' The facts giving rise to the filing of this writ petition are as under:-- ' The petitioners Nos.1 and 2 are trade unions registered under the Industrial Relations Ordinance, 1969. Petitioner No,1 is an Association of Employers whose members include Managers and Officers of all Branches of Habib Bank Limited in Gujranwala Circle comprising Gujranwala, Gujrat and Sheikhupura District. According to the Constitution of petitioner No,1, its aims and objects include, inter alia, taking of necessary legal action for maintenance of the reputation and prestige of its members and improvement of their welfare, and providing material and legal assistance as and when required. Petitioner No,2 is a trade union of ' workmen and Collective Bargaining Agent, whose members include employees of Habib Bank Limited, City/Central Zone and other related offices in Gujranwala. Basic principles governing the work of petition No,2 include the ensuring of security and stability of service of its members in particular, and amelioration of their social, civic, cultural and economic conditions in general. Petitioners Nos.3, 4 and 5 are members of petitioner No,1 and petitioners Nos.6, 7 and 8 are members of petitioner No,2. They are Managers and Security Guards respectively, of branches of Habib Bank Limited at Jandiala Baghwala, Mandiala Tega and Mandiala Waraich, District Gujranwala. On 17-3-1998 the District Magistrate, Gujranwala, respondent No,1 passed an order under section 144 of the Code of Criminal Procedure, 1898 directing that the following instructions be complied with (in) the Revenue limits of Gujranwala District:-- "(i) No Manager or Incharge of a Bank of financial institution shall allow any person other than an employee of that Bank or institution without him having been thoroughly checked for purposes of such person having carrying any arms or explosive material.
(ii) No Manager or Incharge of a Bank or Financial institution shall allow entrance door of the institution unattended and without, having posted security guard over there."
2. The said order remained in force for a period of two months. Subsequently, .Respondent No,1 has passed a similar order on 9-6-1998, followed by/an identical order on 11-8-1998 and in both the last mentioned two Executive orders Jewellary shops, Money changers, Octroi posts and petrol pumps were also directed to adopt adequate security measures. According to the petitioners the orders, dated 17-3-1998, 9-6-1988, and 11-8-1998 have been passed by respondent No,1 on the directions of the Secretary, Home Department, Government of the Punjab, Lahore, respondent No,4.
3. Pursuant to the aforesaid orders under section 144 of the Code of Criminal Procedure, a wave of terror was said to have been unleashed against the petitioners by police authorities under the command of the Deputy Inspector-General of Police, Gujranwala Range, Gujranwala, respondent No,3. Cases under section 188, Pakistan Penal Code have been registered' against petitioners Nos.3 and 6 on 6-7-1998 vide F.I.R. No,720 of 1998 at Police Station Saddar, Gujranwala; against petitioners Nos.4 and 7 on 5-8-1998 vide F.I.R. No,288 of 1998 at Police Station Whando and against petitioners Nos.5 and 8 on 6-8-1998 vide F.I.R. No,379 of 1998 at Police Station Gujranwala Cantt. In all the F.I.Rs,, it has been alleged that instructions of respondent No,1 contained in the orders under section 144 of the Code of Criminal Procedure had been violated and the Managers (i,e, petitioners Nos.3, 4 and 5) and the security guards (ix, petitioners Nos.6, 7 and 8) had not made adequate security arrangements in their respective Branch premises. In the case of petitioners Nos.4 and 7, the case under section 188, Pakistan Penal Code was registered pursuant to a dacoity at the branch premises regarding which F.I.R. No,287, dated .5-8-1998 Police Station Wahndo was filed under section 392, Pakistan Penal Code. While petitioner No,3 managed to obtain bail before arrest, the other petitioners were arrested. They are now on bail.
