CH. IJAZ AHMAD, J.-- Brief facts out of which, the present ICA arises are that the appellant filed a writ petition No. 2914/97, with the prayer that the celebration of festival of the Basaat, be declared as Un-Islamic under the Constitution of Islamic Republic of Pakistan 1973, which was disposed of by the learned single Judge vide impugned judgment dated 2.11.1998. Hence the present ICA.
2. The appellant submits that he had attached Annexures A to M/15, alongwith the writ petition, which clearly reveal that activities of Basant is in violation of the injunction of Islam; he further submits that news item appeared in daily Dawn dated 20.1.1996 with, the following heading:- "Bullets fly with kites"
He further submits that it is the duty and obligation of the respondents to enact the law, to ban the functions of Basant, but the respondents are infact, celebrating the Basant officially. He further relied upon a pamphlet under the heading "Basant Ka Tehwar" written by Moula Mehmood-ur- Rashid Hadwati, and relied upon certain passages from this pamphlet, to show the celebration of Basant, is against the injunction of slam. He further submits that respondents themselves admitted in their parawise comments filed by them in WP No. 1494/93 that the celebration of Basant festival is un-Islamic. He further submits that respondents cannot deviate from the stand taken by the respondents in WP No. 1494/94, on the well known principle of Approbate and reprobate. He further submits that learned Single Judge, observed in the impugned judgment that the arguments of learned counsel for the petitioner are in realm of morality and his Court has no jurisdiction to enter into the field of morality under Article 199 of the Constitution. This observation of the learned Single Judge is not in accordance with the law laid down by the Honourable Supreme Court in Benazir Bhutto's case tPLD 1988 SC 416), in which, it has been observed as under:- "In my view, the Holy Quran itself is the guide for eliciting and citing the meaning of morality in I-152 Soora Al-anam.
He further submits that action of, respondents is in violation of the preamble of the Constitution, Articles, 2, 2-A, 9, 14, 31, 37, and 227 of the Constitution. He further urged that it is the duty of the respondents to enact the law in view of the enforcement of Shariat Act, 1991. He further submits that only, one percent of the total population of the country is celebrating Basanat Festival and is creating difficulties to the remaining people of Pakistan. The fundamental rights of 99 percent, the people of Pakistan, are violating as is evident from the news items appeared in the daily newspaper that young boys or persons walking on the road were injured or sustained injuries due to the activities of one percent. In support of his contention, the appellant has relied upon Mrs. She/a Zia's case PLD 1994 SC 693.
Learned Advocate General, submits that the appellant failed to point out any illegality or infirmity in the impugned judgment, therefore, the ICA is liable to be dismissed. He further submits that the High Court, cannot give direction under Article 199 which is not specifically provided in law, meaning thereby that the High Court, can give only those direction for which, the provision is made in law. In support of his contention, he relied upon the following judgments:-- Muhammad Yousaf's case(PLD 1969 SC 1 53).
Ramzan Welfare Trust's case (PLD 1997 Lahore 235).
He further submits that respondents had taken specific measures to safe the life of innocent persons, as directed by the learned Single Judge in the impugned 'judgment.
4. We have considered the contention of the learned , counsel for the appellant and Advocate General of Punjab and perused the record ourselves. It is better and appropriate to reproduce the prayer of the appellant to resolve. The controversy between the parties. "It is therefore, humbly pray3d that this appeal may kindly be accepted and the impugned order dated 2.11.1998, passed by the learned single judge may kindly be set aside and the respondents, may graciously be directed to impose ban on the carnival of Basant and kite manufacturing and kite flying totally being unIslamic, illegal, unlawful tradition and custom of Hindus endangering the public peace and tranquility."
