' The petitioners who are residents of village D.Haular, Tehsil Tallagang, District Chakwal, being followers of Fiqa Jaffaria claim to have been taking out ' Alam procession' every year on the 14th day of Saffar. In 1992, impediments were allegedly created in taking out of the said procession.
Finally, through an agreement executed between the residents of village and the district, it was agreed that certain persons will take out Alam procession' from the house of Akbar Khan son of Ghulam Hussain and end the same at Imam Bargah of the village. The petitioners claim to had adhered to the said agreement in letter and spirit, but in the year 1993, certain persons tried to create law and order situation which gave rise to registration of two cases. The first case was registered on behalf of persons belonging to Ahl-e-Sunnat under sections 324,337-A(i) 295-A, 148 and 149 of Pakistan Penal Code at Police Station, Saddar, Tallagang. Likewise, Ahl-e-Tashee people got a case registered under sections 324, 505, 353, 295-A, 337-A (ii) (iii) vide F.I.R. No, 34, dated 4-8- 1993, at the aforesaid Police Station.
2. Later on, in 1994, the Assistant Commissioner, Tallagang informed the petitioners that they were not allowed to take out ' Alam procession' from village Dhaular. This order was challenged through Writ petition No,1147 of 1994. The said petition was disposed of by order of this Court, dated 25-10- 1994, on the basis of the statement of Assistant Commissioner who undertook to entertain the application from the petitioners for taking out Alain procession' and for its disposal according to law. According to the petitioners, they moved the district administration but their application was not responded. Again another application was moved on 16-8-1995, but received no answer from the concerned authorities. The petitioners, therefore, assailed the in action of the district administration through Writ Petition No,915 of 1996 claiming that the attitude of the district administration was violative of the petitioners' Fundamental Rights as enshrined in Article 20 of the Constitution. District Administration, Chakwal, thereupon, was directed for making immediate arrangements for providing the safe escort to the ' Alam procession' by seeking reinforcement of the administrative machinery, if wanted. This petition was also disposed of by this Court on 21-4- 1998, on the ground that no live issue was pending after the aforesaid directions, and thus, the writ petition had become infructuous,
3. Another petition, namely Writ Petition No,1029 of 1998, was filed wherein the main grievance of the petitioners was that the application for taking out ' Alam procession' made to the District Magistrate on 21-4-1998 was not being disposed of. In consequence thereof, directions were issued to the District Magistrate, Chakwal, for disposal of the said application by the 25th May, 1998, and the petition was disposed of accordingly. Another writ petition bearing No,1148 of 1998 was brought for similar relief but was withdrawn on 10-6-1998 on the ground of suspension of Fundamental Rights because of Proclamation of Emergency in the country.
4. The petitioners have now brought the instant Constitutional petition claiming that pursuant to earlier agreement between the two sects, the district administration and other persons should be restrained from resisting taking out of Alam procession' from the house of Akbar Khan to Imam Bargah Dhaular, Tehsil Tallagang, District Chakwal, and that the administration should settle the matter by fixing the route of the procession.
5. The petition has been opposed on behalf of the district administration mainly on the ground that no such permission can be given because of law and order situation prevailing in the area and that the grant of licence. For taking out the proposed Alam procession' would further aggravate the situation and give rise to riots, particularly because the majority of the residents of the village are followers of Sunni sect. The plea of the petitioners that in the past 'Alam procession' used to be taken out from village Dhaular was also controverted claiming that there had been no such practice or tradition of taking out procession on the 14th day of Saffar from that village. It was contended that in the year 1991, some persons had, for the first time, tried to take out 'Alam Procession' which was resisted and the 'Alam' could not be taken out. In 1992, with agreement of persons belonging to both the sects, in which statedly petitioner No,2 had also joined, it was settled that Alam procession shall not be taken out on the 14th of Saffar. In 1993, on the 10th Moharram an effort -was made to take out ' Alam' which was objected to by the persons belonging to Sunni sect giving rise to registration of a case under sections 324, 353, 332, 337-A(i). 148, 149 and 295-A of the Pakistan Penal Code. Again on the 14th Saffar, certain persons tried to take out a procession which led to an altercation between the two groups and registration of another case under sections 324, 506, 353, 295A, 337-A, (ii),(iii), 148 and 149 of the Pakistan Penal Code. For the next year, however, it was agreed even by petitioner No,2, that only majalis will be held on the 14th day of Saffar. This arrangement was followed in the year 1995 as well. The respondents claim that only in the year 1996, Alain procession' was allowed to be taken out under the supervision of local administration pursuant to the directions of this Court given in Writ Petition No,915 of 1996. Even the said procession was obstructed resulting into arrest of 43 persons.