4. Meanwhile, under cover of the order under section 144 of the Code of Criminal Procedure, members of petitioners Nos.1 and 2 posted at Habib Bank Limited Branches were harassed and threatened by the police authorities under respondent No,3, notwithstanding the fact that they are complying with relevant instructions and directions pertaining to Bank Security issued by the State Bank of Pakistan. In this atmosphere charged with fear and tension, since it had become impossible for members of petitioner No,1 and other staff to discharge their duties efficiently to the satisfaction of their superiors and the Bank's customers, members of petitioner No,1 vehemently protested against the illegal action and highhanded attitude of police officials under respondent No,3. As a result, most of the branches of Habib Bank Limited in. Gujranwala Zone were forced to close down for some time. Representatives of petitioner No,1 as well as officials of Habib Bank Limited have met the District Magistrate, Gujranwala, respondent No,1 and the Senior Superintendent of Police, Gujranwala, respondent No,2 and pointed out that security arrangement in the bank branches are naturally of paramount importance to them, that they are fully complying with instructions and directions of the competent authority mentioned above, and, while assuring them of their full cooperation in preventing bank-related crimes, have demanded that illegal harassm ent and interference in the duties being discharged by the members of petitioner No,1 Must cease. However, the order under section 144 of the Code of Criminal Procedure has not been recalled and harassm ent of members of petitioner No,1 continues unabated.
5. Aggrieved by the orders under section 144 of the Code of Criminal Procedure, dated 17-3-1998, 9- 6-1998 and 11-8-1998 (hereinafter referred to as the impugned orders), the petitioners filed this writ petition to get the same declared as illegal, without lawful authority and of no legal effect. In this regard they contended that the respondent No,1 has no jurisdiction to pass the impugned orders under section 144 of the Code of Criminal Procedure as orders under section 144 of the Code of Criminal Procedure can only be passed in "urgent cases of nuisance or apprehended danger", neither of which existed in the present case. There is no ground whatsoever for respondent No,1 forming an opinion that "there are sufficient grounds for proceeding under this section and immediate prevention or speedy remedy is desirable". In the presence of the instructions/directions of the competent authority (State Bank of Pakistan) relating to bank security, there is no grave emergency or any gap or lacunae in security measures/arrangements which the impugned orders can be deemed to meet/fill. In the circumstances the impugned orders could not be passed under section 144 of the Code of Criminal Procedure. They asserted that the impugned orders are illegal in that they are violative of the legislative intent. An order under section 144 of the Code of Criminal Procedure is a temporary order for two months' duration providing for immediate; stop-gap arrangements to meet an urgent/ emergent situation till permanent remedial measures are taken.
Since security measures/arrangements already exist in the form of instructions/directions of the State Bank of Pakistan, the impugned order, dated 17-3-1998 was unnecessary to begin with. Its repeated, mechanical extensions in the form of orders, dated 9-6-1998 and 11-8-1998, which are clearly attempts to give the instructions contained therein a permanent effect, are illegal and without lawful authority especially when the validity of the impugned orders has been extended by the Provincial government in exercise of powers under subsection (6) of section 144 of the Code of Criminal Procedure. They maintained that the respondent No,1 has no jurisdiction to pass the impugned orders containing instructions to Banks which under the Banking Companies Act, 1962 are under the general superintendence and control of the State Bank of Pakistan. The State Bank alone has the power to give directions to the Banks under sections 41 and 42 of the said Act.
