyclists. Such activities apart from vitiating the peaceful environment of the Province has inculcated a sense of insecurity amongst the people. This poses a hazard and threat to peace and tranquility of the people of Punjab.
(2) And whereas, in my opinion there are sufficient grounds to proceed under section 144 of Criminal Procedure Code, 1898 as an immediate prevention and speedy remedy is desirable and directions hereinafter appearing are necessary to prevent disturbance of public peace and tranquility and danger to human life and property.
(3) Now, therefore, I Shahzad Hassan Pervez, Home Secretary, Punjab, in exercise of the powers conferred upon me under section 144, Cr.P.C., 1898, do hereby prohibit the pillion riding of persons on motorcycles and scooters within the limits of the Province of Punjab.
' This order shall not apply to the Armed Forces and Police Personnel in uniform.
(4) This order shall come into effect from 1st May, 1997 and shall remain in force for a period of two months.
(5) The order shall be given wide publicity by publication in the local newspapers, in the office gazette and announcement over Radio and Pakistan Television.
(Sd.) Shahzad Hassan Pervez), Secretary to Government of Punjab, Home Department."
' The said ban was extended from time to time by various notifications of the Government, the last being that of 5th of December, 1998.
5. Under section 144 of the Code of Criminal Procedure Code, 1898, a District Magistrate, Sub-District Magistrate or any other Magistrate especially empowered by the Provincial Government if of the opinion that there is sufficient ground for proceeding for immediate preventive action and a speedy remedy, such Magistrate may, by a written' order direct any person to abstain from doing a certain act in order to prevent a danger to human life, safety or/and a disturbance of the public tranquility. By subsection (6), the Provincial Government may also step in, in the cases of a danger to human life or safety where such an order is to last more than two months. The use of the motorcycles in a number of incidents of terrorism and other heinous offences by pillion riding particularly in the thickly populated areas with advantage of speedy mobility and escape seem to have been taken into consideration by the District Magistrates and the Provincial Government while imposing/extending the ban. The notifications/orders by the Government have relevance and nexus with the safety of human life and public tranquility. The Government and their agencies must have found out the modus operandi which was commonly employed by the terrorists and other perpetrators of heinous offences by the pillion riding on motorcycles. A motorcyclist is naturally in a more advantageous position than a four-wheel driver to find an escape route even if there is a traffic-jam, narrow lane, etc., thereby minimizing the risk of being held-up or hauled up. The impugned action by the State is a temporary restriction being an emergency measure and is not likely to continue for an indefinite period. The notification under section 144, Cr.P.C. Is of a regulatory rather than confiscatory in nature. The motorcycles of their owners have not., been acquired. Only the use thereof has been regulated in a particular manner so as to secure the larger interests of society. There is no question of any violation of Article 24 of the Constitution the full play whereof- tin also be restricted by the, State by or under the law during the proclamation of emergency in the country by virtue of Article 233 of the Constitution of Islamic Republic of Pakistan.
6. The question of a similar ban was directly examined by a learned Division Bench of the Sindh High Court in the case of Altaf Shakoor and 4 others (supra) aptly relied on by the learned Advocate-General. It was held that prohibition of pillion riding on scooters/motorcycles was not unconstitutional or otherwise invalid.
7. In the cases of Zaheeruddin and others v. The State and others 1993 SCMR 1718, Khurshid Ahmad v. Government of Punjab PLD 1992 Lah. 1 an order under section 144, Cr.P.C. Prohibiting the Quadrants from holding a religious procession which was likely to cause danger to public peace, tranquility and danger to human life was sustained. It was observed that if the authorities had taken action under a valid piece of legislation in the interest of law and order, then unless it could be shown that the same was taken mala fide or without any lawful factual justification, the question of denial of fundamental rights of freedom of religion as guaranteed by Article 20 of the Constitution would not arise. In Karachi Building Control Authority and another v. Saleem Akhtar Rajput and 2 others 1993 SCMR 1451, the Honorable Supreme Court has taken the view that in the case of a conflict between a personal fundamental right and the larger public interest, the personal right must yield to the larger interest of society.