6. Syed Zulfiqar Abbas Naqvi, Advocate, the learned counsel representing the petitioners contended that section 30 of the Police Act, 1861, does not empower the district administration to refuse the grant of licence as such refusal will violate the provisions of Article 20 of the Constitution.
In this respect, he referred to the provisions of section 30 of the Police Act, 1961. The said section is reproduced below:-- "30. Regulation of public assemblies and processions and licensing of same. (1) The District Superintendent or Assistant Superintendent of Police may, as occasion requires, direct the conduct of all assemblies and processions on the public roads, or in the public streets or thoroughfares, and prescribe the routes by which, and the times at which, such processions may pass.
(2) He may also, on being satisfied that it is intended by any person or class of persons to convene or collect an assembly in any such road, street or thoroughfare, or to form procession which would, in the judgment of the Magistrate of the District, or of the Sub-Division of a District, if uncontrolled, be likely to cause a breach of the peace, required by general or special notice that the persons convening or collecting such assembly or directing or promoting such procession shall apply for a licence.
(3) On such application being made, he may issue a licence specifying the names of the licencees and defining the conditions on which alone such assembly or such procession is to be permitted to take place and otherwise giving effect to this section: ' Provided no fee shall be charged on the application for, or grant of, any such licence."
7. It was contended that subsection (3) makes it clear that whenever an application is made for taking out procession particularly procession relating to religious ceremonies, administration or police are bound to grant a licence and the plea of deteriorating law and order situation, cannot be a ground for refusal of licence as it is the duty of administration to maintain peace and protect the lives of the persons taking out the religious processions ant those watching the same. In this respect, he referred to Syed Sarfraz Hussain Bokhari v. District Magistrate Kasur and others (PLD 1983 Supreme Court 172), wherein it was held as under:-- "The general right of the public to assemble and take out processions on public streets or thoroughfares is manifestly recognized in this law. In recognition of such a right certain statutory powers have been conferred on the District Superintendent and Assistant District Superintendent and the Magistrate of the District in the matter of prescribing the route, the timing and imposing regulatory conditions on the conduct of the assembly or the procession. The very power to direct an application for a licence is dependent on the jurisdictional fact that 'in the judgment of the Magistrate of the District or of the sub-division of a district' if such an assembly or procession is uncontrolled, it is likely to cause a breach of the peace. So, the likelihood of the breach of peace, in the absence of control, provides the jurisdiction to impose controls and conditions and that jurisdictional fact by itself cannot be made the ground for refusing the licence itself. There has to be something else e.g. Lack of bona fide, some ulterior motive or purpose manifestly established to account for refusal of a licence."
T' he learned counsel also referred to Syed Dilshad Hussain v. District Magistrate, Sialkot and another (PLD 1983 Lahore 97), wherein it was held that since the district administration had failed to substantiate its findings on the basis of material on the record, the grant of licence could not be refused on the ground that it would create law and order situation in the district nor in such situation the application for a licence can be declined. Similar principle was laid down in Muhammad Hussain Bhatti v. District Magistrate Gujrat (1985 PCr.LJ 301).