Directions/instructions relating to Bank security measures have been issued by the State Bank of Pakistan to all Banks and are being complied with by the petitioners. The instructions contained in the impugned orders are not in line with the aforesaid directions/instructions of the State Bank of Pakistan, which the petitioners are obliged to follow especially when the petitioner's employer, Habib Bank Limited is also complying with the decision regarding security arrangements in banks taken in the meetings of the Presidents of major Pakistani Banks arranged by respondent No,2 with the Chief Minister, Punjab on 14-3-1997 and 14-7-1997 and thus, there is no justification whatsoever for the impugned orders, which have been issued by respondent No,1 by usurping jurisdiction not vested in him. They alleged that the police authorities under respondents Nos.2 and 3 are malafidely abusing and misusing the impugned orders to illegally harass, intimidate, maltreat and humiliate the petitioners and to cover up their inefficiency and negligence in preventing and tracing crimes in general and bank robberies in particular by ascribing the blame to poor security arrangements on the part of the banks and its officials. The impugned orders have been directed at, and are being used against, the "wronged" rather than "wrong-doers". They, asserted that the impugned orders have been passed ex parte which can only have been done under subsection (2) of section 144 (ibid) "in case or emergency or in cases where circumstances do not admit of serving in due time of a notice upon a person against whom the order is directed". This does not apply in the present situation, where there was no grave emergency preventing issue of notice to the banks/petitioners. Moreover, no notice has been served on the banks/petitioners even after passing of the impugned orders, that the impugned orders have been passed mechanically by respondent No,1 on instructions of respondent No,4 without considering the facts and law and that the proceedings initiated against petitioners Nos.3 to 8 through registration of F.I.Rs, based on alleged violation of the impugned orders are liable to be quashed, being illegal and void.
6. The writ petitioners accordingly prayed that the impugned orders may be declared illegal, without lawful authority and of no legal effect and that the registration of F.I.R. No,720 of 1998, dated 6-7-1998, Police Station Saddar, Gujranwala against petitioners Nos.3 and 6; F.I.R. No,288 of 1998, dated 5-8-1998 Police Station Wahndo, Gujranwala against petitioners Nos.4 and 7 and F.I.R. No,379 of 1998, dated 6-8-1998 Police Station Gujranwala Cann. Against petitioners Nos.5 and 8 be declared illegal and without lawful authority, and any proceedings taken pursuant thereto be quashed.
7. This petition has been resisted by the respondents.
8. The District Magistrate, Gujranwala and the Secretary, Home Department, Government of the Punjab, Lahore, respondents Nos.1 and 4, took up the stand in the comments and report that the impugned orders under section 144 of the Code of Criminal Procedure were passed for the security of bank officials/employees and the public-at-large to avoid any untowards incident of dacoity/disruption/looting etc. Keeping in view the prevailing law and order situation in the country while the bank dacoities had occurred, they took the stand that no harassment was created to the bank employees due to the promulgation of impugned orders. In the comments and reports, the respondents Nos.2 and 3 took the stand that they acted on the basis of the issuance of the impugned orders under section 144 of the Code of Criminal Procedure.
9. This writ petition stands admitted. The comments are treated as the written statements.
10. I have heard the learned counsel for the petitioners as well as Ms. Roshan Ara, Assistant Advocate-General for the respondents. The main contentions of the learned counsel for the petitioners are that the impugned orders passed under section 144 of the Code of Criminal Procedure were devoid of factual and legal considerations as there were no instances of urgent cases of nuisance or apprehended danger, that the impugned orders were violative of the legislative intent as the temporary order for two months' duration could not be made till the permanent remedial measures, that the District Magistrate, Gujranwala, had no authority to pass the impugned orders containing the instructions to the Banks which under the Banking Companies Act, 1962 are under the general superintendence and control of the State Bank of Pakistan, that the police malafidely abused and misused the impugned orders who illegally harassed, intimidated and maltreated the petitioners, that the impugned orders were passed ex parte in a mechanical order and that the registration of the F.I.Rs, based on alleged violation of the impugned orders are liable to be quashed being illegal and void. On the contrary, the learned Assistant Advocate- General expressed her inability to support the version of the respondents by expressing that the same have been passed in a mechanical order and the security measures were already being adopted by the bank authorities. However, she added that due to lapse of sufficient period, the writ petition has become infructuous especially when there is no grievance available to the petitioners.
I would express that the reasoning adopted by the learned counsel for the petitioners has to prevail. I hold the view that it is a case of public interest litigation and it is necessary that this dispute is determined to its logical end. Further the F.I.Rs, desired and required to be quashed are still holding the water and the fate of the same is also based on the validity of the impugned orders passed under section 144 of the Code of Criminal Procedure.