8. That nature, scope of amplitude of section 144, Cr.P.C. Had been considered by the superior Court in a number of cases. In Visvanadha Rao and others v. Emperor AIR 1928 Mad. 1049, a Full Bench of the Madras High Court made following observations:-- "The preservation of the public peace is a function of the Government and in the performance of that function, it may be necessary for them to override temporarily private rights. Where there is a conflict between the public interest and a private right, the former must prevail."
9. In Ram Gopal Goenka v. Narayan Das Chandra AIR 1928 Cal. 446, a Division Bench of the Calcutta High Court has held that though a person has an absolute right to use his property as he pleases, yet, if the mode of enjoyment of his property, innocent and lawful through it might be, results or tends to result, in a series of acts which are likely to lead to a breach of the peace, an order under section 144, Cr.P.C. Restraining the person temporarily from enjoying the roperty in that way is amply justified.. In HariharSingh and others v. Emperor AIR 1934 Pat. 463, it has been observed that convenience is not necessarily a good criterion and, still less, a general criterion. High Court should be astute not to interfere with the exercise of his discretion by the District Magistrate in respect of which of the powers conferred on him by statute enabling him to ensure the peace of his district, he should exercise in a particular case. He is necessarily in a better position to say which of those powers called for by the situation confronting him at the crucial moment. It is enough that the action under section 144, Cr.P.C. Which he is taking is not illegal or definitely improper. In Hansraj Prasad Singh and others v. Abdul Jabbar and another AIR 1935 Pat. 461, an order by the District Magistrate under section 144, Cr.P.C. Against a person legally holding a but on his land was upheld with reference to the preservation of public peace and tranquility in the circumstances of the case.
It was further held that in a certain situation, the exercise of a lawful right can be regulated for the preservation of the public tranquility. In Shrimati Jasoda Lekhraj and others v. Emperor 182 Indian Case 698 (Sindh), it was observed that the Court was always very unwilling to interfere in the case of orders passed under the preventive sections of the Criminal Procedure Code. Those orders were largely of an administrative nature; they were concerned with the maintenance of the public peace and the prevention of breaches thereof for the maintenance of which the District Magistrate was responsible, and the needs of which he, as the responsible officer on the spot, was presumably in the best position to know.
10. In P.T. Chandra, Editor Tribune v. Emperor AIR 1942 Lah. 171, a Full Bench of this Court took the view that although the opinion of a District Magistrate under section 144, Cr.P.C. Was not absolute but the same was entitled to a great weight. In K. Murugappa Mudaliar and others v. Kuppuswami Mudaliar and others AIR 1949 Mad. 212, Abdulkadir Lebba Abdul Rahiman and others v. State and 2 others AIR 1952 Tr. Cochin 251, it has been held that in passing orders under section 144, Cr.P.C., the authorities will no doubt pay due regard to the observations contained in civil Court's judgment with regard to private rights but the paramount consideration should be that of maintenance of law and order. In Babulal Parate v. The State of Maharashtra and others AIR 1961 SC 884, the Supreme Court of India examined the Constitutional validity of the provisions of section 144, Cr.P.C.
And the nature of the orders passed thereunder. It was held that some of the objects securing which an order under section 144, Cr.P.C. Could be passed were to prevent obstruction, annoyance, injury, etc. In the public interest and the maintenance of public order which was a reasonable restriction within the meaning of the Constitution of India. It was further held that the anticipatory action under section 144, Cr.P.C. Was permissible and did not infringe the fundamental rights as long as it was a reasonable restriction and was not disproportionate to the situation sought to be prevented. Similar view was taken by the Indian Supreme Court in the subsequent cases of Madhu Limaye and another v. Sub-Divisional Magistrate, Monghyre and others v. State of U.P. And others AIR 1981 SC 2198.
11. For the foregoing reasons, I am not persuaded to interfere with the impugned action of ban on pillion riding on motorcycles/scooters being of a short duration having nexus with the maintenance of public safety and tranquility.
12. This writ petition being devoid of any merit is dismissed in limited.