8. Raja Saeed Akram Khan, the learned Assistant Advocate-General, opposing the petition contended that as held in Mian Muhammad V. Government of West Pakistan and another (1970 SCMR 645), section 30, of the Police Act, does not provide that taking out of procession cannot be refused to any one on any ground or that the number of procession to be taken out to any particular area cannot be regulated under any circumstances. Similar principle was laid down in Hakim Sher Ahmad Chishti v. Syed Abbas and 2 others (PLD 1976 Lahore 85). The learned Assistant Advocate-General also referred to Mohabat Ali v. The District Magistrate, Campbellpur and another (PLD 1976 Lahore 755) claiming that the grant of licence can be declined.
9. From the record it appears that recently no order had been passed on any application moved by the petitioners seeking permission for taking out 'Alain procession' on the 14th of Saffar. In this respect, no copy of such order refusing to grant the licence was filed. As it is clear from the record the petitioners were refused grant of a licence by order of the District Magistrate, Chakwal on 14-6- 1996, which had been agitated before this court through Writ Petition No,915 of 1996. The said petition as stated above stood disposed of by order of this Court, dated 21-4-1998, as having become infructuous. It appears that no fresh application had been moved to the concerned district authorities for taking out ' Alam procession' during subsequent years and the petitioners are agitating against the action or inaction of the local administration on the basis of applications already disposed of by the concerned authorities.
10. Article 20 of the Constitution provides that subject to law, public order and morality, every citizen has the right to profess, practice and propagate his religion, and every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institutions.
Meaning thereby that the Parliament or the Provincial Assembly can regulate the aforesaid rights of professing, practicing and propagating of ones' religion. In this context, by virtue of an amendment, a proviso to subsection (3) of section 30 of the Police Act, 1961 has been added by the Police (Punjab Amendment) Ordinance, 1984 (VIII of 1984) which is reproduced below:-- "Provided further that he shall refused to grant a licence in a case in which the Magistrate of the District or of the sub-division of a District is satisfied and conveys such satisfaction to him in writing that the grant of the licence is likely to cause a breach of the peace or to be prejudicial to the public safety or public interest or the maintenance of public order."
11. It is in the report of District Magistrate and of the Assistant Commissioner, Tallagang, made to the District Magistrate, Chakwal, on 24-6-1996 and reports submitted in this Court that the atmosphere in the village Dhaular is not peaceful. According to Assistant Commissioner's report, dated 10-12- 1998, in the said village the Sunni people are in majority and any permission allowing the other sect to take out Alam procession' is certainly likely to create law and order situation. The factum of the alleged agreement between the persons of two sects in the year 1992, filing of criminal cases against each other and filing of successive Constitutional petitions in this Court are the clear indicative of the fact that everything was not as congenial as it was claimed by the petitioners. In these days, when the disputes between two sects are aggravating day by day, any declaration for grant of a licence to the petitioners may tantamount to unnecessary interference in the affairs of the administration which is of the opinion that grant of licence under section 30 of the Police Act, 1961, to the petitioners for taking Alam procession' on the 14th of Saffar is bound to create problems of law and order and would be prejudicial to public safety and public interest. If the district administration is having a different opinion this Court cannot in Constitutional jurisdiction without any material on the record, substitute with its own opinion in respect of prevailing law and order situation on the village Dhaular and District Chakwal. In this context reference is made to Syed Muhammad Hussain Shah v. Government of Punjab, etc. (NLR 1992 CU 640), wherein it was held as under:-- "Furthermore, section 30 of the Police Act, 1861, as amended by Police (Punjab Amendment)
Ordinance (No,VIII of 1984), the grant of licence can be competently refused in a case in which the Magistrate of the District or of the Sub-Division of a District is satisfied and conveys such satisfaction to him in writing that the grant of licence is likely to cause a breach of the peace or to be prejudicial to the public safety or public interest or the maintenance of public order."
12. In view of the above, no interference at this stage by this Court is called for. The petitioners may if so advised, move afresh to the district administration for the requisite licence when the situation becomes normal.
The concerned authorities will also give due consideration to the request of the petitioners keeping in view the public safety and maintenance of public order so that there is no breach of peace in the area. With these observation, the present petition is disposed of with no orders as to costs.