11. It is proper to reproduce section 144 of the Code of Criminal Procedure as under:- "144. Power to issue order absolute at once in urgent cases of nuisance or apprehended danger.--- (1) In cases where, in the opinion of a District Magistrate, Sub-Divisional Magistrate, or of any other (Executive Magistrate), specially empowered by the Provincial Government or the District Magistrate to act under this section, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in manner provided by section 143, direct any person to abstain from a certain act or take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health 'or safety, or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases 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.
(3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
(4) Any Magistrate may either of his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predcessor-in-office.
(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the orders; and if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.
(6) No order under this section shall remain in force for more than two months from the making thereof, unless in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the Provincial Government, by notification in the official Gazette, otherwise directs."
12. First of all relying Hakim Khan and others v. The State PLJ 1990 Cr.C. (Pesh.) 596 (DB) and Gulab Din and others v. The Azad Jammu and Kashmir Government PLD 1960 Azad J&K 51 I have to express the view that an order under section 144 of the Code of Criminal Procedure has got to be in the form` of an injunction asking a person to obstain from a certain act and not to be in the form of a mandatory injunction to do a certain act. In the instant matter perusal of the impugned orders had made out that mandatory injunction was issued to do the certain act mentioned therein and the impugned orders could not remain in the field even though the time has elapsed.
13. Perusal of section 144 of the Code of Criminal Procedure has made out that the order thereunder can only be passed in urgent cases of "nuisance or apprehended danger" There is nothing on record to establish the exact aforesaid condition in the instant matter as respondents did not bring on record any material in this regard. Without the presence of sufficient ground for proceedings under section 144 of the Code of Criminal Procedure and immediate provision of speedy remedy, the order under section 144 of the Code of Criminal Procedure could not be passed.
14. The aforesaid three consecutive orders have been impugned by the petitioners. According to the dictum enunciated in Ram Narain Sah and another v. Parmeshar Parsad Sah and others AIR
(29) 1942 Pat. 414, the Magistrate has no jurisdiction to make an order for the renewal of the original order under section 144 of the Code of Criminal Procedure and it is not open to him to evade subsection (6) of section 144 of the Code of Criminal Procedure by repeating the order under section 144 of the Code of Criminal Procedure. It is a case of violation of mandatory provision of section 144(6) of the Code of Criminal Procedure as the District Magistrate proceeded in the matter continuously for three times and his action in the matter cannot be approved being violative of the aforesaid law. In this respect, the reliance is placed on Niaz Muhammad and 10 others v. The District Magistrate, Bahawalpur PLD 1975 BJ 36 wherein it has specifically been held that the orders of similar nature successively made under section 144(1) of Criminal Procedure Code on short intervals are violative of provisions of section 144(6), Criminal Procedure Code and, therefore, illegal.
15. Learned counsel for the petitioners has referred to sections 41 and 42 of the Banking Companies Act, 1962 which relate to the powers of the State Bank of Pakistan to give directions and revolve around the further powers and function of the State Bank. According to him the directions to the Banking Companies are to be issued by the State Bank and that the District Magistrate has no concern in this regard who even cannot interfere in the matter on the ground of the worsening of the law and orders situation. In this regard he has referred to the report on Bank Security wherein direction about the removal of the problems of the instant nature of the Banks have been incorporated. The detailed instructions have already been issued which are workable which are not being incorporated in this judgment as aforesaid report is that of confidential nature. The duties of the Guards have also been specifically mentioned therein and the position of the Guards incorporated therein has been changed while issuing the orders under section 144 of the Code of Criminal Procedure by the District Magistrate, Gujranwala, respondent No,1 . I would hold that the District Magistrate, Gujranwala has no jurisdiction to change the measures provided by the State Bank towards security of the Banks. Thus, it is a case of transgression of authority on the part of the District Magistrate, Gujranwala.