As far as direction to the respondent the Basant festival is unIslamic, this Court in view of Article 203(g) has got no authority in law to determine the same. Even otherwise, respondents admitted in their report and parawise comments filed by them in WP No. 1494/93, that Basant is a Hindo festival, and some people in Pakistan also celebrating it without lawful authority and also admitted in their report and comments that certain administrative measures are adopted to prohibit the people from this unlawful act, to prevent danger to human life and disturbance of public peace and tranquillity at the eve of Basant festival. Learned Single Judge, while disposing of the writ petition directed the respondent in following terms: This petition is disposed of with the observation that the respondent government will attend to the illegalities accompanying the festivity of basant and take steps to effectively deal with the same.''
The learned Advocate General Punjab has placed on record measures taken by the respondents in obedience of the direction of the learned single Judge of this Court, and as directed by us vide order dated 13.2.2001 which are reproduced hereunder:--
1. "LEGAL ORDER U/S. 144 Cr.P.C.
District Magistrate Lahore has issued prohibitory orders under section 144 Cr.P.C., imposing complete ban on manufacture, sale and use of metal wire for kite flying, or any aerial firing, or misuse of loudspeaker, etc (Copy attached). Thus order has been passed for ensuring maintenance of public peace and tranquility and for preventing any danger human life or property.
2. LEGAL-SECURITY BONDS All owners/managers of those venues/places where public functions of basant are being arranged, like hotels, havelis, etc have been made to furnish security bonds in sum of Rs. 5 Lac each for, ensuring good behavior and for adherence to code of conduct. More than 2000 such security bonds have been got executed and in case of violation concerned persons have been warned that in 'addition to strict actions per law against them, these persons will also be made to pay the said amount of penalty for violation of code of conduct.
3. OPERATIONAL SPECIAL TEAMS 25 Special Teams/Sqads have been constituted for Lahore, which include Magistrate, SHOs, representative of WAPDA and notable citizens of area. These teams are conducting regular raids for the last one week to identify those unit which are manufacturing metal wire for use in kite flying.
These special teams/squads have also been tasked to conduct raids against those who are using metal wires for kite flying. More than 600 raids have been conducted by these Teams/squards.
4. PENAL Strict penal action is being taken against those who are found guilty of use of metal wire for kite flying, or for aerial firing. 68 cases have been registered in Lahore and 78 persons have been arrested for violation of law on this account.
WARNINGS Apart from this, general public is being warned also against use of metal wire for kite flying, or any aerial. Firing during basant related activities as this causes danger to public life and property.
Warning notices are being issued and more than 2000 such handbills have been distributed in those areas of Lahore where basant activities are more intense.
6. PUBLICITY Massive publicity is also being done to solicit support of general public in these efforts of administration. DC Lahore and officers of Divisional Administration have taken part in two Talk- Shows in this regard which have been telecast on PTV in which also general public was requested to desist from any illegal activities during bassanat which endanger lives of other people. Press is also being requested to give positive coverage to these efforts. Recent Press clippings in this regard are attached."
It is also admitted fact that our Constitution is based on trichotomy as is held by the Honourable Supreme Court in Zia-ur, Rehman's case in PLD 1973 SC 49 and Mian Nawaz Sharif' case PLD 1993 SC
473. This Court has only jurisdiction to interpret the law and has no jurisdiction to take the role of legislature. The proper forum for resolution of this important question of law is either to invoke the jurisdiction of Federal Shariat Court under Article 203-D or to approach the Council of Islamic Ideology. It is settled mandate of the Constitution that allowing both these bodies i.e. Federal Shariat Court and Council of Islamic Ideology to operate in the respective sphere, the conclusion is that all such laws, which applied to Muslims in their capacity as Muslims, whether these are statutory law or otherwise, are left to be dealt with by the Council of Islamic Ideology. In arriving to this conclusion, we are fortified by Federation of Pakistan's case PLD 1981 SC 120.
Let a copy of the writ petition and grounds of appeal be sent to the Council of Islamic Ideology who is directed to consider the same and sent its recommendation to the competent bodies for further action. With these observations, this ICA is disposed of.