16. Last of all it can safely be held that the impugned orders have been mechanically passed. The admitted position is that the petitioners were not heard before passing the impugned orders who have been condemned unheard and have not been provided the chance to place instructions of the State Bank of Pakistan before the District Magistrate, Gujranwala. The petitioners were not the wrong-doers and through the passing of the impugned orders they have been wronged which is not the intention of the issuance of the prohibitory order under section 144 of the Code of Criminal Procedure.
17. At this stage it is proper to refer to Act II of 1999 (Punjab Shops and Establishments (Security) Act, 1999) which is being reproduced as under in toto:-- PUNJAB SHOPS AND ESTABLISHMENTS (SECURITY) ACT, 1999 An Act to provide for the Security of Shops and Establishments [Gazette of Punjab, Extraordinary, 4th February, 1999] ' No, Legis.2(37)/98/112, dated 4-2-1999.---The Punjab Shops and Establishments (Security) Bill, 1999, having been passed by the Provincial Assembly of the Punjab on 28th January, 1999 and assented to by the Governor of the Punjab on 1st February, 1999, is hereby published as an Act of the Provincial Assembly of the Punjab .
' Preamble.---Whereas it is expedient to provide for the security of shops and establishments; ' It is hereby enacted as follows--
(1) Short title and commencement.--- (1) This Act may be called the Punjab Shops and Establishments (Security) Act, 1999.
(2) It come into force at once.
(2) Security of Establishments.--- The Government may by order provide for the regulation of and enforcement of measures for the security of the property and persons connected with an Establishment.
' Explanation.-- In this Act 'Establishment' includes-
(i) a bank, a money changer or a financial institution; and
(ii) any office, firm, company, institution, industrial unit, undertaking, shop or premises which undertakes any business, trade, manufacture calling service employment or occupation.
(3) Penalties.--- If any person contravenes any order made under this Act he shall be punished with imprisonment which may extend to one month or with fine which may extend to fifteen thousand rupees or with both and if the offence continues the Establishment may be kept sealed till such time the order is complied with.
(4) Rules.--- The Government may make rules to give effect to the provisions of this Act.
(5) Repeal.--- The Punjab Shops and Establishments (Security) Ordinance, 1999 (II of 1999) is hereby repealed."
18. I express my full agreement with the learned counsel for the petitioners who canvassed before me that the promulgation of the aforesaid new codified law has made out that the Government was itself conscious that the impugned type of orders passed under section 144 of the Code of Criminal Procedure were/are illegal, without authority and unsustainable. The District Magistrate, Gujranwala cannot exercise the legislative powers through the issuance of impugned successive orders. I would further hold that the aforesaid Act No,II of 1999 is subject to the instructions of the State Bank of Pakistan which have been/are issued about the position of Guards and other workable conditions directed thereof in the smooth running of Banking Business by the Banks.
19. The conclusion which can be drawn from the aforesaid state of affairs and discussion would be that the impugned successive orders, dated 17-3-1998, 9-6-1998 and 11-8-1998 passed by the District Magistrate, Gujranwala, respondent No,1, under section 144 of the Code of Criminal Procedure are without lawful authority, illegal and of no legal effect. In consequence the registration of F.I.R. No,720, dated 6-7-1998 at Police Station Saddar, Gujranwala, against petitioners Nos.3 and 6, F.I.R. No,288, dated 5-8-1998 at Police Station Wahndo, District Gujranwala, against petitioners Nos.4 and 7 and F.I.R. No,379, dated 6-8-1998 at Police Station Gujranwala Cantt. Against petitioners Nos.5 and 7 are also held to be illegal and without lawful authority. Consequently, the aforesaid F.I.Rs, and the proceedings taken pursuant thereto are quashed forthwith.
20. This writ petition is accepted with costs which stands disposed of in the aforesaid terms.